RICKARD v DEPARTMENT OF CONSERVATION [2020] NZCA 340

RICKARD v DEPARTMENT OF CONSERVATION [2020] NZCA 340 [12 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA202/2020[2020] NZCA 340BETWEEN ALLAN RAMON RICKARDApplicantAND DEPARTMENT OF CONSERVATIONRespondentCourt: Clifford, Woolford and Dunningham JJCounsel: A S P Tobeck for ApplicantJ M Irwin for RespondentJudgment:(On the papers)12 August 2020 at 10.30 amJUDGMENT OF THE COURTThe application for leave for a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)Introduction[1] Southland's Waitutu River drains Lake Poteriteri through native lowland forestto the Tasman Sea. It comprises a portion of the Fiordland National Park (FNP).On 31 October 2017, Allan Ramon Rickard, of Cromwell, was fishing with nets forwhitebait with two associates near the mouth of the Waitutu River. They wereprosecuted by the Department of Conservation on the basis that they were fishingwithin the boundary of the FNP, this being a prohibited activity. Mr Rickard comesbefore this Court making an application for leave for a second appeal.Factual and procedural background[2] Mr Rickard and his co-offenders faced two charges under the National ParksAct 1980 (NPA), alleging they:(a) without being authorised by the Minister of Conservation or by anybylaw made under the NPA, did take by fishing native animals, namelywhitebait, in the FNP;1 and(b) without being authorised by the Minister of Conservation, were inpossession of a fishing net in the FNP.2[3] In the Invercargill District Court, the three defendants were found guilty byJudge Harrop of both charges and were convicted.3 The defendants were fined.4[4] Mr Rickard appealed his conviction to the High Court in Invercargill beforeOsborne J, on the basis that the District Court Judge erred in holding the land uponwhich he was fishing and in possession of a fishing net (the fishing spot) was withinthe FNP.5 He also appealed his sentence on the basis that the fine of $5,625 wasmanifestly excessive. Whilst the Judge found the fishing spot to be on the foreshorefor the purposes of s 7 of the NPA, that foreshore was inland and upstream of theMean High Water Springs (MHWS) line, and thus within the FNP.6 Accordingly,the Judge dismissed the appeal in its entirety.7Application for leave for second appeal[5] Section 237(2) of the Criminal Procedure Act 2011 (CPA) provides thatthis Court must not grant leave unless it is satisfied that the appeal involves a matterof general or public importance or that a miscarriage of justice may have occurred ormay occur unless the appeal is heard. The statutory test sets a high threshold.81 National Parks Act 1980, s 60(1)(h).2 Section 60(4)(a).3 Department of Conservation v Egerton [2019] NZDC 19142 [Verdicts judgment].4 Department of Conservation v Egerton [2019] NZDC 23526 [Sentencing notes].5 Rickard v Department of Conservation [2020] NZHC 579.6 At [107]–[108].7 At [117] and [132].8 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.[6] When dealing with leave-only applications it is appropriate to give reasons"briefly and in general terms", as envisaged by r 5I of the Court of Appeal (Criminal)Rules 2001.9[7] The primary issues for Mr Rickard in the proposed appeal are:(a) When the Waitutu lands were made a conservation area, was the fishingspot included in the lands made a conservation area?(b) Was the fishing spot subsequently validly incorporated into the FNP?[8] These two issues reflect the fact that adding the fishing spot to the FNP was atwo-step process: first, the land became a conservation area, and second, it was addedto the FNP.[9] On 1 July 1999, the bed of the Waitutu River was part of a 46,507.2 hectarearea declared by the Minister of Conservation to be a conservation area underthe Conservation Act 1987. Relevantly, the area included area "A" as marked on aCertified Survey Office Plan (SO11763). According to SO11763, the seawardboundary of area "A" crossed the bed of the Waitutu River at the MHWS.On 20 September 1999, the same area marked "A" on SO11763 was added to the FNP.[10] Mr Rickard has consistently claimed that the fishing spot was on the foreshore,which is defined in s 2 of the NPA as meaning any land covered and uncovered by theflow and ebb of the tide at mean spring tides. Mr Rickard claims that, as the fishingspot was on the foreshore, s 7(6) of the NPA required the Department of Conservationto obtain the consent of the Minister of Transport and the Regional Council to add theforeshore to the FNP. This did not occur. Mr Rickard therefore claims that the fishingspot was never within the FNP.[11] In the High Court, the Judge accepted that the fishing spot could "quitepossibly" have been covered and uncovered by the flow and ebb of the tide at mean9 At [46].spring tides, but it did not matter.10 Section 7(6) of the NPA, which contains theforeshore consent requirements, does not apply when adding foreshore that wasalready a conservation area to a national park. Section 7(1)(a)(i) applied and s 7(1)(c)did not. Section 7(6) only applies where the foreshore was added through the s 7(1)(c)process, namely, where the foreshore is not already a conservation area. Therefore,s 7(6) did not apply in this case.11 The land, including the fishing spot on the foreshore,was all validly added to the FNP.[12] We see no reason to doubt the interpretation of the NPA adopted inthe High Court. A miscarriage of justice has not occurred and will not occur.Mr Rickard was convicted at a Judge-alone trial. His conviction was upheld on thebasis of unchallenged evidence in the High Court, which established the location ofthe MHWS line. All issues were canvassed at length in both Courts.[13] The appeal does not involve a matter of general or public importance.Mr Rickard was fishing with prohibited equipment in a national park, an area set asideto be "preserved as far as possible in [its] natural state".12 This is not a matterwarranting a second appeal.[14] We decline Mr Rickard's application for leave for a second appeal.Solicitors:Menzies Marshall Law, Winton for ApplicantCrown Law Office, Wellington for Respondent10 Rickard v Department of Conservation, above n 5, at [49] and [103].11 At [112]–[113].12 National Parks Act, s 4(2)(a).