Rickard v Department of Conservation
[2020] NZHC 579
•20 March 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-425-000032
[2020] NZHC 579
BETWEEN ALLAN RAMON RICKARD
Appellant
AND
DEPARTMENT OF CONSERVATION
Respondent
Hearing: 2 March 2020 Appearances:
A S P Tobeck for Appellant
P D Williams and S N McKenzie for Respondent
Judgment:
20 March 2020
JUDGMENT OF OSBORNE J
(against conviction and sentence)
This judgment was delivered by me on 20 March 2020 at 2.15 pm
Registrar/Deputy Registrar Date:
RICKARD v DEPARTMENT OF CONSERVATION [2020] NZHC 579 [20 March 2020]
[1] The Waitutu River flows through Fiordland National Park (FNP) before entering the sea off Southland. On 31 October 2017 Allan Ramon Rickard, the appellant, was with two friends fishing for whitebait, using nets, near the mouth of the Waitutu. Mr Rickard and his friends were apprehended by officers of the Department of Conservation upon the basis that they were fishing inside the boundary of FNP.
The charges and convictions
[2] Two charging documents were filed against each of the three defendants, alleging that they:
(a)without being authorised by the Minister of Conservation or by any bylaw made under the National Parks Act 1980 (NP Act), did take by fishing native animals, namely whitebait in FNP (laid under s 60(1)(h) of the NP Act); and
(b)without being authorised by the Minister of Conservation, were in possession of a fishing net in FNP (laid under s 60(4)(a) of the NP Act).
[3] Following a defended trial, each defendant was found guilty of both charges and convicted.1
[4]The offences carried maximum penalties of two years’ imprisonment or a
$100,000 fine, or both. The defendants were each ordered to pay fines of $5,625, together with a $1,150 share of the Department’s costs and court costs of $130 each.2
The appeal
[5]Mr Rickard appeals against both the convictions and the fine.
The Waitutu River and its surrounds
[6] The bed of the Waitutu River, part of the Wairaurahiri River and their surrounds (comprising 46,507.2 ha) were on 1 July 1999 declared by the Minister of
1 Department of Conservation v Egerton [2019] NZDC 19142 (“Verdicts judgment”).
2 Department of Conservation v Egerton [2019] NZDC 23526 (“Sentencing Remarks”).
Conservation, in a Land Notice, to be conservation area under the Conservation Act 1987 (as shown as “A” on a certified Survey Office plan (SO11763)). On 20 September 1999, the same area was added (with others) to FNP by Order in Council (under the NP Act).
What is not in issue
[7] The defendants accepted that they were fishing for whitebait just upstream of the Waitutu River mouth using nets set in the water and that they were each in possession of their nets. The defendants accepted that whitebait are native fish and thereby native animals for the purposes of the charge laid under s 60(1)(h). They also accepted that, provided the area where they were fishing was within FNP, then the NP Act applies alongside the Whitebait Fishing Regulations 1994, so that the Minister of Conservation’s authority was required for the defendants to fish. The defendants did not claim that they had such authority. Section 60(1)(h) alternatively contemplates authorisation under a bylaw made under the NP Act. The Fiordland National Park Bylaws 1981 do not provide for any fishing in the park.3
[8] David Manson, a registered professional surveyor called to give evidence by the Department, gave unchallenged evidence as to the spots at which the three defendants had been fishing. He produced (as exhibit 4) an aerial photograph on which he noted the GPS positions of the three whitebait nets (schedule A to this judgment).4 A straight red line (shown on Schedule A as a bold black line) demonstrated what Mr Manson stated was the Mean High Water Springs (MHWS).
[9] The Department accepted that the defendants were fishing in accordance with the Whitebait Fishing Regulations 1994 – the case against the defendants turned not on how they were fishing but where they were fishing.5
3 These matters of common ground recorded in the Verdicts judgment at [7].
4 Schedule A is a black and white reproduction of a colour photograph. The three black dots are those identified in the Verdicts judgment as blue dots on the actual exhibit. The straight black line on Schedule A was red on the actual exhibit.
5 As recorded in the Verdicts judgment at [8].
Issues on appeal
Conviction
[10] Mr Rickard’s appeal against conviction is upon the basis that the Judge erred in holding that the land upon which he was fishing (and in possession of a fishing net) (“the fishing spot”) was within FNP. The issues in relation to that finding are:
(a)Did the Department establish that the fishing spot was on “foreshore” in terms of the NP Act?
(b)Do provisions of the Resource Management Act 1991 (RMA) in relation to coastal marine areas constitute the fishing spot as “foreshore” which does not lawfully become national park?
(c)if the fishing spot was arguably on “foreshore”, then was the foreshore lawfully added to FNP?
(d)In relation to any questions arising as to the legal effectiveness of steps to place the area including the fishing spot within the FNP, do the statutory presumptions under ss 16 and/or 69 of the NP Act or the common law presumption of regularity apply?6
(e)Given that the Waitutu lands (including the Waitutu River) were as a first step declared conservation areas under the Conservation Act, does s 7(1)(a)(i) of the NP Act operate so as to render effective the Order in Council by which the area including the fishing spot was declared to be added to FNP irrespective of whether that area was “foreshore” within the meaning of the NP Act.
6 The common law presumption of regularity was earlier expressed in the Latin maxim omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium: Broom’s Legal Maxims, pp 665–673.
Sentence
[11] Mr Rickard’s appeal against sentence is on the basis that the fine of $5,625 was manifestly excessive.
The judgment
Where is the boundary of FNP at the Waitutu River mouth?
[12] Judge Harrop first determined whether the defendants’ fishing spots were within FNP.7 His Honour found that the park boundary at the Waitutu River mouth is shown by two certified Survey Office plans including SO11763 in relation to lands and roads respectively.8 His Honour referred in particular to evidence of the surveyor, Mr Manson, explaining the significance of the areas described on the plans:9
In particular, in relation to SO 11763 he said that the coastal boundary of the FNP was the Mean Highwater Springs (“MHWS”). He pointed out that this line both visually crossed the mouth of the Waitutu River and that this was confirmed by words on the plan.
[13] In the legend on SO11763 there is a heading which reads: “SCHEDULE OF LAND TO BE DECLARED CONSERVATION AREA”.
[14] Directly under that heading, appear four area descriptions. The Waitutu River, part of the Wairaurahiri River, and named State Forest areas are recorded as the first area “A”.
[15]Below the listing of areas A – D in the legend there appears this addition:
AS WELL AS THE WAITUTU RVR & PART WAIRAURAHIRI RVR ALL OTHER RIVERS ARE INCLUDED IN AREA A
…
MEAN HIGH WATER SPRINGS (MHWS) CROSSES ALL RIVERS; STREAMS; INLETS AND ESTUARIES UNLESS OTHERWISE SHOWN.
7 Verdicts judgment, above n 1, at [13]–[23].
8 SO11763 (1991) and SO12308 (1998). Verdicts judgment, above n 1, at [17].
9 Verdicts judgment, above n 1, at [18].
[16] Judge Harrop then referred to the various steps Mr Manson had taken to determine where the MHWS line crossed the mouth of the Waitutu River. He accepted Mr Manson’s unchallenged evidence as to where that was (as shown by the bold black line on Schedule A).10 His Honour summarised Mr Manson’s position:11
In short, the effect of his evidence was that the covering and uncovering by the flow and ebb of some tides occurring upstream of the MHWS line did not in any way derogate from his conclusion as to where that line was.
[17] Colin Bishop, another witness for the Department, said that the three fishing spots (represented by the dots on exhibit 4), were at distances upstream of the MHWS line by approximately 9.6 m and 22 to 25 m. Mr Bishop’s evidence was unchallenged and the Judge accepted it.12
Were the fishing spots on “foreshore” and if so outside the FNP boundary?
[18] The defendants’ asserted that the fishing spots were on “foreshore” which had not been included in the land which was joined to FNP in 1999 or that, at the least, the Department had not proved beyond reasonable doubt that they were not on “foreshore”.
[19] Judge Harrop noted that the Waitutu lands were added to FNP in 1999. His Honour then referred to the definitions of “foreshore” under the NP Act both in 1999 and subsequently:13
(a)In 1999, the definition (taken by virtue of s 2 of the NP Act from s 2 Harbours Act 1950), read:
“Tidal lands” or “foreshore” means such parts of the bed, shore, or banks of a tidal water as are covered and uncovered by the flow and ebb of the tide at ordinary spring tides.
(emphasis added)
“Tidal lands” was in turn defined in s 2:
10 Verdicts judgment, above n 1, at [21].
11 Verdicts judgment, above n 1, at [21].
12 Verdicts judgment, above n 1, at [22]–[23].
13 Verdicts judgment, above n 1, at [25]–[26].
… means any part of the sea or of a river within the ebb and flow of the tide at ordinary spring tide:
(b)From 6 July 2010, the amended definition under the NP Act reads:
Foreshore means any land covered and uncovered by the flow and ebb of the tide at mean spring tides (emphasis added)
[20] The Judge recorded the acknowledgement of Mr Tobeck, for the defendants, there was not a material difference between the definitions in relation to the issues in these proceedings.14
[21]The Judge summarised the competing submissions:15
(a)Mr Tobeck, relying on Mr Manson’s evidence, noted that it would be quite possible that the fishing spots would be covered and uncovered by the flow and ebb of mean spring tides and that when the tide comes in the water may flow past the red line.
(b)Ms Williams, for the Department, submitted that the landward edge of the “foreshore” must by reason of the statutory definitions be seaward of the MHWS line (because the concept of both “ordinary spring tides” and “mean spring tides” is a reference to the average of all spring tides at a particular location). Ms Williams contrasted that with MHWS which refers to the two spring high tides only (emphasis added). This led to the conclusion that the MHWS line must as a matter of logic always be higher than the mean spring tide line.
[22] His Honour, having found on the first issue that the defendants were fishing upstream from the MHWS line, found that they could not have been fishing on “foreshore” within the definitions of the NP Act. He found there to be no overlap between “foreshore” and “MHWS”, with the foreshore being outside the boundary of FNP.
14 Verdicts judgment, above n 1, at [27].
15 Verdicts judgment, above n 1, at [27].
Were the defendants fishing within the coastal marine area
[23]Section 2 of the RMA provides:
coastal marine area means the foreshore, seabed, and coastal water, and the air space above the water—
(a)of which the seaward boundary is the outer limits of the territorial sea:
(b)of which the landward boundary is the line of mean high water springs, except that where that line crosses a river, the landward boundary at that point shall be whichever is the lesser of—
(i)1 kilometre upstream from the mouth of the river; or
(ii)the point upstream that is calculated by multiplying the width of the river mouth by 5
[24] The defendants argued (alternatively) that the Waitutu lands constituted a “coastal marine area” within the meaning of the RMA. The Waitutu River was listed as such in Schedule 1 to Appendix 2 of the Regional Coastal Plan for Southland, dated 5 November 1996 which pre-dated the (1999) joinder of the Waitutu lands to FNP. Mr Tobeck submitted that the Crown’s title to the land around the fishing spots therefore was and remains affected by its status as a coastal marine area.
[25] Judge Harrop rejected the defendants’ submissions in relation to the coastal marine area. His Honour contrasted the issues concerning management of the beds of lakes and rivers with matters relating to the title or ownership of the beds of those lakes and rivers. He found that neither the RMA nor the regional coastal plan affect the land’s status and its ownership by the Crown or the true boundary of FNP (as determined under the NP Act and the certified SO plans).16
Were the Waitutu lands lawfully added to FNP in 1999?
[26] The final, alternative submission for the defendants was that the Waitutu lands were not validly incorporated into FNP in 1999.
[27] The Order in Council purportedly adding the Waitutu lands was expressly made pursuant to s 7 of the NP Act, which provides:
16 Verdicts judgment, above n 1, at [34]– [35]
7Constitution of other national parks and addition of land to national parks
(1)Subject to subsections (2) to (6), the Governor-General may from time to time, by Order in Council made on the recommendation of the Minister,—
(a)declare that any land of the Crown described in the order, being—
(i)any conservation area; or
(ii)[Repealed]
(iii)any land subject to the Tourist and Health Resorts Control Act 1908 or the Tourist Hotel Corporation Act 1974; or
(iv)any reserve vested in Her Majesty subject to the Reserves Act 1977; or
(v)any land acquired by the Crown for national park purposes,—
shall be a national park subject to this Act:
(b)add any such land to any park:
(c)declare that any foreshore described in the order shall be a national park or be added to any park:
(d)assign a name to any new national park or change the name of any existing national park.
(2)The Minister shall not make any recommendation under subsection
(1) except on the recommendation of the Authority made after consultation with the appropriate Board (if any).
(2A) Before making a recommendation under subsection (1)(d), the Minister must refer the proposed name to the New Zealand Geographic Board Ngā Pou Taunaha o Aotearoa under section 27(2) or 30 of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008, as the case may be.
(3)[Repealed]
(4)No land subject to the Tourist and Health Resorts Control Act 1908 or the Tourist Hotel Corporation Act 1974 shall be declared to be a park or to be added to any park, except on the joint recommendation of the Minister and the Minister of Tourism.
(5)[Repealed]
(6)No foreshore shall be declared to be a park or to be added to any park, except on the joint recommendation of the Minister and the Minister of Transport, and, where the foreshore is under the control of a
regional council under the Resource Management Act 1991, except with the consent of that body.
[28]Mr Tobeck, for the defendants, submitted that pursuant to s 7 of the NP Act –
(a)to be added to a national park, the area of foreshore to be added (whether conservation area or otherwise):
(i)had to be described in the Order in Council (s 7(1)(c));
(ii)had to be the subject of a joint recommendation of the Ministers of Transport and Conservation (s 7(6)); and
(iii)had to have been consented to by any regional council having control of that foreshore.17
[29] Mr Tobeck submitted that the requirements of recommendation and consent under s 7(6) had been met as the department had produced evidence neither of a joint recommendation by the Minister of Transport nor of consent from the Southland Regional Council.
[30] In relation to the power (under s 7(1)(c)) to declare foreshore to be added to a park, Mr Tobeck had submitted that the notice (of 27 July 1999) did not in fact intend to make any foreshore (or coastal marine area) conservation area. Mr Tobeck submitted that the MHWS at the Waitutu River is 657.4 m upstream from the river mouth.18
[31] For the Department, Ms Williams submitted that the recommendations (of Ministers) and consent (of a regional council) under s 7(6) were not required in relation to the Waitutu lands because they had previously been declared to be conservation areas (that is Crown land held under the Conservation Act for conservation purposes).
17 Verdicts judgment, above n 1, at [40].
18 The figure of 657.4 m is a calculation derived from Mr Manson having measured the Waitutu River mouth at 131.48 m. Applying the s 2 RMA definition of “coastal marine area”, the landward boundary of this coastal marine area would be 131.48 x 5, being 657.4 m upstream from the mouth.
Ms Williams submitted that s 7(1)(a)(i) of the NP Act was the valid source of authority underlying the Order in Council by which the lands were added to FNP.
[32] Ms Williams further submitted that no foreshore was added to FNP at the Waitutu river mouth because the foreshore there is entirely below the MHWS line (as shown on SO11763), being a straight line across the mouth of the river.
[33] Judge Harrop accepted the Department’s submissions and found that the Waitutu lands were validly added to FNP in 1999.19
The operation of presumptions
[34] Judge Harrop was referred to the statutory presumptions under the NP Act and the common law presumption of regularity (omnia praesumuntur).20
[35] Section 16(5) of the NP Act provides in relation to the certified copies of the plans of national parks in other areas:21
16 Plans of national parks
…
(5) Every plan of a national park or specially protected area, wilderness area, or amenities area certified by a Chief Surveyor, and every certified copy of any such plan shall, in the absence of proof to the contrary, be sufficient evidence of the boundaries and area comprising that national park, specially protected area, wilderness area, or amenities area.
[36] Section 69(2) of the NP Act provides in relation to proceedings for any offences under the Act:
69 Presumptions relating to offences
…
(2) In any proceedings for an offence under this Act or any bylaws made under this Act, it shall be presumed in the absence of proof to the contrary, that all maps, plans, and copies of maps or plans appearing to be certified as true under the hand of a Chief Surveyor are so
19 Verdicts judgment, above n 1, at [44]–[46].
20 Above at [12](d)].
21 NP Act, s 16(5).
certified without production of the original records and without the personal attendance of those officers or proof of their signatures.
[37] The Department invoked both these presumptions together with the common law presumption of regularity (“omnia praesumuntur”).22
[38] Judge Harrop, when determining where the boundary of the FNP lies at the Waitutu River mouth, set out both the statutory presumptions.23 He then accepted, by reference to the process of certification of which a witness (David Griffin) had given evidence, that the FNP boundary at the Waitutu River mouth is as shown on SO11763 and SO12308.24
[39] His Honour then applied the statutory presumptions again when rejecting the defendants’ contention that the fishing spots were in a coastal marine area and not within FNP, stating:25
I do not accept that the definitions referred to by Mr Tobeck in the Resource Management Act and the Regional Coastal Plan for Southland have any bearing on the true boundary of the FNP which is determined under the NP Act itself and by the certified SO plans, assisted by Mr Manson’s expert evidence. As I have already noted, DOC has the benefit of the presumptions in ss 16(5) and 69(2) of the NP Act.
Was the Department required to prove full mens rea?
[40] In the District Court, the defendants submitted that the Department was required to provide full mens rea and that the offences charged did not constitute public welfare regulatory offences which import strict liability.
[41] Judge Harrop found by reference to authority that the defendants would be liable unless they could establish on the balance of probabilities an absence of fault.26
[42] The defendants, on appeal, do not challenge this aspect of the District Court judgment.
22 Above at [12], n 6.
23 Verdicts judgment, above n 1, at [15]–[16].
24 Verdicts judgment, above n 1, at [17].
25 Verdicts judgment, above n 1, at [35].
26 Verdicts judgment, above n 1, at [66]–[68].
This appeal – the statutory grounds
Appeal against conviction
[43] Mr Rickard brings his appeal under s 232 Criminal Procedure Act 2011, upon the basis that Judge Harrop erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or that a miscarriage of justice has occurred for any other reason.27
[44] By s 232(4) of the Criminal Procedure Act, a “miscarriage of justice” means an error, irregularity, or occurrence in or in relation to or affecting the trial that created a real risk that the outcome of the trial was affected or has resulted in an unfair trial. A “real risk” arises if there is a reasonable possibility that a not guilty verdict might have been delivered if nothing had gone wrong.28
Appeal against sentence
[45] Mr Rickard has under s 244(1) of the Criminal Procedure Act the right to appeal against sentence. This Court must allow the appeal against sentence if satisfied that, for any reason, there was an error in the sentence imposed on conviction and a different sentence should have been imposed.29 For the appeal to succeed, the sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle before an appeal court will interfere.30
Appellant’s case
Appellant’s overall grounds of appeal – against conviction
[46] Mr Tobeck identified as the underlying issue (in the appeal against conviction) whether the land on which Mr Rickard was fishing had been lawfully deemed National Park in accordance with the NP Act. Mr Rickard asserts that the Department has not
27 Criminal Procedure Act 2011, s 232(2)(b) – (c).
28 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J; Wylie v R [2016] NZCA 28; [2016] 3 NZLR 1 at [27].
29 Criminal Procedure Act 2011, s 250(2).
30 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].
proved beyond reasonable doubt that the fishing spot was so “deemed” because Mr Rickard’s fishing spot was:
(a)on foreshore and therefore, by reason of the statutory definition of “foreshore” in the NP Act, outside FNP; and/or
(b)within a coastal marine area (controlled by the Southland Regional Council, outside FNP).
Mr Tobeck explained that both these two points ([40](a) and (b)]) trigger steps to be taken pursuant to the NP Act, which then became the subject of Mr Tobeck’s more detailed submissions.
Appellant’s specific ground of appeal – “foreshore”
[47]Mr Tobeck referred to the definitions of “foreshore”.
[48] Mr Tobeck submitted that the fishing spots occupied land which constituted “foreshore” as defined in the NP Act. He referred to both the earlier and the current statutory definitions (set out above at [19]). As in the District Court, he submitted that for the purposes of this case, there is no material difference between the definitions.
[49] Mr Tobeck again, as in the Court below, referred to the evidence of Mr Manson, who agreed that where Mr Rickard was fishing would “quite possibly” be covered and uncovered by the flow and ebb of mean spring tides. Mr Manson also accepted that when the tide comes in the water flows past the straight (red) line drawn on the aerial photograph (Schedule A to this judgment).
[50] Mr Tobeck took me also to the notes of evidence at the point that Ms Williams re-examined Mr Manson. The exchange highlights the difference in approach to categorising the land on which the fishing spots are located. Mr Manson is focused on the categorisation of that area by reference to SO11763 and did not give a view on the area covered and uncovered by the flow and ebb of tides (because he viewed it as irrelevant). This was the exchange:
Q. Mr Manson, I was asking about the ebb, the flow and sorry, the land covered and uncovered by the flow and ebb of tide at mean spring tides. The phrase “covered and uncovered by flow and ebb”, would that imply what, in terms of area?
A. I, can I comment that I, that I, in this particular case don’t find it very relevant because I believe that the boundary of the park is defined by the SO plan and the fact that some land in land of, or some area, river bed, river flats, or whatever, inland that, if they’re covered and uncovered by the tide that’s irrelevant, the boundary is specified by that SO plan.
[51] For evidence relating to the tidal effect on the fishing spots, Mr Tobeck referred to that of Grant Tremain, the Principal Ranger of Recreation, employed the Department in the Te Anau Operations District. In cross-examination, Mr Tobeck referred Mr Tremain to photographs he had produced of the whitebaiting scene as inspected on 31 October 2017. Mr Tobeck referred to this exchange:
Q. Now, when you arrived at the [Waitutu] River and took some photographs, would it be fair to say that at that time the tide was coming in?
A.I don’t recall what the tide was. I believe that it was coming in as most people would fish an incoming time.
[52] The witness also referred to the fact that the time his party had got out of the helicopter in which they had landed, the skids were dry but that when they got back in he believed the water was coming up to the skids. As he recalled it, it had been close to low tide when they landed.
[53] Mr Tobeck submitted that on the basis of that evidence alone, Mr Rickard was fishing on foreshore.
[54] Mr Tobeck then contrasted that evidence focusing on the flow and ebb of the tides with Mr Manson’s focus on the significance of the MHWS line (as shown on Schedule A to this judgment). The Judge, as I have already quoted, accurately summarised Mr Manson’s evidence:31
In short, the effect of his evidence was that the covering and uncovering by the flow and ebb of some tides occurring upstream of the MHWS line did not in any way derogate from his conclusion as to where that line was.
31 Above at [21].
[55] Mr Tobeck submitted that the Judge (and Mr Manson) had erred by not applying the statutory definition of “foreshore” under the NP Act when considering whether the fishing spots were on foreshore which did not fall within FNP.
Appellant’s specific grounds of appeal – coastal marine area
[56] Mr Rickard’s second specific ground of appeal arises from the fact that Mr Rickard’s fishing spot was within what the RMA defines to be a “coastal marine area” (controlled by the Southland Regional Council). Mr Tobeck submits that on the evidence there was a failure, when the Land Notice of 20 September 1999 was issued, to comply with s 7(6) of the NP Act, in that the consent of the Southland Regional Council was not obtained to the adding of foreshore to FNP.
[57] Mr Tobeck submitted that neither the statutory presumptions nor the common law presumption of regularity apply because s 7 of the NP Act was not complied with.
Respondent’s case
Respondent’s summarised submissions
[58] For the Department, counsel summarised in seven points the reasons the appeal against conviction should be dismissed:
(a)The FNP boundary is defined by the certified plans.
(b)Mr Rickard did not call evidence to rebut the statutory presumptions.
(c)The common law presumption of regularity applies.
(d)Any challenge to the process by which lands were added to FNP must be by judicial review.
(e)The statutory procedures for adding land to FNP were correctly followed.
(f)Mr Rickard’s submission that lands (purportedly) added to FNP include foreshore is incorrect.
(g)The classification of the area as “coastal marine area” is relevant to the RMA but does not affect the administration of the land as national park.
Respondent’s submissions on the statutory and common law presumptions
[59] Counsel for the Department submitted that Mr Rickard’s points on appeal passed over the statutory presumptions. Ms Williams submitted that Mr Rickard had not rebutted the presumptions because:
(a)he did not challenge evidence about the addition of lands to FNP;
(b)he did not challenge evidence as to the survey definition of the line of MHWS at the mouth of the Waitutu River; and
(c)he did not challenge the Survey Office plan which defined the FNP boundary as the line of MHWS.
[60] By reference to both ss 69(2) and 16(5) of the NP Act, Ms Williams submitted that the SO plans are sufficient evidence of the park boundary at the Waitutu River mouth. She submitted that the purpose of statutory presumptions are to enable the Court to be satisfied that the park boundary is where the certified plan says it is (in the absence of evidence to the contrary).
[61] Ms Williams noted that evidence to the contrary had not been called by the defendants. As Mr Rickard had not called contrary evidence, the Department was not required to prove beyond reasonable doubt the location of the park boundary.
[62] Ms Williams referred to the decision of this Court in Cohen v Department of Conservation.32 In that appeal, concerning the offence of causing a fire in a state forest, Eichelbaum CJ dismissed an appeal against conviction by reason of the
32 Cohen v Department of Conservation (1990) 6 CRNZ 668 (HC).
application of a statutory presumption as to the conclusiveness of a certified plan under the Forest and Rural Fires Act 1977.33 Eichelbaum CJ, having found that the statutory presumption applied, continued: “The maxim omnia praesumuntur rite esse acta bolsters the conclusion”.
[63] In Ms Williams’ submission, the Court is therefore required to treat the SO plans as sufficient evidence of the boundaries of the park and (in conjunction with the evidence of Mr Manson) as establishing that the fishing spots were within the park boundary.
[64] Ms Williams submits that the issues in relation to whether that area came to be within FNP involve a collateral challenge to the validity of the park boundary. She submits that the proper avenue by which to challenge the process by which lands were added to the park is by judicial review.
Respondent’s submissions on the procedure adopted in adding the lands to FNP
[65] Ms Williams referred to the evidence (particularly of Mr Griffin) in which the Waitutu lands came to be included in the two SO plans as “land to be declared conservation area” and “roads to be resumed (by the Crown)” respectively. Mr Griffin stated both that the SO plans had been approved for gazettal purposes by the persons whose duties included the certification of the plans. Mr Griffin also described the two- stage process adopted by the officials in order to add the Waitutu lands to the park, first by resumption of unformed roads and the declaration of the Waitutu lands as conservation areas (22 December 1998) and then by the gazetted Order in Council of 20 September 1998 (adding the conservation areas to FNP). Finally in relation to the procedure, Ms Williams referred to the supplementary evidence of Mr Griffin which detailed a number of departmental and ministerial steps.
[66] Having regard to those various procedures, Ms Williams submitted that the common law presumption maxim omnia praesumuntur applied, there being no
33 Cohen v Department of Conservation, above n 32, at 670–671, referring to s 25(2) Forest and Rural Fires Act 1977.
evidence adduced by Mr Rickard to suggest that officials had not acted correctly under the Conservation Act and the NP Act.
Respondent’s submissions as to the line of the MHWS being the FNP boundary
[67] Ms Williams submitted that Judge Harrop correctly accepted the evidence of Mr Manson as to the park boundary being at the line where the MHWS crosses the Waitutu River mouth (as defined in SO11763).34
[68] This submission started with reference to the legend on SO11763 which I have quoted (above at [13]–[15]) which included in “Area A” (declared as a conservation area) that part of the Waitutu River up to where “MHWS crosses” the river.
[69] The Department relied upon the evidence of Mr Manson, called and qualified as an expert, to explain the correct interpretation of that part of the legend. Ms Williams relied particularly upon this exchange in evidence:
Q Thank you. Staying with exhibit 5 in the third box down we have a reference to, “Mean high water springs crosses all rivers, streams, inlets and estuaries unless otherwise shown,” in your experience what does “Crosses” mean?
A Well, I think with this plan it's very important the word crosses because the boundary, if it was just mean high water springs that would be quite different from when it says it, “Crosses all rivers, streams and,” – I think it was a qualifying additional comment that was put on the plan to make it unambiguous.
Q Unambiguous? A Yes.
Q How does it make it unambiguous?
A Because the word to me, crossing, is saying it is a line across a river mouth rather than a line going up a river and back down a river, it's crossing, to me and as I say they wouldn't have added that note unless they wanted to qualify that.
And Mr Manson continued later in his evidence:
Q What do you understand the line of mean high water spring to be?
34 Verdicts judgment, above n 1, at [17]–[23], and [35].
A. It’s a horizontal line at the level that the tide gets to meaning all spring tides. So it’s a level, flat plane and where that hits the coast is a mean high water spring line.
Q.Thank you. Looking again at SO 11763 can the line of mean high water spring be determined on that plan?
A. It’s representative. The plan drawn at that scale can only be representative but it is a line that is drawn around the coast line from mapping and is drawn as a broad – a thicker line than other lines on the plan. Hard to see at this scale but it is a thicker line.
Q. What is that line intended to represent?
A.Mean high water springs and the boundary of the park. Well what was to become the boundary of the park after this gazette election, yes.
And, finally, Mr Manson said still later in his evidence:
Q.Well, in my mind clearly the boundary crossed the mouth of the river and that’s what I was engaged to look at was where the boundary was at the river and so in my mind, clearly, it crosses the mouth.
[70] Mr Manson’s investigation then led him in July 2015 to superimpose the straight line which crosses the Waitutu River mouth (as showed in Schedule A to this judgment). Mr Manson confirmed in evidence that the MHWS line (while variable from year to year) would have remained virtually in the same place (within a metre or so) in 2017 as it had been in 2015.
[71] Ms Williams concluded that Mr Manson’s evidence of where the MHWS line crosses the mouth of the Waitutu River was not challenged.
Respondent’s submissions on addition of foreshore under s 7 NP Act
[72] Ms Williams observed that by virtue of the Land Notice of 22 December 1998 any area within the Waitutu lands boundaries (as defined by SO11763) had become a conservation area (that is land or foreshore for the time being held under the Conservation Act for conservation purposes).
[73] Ms Williams then turned to the requirements of (for adding land to a national park) under s 7 of the NP Act. She identified Mr Tobeck’s submission as requiring (through s 7(6) of the NP Act) additional steps when “foreshore” is being added to a park. Ms Williams contrasted this with what she submitted is “the straightforward
process to add conservation areas in reserves, etc to a park under subsection (1)(a)”. The thrust of Ms Williams’ submission at this point was that any foreshore, by reason of its already having been included in a conservation area, was no longer required to be subjected to the joint recommendation and consent requirements of subs (6).
[74]In what I took to be an alternative submission, Ms Williams recorded:
The Conservation Act definition and that in the NP Act in 1999 both refer to “a tidal water” being covered and uncovered. “Tidal water” is not defined and it is submitted this would not include a river as that is not affected by tides.
[75] Ms Williams noted that neither the Land Notice nor the Order in Council refer to the concept of “foreshore”, making it appear that the officials at the time did not consider the Waitutu lands included any “foreshore”. She submitted that the officials did not appear to have considered the Waitutu River itself as a “tidal water”. Rather, in her submission, the officials (and the Ministers acting on their advice) treated the Waitutu River down to the MHWS line at the mouth as being “land” to which s 7(1)(a) of the MHWS applied (rather than “foreshore” as covered by s 7(1)(c)).
Judicial Review as the means of challenging the procedure under the NP Act
[76] For the Department, Ms Williams submitted that, if Mr Rickard wished to challenge the process by which lands were added to FNP, the correct approach would have been by judicial review.
[77] In making that submission, she was adopting the tentative view expressed by Judge Harrop in this way:35
Although it was not the subject of submissions, I am doubtful that I, as a District rather than High Court Judge, have jurisdiction to rule on whether that step was taken lawfully or rather was ultra vires. I have no inherent jurisdiction. This is not an application for judicial review. If it were, only the High Court would have power to determine it. I consider that in the absence of a High Court ruling on the point, I am required to decide this case based on the assumption that the joinder process was valid. I refer again to the s 16(5) presumption as well. I doubt that can be overcome by simply asserting invalidity of a statutory process.
35 Verdicts judgment, above n 1, at [37].
[78] As it happens, I will be by this judgment upholding the convictions. In relation to that part of the charges which relates to activities being within a national park, I find that the Department has proved its case.
[79] Had I found that the correct conclusion in the District Court should have been that the Department had not established in the hearing that the area of the fishing spots had been validly added to FNP, I would have rejected the submission that the District Court Judge was precluded (for lack of jurisdiction) in deciding the case upon that basis. Whether the fishing spots were within FNP was a material ingredient of each charge. It was open to the defendants to defend the charges by raising a reasonable doubt in relation to that issue. The Judge’s observation, by which he doubted that the presumption in s 16(5) of the NP Act can be overcome simply by asserting invalidity of the statutory process, is incorrect as a matter of law. The statutory presumptions in the NP Act and the common law presumption of regularity are precisely that, namely presumptions.
[80] Kós J observed in Tamaki v The Māori Woman’s Welfare League Inc, when discussing the maxim of regularity (omnia praesumuntur), that “the maxim always bows in the face of the contrary evidence”.36 The entitlement to establish the contrary on the evidence also in the concluding words of the Latin maxim and is express in both ss 16(5) and 69(2) of the NP Act. If I had been satisfied (which I am not) (see below at [96]–[114]) that the declaration and addition of the Waitutu lands (including the foreshore) to FNP required the joint recommendation and the consent identified in s 7(6) of the Act, I would have found that the defendant had been able to rebut the presumptions on the basis of the evidence adduced by the Department itself.37
36 Tamaki v The Māori Women’s Welfare League Inc [2011] NZAR 605 (HC) at [72].
37 Contrary to a submission made by Ms Williams, the evidence which rebuts the presumption need not come from the party seeking to rebut the presumption – it is sufficient that it is evidence adduced by any party in the case.
Analysis
Approach to analysis
[81] I will analyse the issues in an order which differs from the approach taken in submissions. It remains helpful to begin the analysis with a consideration of the boundary of FNP as identified on SO11763.
The boundary as identified by SO11763
[82] I am not at this point considering whether the defendants’ fishing spots were within FNP. That involves a consideration of steps taken in the form of the Land Notice of 1998 and the Order in Council of 1999. The focus in this part of the analysis is solely on SO11763.
[83] SO11763, through the combination of the plan itself and the narrative legend, provides a clear identification of the point at which the boundary of area A (including the Waitutu River) is to be drawn. That is, at the point that the MHWS crosses the Waitutu River.
[84] Mr Manson, as the only expert surveyor called, undertook the investigation to establish the location of the straight line representing where the MHWS crossed the Waitutu River mouth in July 2015. He confirmed that the line would have remained in virtually the same place (within a metre or so) in 2017.
[85]Mr Manson’s evidence in this regard was not challenged at the hearing.
[86] Upon the basis of SO11763 and Mr Manson’s evidence as to the MHWS line, the Judge was correct to accept Mr Manson’s evidence as to where the MHWS line was.
[87] Similarly, on the basis of the evidence of Mr Manson and Mr Bishop as to the GPS location of the three fishing spots, the Judge was correct to find that those spots were upstream of the MHWS line by the approximate distances identified in evidence.
[88] Thus, if the Department established that the land shown in SO11763 as “land to be declared conservation area” in law and fact subsequently became conservation area, the Department would have proved its case. It is therefore necessary to then analyse the procedural steps taken.
Declaration of land to be held for conservation purposes
[89] The Department, to justify the procedure adopted in adding land to FNP in 1999, first relies upon the Land Notice of 22 December 1998.
[90] Mr Tobeck did not make a submission directly challenging the validity of the process by which the Ministers of Conservation and Lands purported to declare the Waitutu lands (with others) to be conservation areas. Instead, Mr Tobeck’s focus was on the next procedural step, that is the Order in Council by which the Waitutu lands (and others) were reportedly added to FNP.
[91] Mr Tobeck’s submission in relation to the purported addition of land to FNP under the NP Act (both in the District Court and here) included the proposition that the preferred interpretation of the Order in Council was that it was not intended to include foreshore in the FNP. I will therefore briefly consider the correct construction of the Land Notice of 1998.
[92] The Waitutu lands being declared as conservation area were identified in the Second Schedule to the Land Notice by direct reference to SO11763 in these terms:
That part of the bed of the Waitutu River from the boundary of the Fiordland National Park, being 40 metres downstream from the outlet of Lake Poteriteri in the north, in the line of Mean High Water Springs at the mouth of the said river in the south, and more particularly as shown within the area marked as “A” on S.O. Plan 11763 and being situated within the Waitutu Survey District.
[93] In other words, what was shown and described in SO11763 as the land to be declared conservation area was precisely that which the Land Notice identified.
[94] The Department has accordingly established that that area of the Waitutu River which lies upstream of the line on Schedule A hereto falls within the conservation area established by the Land Notice of 22 December 1998.
[95] That then leads to the need to analyse what has consistently been Mr Tobeck’s central proposition, namely that the Department did not establish that all that area (of the Waitutu River upstream of the line) had been properly added to FNP by the 1999 Order in Council.
Addition of land to FNP by the 1999 Order in Council
[96] The Department maintains that the area where the fishing spots are was properly added to FNP, along with on all the other areas identified as area A on SO11763, by the 1999 Order in Council. The Department says that the declaration contained in the Order is valid because, in terms of s 7(1)(a)(i) of the NP Act, the fishing spot area had previously become conservation area. The Department asserts that by reason of the land’s status as conservation area, provisions in s 7 of the NP Act in relation to foreshore were inapplicable.
[97] Mr Rickard, on appeal as in the Court below, asserts that the area of the fishing spots was not properly added to FNP by the Order in Council. He says that the area of the fishing spots constituted “foreshore” in terms of the NP Act, that s 7(6) of the Act therefore had to be complied with, and that it was not.
[98] These competing arguments require the Court to interpret the provisions of s 7, taking into account the meaning of “foreshore”.
[99] I have at [19] above set out both the current definition in the NP Act of “foreshore” and the definition which applied (in 1999) when the Order in Council was made under s 7 of the NP Act. For convenience, I set out again the 1999 definition (taken from the Harbours Act):
“Tidal lands” or “foreshore” means such parts of the bed, shore, or banks of a tidal water as are covered and uncovered by the flow and ebb of the tide at ordinary spring tides
And also set out above was the definition of “tidal lands” which was defined to mean:
any small part of the sea or of the river within the ebb and flow of the tide at ordinary spring tide.
[100] In other words, in the definition which applied at the time of the Order in Council, “foreshore” and “tidal lands” had, for the purposes of the NP Act, the same defined meaning. The cross-reference to “tidal lands” made it clear that the concept covered both sea and rivers (as affected by the ebb and flow of identified tides). Similarly, that part of the definition which reads “banks of a tidal water” is referable to rivers rather than sea.
[101] I therefore reject the submission of Ms Williams (quoted at [72] above) whereby she suggested (incorrectly) that the term “tidal water” was not defined and further submitted that it would not in any event include a river as a river is “not affected by tides”.
[102] I find that in fact the term “foreshore” as applying under the NP Act both in 1999 and now applies equally to tidal waters in the sea and in rivers.
[103] As submitted by Mr Tobeck, the cross-examination of Mr Manson established the likelihood that the fishing spots would be covered and uncovered by the flow and ebb of the tide at ordinary (or mean) spring tides.
[104] The thrust of Ms Williams’ submission was that Mr Manson’s evidence as to the line of the MHWS crossing the Waitutu River mouth was not challenged. This submission followed closely on Mr Manson’s answers in cross-examination to the effect (as summarised by Judge Harrop) that the covering and uncovering by the flow and ebb of some tides occurring upstream of the MHWS did not in any way derogate from Mr Manson’s conclusion as to where that line was.
[105] Judge Harrop’s conclusion in this regard was that: “Because, as I have already found, the defendants were fishing upstream from the MHWS line, it follows that they cannot have been fishing on “foreshore” within the definition”.38
[106] In reaching this conclusion, the Judge was in error. What the Judge was entitled to find on the evidence was that fishing spots were within what had, in 1998,
38 Verdicts judgment, above n 1, at [29].
been declared to be conservation area by reason of the reference to “mean high water springs crossing all rivers” in SO11763. That identification of land being included in the conservation area did not determine whether part of that conservation area was, pursuant to the definition under the NP Act, also correctly described as “foreshore”. The definition in the NP Act refers the physical characteristics of the land, not to some territorial classification, embodiment in a title or similar event.
[107] Therefore, I find the fishing spots to have been on “foreshore” as that word is used in s 7 of the NP Act.
[108] Thus, notwithstanding the declaring of the Waitutu lands, including the bed and foreshore of the Waitutu River upstream of the MHWS line, as conservation area, there is in that upstream area (including the fishing spots) “foreshore” in terms of s 7 of the NP Act.
[109] The next question to be addressed is whether s 7(6) of the NP Act operated so as to require the joint recommendation of the Ministers of Conservation and Transport and the consent of the Southland Regional Council before the area containing the foreshore was declared to be added to FNP.
[110] The Department asserted that the recommendation and consent referred to in s 7(6) of the NP Act were not required because the Order in Council did not constitute a declaration under s 7(1)(c) that foreshore described in the order should be added to FNP. Rather, it was the Order in Council that was a declaration under s 7(1)(a)(i) that the conservation area be added to FNP.
[111] Mr Tobeck submits that, by reason of the area in question being “foreshore” in terms of the NP Act, there was an obligation on the Department to pursue a declaration under s 7(1)(c). It would then follow, as a prerequisite under s 7(6), that the recommendation and consent be first obtained. Otherwise, in Mr Tobeck’s submission, the requirements of those provisions would be rendered nugatory.
[112] On this issue, I uphold the Department’s submission on the construction of s 7 of the NP Act. By s 7(1), Parliament has provided for two different declarations, the
second being in relation to foreshore and the first being in relation to five categories of land of the Crown. Those first five categories include conservation areas and other lands such as reserves vested under the Reserves Act 1977. If the Crown in obtaining those lands has done so through the correct procedures (under the Conservation Act, the Reserves Act or as otherwise applies) then s 7(1)(a) of the NP Act operates so as to allow a declaration under that subsection. Contrary to Mr Tobeck’s submission, it does not render section 7(6) “nugatory” that the Crown elected to first have the lands declared to be held for conservation purposes or vested as reserve. Subsection 6 has its application when the Order in Council contains a declaration (under s 7(1)(c)) relating to foreshore, not when the Order in Council contains a declaration under s 7(1)(a).
[113] Here, as the declaration was not made under s 7(1)(c) but rather under s 7(1)(a), the Order in Council did not need to be preceded by a joint recommendation of the Ministers or the consent of the Regional Council. It was sufficient instead that it be preceded by the recommendation of the Minister of Conservation alone.
[114] Mr Rickard did not contend that there was doubt in relation to the recommendation of the Minister of Conservation having made the recommendation. It was established on the evidence and, in any event, it is a matter established presumptively pursuant to the common law presumption of regularity.39
The foreshore as “coastal marine area” under the RMA
[115] Mr Tobeck’s additional and alternative submission was that the charges should have been dismissed because, under the RMA, the landward boundary of the coastal marine area at the Waitutu River extends upstream by 657.4 m from the river mouth.40 He submitted that the “Waitutu River was subject to this definition” when the Waitutu lands were added to FNP. Mr Tobeck further submitted that, while Mr Manson was qualified to give evidence as to the boundary of a parcel of land, he was not qualified to give evidence as to the title or the status of the parcel of land.
39 Above n 6.
40 Above n 18.
[116] Judge Harrop was correct to find that neither the RMA nor the Regional Coastal Plan for Southland have a bearing on the true boundary of FNP, as that is determined under the NP Act itself.41 For the reasons I have already recorded, the area in question was declared to be national park and added to FNP, as existing conservation area. As Judge Harrop recorded, neither the RMA nor the Regional Coastal Plan could affect the lands’ status and its ownership by the Crown.42
Conclusion on appeal against convictions
[117] In relation to appeal against conviction, Mr Rickard’s appeal against his convictions will be dismissed, albeit for reasons slightly differing to those of Judge Harrop.
Appeal against sentence
The sentencing remarks
[118] Judge Harrop correctly identified that under the NP Act, the fishing charge carried a maximum penalty of two years imprisonment and/or a $100,000 fine whereas the possession of a net carried a maximum penalty of one year’s imprisonment and/or a $100,000 fine.43
[119] As Judge Harrop noted, if there had been clear evidence of Mr Rickard knowing that he was fishing within the FNP boundary or that he intended to fish within the FNP boundary, the Department would have laid the charges under a more serious provision, which carried a maximum sentence of five years’ imprisonment and a
$300,000 fine.
[120] The Judge recorded the fact that when Mr Rickard was spoken to shortly after the date of the offending, he produced an email from NIWA dated 3 October 2017 setting out the definition of “coastal marine area” as contained in s 2 of the RMA. As
41 Verdicts judgment, above n 1, at [35].
42 Verdicts judgment, above n 1, at [34].
43 Sentencing remarks, above n 2, at [6]. The charges were laid under ss 60(1)(h) and 60(4)(a) of the NP Act. The penalties are provided in ss 69A(3)(a) and 70(a) respectively.
Judge Harrop noted, there was no evidence that Mr Rickard took any other steps to support his assertion that he was not fishing in the park.44
[121]Judge Harrop then continued (having observed that strict liability applied):45
I therefore had to consider what weight to give that email and I concluded that was an insufficient step to establish a total absence of fault, so I proceed on the basis that you did know that you should not have been there, and as Ms Williams observes, it seems that you were aware that this was an issue because you had ready access to that email. I think that is relevant to the gravity of the offending.
[122] Judge Harrop referred also to steps which the Department had taken prior to the offending to ensure that whitebaiters had knowledge of where the Department considered the FNP boundary to be. His Honour referred to Mr Bishop’s “extraordinary lengths” and recorded:46
He put a notice with a survey photograph showing the boundary in the nearby Waitutu hut, he arranged for articles about the park boundary to appear in local newspapers ahead of both the 2015 and 2016 whitebait seasons and he [sic] copy that notice to all the people he believed had been white baiting there and included you … But, importantly he then spoke to all three of you in 2016, the season before this near the mouth of the river and he told you where the boundary was.
[123] His Honour then referred to the need to impose a sentence which deterred the defendants but also denounced their conduct.47 His Honour also took into account the sanctity of a national park as enshrined in s 4 of the NP Act.48
[124] In turning to a starting point, his Honour identified that the maximum penalties under the NP Act had been substantially increased in 2013 from three months’ imprisonment and a $2,500 fine up to their present levels.49 The Judge found the offending to be in the category of moderately serious non-commercial offending, in line with the categorisation in Tawha v Fish & Game New Zealand.50 On the other hand, his Honour took into account that:
44 Sentencing remarks, above n 2, at [11].
45 Sentencing remarks, above n 2, at [12].
46 Sentencing remarks, above n 2, at [9].
47 Sentencing remarks, above n 2, at [14].
48 Sentencing remarks, above n 2, at [14].
49 Sentencing remarks, above n 2, at [18].
50 Tawha v Fish & Game New Zealand [2015] NZHC 1119. Sentencing remarks, above n 2, at [18].
(a)there had been no permanent damage to the park and its eco-system, the few caught whitebait having been returned to the river;51
(b)this offending did not occur deliberately in a very remote area but instead was near the edge of the national park; 52 and
(c)whitebait are not an absolutely-protected animal.53
[125] Against this background, Judge Harrop considered that a fair and the least- restrictive starting point was a single fine of $7,500 for each defendant. His Honour then had regard to Mr Rickard’s and the co-defendant’s previous good character, which he found to justify a discount of 25 per cent.
[126]By that means, his Honour determined that the fine should be $5,625.
Appellant’s submissions
[127] Mr Tobeck’s single point on appeal was that Judge Harrop erred in holding that Mr Rickard knew that he should not have been fishing where he was. Mr Tobeck submitted that there was not a logical connection between the Judge’s finding that Mr Rickard having failed to establish a “total absence of fault” to then “proceed on the basis” that Mr Rickard did know he should not have been there.54
[128] Mr Tobeck submitted the Judge accordingly erred by adopting an excessive starting point or failing to give sufficient weight to the mitigating factors.
Defendant’s submissions
[129] For the Department, Ms Williams submitted simply that both the starting point and the final sentence were appropriate, with the discount of 25 per cent for previous good character being “generous in the circumstances”.
51 Sentencing remarks, above n 2, at [19].
52 Sentencing remarks, above n 2, at [21].
53 Sentencing remarks, above n 2, at [26].
54 Sentencing remarks, above n 2, at [12].
Discussion
[130] The starting point of a single fine of $7,500 for both offences (in the context of maximum fines of $100,000, potentially additional to a period of imprisonment) was well within the appropriate range having regard to the circumstances of the offending. The Judge’s reasoning, identified by Mr Tobeck, in which the Judge stepped from Mr Rickard’s failure to establish a total absence of fault to a finding of knowledge that he ought not to have been there does not materially alter the appropriateness of the starting point. Whatever Mr Rickard had taken from the NIWA email, Mr Bishop’s uncontradicted evidence of his discussions with Mr Rickard and his co-defendants in 2016 as to where the FNP boundary was evidence of at least recklessness on the part of the defendants.
[131] I accept Ms Williams’ submission that the 25 per cent discount for previous good character may be regarded as generous.
Conclusion
[132] The end sentence, namely a fine of $5,625, was well within the appropriate range. The appeal against sentence will be dismissed.
Costs
[133] There would normally be an award of the costs of the appeal to be paid to the Department, following the event.
[134] However, primary arguments advanced by the Department in the District Court and accepted in the District Court judgment have not been upheld, with different reasoning now found to justify the conviction.
[135] In these circumstances my preliminary view is that it would be appropriate in the circumstances of this appeal that there be no order as to the costs of the appeal (but with the order for costs in the District Court left to stand). If the parties agree on that course, no memoranda will be required. Otherwise memoranda are to be filed in accordance with the order below.
Order
[136]I order:
(a)The appeals against conviction and sentence are dismissed.
(b)In the event the parties are unable to agree on the costs of the appeal, the Department is to file and serve within 10 working days a memorandum of submissions (four page limit) and the appellant is to file and serve within five days thereafter a memorandum of submissions (four page limit). In the event that the Department does not file a memorandum, the order of the Court (without further Minute) is that there is no order as to the costs and disbursements of the appeal.
Osborne J
Solicitors:
A Tobeck, Barrister, Otautau
P D Williams, Department of Conservation Preston Russell Law, Invercargill
SCHEDULE A
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