Cowlishaw v The Queen - [2013] NZCA 240

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/2013
[2013] NZCA 240

BETWEEN	BARRY COWLISHAW Applicant
AND	THE QUEEN Respondent

CA90/2013
BETWEEN	LYNDSAY MONK Applicant
AND	THE QUEEN Respondent

Hearing:	10 June 2013
Court:	Arnold, Ellen France and Harrison J
Counsel:	B Cowlishaw for himself and Applicant L Monk M Downs for Respondent
Judgment:	18 June 2013 at 10.30 am

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

Barry Cowlishaw and Lyndsay Monk apply for special leave to appeal to this Court against their convictions in the District Court on a charge that between January and July 2009 they had, intentionally and without claim of right, destroyed ecological reserve vegetation, the property of the Department of Conservation, having no interest in that property.[1]

Background

[1]Crimes Act 1961, s 269(2)(a).

It was undisputed at trial in the District Court that Messrs Cowlishaw and Monk created about three kilometres of tracks through a 820 hectare reserve near Whatipu, at the coastal fringe of the Waitakere Ranges. They cut native vegetation at 22 separate locations in the reserve and carried out significant construction work to make the tracks. The land was classified as a scientific reserve under the Reserves Act 1977; the Auckland Regional Council (the ARC) was appointed to control and administer it for scientific purposes. The reserve is an area of significant ecological importance because it provides New Zealand’s best example of rapid recent coastal sand aggradation. The area was deliberately protected from significant public access because of its ecological importance.
Messrs Cowlishaw and Monk believed what they were doing was morally right because they regarded the ARC as failing in its duty to maintain the reserve. In particular, they were concerned that the ARC had failed to remove exotic fauna from the area.
The Crown laid a charge of intentional destruction of property under the Crimes Act 1961 against both applicants who pleaded not guilty and represented themselves at a seven day trial. Judge Mather found the charge proved against each in a careful and comprehensive decision delivered on 7 October 2011.[2] Each was convicted and discharged and ordered to pay reparation of $500.
[2]Police v Monk DC Waitakere CRI-2009-090-8115, 7 October 2011.
Allan J dismissed appeals against conviction in a similarly careful and comprehensive judgment delivered in the High Court on 5 June 2012.[3] He dismissed applications for leave to appeal to this Court on 28 November 2012.[4] Both men now apply for special leave to appeal.

Decision

[3]Cowlishaw v Police [2012] NZHC 1244.

[4]Cowlishaw vPolice [2012] NZHC 3183.

The criteria for granting leave are well settled.[5] Messrs Cowlishaw and Monk must satisfy a high threshold if they are to obtain leave to pursue a second right of appeal. In summary the applicants must show: (a) the existence of an arguable question of law; which (b) by reason of its general or public importance or for any other reason…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZCA 240
Decision Date: 18 June 2013

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the cases of Barry Cowlishaw and Lyndsay Monk, who sought special leave to appeal against their convictions for the intentional destruction of ecological reserve vegetation, which belonged to the Department of Conservation. The applicants pleaded not guilty to the charge and represented themselves at trial, but were ultimately convicted by Judge Mather and subsequently Allan J in the High Court. Both men now seek leave to appeal to the Court of Appeal. The Crown opposes the application, represented by Mr Downs.

The legal issues before the Court were whether the applicants had satisfied the criteria for special leave to appeal, specifically whether there was an arguable question of law of general or public importance that ought to be submitted to the Court. The applicants identified several potential issues, including their interests in the properties, their intent, their claims of rights, the Court's acceptance of ownership of the properties, and whether the Court had erred in not addressing the actual charge and the Prosecution failed to prove the case as charged. However, the Court found that none of these issues met the threshold for special leave to appeal.

The Court found that both lower courts had made findings of fact that the applicants had intentionally damaged or destroyed property by cutting down vegetation and cutting tracks in the reserve. The Court rejected the applicants' arguments about their motivation and intent, as well as their claim of right defence, which was based on their belief that the Auckland Regional Council was failing to prevent exotic vegetation from overwhelming the native fauna. The Court also found that the applicants had no interest in the damaged or destroyed property, as they were merely ratepayers and members of the public with a shared interest in the reserve. The Court endorsed Judge Mather's suggestion that a charge under the Reserves Act would have been more appropriate to the circumstances.

The Court dismissed the applications for leave to appeal, finding that the applicants had not identified an arguable question of law of general or public importance. The Court endorsed Judge Mather's reference to the alternative remedy available to the Crown or the Auckland Regional Council of charging the applicants with an offence under s 94 of the Reserves Act instead of the crime of intentional destruction of property.

Orders