Cocked Kiwi Downs Drone: a Case Note from our Cousins across the Ditch

Tom Pils

Given the criminal law nature of this article, we have the absolute pleasure of collaborating with Criminal Lawyer Andrew Tiedt, Director at J Sutton Associates, and author of the incredible criminal law resource website, TrialDirections.com.au.

For this article, we traverse the Tasman Sea and look at a case from New Zealand, and then consider whether the outcome may be similar back here in Oz.

The situation

A Mr Randall was contracted by a real estate agent to capture some images of a property by way of drone for a listing. A Mr Heath, owner-occupier of a neighbouring property, alleged that the drone entered the air space above his property, he felt threatened, and fired his shot gun at the drone, a slug hit the drone but which was still able to land albeit roughly. Mr Randall denies that he operated the drone over Heath’s property. The Police charged Heath with two offences and Heath pleaded not guilty.

The charges

Heath faced two charges:

1: Intentional or reckless damage of Randall’s property, being his drone, without lawful justification or excuse or claim of right under the NZ Summary Offences Act; and

2:, Discharging a firearm, in or near a dwellinghouse or a public place without reasonable excuse so as to (a) endanger property; or (b) endanger, annoy, or frighten any person, under the NZ Arms Act.

These offences carry the criminal burden and standard of proof. This means that it is up to the prosecution to prove Heath’s guilt beyond reasonable doubt for each charge.

Procedural note

Criminal charges are usually made up of a number of elements or criteria that must be proved beyond reasonable doubt before a person can be found guilty of a particular offence.

For the firearms charge, the prosecution must establish that the firearm was discharged; AND it was without reasonable cause; AND that it was near a public place; AND that it was done so to endanger property. To decide if the shotgun was discharged “without reasonable cause”, the Court considers whether an ordinary citizen would consider it to be reasonable in all the circumstances.

For the property damage charge, the prosecution must establish that the drone was the property of Randall, AND that Heath intentionally damaged it.

The arguments

Heath

Heath argued that Randall’s drone was being operated over Heath’s private property, that there was a shot fired in the direction of the drone, but this was on Heath’s property, and it was done for the purpose of protecting Heath’s property and privacy. Heath claimed that he had given a warning, he felt threatened by the drone, and so had a claim of right to discharge the firearm.

This “claim of right” is a legal defence around using reasonable force to defend your possessions.

Police

The Police argued that Randall had permission to fly the drone over the neighbouring property for the purposes of the real estate job and that the drone never went over Heath’s property; and that Heath fired from his property to the neighbouring property and damaged the drone.

Then what?

Witnesses were called and there was evidence from six people; three people favouring Heath’s version and three people favouring the Police version.

The Judge was given the tricky job of weighing up each witness’ evidence in the context of all of the evidence.

The outcome

The Judge was left with a situation whereby it was reasonably possible that the drone was operated over Heath’s property, invading his privacy and that the firearm was discharged over Heath’s property. The Judge also considered the reasonable possibility that Heath had a claim of right when he fired the shot.

In those circumstances, the Judge found that the prosecution failed to prove that Heath discharged the shotgun, near a public place, so as to endanger property and without reasonable excuse.

As a result, Heath was entitled to the benefit of the doubt and discharged on both matters. That is, NOT GUILTY, YOUR HONOUR!

Australian context: How might this go down in Australia?

Matters like this always turn on their own facts, so it is very difficult to be certain how a similar situation might play out in Australia. Having said that, were this to have happened in Australia, it is unlikely that Heath would have had a defence. In general, a person is allowed to use reasonable force to protect their property, their safety, and the safety of others. However, it is not apparent on the material available in the judgment that Heath had any genuine basis to be fearful of (as opposed to, we might assume, annoyed at) the drone. Certainly it seems impossible to see how discharging a shotgun could be regarded as a reasonable response. In short, in Australia, it is likely that Heath would have been convicted.