The High Court gave Blenheim waste dump operator Mike Gifford the green light to challenge resource management charges laid by Marlborough District Council before he fronts up to any criminal prosecution; part of growing judicial control over potential misuse by local authorities of their ever-increasing powers to prosecute.
Power to prosecute lies with the state, commonly exercised by police. Police procedures see decisions to prosecute reviewed, minimising the chances of prosecutions in pursuit of personally motivated vendettas. With increased regulatory controls on business being passed over to government departments and local authorities, all backed by the power to prosecute, courts have stepped in to regulate use of their discretions to prosecute, allowing pre-trial judicial review of prosecutions.
Marlborough District’s allegations that Mr Gifford failed to properly manage a landfill site at Redwood Pass south of Blenheim were given extensive publicity. It filed criminal charges under the Resource Management Act. Specifically, Marlborough District alleges a failure to properly contain grape marc dumped as a residue from wine production. It is alleged marc has leached into both ground water and nearby Pukapuka Stream.
Mr Gifford has elected trial by jury on the resource management criminal charges. Before any criminal trial, he asked the High Court to review the decision to prosecute. Charges should never have been laid, he said. Council inspectors did not do their job properly and he should not face criminal charges to prove otherwise, he claims.
As a general rule, courts will not review before trial any decision to prosecute. Criminal law allows an appeal as of right, if convicted. The Attorney-General applied to have Mr Gifford’s judicial review application struck out. Justice Isac declined. It is unattractive that a citizen should have to either plead guilty or be convicted of an offence, and all that goes with that, before they can challenge the lawfulness of a prosecution, he said.
A full review of Marlborough District’s decision to prosecute has yet to be heard.
Gifford v. District Court – High Court (31.05.21)
21.091