Robertson v Police
[2012] NZHC 3564
•20 December 2012
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2012-483-0017 [2012] NZHC 3564
UNDER the Summary Proceedings Act 1957
IN THE MATTER OF an appeal against conviction and sentence pursuant to section 115 of the Summary Proceedings Act 1957
BETWEEN MAX ROBERTSON, GLEN-ROSS DUDDING AND BRADLEY JAMES WHITE
Appellants
ANDNEW ZEALAND POLICE Respondent
Hearing: 17 December 2012
Counsel: P Ross for appellants
J M Woodcock for respondent
Judgment: 20 December 2012
RESERVED JUDGMENT OF DOBSON J
[1] In a reserved decision issued on 29 June 2012 from the District Court at Wanganui, Judge I D R Cameron found each of the appellants guilty of being in possession of firearms except for some lawful, proper and sufficient purpose, contrary to s 45(1) of the Arms Act 1983 (the Act). They now appeal against that conviction.
[2] Charges were laid against the appellants as a result of their activities in nocturnal deer hunting in a relatively remote area in the Wanganui district on
Kauarapoao Road. At approximately 3am on 6 August 2011, their activities alerted
ROBERTSON & ORS v NEW ZEALAND POLICE HC WANG CRI-2012-483-0017 [20 December 2012]
two residents of the area, first a Mr Harold Breidahl, a professional hunting guide accepted by the Judge as a most experienced hunter of deer, and his neighbour, Mr Neil Mayo, who owns the farm property immediately adjacent to Kauarapoao Road in the relevant portion of the valley. Both of those men gave evidence of what they heard and observed at the time and what they subsequently discovered.
[3] Mr Mayo had been woken by the noise of a vehicle and looked out of his house. He observed a vehicle stopped approximately 100 metres from his house, casting a spotlight over his paddock and then heard gunshots. After the appellants had left the area, Messrs Mayo and Breidahl discovered a deer shot in one of Mr Mayo’s paddocks, at a location that Mr Mayo considered to be consistent with shots from the vehicle at the time he was observing it (deer 1).
[4] Mr Breidahl observed a vehicle on the road spotlighting for animals, and heard shots being fired at a point consistent with the location of two deer subsequently discovered shot in one of Mr Mayo’s paddocks (deer 2 and 3). Mr Breidahl attempted to communicate with the occupants of the vehicle, but when they saw him, they sped off. The Police were advised and the appellants were located in their vehicle in Wanganui with one deer carcass. Mr Breidahl’s observations were after the incident observed by Mr Mayo.
[5] The appellants were charged with discharging a firearm over private land
without the owner’s express authority under s 8(2) of the Wild Animal Control Act
1977. They pleaded guilty to that charge and there is no issue in respect of it on the appeal.
[6] The appellants were also charged with discharging a firearm in a public place without reasonable excuse so as to annoy Mr Mayo under s 48 of the Act. They were found not guilty of that charge on the basis that the requisite intention to annoy was not made out. Similarly, that is not relevant to the appeal.
[7] The terms of s 45 of the Act are as follows:
45 Carrying or possession of firearms, airguns, pistols, restricted weapons, or explosives, except for lawful, proper, and sufficient purpose
(1) Every person commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 4 years or to a fine not exceeding $5,000 or to both who, except for some lawful, proper, and sufficient purpose,—
(a) Carries; or
(b) Is in possession of—
any firearm, airgun, pistol, restricted weapon, or explosive.
(2) In any prosecution for an offence against subsection (1) of this section in which it is proved that the defendant was carrying or in possession of any firearm, airgun, pistol, restricted weapon, or explosive, as the case may require, the burden of proving the existence of some lawful, proper, and sufficient purpose shall lie on the defendant.
[8] The appellants defended the charge of being in possession of firearms on the basis that they could establish, on the balance of probabilities, a lawful, proper and sufficient purpose. Their first ground of appeal was that the Judge’s conclusions on the evidence were incorrect. Their evidence was to the effect that they had observed deer 2 and 3 on Kauarapoao Road, had shot the deer there but the deer had jumped over a fence into Mr Mayo’s paddock, and must subsequently have died where they were later found by Messrs Mayo and Breidahl. They denied shooting deer 1.
[9] Judge Cameron carefully analysed the evidence and rejected their consistent explanations as to where deer 2 and 3 were shot. The Judge preferred Mr Breidahl’s reconstruction of events. Mr Breidahl had butchered the carcasses of deer 2 and 3, found some 48 metres from the fence adjoining Kauarapoao Road. He found that the larger of the two, a stag, had a broken spine caused by one of the bullets that hit the animal. From his substantial experience, Mr Breidahl considered the wound would have prevented the deer moving and that it would more or less have dropped at the point of impact.
[10] The Judge also took the view that had the animals been shot at another point and run away from where they were shot, it would be most unlikely for them subsequently to have dropped in very close proximity to each other. Instead, their
close proximity was consistent with their having dropped at the point at which they were both shot.
[11] The Judge rejected a reconstruction advanced for the appellants, to the effect that the way the stag had fallen, with a smaller bullet entry on one side of the carcass and greater damage on the other, was inconsistent with the animal having been shot at that point, from a rifle on the road. Mr Ross regretted not having put this analysis to Mr Breidahl in cross-examination. However, a review of his evidence suggests that he had comprehensive reasons for his reconstruction. It seems equally likely that Mr Breidahl would have offered a rationale such as that cited by the Judge, as it is that he would concede that the direction of entry of the bullet suggested the way the deer was found indicated that it could not have been shot from the road. The Judge was not persuaded that the point raised a doubt as to the reliability of Mr Breidahl’s reconstruction, because it could be explained by the animal having twisted as it fell.
[12] On a general appeal such as this, the appellate Court is to come to its own decision on questions of fact and law.[1] In such appeals, the Court is to come to its own view on the evidence.[2] In this case, where the Judge has carefully analysed all the evidence and his conclusions accord with common sense, I consider it appropriate to acknowledge that he had a material advantage over me, in seeing and hearing the witnesses.
[1] Appeal by way of rehearing, brought under s 119 Summary Proceedings Act 1957 – Herewini v
Ministry of Transport [1992] 3 NZLR 482.
[2] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).
[13] After hearing counsel and reviewing all of the evidence (but without the advantage of assessing the witnesses as the Judge was able to do), I have come to the same conclusion that deer 2 and 3 were shot in the immediate vicinity of where they were found. There is an inherent implausibility about the evidence from the appellants to the effect that they got out of their vehicle and shot both the stag and the younger deer on the road, that the two wounded animals then jumped over the fence into Mr Mayo’s paddock, and came to a point of collapse very close to each other, where they were later found. In addition to Mr Breidahl’s analysis that the
stag’s spine had been broken, there was no blood found on the roadway in the area
where the shooting would have taken place on the appellants’ account. The standard height sheep fence at the bottom of a small slope down from the road could no doubt have been cleared by both deer. However, there is at least a prospect that the wounded deer would not have run that way, when they could more easily have run away from their attackers down the road, or possibly into the wooded area on the opposite side of the road.
[14] I am therefore satisfied that the prosecution did prove the location of deer 2 and 3 as being shot where Mr Mayo complained.
[15] As to deer 1, the appellants essentially put the Police to proof of their having shot it, in face of their denials. Mr Ross argued that the Police had not discharged the burden when Mr Breidahl did not recall hearing shots at the time consistent with Mr Mayo’s reconstruction of the appellants shooting deer 1, and that Mr Mayo had only a limited ability to observe the circumstances from some 100 metres away when he was still only “half awake”.
[16] I reject those arguments. The Judge was obliged to consider the context of the surrounding circumstances as presented in the Police case. Mr Mayo was woken by a vehicle that it is safe to infer was the appellants’, and observed those in it spotlighting, when he heard shots. Deer 1 was found in the area where an animal shot at the time he was observing their vehicle might have been, and the deer was still warm when he found it. To treat the prosecution evidence as inadequate in those circumstances is to require an unrealistic standard of proof, and I am satisfied that the Judge’s finding in respect of the appellants being responsible for shooting deer 1 in Mr Mayo’s paddock was amply justified.
[17] The second principle argument on the appeal was that the Judge had wrongly assessed what could constitute a “lawful, proper and sufficient purpose” for the appellants being in possession of firearms at the time.
[18] The Judge reasoned that the deer were being farmed by Mr Mayo, that it ought to have been apparent to the appellants that they were farmed deer, and that shooting farmed deer was not a lawful purpose for being in possession of firearms at
that location at that time. Accordingly, the appellants did not bring themselves within the exception in s 45(1) of the Act.
[19] On appeal, Mr Ross argued that this analysis was wrong. He relied on evidence from the appellants to the effect that they had identified the deer they shot as not being tagged. He argued that if indeed they were shot within the paddock where they were found, then they were not confined within a deer fence so that the appellants could legitimately treat them as wild deer, and hunting them was accordingly lawful. Mr Ross emphasised that the ascertainment of purpose was an element of the offence, and that there was no basis for rejecting the analysis available to the appellants which justified their being in possession of firearms for the lawful purpose of hunting wild deer.
[20] Mr Ross argued that if the appellants’ evidence as to where the shooting occurred was rejected, then the only offence the appellants committed was to discharge a firearm across land without the express authority of the owner or occupier, contrary to s 8 of the Wild Animal Control Act 1977. They had separately been charged with, and pleaded guilty, to that offence.
[21] In support of the reconstruction of the appellants’ relevant state of mind at the time, Mr Ross also undertook an analysis to demonstrate that, as a matter of law, the deer had to be treated as wild deer because Mr Mayo could not qualify to claim lawful ownership of them. The location of his farm was within an area where a permit was required to farm deer, and he did not have one. Further, all farmed deer are required to be tagged and these were not. They were only to be farmed in areas where they were effectively confined and because of the absence of deer fencing, that requirement was also not complied with. Mr Mayo could not establish the animals of which these were progeny, and none of them had been acquired from stock agents. In all those circumstances, Mr Ross argued that the animals ought still to have been treated as wild animals in the ownership of the Crown. It would follow that hunters could have a lawful and sufficient purpose in hunting them.
[22] Mr Ross invited analogy with the appellate decision in Daly v Police.[3] In that case, two hunters were observed within the boundary of a property used for a commercial deer hunting operation. They were there, in possession of hunting rifles, and without the authority of the operator of the deer hunting operation. Mr Daly was charged with hunting deer on private land without authority under the Wild Animal Control Act and pleaded guilty to that. He was also charged with being in possession of a firearm without lawful, proper and sufficient purpose under s 45(1) of the Act. He defended that charge and subsequently appealed his conviction on it. Mr Daly’s explanation was that he had taken a shortcut through the property where he was found, but that his intention was to hunt wild deer, other than on that property. Wild J held on the appeal that hunting wild deer is a lawful, proper and sufficient purpose for having a rifle, and that Mr Daly’s criminality related to where he was hunting, not what he was hunting with.
[3] Daly v Police (2005) 22 CRNZ 10 (HC).
[23] Mr Ross argued that the present case was the same, on the basis that the prosecution could not make out that the deer shot were being “farmed”. Even if, as a matter of law, that was not correct or not sufficient, then in testing the appellants’ purpose, their belief at the time that the deer were not being farmed gave them a lawful and sufficient purpose of hunting wild deer.
[24] For the respondent, Ms Woodcock argued that Daly was distinguishable because there, the purpose for possession of the firearm was lawful, even although the manner in which that was being carried out was illegal in another respect. In contrast, here, the purpose was for shooting the deer that were obviously shot on farmland, and irrespective of the niceties of whether Mr Mayo could establish lawful ownership of them, they could not reasonably be treated as wild deer.
[25] Ms Woodcock cited the more recent decision in Sargeant v Police for an analysis of what is required to make out “lawful, proper and sufficient purpose” as it is used in s 45(1) of the Act.[4] A review of a number of decisions led to French J
[4] Sargeant v Police HC Christchurch CRI-2009-409-00170, 20 November 2009.
distilling the following general principles:[5]
[5] At [13].
i) In construing and applying the section, the Court should have regard to the underlying policy of the Arms Act, which is to promote the safe use and control of firearms and other weapons.
ii) The word ‘purpose’ in s 45(1) refers to the object or end in view.
iii) The words “lawful, proper and sufficient” are to be read cumulatively, so it is possible for a purpose to be lawful but not sufficient.
iv) A “lawful” purpose is one that is not criminal.
v) Because the section focuses on purpose rather than possession, the fact a defendant may hold the relevant licence does not mean in itself that the purpose is lawful. A firearm in lawful possession may be possessed for an unlawful purpose, and vice versa.
vi) In every case it will be a question of fact and degree whether the defendant has established some lawful, proper and sufficient purpose. In approaching the question of purpose, all of the surrounding circumstances must be considered, including storage.
vii) The focus must be on the purpose for which the items were in the defendant’s possession on the date and at the time specified by the charge.
[26] Ms Woodcock urged that these considerations required a contextual assessment and that that was also implicit in the judgment in Daly. That decision was distinguishable on the basis that Mr Daly’s was not conduct intended to be addressed by the mischief recognised in s 45. There was no evidence Mr Daly had discharged his rifle, and he was in the course of a daytime hunting operation. In contrast, here the appellants were hunting in the middle of the night, using a spotlight, shooting into farmland. On the version of the evidence accepted by the Judge, they had shot at no less than three deer across a farmed paddock.
[27] It was accepted that the appellants were shooting without authority, whether on the road or over Mr Mayo’s paddock. On the prosecution case as to where the deer were shot, they were shooting over farmland. Even if there were impediments to Mr Mayo establishing lawful ownership of the deer, they were shot in the course of a night-time hunt. On Mr Breidahl’s evidence, he observed them shooting out of the vehicle which was itself unlawful.
[28] I agree with Ms Woodcock’s conclusion that even if there were grounds for a
reasonable belief that the deer were not being lawfully farmed, shooting them in
what was clearly a farmer’s paddock could not constitute a lawful and sufficient purpose. The appellants’ subjective belief about the nature of the deer will not prevail over evidence that they were shot when confined within a farmed paddock (albeit inadequately fenced, relative to the standards for farming deer). The purpose for possession of the firearms is to be objectively analysed in that sense.
[29] Accordingly, I am satisfied on this analysis that there was sufficient evidence to make out the elements of the charge, and that the existence of a lawful, proper and sufficient purpose could not avail the appellants.
[30] For these reasons, the appeal against conviction must be dismissed.
Dobson J
Solicitors:
Cliff Church Legal, Hastings for appellants
Crown Solicitor, Wanganui for respondent
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