Bliss v Police
[2014] NZHC 2472
•8 October 2014
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2014-406-3 [2014] NZHC 2472
BETWEEN DAWSON ANTHONY BLISS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 1 July 2014 Appearances:
D A Bliss appearing in person
A L Mills for the RespondentJudgment:
8 October 2014
JUDGMENT OF MALLON J
Introduction
[1] Mr Bliss was convicted, following a defended hearing, on two charges of hunting wild animals without the authority of the owner or occupier of the land.1 He appeals against his convictions.2
[2] The convictions relate to hunting on two Marlborough properties over the Easter weekend of 7 to 9 April 2012. Mr Bliss was alleged to have hunted on those properties, together with an associate by the name of Cameron Young, using quad bikes borrowed from Ross Young, who is Cameron Young’s father. Mr Bliss and Cameron Young were not apprehended while they were hunting, but keys on two quad bikes found on one of the properties were taken by the owner of that property. The prosecution relied on evidence which traced the keys back to Ross Young and in
turn to Mr Bliss and Cameron Young. Mr Bliss’ appeal focuses on what he regards
1 Wild Animal Control Act 1977, ss 8 and 39.
2 Mr Bliss also filed an appeal against his sentence. At the hearing he advised that he had lodged the appeal against sentence because he thought he was required to do so if he was to appeal his conviction. On learning that this was not the case he abandoned his appeal against sentence.
BLISS v NEW ZEALAND POLICE [2014] NZHC 2472 [8 October 2014]
as a number of mistakes made by the District Court Judge in finding the charges proven in this manner.3
The evidence
[3] One of the properties to which the charges relate is Ashworth Farm. That property is owned by Timothy Wadworth. Mr Wadworth gave evidence that on
8 April 2012, while he was on a quad bike, he noticed two blue Yamaha quad bikes parked on the side of a track, under some scrub, on his property. He took the keys from the bikes, disabled the spotlights on the bikes,4 went to higher ground and called the police. While he was on the telephone he heard the motorbikes start up and realised that whoever had been on the bikes had managed to get them started without the keys. He was not able to see who was riding the bikes but did see two dogs, which he described as “pig dog type”, following the bikes. He watched the men on the bikes go north along the very steep track which heads through into
Brancott Station. On the same day, about three or four hours later, Mr Wadworth gave the keys to Constable Young.
[4] Constable Young’s evidence was that, in response to the call from Mr Wadworth, he set up a road block to attempt to locate the two men. Nothing came of this. He recalled that it was the next day that he went up to Mr Wadworth’s house, where he took a statement from Mr Wadworth5 and received the keys that Mr Wadworth had taken from the bikes. He noticed a job number and a price on one of the keys. He made enquiries with motorbike shops, including Brandon Wadworth’s shop on Grove Road.6 Mr Wadworth told Constable Young that he had sold that bike to Ross Young. Mr Wadworth gave evidence that this was one of three or four Yamahas that he had sold to Ross Young.
[5] Constable Young visited Ross Young at his home on 11 April 2012. Ross Young gave evidence that Constable Young came to see him “to identify two
quad bikes that … he had keys for”. He recalled the visit as occurring just after
3 Bliss v Police DC Blenheim 22 August 2013, CRI-2013-406-3.
4 Mr Bliss put to Mr Wadworth that he smashed one of the spotlights and Mr Wadworth accepted that he had done so.
5 He recalled that Mr Wadworth had mentioned that he had broken a spotlight on one of the bikes.
6 Brendon Wadworth is not related to Timothy Wadworth.
Easter. He confirmed that the keys belonged to “quad bikes” that belonged to him. He gave evidence that he had a big 20 foot container in the Wairau Valley where he stored all his bikes under lock and key. He had given permission to his son and Mr Bliss to use the bikes over the Easter weekend. He had brought the bikes down from the Wairau Valley to his home for that purpose.
[6] He understood from his son that the bikes were to be used while hunting on the West Coast. He was aware that Mr Bliss had stayed at his place around Easter, although he did not see Mr Bliss the night he arrived because it was late and Ross Young had been working from before dawn until after dusk. He did see Mr Bliss at some stage during the Easter period. Mr Bliss had a Toyota Hilux and a couple of “hunting type” dogs in the back. Ross Young did not see the quad bikes leave the property and did not know when they left his property.
[7] Constable Webster took over the enquiries in relation to this matter on 7 May
2012. He spoke to Ross Young in July and returned the keys to his bikes. On
19 July 2012 he received information about a campsite on Tempello. Tempello is a large property near Ashworth Farm and is owned by David Grigg. On 20 July 2012
Constable Webster drove to the campsite. He located dog food, unused food items and broken pieces of a quad bike tail light lens. He uplifted the items.
[8] On 25 July 2012 Constable Webster went with Ross Young to his storage container in the Wairau Valley. Constable Webster asked to be shown the two bikes that Ross Young believed had been used by his son and Mr Bliss. Ross Young opened the container for him. A number of bikes were inside. The last two bikes were a blue Yamaha and a red Honda. Ross Young indicated that he believed these were the two bikes that had been used. Constable Webster matched the broken lens
pieces to a broken tail light on one of the bikes.7 He acknowledged that he could not
say categorically that the broken pieces came from the broken tail light.
[9] Ross Young confirmed that Constable Webster visited him. He could not recall exactly when this occurred. He recalled that a comment was made about a
7 He did not say explicitly whether this was on the Yamaha or the Honda. However, in answer to a question from Mr Bliss, he appeared to accept that it was the Yamaha. It also appears that there was a photocopy which would have shown this but this was not produced as an exhibit.
broken tail light. He did not take much notice because a few of his other bikes have broken tail lights. He thought that he checked later to see if there was a broken tail light and he saw that there was. He was not asked and did not say which bike had a broken tail light.
[10] Constable Webster was asked by the Judge if he had any idea how old the campsite in Tempello was. He explained that he had been hunting all his life, had spent 13 years in search and rescue and was trained in “track and clue.” He said that some photographs that were disclosed would indicate whether food items had an expiry date but unfortunately they were not in Court. He said that the bread had moulded and some other stuff appeared to have been disturbed by wild pigs and knocked around the campsite. He then said:
There was no, I would say, yeah it had been well weathered and we were probably looking at as I, from the time I would it would be easy for me to say it was around the Easter period because I was looking, if I take that into consideration of the expiry dates on the items that clearly showed, it would be round two to three months Sir. … Prior to that when I went there on I think it was the 20th of July.
[11] Constable Webster’s investigations formed the basis of the second charge,
which related to hunting at Tempello.
The charges
[12] It is an offence to hunt or kill any wild animal over or across any land without the express authority of the owner or occupier of that land.8 To “hunt or kill” includes “taking or using any dog … [or] vehicle … while engaged in hunting any such animal, whether or not this results in capturing or killing any such animal”.9
[13] In prosecuting an offence a presumption applies, unless the contrary is proven, that a person was hunting if:10
(a) the person charged was found in an area where wild animals are usually present;
8 Wild Animal Control Act 1977, s 8.
9 Section 2.
10 Section 38(1).
(b) the person had with him or under his control (amongst other things)
any vehicle or dog; and
(c) in the case of a vehicle, it was adapted or equipped as to be capable of being used for hunting or killing any wild animal.
District Court judgment
[14] The Judge found that Mr Grigg and Mr Wadworth had not given authority to Mr Bliss to hunt on their land. He then turned to the presumption. He held that wild animals were usually present on Ashworth Farm and Tempello. For the purposes of this appeal the critical issue was whether it was proven that Mr Bliss was “found” on those properties. The Judge held that a person can be “found” when a person’s presence is discovered. Presence can be established by direct evidence, such as visual identification, or it may be established by other evidence. The Judge found that the evidence established Mr Bliss’ presence on Ashworth Farm and on Tempello. This was primarily on the basis of Mr Bliss’ link to the quad bikes which were traced back to Ross Young. The Judge also found that the quad bikes were a “vehicle”. He found that, because they had spotlights, they had been adapted or equipped as to be capable for hunting or killing any wild animal. He therefore found the charges
proven.11
Hunting on Ashworth Farm
The keys
[15] Mr Bliss contended that the Judge erred in how he had described and assessed the evidence in relation to the keys. His point was that only one key had been traced to the motorbike shop and in turn to Ross Young, yet the Judge treated the evidence as though two keys had been taken and traced back in this manner.
[16] I consider that there was no material error in this respect. The evidence was that Timothy Wadworth had taken both sets of keys from the two bikes he had seen parked on his farm. He was surprised that, despite this, both men were able to start
the motorbikes and to leave the property. Both sets of keys were given to Constable Young. One of those keys was traced back to Brendon Wadworth who confirmed that he had sold that bike to Ross Young. This led Constable Young to Ross Young who confirmed that both sets of keys belonged to bikes that he owned. Both sets of keys were later returned to Ross Young by Constable Webster.
[17] None of this evidence was contested. The result was that, because the keys for one of the bikes was able to be traced back to Ross Young, and Ross Young was then able to confirm that both sets of keys belonged to two of his bikes, a link was established between both sets of keys found by Timothy Wadworth and the two bikes owned by Ross Young. In turn this linked Mr Bliss to the bikes found by Timothy Wadworth on Ashworth Farm through Ross Young’s evidence about who had use of the bikes over the Easter weekend.
The smashed spotlight
[18] In cross examining Timothy Wadworth, Mr Bliss put it to him that he had actually smashed a spotlight, not simply disabled it. Mr Wadworth confirmed that this was so. The police then believed that Mr Bliss had incriminated himself through this question because Mr Bliss could not have known that the spotlight had been smashed unless he was there. On appeal Mr Bliss says that he knew about this through discussions that had taken place when Cameron Young pleaded guilty to the charges.
[19] Be that as it may, the point has no bearing on the Judge’s findings. The Judge was satisfied of Mr Bliss’ presence on Ashworth Farm on 8 April 2012 beyond reasonable doubt without reference to the point about the smashed spotlight. He reached his view and said “I do not need to rely on the answer to Mr Bliss’s question
about who smashed the spotlight to make this finding”.12 Mr Bliss asks me to find
that, because the Judge spent some time in his judgment carefully explaining how this issue had arisen and why he thought Mr Bliss’ question could be relied on by the police, the Judge had in fact relied on the matter in reaching his finding. However
that provides an insufficient basis on which I could find that the Judge had in fact relied on the matter despite expressly stating that he had not.
Two blue Yamahas
[20] Mr Bliss refers to confusion in the evidence over whether the two bikes found on Ashworth Farm and owned by Ross Young were two blue Yamahas or one blue Yamaha and a red Honda. The Judge concluded that the two bikes were blue Yamahas. He preferred the evidence of Timothy Wadworth about this. That was because Mr Wadworth had taken the keys and watched the bikes go over the ridge. Constable Webster was shown a blue Yamaha and a red Honda some months later.
[21] The Judge’s conclusion was open on the evidence. Constable Webster did not take over the file and did not look at the bikes until late July 2012. The evidence was that Ross Young owned a number of bikes. It is quite possible that he mistakenly showed Constable Webster a red Honda in error. Be that as it may, whether it was two blue Yamahas or one blue Yamaha and one red Honda is immaterial.
[22] The evidence that there were two quad bikes found by Mr Wadworth on his property, that he took the keys from them, that the keys were then traced back to Ross Young, that Ross Young confirmed that the keys belonged to two of his bikes, and that he had given Cameron Young and Mr Bliss permission to use them to go hunting over Easter was not contested. Mr Bliss’ position in the District Court was that this was insufficient to link him to the use of the bikes when Ross Young had not actually seen him use the bikes. The Judge found that it was. Whether they were two blue Yamahas or one blue Yamaha and one red Honda does not detract from that conclusion.
Overall assessment
[23] Having reviewed all the evidence, the Judge’s decision and considered Mr Bliss’ submissions I am satisfied that the Judge did not err in his conclusion that the charge in relation to hunting on Ashworth Farm was proven. The case against Mr Bliss was a circumstantial one. The circumstances were that:
(a) Ross Young had given permission for Cameron Young and Mr Bliss to use two of his quad bikes to go hunting over the Easter weekend.
(b)Ross Young had brought two bikes from the container where they were stored to his house for that purpose.
(c) Mr Bliss was at Ross Young’s property over the Easter weekend. (d) Mr Bliss had two pig hunting type dogs with him.
(e) Two bikes belonging to Ross Young were found on Ashworth Farm during the Easter weekend.
(f) These two bikes were the ones that Ross Young had brought to his house for Mr Bliss and Cameron Young to use to go hunting.
(g)The two men seen driving away on Ashworth Farm on these bikes had two hunting type dogs with them.
(h) There was no evidence that anyone else had borrowed the bikes from
Ross Young that weekend.
[24] On the basis of all these circumstances it was well open to the Judge to find the charge in relation to Ashworth Farm proved beyond reasonable doubt.
Tempello
The direction in which they travelled
[25] Mr Bliss refers to Timothy Wadworth’s evidence that he saw the two bikes head in the direction of Brancott Station. He points out that Brancott is a huge station in between Ashworth Farm and Tempello. He says that to infer from this evidence that the two men were heading in the direction of Tempello is like saying that someone was driving towards Palmerston North because they left Wellington. I accept that on its own this evidence does not provide a strong link between the two
men found hunting on Ashworth Farm and whether they went on to Tempello to hunt.
The tail light
[26] The Judge recorded in his decision that Ross Young’s evidence was that one of the two quad bikes he gave permission to use was “returned with a broken red tail light.”13 He further said that:14
… the blue Yamaha quad bike that Mr Young did identify as the quad bike he gave permission to use and that was returned with a broken red tail light, can be placed at Tempello by the fragments of red plastic that Senior Constable Webster found at the camp site.
[27] Mr Bliss is correct that the evidence about this is less clear. Ross Young confirmed only that a tail light on one of the quad bikes was broken and that he noticed this after Constable Webster had mentioned it. He did not think much of it because a few of his bikes have broken tail lights. He did not say that he noticed that one of the bikes he had lent to Cameron Young and Mr Bliss had been “returned” with a broken tail light. Nor did he say that it was a blue Yamaha bike. He showed Constable Webster a blue Yamaha bike and a red Honda bike. It is not clear which bike he confirmed did have a broken tail light. It is also to be borne in mind that Constable Webster could not say categorically that the broken fragments he found came from one of the two quad bikes that he looked at in late July 2012.
The date of the campsite
[28] Mr Bliss queries how the date of the campsite can be determined from the fact that mouldy bread was found and because the pet food had an expiry date on it. I agree. Although Constable Webster provides some information about his experience, no detail is provided from which it would be safe to conclude that he can date a campsite to within two or three months from these matters. Constable Webster does not specifically say that he checked the expiry date on the pet food. He does not say what the expiry date was. There was no evidence before the Court
as to how long dog food lasts and therefore what sort of expiry date it would have in
13 At [29].
14 At [30].
relation to its date of purchase. At best the evidence he gave was consistent with someone being in the area to hunt in a period of about two to three months earlier than 20 July 2012. However, given the lack of detail to support this opinion, it cannot be given much weight. It was consistent with someone hunting at Easter weekend, but could just as possibly have been at some other time.
Overall assessment
[29] The case in relation to Tempello was a circumstantial one. The circumstances were that:
(a) Mr Bliss and Cameron Young were hunting in Ashworth Farm on
8 April 2012 (as found on the first charge).
(b) They were seen heading in the direction of Tempello.
(c) An old campsite located on Tempello was inspected by Constable
Webster on 20 July 2012.
(d)The bread and pet food found at the campsite indicated that whoever had been there could possibly have been there over the Easter weekend of 2012.
(e) Fragments from a broken tail light were located at the campsite.
(f) These fragments could have come from one of Ross Young’s bikes.
(g)It is not known when the tail light from the bike that Ross Young checked was broken and it was not unusual for his quad bikes to have broken tail lights.
[30] The circumstances are not compelling. They are consistent with Mr Bliss hunting at Tempello over Easter but there are other reasonable possibilities. In particular it is reasonably possible that someone else at some other time in the months before July 2012 was hunting in the area and broke a tail light. The Judge
found the charge proven partly because he placed weight on one of the bikes that Ross Young gave permission to use being “returned” with a broken tail light. That was not precisely the evidence. He also placed weight on Constable Webster’s evidence that he could date the campsite to around Easter, when this evidence was not entitled to much weight. These matters led to a conclusion that the charge was proven beyond reasonable doubt that was in error.
Result
[31] The appeal against conviction is allowed in part. The conviction that relates to hunting on Tempello is quashed. The fine imposed in relation to that conviction is also quashed. The conviction that relates to Ashworth Farm is upheld as is the fine that relates to that conviction ($400) and the police expenses that were ordered ($289.14).
Mallon J
0
0