TERRY v POLICE [2019] NZHC 2517

TERRY v POLICE [2019] NZHC 2517 [4 October 2019]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2019-412-000013[2019] NZHC 2517BETWEEN GLEN PHILLIP TERRYAppellantAND NEW ZEALAND POLICERespondentHearing: 23 September 2019Appearances: J U Mooney for the AppellantR P Bates for the RespondentJudgment: 4 October 2019JUDGMENT OF NATION JIntroduction[1] On 18 December 2018, following a Judge-alone trial, Judge Crosbie found MrTerry guilty of one charge of trespassing under s 4(2) Trespass Act 1980 and onecharge of hunting on private land without authority under s 8(2) Wild Animal ControlAct 1977. The land concerned was Ida Valley Station.[2] Ida Valley Station is in the heart of the Maniototo area of Central Otago. It isrugged country, valued by its owner. It is also a potential hunting ground for thosewho want to hunt wild animals. The owner, on occasions, allows people to do so ifthey obtain permission first.[3] Mr Terry appeals his conviction under s 232 Criminal Procedure Act 2011,alleging a miscarriage of justice has occurred.Background[4] On 17 September 2015, Mr Terry was served with a trespass notice warninghim to stay off Ida Valley Station for a period of two years from that date.[5] Late in the afternoon of 9 May 2017, Russell Neville and Stuart McIntosh weremoving sheep along Aston Road, driving them to a roadside paddock. Aston Roadadjoins Ida Valley Station. They were also dropping off rams that were on the back oftheir utility vehicle. There was no dispute that, when they were doing this, Mr Terrydrove along Aston Road towards them. He slowed down as he passed by the mob andclose by their vehicle. Mr Terry said in evidence that, from there, he carried on alongAston Road before making a right turn onto Old Dunstan Road. He said he drovealong that road, stopping to open a gate over a cattlestop and then drove on to PoolburnDam before proceeding onwards towards Roxburgh. The distance from the cattlestopto the Poolburn Dam is approximately eight kilometres.[6] Mr Neville and Mr McIntosh said that, as the white Toyota Hilux drove pastthem, they noticed hunting dogs in a box on the back of the Toyota Hilux. As thedriver of the Toyota Hilux went past them, he lowered his head towards his chest, asif he did not want to be observed. Both men were concerned as to what the person inthe vehicle might be doing. They said that, as they finished putting the sheep in thepaddock and dropped off some rams, they had the white Toyota Hilux within theirview. They saw it turn right from Aston Road onto Old Dunstan Road and observedit travelling along Old Dunstan Road for some distance. They said they could see thevehicle's course of travel through observing the vehicle itself and also the dust that itput up from the gravel road. In that way, they saw it travel to a point just after thecattlestop. Mr Neville said he saw the vehicle turn right from Old Dunstan Road ontothe open country of Ida Valley Station. Mr McIntosh said he did not see the vehicleactually move off Old Dunstan Road but saw where its travel along Old Dunstan Roadcame to an end when it was no longer putting up dust.[7] Both men say that, after they had finished shifting the mob of sheep anddropped off the rams on Aston Road, they turned their vehicle around, drove backalong Aston Road, turned right into Old Dunstan Road and drove to the point wherethey inferred the white Toyota Hilux had turned off Old Dunstan Road to go onto IdaValley Station land. At that point, they observed tracks, freshly made by a vehicleleaving Old Dunstan Road and travelling onto and across Ida Valley Station land.They then drove on a short distance further to a point where they had a view over IdaValley Station where they say they were able to observe the same vehicle they hadseen earlier travelling over Ida Valley Station into the distance. The vehicle theyobserved disappeared from their view. They dropped off some more rams at a pointalong old Dunstan Road and went onto the Poolburn Dam before turning around andreturning to the base of Ida Valley Station near the intersection of Old Dunstan Roadwith Aston Road. During that time, they sighted no other vehicles on either AstonRoad or Old Dunstan Road. They did not see the white Toyota Hilux again after itdisappeared from view.[8] There was no dispute that Mr Terry was the driver of the white Toyota Hiluxwhich passed by Mr Neville and Mr McIntosh when they were moving the mob ofsheep on Aston Road.[9] Section 8 Wild Animal Control Act makes it an offence for a person to huntacross any land, without the express authority of the owner or occupier of that land.Under s 38 of that Act, in any prosecution for such an offence including that createdby s 8(2): proof that any person found in any area where wild animals are usuallypresent had with him any dog that could be used for the purpose ofhunting or killing any wild animal, shall be evidence from which the courtshall presume, until the contrary is proved, that the person was hunting orkilling wild animals in the area.[10] At trial, there was no issue that, if Mr Neville and Mr McIntosh had beencorrect in saying they had seen dogs in the box on the back of Mr Terry's vehicle, theywould be dogs that could be used for hunting a wild animal. In his evidence, Mr Terryaccepted that he had three dogs. He said they were house dogs but they were alsohunting dogs.[11] There was no issue that the land on which it was alleged Mr Terry had gone inhis vehicle was an area where wild animals were usually present. Mr Terry acceptedthis was an area where people hunted recreationally with permission of the owner. Itwas an area where Mr Terry had hunted previously. It was an area where people wentpig hunting.[12] If it was proved that hunting dogs were in the box on the back of Mr Terry'svehicle and that vehicle did go onto Ida Valley Station, there was thus a presumptionthat Mr Terry, in driving that vehicle onto Ida Valley Station, with those dogs, wasdoing so for the purpose of hunting.[13] There was no dispute that Mr Terry had not obtained permission of the ownerto be on the station.[14] The central issues at trial were thus whether the prosecution had proved thatthe vehicle Messrs Neville and McIntosh said they observed on Ida Valley Station wasthe same vehicle that Mr Terry drove past these witnesses as they were moving sheepon Aston Road and whether these witnesses had seen dogs in the box on the back ofMr Terry's vehicle.District Court decision[15] Judge Crosbie first found that, at the time, there was no other vehicle travellingalong Old Dunstan Road and Mr Terry's vehicle was the only vehicle on that road tobe seen.1[16] The Judge cited a decision of Doogue J in the High Court in Bevin v Policewhich states it is settled law that, once hunting on land without authority is proven,the onus shifts to the defendant to prove on the balance of probabilities that they werewithout intent or fault.2[17] The Judge then cited the Court of Appeal's decision in Valenski v Conservatorof Forests to show the operation of the reverse onus under s 38(1) Wild Animal ControlAct.3 In that case, the defendant was found to have been in a helicopter without doorsflying at a low height over a station. The Court said it was unable to disregard the1 Police v Terry [2018] NZDC 26054 at [8].2 Bevin v Police HC Hamilton AP18/87, 21 May 1987.3 Valenski v Conservator of Forests CA39/85, 1 November 1985.onus regardless of the lack, or perceived lack, of link between the actions of adefendant and what could be described as "hunting" generally.[18] Judge Crosbie found Mr Terry to be neither credible nor reliable as a witness.He gave his reasons:4(a) Mr Terry's evidence before the Court departed significantly from thestatement he provided to police, particularly in relation to his reasons fordriving on that day.(b) his position on key aspects of the evidence changed throughout hisevidence and was internally inconsistent:5(i) his position on whether he had dogs with him moved from nothaving any, because they were at home with his partner, to notremembering whether he had them with him. He accepted that MrNeville and Mr McIntosh could be correct in having seen dogs onthe back of his utility. This was described by his Honour as a"significant backflip" demonstrating a lack of credibility;(ii) he initially claimed the dog box was not one that provided any levelof visibility of a dog's nose when on the back of a utility. This wasdisproven by the production of photographs by the Police showingthe dog box was sufficiently raised to be able to view dogs' noses;and(iii) he gave confusing and unreliable evidence as to steps he may or maynot have taken in adjusting or cutting down the dog box. At timeshis explanations appeared "desperate".[19] As a consequence of the Judge finding Mr Terry's evidence as a witness wasneither credible nor reliable, he found it clearly and unequivocally established thatMessrs Neville and McIntosh saw Mr Terry's utility that day while it had a dog box4 At [24]; Reasons were given consistent with the clear requirement for trial judges in Judge-alonetrials to give reasons, particularly relating to findings on credibility and reliability: Sena v Police[2019] NZSC 55 at [35]–[36] citing R v Connell [1985] 2 NZLR 233 (CA) at 238 per Cooke J.5 At [25]–[32].on the back containing hunting dogs. He further accepted Mr Neville's evidence thathe saw the utility turn onto Aston Road from Old Dunstan Road and onto the Ida ValleyStation. The Judge said Mr McIntosh's evidence corroborated Mr Neville's evidencein a number of ways and provided the Judge with an assurance that Mr Neville was acredible and reliable witness. The Judge found proved that Mr Terry drove onto IdaValley Station in a vehicle on which hunting dogs were situated.[20] The Judge found that the photographic evidence produced by Mr Terry was notcapable of aiding a discharge of his persuasive burden. The photos were consistentwith the Police case and timeline. The Judge found that the 25 to 35 minute windowbetween the two photos being taken provided ample time for Mr Terry to drive ontoIda Valley Station.[21] Accordingly, he determined both charges proved and found him guilty on each.Principles on appeal[22] Section 232 Criminal Procedure Act 2011 provides that the High Court mayonly allow an appeal against conviction if satisfied that the trial Judge "erred in his orher assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason". Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresult in an unfair trial.6Appellant's submissions[23] Mr Mooney for Mr Terry submitted the Judge made seven errors that gave riseto a miscarriage of justice:Medical evidence[24] Mr Mooney submitted:6 Criminal Procedure Act 2011, s 232(4).(a) The Judge did not allow into evidence a medical record relating to MrTerry's head injury in 2015 as a business record.(b) The Judge did not allow into evidence a medical record relating to MrTerry's knee injury in 2017.[25] Mr Mooney submitted the Judge should have admitted the medical records asevidence as business records under s 19 Evidence Act 2006 as no useful purpose wouldhave been served by requiring persons who prepared the records to give evidence as aresult of time elapsed since their making and the fact those people would have had todeal with so many patients.Timing of Mr Terry's statement to Police[26] Mr Mooney submitted the Judge erred in stating Mr Terry spoke to police thefollowing day. In fact, Mr Terry was not spoken to by police until 20 July 2017 – twomonths later.[27] Mr Mooney contended this error would have adversely and unfairlycontributed to the Judge's adverse credibility and reliability findings against Mr Terry,particularly so when Mr Terry had said he could not remember things particularly well.Timing related to Facebook Messenger photos[28] Mr Mooney submitted there was no evidence to support the Judge's findingthat there were other means by which Mr Terry could get back onto Old Dunstan Roadand to the Poolburn Dam to take the photograph.[29] Mr Terry had produced in evidence a photograph taken of a gate over thecattlestop on Old Dunstan Road. He said he had to stop and open it after travellingonto Old Dunstan Road from Aston Road. The photograph was produced on a pagewhich associated it with a message he had sent to his partner at the time he says hetook the photograph. On that page, there was a timestamp showing the message hadbeen sent at 4.58 pm. He also produced photographs of the Poolburn Dam area, whichhe said had been taken when he was looking out over the Poolburn Dam area fromOld Dunstan Road, and which he had sent to his partner. On the page with thosephotographs was a timestamp consistent with them having been sent on 9 May 2017at 5.29 pm.[30] Mr Mooney noted that Mr Neville said in evidence he saw the utility drive ontoIda Valley Station at "approximately" 5.30 pm. Similarly, Mr McIntosh said thisoccurred "about"/"around" 5.30 pm.[31] At trial, the Judge was asked to accept Mr Terry could not have driven fromwhere he was at the cattlestop to Poolburn Dam in the time when those photographswere taken if he had travelled onto Ida Valley Station, as described by the twowitnesses.[32] The Judge found that Mr Terry could have driven from Ida Valley Station backonto Old Dunstan Road and then gone to Poolburn Dam to take a photo (at 5.29 pm).Mr Mooney submitted there was no evidence as to how Mr Terry would have beenable to drive to the Poolburn Dam when he did to take photos there if he had been onIda Valley Station.Non-consideration of the possibility of other vehicles[33] Mr Mooney submitted the Judge did not fully turn his mind to the possibilitythat a different vehicle could have come from the opposite direction and driven intoIda Valley Station.[34] Mr Mooney highlighted an excerpt from the evidence where Mr McIntoshagreed with Mr Terry's then counsel, Mr Collins, that he could not rule out thepossibility that there was another vehicle on Old Dunstan Road at that time comingfrom the opposite direction. Similarly, Mr Neville did not rule out the possibility therewas another vehicle. Further, Mr McIntosh said the cattlestop is at a point in the roadwhere it crests a hill. As a result, no dust would have been seen after the cattlestop, sodirect sight of Mr Terry's vehicle was lost and then, some moment later, the men sawa vehicle – not necessarily Mr Terry's vehicle in Mr Mooney's submissions – drivingonto Ida Valley Station.Time required to travel from the gate onto Ida Valley Station and then to the PoolburnDam[35] Mr Mooney submitted the Judge did not take into account the time required totravel from the gate where Mr Terry is alleged to have driven onto Ida Valley Stationto Poolburn Dam where he took a photo of the Dam.[36] Counsel submitted it was impossible for Mr Terry to have travelled eightkilometres from the cattlestop to Poolburn Dam at the likely practical speed of 20 to30 km/h so as to be able to take the photo of the Poolburn Dam at 5.29 pm if he hadbeen on Ida Valley Station land, as Mr Neville and Mr McIntosh say they hadwitnessed.Non-consideration of whether Mr Terry had proven on the balance of probabilitiesthat he had not been hunting[37] Mr Mooney submitted the Judge did not turn his mind to whether Mr Terryproved on the balance of probabilities that he was not hunting.[38] Mr Mooney said the Facebook Messenger photos did more than the Judgeallowed them. He said they established Mr Terry was not on Ida Valley Station at 4.58pm or 5.29 pm as the Judge "appears to have accepted". He said these messagesestablished Mr Terry could not have made the journey as alleged by the Police whenthey are coupled with the lack of evidence of an alternative path to Poolburn Damfrom the vehicle's entry to Ida Valley Station, without involving it circling back to thesame gateway onto Old Dunstan Road and thus crossing paths with Mr Neville andMr McIntosh as they drove up to the cattlestop. He said finally that the Judge's refusalto admit the medical evidence meant the Court did not turn its mind to whether MrTerry was in fact physically unable to walk or run after the pig dogs at the relevanttime.Respondent's submissions[39] Mr Bates for the Crown responded to the submissions presented for Mr Terry.I have had regard to those submissions in my consideration of all the evidence and theways in which it was suggested for Mr Terry that there had been errors in the Judge'sdecision and miscarriage of justice.Timing of the Police interview of Mr Terry, and the Judge's assessment of MrTerry's credibility[40] The Judge made clear adverse findings as to both the credibility and reliabilityof Mr Terry's evidence on issues that were crucial to his defence and also theprosecution case. His conclusions in this regard were not based on the demeanour ofMr Terry as he gave his evidence but on a careful consideration of what he had said inevidence and how he came to say it. The Judge had the advantage of hearing preciselyhow those issues had emerged in the course of evidence from all witnesses and theway Mr Terry's evidence chopped and changed when he was challenged on variouspoints and confronted with the evidence that contradicted his account of what he hadto say about what he had been doing on 9 May 2017. The Judge appropriately gavereasons for the assessment he made as to Mr Terry's credibility and reliability,consistent with what is required of a judge as recently set out in the Supreme Court'sjudgment in Sena v Police.7 The Judge's conclusions were reasonable given all theevidence as it was recorded during the trial.[41] As Mr Bates for the Crown properly acknowledged, the Judge did make amistake in saying Mr Terry was interviewed the day after it was alleged he was on IdaValley Station. He was not in fact interviewed until more than two months later whenhe was spoken to on 20 July 2017. The fact remains there were significantinconsistencies between Mr Terry's various explanations as to what he had been doingat the relevant time.[42] Police obtained a statement from Mr Terry, made at the Alexandra PoliceStation, on 20 July 2017. In that statement, Mr Terry acknowledged the Police hadspoken to him previously by phone about an incident that had occurred on Tuesday 9May 2017 at approximately 5.30 pm in the Ida Valley area, where his vehicle wasobserved heading first along Aston Road then turning right onto Old Dunstan Road,before turning off and across land of the Ida Valley Station. Mr Terry also7 Sena v Police, above n 4, at [35]-[36].acknowledged in his statement that, when the Police first spoke to him, his explanationat the time had been that he was going to help a friend who was stuck in the area.[43] Mr Terry had thus known the Police were interested in what he had been doingon 9 May 2017 around 5.30 pm before he made his statement to the Police. He hadtime to clear up any potential confusion he might have had about dates, had he neededto do so.[44] In the statement he made on 20 July 2017, Mr Terry repeated his explanationas to what he had been doing. In doing so, he said he never left Old Dunstan Roadand the person he was going to help was Michael Harvey. He also told the Police hispartner was in the vehicle with him. He said he did not have any dogs with him on hisutility as he made that trip.[45] On 22 July 2017, after he had been interviewed at the Police Station, Mr Terrysent a text to the owner of Ida Valley Station asking him to meet with him to resolvethe situation in a way that would avoid them having to be involved with a court case.In that text, Mr Terry denied he had been on the Station. He said he had been in thearea on 9 May 2017 when he went up to shoot some geese and he had gone there withhis partner Micayla. Mr Terry said in that text that he had also been in the area on 12May 2017 when he had gone there to help Michael Harvey winch out Mr Harvey'svehicle after it became stuck.[46] In his evidence, Mr Terry said he had gone to the Poolburn area around 5.00pm on 9 May 2017. He said he had no intention of going hunting and he was justtaking his partner's young daughter for a drive over the hill when her mother had amigraine. At the trial Mr Terry said nothing about going to that area on 9 May 2017to shoot geese.[47] Mr Harvey's evidence was given by way of a statement admitted to evidenceby consent. In that statement, Mr Harvey explained how he had gone to the Serpentinearea not far from Poolburn on the night of Friday 12 May 2017, had become stuck andhad to spend the night there. He said he contacted Mr Terry and Mr Terry had drivento him, approaching from the Onslow end early in the morning on Saturday 13 May2017. This would have been from a direction opposite to that when he had drivenalong Aston Road and Old Dunstan Road to Poolburn on 9 May 2017.[48] It was reasonable for the Judge to consider that the inconsistencies in MrTerry's explanations as to what he had been doing on 9 May 2017 reflected adverselyon his honesty as a witness. It is hard to see how his explanation to the Police forbeing seen in the area of Ida Valley Station at about 5.30 pm on 9 May 2017 couldhave been the result of poor memory or innocent confusion. Mr Terry had gone to thePoolburn reservoir area to help pull out Mr Harvey's vehicle from where it was stuck.On the evidence of both Mr Terry and Mr Harvey, he did this in the early hours of themorning. When speaking to the Police, Mr Terry was seeking to explain why he hadbeen in the area late in the day. On 13 May 2017, he had helped pull out Mr Harvey'svehicle. He had approached the area from the Onslow end. On 9 May 2019, he hadapproached the area from the opposite direction.[49] The Judge accepted the evidence of Mr McIntosh and Mr Neville that they hadseen the snouts and heads of dogs in a box on the back of Mr Terry's vehicle as itpassed them when they were with the mob of sheep on Aston Road. They identifiedthe dogs they saw as being hunting dogs. Mr McIntosh described the dogs he saw aslooking like pig hunting dogs, not sheep dogs.[50] In cross examination, Mr Terry's then counsel showed prosecution witnesses aphotograph of a box on the back of a vehicle which did not have any gap or grillthrough which witnesses would have been able to see dogs. This was obviously doneto suggest the witnesses had not seen any dogs in the way they had described. In hisevidence, Mr Terry initially said that, on the day in question, the dogs had been left athome with his partner.[51] The Police officer who interviewed Mr Terry gave evidence of inspecting MrTerry's vehicle on 20 July 2017. He observed the dog box that was on the ToyotaHilux at that time. It then had a grill along each side of the box big enough for someoneto see a portion of a dog's face and nose through it. The constable was not challengedas to the correctness of what he observed.[52] There was then produced in evidence by consent a photograph taken of a dogbox on Mr Terry's vehicle on 21 February 2017. It showed a dog box on the back ofthe utility with a grill, consistent with what the constable and two witnesses hadobserved. When cross examined over these matters, Mr Terry gave contradictory andconflicting evidence as to how he had altered the box at different times.[53] Given the inconsistencies and contradictions in his evidence, alongside theevidence from the Police constable and the photographs, the Judge was well justifiedin concluding that Messrs McIntosh and Neville would have been able to see the facesof the dogs in the box on the back of Mr Terry's vehicle when it passed them on AstonRoad on 9 May 2017. The Judge could also have concluded that Mr Terry had alteredthe dog box and then photographed it in an attempt to show that the witnesses wouldnot have been able to see dogs in the dog box on 9 May 2017 as they had described.[54] The Judge reasonably concluded Mr Terry's evidence as to the changing stateof the dog box was "confusing and unreliable" and at times "appeared to be desperate".[55] After considering all the evidence, given the Judge had concluded that MrTerry's evidence was neither "credible, nor reliable", the Judge considered itappropriate to put Mr Terry's evidence to one side. There was a reasonable basis forhim to disregard Mr Terry's evidence in that way.Timing issues and non-consideration of the possibility of other vehicles[56] There was good reason for the Judge to conclude that it was Mr Terry's vehiclewhich Messrs McIntosh and Neville observed travelling over Ida Valley Station landto the right of Old Dunstan Road. These were remote country roads. Messrs McIntoshand Neville acknowledged they could not say that it was impossible for another vehicleto have been on Old Dunstan Road between Poolburn Dam and Aston Road aroundthe relevant time. They did not have a view of the whole of that approximate13 kilometres of road. It was nevertheless clear from their evidence that they saw nosign of any other vehicle travelling along Old Dunstan Road at a time which wouldhave been consistent with that being the white vehicle the witnesses observed on IdaValley Station, or which would have been responsible for the freshly made tracksleading from Old Dunstan Road to the Station land just after the cattlestop.[57] Mr Neville was clear that he had observed Mr Terry's vehicle turning off OldDunstan Road to go onto Ida Valley Station land. Mr McIntosh had not seen thevehicle turn off but had noticed the point at which dust from the vehicle ended, at apoint just past the cattlestop. Both men saw freshly made tracks left by a vehicle atthat point consistent with that vehicle also being the one they saw travelling over IdaValley Station into the distance.[58] Both men had taken a keen interest in what the vehicle was doing after it hadpassed them on Aston Road. They were suspicious of what the driver was doing,having observed the dogs that were in the back and also having noted the unusualbehaviour of the driver in not acknowledging or facing them in any way. Mr Terryaccepted that there was no acknowledgement between him and Messrs McIntosh andNeville, as might have been expected with "the country code", as he slowly went pastthem when they were with the mob of sheep. The men were suspicious enough tohave noted the registration number of the vehicle and to have telephoned the owner ofIda Valley Station to see if anyone had permission to be hunting on his property onthat day.[59] The Judge could reasonably conclude that, if Mr Terry took photographs of thegate at the cattlestop and of Poolburn Dam at the time he sent messages to his partner,this would not have been inconsistent with his also having travelled onto Ida ValleyStation. The distance between the cattlestop and Poolburn Dam was approximatelyeight kilometres. He could have travelled for some or all of the distance at more than30 kph. Mr Terry would not necessarily have had to return to Old Dunstan Road atthe point he had left it to go on to Poolburn Dam. Old Dunstan Road was not borderedby fences. There were a number of cattlestops along that road. There would thus havebeen little to prevent Mr Terry returning to Old Dunstan Road having travelled acrosssome part of Ida Valley Station land. As the Judge reasonably decided was likely, thiswas something Mr Terry might well have chosen to do once he had seen the witnesses'vehicle stop just beyond the cattlestop on Old Dunstan Road, as they observed MrTerry's vehicle on Ida Valley Station.[60] The Judge proceeded on the basis the evidence from the witnesses as to thetime they had seen Mr Terry's vehicle on Aston Road at around 5.30 pm was onlyapproximate.[61] Mr Terry did produce some documentary evidence to show he had sent thephotographs of a closed gate and of Poolburn Dam to his partner at the times heindicated. The only evidence to establish the photographs were taken at the time ofthose messages was from Mr Terry. The Judge had found that Mr Terry was so lackingin credibility that he put to one side all of Mr Terry's evidence. Mr Terry claimed inevidence that he had stopped for five to seven minutes at the gate where he took aphotograph and relieved himself. Neither of the witnesses had seen this. It was notsuggested they could or should have observed him being stationary at the cattlestop inthat way. It was not suggested to witnesses that there had been a gate closed acrossthe cattlestop at the time.[62] One of the photos, purportedly of the Poolburn Dam, was associated with amessage sent at 5.29 pm. The message said "Full moon tonight". The photo appearsto show the sun either rising or setting rather than a full moon.[63] The Judge could reasonably conclude that Mr Terry's evidence as to the timingof the messages to his partner and the photographs was not sufficient to raise areasonable doubt as to whether he had travelled onto Ida Valley Station land.Medical evidence[64] It was submitted for Mr Terry that there was an unfairness to him and an errorin the way he was not permitted to refer to medical records to show that he would havebeen unable to go hunting on 9 May 2017 because of a previous injury. He had saidnothing about that when he was interviewed by the Police. He said nothing about thatin his evidence at trial.[65] There was no error in the way the Judge dealt with the medical evidence MrTerry's counsel wished to put before the Court. There was no formal ruling on thematter but, when the issue arose, the Judge indicated he would not accept that evidenceas documentary evidence if the defence wished to produce it for the purpose of provingthat Mr Terry was incapable of hunting animals on Ida Valley Station on 9 May 2017.The Judge indicated that, if the evidence was being adduced for that purpose, thedefence would need to establish that the maker of the relevant statements wasunavailable to give evidence. However, he permitted counsel to produce a copy of anunsigned ACC medical certificate for Mr Terry. That certificate referred to Mr Terryhaving suffered an injury to his knee and a sprain when kicked by a cattle beast on 28January 2017. The certificate said he was unfit to work from 1 May 2017 to 4 June2017. The Judge permitted the defence to produce that certificate as evidence that MrTerry had suffered an injury but made it clear he was not accepting it as evidence thatMr Terry was incapable of hunting animals on 9 May 2017.[66] I do not see there was any error in the Judge proceeding in that way or that theevidence was dealt with in a way which has led to a miscarriage of justice. Once theJudge accepted that Mr Terry had hunting dogs in the box on the back of his vehicleon 9 May 2017, there was evidence that Mr Terry considered himself capable of goinghunting at that time.[67] In his text to the Station owner, where he had sought a resolution that wouldavoid his facing court proceedings, Mr Terry referred to being on ACC at the time hewas observed on Ida Valley Station and then served with a trespass notice in 2015. Hehad said nothing in that text of being unable to hunt on 9 May 2017. He made noclaim as to this in his evidence at trial.[68] Mr Mooney sought to further advance his submissions as to this claimed errorby attaching to his submissions for the appeal further medical records. These includedrecords as to an injury Mr Terry had suffered on 14 June 2015 when he had fallen offa motorbike, and as to the injury he had suffered when a cow kicked his right knee inJanuary 2017.[69] There was nothing in the medical information to suggest that Mr Terry was stilldisabled in May 2017 from the 2015 accident.[70] As to the injury Mr Terry suffered in January 2017, there was a reference in adoctor's report to Mr Terry having been assessed on 22 February, 30 March and 25May 2017. Information in that document suggested that, when initially assessed on22 February 2017, Mr Terry said he had been unable to walk and had been on crutchesuntil about 10 days prior to those assessments. At review on 30 March 2017 he wasable to walk but with a shortened gait. By 25 May 2017, he was going to the gymtwice a week and was biking five days a week. He had begun working one day a weekon wilding tree control.[71] Had the information in those records been admitted as business records, itwould not have been sufficient to establish that, when Mr Terry drove his vehicle ontoIda Valley Station with hunting dogs on the back, he did so for some purpose otherthan hunting.Failure to consider whether Mr Terry had proven, on the balance of probabilities,he had not been hunting[72] Once the Judge accepted, as he was justified in doing, that Mr Terry hadhunting dogs in the box on the back of his vehicle on 9 May 2017, there was goodreason for him to reject Mr Terry's explanation as to why he had been on Aston Roadand then driving along Old Dunstan Road on 9 May 2017.[73] I do not accept the submission that the Judge failed to turn his mind to whetherMr Terry had met the burden which he had, pursuant to s 38(1) Wild Animal ControlAct, to show that he had not gone onto Ida Valley Station for the purpose of huntinganimals.[74] In his decision, the Judge said, once hunting on land without authority wasproven, the onus moved to Mr Terry to prove, on the balance of probabilities, that hewas without intent or fault.8 He gave an example of the way the reverse onus operatedwith his reference to Valenski v Conservator of Forests.98 Citing Bevan v Police, above n 2.9 Valenski v Conservator of Forests, above n 3.[75] The Judge said that in his overall assessment of Mr Terry's lack of reliabilityand credibility he could not be satisfied that Mr Terry's partner's child was in thebackseat of the vehicle on 9 May 2017 or whether he had taken her away for a drive.[76] The Judge expressly asked himself "has any part of Mr Terry's evidencepersuaded me that he was not hunting?". After posing that question, the Judge referredto the assessment he made earlier as to Mr Terry's lack of reliability and credibility.He considered that, even accepting Mr Terry's timing as to when he took photographsat the closed gate, the cattlestop and as he approached the Poolburn reservoir, he hadample time to have driven onto Ida Valley Station with his hunting dogs. Acceptingthe timing of the photographs as Mr Terry had stated, he considered that all that timingdid was raise an issue as to how long Mr Terry had been on the property. He drew aninference that, just as Mr Neville had seen Mr Terry on Ida Valley Station, it was likelythat Mr Terry had seen Mr Neville and his vehicle so as to exit Ida Valley Station ashe did and take the photographs that he did. He accepted that it would have been MrTerry's overall intention to hunt with his dogs but that was cut short. The Judge thusconsidered all the evidence he had heard. He explained why the evidence was notsufficient to satisfy the onus which was on Mr Terry to show he had not gone onto IdaValley Station from Old Dunstan Road for the purpose of hunting.Conclusion[77] Mr Terry has been unable to establish that the Judge made any error in hisassessment of the evidence or that a miscarriage of justice has occurred in any of theways that were advanced.[78] Mr Terry's appeal is dismissed.Solicitors:J Mooney, Barrister, QueenstownRPB Law, Dunedin.This judgment was delivered by me on 4 October 2019 at 10.00 am.Registrar / Deputy RegistrarDate: 4 October 2019