Cowlishaw v R [2013] NZCA 240 (18 June 2013)

Last Updated: 26 June 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA88/2013 [2013] NZCA 240
BETWEEN	BARRY COWLISHAW Applicant
AND	THE QUEEN Respondent
CA90/2013
BETWEEN	LYNDSAY MONK Applicant
AND	THE QUEEN Respondent

Hearing:	10 June 2013
Court:	Arnold, Ellen France and Harrison J
Counsel:	B Cowlishaw for himself and Applicant L Monk M Downs for Respondent
Judgment:	18 June 2013 at 10.30 am

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] Barry Cowlishaw and Lyndsay Monk apply for special leave to appeal to this Court against their convictions in the District Court on a charge that between January and July 2009 they had, intentionally and without claim of right, destroyed ecological reserve vegetation, the property of the Department of Conservation, having no interest in that property.^[1]

Background

[2] It was undisputed at trial in the District Court that Messrs Cowlishaw and Monk created about three kilometres of tracks through a 820 hectare reserve near Whatipu, at the coastal fringe of the Waitakere Ranges. They cut native vegetation at 22 separate locations in the reserve and carried out significant construction work to make the tracks. The land was classified as a scientific reserve under the Reserves Act 1977; the Auckland Regional Council (the ARC) was appointed to control and administer it for scientific purposes. The reserve is an area of significant ecological importance because it provides New Zealand’s best example of rapid recent coastal sand aggradation. The area was deliberately protected from significant public access because of its ecological importance.
[3] Messrs Cowlishaw and Monk believed what they were doing was morally right because they regarded the ARC as failing in its duty to maintain the reserve. In particular, they were concerned that the ARC had failed to remove exotic fauna from the area.
[4] The Crown laid a charge of intentional destruction of property under the Crimes Act 1961 against both applicants who pleaded not guilty and represented themselves at a seven day trial. Judge Mather found the charge proved against each in a careful and comprehensive decision delivered on 7 October 2011.^[2] Each was convicted and discharged and ordered to pay reparation of $500.
[5] Allan J dismissed appeals against conviction in a similarly careful and comprehensive judgment delivered in the High Court on 5 June 2012.^[3] He dismissed applications for leave to appeal to this Court on 28 November 2012.^[4] Both men now apply for special leave to appeal.

Decision

[6] The criteria for granting leave are well settled.^[5] Messrs Cowlishaw and Monk must satisfy a high threshold if they are to obtain leave to pursue a second right of appeal. In summary the applicants must show: (a) the existence of an arguable question of law; which (b) by reason of its general or public importance or for any other reason ought; (c) to be submitted to this Court for decision. The Crown, represented by Mr Downs, opposes the application.
[7] The applicants have filed a memorandum identifying what they say are arguable questions of law as follows:

1. The Appellants interests in properties
2. The Appellants intent in relationship to interests
3. The Appellants claims of rights relative to interests
4. The Courts acceptance in relationship to ownership of properties
5. The Appellants contest what the Court constitutes as being ecological reserve vegetation
6. The Appellants contend that the Court erred in not addressing the actual charge and the Prosecution failed to prove the case as charged.

[8] In terms of the elements of the offence, both lower courts made findings of fact that each man caused intentional damage to or destruction of property by cutting down vegetation and cutting tracks in the reserve. In relation to this composite element, Mr Cowlishaw suggested that there was no evidence that the two men had damaged or destroyed native fauna. However, Judge Mather expressly found as a fact to the contrary, and that finding was upheld on appeal by Allan J.
[9] Mr Cowlishaw also submitted that his overriding intention was to protect native fauna and create a track to facilitate public access to the reserve. But, as Mr Downs submits, that is an argument about motivation. It must not be confused with the applicants’ undisputed intention to destroy the property that was impeding access to the reserve. That factor was decisive.
[10] Mr Cowlishaw also advanced arguments directed towards the two elements which the Crown was required to negate. One was under the apparent umbrella of a claim of right. It was that the ARC was failing to prevent exotic vegetation – principally gorse – from overwhelming the native fauna, justifying the applicants’ intervention. But that defence cannot give rise to a question of law in view of the admissions made by both men, reflected in Allan J’s conclusion that:

[56] I accept Mr Hamlin’s submission that the appellants were clearly aware that the land (and the flora on it) belonged to, or was administered by, a public authority. They were indifferent as to whether that was the Crown, the Waitakere City Council or the ARC. Mr Cowlishaw knew that it was likely that he required permission in order to carry out any works, but did not seek it, partly because he was uncertain as to whether it would be granted, and partly because he considered that the authorities had neglected their statutory obligations under the Act.

[57] I accept, as did Judge Mather, that the appellants believed what they were doing was morally right, but the Judge’s finding that they had no belief in their legal justification was plainly correct. To the extent that they turned their minds to legal rights at all, the appellants correctly considered that they were entitled to access to the Reserve. They did not turn their minds at the time to the question of whether they were legally justified in undertaking their activities within the Reserve. Their reliance on a claim of right arose only following apprehension, when they undertook some legal research.

[11] The other relevant element is whether as a matter of law it is arguable that the Crown had failed to establish that the applicants had no interest in the damaged or destroyed property by virtue of their status as ratepayers or members of the public. Allan J considered and rejected such an argument as follows:

[38] The respondent was obliged to establish as part of its case under s 269(2)(a) of the Crimes Act, that the appellants had “no interest” in the property alleged to have been destroyed by their activities. The Reserve is owned by the Crown and administered by the Department of Conservation under the Reserves Act. In 2002, the Department formally transferred the administration of the Reserve to the ARC. More recently still, that responsibility has passed to the Auckland Council.

[39] The appellants contend that, as residents or ratepayers of the Auckland Council, they have a sufficient “interest” in the Reserve and the flora growing within it to constitute a defence to the charge under s 269(2)(a). The term “interest”, as used in s 269, is not defined.

...

[46] Here, the appellants can demonstrate nothing more than an “interest” shared with every other member of the public, or at least every other ratepaying citizen. Moreover, to hold that the appellants had a sufficient interest to constitute a defence in this case, would be to emasculate s 42 of the Reserves Act.

[47] Judge Mather took this point. He said:

[67] The Reserves Act prevents the public from doing a number of things on reserves including scientific reserves. In particular under s 42 it prohibits the cutting or destroying of trees and bush, except in accordance with a permit. The defendants had no permit. It is possible to get a “concession”. This is defined in s 2 as a lease, licence, permit or easement, some of which create an interest in the land. Again the defendants had no such concession.

[68] If the public had a general interest in the land or flora on a scientific reserve, similar to a right of access, specifically allowing them to cut or destroy trees, bush or plants, there would be no need to provide for concessions. The prohibitions under s 42 further confirm no such right. For present purposes I find that the defendants had no interest in the property they are charged with destroying.

[12] We respectfully agree with this analysis. We are not satisfied that Messrs Cowlishaw and Monk are able to identify an arguable question of law arising from their convictions, let alone one which is of general or public importance.

Result

[13] The applications for leave to appeal are dismissed.
[14] We add our endorsement of Judge Mather’s reference to the alternative remedy available to the Crown or the ARC of charging the applicants with an offence under s 94 of the Reserves Act instead of the crime of intentional destruction of property. While the evidence satisfied the statutory criteria for proving the latter offence, we are satisfied that a charge under the Reserves Act would have been more appropriate to the circumstances.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Crimes Act 1961, s 269(2)(a).

^[2] Police v Monk DC Waitakere CRI-2009-090-8115, 7 October 2011.

^[3] Cowlishaw v Police [2012] NZHC 1244.

^[4] Cowlishaw v Police [2012] NZHC 3183.

^[5] Summary Proceedings Act 1957, s 144(3).