B v Police HC Napier CRI 2008-441-43

[2009] NZHC 376

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2008-441-43

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 March 2009

Counsel:         Appellant in Person

D J O'Connor for Respondent

Judgment:      1 April 2009

JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      Mr B   pleaded guilty to hunting a wild deer on private property without the authority of the owner of the land and carrying out a commercial activity on conservation land.  On the later charge he was fined $500 and ordered to pay court costs.  On the former he was ordered, after he agreed, to pay reparation of $1,875 in

full by 28 February 2009. He also agreed to the return of the stag’s head.

B V NEW ZEALAND POLICE HC NAP CRI 2008-441-43 1 April 2009

[2]      Two other co-accused also pleaded guilty and were ordered to pay a similar amount in reparation for the stag shot by them.

[3]      Despite the fact that he agreed to the reparation Mr B   now appeals against that order claiming that a reparation order should not have been made to a private citizen for a wild animal.  He also claims he agreed to the reparation order “under duress”.  Finally, he says that after he agreed to the reparation order he found out that the private landowners claimed the stag was released by them onto their property.  In those circumstances Mr B   maintained a reparation order should not have been made.

Facts

[4]      The facts are relatively straightforward.  The appellant and two other young men, one of whom was the appellant’s son, arranged to have a helicopter take them into a conservation area near Blenheim known as Ferny Gear and to be dropped off on a high point known as Doctors Knob.

[5]      After arrival the appellant started filming pigs and deer on the conservation land for use in a commercial DVD production.  He had not been given permission to use conservation land for this commercial purpose.  The following day the appellant and others crossed over into private land and shot a large red stag.  The shooting was recorded on video.  The head was removed so it could be mounted at a later date and the rest of the carcass hidden.

[6]      In the summary of facts it  was  noted  that  the  appellant  sold  his  locally produced DVD’s from between $45 and $55 each and the owners of the farm identified the loss of potential income from the trophy stag, which was illegally shot on their property, at $8,000.  The owners of the property had established a hunting safari area on the farm with a hunting lodge to attract foreign clients to stay at the lodge and shoot wild stags and pigs.

[7]      The matter came before the District Court Judge on a guilty plea but with a dispute about the facts and reparation.   The Judge on the day indicated that there

would not be time to have a full reparation hearing but if the parties could agree on a fair reparation order then he would be prepared to make such an order.  When the matter came back before the Court that day the appellant’s counsel advised that there was an agreement on reparation and an order for reparation could be made, in favour of the landowners, payable by Mr B  , of $1,875.

Basis of Appeal and Discussion

[8]      Mr B  ’s first complaint on appeal was that he had somehow been misled about the stag’s origin before he had agreed to the reparation and only found out afterwards that it was not, as claimed, a wild animal but a domesticated animal released by the landowners.

[9]      In addition he maintained that no order for reparation could be made with respect to a wild animal to private landowners.   He claimed the only DOC as the representative of the state could be awarded reparation for the loss of a wild animal.

[10]     The summary of facts made no mention of whether the stag was a “wild animal” or whether it had been released by the landowners.  What is clear is that the landowners had developed a hunting business on their own land and the stag was shot on their land and the loss of a stag would obviously affect their business.  What is  also  significant,  however,  is  what  counsel  is  recorded  to  have  said  to  the sentencing Judge at the time of agreeing to pay the $1,875 compensation.

[11]     He said:

Can I also indicate Sir that there would be consent to an order for the return of the stag’s head if that hasn’t already been.  And I am instructed to make two  comments  Sir.    One  is  that  Mr Dawson  is  free  to  make  his  own complaints in relation to any alleged wrong doing by a third party and he doesn’t concede that they own the deer but he accepts reparation for the loss of opportunity to profit.

[12]     That observation makes it clear that Mr B   himself raised the question of whether  the  deer  was  wild  or  domesticated  and  therefore  “owned”  by  the landowners.  Counsel for Mr B   made it clear that reparation was for the loss of hunting opportunity suffered by the landowners when Mr B   shot a stag on their

property.  This deprived the landowners from offering their clients a chance to hunt that  deer.    In  those  circumstances  I  cannot  see  that  Mr B    could  have  any complaint about the circumstances under which he agreed to pay the reparation.

[13]     I told Mr B   at the hearing the only basis upon which I could see he could succeed in this appeal was if he could convince me that in agreeing to the reparation of $1,875 he had been misled in a material way which influenced his decision whether to pay the reparation.  It is clear from the transcript that Mr B   was not misled and that he agreed to pay the reparation knowing entirely what he was doing.

[14]     Mr B   also complained that he was put under unfair pressure when he agreed to the reparation.  It is difficult to see how this is the case.  The Judge made it clear that if an agreement as to reparation could be reached on that day then he would make an order but that if it could not be reached then the case would have to be adjourned for a hearing about the reparation.  That is no more than an appropriate approach by the Judge and could not be the subject of any valid criticism nor of any unfair pressure.

[15]     For the reasons given, therefore, the appeal will be dismissed.

Ronald Young J

Solicitors:

D A B  , 1940 State Highway 50, R D 5, Fernhill, Hastings

D J O’Connor, Elvidge & Partners, PO Box 609, Napier, email: [email protected]