Cowlishaw v Police

[2012] NZHC 1244

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-423 [2012] NZHC 1244

BETWEEN  BARRY NEIL COWLISHAW AND LYNDSAY MONK

Appellants

ANDTHE POLICE Respondent

Hearing:         27 March 2012

Appearances: N King for appellants

B Hamlin for respondent

Judgment:      5 June 2012

JUDGMENT OF ALLAN J

Solicitors:

N C King  [email protected]

B Cowlishaw and L Monk, 31 Rathgar Road, Henderson, Auckland 0610. Crown Solicitor Auckland, [email protected]

COWLISHAW AND MONK V POLICE HC AK CRI 2011-404-423 [5 June 2012]

[1]      On  7  October  2011,  Judge  Mather  delivered  a  reserved  decision  in  the Waitakere District Court, in which he found both appellants guilty on a charge laid against  each  of  them  under  s  269(2)(a)  of  the  Crimes Act  1961,  that  between

1 January and 29 July 2009, they intentionally and without claim of right, destroyed ecological  reserve  vegetation,  the  property  of  the  Department  of  Conservation, having no interest in the said property.1

[2]      On 20 October 2011, the appellants were each convicted and discharged but ordered to pay reparation to the Auckland Council in the sum of $500 by 31 March

2012.

[3]      The appellants now appeal against both conviction and sentence, although they advanced no argument at the hearing of the appeal in respect of sentence.  The penalty imposed by the learned Judge was plainly within the range of available sanctions.  It is accordingly unnecessary to say anything more about it.

Background

[4]      The appellants were charged on 4 August 2009.  The hearing before a Judge alone in the District Court occupied seven days spread over some 10 months.  The evidence, both oral and documentary, was extensive.   However, as Judge Mather observed, the factual issues are relatively straight forward and there are few significant legal issues.

[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

1 Police v Monk and Cowlishaw DC Waitakere CRI-2009-090-8115, 7 October 2011.

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.

[8]      Section 3 of the Act provides:

3        General purpose of this Act

(1)       It is hereby declared that, subject to the control of the Minister, this Act shall be administered in the Department of Conservation for the purpose of—

(a)       Providing,  for  the  preservation  and  management  for  the benefit and enjoyment of the public, areas of New Zealand possessing—

(i)        Recreational  use  or  potential,  whether  active  or passive; or

(ii)      Wildlife; or

(iii)     Indigenous flora or fauna; or

(iv)     Environmental and landscape amenity or interest; or

(v)      Natural, scenic, historic, cultural, archaeological, biological, geological, scientific, educational, community, or other special features or value:

(b)       Ensuring, as far as possible, the survival of all indigenous species of flora and fauna, both rare and commonplace, in their natural communities and habitats, and the preservation of representative samples of all classes of natural ecosystems and landscape which in the aggregate originally gave New Zealand its own recognisable character:

(c)       Ensuring, as far as possible, the preservation of access for the public to and along the sea coast, its bays and inlets and offshore islands, lakeshores, and riverbanks, and fostering and promoting the preservation of the natural character of the coastal environment and of the margins of lakes and rivers and the protection of them from unnecessary subdivision and development.

(2)       In the exercise of its administration of this Act, the Department may take any action approved or directed from time to time by the Minister so far as it is consistent with this Act or is provided for in any other Act and is not inconsistent with this Act.

[9]      Section 21 of the Act defines the purpose of scientific reserves and gives directions as to their administration and maintenance:

21       Scientific reserves

(1)       It is hereby declared that the appropriate provisions of this Act shall have effect, in relation to reserves classified as scientific reserves, for the purpose of protecting and preserving in perpetuity for scientific study, research, education, and the benefit of the country, ecological associations, plant or animal communities, types of soil, geomorphological phenomena, and like matters of special interest.

(2)       It  is  hereby  further  declared  that,  having  regard  to  the  general purposes specified in subsection (1) of this section, every scientific reserve   shall   be   so   administered   and   maintained   under   the appropriate provisions of this Act that—

(a)       Except   where   the   Minister   otherwise   determines,   the indigenous flora and fauna shall as far as possible be preserved and the exotic flora and fauna shall as far as possible be exterminated:

…

[10]     Section 40(1) of the Act imposes obligations on the body responsible for administering reserves:

40       Functions of administering body

(1)       The   administering   body   shall   be   charged   with   the   duty   of administering,  managing,  and  controlling  the  reserve  under  its control and management in accordance with the appropriate provisions of this Act and in terms of its appointment and the means at its disposal, so as to ensure the use, enjoyment, development, maintenance, protection, and preservation, as the case may require, of the reserve for the purpose for which it is classified.

[11]     The powers and obligations arising out of the Act, formerly resting on the ARC, now reside with the Auckland Council following recent Local Government reorganisation initiatives.

[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.

[14]     Ms   Stanley   considered   these   activities   to   involve   serious   adverse repercussions for the Reserve. The Judge summarised her concerns as follows:

[31]      The context of the concerns underlying Ms Stanley’s evidence is the importance of the Reserve both nationally and regionally.   New Zealand wetlands have been in decline, and those that remain are under severe threat from human activities.   The Whatipu Scientific Reserve is considered a unique   ecosystem.      Several   geological,   biological   and   ecological components of the Reserve are not known to occur anywhere else in the region.   Three nationally threatened plants and six regionally threatened plants were listed.  Five nationally threatened birds present in the Whatipu freshwater wetlands were also identified.

[32]      In addition Ms Stanley referred to forest gecko, shore skinks, copper skinks and green and common gecko being present on the Reserve or on its fringes.  Finally, Ms Stanley referred to the interesting geological features of the Reserve.

Grounds of appeal

[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.

[18]     The appellants are highly critical also of what they regard as the failure of the ARC to preserve indigenous flora and fauna and to exterminate exotic flora and fauna.2    Some of their work in the Reserve was intended to remedy what the appellants regard as the failings of the ARC in that respect.

[19]     In the broadest sense, the appellants are therefore motivated by their concern for what they consider to be in the public interest.  There is no doubt that they are sincere and indeed passionate in their beliefs. That much is evident from the filing in the District Court and in this Court on 9 December 2011 of a 74 page document in which Judge Mather was asked to recall his judgment in order to correct factual errors.   The document contains a closely reasoned analysis of virtually every paragraph of Judge Mather’s 118 paragraph reserved decision.

[20]     In the District Court, the appellants represented themselves.  Fortunately, on appeal, they have instructed Mr King, who advanced four arguments in support of the appeal:

(a)       The  prosecution  had  failed  to  establish  that  the  appellants  had destroyed ecological reserve vegetation, as distinct from damaging it;

2 Reserves Act 1977, s 21(2)(a).

(b)The Judge made an error of fact in determining that there was no extant track between Sargent Point and Pararaha Point (this factual error having allegedly led the Judge to misconstrue the extent of the appellants’ track clearance work);

(c)      The Judge was wrong to conclude that the appellants had no interest in the flora on the Reserve for the purposes of s 269 of the Crimes Act;

(d)The Judge erred (either in law or in fact) in concluding that the prosecution had proved that the appellants did not have a belief that their acts were lawful.

[21]     The first of these points was not taken in the District Court, nor did it appear in the notice of appeal or in the synopsis filed in advance of the appeal hearing. Nevertheless, Mr Hamlin for the respondent did not object to the late introduction of the additional ground of appeal, and I subsequently heard lengthy argument from counsel upon it.

Destruction or damage?

[22]     Section 269(2)(a) of the Crimes Act 1961 provides:

(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;  …

[23]     The subsection enacts separate offences of destroying or damaging property. In the present case, the appellants were charged with destroying ecological reserve vegetation.  They say that the learned Judge wrongly treated evidence of damage to reserve vegetation as sufficient to establish the offence charged, namely the destruction of such vegetation.  Mr King submits that there was insufficient evidence to establish the offence charged and that the appellants ought to have been acquitted.

[24]     It  is  true that  the Judge did,  at  various  points  of his  judgment,  refer  to vegetation damage.  For example he said:

[19]      It  is  against this  background  that the  defendants embarked  on  a course of action between January and July 2009 on the Reserve.   The prosecution contend that their actions amounted to intentional damage and thus an offence under s 269 of the Crimes Act. …3

[25]     Later, he said:

[50]     The elements of the offence which must be established beyond reasonable doubt for the charges to be proved are:

That the defendants intentionally damaged property; and    They damaged the property without a claim of right, and    They did not have an interest in the damaged property.

Did the defendants cause damage?

[51]      The High Court held in Lynch v Police that cutting trees, both native and exotic, constitutes intentional damage.4

[52]      The Concise Oxford English Dictionary contains this:5

Damage  –  physical  harm  impairing  the  value,  usefulness,  or  normal functioning of something. Unwelcome and detrimental effects.

[53]      There are cases where damage has been established notwithstanding work done with the intention of improving or maintaining something.   In Gorrie v Police the defendant placed several truck loads of shingle on a neighbour’s land to facilitate access by truck to a well site, done openly but nevertheless constituting intentional damage at law.6

[54]      Applying the above to this case, the cutting and burning of extensive amounts of vegetation by the defendants, both indigenous and exotic, qualifies as damage.  Plants such as pampas were entirely destroyed.  Other plants, primarily flax and some manuka, were extensively cut or pruned in the course of the track making work undertaken by the defendants.  Only if the nature of the Reserve, its purposes and administration justify such action and thus remove it from the description of “damage” is this ingredient of the charge not established.

[26]     These passages read in isolation do suggest that the Judge was concerned with damage rather than destruction.  But other paragraphs in the decision correctly

3 Paragraph [19].

4 Lynch v Police HC Wellington CRI-2008-485-82, 1 September 2008.
5 11th ed 2004.

6 Gorrie v Police HC Timaru CRI-2005-476-9, 11 May 2006.

focus on the destruction issue. At [1] of the judgment, His Honour correctly sets out the ingredients of the charge, by referring to destruction and not damage.  Further, at [33] he said:

[33]     Because the focus of the hearing was primarily on destruction of vegetation, Ms Stanley gave a good deal of evidence about both native and exotic vegetation on the Reserve and the impact of the works in question on that vegetation.

[27]     Later and importantly he said:

[48]     I consider it unnecessary to analyse this evidence further, as the charges relate solely to the alleged destruction of vegetation.

[28]     In finding the charge proved, the Judge seems to have conflated notions of damage and destruction to some extent.  Mr Hamlin submits that there is a sufficient finding  of  destruction,  but  that,  if  I should  hold  to  the  contrary,  then  I should substitute a conviction for damaging vegetation in the Reserve in reliance on s 132 of the Summary Proceedings Act 1957.  In my view, there are sufficient findings of destruction to avoid the need to resort to s 132.  For example, the Judge expressly held that “plants such as pampas, were entirely destroyed” (although I note that there is evidence to the effect that pampas is extremely difficult to remove by cutting or

burning and that spraying is the preferred method of extermination).7

[29]     The Judge referred also to the extensive cutting and pruning of indigenous plants such as flax and manuka.   It is a proper inference that at least some of the plants concerned during the course of the appellants’ extensive work must have been destroyed rather than damaged.  Even if it could be said that the Judge did not make an explicit finding of destruction (as distinct from damage) there was, in my view, ample evidence to justify a finding that vegetation within the Reserve had been destroyed and it is implicit in the judgment that the Judge reached that conclusion. Had I not been satisfied that there was sufficient evidence of destruction, I would without  hesitation  have  exercised  the  Court’s  jurisdiction  under  s  132  of  the Summary Proceedings Act to amend the charge to that of damaging vegetation rather than destroying it.  Damage was acknowledged by the appellants.  The case was run

in  the  District  Court  without  reference  to  the  distinction  between  damage  and

7At [54].

destruction and much of the evidence called on either side focused on damage rather than destruction.  The making of an amendment to the charge could have caused the appellants no prejudice in those circumstances.

[30]     But  I am  satisfied  overall  that  there was  sufficient  evidence to  justify a finding of destruction and so to support the conviction, unless one or more of the other grounds of appeal is made out.

[31]     I therefore turn to the remaining issues.

An existing track?

[32]     The appellants challenge the accuracy of a portion of [23] of the judgment, in which Judge Mather said:

[23]     To assist in understanding this case, I annex as “Schedule One” a portion of a 2006 topographic map of the area in question, which was produced in evidence.  It shows the entrance to the Manukau Harbour, to the north a portion of the Waitakere Ranges and to the west the Reserve, which extends from Whatipu in the south to Karekare Point in the north.  It was common ground that the extent and the geological features of the Reserve have  been in constant  change  over  many  years  and  are  currently rather different from those shown on the map.  Similarly and importantly, the track marked prominently from Whatipu to Pararaha Point does not exist as shown beyond the caves at Sargent Point.

[33]     The appellants say that the last sentence in this paragraph is not factually correct in that it is inconsistent with the appellants’ evidence that they never formed new tracks, rather they simply reinstated and cleared existing tracks.  Although at first sight this factual finding might seem to be of little relevance to other issues raised by the appellants, Mr King says that if the Judge was under a misapprehension on the point, it may have affected his view of the appellants’ claim to have believed that they were lawfully entitled to carry out the work.   In other words, there is arguably more substance in the claim that the appellants believed that they were lawfully entitled to clear existing tracks, than there is in a claim to be lawfully entitled to create new ones.

[34]     The Judge’s finding on the point is consistent with the evidence of three prosecution witnesses.   The evidence tends to establish that there was an official track from Whatipu to the caves at Sargent Point, with the remnants of an unofficial and overgrown track beyond.  Mr Walsh, an ARC ranger, said that north of the caves there was an informal unmaintained track which had never been a formal track, and that the appellants had done a considerable amount of work on “that pathway”.

[35]     Ms Stanley had worked in the Reserve over the past 13 years or so.  She said that the only formal track she had known would be one that terminated at the caves. Beyond that, there was an “old tramline track when you are in the middle of the Reserve and that often just goes for a few metres before being submerged with water”.

[36]     Constable Grieve said that north of the caves “that track physically does not

exist.  The track has been left to regenerate and does not exist from Windy Point on

…”.

[37]     Accordingly, there was evidence upon which the Judge was entitled to rely in determining that the old track did not currently extend beyond the caves.   Having said that, the issue is of minor importance only.  It is unlikely to have influenced the Judge to any significant degree in his findings as to belief by the appellants in the lawfulness of their activities.  It certainly does not influence me.

An interest under s 269?

[38]     The respondent was obliged to establish as part of its case under s 269(2)(a) of the Crimes Act, that the appellants had “no interest” in the property alleged to have been destroyed by their activities.  The Reserve is owned by the Crown and administered by the Department of Conservation under the Reserves Act.  In 2002, the Department formally transferred the administration of the Reserve to the ARC. More recently still, that responsibility has passed to the Auckland Council.

[39]     The  appellants  contend  that,  as  residents  or  ratepayers  of  the Auckland

Council, they have a sufficient “interest” in the Reserve and the flora growing within

it to constitute a defence to the charge under s 269(2)(a).  The term “interest”, as used in s 269, is not defined.  But Mr King argues that the Court ought to interpret the  expression  widely  enough  to  embrace  the  appellants,  by  analogy  with  the decision of the Court of Appeal in Waitakere City Council v Lovelock.8    There, the Court of Appeal reaffirmed its earlier judgment in Wellington City Council v Woolworths NZ Ltd (No.2), in which a local authority was held to owe a fiduciary

duty to ratepayers.   In particular the Council must loyally and in good faith have regard to the interests of all its ratepayers, and consider in good faith matters raised by particular groups of ratepayers, when exercising its rating powers.9

[40]     In my view, that decision does not assist the appellants.  For one thing, the fiduciary duty owed by the Council was not matched by an “interest” on the part of ratepayers in the funds derived from rating levies.  Second, the narrow fiduciary duty owed by local authorities in respect of rating matters is incapable of shedding light on the nature of a qualifying interest for the purposes of s 269.

[41]     Some assistance might possibly be gleaned from s 26(1)(b) of the Crimes Act which, as relevant, provides:

267     Arson

(1)      Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who—

(a)      …

(b)       intentionally  or  recklessly,  and  without  claim  of  right, damages  by  fire  or  by  means  of  any  explosive  any immovable  property,  or  any  vehicle,  ship,  or  aircraft,  in which that person has no interest;

[42]     In R v Wilson, the Court of Appeal held that s 267(1)(b) must be read literally, and that so read, a tenancy held by the accused was a sufficient interest to give rise to

a defence, it being well established that a tenancy is an interest in land.10

8 Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).

9 Wellington City Council v Woolworths NZ Ltd (No.2) [1996] 2 NZLR 537 (CA).

10 R v Wilson [2009] 1 NZLR 337 (CA).

[43]     In KEB v NZ Police, Ronald Young J held that the reasoning in Wilson was equally applicable to a charge under s 269(2)(a), when allowing an appeal by a lessee of the damaged property.11

[44]     Section 243 (which deals with money laundering), defines the expression

“interest” in relation to property as meaning:

(a)      a legal or equitable estate or interest in the property;  or

(b)      a right, power, or privilege in connection with the property.

[45]     That wider definition appears to embrace both an interest recognised in law, and the ability to exercise a degree of practical control over the property concerned. The reference to “right, power or privilege” in s 243 suggests that Parliament did not regard the expression “legal or equitable estate or interest” as extending beyond conventional legally recognised interests.   It is necessary for present purposes to determine the metes and bounds of the term “interest” as it appears in s 269(2)(a). The most liberal interpretation would be to regard it as covering rights and powers of a type recognised by law and available only to a defendant, or at least to a class of whom the defendant forms part.

[46]     Here, the appellants can demonstrate nothing more than an “interest” shared with every other member of the public, or at least every other ratepaying citizen. Moreover, to hold that the appellants had a sufficient interest to constitute a defence in this case, would be to emasculate s 42 of the Reserves Act.

[47]     Judge Mather took this point.  He said:

[67]      The Reserves Act prevents the public from doing a number of things on reserves including scientific reserves.  In particular under s 42 it prohibits the cutting or destroying of trees and bush, except in accordance with a permit.  The defendants had no permit.  It is possible to get a “concession”. This is defined in s 2 as a lease, licence, permit or easement, some of which create an interest in the land. Again the defendants had no such concession.

[68]      If the public had a general interest in the land or flora on a scientific reserve, similar to a right of access, specifically allowing them to cut or

11 KEB v NZ Police HC Palmerston North CRI-2009-454-42, 19 February 2010.

destroy trees, bush or plants, there would be no need to provide for concessions.  The prohibitions under s 42 further confirm no such right.  For present purposes I find that the defendants had no interest in the property they are charged with destroying.

[48]     Like Judge Mather, I am satisfied that the appellants had no interest at all in the Reserve for the purposes of s 269, and that they are accordingly unable to rely upon a defence open only to such persons as do have a qualifying interest.

Claim of Right

[49]     In order to secure a conviction, the prosecution was obliged to establish beyond reasonable doubt that the appellants acted without a “claim of right”.12   The phrase “claim of right”, was at all material times defined in s 2 of the Crimes Act as follows:13

Claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[50]     Judge Mather correctly directed himself as to the onus of proof and also as to the elements of a claim of right as discussed in the recent decisions of the Supreme Court in Hayes v R,14 and the Court of Appeal in R v Cooley.15

[51]     Mr Hamlin helpfully summarised the key points as correctly identified by

Judge Mather:

(a)       A belief that an act is morally justifiable is not sufficient to establish a claim of right. The belief must be that the act is legally justifiable;

(b)There is no requirement that the belief must be reasonable or honest, although the fact that it is not may be evidence from which it can be

inferred that the belief was not in fact held;

12 R v Gorrie [2007] NZCA 144.

13 The definition has since been amended.
14 Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321.

15 R v Cooley [2008] NZCA 149.

(c)      The  belief  must  have  been  actually held  at  the  time  the  act  was committed.

[52]     The Judge rejected the appellants’ claim to have believed at the time of their

activities that what they were doing was lawfully justifiable.  He held that:

(a)      at  all  times  the  appellants  considered  their  acts  to  be  morally justifiable;  but

(b)they were indifferent as to whether their work was legally authorised and had not considered the lawfulness of their actions at the time;  and

(c)      their stated belief in the lawfulness of their actions arose subsequent to their apprehension, as a result of research in the course of preparing for the defence of the criminal proceedings.

[53]     In my opinion, the Judge’s findings were amply justified by the evidence. Mr Cowlishaw knew that it was the ARC’s task to manage the Reserve, but he made no contact with the ARC because he believed that it had failed to carry out its statutory obligations under the Act.16   He accepted also that he had given no thought at the time of the appellants’ activities to the question of whether they were lawfully authorised or justified in what they were doing.  In his evidence he said:17

Q.        And you knew that this area that you did the works in was the Whatipu Scientific Reserve, correct? … At the time we did it we gave that little – very little notice.  We knew that we had a perfect right to have access along that coastline.  Um, at the time I hadn’t read the Reserves Act, but we nevertheless took a great deal of care to protect native fauna, or flora, and to exterminate any exotic flora or – we didn’t touch any exotic fauna.

[54]     Mr Monk similarly undertook his activities without considering whether he was lawfully entitled to do so.  He said in evidence:18

As to whether I was standing on anyone’s feet, or whether I was doing

something which was illegal, this never entered my mind at the time.  I knew

16 NOE pp 53-57.

17 NOE p.37.

18 NOE p 43 (cited at [90] of the judgment under appeal).

that if my work on this piece of ramp here [at Windy Point] did ever come into question, that I should be able to stand up – I would be able to stand up and give full account of the care and attention that has actually gone into this.  My whole motivation behind this was actually an act of goodness, and good intent was the guiding rule.

Q.        Did you have a presumption in law in your own mind, whatever that might mean, that you could do what you did? …  Oh, I believe that I was doing  something  which  was  lawfully  good,  yes  –  my  motive  –  my motivation directly of this was an act of goodness.

[55]     Later in his evidence, Mr Monk explicitly accepted in response to a question from the Judge that he had not considered the legal justification for his actions:19

Ah, no Your Honour, all my research started as a result from the point of 29

July onwards.  Prior to that – I had an experience without any thoughts as to anything else other than clearing this track, you see, and it just happened that

this – that the predominant plants that were on this track were gorse and pampas, and I believe in good faith, and as a gesture of goodwill, we – I was

doing, along with my colleague, Barry Cowlishaw, a good service to the community.  Now I had no prejudice, or preconceptions or any other ideas. Nothing ever else entered into my mind, apart from the fact that we were

doing a good act.

[56]     I accept Mr Hamlin’s submission that the appellants were clearly aware that the land (and the flora on it) belonged to, or was administered by, a public authority. They were indifferent as to whether that was the Crown, the Waitakere City Council or the ARC.  Mr Cowlishaw knew that it was likely that he required permission in order to carry out any works, but did not seek it, partly because he was uncertain as to whether it would be granted, and partly because he considered that the authorities had neglected their statutory obligations under the Act.

[57]     I accept, as did Judge Mather, that the appellants believed what they were doing was morally right, but the Judge’s finding that they had no belief in their legal justification was plainly correct.  To the extent that they turned their minds to legal rights at all, the appellants correctly considered that they were entitled to access to the Reserve.  They did not turn their minds at the time to the question of whether they were legally justified in undertaking their activities within the Reserve.  Their reliance on a claim of right arose only following apprehension, when they undertook some legal research.

[58]     Mr King’s submission as to the effect of an alleged factual error about the state of the track is simply speculative.  There is nothing in the judgment to suggest that a matter of minor detail of that sort would have made any difference to the Judge’s conclusion.20   The appellants gave no thought at the time to the question of whether they were lawfully entitled to carry out their work.  They therefore had no sufficient belief in the lawfulness of their activities to enable them to maintain a

claim of right. Against that background it does not matter whether they thought they were clearing an existing track or forming a new one.

[59]     In my opinion, the Judge was right to determine that a claim of right was not available to the appellants.

Result

[60]     The appellants have failed to establish any of the appeal grounds.  The appeal is  accordingly  dismissed.    The  time  for  payment  of  reparation  is  extended  to

31 October 2012.

C J Allan J