Robertson v Police - [2012] NZHC 3564

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.…

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: [2012] NZHC 3564
Decision Date: 20 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Max Robertson, Glen-Ross Dudding, and Bradley James White appealed against their conviction for being in possession of firearms except for some lawful, proper, and sufficient purpose, contrary to section 45(1) of the Arms Act 1983. The case arose from the appellants' nocturnal deer hunting activities in a remote area of the Wanganui district on Kauarapoao Road, which were observed by local residents, Mr Harold Breidahl and Mr Neil Mayo. The appellants were charged with discharging a firearm over private land without the owner's express authority, which they pleaded guilty to, and being in possession of firearms for an unlawful purpose, which led to the current appeal.

The key legal issues were whether the appellants could establish a lawful, proper, and sufficient purpose for being in possession of firearms and whether the deer were shot in a location that constituted a lawful purpose. The appellants argued that they had shot the deer on the road, and they believed they were wild deer, not farmed. However, the District Court Judge had rejected their evidence and accepted the reconstruction of events provided by Mr Breidahl, a professional hunting guide. The Judge found that the deer were shot within Mr Mayo's paddock, and hunting farmed deer was not a lawful purpose.

The High Court Judge, Dobson J, agreed with the District Court Judge's findings. After reviewing all the evidence, the Court concluded that the appellants' account of the events was inherently implausible. The Judge found that the deer were shot in the immediate vicinity of where they were found, and there was no blood on the roadway where the appellants claimed to have shot them. The Court also found that shooting farmed deer, even if inadequately fenced, could not constitute a lawful and sufficient purpose. The appeal was dismissed, and the convictions were upheld.

The final orders of the Court were that the appeal against conviction was dismissed, and the convictions of the appellants for being in possession of firearms except for some lawful, proper, and sufficient purpose were upheld.

Orders