Shark Experience Ltd v PauaMAC5 Inc - [2019] NZSC 111

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 86/2018
[2019] NZSC 111

BETWEEN	SHARK EXPERIENCE LIMITED Appellant
AND	PAUAMAC5 INCORPORATED First Respondent ATTORNEY-GENERAL Second Respondent SHARK DIVE NEW ZEALAND LIMITED Third Respondent

Hearing:	26 March 2019
Court:	Winkelmann CJ, William Young, Glazebrook, O’Regan and Ellen France JJ
Counsel:	S J Grey and S P H Elliott for Appellant B A Scott and S R Roberts for First Respondent J M Prebble and D J Watson for Second Respondent
Judgment:	11 October 2019

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is dismissed.
BThe appeal is allowed.
C The Court of Appeal’s declaration that “Shark cage diving is an offence under s 63A Wildlife Act 1953” is set aside.
D There is no order as to costs.

____________________________________________________________________

REASONS

Winkelmann CJ, William Young, Glazebrook and O’Regan JJ	[1]
Ellen France J	[125]

WINKELMANN CJ, WILLIAM YOUNG, GLAZEBROOK AND
O’REGAN JJ
(Given by Winkelmann CJ)

Table of Contents

Para No
Introduction	[1]
The legislation	[7]
Scheme of protective regime	[8]
Offence provisions	[13]
Great white sharks given absolute protection	[16]
Defences	[17]
Authorisation provisions	[18]
Judgment under appeal	[19]
Issues on appeal	[27]
The meaning of “hunt or kill”	[29]
The language of the provision	[33]
Statutory purpose	[42]
Analysis	[44]
The statutory context	[47]
Strict liability offence?	[48]
Analysis	[53]
Hunting	[62]
Pursuing	[63]
Molesting	[67]
Disturbing	[69]
Coherence of the statutory scheme: ss 53 and 63A	[76]
Analysis	[78]
Claimed incoherence: ss 63A and 68B	[82]
Consistent with purpose?	[85]
New Zealand Bill of Rights Act and Magna Carta arguments	[87]
Conclusion on meaning of “hunt or kill”	[92]
Is the conduct “hunting or killing”?	[96]
Analysis	[101]
Hunting	[102]
Pursuing	[103]
Molesting	[104]
Disturbing	[105]
A declaration?	[110]
Application for leave to adduce further evidence	[118]
Conclusion	[120]
Result	[121]

Introduction

The appellant, Shark Experience Ltd, ran a business offering the opportunity to view great white sharks from close quarters.[1] Divers were lowered in cages off the side of boats anchored in Foveaux Strait, off the northern Tītī Islands, east of Stewart Island. This is an area in which great white sharks are known to aggregate. The divers watched and photographed sharks attracted to the area by the use of berley and bait. The boats did not chase the sharks, and Shark Experience followed a code of practice prepared by shark cage divers and adopted by the Director‑General of Conservation, designed to avoid the risk of harm to the sharks.[2]
[1]The great white shark is the common name for the white pointer shark (Carcharodon carcharias).
[2]The third respondent, Shark Dive New Zealand Ltd, ran a similar cage diving business. Shark Dive New Zealand was a defendant in the proceedings brought by PauaMAC5 Inc in the High Court but abides the decision of this Court. The Director-General of Conservation was the Crown respondent in the Courts below, but the Attorney-General has been substituted as Crown respondent in this Court.

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: [2019] NZSC 111
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the case of Shark Experience Ltd v PauaMAC5 Inc, the dispute centered on the interpretation of the Wildlife Act and its application to shark cage diving activities. The Court of Appeal was tasked with determining the scope of the statutory terms "hunt or kill" and whether these terms should be narrowly or broadly construed. This interpretation has significant implications for the enforcement of the Act and the potential penalties that may be imposed for breaches.

The legal issues before the court involved the interpretation of statutory language and the extent to which it encompasses various forms of conduct relating to protected wildlife. The appellant, Shark Experience Ltd, argued that the term "hunt or kill" should be narrowly construed to minimise infringement on their rights of freedom of movement and expression. They contended that their activities did not constitute hunting or killing but rather a form of commercial enterprise that should be protected. The respondent, PauaMAC5 Inc, argued for a broader interpretation that includes activities such as pursuing, molesting, and disturbing protected wildlife, regardless of whether these acts occur in the course of hunting or killing.

The court's reasoning was that the definition of "hunt or kill" should be interpreted in a manner consistent with the overall statutory scheme and the Act’s purpose. The court found that a broad interpretation is necessary to effectively protect wildlife and ensure compliance with the Act. It determined that the statutory terms encompass a range of prohibited acts, including pursuing, molesting, and disturbing protected animals, even if these acts do not occur in the context of hunting or killing. This interpretation was supported by the nature of the prohibited acts and the availability of statutory and common law defences, which create a coherent framework for determining exposure to criminal liability.

The court concluded that the definition of "hunt or kill" captures conduct that extends beyond the common usage meaning of hunting and killing, including pursuing, molesting, and disturbing protected wildlife. This interpretation does not lead to over or indeterminate criminalisation and aligns with the Act’s purpose of protecting wildlife. The court's decision upheld the broader interpretation of the statutory terms, affirming the penalties that may be imposed for breaches of the Wildlife Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Ms Grey submits that the Court of Appeal’s interpretation entails the imposition of severe penalties for strict liability public welfare type offences, and that to impose loss of freedom by imprisonment and seizure of private property in the absence of a clear obligation or mens rea runs contrary to s 22 of the New Zealand Bill of Rights Act and c 29 of Magna Carta. The latter provides: 29 Imprisonment, etc contrary to law. Administration of justiceNO freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him,1 but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.1 deal with him, Ms Grey did not press this point in oral argument. She was right not to. The Wildlife Act is part of the “law of the land” and by its terms authorises the imposition of fines and a sentence of imprisonment where it applies. The point Ms Grey makes regarding mens rea has already been addressed in our analysis above. Similarly, Shark Experience argues that the Court of Appeal’s interpretation of “hunt or kill” unreasonably infringes on its rights of freedom of movement and freedom of expression as affirmed in the New Zealand Bill of Rights Act. It argues “hunt or kill” ought to be narrowly construed to minimise the infringement upon those rights. We are not persuaded that the provision, however it is construed, amounts to a restriction upon freedom of expression. Shark cage diving is not, on any view, conduct which could fall within the protective boundary of s 14. Nor does it amount to a restriction on freedom of movement for the purposes of s 18. Shark Experience’s boats are free to travel and divers free to dive in the area. The restriction in our interpretation of the Act restricts a form of conduct rather than free movement about the ocean. To conclude this interpretative analysis, we are satisfied that the definition of “hunt or kill” captures within the s 63A offence conduct which is unconnected to the common usage meaning of hunting and killing, extending to pursuing, molesting and disturbing protected wildlife, whether or not those prohibited acts take place in the course of, or for the purpose of, hunting or killing or otherwise. We are satisfied that the overall statutory scheme supports this interpretation, as does the Act’s purpose. This interpretation does not lead to incoherence in the statutory scheme, nor to over or indeterminate criminalisation. The nature of the prohibited acts, together with the availability of the s 68B and common law “no fault” defence, create a coherent framework from which exposure to criminal liability can be sufficiently predicted. We summarise the nature of the prohibited acts as follows. In the s 2(1) definition of “hunt or kill”:(a)“hunting” means an intentional act committed if a person is proved to have had an intent to hunt; (b)“killing” means causing the death of a protected animal. An intention to kill need not be proved; (c)“pursuing” means to intentionally chase but does not include luring or attracting or merely following the animal at a safe distance; (d)“disturbing” means an action which physically or mentally agitates the protected animal to a level creating a real risk of significant harm; and (e)“molesting” means intentionally troubling, distressing or injuring a protected animal.