IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA202/2020
 [2020] NZCA 340

	
BETWEEN	
ALLAN RAMON RICKARD
Applicant	
	
AND	
DEPARTMENT OF CONSERVATION
Respondent	

Court:	
Clifford, Woolford and Dunningham JJ	

Counsel:	
A S P Tobeck for Applicant
J M Irwin for Respondent	

Judgment:
(On the papers)	
12 August 2020 at 10.30 am	

JUDGMENT OF THE COURT

The application for leave for a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)
Introduction
[1]	Southland’s Waitutu River drains Lake Poteriteri through native lowland forest to the Tasman Sea.  It comprises a portion of the Fiordland National Park (FNP).  On 31 October 2017, Allan Ramon Rickard, of Cromwell, was fishing with nets for whitebait with two associates near the mouth of the Waitutu River.  They were prosecuted by the Department of Conservation on the basis that they were fishing within the boundary of the FNP, this being a prohibited activity.  Mr Rickard comes before this Court making an application for leave for a second appeal.
Factual and procedural background
[2]	Mr Rickard and his co-offenders faced two charges under the National Parks Act 1980 (NPA), alleging they:
(a)	without being authorised by the Minister of Conservation or by any bylaw made under the NPA, did take by fishing native animals, namely whitebait, in the FNP; and
(b)	without being authorised by the Minister of Conservation, were in possession of a fishing net in the FNP.
[3]	In the Invercargill District Court, the three defendants were found guilty by Judge Harrop of both charges and were convicted.  The defendants were fined.
[4]	Mr Rickard appealed his conviction to the High Court in Invercargill before Osborne J, on the basis that the District Court Judge erred in holding the land upon which he was fishing and in possession of a fishing net (the fishing spot) was within the FNP.  He also appealed his sentence on the basis that the fine of $5,625 was manifestly excessive.  Whilst the Judge found the fishing spot to be on the foreshore for the purposes of s 7 of the NPA, that foreshore was inland and upstream of the Mean High Water Springs (MHWS) line, and thus within the FNP.  Accordingly, the Judge dismissed the appeal in its entirety.
Application for leave for second appeal
[5]	Section 237(2) of the Criminal Procedure Act 2011 (CPA) provides that this Court must not grant leave unless it is satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.  The statutory test sets a high threshold.
[6]	When dealing with leave-only applications it is appropriate to give reasons “briefly and in general terms”, as envisaged by r 5I of the Court of Appeal (Criminal) Rules 2001.
[7]	The primary issues for Mr Rickard in the proposed appeal are:
(a)	When the Waitutu lands were made a conservation area, was the fishing spot included in the lands made a conservation area? 
(b)	Was the fishing spot subsequently validly incorporated into the FNP?
[8]	These two issues reflect the fact that adding the fishing spot to the FNP was a two-step process: first, the land became a conservation area, and second, it was added to the FNP.
[9]	On 1 July 1999, the bed of the Waitutu River was part of a 46,507.2 hectare area declared by the Minister of Conservation to be a conservation area under the Conservation Act 1987.  Relevantly, the area included area “A” as marked on a Certified Survey Office Plan (SO11763).  According to SO11763, the seaward boundary of area “A” crossed the bed of the Waitutu River at the MHWS.  On 20 September 1999, the same area marked “A” on SO11763 was added to the FNP.
[10]	Mr Rickard has consistently claimed that the fishing spot was on the foreshore, which is defined in s 2 of the NPA as meaning any land covered and uncovered by the flow and ebb of the tide at mean spring tides.  Mr Rickard claims that, as the fishing spot was on the foreshore, s 7(6) of the NPA required the Department of Conservation to obtain the consent of the Minister of Transport and the Regional Council to add the foreshore to the FNP.  This did not occur.  Mr Rickard therefore claims that the fishing spot was never within the FNP.
[11]	In the High Court, the Judge accepted that the fishing spot could “quite possibly” have been covered and uncovered by the flow and ebb of the tide at mean spring tides, but it did not matter.  Section 7(6) of the NPA, which contains the foreshore consent requirements, does not apply when adding foreshore that was already a conservation area to a national park.  Section 7(1)(a)(i) applied and s 7(1)(c) did not.  Section 7(6) only applies where the foreshore was added through the s 7(1)(c) process, namely, where the foreshore is not already a conservation area.  Therefore, s 7(6) did not apply in this case.  The land, including the fishing spot on the foreshore, was all validly added to the FNP.
[12]	We see no reason to doubt the interpretation of the NPA adopted in the High Court.  A miscarriage of justice has not occurred and will not occur.  Mr Rickard was convicted at a Judge-alone trial.  His conviction was upheld on the basis of unchallenged evidence in the High Court, which established the location of the MHWS line.  All issues were canvassed at length in both Courts.
[13]	The appeal does not involve a matter of general or public importance.  Mr Rickard was fishing with prohibited equipment in a national park, an area set aside to be “preserved as far as possible in [its] natural state”.  This is not a matter warranting a second appeal.
[14]	We decline Mr Rickard’s application for leave for a second appeal.

Solicitors: 
Menzies Marshall Law, Winton for Applicant
Crown Law Office, Wellington for Respondent