Stanko v Police
[2024] NZHC 138
•9 February 2024
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2023-406-9
[2024] NZHC 138
BETWEEN ONDREJ STANKO
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 8 February 2024 Appearances:
C M Ruane for Appellant
A R Goodison for Respondent
Judgment:
9 February 2024
JUDGMENT OF COOKE J
[1] Ondrej Stanko appeals a decision of the District Court1 on 20 April 2023 finding him guilty of two charges of unlawful hunting2 following a Judge-alone trial before Judge D C Ruth.
Background to the alleged offending
[2] On 9 October 2022, a person was seen on Paul Keung’s property near the Kaikoura coast, reportedly 30–40 metres away from where Mr Keung was with his son and a guest. Mr Keung states he pursued the person towards the coastline, onto Department of Conservation (DOC) land where there is an absolute ban on hunting. When Mr Keung caught up to this person, he found the appellant, dressed in hunting attire with a rifle and backpack containing hunting gear. The appellant was seated in a bench at the top of a track which can be reached from the road.
1 New Zealand Police v Stanko [2023] NZDC 13118.
2 Wild Animal Control Act 1977, s 8(2).
STANKO v NEW ZEALAND POLICE [2024] NZHC 138 [9 February 2024]
[3] The appellant said he was at the bench to eat his lunch and watch the water, and that he travelled to the area to hunt at a friend’s farm near Kaikoura. He denied being on Mr Keung’s land, stating he had only been at the bench and that he brought his rifle with him so that it was not left unattended in his vehicle.
[4] Mr Keung reported that the appellant refused to show any firearms license or to remove the bolt from his rifle. Mr Keung called 111 and discussed matters with police. The appellant then took off at pace, and Mr Keung went to where the appellant’s vehicle had reportedly been located. Constable Payne, the officer in charge, had arrived at the area where the vehicle was parked, and Mr Keung provided details of what had happened. The appellant then arrived.
[5] On 21 October 2022, the appellant was charged with hunting a wild animal on land without the express authority of the owner of that land, in breach of ss 8(2) and 38(1) of the Wild Animal Control Act 1977. He faced two charges, one for hunting on Mr Keung’s land without his permission, and one for hunting on DOC land without permission.
[6] On 20 April 2023, the District Court convicted the appellant on both charges. Judge Ruth noted that s 38 of the Wild Animal Control Act 1977 provided that a person with a firearm and without a permit who is found on land where a hunting permit is required is presumed to be unlawfully hunting, unless that person can prove on the balance of probabilities that they are not hunting.3 The Judge found that the combination of the firearm along with the other hunting paraphernalia meant the presumption was “absolutely met,” and so the live issue was whether the evidence showed it is not likely that the appellant was present for the purpose of hunting.4 The Judge rejected the appellant’s proposition that his firearm did not have the magazine or that the magazine could not be seen. The Judge found that it was “farcical to suggest” that the appellant was there for any purpose other than hunting. Consequently, it was found the appellant failed to rebut the presumption and so he was convicted of the offence.5
3 Stanko, above n 1, at [2]-[3].
4 At [39].
[7] The Judge found the lack of any evidence that any animal was actually hunted and killed meant the offending was at the lower end of culpability. It was ordered that the appellant forfeit his firearm as well as the hunting equipment that had been located.6 He fined Mr Stanko $500 and ordered that he pay costs of $130.
[8]The appellant advances three grounds of appeal from this decision:
(a)That the prosecution did not prove beyond reasonable doubt that “wild animals are usually present” in the area where the appellant was found, which was a necessary element of the offence.
(b)That the Judge had erred in concluding that the appellant had not rebutted the presumption in s 38 of the Wild Animal Control Act 1977.
(c)That the prosecution did not prove beyond reasonable doubt that the defendant was on DOC land which was also a necessary element of the offence.
Relevant law
Approach to appeal
[9] An appeal against conviction is governed by the Criminal Procedure Act 2011 (CPA). Section 232(2)(b) and subs (c) provide that an appeal against conviction must be allowed if the Judge in a Judge alone trial erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any other reason. Section 232(4) defines miscarriage of justice as follows:
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[10] Appeals under s 232(2)(b) are conducted by way of rehearing with an onus on the appellant to show that an error has been made.7 In the appellate court’s reassessment of the evidence, “customary caution” must be exercised to reflect the trial judge’s advantage in hearing the evidence in the first instance.8 If the appellate court comes to a different view than the trial judge on the evidence, the appeal must be allowed.9
Wild Animal Control Act
[11]Section 8(2) of the Wild Animal Control Act 1977 provides:
8 Hunting or killing of wild animals
…..
(2) Except as provided in section 16, and section 56 of the Agricultural Pests Destruction Act 1967, nothing in subsection (1) shall authorise any person to hunt or kill or have in his possession any wild animal on any land, or discharge a firearm into or over or across any land, without the express authority of the owner or occupier of that land. Every person commits an offence against this Act who hunts or kills or has in his possession any wild animal on any land, or discharges a firearm into or over or across any land, without the express authority of the owner or occupier of that land.
[12]Additionally, s 38(1) provides:
38 Presumptions and obligations in connection with hunting and killing
(1)In any prosecution for an offence against this Act, proof that any person found in any area where wild animals are usually present had with him or under his control any poison, snare, net, trap, or firearm, or any vessel, vehicle, or aircraft so adapted or equipped as to be capable of being used for hunting or killing any wild animal, or any dog or weapon that could be used for the purpose of hunting or killing any wild animal, shall be evidence from which the court shall presume, until the contrary is proved, that the person was hunting or killing wild animals in the area.
7 Sena v Police [2019] NZSC 55 at [28] and [38]–[40] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ 768.
8 At [38]–[40].
[13] In Velenski v Conservator of Forests Quilliam J stated the Wild Animal Control Act was intended to “cast the net very widely in an endeavour to control any tendency towards poaching.”10
First ground: Area where wild animals are usually present
[14] Mr Ruane for the appellant argued that the prosecution failed to prove that the area in which the appellant was found was an area where wild animals were usually present as contemplated by s 38(1). That was necessary for s 38(1) to operate to deem the appellant as a person who was hunting or killing wild animals in the area unless the contrary was proved.
[15] Mr Ruane’s principal point is that the evidence presented by the prosecution did not establish that the particular part of Mr Keung’s land where the appellant was found was an area where wild animals were usually present. Mr Keung had given evidence that there were wild animals on his property, including red fallow deer, blue boar, trophy pigs and goats. He had also given evidence that he sold tourism at the lodge on his property, and that he had previously had problems with hunters on the property. But this evidence was not sufficient to reach the threshold contemplated by s 38. That was particularly so given that he had given evidence that his farm was still a fully functioning farm, and that his farm animals were farmed on the “front block” of his property, which was the area where the appellant was found.
[16] I accept the submissions of Ms Goodison, however, that Mr Ruane’s argument involves an unduly narrow approach to the concept of “area” contemplated by s 38. The section should be given a broad and purposive interpretation. Given that the purpose of the provisions is to address issues associated with hunting for wild animals without a licence, and given the type of New Zealand terrain over which such activities can take place, there is no need for a narrow identification of the relevant area for the purposes of the deeming provision. The requirement that animals “are usually present” in an area cannot contemplate a more particular area where such animals are plentiful or obvious. The very art of hunting involves locating wild animals in remote locations often hidden within the terrain. It contemplates areas where wild animals
are usually present somewhere within that terrain. That includes all places that are part of a wider area where such animals are known to roam.
[17] In the present case the evidence was clear that Mr Keung’s farm was a place where wild animals were usually present, and there was evidence of the particular type of animals in question. Not only did Mr Keung explain this, and list the wild animals found there, but the place where the appellant was found is immediately adjacent to the DOC area known as the “South Kaikoura Bow Hunting Area” where hunting is prohibited. The fact that the farm operated in this area did not mean that the wild animals did not go there. It is plain that, in the context of hunting, this was part of a general area where wild animals were usually present.
[18] I agree with the District Court Judge that this element was satisfied, and that s 38 was engaged for this reason. This ground of appeal is dismissed.
Second ground: Hunting purpose rebutted
[19] Mr Ruane argued that the District Court Judge had erred in his assessment of the appellant’s evidence that he was not engaged in hunting. He said he had walked up to the bench to have his lunch and watch the view, and he only had his firearm with him because it was safer for him to do so rather than leaving it in his car.
[20] I accept the conclusion of the District Court Judge that it was “farcical” to suggest that Mr Stanko was where he was for any other purpose than hunting.11 He was found in camouflaged hunting gear carrying a hunting rifle equipped with a suppressor at the end of the barrel. The bolt was in the rifle, it had a telescopic sight, and the District Court Judge was satisfied that the magazine with ammunition was also in the rifle. He had a hunting belt, a pouch and a range finder. He also had a large knife, described as a boning or skinning knife, and a rope and pulley used for hanging kill. There is also the feature that when the appellant was first seen by Mr Keung he ran off and was pursued by him. When Mr Keung caught up with the appellant he was sitting on a bench in hunting gear holding the rifle and associated hunting gear. He
then ran off again. His explanation that he was merely there to eat lunch and that he had walked up there because of the view is, indeed, farcical.
[21]This ground of appeal is dismissed.
Third ground: Proof of charge in relation to DOC land
[22] Mr Ruane’s final argument is the prosecution had failed to provide the evidence of the second charge in relation to DOC land. It was necessary for the prosecution to prove that the appellant was on the land without the occupiers permission. The prosecution had not proved that the appellant was ever on any DOC land — it had only proved he had been on Mr Keung’s land.
[23] This argument raises a separate issue from that relating to the meaning of the word “area” in s 38(1). Under s 8 the prosecution must prove that a person is hunting on “… any land, without the express authority of the owner or occupier of that land”. The deeming provision in s 38(1) creates a presumption in relation to activities to be treated as hunting. But the prosecution must separately prove the person was on particular land without express authority.
[24] In the present case the appellant was convicted of two charges, one of hunting on Mr Keung’s land, and the other for hunting on DOC’s land. I accept Mr Ruane’s argument that the prosecution needed to prove that the appellant had actually been on DOC land without DOC’s permission to be convicted of a separate offence for that conduct.
[25] The District Court Judge did not directly address that issue. The Judge proceeded on the basis that the prosecution had proved the appellant had been on Mr Keung’s land “… and no doubt was at times on DOC property”.12 There was no specific evidence about the boundaries between Mr Keung’s land and the DOC land. Mr Ruane took me to one of the photographs which identified a relevant area of DOC land, being the South Kaikoura Bow Hunting Area referred to above. He pointed out that the relevant areas that had been referred to in evidence — the area where the
appellant was first seen, the area where he was said to have run, and the bench where he was found were all outside this area. Further he pointed out that the place where the appellant’s vehicle was parked would have more naturally involved the appellant walking along a track to the side of the land identified as DOC land which led up to the bench seat area, and then along to Mr Keung’s property. In those circumstances the prosecution had failed to prove that the appellant had ever actually been on DOC land.
[26] I accept these submissions, and did not understand Ms Goodison to have an answer to them. It may be that this issue was not a live one at trial, and that everyone proceeded on the basis that the bench area was public land administered by DOC. But there was no clear evidence to that effect. The prosecution needed more definitive evidence of the status of the land in question. In any event, I consider there is a degree of artificiality in the appellant being convicted for two separate offences for his conduct. The prosecution proved that the appellant had engaged in a breach of the Act by hunting on land without permission. But this was really a single offence. It is artificial to treat it as two separate offences. He has been appropriately convicted and sentenced for his offending. It is also for this reason, however, that the appropriate outcome when accepting this argument is to set aside the conviction resulting from CRN 22009013502 for hunting a wild animal on Department of Conservation or public land leaving the conviction under CRN 22009013501 for hunting on Mr Keung’s land. The sentence imposed by the District Court for the offence should remain unchanged.
[27] For these reasons the appeal is allowed in part and the conviction for CRN 22009013502 is set aside, but the conviction and sentence imposed by the District Court Judge on the remaining charge remains.
Cooke J
Solicitors:
Te Pōhue Chambers for Appellant Crown Solicitor, Nelson for Respondent
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