Plea negotiations – a caution against chequebook justice

Representing councils in Resource Management and Building Act enforcement cases means that we often get approaches from defence lawyers, asking for certain charges to be dropped in exchange for guilty pleas to others. Some approaches are orthodox, some are very surprising (no, you can’t pay the council money to stop a prosecution).

The Solicitor General’s Prosecution Guidelines (the Guidelines) make clear that principled plea discussions and arrangements have significant value for the administration of criminal justice.
However, when decisions go awry they can do so very publicly. A classic example is Osbourne v Worksafe New Zealand1, where the then-Chief Justice warned of the risks of “chequebook justice” in the context of the decision not to prosecute following the Pike River disaster.

More recently, the District Court decision of Bathurst Coal Limited2 has brought regulators’ processes squarely into focus once again.

The background

The defendant company faced four charges under the Resource Management Act 1991 (RMA). Environment Canterbury sought leave of the Court to withdraw all four charges against the company, following its participation in the council’s Alternative Environmental Justice Scheme (the scheme) and its agreement to protect, by fencing and other works, a section of stream.
The Judge wasn’t satisfied that a proper process had been followed by the council to reach a decision to withdraw.

The Judge’s concerns

Judge Borthwick considered the relevant sections of the Criminal Procedure Act 2011, the Guidelines and applicable case law on the subject. Her Honour noted that the granting of leave to withdraw charges is highly fact specific, with the interests of justice being the guiding principle. Any application to withdraw must be made in good faith and the power conferred to grant leave must be equally exercised in good faith.
As the Judge rightly pointed out, the Court is not required to withdraw charges upon an application by the prosecutor. Where it becomes problematic is when the Court is not satisfied that the process or decision to seek leave to withdraw was principled.
The application for leave to withdraw the charges focused on the outcome of the defendant’s participation in the scheme. On that basis ECAN believed that adequate deterrence had been achieved. However, no reference was made to the Guidelines or specifically the public interest test for prosecution.
Ultimately, Judge Borthwick was not satisfied that the decision to seek leave was a principled one having followed proper process. In making its decision, the Court said ECAN placed undue weight on what it regarded as the likely sentencing outcome (no fine being imposed), with little or no consideration of other matters relevant to the public interest test.

Judge Borthwick said that the Guidelines caution against defendants avoiding prosecution by paying compensation. The Judge found this principle applicable to situations where money is spent to secure an environmental benefit – “the difficulty with such payments being made is the perception payments engender that a corporate can buy its way out of a prosecution”.

Take home points

The Bathurst Coal decision warns of “chequebook justice” and reinforces the need for regulators to follow a proper process before withdrawing charges. The Judge made clear that the Court will ordinarily be focused on first, whether a proper process – meaning the process under the Guidelines – has been followed and second, whether a principled decision was reached.
For resolution to be reached between the prosecutor and defendant that results in leave to withdraw charges being sought, and ultimately granted, emphasis must be placed on the Guidelines. Any application for leave must justify the public interest principle as set out in the Guidelines.

1 Anna Elizabeth Osborne and Sonya Lynne Rockhouse v Worksafe New Zealand [2017] NZSC 175 [23 November 2017].
2 Canterbury Regional Council v Bathurst Coal Limited [2019] NZDC 14416 (Judge J E Borthwick).


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