Cowlishaw v The Queen

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.