RICKARD v DEPARTMENT OF CONSERVATION [2020] NZHC 579

RICKARD v DEPARTMENT OF CONSERVATION [2020] NZHC 579 [20 March 2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-000032[2020] NZHC 579BETWEEN ALLAN RAMON RICKARDAppellantAND DEPARTMENT OF CONSERVATIONRespondentHearing: 2 March 2020Appearances: A S P Tobeck for AppellantP D Williams and S N McKenzie for RespondentJudgment: 20 March 2020JUDGMENT OF OSBORNE J(against conviction and sentence)This judgment was delivered by me on 20 March 2020 at 2.15 pmRegistrar/Deputy RegistrarDate:[1] The Waitutu River flows through Fiordland National Park (FNP) beforeentering the sea off Southland. On 31 October 2017 Allan Ramon Rickard, theappellant, was with two friends fishing for whitebait, using nets, near the mouth of theWaitutu. Mr Rickard and his friends were apprehended by officers of the Departmentof Conservation upon the basis that they were fishing inside the boundary of FNP.The charges and convictions[2] Two charging documents were filed against each of the three defendants,alleging that they:(a) without being authorised by the Minister of Conservation or by anybylaw made under the National Parks Act 1980 (NP Act), did take byfishing native animals, namely whitebait in FNP (laid under s 60(1)(h)of the NP Act); and(b) without being authorised by the Minister of Conservation, were inpossession of a fishing net in FNP (laid under s 60(4)(a) of the NP Act).[3] Following a defended trial, each defendant was found guilty of both chargesand convicted.1[4] The offences carried maximum penalties of two years' imprisonment or a$100,000 fine, or both. The defendants were each ordered to pay fines of $5,625,together with a $1,150 share of the Department's costs and court costs of $130 each.2The appeal[5] Mr Rickard appeals against both the convictions and the fine.The Waitutu River and its surrounds[6] The bed of the Waitutu River, part of the Wairaurahiri River and their surrounds(comprising 46,507.2 ha) were on 1 July 1999 declared by the Minister of1 Department of Conservation v Egerton [2019] NZDC 19142 ("Verdicts judgment").2 Department of Conservation v Egerton [2019] NZDC 23526 ("Sentencing Remarks").Conservation, in a Land Notice, to be conservation area under the Conservation Act1987 (as shown as "A" on a certified Survey Office plan (SO11763)). On 20September 1999, the same area was added (with others) to FNP by Order in Council(under the NP Act).What is not in issue[7] The defendants accepted that they were fishing for whitebait just upstream ofthe Waitutu River mouth using nets set in the water and that they were each inpossession of their nets. The defendants accepted that whitebait are native fish andthereby native animals for the purposes of the charge laid under s 60(1)(h). They alsoaccepted that, provided the area where they were fishing was within FNP, then the NPAct applies alongside the Whitebait Fishing Regulations 1994, so that the Minister ofConservation's authority was required for the defendants to fish. The defendants didnot claim that they had such authority. Section 60(1)(h) alternatively contemplatesauthorisation under a bylaw made under the NP Act. The Fiordland National ParkBylaws 1981 do not provide for any fishing in the park.3[8] David Manson, a registered professional surveyor called to give evidence bythe Department, gave unchallenged evidence as to the spots at which the threedefendants had been fishing. He produced (as exhibit 4) an aerial photograph on whichhe noted the GPS positions of the three whitebait nets (schedule A to this judgment).4A straight red line (shown on Schedule A as a bold black line) demonstrated what MrManson stated was the Mean High Water Springs (MHWS).[9] The Department accepted that the defendants were fishing in accordance withthe Whitebait Fishing Regulations 1994 – the case against the defendants turned noton how they were fishing but where they were fishing.53 These matters of common ground recorded in the Verdicts judgment at [7].4 Schedule A is a black and white reproduction of a colour photograph. The three black dots arethose identified in the Verdicts judgment as blue dots on the actual exhibit. The straight black lineon Schedule A was red on the actual exhibit.5 As recorded in the Verdicts judgment at [8].Issues on appealConviction[10] Mr Rickard's appeal against conviction is upon the basis that the Judge erredin holding that the land upon which he was fishing (and in possession of a fishing net)("the fishing spot") was within FNP. The issues in relation to that finding are:(a) Did the Department establish that the fishing spot was on "foreshore"in terms of the NP Act?(b) Do provisions of the Resource Management Act 1991 (RMA) inrelation to coastal marine areas constitute the fishing spot as"foreshore" which does not lawfully become national park?(c) if the fishing spot was arguably on "foreshore", then was the foreshorelawfully added to FNP?(d) In relation to any questions arising as to the legal effectiveness of stepsto place the area including the fishing spot within the FNP, do thestatutory presumptions under ss 16 and/or 69 of the NP Act or thecommon law presumption of regularity apply?6(e) Given that the Waitutu lands (including the Waitutu River) were as afirst step declared conservation areas under the Conservation Act, doess 7(1)(a)(i) of the NP Act operate so as to render effective the Order inCouncil by which the area including the fishing spot was declared to beadded to FNP irrespective of whether that area was "foreshore" withinthe meaning of the NP Act.6 The common law presumption of regularity was earlier expressed in the Latin maxim omniapraesumuntur rite et solenniter esse acta donec probetur in contrarium: Broom's Legal Maxims,pp 665–673.Sentence[11] Mr Rickard's appeal against sentence is on the basis that the fine of $5,625 wasmanifestly excessive.The judgmentWhere is the boundary of FNP at the Waitutu River mouth?[12] Judge Harrop first determined whether the defendants' fishing spots werewithin FNP.7 His Honour found that the park boundary at the Waitutu River mouth isshown by two certified Survey Office plans including SO11763 in relation to landsand roads respectively.8 His Honour referred in particular to evidence of the surveyor,Mr Manson, explaining the significance of the areas described on the plans:9In particular, in relation to SO 11763 he said that the coastal boundary of theFNP was the Mean Highwater Springs ("MHWS"). He pointed out that thisline both visually crossed the mouth of the Waitutu River and that this wasconfirmed by words on the plan.[13] In the legend on SO11763 there is a heading which reads: "SCHEDULE OFLAND TO BE DECLARED CONSERVATION AREA".[14] Directly under that heading, appear four area descriptions. The Waitutu River,part of the Wairaurahiri River, and named State Forest areas are recorded as the firstarea "A".[15] Below the listing of areas A – D in the legend there appears this addition:AS WELL AS THE WAITUTU RVR & PART WAIRAURAHIRI RVR ALLOTHER RIVERS ARE INCLUDED IN AREA AMEAN HIGH WATER SPRINGS (MHWS) CROSSES ALL RIVERS;STREAMS; INLETS AND ESTUARIES UNLESS OTHERWISE SHOWN.7 Verdicts judgment, above n 1, at [13]–[23].8 SO11763 (1991) and SO12308 (1998). Verdicts judgment, above n 1, at [17].9 Verdicts judgment, above n 1, at [18].[16] Judge Harrop then referred to the various steps Mr Manson had taken todetermine where the MHWS line crossed the mouth of the Waitutu River. He acceptedMr Manson's unchallenged evidence as to where that was (as shown by the bold blackline on Schedule A).10 His Honour summarised Mr Manson's position:11In short, the effect of his evidence was that the covering and uncovering bythe flow and ebb of some tides occurring upstream of the MHWS line did notin any way derogate from his conclusion as to where that line was.[17] Colin Bishop, another witness for the Department, said that the three fishingspots (represented by the dots on exhibit 4), were at distances upstream of the MHWSline by approximately 9.6 m and 22 to 25 m. Mr Bishop's evidence was unchallengedand the Judge accepted it.12Were the fishing spots on "foreshore" and if so outside the FNP boundary?[18] The defendants' asserted that the fishing spots were on "foreshore" which hadnot been included in the land which was joined to FNP in 1999 or that, at the least, theDepartment had not proved beyond reasonable doubt that they were not on"foreshore".[19] Judge Harrop noted that the Waitutu lands were added to FNP in 1999. HisHonour then referred to the definitions of "foreshore" under the NP Act both in 1999and subsequently:13(a) In 1999, the definition (taken by virtue of s 2 of the NP Act from s 2Harbours Act 1950), read:"Tidal lands" or "foreshore" means such parts of the bed,shore, or banks of a tidal water as are covered and uncoveredby the flow and ebb of the tide at ordinary spring tides.(emphasis added)"Tidal lands" was in turn defined in s 2:10 Verdicts judgment, above n 1, at [21].11 Verdicts judgment, above n 1, at [21].12 Verdicts judgment, above n 1, at [22]–[23].13 Verdicts judgment, above n 1, at [25]–[26]. means any part of the sea or of a river within the ebb andflow of the tide at ordinary spring tide:(b) From 6 July 2010, the amended definition under the NP Act reads:Foreshore means any land covered and uncovered by theflow and ebb of the tide at mean spring tides (emphasis added)[20] The Judge recorded the acknowledgement of Mr Tobeck, for the defendants,there was not a material difference between the definitions in relation to the issues inthese proceedings.14[21] The Judge summarised the competing submissions:15(a) Mr Tobeck, relying on Mr Manson's evidence, noted that it would bequite possible that the fishing spots would be covered and uncoveredby the flow and ebb of mean spring tides and that when the tide comesin the water may flow past the red line.(b) Ms Williams, for the Department, submitted that the landward edge ofthe "foreshore" must by reason of the statutory definitions be seawardof the MHWS line (because the concept of both "ordinary spring tides"and "mean spring tides" is a reference to the average of all spring tidesat a particular location). Ms Williams contrasted that with MHWSwhich refers to the two spring high tides only (emphasis added). Thisled to the conclusion that the MHWS line must as a matter of logicalways be higher than the mean spring tide line.[22] His Honour, having found on the first issue that the defendants were fishingupstream from the MHWS line, found that they could not have been fishing on"foreshore" within the definitions of the NP Act. He found there to be no overlapbetween "foreshore" and "MHWS", with the foreshore being outside the boundary ofFNP.14 Verdicts judgment, above n 1, at [27].15 Verdicts judgment, above n 1, at [27].Were the defendants fishing within the coastal marine area[23] Section 2 of the RMA provides:coastal marine area means the foreshore, seabed, and coastal water, and theair space above the water—(a) of which the seaward boundary is the outer limits of the territorial sea:(b) of which the landward boundary is the line of mean high watersprings, except that where that line crosses a river, the landwardboundary at that point shall be whichever is the lesser of—(i) 1 kilometre upstream from the mouth of the river; or(ii) the point upstream that is calculated by multiplying the widthof the river mouth by 5[24] The defendants argued (alternatively) that the Waitutu lands constituted a"coastal marine area" within the meaning of the RMA. The Waitutu River was listedas such in Schedule 1 to Appendix 2 of the Regional Coastal Plan for Southland, dated5 November 1996 which pre-dated the (1999) joinder of the Waitutu lands to FNP. MrTobeck submitted that the Crown's title to the land around the fishing spots thereforewas and remains affected by its status as a coastal marine area.[25] Judge Harrop rejected the defendants' submissions in relation to the coastalmarine area. His Honour contrasted the issues concerning management of the beds oflakes and rivers with matters relating to the title or ownership of the beds of thoselakes and rivers. He found that neither the RMA nor the regional coastal plan affectthe land's status and its ownership by the Crown or the true boundary of FNP (asdetermined under the NP Act and the certified SO plans).16Were the Waitutu lands lawfully added to FNP in 1999?[26] The final, alternative submission for the defendants was that the Waitutu landswere not validly incorporated into FNP in 1999.[27] The Order in Council purportedly adding the Waitutu lands was expresslymade pursuant to s 7 of the NP Act, which provides:16 Verdicts judgment, above n 1, at [34]– [35]7 Constitution of other national parks and addition of land tonational parks(1) Subject to subsections (2) to (6), the Governor-General may from timeto time, by Order in Council made on the recommendation of theMinister,—(a) declare that any land of the Crown described in the order,being—(i) any conservation area; or(ii) [Repealed](iii) any land subject to the Tourist and Health ResortsControl Act 1908 or the Tourist Hotel CorporationAct 1974; or(iv) any reserve vested in Her Majesty subject to theReserves Act 1977; or(v) any land acquired by the Crown for national parkpurposes,—shall be a national park subject to this Act:(b) add any such land to any park:(c) declare that any foreshore described in the order shall be anational park or be added to any park:(d) assign a name to any new national park or change the nameof any existing national park.(2) The Minister shall not make any recommendation under subsection(1) except on the recommendation of the Authority made afterconsultation with the appropriate Board (if any).(2A) Before making a recommendation under subsection (1)(d), theMinister must refer the proposed name to the New ZealandGeographic Board Ngā Pou Taunaha o Aotearoa under section 27(2)or 30 of the New Zealand Geographic Board (Ngā Pou Taunaha oAotearoa) Act 2008, as the case may be.(3) [Repealed](4) No land subject to the Tourist and Health Resorts Control Act 1908 orthe Tourist Hotel Corporation Act 1974 shall be declared to be a parkor to be added to any park, except on the joint recommendation of theMinister and the Minister of Tourism.(5) [Repealed](6) No foreshore shall be declared to be a park or to be added to any park,except on the joint recommendation of the Minister and the Ministerof Transport, and, where the foreshore is under the control of aregional council under the Resource Management Act 1991, exceptwith the consent of that body.[28] Mr Tobeck, for the defendants, submitted that pursuant to s 7 of the NP Act –(a) to be added to a national park, the area of foreshore to be added(whether conservation area or otherwise):(i) had to be described in the Order in Council (s 7(1)(c));(ii) had to be the subject of a joint recommendation of the Ministersof Transport and Conservation (s 7(6)); and(iii) had to have been consented to by any regional council havingcontrol of that foreshore.17[29] Mr Tobeck submitted that the requirements of recommendation and consentunder s 7(6) had been met as the department had produced evidence neither of a jointrecommendation by the Minister of Transport nor of consent from the SouthlandRegional Council.[30] In relation to the power (under s 7(1)(c)) to declare foreshore to be added to apark, Mr Tobeck had submitted that the notice (of 27 July 1999) did not in fact intendto make any foreshore (or coastal marine area) conservation area. Mr Tobecksubmitted that the MHWS at the Waitutu River is 657.4 m upstream from the rivermouth.18[31] For the Department, Ms Williams submitted that the recommendations (ofMinisters) and consent (of a regional council) under s 7(6) were not required in relationto the Waitutu lands because they had previously been declared to be conservationareas (that is Crown land held under the Conservation Act for conservation purposes).17 Verdicts judgment, above n 1, at [40].18 The figure of 657.4 m is a calculation derived from Mr Manson having measured the WaitutuRiver mouth at 131.48 m. Applying the s 2 RMA definition of "coastal marine area", the landwardboundary of this coastal marine area would be 131.48 x 5, being 657.4 m upstream from the mouth.Ms Williams submitted that s 7(1)(a)(i) of the NP Act was the valid source of authorityunderlying the Order in Council by which the lands were added to FNP.[32] Ms Williams further submitted that no foreshore was added to FNP at theWaitutu river mouth because the foreshore there is entirely below the MHWS line (asshown on SO11763), being a straight line across the mouth of the river.[33] Judge Harrop accepted the Department's submissions and found that theWaitutu lands were validly added to FNP in 1999.19The operation of presumptions[34] Judge Harrop was referred to the statutory presumptions under the NP Act andthe common law presumption of regularity (omnia praesumuntur).20[35] Section 16(5) of the NP Act provides in relation to the certified copies of theplans of national parks in other areas:2116 Plans of national parks(5) Every plan of a national park or specially protected area, wildernessarea, or amenities area certified by a Chief Surveyor, and everycertified copy of any such plan shall, in the absence of proof to thecontrary, be sufficient evidence of the boundaries and area comprisingthat national park, specially protected area, wilderness area, oramenities area.[36] Section 69(2) of the NP Act provides in relation to proceedings for any offencesunder the Act:69 Presumptions relating to offences(2) In any proceedings for an offence under this Act or any bylaws madeunder this Act, it shall be presumed in the absence of proof to thecontrary, that all maps, plans, and copies of maps or plans appearingto be certified as true under the hand of a Chief Surveyor are so19 Verdicts judgment, above n 1, at [44]–[46].20 Above at [12](d)].21 NP Act, s 16(5).certified without production of the original records and without thepersonal attendance of those officers or proof of their signatures.[37] The Department invoked both these presumptions together with the commonlaw presumption of regularity ("omnia praesumuntur").22[38] Judge Harrop, when determining where the boundary of the FNP lies at theWaitutu River mouth, set out both the statutory presumptions.23 He then accepted, byreference to the process of certification of which a witness (David Griffin) had givenevidence, that the FNP boundary at the Waitutu River mouth is as shown on SO11763and SO12308.24[39] His Honour then applied the statutory presumptions again when rejecting thedefendants' contention that the fishing spots were in a coastal marine area and notwithin FNP, stating:25I do not accept that the definitions referred to by Mr Tobeck in the ResourceManagement Act and the Regional Coastal Plan for Southland have anybearing on the true boundary of the FNP which is determined under the NPAct itself and by the certified SO plans, assisted by Mr Manson's expertevidence. As I have already noted, DOC has the benefit of the presumptionsin ss 16(5) and 69(2) of the NP Act.Was the Department required to prove full mens rea?[40] In the District Court, the defendants submitted that the Department wasrequired to provide full mens rea and that the offences charged did not constitute publicwelfare regulatory offences which import strict liability.[41] Judge Harrop found by reference to authority that the defendants would beliable unless they could establish on the balance of probabilities an absence of fault.26[42] The defendants, on appeal, do not challenge this aspect of the District Courtjudgment.22 Above at [12], n 6.23 Verdicts judgment, above n 1, at [15]–[16].24 Verdicts judgment, above n 1, at [17].25 Verdicts judgment, above n 1, at [35].26 Verdicts judgment, above n 1, at [66]–[68].This appeal – the statutory groundsAppeal against conviction[43] Mr Rickard brings his appeal under s 232 Criminal Procedure Act 2011, uponthe basis that Judge Harrop erred in his assessment of the evidence to such an extentthat a miscarriage of justice has occurred or that a miscarriage of justice has occurredfor any other reason.27[44] By s 232(4) of the Criminal Procedure Act, a "miscarriage of justice" meansan error, irregularity, or occurrence in or in relation to or affecting the trial that createda real risk that the outcome of the trial was affected or has resulted in an unfair trial.A "real risk" arises if there is a reasonable possibility that a not guilty verdict mighthave been delivered if nothing had gone wrong.28Appeal against sentence[45] Mr Rickard has under s 244(1) of the Criminal Procedure Act the right toappeal against sentence. This Court must allow the appeal against sentence if satisfiedthat, for any reason, there was an error in the sentence imposed on conviction and adifferent sentence should have been imposed.29 For the appeal to succeed, the sentencemust be manifestly excessive in view of the circumstances of the case or be wrong inprinciple before an appeal court will interfere.30Appellant's caseAppellant's overall grounds of appeal – against conviction[46] Mr Tobeck identified as the underlying issue (in the appeal against conviction)whether the land on which Mr Rickard was fishing had been lawfully deemed NationalPark in accordance with the NP Act. Mr Rickard asserts that the Department has not27 Criminal Procedure Act 2011, s 232(2)(b) – (c).28 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J; Wylie v R [2016]NZCA 28; [2016] 3 NZLR 1 at [27].29 Criminal Procedure Act 2011, s 250(2).30 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].proved beyond reasonable doubt that the fishing spot was so "deemed" because MrRickard's fishing spot was:(a) on foreshore and therefore, by reason of the statutory definition of"foreshore" in the NP Act, outside FNP; and/or(b) within a coastal marine area (controlled by the Southland RegionalCouncil, outside FNP).Mr Tobeck explained that both these two points ([40](a) and (b)]) trigger steps to betaken pursuant to the NP Act, which then became the subject of Mr Tobeck's moredetailed submissions.Appellant's specific ground of appeal – "foreshore"[47] Mr Tobeck referred to the definitions of "foreshore".[48] Mr Tobeck submitted that the fishing spots occupied land which constituted"foreshore" as defined in the NP Act. He referred to both the earlier and the currentstatutory definitions (set out above at [19]). As in the District Court, he submitted thatfor the purposes of this case, there is no material difference between the definitions.[49] Mr Tobeck again, as in the Court below, referred to the evidence of Mr Manson,who agreed that where Mr Rickard was fishing would "quite possibly" be covered anduncovered by the flow and ebb of mean spring tides. Mr Manson also accepted thatwhen the tide comes in the water flows past the straight (red) line drawn on the aerialphotograph (Schedule A to this judgment).[50] Mr Tobeck took me also to the notes of evidence at the point that Ms Williamsre-examined Mr Manson. The exchange highlights the difference in approach tocategorising the land on which the fishing spots are located. Mr Manson is focusedon the categorisation of that area by reference to SO11763 and did not give a view onthe area covered and uncovered by the flow and ebb of tides (because he viewed it asirrelevant). This was the exchange:Q. Mr Manson, I was asking about the ebb, the flow and sorry, the landcovered and uncovered by the flow and ebb of tide at mean springtides. The phrase "covered and uncovered by flow and ebb", wouldthat imply what, in terms of area?A. I, can I comment that I, that I, in this particular case don't find it veryrelevant because I believe that the boundary of the park is defined bythe SO plan and the fact that some land in land of, or some area, riverbed, river flats, or whatever, inland that, if they're covered anduncovered by the tide that's irrelevant, the boundary is specified bythat SO plan.[51] For evidence relating to the tidal effect on the fishing spots, Mr Tobeck referredto that of Grant Tremain, the Principal Ranger of Recreation, employed theDepartment in the Te Anau Operations District. In cross-examination, Mr Tobeckreferred Mr Tremain to photographs he had produced of the whitebaiting scene asinspected on 31 October 2017. Mr Tobeck referred to this exchange:Q. Now, when you arrived at the [Waitutu] River and took somephotographs, would it be fair to say that at that time the tide wascoming in?A. I don't recall what the tide was. I believe that it was coming in asmost people would fish an incoming time.[52] The witness also referred to the fact that the time his party had got out of thehelicopter in which they had landed, the skids were dry but that when they got back inhe believed the water was coming up to the skids. As he recalled it, it had been closeto low tide when they landed.[53] Mr Tobeck submitted that on the basis of that evidence alone, Mr Rickard wasfishing on foreshore.[54] Mr Tobeck then contrasted that evidence focusing on the flow and ebb of thetides with Mr Manson's focus on the significance of the MHWS line (as shown onSchedule A to this judgment). The Judge, as I have already quoted, accuratelysummarised Mr Manson's evidence:31In short, the effect of his evidence was that the covering and uncovering bythe flow and ebb of some tides occurring upstream of the MHWS line did notin any way derogate from his conclusion as to where that line was.31 Above at [21].[55] Mr Tobeck submitted that the Judge (and Mr Manson) had erred by notapplying the statutory definition of "foreshore" under the NP Act when consideringwhether the fishing spots were on foreshore which did not fall within FNP.Appellant's specific grounds of appeal – coastal marine area[56] Mr Rickard's second specific ground of appeal arises from the fact that MrRickard's fishing spot was within what the RMA defines to be a "coastal marine area"(controlled by the Southland Regional Council). Mr Tobeck submits that on theevidence there was a failure, when the Land Notice of 20 September 1999 was issued,to comply with s 7(6) of the NP Act, in that the consent of the Southland RegionalCouncil was not obtained to the adding of foreshore to FNP.[57] Mr Tobeck submitted that neither the statutory presumptions nor the commonlaw presumption of regularity apply because s 7 of the NP Act was not complied with.Respondent's caseRespondent's summarised submissions[58] For the Department, counsel summarised in seven points the reasons the appealagainst conviction should be dismissed:(a) The FNP boundary is defined by the certified plans.(b) Mr Rickard did not call evidence to rebut the statutory presumptions.(c) The common law presumption of regularity applies.(d) Any challenge to the process by which lands were added to FNP mustbe by judicial review.(e) The statutory procedures for adding land to FNP were correctlyfollowed.(f) Mr Rickard's submission that lands (purportedly) added to FNP includeforeshore is incorrect.(g) The classification of the area as "coastal marine area" is relevant to theRMA but does not affect the administration of the land as national park.Respondent's submissions on the statutory and common law presumptions[59] Counsel for the Department submitted that Mr Rickard's points on appealpassed over the statutory presumptions. Ms Williams submitted that Mr Rickard hadnot rebutted the presumptions because:(a) he did not challenge evidence about the addition of lands to FNP;(b) he did not challenge evidence as to the survey definition of the line ofMHWS at the mouth of the Waitutu River; and(c) he did not challenge the Survey Office plan which defined the FNPboundary as the line of MHWS.[60] By reference to both ss 69(2) and 16(5) of the NP Act, Ms Williams submittedthat the SO plans are sufficient evidence of the park boundary at the Waitutu Rivermouth. She submitted that the purpose of statutory presumptions are to enable theCourt to be satisfied that the park boundary is where the certified plan says it is (in theabsence of evidence to the contrary).[61] Ms Williams noted that evidence to the contrary had not been called by thedefendants. As Mr Rickard had not called contrary evidence, the Department was notrequired to prove beyond reasonable doubt the location of the park boundary.[62] Ms Williams referred to the decision of this Court in Cohen v Department ofConservation.32 In that appeal, concerning the offence of causing a fire in a stateforest, Eichelbaum CJ dismissed an appeal against conviction by reason of the32 Cohen v Department of Conservation (1990) 6 CRNZ 668 (HC).application of a statutory presumption as to the conclusiveness of a certified plan underthe Forest and Rural Fires Act 1977.33 Eichelbaum CJ, having found that the statutorypresumption applied, continued: "The maxim omnia praesumuntur rite esse actabolsters the conclusion".[63] In Ms Williams' submission, the Court is therefore required to treat the SOplans as sufficient evidence of the boundaries of the park and (in conjunction with theevidence of Mr Manson) as establishing that the fishing spots were within the parkboundary.[64] Ms Williams submits that the issues in relation to whether that area came to bewithin FNP involve a collateral challenge to the validity of the park boundary. Shesubmits that the proper avenue by which to challenge the process by which lands wereadded to the park is by judicial review.Respondent's submissions on the procedure adopted in adding the lands to FNP[65] Ms Williams referred to the evidence (particularly of Mr Griffin) in which theWaitutu lands came to be included in the two SO plans as "land to be declaredconservation area" and "roads to be resumed (by the Crown)" respectively. Mr Griffinstated both that the SO plans had been approved for gazettal purposes by the personswhose duties included the certification of the plans. Mr Griffin also described the two-stage process adopted by the officials in order to add the Waitutu lands to the park,first by resumption of unformed roads and the declaration of the Waitutu lands asconservation areas (22 December 1998) and then by the gazetted Order in Council of20 September 1998 (adding the conservation areas to FNP). Finally in relation to theprocedure, Ms Williams referred to the supplementary evidence of Mr Griffin whichdetailed a number of departmental and ministerial steps.[66] Having regard to those various procedures, Ms Williams submitted that thecommon law presumption maxim omnia praesumuntur applied, there being no33 Cohen v Department of Conservation, above n 32, at 670–671, referring to s 25(2) Forest andRural Fires Act 1977.evidence adduced by Mr Rickard to suggest that officials had not acted correctly underthe Conservation Act and the NP Act.Respondent's submissions as to the line of the MHWS being the FNP boundary[67] Ms Williams submitted that Judge Harrop correctly accepted the evidence ofMr Manson as to the park boundary being at the line where the MHWS crosses theWaitutu River mouth (as defined in SO11763).34[68] This submission started with reference to the legend on SO11763 which I havequoted (above at [13]–[15]) which included in "Area A" (declared as a conservationarea) that part of the Waitutu River up to where "MHWS crosses" the river.[69] The Department relied upon the evidence of Mr Manson, called and qualifiedas an expert, to explain the correct interpretation of that part of the legend. MsWilliams relied particularly upon this exchange in evidence:Q Thank you. Staying with exhibit 5 in the third box down we have areference to, "Mean high water springs crosses all rivers, streams,inlets and estuaries unless otherwise shown," in your experience whatdoes "Crosses" mean?A Well, I think with this plan it's very important the word crossesbecause the boundary, if it was just mean high water springs thatwould be quite different from when it says it, "Crosses all rivers,streams and," – I think it was a qualifying additional comment thatwas put on the plan to make it unambiguous.Q Unambiguous?A Yes.Q How does it make it unambiguous?A Because the word to me, crossing, is saying it is a line across a rivermouth rather than a line going up a river and back down a river, it'scrossing, to me and as I say they wouldn't have added that note unlessthey wanted to qualify that.And Mr Manson continued later in his evidence:Q What do you understand the line of mean high water spring to be?34 Verdicts judgment, above n 1, at [17]–[23], and [35].A. It's a horizontal line at the level that the tide gets to meaning all springtides. So it's a level, flat plane and where that hits the coast is a meanhigh water spring line.Q. Thank you. Looking again at SO 11763 can the line of mean highwater spring be determined on that plan?A. It's representative. The plan drawn at that scale can only berepresentative but it is a line that is drawn around the coast line frommapping and is drawn as a broad – a thicker line than other lines onthe plan. Hard to see at this scale but it is a thicker line.Q. What is that line intended to represent?A. Mean high water springs and the boundary of the park. Well what wasto become the boundary of the park after this gazette election, yes.And, finally, Mr Manson said still later in his evidence:Q. Well, in my mind clearly the boundary crossed the mouth of the riverand that's what I was engaged to look at was where the boundary wasat the river and so in my mind, clearly, it crosses the mouth.[70] Mr Manson's investigation then led him in July 2015 to superimpose thestraight line which crosses the Waitutu River mouth (as showed in Schedule A to thisjudgment). Mr Manson confirmed in evidence that the MHWS line (while variablefrom year to year) would have remained virtually in the same place (within a metre orso) in 2017 as it had been in 2015.[71] Ms Williams concluded that Mr Manson's evidence of where the MHWS linecrosses the mouth of the Waitutu River was not challenged.Respondent's submissions on addition of foreshore under s 7 NP Act[72] Ms Williams observed that by virtue of the Land Notice of 22 December 1998any area within the Waitutu lands boundaries (as defined by SO11763) had become aconservation area (that is land or foreshore for the time being held under theConservation Act for conservation purposes).[73] Ms Williams then turned to the requirements of (for adding land to a nationalpark) under s 7 of the NP Act. She identified Mr Tobeck's submission as requiring(through s 7(6) of the NP Act) additional steps when "foreshore" is being added to apark. Ms Williams contrasted this with what she submitted is "the straightforwardprocess to add conservation areas in reserves, etc to a park under subsection (1)(a)".The thrust of Ms Williams' submission at this point was that any foreshore, by reasonof its already having been included in a conservation area, was no longer required tobe subjected to the joint recommendation and consent requirements of subs (6).[74] In what I took to be an alternative submission, Ms Williams recorded:The Conservation Act definition and that in the NP Act in 1999 both refer to"a tidal water" being covered and uncovered. "Tidal water" is not defined andit is submitted this would not include a river as that is not affected by tides.[75] Ms Williams noted that neither the Land Notice nor the Order in Council referto the concept of "foreshore", making it appear that the officials at the time did notconsider the Waitutu lands included any "foreshore". She submitted that the officialsdid not appear to have considered the Waitutu River itself as a "tidal water". Rather,in her submission, the officials (and the Ministers acting on their advice) treated theWaitutu River down to the MHWS line at the mouth as being "land" to which s 7(1)(a)of the MHWS applied (rather than "foreshore" as covered by s 7(1)(c)).Judicial Review as the means of challenging the procedure under the NP Act[76] For the Department, Ms Williams submitted that, if Mr Rickard wished tochallenge the process by which lands were added to FNP, the correct approach wouldhave been by judicial review.[77] In making that submission, she was adopting the tentative view expressed byJudge Harrop in this way:35Although it was not the subject of submissions, I am doubtful that I, as aDistrict rather than High Court Judge, have jurisdiction to rule on whether thatstep was taken lawfully or rather was ultra vires. I have no inherentjurisdiction. This is not an application for judicial review. If it were, only theHigh Court would have power to determine it. I consider that in the absenceof a High Court ruling on the point, I am required to decide this case based onthe assumption that the joinder process was valid. I refer again to the s 16(5)presumption as well. I doubt that can be overcome by simply assertinginvalidity of a statutory process.35 Verdicts judgment, above n 1, at [37].[78] As it happens, I will be by this judgment upholding the convictions. In relationto that part of the charges which relates to activities being within a national park, I findthat the Department has proved its case.[79] Had I found that the correct conclusion in the District Court should have beenthat the Department had not established in the hearing that the area of the fishing spotshad been validly added to FNP, I would have rejected the submission that the DistrictCourt Judge was precluded (for lack of jurisdiction) in deciding the case upon thatbasis. Whether the fishing spots were within FNP was a material ingredient of eachcharge. It was open to the defendants to defend the charges by raising a reasonabledoubt in relation to that issue. The Judge's observation, by which he doubted that thepresumption in s 16(5) of the NP Act can be overcome simply by asserting invalidityof the statutory process, is incorrect as a matter of law. The statutory presumptions inthe NP Act and the common law presumption of regularity are precisely that, namelypresumptions.[80] Kós J observed in Tamaki v The Māori Woman's Welfare League Inc, whendiscussing the maxim of regularity (omnia praesumuntur), that "the maxim alwaysbows in the face of the contrary evidence".36 The entitlement to establish the contraryon the evidence also in the concluding words of the Latin maxim and is express inboth ss 16(5) and 69(2) of the NP Act. If I had been satisfied (which I am not) (seebelow at [96]–[114]) that the declaration and addition of the Waitutu lands (includingthe foreshore) to FNP required the joint recommendation and the consent identified ins 7(6) of the Act, I would have found that the defendant had been able to rebut thepresumptions on the basis of the evidence adduced by the Department itself.3736 Tamaki v The Māori Women's Welfare League Inc [2011] NZAR 605 (HC) at [72].37 Contrary to a submission made by Ms Williams, the evidence which rebuts the presumption neednot come from the party seeking to rebut the presumption – it is sufficient that it is evidenceadduced by any party in the case.AnalysisApproach to analysis[81] I will analyse the issues in an order which differs from the approach taken insubmissions. It remains helpful to begin the analysis with a consideration of theboundary of FNP as identified on SO11763.The boundary as identified by SO11763[82] I am not at this point considering whether the defendants' fishing spots werewithin FNP. That involves a consideration of steps taken in the form of the LandNotice of 1998 and the Order in Council of 1999. The focus in this part of the analysisis solely on SO11763.[83] SO11763, through the combination of the plan itself and the narrative legend,provides a clear identification of the point at which the boundary of area A (includingthe Waitutu River) is to be drawn. That is, at the point that the MHWS crosses theWaitutu River.[84] Mr Manson, as the only expert surveyor called, undertook the investigation toestablish the location of the straight line representing where the MHWS crossed theWaitutu River mouth in July 2015. He confirmed that the line would have remainedin virtually the same place (within a metre or so) in 2017.[85] Mr Manson's evidence in this regard was not challenged at the hearing.[86] Upon the basis of SO11763 and Mr Manson's evidence as to the MHWS line,the Judge was correct to accept Mr Manson's evidence as to where the MHWS linewas.[87] Similarly, on the basis of the evidence of Mr Manson and Mr Bishop as to theGPS location of the three fishing spots, the Judge was correct to find that those spotswere upstream of the MHWS line by the approximate distances identified in evidence.[88] Thus, if the Department established that the land shown in SO11763 as "landto be declared conservation area" in law and fact subsequently became conservationarea, the Department would have proved its case. It is therefore necessary to thenanalyse the procedural steps taken.Declaration of land to be held for conservation purposes[89] The Department, to justify the procedure adopted in adding land to FNP in1999, first relies upon the Land Notice of 22 December 1998.[90] Mr Tobeck did not make a submission directly challenging the validity of theprocess by which the Ministers of Conservation and Lands purported to declare theWaitutu lands (with others) to be conservation areas. Instead, Mr Tobeck's focus wason the next procedural step, that is the Order in Council by which the Waitutu lands(and others) were reportedly added to FNP.[91] Mr Tobeck's submission in relation to the purported addition of land to FNPunder the NP Act (both in the District Court and here) included the proposition thatthe preferred interpretation of the Order in Council was that it was not intended toinclude foreshore in the FNP. I will therefore briefly consider the correct constructionof the Land Notice of 1998.[92] The Waitutu lands being declared as conservation area were identified in theSecond Schedule to the Land Notice by direct reference to SO11763 in these terms:That part of the bed of the Waitutu River from the boundary of the FiordlandNational Park, being 40 metres downstream from the outlet of Lake Poteriteriin the north, in the line of Mean High Water Springs at the mouth of the saidriver in the south, and more particularly as shown within the area marked as"A" on S.O. Plan 11763 and being situated within the Waitutu Survey District.[93] In other words, what was shown and described in SO11763 as the land to bedeclared conservation area was precisely that which the Land Notice identified.[94] The Department has accordingly established that that area of the Waitutu Riverwhich lies upstream of the line on Schedule A hereto falls within the conservation areaestablished by the Land Notice of 22 December 1998.[95] That then leads to the need to analyse what has consistently been Mr Tobeck'scentral proposition, namely that the Department did not establish that all that area (ofthe Waitutu River upstream of the line) had been properly added to FNP by the 1999Order in Council.Addition of land to FNP by the 1999 Order in Council[96] The Department maintains that the area where the fishing spots are wasproperly added to FNP, along with on all the other areas identified as area A onSO11763, by the 1999 Order in Council. The Department says that the declarationcontained in the Order is valid because, in terms of s 7(1)(a)(i) of the NP Act, thefishing spot area had previously become conservation area. The Department assertsthat by reason of the land's status as conservation area, provisions in s 7 of the NP Actin relation to foreshore were inapplicable.[97] Mr Rickard, on appeal as in the Court below, asserts that the area of the fishingspots was not properly added to FNP by the Order in Council. He says that the areaof the fishing spots constituted "foreshore" in terms of the NP Act, that s 7(6) of theAct therefore had to be complied with, and that it was not.[98] These competing arguments require the Court to interpret the provisions of s7, taking into account the meaning of "foreshore".[99] I have at [19] above set out both the current definition in the NP Act of"foreshore" and the definition which applied (in 1999) when the Order in Council wasmade under s 7 of the NP Act. For convenience, I set out again the 1999 definition(taken from the Harbours Act):"Tidal lands" or "foreshore" means such parts of the bed, shore, or banks of atidal water as are covered and uncovered by the flow and ebb of the tide atordinary spring tidesAnd also set out above was the definition of "tidal lands" which was defined to mean:any small part of the sea or of the river within the ebb and flow of the tide atordinary spring tide.[100] In other words, in the definition which applied at the time of the Order inCouncil, "foreshore" and "tidal lands" had, for the purposes of the NP Act, the samedefined meaning. The cross-reference to "tidal lands" made it clear that the conceptcovered both sea and rivers (as affected by the ebb and flow of identified tides).Similarly, that part of the definition which reads "banks of a tidal water" is referableto rivers rather than sea.[101] I therefore reject the submission of Ms Williams (quoted at [72] above)whereby she suggested (incorrectly) that the term "tidal water" was not defined andfurther submitted that it would not in any event include a river as a river is "not affectedby tides".[102] I find that in fact the term "foreshore" as applying under the NP Act both in1999 and now applies equally to tidal waters in the sea and in rivers.[103] As submitted by Mr Tobeck, the cross-examination of Mr Manson establishedthe likelihood that the fishing spots would be covered and uncovered by the flow andebb of the tide at ordinary (or mean) spring tides.[104] The thrust of Ms Williams' submission was that Mr Manson's evidence as tothe line of the MHWS crossing the Waitutu River mouth was not challenged. Thissubmission followed closely on Mr Manson's answers in cross-examination to theeffect (as summarised by Judge Harrop) that the covering and uncovering by the flowand ebb of some tides occurring upstream of the MHWS did not in any way derogatefrom Mr Manson's conclusion as to where that line was.[105] Judge Harrop's conclusion in this regard was that: "Because, as I have alreadyfound, the defendants were fishing upstream from the MHWS line, it follows that theycannot have been fishing on "foreshore" within the definition".38[106] In reaching this conclusion, the Judge was in error. What the Judge wasentitled to find on the evidence was that fishing spots were within what had, in 1998,38 Verdicts judgment, above n 1, at [29].been declared to be conservation area by reason of the reference to "mean high watersprings crossing all rivers" in SO11763. That identification of land being included inthe conservation area did not determine whether part of that conservation area was,pursuant to the definition under the NP Act, also correctly described as "foreshore".The definition in the NP Act refers the physical characteristics of the land, not to someterritorial classification, embodiment in a title or similar event.[107] Therefore, I find the fishing spots to have been on "foreshore" as that word isused in s 7 of the NP Act.[108] Thus, notwithstanding the declaring of the Waitutu lands, including the bedand foreshore of the Waitutu River upstream of the MHWS line, as conservation area,there is in that upstream area (including the fishing spots) "foreshore" in terms of s 7of the NP Act.[109] The next question to be addressed is whether s 7(6) of the NP Act operated soas to require the joint recommendation of the Ministers of Conservation and Transportand the consent of the Southland Regional Council before the area containing theforeshore was declared to be added to FNP.[110] The Department asserted that the recommendation and consent referred to ins 7(6) of the NP Act were not required because the Order in Council did not constitutea declaration under s 7(1)(c) that foreshore described in the order should be added toFNP. Rather, it was the Order in Council that was a declaration under s 7(1)(a)(i) thatthe conservation area be added to FNP.[111] Mr Tobeck submits that, by reason of the area in question being "foreshore" interms of the NP Act, there was an obligation on the Department to pursue a declarationunder s 7(1)(c). It would then follow, as a prerequisite under s 7(6), that therecommendation and consent be first obtained. Otherwise, in Mr Tobeck'ssubmission, the requirements of those provisions would be rendered nugatory.[112] On this issue, I uphold the Department's submission on the construction of s 7of the NP Act. By s 7(1), Parliament has provided for two different declarations, thesecond being in relation to foreshore and the first being in relation to five categoriesof land of the Crown. Those first five categories include conservation areas and otherlands such as reserves vested under the Reserves Act 1977. If the Crown in obtainingthose lands has done so through the correct procedures (under the Conservation Act,the Reserves Act or as otherwise applies) then s 7(1)(a) of the NP Act operates so asto allow a declaration under that subsection. Contrary to Mr Tobeck's submission, itdoes not render section 7(6) "nugatory" that the Crown elected to first have the landsdeclared to be held for conservation purposes or vested as reserve. Subsection 6 hasits application when the Order in Council contains a declaration (under s 7(1)(c))relating to foreshore, not when the Order in Council contains a declaration under s7(1)(a).[113] Here, as the declaration was not made under s 7(1)(c) but rather under s 7(1)(a),the Order in Council did not need to be preceded by a joint recommendation of theMinisters or the consent of the Regional Council. It was sufficient instead that it bepreceded by the recommendation of the Minister of Conservation alone.[114] Mr Rickard did not contend that there was doubt in relation to therecommendation of the Minister of Conservation having made the recommendation.It was established on the evidence and, in any event, it is a matter establishedpresumptively pursuant to the common law presumption of regularity.39The foreshore as "coastal marine area" under the RMA[115] Mr Tobeck's additional and alternative submission was that the charges shouldhave been dismissed because, under the RMA, the landward boundary of the coastalmarine area at the Waitutu River extends upstream by 657.4 m from the river mouth.40He submitted that the "Waitutu River was subject to this definition" when the Waitutulands were added to FNP. Mr Tobeck further submitted that, while Mr Manson wasqualified to give evidence as to the boundary of a parcel of land, he was not qualifiedto give evidence as to the title or the status of the parcel of land.39 Above n 6.40 Above n 18.[116] Judge Harrop was correct to find that neither the RMA nor the RegionalCoastal Plan for Southland have a bearing on the true boundary of FNP, as that isdetermined under the NP Act itself.41 For the reasons I have already recorded, thearea in question was declared to be national park and added to FNP, as existingconservation area. As Judge Harrop recorded, neither the RMA nor the RegionalCoastal Plan could affect the lands' status and its ownership by the Crown.42Conclusion on appeal against convictions[117] In relation to appeal against conviction, Mr Rickard's appeal against hisconvictions will be dismissed, albeit for reasons slightly differing to those of JudgeHarrop.Appeal against sentenceThe sentencing remarks[118] Judge Harrop correctly identified that under the NP Act, the fishing chargecarried a maximum penalty of two years imprisonment and/or a $100,000 fine whereasthe possession of a net carried a maximum penalty of one year's imprisonment and/ora $100,000 fine.43[119] As Judge Harrop noted, if there had been clear evidence of Mr Rickardknowing that he was fishing within the FNP boundary or that he intended to fish withinthe FNP boundary, the Department would have laid the charges under a more seriousprovision, which carried a maximum sentence of five years' imprisonment and a$300,000 fine.[120] The Judge recorded the fact that when Mr Rickard was spoken to shortly afterthe date of the offending, he produced an email from NIWA dated 3 October 2017setting out the definition of "coastal marine area" as contained in s 2 of the RMA. As41 Verdicts judgment, above n 1, at [35].42 Verdicts judgment, above n 1, at [34].43 Sentencing remarks, above n 2, at [6]. The charges were laid under ss 60(1)(h) and 60(4)(a) of theNP Act. The penalties are provided in ss 69A(3)(a) and 70(a) respectively.Judge Harrop noted, there was no evidence that Mr Rickard took any other steps tosupport his assertion that he was not fishing in the park.44[121] Judge Harrop then continued (having observed that strict liability applied):45I therefore had to consider what weight to give that email and I concluded thatwas an insufficient step to establish a total absence of fault, so I proceed onthe basis that you did know that you should not have been there, and as MsWilliams observes, it seems that you were aware that this was an issue becauseyou had ready access to that email. I think that is relevant to the gravity of theoffending.[122] Judge Harrop referred also to steps which the Department had taken prior tothe offending to ensure that whitebaiters had knowledge of where the Departmentconsidered the FNP boundary to be. His Honour referred to Mr Bishop's"extraordinary lengths" and recorded:46He put a notice with a survey photograph showing the boundary in the nearbyWaitutu hut, he arranged for articles about the park boundary to appear in localnewspapers ahead of both the 2015 and 2016 whitebait seasons and he [sic]copy that notice to all the people he believed had been white baiting there andincluded you But, importantly he then spoke to all three of you in 2016, theseason before this near the mouth of the river and he told you where theboundary was.[123] His Honour then referred to the need to impose a sentence which deterred thedefendants but also denounced their conduct.47 His Honour also took into account thesanctity of a national park as enshrined in s 4 of the NP Act.48[124] In turning to a starting point, his Honour identified that the maximum penaltiesunder the NP Act had been substantially increased in 2013 from three months'imprisonment and a $2,500 fine up to their present levels.49 The Judge found theoffending to be in the category of moderately serious non-commercial offending, inline with the categorisation in Tawha v Fish & Game New Zealand.50 On the otherhand, his Honour took into account that:44 Sentencing remarks, above n 2, at [11].45 Sentencing remarks, above n 2, at [12].46 Sentencing remarks, above n 2, at [9].47 Sentencing remarks, above n 2, at [14].48 Sentencing remarks, above n 2, at [14].49 Sentencing remarks, above n 2, at [18].50 Tawha v Fish & Game New Zealand [2015] NZHC 1119. Sentencing remarks, above n 2, at [18].(a) there had been no permanent damage to the park and its eco-system,the few caught whitebait having been returned to the river;51(b) this offending did not occur deliberately in a very remote area butinstead was near the edge of the national park; 52 and(c) whitebait are not an absolutely-protected animal.53[125] Against this background, Judge Harrop considered that a fair and the least-restrictive starting point was a single fine of $7,500 for each defendant. His Honourthen had regard to Mr Rickard's and the co-defendant's previous good character,which he found to justify a discount of 25 per cent.[126] By that means, his Honour determined that the fine should be $5,625.Appellant's submissions[127] Mr Tobeck's single point on appeal was that Judge Harrop erred in holding thatMr Rickard knew that he should not have been fishing where he was. Mr Tobecksubmitted that there was not a logical connection between the Judge's finding that MrRickard having failed to establish a "total absence of fault" to then "proceed on thebasis" that Mr Rickard did know he should not have been there.54[128] Mr Tobeck submitted the Judge accordingly erred by adopting an excessivestarting point or failing to give sufficient weight to the mitigating factors.Defendant's submissions[129] For the Department, Ms Williams submitted simply that both the starting pointand the final sentence were appropriate, with the discount of 25 per cent for previousgood character being "generous in the circumstances".51 Sentencing remarks, above n 2, at [19].52 Sentencing remarks, above n 2, at [21].53 Sentencing remarks, above n 2, at [26].54 Sentencing remarks, above n 2, at [12].Discussion[130] The starting point of a single fine of $7,500 for both offences (in the contextof maximum fines of $100,000, potentially additional to a period of imprisonment)was well within the appropriate range having regard to the circumstances of theoffending. The Judge's reasoning, identified by Mr Tobeck, in which the Judgestepped from Mr Rickard's failure to establish a total absence of fault to a finding ofknowledge that he ought not to have been there does not materially alter theappropriateness of the starting point. Whatever Mr Rickard had taken from the NIWAemail, Mr Bishop's uncontradicted evidence of his discussions with Mr Rickard andhis co-defendants in 2016 as to where the FNP boundary was evidence of at leastrecklessness on the part of the defendants.[131] I accept Ms Williams' submission that the 25 per cent discount for previousgood character may be regarded as generous.Conclusion[132] The end sentence, namely a fine of $5,625, was well within the appropriaterange. The appeal against sentence will be dismissed.Costs[133] There would normally be an award of the costs of the appeal to be paid to theDepartment, following the event.[134] However, primary arguments advanced by the Department in the District Courtand accepted in the District Court judgment have not been upheld, with differentreasoning now found to justify the conviction.[135] In these circumstances my preliminary view is that it would be appropriate inthe circumstances of this appeal that there be no order as to the costs of the appeal (butwith the order for costs in the District Court left to stand). If the parties agree on thatcourse, no memoranda will be required. Otherwise memoranda are to be filed inaccordance with the order below.Order[136] I order:(a) The appeals against conviction and sentence are dismissed.(b) In the event the parties are unable to agree on the costs of the appeal,the Department is to file and serve within 10 working days amemorandum of submissions (four page limit) and the appellant is tofile and serve within five days thereafter a memorandum ofsubmissions (four page limit). In the event that the Department doesnot file a memorandum, the order of the Court (without further Minute)is that there is no order as to the costs and disbursements of the appeal.Osborne JSolicitors:A Tobeck, Barrister, OtautauP D Williams, Department of ConservationPreston Russell Law, InvercargillSCHEDULE A