Editorial: Good faith v ulterior motive

Last updated 05:00 17/11/2012

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OPINION: Environment Southland did not prosecute Euan Shearing Contracting in good faith.

That was the stark substance of Judge Jeff Smith's decision to order the regional council to pay costs incurred by the company defending the case to the point that it was finally withdrawn.

The significance of the judge's ruling goes far beyond the $5000 figure or that it was a rare step to award it. Or even that he found evidence from council officer Chris McMillan was "incorrect" when it conflicted with what others said had happened.

Certainly, that is concerning. The circumstances of the prosecution have pretty much scandalised the public. It emerged in court that Mr McMillan had changed part of a form filled out by police officer Anthony Vincent. An audit of the council's compliance processes, subsequently commissioned by the council itself, is being keenly awaited.

But on top of all that, the judge's ruling raises weighty questions about the legality of penalties already imposed on, and paid by, other stock truck operators pulled over during that Gypsy Day operation last winter.

The judge believed the council and police were acting with an ulterior motive.

Though the Transport Act deliberately excludes effluent discharge as an offence, the prosecution was undertaken as a chance to test in court as a matter of principle whether it could instead constitute an offence under the Resource Management Act.

In other words, the council chose to haul someone off the road for a straight-out prosecution in preference to seeking a law change, or even a declaration, to clarify the issue.

This the judge called a "novel" attempt. In other contexts that word might have been used with a trace of admiration. Not so here. The judge meant it was new and untested. And so it remains, because the abandonment of the Shearing prosecution means it has not yet been argued.

The implications of a successful road traffic prosecution under the RMA would have been extremely widespread, not only within the trucking industry but for all forms of transport in New Zealand. What if you drove over some cow poo and, in turn, dispersed it further? The judge didn't go that far, of course, but he did see the prospect of an RMA-based prosecution having, by extension, universal application. "Consider discharges to air and the principle may apply to every vehicle."

The fact remains that other truckies pinged in the council-police sting have not gone to court; they have paid up. They now have the option of court action. Whether this is financially worthwhile is a matter for them, though it's a fair bet at least some of them won't be thinking solely in terms of money. Outrage might kick in too. Nobody likes to feel they were illegitimately fined.

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As for the purported characteristics of this police-council teamwork it is difficult to see how the council could possibly think that anybody would take at face value its description of the joint approach applied to form-filling. Mr McMillan crossed out what the constable had written and replaced it with his own, conflicting, information. Then he didn't bother telling anybody. Not really a joint exercise, then.

The photographic evidence produced against Euan Shearing was also, shall we say, unhelpful to the prosecution. Mr McMillan told the court the photos were taken at 2.07pm. Trouble was, the vehicle was said to have been stopped at 2.09pm. Not a lot in that prosecution seems to have stacked up.

- © Fairfax NZ News

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