Civil Aviation Authority v The Helicopter Line Ltd [2017] NZDC 22210

Published 16 November 2017

Application for amendment of charges — correction of deficiencies in particulars — whether amendment in the interests of justice — whether an amendment would prejudice the defendant — whether proposed amendments substantially alter the practical steps — Criminal Procedure Act 2011, ss 17, 133 & 379 — New Zealand Bill of Rights Act 1990, ss 24 & 25 — Worksafe New Zealand v Talley's Group Ltd [2017] NZHC 1103 — R v Lewis [2015] NZHC 642. In this pre-trial application, both the defendant and the prosecuting authority had applied to have the charging documents amended. The court noted that the charging documents did not set out the particulars of the practicable steps that the defendant company failed to take. The defendant opposed the amendments sought by the prosecuting authority on the grounds that the amendments would substantially alter the practicable steps, the amendments would be made based on evidence acquired by the prosecuting authority after the relevant limitation period and that the amendments would alter essential allegations which form the basis of the charge. The court noted that the defendant's interests should be central in any decision around the amendment of charging documents. The court considered whether the proposed amendments would substantively alter the practicable steps; whether any proposed amendments were prejudicial to the defendant, and whether it was in the interests of justice to grant the application to amend the charging documents. In respect of the first issue, the court noted that several of the proposed amendments would make substantial alterations to the practicable steps, rather than provide further particulars on practicable steps already set out in the charging documents. The court then considered whether the proposed alterations were prejudicial to the defendant company. It was noted that several of the proposed amendments substantively altered the charges that had been laid. The court further found that the application to amend the charges was made two and a half years after the charges were initially laid, and two months before the trial was set to start. With reference to the timing of the amendments sought, and the New Zealand Bill of Rights Act, the court found that the defendant company would be prejudiced by the introduction of two of the proposed changes. The court further considered whether it was in the interests of justice to grant the prosecuting authorities application. The court considered that reframing the charges in the proposed manner would properly reflect the evidence to be heard at trial, and would clarify the prosecuting authority's case. The court balanced those considerations against the prejudice to the defendant company. The application in respect of the amendments that did not prejudice the defendant was granted; and the application in respect of the prejudicial amendments was granted following the removal of prejudicial words. Judgment Date: 4 October 2017.