Judge not happy cops used in sting

EVAN HARDING
Last updated 05:00 16/11/2012

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It is questionable whether Environment Southland's actions in using police to pull over stock trucks on the region's roads last winter so the council could prosecute truckies for effluent discharge was legal, an environment court judge has intimated.

Judge Jeff Smith's comments come in a case between Environment Southland and Riverton trucking company Euan Shearing Contracting, which was seeking $5000 in costs from the council.

The judge awarded in favour of the trucking company.

In a joint Environment Southland and police sting, stock trucks were pulled over by police and checked for effluent discharge before and on Gypsy Day last year, when thousands of cows were being transported throughout the region.

Judge Smith says the case on the whole was "novel" and appeared to have been deliberately commenced in an attempt to get around the limitations of the Transport Act.

"Whether in fact the police officer is able to stop the vehicle for an ulterior purpose was a matter which was not argued before this court, nor am I prepared to offer a view on it."

He concluded that the Environment Southland prosecution was brought in an attempt to argue whether a discharge from a vehicle could constitute an offence under the Resource Management Act, given it was specifically excluded under the Transport Act.

His decision says it was clear to Environment Southland that such a prosecution was untested.

"Rather than seeking a law change to clarify the various issues, or seeking a declaration, the regional council used the prosecution device in conjunction with the New Zealand police. To do so is ground for awarding costs and I cannot say the proceedings were undertaken in good faith knowing an offence was committed." The judge's decision also confirms Southland Times reports that Environment Southland compliance officer Chris McMillan altered a form filled out by police after the Euan Shearing Contracting stock truck was pulled over and checked for effluent discharge.

The constable who stopped the truck had written on the form that there was "nil" discharge from the truck.

An affidavit from Mr McMillan agreed he changed the form to say there was discharge from the truck, while Mr McMillan also wrote on the form there were no effluent tanks on the truck, the judge says.

The judge says he considers Mr McMillan's evidence to be incorrect and he accepts that there were tanks on the vehicle.

The judge also did not accept there was evidence that the council photos were of the Euan Shearing Contracting truck in question, nor did the photos necessarily demonstrate the discharge of effluent from the truck, the judge says.

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"I prefer the evidence of the constable that there was no discharge," Judge Smith says.

There was also evidence that the council had been given the opportunity to check that there were effluent tanks on the truck.

"The council said that this was irrelevant."

Environment Southland chief executive Rob Phillips said, in a press statement following the judge's decision, that the council would reconsider its use of the Resource Management Act in its approach to stock trucks discharging effluent on to roads.

Road Transport forum boss Ken Shirley said last month that Environment Southland was the only regional council in the country to prosecute truckies for discharge from trucks under the Resource Management Act and it had been a wasteful and unproductive exercise that had cost truckies and ratepayers thousands of dollars without achieving anything.

evan.harding@stl.co.nz

- The Southland Times

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