An animal activist found guilty of hindering last year's kangaroo cull has had his conviction overturned on appeal after an ACT Supreme Court judge found the shooting operation was unlawful.
Subscribe now for unlimited access.
or signup to continue reading
Christiaan Klootwijk, 71 was charged after cull workers heard a whistle and yelling soon after they began an after-dark shoot in the Wanniassa Hills Nature Reserve in July last year.
He later pleaded not guilty in the ACT Magistrates Court to two charges he hindered a public official in the course of his duties during the cull.
During the hearing, prosecutors argued the defendant had hindered the government-contracted shooter by blowing the whistle, and that his actions halted the cull for about 45 minutes.
But defence lawyer Jack Pappas questioned the validity of the shooting licence and suggested the ACT government employees had not been hindered by his actions.
Chief Magistrate Lorraine Walker was satisfied beyond reasonable doubt Klootwijk intended to hinder the cull and found him guilty of a single offence in April.
The second charge was dropped after Ms Walker found the licence was technically invalid at the time of the operation, and the contracted shooter hired to carry out the cull could not be considered a public official.
Lawyers for Mr Klootwijk launched an appeal against his conviction in the higher court on Wednesday, arguing the chief magistrate had failed to make a finding on the validity of the licence.
Barrister Jack Pappas said the cull would have been stopped anyway as shooters were required to halt if an animal was injured and said Mr Klootwijk would have needed to know who the public official was, and his role, if he was to have hindered him .
Justice Michael Elkaim, in throwing out the conviction, said the appeal largely hinged on the question of the licence.
He said Ms Walker had found the licence was invalid because it was issued to ACT Parks and Conservation under legislation that had since been repealed – a point that was not disputed by the Crown.
Justice Elkaim found since the licence was not valid, it followed that the shooting operation itself was illegal.
"If the cull was not lawful, I say that the cull could not be lawfully hindered.
"I am of the view, therefore, that having found the licence was not valid, her honour fell into error in finding the invalidity of the licence did not effect the validity of the cull."
He ordered Mr Klootwijk's conviction be set aside, to the applause of one of several supporters in the courtroom.
Animal rights activists have long protested against the territory government's annual attempt to control the population of eastern grey kangaroos, which this year targeted nearly 2000 animals across 10 sites.
A spokesman for the Transport Canberra and City Services Directorate said in a statement the Magistrate's Court judgement had been considered and a decision made that the cull could continue.
"The licence was issued under the correct legislation (Nature Conservation Act).
"Whilst there was reference in the licence to the wrong section of the legislation, a view was taken based on the judgement that it did not invalidate the licence for the purpose of the cull."
He said the government would seek advice once the court's full decision was available.
Justice Elkaim had pointed out the judgment was not a comment on "the need, morality or otherwise" of culling kangaroos and said the case was based on whether the Crown had proved Mr Klootwijk had disrupted the operation.
He said while he had no doubt Mr Klootwijk was at the reserve to hinder the cull, though that did not necessarily mean he was guilty of the offence.
"He was there, by his counsel's own submission, to be a pest, and that's precisely what he was."
Justice Elkaim upheld several of the chief magistrate's other findings, saying the defence's argument that the cull would have been stopped anyway failed to distinguish between the operation being halted, and the cull being delayed or hindered.
He said while it might not be possible to know who the public official was or what they were doing given the cull was conducted at night, under law the prosecution couldn't fail because the offender didn't know precisely who the official was.
Mr Klootwijk was awarded costs for the Magistrates Court hearing.
