District Court emphasises care when drafting representative charges
Drafting charges is a challenge for any prosecution. The charges must be clear and provide sufficient information to the defendant, whilst being able to be established on the evidence. Where there are a large number of similar events, a representative charge might be considered. However, as the recent decision of R v AFFCO New Zealand Ltd demonstrates, care must be taken in using a representative approach, especially when dealing with discharge cases.
R v AFFCO is a decision from the District Court of Hamilton involving the prosecution of AFFCO for discharging odour from its meat works in Horotiu, Waikato, and Imlay, Whanganui, in breach of resource consent conditions and abatement notices. AFFCO faced multiple charges from both the Waikato and Manawatu-Whanganui Regional Councils for odour discharges in 2022. These were framed as representative charges. Section 20 of the Criminal Procedure Act allows a prosecutor to lay a representative charge if multiple offences of the same type are alleged, committed in similar circumstances, and it would be unduly difficult for the court to manage separate charges.
The Crown sought to divide the representative charges, but have the charges remain representative. Section 21 empowers the court to amend, divide, or amalgamate charges in the interests of justice. This includes ordering that representative charges be divided into specific charges or that multiple charges be combined into a representative charge. AFFCO opposed the Crown's application, arguing the charges were not truly representative and could instead be non-representative charges, specified by dates and details. AFFCO also raised a range of concerns with a representative charge approach, including that a representative charge for a month might only be based on two to four days of complaints, creating an unfair impression.
In considering this issue, the Court emphasised the importance of the defendant being provided with sufficient detailed information to be fairly informed, and to allow for a fair trial. The Court noted that the starting point is that a charge must relate to a single offence and that representative charges are an option within this framework, subject to the court's power to amend or divide charges in the interests of justice. The Court referred to Supreme Court decisions, which make it clear that there are risks with using a representative charge, and that:
“It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count”1
In this case, the Court concluded that framing the charges as single offences based on specific dates would avoid unnecessary complexity and better assist the jury in understanding and deciding the charges, and directed the Crown to reframe the charges to specify individual events and include particulars of date, time, and place, concluding that2:
“In my judgement, in relation to discharge cases under s 15(1)(c) of the RMA, particulars of date, time and place can be very important, especially where circumstances may indicate that there could be other sources of discharges such as where a works is located in an industrial area and there are other potential sources of discharges of odorous compounds to air in the vicinity”.
This decision highlights the legal intricacies involved in drafting charges and the importance of clear and specific charges in criminal proceedings. If you need more detailed information or have specific questions about the case, please contact us.
1Mason v R [2010] NZSC 129, [2011] 1 NZLR 296 at [9]
2R v AFFCO New Zealand Ltd [2024] NZDC 28755 at [43]
