Balfour and Balfour v R

• Jurisdiction: New Zealand
• Judge: White J
• Judgment Date: 13 September 2013
• Neutral Citation: [2013] NZCA 429
• Docket Number: CA444/2012
• Court: Court of Appeal
• Date: 13 September 2013

BETWEEN

Daryl Kirsty Reid Balfour

Appellant

and

The Queen

Respondent

BETWEEN

David Neil Balfour

Appellant

and

The Queen

Respondent

[2013] NZCA 429

Court:

White, Goddard and Simon France JJ

CA444/2012

CA445/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeals against convictions under the Animal Welfare Act 1999 (“AWA”) and imposed sentences and costs — appellant convicted for failing to ensure the physical, health, and behavioural needs of 87 dogs and 161 cats were met, and ill — treating up to 161 cats — sentence imposed of $12,500 each, disqualification from owning cats or dogs (other than their own pets) for 20 years, and orders for costs under Costs in Criminal Cases Regulations 1987 and Witnesses and Interpreters Fees Regulations 1974 totalling $27,818 — whether Judge had erred in relation to admissibility of evidence or determination of certain aspects of the AWA — whether there had been a breach of appellants rights under s24(d) New Zealand Bill of Rights Act 1990 (rights of person charged) — whether the convictions were unsupported by evidence — whether sentence of fines and disqualification period within available range — whether the order for costs appropriate in in light of the representative charges and the complexity.

Counsel:

E J Forster for Appellants

S B Edwards for Respondent

• A The application by the appellants for leave to adduce further evidence on appeal is declined.

• B The appeals against conviction and sentence are dismissed.

• C The appeal against the orders for costs is allowed and the orders made in the District Court under the Costs in Criminal Cases Regulations 1987 and the Witnesses and Interpreters Fees Regulations 1974 are set aside.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by White J)

Table of Contents

	Para No
Introduction	[1]
The District Court trial	[8]
The conviction appeals	[10]
The Animal Welfare Act 1999	[12]
The pre-trial ruling	[18]
Interpreting the phrase “any significant injury or disease”	[25]
Proof of injury or disease required?	[29]
Meaning of #x201C;adequate shelter”	[34]
Breach of s 24(d) of the NZBORA?	[38]
Unfair use of representative charges?	[46]
Expert evidence	[49]
Dr Flinte	[54]
Mr McLaren	[61]
Verdicts unsupported by the evidence?	[68]
Necessary to identify cats in distress specifically?	[88]
The sentence appeals	[96]
Discharge without conviction?	[100]
Manifestly excessive fines?	[105]
Lesser period of disqualification?	[118]
Lesser period of disqualification?	[118]
Costs appeal	[127]
Result	[127]

Introduction

1 Mr and Mrs Balfour (the Balfours) appeal against their convictions following a 30-day judge-alone trial in the District Court at Palmerston North on the following three representative charges brought under ss 10 and 12(a) and s 29(a) of the Animal Welfare Act 1999 (the AWA): 1

• (a) failing to ensure that the physical, health, and behavioural needs of no more than 87 dogs were met (count 1);

• (b) failing to ensure that the physical, health, and behavioural needs of no more than 161 cats were met (count 2); and

• (c) ill-treating no more than 161 cats (count 4).

2 They also appeal against their sentences, comprising fines totalling $12,500 each, payable to the Royal New Zealand Society for the Prevention of Cruelty to Animals (the SPCA) under s 171 of the AWA, disqualification from owning cats or dogs (other than their own pets) for a period of 20 years, 2 and orders for costs under the Costs in Criminal Cases Regulations 1987 and the Witnesses and Interpreters Fees Regulations 1974 totalling $27,818.08. 3

3 The Crown did not submit that the Balfours required leave to appeal against the costs orders. We adopt the view that leave is not required under s 379CA of the Crimes Act 1961, 4 but if leave had been required, we would have been prepared to treat the notice of appeal as an application for leave and would have granted an extension of time under s 379CA(4).

4 The Balfours were acquitted on a fourth representative charge of ill-treating no more than 87 dogs. 5 In addition, although under count 1 the Crown alleged that the Balfours had failed to meet their obligations in respect of four of the specified physical, health, and behavioural needs set out in s 4 of the AWA, the Judge found that this allegation was proven only in respect of one of those needs. 6 An application by the Crown under s 173 of the AWA for the Balfours to pay the expenses of the SPCA incurred when their property was searched was also declined. 7

5 The charges against the Balfours were brought following the search of their rural property where they ran a commercial partnership with their partner Mr Moir breeding pedigree cats and dogs. The search under warrant was conducted on 5 March 2007 by officers of the SPCA, appointed as inspectors under the AWA, 8 and

the police. 9 The search was also filmed by a Television New Zealand (TVNZ) cameraman contracted by the SPCA to film evidence as an “assistant”. 10

6 In a largely successful pre-trial challenge to the validity of the search, the Balfours obtained orders from Judge Garland in the District Court excluding from their trial the TVNZ film and all evidence relating to the Balfours' home. 11 The remainder of the evidence obtained during the search, in particular the observations and photographs of the SPCA officers as to the state of the property (other than the home) and the animals, was, however, ruled admissible on a balancing of the impropriety of the search under s 30 of the Evidence Act 2006 against those factors which favoured the admission of the evidence namely: the importance of the evidence to the prosecution case (it would have failed without it); the Balfours' lesser privacy interest in areas other than their home; and the fact that SPCA could have exercised a right of inspection under s 127 of the AWA, which, if invoked, would have made the search (except as it related to the presence of the TVNZcameraman and the Balfours' home) legal. 12

7 An attempt by the Balfours to appeal to this Court out of time against the admissibility of the latter evidence was unsuccessful. 13 This Court also saw no merit in the proposed appeal. 14

The District Court trial

8 Judge Fraser, who conducted the Balfours' trial on the four representative charges, found them guilty on three of them on the basis of the evidence of the SPCA inspectors and four veterinary surgeons, which he accepted in preference to the evidence of the Balfours and their witness. 15 The Judge was satisfied that the Balfours had failed to ensure that the physical, health and behavioural needs of the

animals were met and that they had ill-treated the cats. The Judge accepted evidence describing the “generally filthy”, “dirty” and “unhygienic” conditions and the “obvious lack of hygiene” on the Balfours' property. 16 A range of diseases were present in the cat population, 17 and the Judge accepted that cats were suffering from degrees of dehydration. 18 Ultimately, most of the cats and many of the dogs had to be destroyed. 19

9 In reaching his verdicts, Judge Fraser rejected the Balfours' defences that: 20

• (a) the Crown had failed to prove the charges beyond reasonable doubt;

• (b) they had taken all reasonable steps to avoid harm to the animals;

• (c) animals affected by disease at their property were under (adequate) treatment;

• (d) disease was part of a natural cycle met by protection and rapid diagnosis; and

• (e) if there was a definable standard of care, it was met and there was no breach.

The conviction appeals

10 The Balfours now appeal against Judge Fraser's guilty verdicts on the following grounds:

• (a) In the pre-trial ruling, Judge Garland erred in exercising the balancing test under s 30 of the Evidence Act and excluding only part of the inadmissible evidence obtained on the search of their property.

• (b) In the conviction decision, Judge Fraser erred in interpreting the

  phrase “any significant injury or disease” in s 4 of the Act as not requiring that the disease be significant.

• (c) Judge Fraser erred in determining that ss 10 and 12(a) of the Act did not require proof of injury or disease.

• (d) Judge Fraser erred by applying an extended definition of “shelter” in s 4 of the Act.

• (e) There was a breach of their rights under s 24(d) of the New Zealand Bill of Rights Act 1990 (the NZBORA) to have adequate time and facilities to prepare a defence.

• (f) Representative charges were improperly used.

• (g) The evidence of two SPCA experts (Dr Flint and Mr McLaren) should have been ruled inadmissible.

• (h) The convictions were unsupported by the evidence.

• (i) The conviction on count 4 was not sustainable because not one or more of the cats was or were specifically identified as being in distress.

11 Before addressing each of these grounds in turn, it is convenient to summarise the purpose and scheme of the AWA, the relevant provisions of which are attached as an appendix to this judgment.

The Animal Welfare Act 1999

12 The AWA is the single most important piece of legislation in New Zealand relating to the protection of all kinds of animals under human control. 21 It replaced earlier legislation, which had focussed principally on prohibiting cruelty to

animals, 22 with new provisions derived from internationally accepted principles known as the “Five Freedoms” of animal welfare, namely: 23

• (a) Freedom from thirst — by ready access to fresh water and a diet to maintain full health and vigour.

• (b) Freedom from discomfort - by providing a suitable environment including shelter and a comfortable resting area.

• (c) Freedom from pain, injury and disease — by prevention or rapid diagnosis and treatment.

• (d) Freedom to express normal behaviour - by providing...