Cowlishaw v Police
[2012] NZHC 3183
•28 November 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2011-404-423 [2012] NZHC 3183
BETWEEN BARRY COWLISHAW AND LINDSAY MONK
Applicants
ANDTHE POLICE Respondent
Hearing: 16 November 2012
Appearances: Applicants in Person
B Hamlin for respondent
Judgment: 28 November 2012
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of pm on Wednesday 28 November 2012
Solicitors/Parties :
B Cowlishaw & L Monk, 31 Rathgar Road, Henderson, Auckland 0610
Crown Solicitor Auckland [email protected]
COWLISHAW AND MONK V POLICE HC AK CRI 2011-404-423 [28 November 2012]
[1] On 7 October 2011, after a seven day Judge alone trial, Judge Mather found the applicants guilty on a charge that, intentionally and without claim of right, they destroyed ecological reserve vegetation, the property of the Department of Conservation, having no interest in the said property.[1] The charge was laid under s
269(2)(a) of the Crimes Act 1961.
[1] Police v Monk and Cowlishaw DC Waitakere CRI 2009-090-8115, 7 October 2012.
[2] At a subsequent hearing, the Judge convicted and discharged each applicant, but ordered them to pay reparation to the Auckland Council of $500 by 31 March
2012. The applicants appealed to this Court against both conviction and sentence, although they ultimately advanced no argument in respect of sentence.
[3] On 5 June 2012, I dismissed their appeal.[2] They now seek leave to appeal from my judgment to the Court of Appeal.
Leave principles
[2] Cowlishaw v Police [2012] NZHC 1244
[4] The application is made in reliance on s 144 of the Summary Proceedings Act
1957 which provides:
144 Appeal to Court of Appeal
(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under s 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:
Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(3) Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[5] The proper approach to the exercise of the Court’s jurisdiction under s 144 is
well established. The leading authority is R v Slater.[3] There, the Court said:[4]
Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.
[3] R v Slater [1997] 1 NZLR 211 (CA).
[4] At 215.
[6] Upon analysis, there are three separate requirements which must be met before leave can be granted:
(a) There must be a question of law;
(b)The question must be one which, by reason of its general and public importance or for any other reason, ought to be submitted to the Court of Appeal; and
(c) The Court must be of the opinion that it ought to be so submitted.
[7] Moreover, the Court will require to be satisfied that there is a tenable argument available on the question of law raised.[5]
Background
[5] Candy v Auckland City Council CA371/02, 17 February 2003 at [15], and Slater v R [2011] NZCA 568 at [9].
[8] The nature and scale of the alleged offending was described in my judgment of 5 June 2012. It is sufficient to reproduce the following paragraphs from that judgment:
[5] The charges relate to the alleged destruction of flora in the Whatipu Scientific Reserve (the Reserve), between 1 January 2009 and 29 July 2009. The Reserve is an area of some 820 hectares lying between the Waitakere Ranges and the Tasman Sea, immediately to the north of the entrance to the Manukau Harbour. The certificate of title is in the name of Her Majesty the Queen. By Gazette Notice of 26 September 2002, the land was classified as a scientific reserve pursuant to the Reserves Act 1977 (the Act), and the Auckland Regional Council (ARC) was appointed to control and manage the Reserve for scientific purposes.
[6] The Judge found (and it is not disputed by the appellants), that the Reserve is a dynamic wetland of significant national importance, comprising a substantial area of coastal sand flats. The Judge accepted the evidence of Ms Stanley, an ecologist with the ARC, to the effect that the Reserve provides the best example in New Zealand of rapid recent coastal sand aggradation, and that it is regionally unique and a significant stronghold for several plants and plant communities.
[7] By virtue of its classification as a scientific reserve, the Reserve enjoys the second highest possible protection rating under the Reserves Act
1977 (the Act) behind nature reserves, of which Little Barrier Island is an example.
…
[12] It is common ground that between January and July 2009, the appellants undertook significant work in the Reserve, which the respondent alleged constituted an offence under s 269 of the Crimes Act 1961. The appellants say that their activities were both legally and morally justified for reasons discussed below.
[13] The Judge accepted evidence tendered by the prosecution of work, admittedly carried out by the appellants in the Reserve, and falling into five separate categories:
(a) The cutting of vegetation which occurred at numerous points along the coastline. Ms Stanley identified 22 separate locations where native plants had been cut in order to create a visible track;
(b) The creation of 3.4 km of new tracks by cutting vegetation and carrying out significant construction work, including benching, retaining and bridging. Ms Stanley’s concern was that the new tracks facilitated access by the public to an area which had been deliberately protected from significant public access, by reason of its high ecological value. It should be noted that the appellants admitted carrying out the work, but strongly denied that they created
new tracks. Rather, they contended that they had simply cleared existing overgrown tracks. This issue forms a discrete ground of appeal and is discussed below;
(c) In the region of Taranaki Bay, two channels were cut by hand. They connected three parts of a 2 ha wetland. The channels varied in depth from 450 mm to 600 mm, and were consistently 400 mm wide. One channel was 115 m long and the other 28.3 m long. This unauthorised drainage work resulted in the drying out of the northern part of the wetland with formerly submerged vegetation becoming covered in silt and dying. Similarly, the southern section suffered a drop in the water table with formerly submerged vegetation having become exposed. In the middle, the water level rose, with some Manuka trunks being flooded;
(d) At six separate sites, vegetation had been destroyed by fire. Some areas were as small as 3 x 4 m. The largest area was 0.4 ha and the total area destroyed comprised almost 0.5 ha of native and exotic vegetation;
(e) At two sites near Windy Point, quarrying activities had been undertaken to assist in track construction.
…
[15] It has not been suggested, either in the District Court or on appeal, that the appellants engaged in wanton destruction for its own sake. The respondent accepts that they were motivated by a desire to care for the Reserve and, at least for the most part, to implement the objectives of the relevant legislation. The appellants say that they felt it necessary to undertake the work because the ARC had failed to discharge its statutory obligations. In particular, they say the ARC had permitted portions of the Reserve to revert to its wild state, with the result that public access had become difficult or impossible. The appellants contend that the ARC was under an obligation to ensure that the public had adequate access throughout the Reserve and that they were simply acting as responsible members of the public by facilitating access.
[16] The evidence for the prosecution, on the other hand, explained to the Court that extensive public access to the Reserve was likely to disturb the delicate ecological balance necessary to maintain the prevailing ecosystem. For that reason, the ARC had deliberately limited the extent to which the public would be able to penetrate certain areas within the Reserve.
[17] The case for the respondent is that the appellants had, without authority, simply taken it upon themselves to determine the extent to which the public would have access to all parts of the Reserve.
Issues in the High Court
[9] In the District Court the applicants were self-represented. On appeal in this
Court, Mr King appeared for them, but his brief was limited in that he dealt with
only some of the arguments which the applicants wished to raise. I permitted both
Mr King and the applicants themselves to address me.
[10] The principal arguments dealt with in my judgment of 5 June 2012 were these:
(a) The applicants were charged with destroying ecological reserve vegetation. It was argued that the learned District Court Judge wrongly treated evidence of damage to reserve vegetation as sufficient to establish the offence charged, namely the destruction of such vegetation. I held that there was sufficient evidence of destruction;
(b)That the Judge was wrong to hold that a particular track did not extend beyond a certain geographical point within the reserve. I held that there was sufficient evidence upon which the Judge’s finding could be based. But that in any event, the issue was of minor importance only, and could not be determinative;
(c) The applicants argued that they had a sufficient interest in the reserve to come within the exception in s 269(2)(a) of the Crimes Act 1961, which reads:
(2) Every one is liable to imprisonment for a term not exceeding 7 years who—
(a) intentionally or recklessly, and without claim of right, destroys or damages any property in which that person has no interest; or …
I held that the applicants did not have a qualifying interest. In particular, I ruled that the Auckland Council, which is responsible for the administration and management of the reserve, did not owe a fiduciary duty to the applicants as ratepayers in respect of reserve management so as to confer a
sufficient interest on the applicants.[6]
[6] I held that Wellington City Council v Woolworths NZ Ltd (No.2) [1996] 2 NZLR 537 (CA), upon which the applicants heavily relied, was of no application.
(d)The applicants argued that they were able to maintain a “claim of right”. Like the District Court Judge, I held that such a claim was not available on the facts.
The application for leave
[11] In their notice of application, the applicants set out the following six questions of law for which leave to appeal to the Court of Appeal was sought:
1. The appellants’ interest in properties;
2. The appellants’ intent in relationship to interests;
3. The appellants’ claims of rights relative to interests;
4. The Court’s acceptance in relationship to ownership of properties;
5.The appellants contest what the Court constitutes as being ecological reserve vegetation;
6.The appellants contend that the Court erred in not addressing the actual charge and the prosecution failed to prove the case as charged.
[12] The applicants were again self-represented at the hearing of the application for leave to appeal. They did not file a synopsis of argument, nor did they file anything else in writing to support the one page notice of application for leave.
[13] The hearing of the application occupied two hours. Most of this time was spent in an attempt to identify with the necessary precision, the question or questions which the applicants wished to refer to the Court of Appeal. The search for a suitable question proved fruitless. During the course of their respective addresses to the Court, the applicants covered the whole gamut of issues which they say had arisen in the District Court, and which they contend had arisen on appeal in this Court. An example was an argument to the effect that the applicants’ actions were justified for public safety reasons, it being contended that the applicants were carrying out work urgently required, in order to protect members of the public from possible injury when using the tracks upon which the applicants had worked. That argument was not raised on appeal before me, nor was it the subject of anything in Judge Mather’s judgment.
[14] Further examples of the arguments advanced at the hearing of the application for leave (but not at the time of the appeal hearing), were:
(a) The contention that the Auckland Council had committed a criminal offence under s 242 of the Crimes Act 1961, and that the actions of the applicants were justified accordingly;
(b)The claim that Judge Mather and I both lacked impartiality (this appearing to rest on the contention that we had too readily accepted the opposing arguments);
(c) The contention that the information which formed the basis for the charge wrongly claimed that the Department of Conservation was the owner of the property, and that the charge was therefore a nullity.
Discussion
[15] I am satisfied that none of the new arguments raised by the applicants is of any substance. It is therefore unnecessary to consider whether they ought to be entertained, despite not having been raised on appeal.
[16] I am further satisfied that nothing advanced by the applicants at the hearing of the application for leave raises a question of law which ought to be referred to the Court of Appeal. In my opinion, the various matters of law considered in my judgment could not be the subject of serious argument by the applicants if they obtained leave to appeal to the Court of Appeal. It is for the applicants to identify a discrete qualifying question of law. They have failed to do so.
Result
[17] The application for leave to appeal is entirely lacking in merit. It is accordingly dismissed.
C J Allan J
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