Warren v Department of Conservation [2012] NZHC 1017 (14 May 2012)

Last Updated: 21 May 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000096 [2012] NZHC 1017

BETWEEN PETER WARREN (AKA PETER TE ONEONE)

Appellant

AND DEPARTMENT OF CONSERVATION Respondent

Hearing: 14 May 2012

Counsel: No appearance for Appellant

J J Rhodes and M J Bodie for Respondent

Judgment: 14 May 2012

_{ORAL JUDGMENT OF COLLINS J}

[1] The appellant was convicted in the District Court at Opotiki on 28 July 2011 on the following charges:

(1) Two charges of obstructing an officer contrary to s 41 of the

Conservation Act 1987; and

(2) Four charges of breaching regs 6 and 8 of the Whitebait Fishing

Regulations 1994.

[2] The offences occurred in August and October 2010. The appellant was sentenced on 6 October 2011 to a period of six months’ imprisonment on the two charges of obstructing the conservation officers. A further two months’ imprisonment was added by way of substitution for cancelled community service

_{sentences, which the appellant had failed to perform.}1 _{The four charges of breaching}

1 This addition to the appellant’s sentence was imposed pursuant to s 68 Sentencing Act 2002 at

_{the request of the Probation Service.}

WARREN V DEPARTMENT OF CONSERVATION HC ROT CRI-2011-463-000096 [14 May 2012]

the Whitebait Fishing Regulations could only be punished by way of a fine. The appellant was unable to pay any fine. The District Court Judge decided therefore to convict and discharge the appellant on those four charges. The District Court Judge also directed that the appellant’s whitebaiting equipment be forfeited to the Crown. That order was made pursuant to s 46(5)(a) of the Conservation Act 1987.

[3] The appellant has now completed the prison sentence which was imposed by the District Court.

Appeal out of time

[4] The appellant filed his notice of appeal on 14 December 2011. He has sought leave to appeal out time. The grounds for seeking leave are that according to the appellant the District Court file was only released to him on 21 November 2011.

Grounds of appeal

[5] The written submissions filed by the appellant identify the following key grounds of appeal:

(1) That the District Court Judge failed to consider s 26ZH of the

Conservation Act 1987.

(2) That the District Court Judge failed to consider s 4 of the

Conservation Act 1987.

(3) That the sentence imposed was manifestly excessive.

Prosecution of the appeal

[6] The appeal was set down for hearing in this Court on 27 February 2012. On that day Duffy J granted an adjournment. Her Honour was satisfied that the appellant had put forward a “genuine excuse” for not being present in Court that day. She warned, however, that a further application for an adjournment was not likely to

be granted. A new hearing date was set for 8 March 2012. On that date Andrews J granted a further adjournment. She did so because the appellant’s daughter was involved in serious matters before the Gisborne District Court. Her Honour also warned the appellant that a further application for an adjournment was unlikely to be tolerated. A new appeal date was set for 14 May 2012.

[7] Detailed submissions in support of the appeal were filed on 30 April 2012.

[8] This morning the Court received an email from the appellant’s “McKenzie Friend”, a Mr Selwyn, who described himself as being the “advocate for the appellant”. That email says that yesterday the appellant told Mr Selwyn that he had to appear in the Opotiki District Court today. Mr Selwyn said that a further adjournment would be necessary. Court inquiries show, however, that the appellant is not due to appear in the Opotiki District Court until 17 May 2012.

[9] When the appeal was called today there was no appearance by the appellant. There was also no appearance by Mr Selwyn.

Hearing process for determining the appeal

[10] The starting point in relation to the procedure for hearing and determining an appeal is s 121 of the Summary Proceedings Act 1957 which provides:

The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit ... .

This provision gives effect to the general right of appeal found in s 25(h) of the

New Zealand Bill of Rights Act 1990.

[11] Section 133 of the Summary Proceedings Act 1957 concerns the dismissal of an appeal for want of prosecution. It provides:

If an appellant does not appear at the hearing of the appeal and, if he is in custody, he has not presented any case or argument in writing as provided in section 130 of this Act, or if an appellant, having appeared at the hearing, does not prosecute his appeal, the High Court may, if it thinks fit, dismiss the appeal for non-prosecution.

[12] Section 133 of the Summary Proceedings Act 1957 does not fit the circumstances of this case. The appellant was, but is no longer in custody. He has presented written submissions but he has never appeared to prosecute his appeal on the three occasions his appeal has been set down for hearing.

[13] In these circumstances I proposed to hear and determine the appeal in the absence of the appellant.2 In my judgement it is appropriate to deal with the appeal without the appellant being present because he has on two previous occasions been clearly warned that further adjournments would be unlikely to be granted and because his reasons for not being present at Court today are far from convincing.

Leave to appeal out of time

[14] I propose to give the appellant the benefit of the doubt and accept that he has legitimate reasons for filing his notice of appeal out of time. His apparent inability to access relevant court records should not count against him.

The evidence

[15] On 31 August 2010 officers of the Department of Conservation found the appellant whitebaiting at a location called Huntress Creek floodgate near Opotiki. The appellant was using a set net. This net was approximately half a metre from the floodgate. The Whitebait Fishing Regulations 1994 prohibit fishing within 20 metres of a floodgate.

[16] The officers told the appellant that he was whitebaiting illegally and that he must remove his net. The appellant initially declined this request, saying that he was leaving in a short time. He did leave in a short time and took his set net with him.

[17] On 13 October 2010 Conservation officers again found the appellant using a whitebait net directly next to the floodgate. The officers told the appellant to stop whitebaiting and they attempted to seize the appellant’s set net. The appellant, who

_{by this stage was joined by another person, became abusive and aggressive. The}

2 Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153.

officers again attempted to seize the appellant’s whitebait set net. They retreated before they could remove the net when it became obvious that a physical altercation would occur if the Conservation officers continued to try and carry out their duties.

[18] On 21 October 2010 the appellant was again found whitebaiting at the Huntress Creek floodgate. This time he was using both a scoop net and a set net. The officers requested assistance from a police constable. The appellant was extremely abusive and intimidating throughout. Ultimately the appellant complied with requests made of him by the Conservation officers when the police officer present threatened to use pepper spray on the appellant.

First ground of appeal

[19] The appellant relies on s 26ZH of the Conservation Act 1987. That states:

26ZH Maori fishing rights unaffected by this Part

(1) Nothing in this Part of this Act shall affect any Maori fishing rights. (2) Subsection (1) does not apply to customary Maori fishing rights with

respect to freshwater fisheries within South Island fisheries waters,

in respect of which regulations have been made under section 48B, for so long as such regulations remain in force.

[20] Section 26ZH is within Part 5B of the Conservation Act 1987. The Whitebait Fishing Regulations 1994 are issued pursuant to s 48A of the Act which falls within the ambit of Part 6 of the Act. Thus, it would appear that s 26ZH does not apply to regulations issued pursuant to s 48A because those regulations are issued pursuant to a different part of the Act. In any event the appellant did not rely on customary fishing rights in the District Court.

[21] Section 67(8) of the Summary Proceedings Act 1957 provides that:

Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, subject to the provisions of section 17 of this Act, need not be negatived in the information, and, whether or not it is so negatived, no proof in relation to the matter shall be required on the part of the informant.

[22] In Te Weehi v Regional Fisheries Officer3 Williamson J held that s 88(2) of the Fisheries Act 1983 established an exemption in terms of s 67(8) of the Summary Proceedings Act 1957. It was held in that case that if the appellant could prove on the balance of probabilities that he possessed and was carrying out a Maori fishing right then he would be exempt from the prohibitions in the Act. In that case the appellant had produced extensive evidence and successfully proved the existence of a customary fishing right. His conviction for taking undersized paua was quashed. However, the conviction for behaving in a threatening manner towards a fisheries officer acting in the execution of his duty was upheld. The reason for that was because the fisheries officer believed on reasonable grounds that an offence had been committed and because the officer had no knowledge of the appellant’s customary right to collect paua. Similarly, in this case, even if s 26ZH of the Conservation Act

1987 applied it would need to be proved by the appellant on the balance of probabilities that he was acting pursuant to an established Maori fishing right. Even if he could do so it would not be a defence to the obstruction charges because the officers in this case were acting in the execution of their duties reasonably believing that the appellant’s nets had been used in breach of the Whitebait Fishing Regulations 1994.

[23] In the present case the appellant never contended that he was exercising a customary fishing right and called no evidence to support the existence of any such right. Instead, the appellant’s defence in the District Court was directed towards ownership of the land in question. That is not a defence to breaching the Whitebait Fishing Regulations 1994 because those regulations apply to all waters and places throughout New Zealand with the exception of waters covered by the Whitebait Fishing (West Coast) Regulations 1994.

Second ground of appeal

[24] The appellant’s submissions also rely on s 4 of the Conservation Act 1987

which provides that:

This Act shall be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi.

[25] In McRitchie v Taranaki Fish and Game Council4 Thomas J, in a dissenting judgment, noted that the Conservation Act needs to be administered as well as interpreted so as to give effect to the principles of the Treaty of Waitangi. This would require the Courts to interpret the Act in a way that ensures that Maori enjoy full, exclusive and undisturbed tradition of their fisheries.

[26] The appellant has not attempted to establish that in this case he was whitebaiting pursuant to a customary Maori fishing right. Accordingly, there is no basis upon which this Court can now endeavour to give effect to s 4 of the Act in a way that would be of assistance to the appellant.

[27] In any event, as mentioned earlier, the two principal charges are those relating to the obstruction of the Department of Conservation officers. Even if the appellant had been able to rely upon s 4 of the Conservation Act it is likely that this Court would also have held that:

(1) the officers believed on reasonable grounds that the appellant had committed offences against the Whitebait Fishing Regulations; and

(2) the officers were not aware of any claim the appellant may have had to customary rights to whitebait.

Appeal against sentence

[28] Had the appellant not served his sentence I may have been persuaded to give serious consideration to reducing his term of imprisonment. However, as the appellant has served his sentence there is little point in me now quashing the original sentence and substituting that sentence with a shorter sentence. I can also see no merit to the appellant’s complaints that the District Court lacked jurisdiction to:

(1) cancel the community service sentences and replace those sentences

with an additional two months’ term of imprisonment;

(2) confiscate his whitebaiting equipment pursuant to s 46(5)(a) of the

Conservation Act 1987.

Conclusion

[29] Having considered the merits of the appellant’s appeal, I dismiss his appeal against conviction in relation to all six offences and his appeal against sentence in relation to the two offences that he faced based upon s 41(a) of the Conservation Act

_1987.

Solicitors:

Crown Solicitor, Tauranga for Respondent

D B Collins J