IN THE COURT OF APPEAL OF NEW ZEALAND
CA398/2014
[2015] NZCA 621
BETWEEN
DOUGLAS JOHN WILLIAMSON
Appellant
AND
THE QUEEN
Respondent
CA399/2014
BETWEEN
JOHN BLACKWOOD WILLIAMSON
Appellant
AND
THE QUEEN
Respondent
Hearing:
11 November 2015
Court:
Kós, Fogarty and Mallon JJ
Counsel:
T W Fournier and E Huda for Appellants
M H Cooke for Respondent
Judgment:
18 December 2015 at 12.30 pm
JUDGMENT OF THE COURT
A
The appeals against conviction are dismissed.
B
The applications to adduce fresh evidence are declined.
C
The appeals against sentence are dismissed.
____________________________________________________________________
WILLIAMSON v R [2015] NZCA 621 [18 December 2015]
REASONS OF THE COURT
(Given by Fogarty J)
Introduction
[1]
The appellants, Messrs Williamson, faced trial in the District Court at
Christchurch on indictment for:
(a)
One count alleging ill-treatment of a horse under s 29(a) of the
Animal Welfare Act 1999.
(To which they pleaded guilty after
hearing the Crown’s case.)
(b)
Six counts alleging wilful ill-treatment of horses under s 28(1)(c) of
the Animal Welfare Act. (To which they, likewise, pleaded guilty.)
(c)
Eleven counts alleging failure to ensure the physical, health and
behavioural needs of horses are met under ss 10 and 12(a) of the
Animal Welfare Act. (To which they pleaded guilty to five of the
counts, being discharged on the balance.)
[2]
Messrs Williamson made applications to vacate their pleas of guilty. These
were declined by Judge Saunders.1
Subsequently, they were each sentenced to
16 months’ imprisonment by Judge Farish.
[3]
The appellants appeal against their convictions.
They contend Judge
Saunders erred in refusing to allow them to vacate their guilty pleas. They contend
that the Judge failed to properly assess the relevant issues when considering whether
there had been a miscarriage of justice.
[4]
They also appeal against the sentence of 16 months’ imprisonment imposed
by Judge Farish.2 They contend that she incorrectly assessed the seriousness of the
offending. That she was wrong to adopt a starting point of imprisonment. And that
1
2
R v Williamson DC Christchurch CRI-2012-009-10644, 17 June 2014.
R v Williamson DC Christchurch CRI-2012-009-10644, 16 July 2014.
if imprisonment was the correct type of sentence, 16 months was too high. Finally, if
the end point was imprisonment, the Judge misdirected herself when considering and
rejecting home detention.
Narrative
[5]
On 2 October 2009, two SPCA inspectors went to the property at Quaifes
Road, occupied by the appellants. They found quite a few horses in various states of
condition, in paddocks with very minimal feed.
[6]
They returned four days later, on 6 October. The two same inspectors, but
this time accompanied by a veterinarian, Dr Amira Mikhial.
[7]
Following that visit, one of the SPCA inspectors met with Mr John
Williamson the next day and gave him a Notice of Instruction under s 130 of the
Animal Welfare Act requiring the horses to have good quality hay until there was
better grazing and also to be wormed with a commercial broad spectrum wormer, to
be deloused and, for some horses with long cracked hoofs, for them to be tended to.
These visits were followed up. There was a further visit in early November, another
in December. Some improvement was observed to the horses’ skin, but otherwise
there was no evidence of compliance with the notice. Mr John Williamson said he
had deloused and wormed most of the horses and had fed hay to them but not every
day. At the visit on 15 December he was handed another s 130 Notice of Instruction,
again giving him instructions to supply hay to the horses. Both at this meeting and
earlier meetings, there had been some concerns about the quality of the water
troughs and the ability to refill and supply fresh clean water.
[8]
There was another visit on 23 December. Mr Douglas Williamson was there
and feeding out hay. He was also working on fences. There were 31 horses on the
property at this time. There was little change in the body condition of them. There
was another meeting on site between two SPCA inspectors and Mr John Williamson
on 27 January 2010. There was some talk about moving the horses. Another s 130
Notice of Instruction was served.
On 16 February 2010, Mr John Williamson
advised the inspectors by phone he was getting more hay, working on the fencing to
separate the horses and on the water troughs. A further inspection on 23 February
confirmed that additional hay was provided but no further steps to comply with the
notice were evident.
[9]
There were further discussions in March between an SPCA inspector and
Mr John Williamson.
[10]
On 26 March, two SPCA inspectors and Dr Ranken, a veterinary surgeon
inspected the horses. They found the horses in a very poor body condition and a
very poor state of wellbeing. Officials of the SPCA decided to remove the horses.
They understood they needed to apply for a search warrant to do so. To that end, a
search warrant was obtained on 27 March.
[11]
On 29 March 2010, a team of SPCA inspectors arrived at the property to
execute the search warrant. They found that 12 horses had been moved elsewhere
since the previous visit. When asked about the missing horses, the appellants were
not forthcoming. Douglas Williamson refused to disclose where they were, and told
an SPCA inspector, "You're not going to find them”.
[12]
During the execution of the search warrant, one of the horses, a colt, was
found down in a back paddock. He was unable to get up. He was euthanised. He is
the subject of one of the charges of wilful ill-treatment.
[13]
An emaciated stallion, Danny B, was also discovered on the property,
confined in a small, dark stable. There was no feed available, and the stall had no
bedding. Danny B's ribs were visible through his skin, he had patchy hair loss and
swollen limbs, and he was exhibiting behaviour characteristic of animals subjected
to long periods of confinement and boredom. He was the subject of the count of
ill-treatment, s 29(a).
[14]
The horses were removed to another property. There was further examination
of the horses by Dr Ranken and Dr van den Enden, both from the Canterbury Equine
Clinic, and Dr Senior, a veterinarian acting for the Williamsons. Five horses were
euthanised. The veterinarians, including Dr Senior, agreed that the condition of
those horses was extremely poor.
Dr van den Enden phrased the criteria of
assessment in this way:
… the purpose of our assessment was to assess the general health of these
horses and the body conditions for those horses and the chances for those
horses to recuperate and develop into a normal healthy horse, and that’s why
the three of us were there.
[15]
His opinion was:
… the general condition of those horses was extremely poor … because
these horses were all very young and they were not fully grown it’s my
professional opinion the chances of these horses could develop themselves
into healthy grown up horses was very, very slim and it is my opinion that
these horses were basically not recoverable.
[16]
It was Dr Ranken’s recommendation that 10 to 12 horses in the lowest body
condition score (one out of five) should be humanely destroyed.
[17]
The body score of the bay colt euthanised in the field and the five other
horses had a body condition score of zero. The colt was euthanised because it could
not get up. The other horses were euthanised “because they would never reach their
adult growths”.
[18]
The post mortem results showed that there was such a loss or destruction or
absence of muscular structure in the horses that they were basically eating
themselves. The normal fat layer under the skin had completely gone.
[19]
On 31 March 2010, a team of SPCA inspectors and three veterinarians,
Dr Ranken,
Dr van den Enden and Dr Lucia Tucker-Nuttall (representing the
Williamsons), went to a third property at West Coast Road, where the 12 horses that
were originally at the first property had been moved. There these 12 horses were
examined again.
The trial
[20]
The Crown case was that, by failing to provide sufficient water and feed,
adequate housing, and to protect the horses from disease, the appellants had
ill-treated Danny B, wilfully ill-treated the six horses that were euthanised, and had
failed to comply with their statutory duty to ensure the physical, health and
behavioural needs of 11 other horses were met.
[21]
The Crown alleged the ill-treatment of the horses that were euthanised had
been wilful, as the deterioration in their condition had been evident for some time,
the appellants had ignored the SPCA directions specified in the statutory notices for
their improved care, and the appellants had attempted to avoid further examination
of their horses by shifting 12 horses off the property.
[22]
The appellants’ defence at trial (signalled by the cross-examination of Crown
witnesses) was that they had maintained an adequate feeding and de-worming
regime, and that the deterioration in the condition of the horses was caused by an
excess of iron in their drinking water (iron toxicosis), rather than malnutrition.
[23]
Dr Ranken and Dr Fairly, a veterinary pathologist, were cross-examined on
the issue of iron toxicosis:
(a)
Dr Ranken said he had never seen iron toxicosis in horses, and as far
as he was concerned there was no evidence of that from the results of
the post-mortems he conducted. He said that if a horse had iron
toxicosis, it would most likely be inappetent (not wanting to eat), and
would have quite obvious liver problems.
(b)
Dr Fairly was asked about his post-mortem findings in relation to
pigmented lesions that he saw on the livers of two horses. He said he
had tested those for iron and they had come back negative.
[24]
Messrs Eason and Owen, trial counsel for the appellants did not consider the
trial was going very well for their clients. They were particularly influenced by the
impact of the evidence of Dr Robert Fairly.
In addition to [23](b) above, his
evidence was that the level of worm burden in the horses was "highly unusual",
suggesting "a very high exposure to parasites”. He also said in his evidence-in-chief
he had never seen that level of worm burden before in his 30 years of experience.
[25]
Dr Fairly explained that parasites normally migrate through the abdomen. He
added: “If you can see them that’s phenomenal really.”
[26]
Dr Fairly also found the presence of parasitic infestation in fat around the
kidney which he thought was highly remarkable. Again, it was something he had
never seen before. Another remarkable finding related to omental fat attached to the
spleen. Again, there was a remarkable number of parasites present. He found a large
egg count of parasites per gram in the faeces of the animal, the standard being that
anything over 500 was considered significant for horses over six months or a year
and he found in one animal, 2,000 and in another animal, 3,900.
[27]
Dr Fairly explained that the parasitic worms feed on the tissues of the animal
which generates an inflammatory response that in turn causes a leakage of protein
into the gut which passes out in the faeces and is lost to the animal.
Pleas of guilty
[28]
Plainly, the evidence of the pathologist, Dr Fairly, coming on top of the
evidence of the other veterinarians in the field, Dr van den Enden and Dr Ranken,
painted a picture of horses in a very poor condition, overwhelmed with parasites,
with iron toxicosis discounted as a cause.
[29]
After four days of evidence, the Crown case ended on the afternoon of
Thursday the 18th. Before retiring, the trial Judge remarked that if the jury returned
guilty verdicts, an appropriate starting point for sentence would be imprisonment.
[30]
This generated a discussion between Messrs Williamson and their counsel.
The topic was a possible plea agreement. Counsel advised their clients that the
Crown’s evidence had diminished their prospects of any success. Relying on this
advice, Messrs Williamson instructed their counsel to approach Crown counsel to
negotiate a plea agreement. No agreement was reached. Mr Eason decided he
would make an application for a discharge under s 347 of the Crimes Act in respect
of his client, Mr Douglas Williamson.
[31]
The plea for a discharge was based on a point of procedure. The notices of
breach to the Animal Welfare Act had been given to his brother, not to him.
Mr Eason made this application on his own initiative and in disregard of his client’s
instructions. His client had wanted to remain loyal to his brother. Mr Eason’s
initiative appears to have been something of a last ditch attempt to obtain a
successful outcome for his client. But it came at the end of the Crown case, and it is
not suggested that it altered the direction of prior cross-examination. The application
was unsuccessful.
[32]
Mr Owen, John Williamson’s trial counsel, sought a 20-minute adjournment
to obtain instructions to engage in a plea negotiation with the Crown.
The
adjournment was granted. Messrs Williamson and their lawyers had another group
discussion as to whether they would accept the plea agreement offered by the Crown
the previous day. Messrs Williamsons say that neither Mr Eason nor Mr Owen gave
substantial legal advice to them in that regard. However, the trial issues were
relatively simple. The context was all about the lack of care for horses. The
Williamsons knew that they had not complied with notices for several months. They
knew their only defence was toxicosis. They had heard the evidence over four days.
They had heard the Judge talking of prison. In the context, it was not necessary for
their counsel to do any sophisticated analysis on top of passing their judgement to
their clients that the trial, before a jury, was going badly for them. The choice was
either for the trial to continue or to negotiate a plea agreement. Messrs Williamson
then instructed their counsel to negotiate the plea agreement. The agreement by the
Crown was resurrected and Messrs Williamson accepted it.
[33]
The plea agreement was a minor compromise in the appellants’ favour. Of
the 11 counts of failing to ensure the physical health and behavioural needs, there
were pleas to five and the balance of six were withdrawn.
More significant,
however, was that Messrs Williamson pleaded guilty to the ill-treatment of the
stallion, Danny B and six counts of wilful ill-treatment of the horses that had been
put down.
Application to vacate guilty pleas
[34]
The guilty pleas were entered into in July 2013.
On 7 November, the
appellants applied to vacate their guilty pleas on the ground that their trial counsel
had induced them to plead guilty under the mistaken belief that no tenable defence
could be advanced.
[35]
The application to vacate the guilty pleas depended on persuading the Court
that a miscarriage of justice would result if the conviction was not overturned. A
miscarriage of justice would arise if their counsel gave erroneous advice or induced a
decision on the part of the client to plead guilty under the mistaken belief or
assumption that no tenable defence existed or could be advanced.3
[36]
The application to vacate the pleas was heard by Judge Saunders.
He
declined the application, after a detailed analysis of the narrative of events. He did
not consider there was tenable defence seen to be available at the time the decision to
plead was entered. He did not think Dr Senior could have assisted the defence if he
had given evidence as he had agreed to the euthanising of the five horses.
Argument in this Court
[37]
Mr Fournier submitted that a miscarriage of justice had occurred because:
(a)
Counsel induced the appellants to plead guilty under the mistaken
belief that no tenable defence could be advanced.
(b)
Counsel failed to follow the appellants’ instructions as to the choice of
defence to advance.
(c)
Veterinarian, Dr Kathleen Parton’s evidence has become available
since trial and this evidence has the potential to impact on the safety
of the appellants’ convictions.
3
See decisions of the Court of Appeal in R v Le Page [2005] 2 NZLR 845 (CA) at [14] and [16],
and R v Merrilees [2009] NZCA 59 at [33]–[34].
[38]
We address the second proposition (b) that counsel failed to follow the
appellants’ instructions first, then turn to the challenge to counsel’s advice to the
appellants to plead guilty and, finally, address the proposition that Dr Parton’s
evidence on toxicosis, which has become available since the trial, if admitted has the
potential to impact on the safety of the appellants’ convictions.
Failure to follow the appellants’ instructions as to the choice of defence to
advance and the decision to plead guilty
[39]
A Full Court of this Court has recently examined the relevant principles
applicable to appeals raising issues about the conduct of trial counsel. This is the
decision of Hall v R.4 The first paragraph of the judgment reads:
Appeals raising issues about the conduct of trial counsel now form a
significant proportion of criminal appeals before the Court. The decision of
the Supreme Court in R v Sungsuwan emphasises that the “ultimate
question” where trial counsel conduct is in issue is whether justice has
miscarried. This Court’s judgment in R v Clode and the Court of Appeal
(Criminal) Rules 2001 set out procedures currently applicable to appeals
challenging the conduct of trial counsel.
(Footnotes omitted).
[40]
This proposition is developed in paragraphs [8]–[11] of the judgment:
[8]
The relevant principles applicable to appeals raising issues about the
conduct of trial counsel are now well-settled. These principles are set out by
the Supreme Court in R v Sungsuwan. In delivering the judgment of the
majority in R v Sungsuwan Gault J stated that:
[C]onsideration of whether there was in fact an error or irregularity
on the part of counsel, and whether there is a real risk it affected the
outcome, generally will be an appropriate approach. If the matter
could not have affected the outcome any further scrutiny of counsel’s
conduct will be unnecessary. But whatever approach is taken, it
must remain open for an appellate court to ensure justice where there
is real concern for the safety of a verdict as a result of the conduct of
counsel even though, in the circumstances at the time, that conduct
may have met the objectively reasonable standard of competence.
[9]
The effect of Sungsuwan was summarised by this Court in R v
Scurrah. Arnold J in that case noted that, generally, the judgments in
Sungsuwan “indicate that the focus should be on the trial process and its
outcome rather than on the characterisation of counsel’s conduct”. The
Court observed that in the majority judgment, Gault J initially identified two
cases at opposite ends of the spectrum. The first was where “the alleged
4
Hall v R [2015] NZCA 403.
counsel error could not have affected the outcome of the trial. In that type of
case, there was no need to go further.”
[10]
The case at the other end of the spectrum was where counsel’s
alleged error had “effectively prevented the accused person from presenting
a defence. In that type of case, prejudice would readily be found”. Gault J
in Sungsuwan identified a further class of case where counsel’s conduct was
judged to be in the interests of the accused person at the time. In those
cases, this Court said:
Even though such conduct may possibly have affected the outcome,
an appeal would not be allowed if the judgment exercised by counsel
was a judgment that another competent counsel might exercise in the
course of a further trial … . However, the Judge recognised the
possibility that in rare cases counsel’s conduct, although reasonable,
might have led to a miscarriage of justice, so that an appeal would
have to be allowed … .
[11]
The focus is on whether there has been a miscarriage of justice.
Arnold J stated:
[17]
The approach appears to be, then, to ask first whether there
was an error on the part of counsel and, if so, whether there is a real
risk that it affected the outcome by rendering the verdict unsafe. If
the answer to both questions is “yes”, this will generally be
sufficient to establish a miscarriage of justice, so that an appeal will
be allowed.
[18]
On the other hand, where counsel has made a tactical or
other decision which was reasonable in the context of the trial, an
appeal will not ordinarily be allowed even though there is a
possibility that the decision affected the outcome of the trial. This
reflects the reality that trial counsel must make decisions before and
during trial, exercising their best judgment in the circumstances as
they exist at the time. Simply because, with hindsight, such a
decision is seen to have reduced the chance of the accused achieving
a favourable outcome does not mean that there has been a
miscarriage of justice. Nor will there have been a miscarriage of
justice simply because some other decision is thought, with
hindsight, to have offered a better prospect of an outcome favourable
to the accused than the decision made.
[19]
This analysis will be sufficient to deal with most cases.
[20]
But there will be rare cases where, although there was no
error on the part of counsel (in the sense that what counsel did, or
did not do, was objectively reasonable at the time), an appeal will be
allowed because there is a real risk that there has been a miscarriage
of justice.
(Footnotes omitted).
[41]
reads:
By contrast, Mr Fournier relied on [67] and [69] of the judgment, which
[67]
The starting point in terms of the authorities in this Court is R v
McLoughlin. In that case the Court said that the “plain unvarnished fact”
was that counsel “most certainly had no right to disregard [the client’s]
instructions”. The Court said that after giving advice, counsel’s duty was
either to act on the instructions received or to withdraw. As Cooke J said in
R v Pointon, decided soon after R v McLoughlin, the latter case was “in the
extreme category … of counsel acting contrary to express and definite
instructions to call certain witnesses (as to an alleged alibi)”.
…
[69]
In an appeal based on a failure to follow instructions as to these
fundamental decisions, the focus will be on whether, as a matter of fact,
there was a failure to do so. “Instructions” in this context mean a clear
direction as to how the trial or an aspect of it is to be run. This Court in R v
S drew a distinction between “an expression of the client’s views on a
particular matter” and “directions to be observed and implemented by
counsel”.
[42]
The paragraph in between, however, is important and we think directly
relevant to the judgment in this case:
[68]
There may be cases where a failure to follow instructions on a
fundamental decision does not give rise to a miscarriage but they will be
rare. One example is this Court’s decision in R v Chin. The Court in that
case said that even if there had been a “firm instruction” to trial counsel that
Mr Chin was to give evidence, failure to call him would not, “in the
particular circumstances” of the case, have resulted in a miscarriage of
justice. That was because the Court heard from Mr Chin as to what he
would have told the jury if he had given evidence. The Court found that his
evidence “would have invited incredulity from the jury”.
(Footnotes omitted).
[43]
As always, dicta in cases should be read against the material facts and issues
that the Court were deciding. There is no absolute rule that counsel are obliged at all
times to act on the instructions received from their clients as to the defence of the
case. The ultimate test is whether there was a miscarriage of justice or not.
[44]
Of course, there are cases where failure to pursue instructions as to the
defence can warrant a new trial. Mr Fournier relies on the case of R v McLoughlin.5
This was a case where the instructions to counsel were to run an alibi as a defence to
rape charges. He had arranged for the alibi witnesses to be present at the trial. The
barrister started doing this during the trial and then decided to take it no further and
began cross-examining on the incompatible defence of consent.
5
R v McLoughlin [1985] 1 NZLR 106 (CA)
The Court of
Appeal in that case found that the defendant had been deprived of every proper
opportunity to put his defence to the jury and set aside the verdict and ordered a new
trial.
[45]
But those are not the facts of this case.
[46]
Mr Fournier submitted that Mr Eason had failed to follow instructions as to
the choice of defence to advance, based on Mr Douglas Williamson’s version of
events. Mr Douglas Williamson instructed Mr Eason that he wanted to defend the
charges on the basis that he and his brother had adequately fed and dewormed the
horses. As to the reason they were in poor condition, it may be they were suffering
from iron toxicity.
Similarly, it was submitted that Mr Owen failed to follow
instructions and defend the charges on the basis he and his brother had adequately
fed and dewormed the horses.
[47]
The facts proven were wholly against them. By the end of the Crown case,
there was no support in the evidence for the proposition that the defendants were
adequately feeding and deworming the horses. The pasture was very poor and the
horses full of worms, as several autopsies showed.
Their condition did not
materially improve after service of the notices.
[48]
In the face of the very prejudicial evidence over four days before the jury and
the hint of the Judge at the end of that evidence,6 it was appropriate for counsel to
discuss with their clients whether to enter plea discussions with the Crown. To
continue to defend the charges on the basis that the horses had been adequately fed
and dewormed would have been hopeless and increased the prospects of an
imprisonment sentence if, as appeared to be inevitable, the trial proceeded and guilty
verdicts were returned. Inasmuch as the s 347 application on behalf of Douglas
Williamson failed, there was no prejudicial consequence to Douglas, the application
being made in the absence of the jury and the cross-examination of the Crown
witnesses was unaffected by the applications, being made at the end of the evidence
by the experts.
6
See [29] above.
[49]
We think this set of facts are very materially different from the set of facts
confronting the Court of Appeal in R v McLoughlin where counsel abandoned an
alibi defence, with supporting witnesses, without instructions.
[50]
Ultimately, Mr Fournier’s argument depended upon the proposition that there
was a reasonable defence of iron toxicosis. Once that is rejected, Mr Fournier’s
argument falls away.
[51]
The test of whether or not there has been a miscarriage of justice is an
objective one. It goes to the safety of the verdict. It is impossible, on the evidence
before this Court, to advance the proposition that the appellants had any serious
tenable defence.
On the contrary, we think Messrs Eason and Owen acted
professionally to minimise, so far as they could, the impact of the law upon their
clients’ proven conduct.
[52]
Accordingly, there was good reason for the appellants’ counsel to recommend
a settlement plea.
They pointed out to their clients that the Crown evidence
diminished their prospects of success. This advice was reinforced by the remark of
the Judge observing the possibility of a term of imprisonment at the end of the
Crown case. The Judge was inviting some plea agreement to bring the proceedings
to an end.
[53]
Both the recommendations of counsel and the invitation from the Judge
confirm that these professionals saw, after four and a half days’ evidence, an
overwhelming case against the defendants. There was no realistic prospect that they
could escape conviction, given the state of the horses and their failure to respond
properly to the notices from October 2009 to the end of March 2010.
[54]
We think that Judge Farish was right to encourage a plea. Judge Saunders
was right to rule against allowing the Williamson brothers to withdraw their pleas.
There was no miscarriage of justice, essentially because no tenable defence has been
demonstrated. This aspect of the appeal against conviction is dismissed.
Fresh evidence – the significance of Dr Parton’s evidence
[55]
The appellants rely on proposed evidence from Dr Parton.
She is a
veterinarian surgeon. She never saw the horses. All she has seen are the blood
results for the stallion, Danny B. She says:
The diagnosis that horses in the herd may have had iron toxicity cannot be
proved or disproved as investigations were not performed at the time of
impoundment and it is unlikely to be determined at this time.
[56]
She records that the iron content in the water from the farm at Quaifes Road
was measured by Hill Laboratories in Hamilton at 0.62 grams/m3 which is over
twice the recommended limit of iron in drinking water. She then concludes:
Given the amount of time the horses were grazing on this property, this
chronic exposure to the iron in the water exceeds any scientific research
conditions that have been published in peer reviewed journals, however,
given the number of publications on iron toxicity in animals there is a case
for supporting iron toxicity.
[57]
She goes on to make it clear that she is not making a diagnosis of iron
toxicity.
[58]
The admission of fresh evidence on appeal is governed by a sequential series
of tests:7
(a)
Is the evidence credible?
(b)
If so, is the evidence fresh in the sense that it could not have been
obtained for the trial with reasonable diligence?
(c)
If the evidence is fresh and credible it should be admitted unless it
would have no effect on the safety of the conviction.
(d)
If the evidence is credible but not fresh, it may nevertheless be
admitted if there is a risk of a miscarriage of justice if it is not
admitted.
7
Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
[59]
However, the evidence is not fresh. It was not as if iron toxicosis, as a
defence, had not been identified. It had been. Mr Douglas Williamson had obtained
analysis of water samples after the horses were removed. This showed high iron
levels.
His trial counsel, Mr Eason, then spent some time conferring with the
veterinary pathologist from Massey University, Dr McLaughlin, about that. He,
however, discounted the defence, in part because he considered iron toxicosis would
not alter the parasitic worm burden the horses were found to have.
[60]
The fact that scientific evidence is not fresh does not mean that it cannot be
admitted on appeal.8 More significant in this case is our view that admitting the
evidence would have no effect on the safety of the conviction.
The Crown
witnesses, Dr Ranken and Dr Fairly, were cross-examined on iron toxicosis.
Dr Ranken said he had never seen iron toxicosis in horses. Dr Fairly said he had
tested brown pigment on the livers of two of the euthanised horses for iron and they
had come back negative.
[61]
Indeed, as already recorded in [28] above, it was the evidence of the
pathologist, Dr Fairly, coming on top of the other witnesses, which generated the
plea of guilty. Judge Saunders, in his review in the District Court, put it this way:
[67]
Water samples taken after the horses were removed had been
submitted for analysis and high iron concentration was said to have been
found in the samples.
[68]
This was, it seems, the primary focus of the defence case. After the
expert evidence of Mr Fairley [sic] about the impact of severe worm burdens
in the results, it did not appear that the issue of iron toxicosis was a viable
defence, hence the need to reappraise the strength of any defence evidence.
[62]
In this Court, Mr Fournier (who was counsel for the Williamson brothers
before Judge Saunders), has endeavoured again to bring the focus back on iron
toxicosis as a cause.
To breathe life into this possibility as a tenable defence
involves disregarding the severe parasitic burden on these horses and the narrative of
neglect by the SPCA witnesses following the first inspection on 2 October 2009,
through six months, to the end of March 2010.
8
At [120]–[126].
[63]
In our view, Dr Parton’s evidence is essentially speculative but, more
significantly, overwhelmed by the impact of the evidence from the other
veterinarians.
[64]
We do not think there is any risk of a miscarriage of justice if the affidavit of
Dr Parton is not made the subject of evidence in a retrial. In short, it is not credible
as a defence in the face of the proven condition of the horses infected by parasites
(worms) and the narrative of persistent neglect. The applications to adduce this
evidence are declined.
Was it proved the horses were distressed?
[65]
In this Court, it was also submitted that trial counsel did not inform their
clients that a defence could be advanced on the basis that the Crown failed to adduce
sufficient evidence to prove beyond a reasonable doubt that the distress caused to the
horses that were the subject of counts two through to seven, was so great that it was
necessary to destroy them.
[66]
The context of this argument is s 28(1)(c) of the Animal Welfare Act which
provides:
28
Wilful ill-treatment of animals
(1)
A person commits an offence if that person wilfully ill-treats an
animal with the result that—
…
(c)
the pain or distress caused to the animal is so great that it is
necessary to destroy the animal in order to end its suffering;
[67]
Counts 2–7 were alleging breach of this section.
[68]
The argument in this Court was that they were put down without proof that
the pain or distress caused to the animal was so great that it was necessary to destroy
the animal in order to end its suffering. Reliance was placed on evidence that the
judgment of the veterinarians, in respect of each animal, was that the animals would
not be able to recover to their full adult size.9
[69]
In our view, this was not the effect of the evidence. It needs to be kept in
mind that these animals were put down without the consent of their owners, the
appellants in this case.
They were put down because the veterinary surgeons
(including the surgeon acting for the Williamsons) considered that the deterioration
of the animals was irrecoverable. Putting down an animal without the owner’s
consent is serious conduct by a veterinary surgeon. We have no doubt that the
reference by the veterinarian surgeons to the irrecoverability of these animals was a
final consideration, after having examined the animals over some time and identified
their plight. The decision to enthanise the six horses was a humane response.
[70]
In the course of her sentencing remarks, Judge Farish said that the facts that
she and the jury heard were:10
… disturbing and at times very distressing. Mr Vanderkolk [Crown counsel]
is right that the effect of the videos and the photos that the jury saw,
particularly of the colt that was euthanized on the property and of Danny B
caused them visible distress. I, at times, had to limit the amount of video
footage that they were able to see
[71]
In the light of the evidence, reinforced by Judge Farish’s observations of that
evidence, it would have been hopeless to try to persuade the jury that the test,
namely, “distress caused to the animals was so great that it was necessary to destroy
them in order to end their suffering” was not established.11
[72]
None of the grounds of appeal are made out. The appeals against conviction
are dismissed.
Sentencing appeal
[73]
Mr Fournier’s submissions on sentence were that the Judge adopted too high
a starting point. Second, that she erred by considering remorse, or the absence of it,
9
10
11
See [15] above.
R v Williamson, above n 2, at [5].
Animal Welfare Act 1999, s 28(1)(c).
to be a determinative factor in deciding against home detention, given this was a case
of neglect rather than deliberate infliction of harm.
[74]
The Crown submitted that there is no established tariff for this kind of
offending. It considered that counsel for the appellant was relying on the Court of
Appeal decision of R v Albert as a similar case.12 It pointed out that this was a case
where the appellant was convicted on only one count of wilful ill-treatment of an
animal and one count of failing to comply with his statutory duty to care for his
horses. Furthermore, the offending in that case covered a period of only ten days,
compared to almost six months in this case.
[75]
The Crown also submitted that Albert should be read now against an
appreciation that the maximum penalties available under the Act were increased by
legislative amendment on 1 July 2010.13
[76]
The explanatory note to the Bill said the amendments were to bring about an
increase in penalties imposed.
The maximum penalty for s 28 offending was
increased from three to five years’ imprisonment and from a $50,000 to a $100,000
fine.
[77]
Moreover, there is substance to the proposition that sentences of
imprisonment are usually coincident with deliberate infliction of harm.14 In the case
of Ministry for Primary Industries v Erasmus Mr Erasmus broke the tails of 115 of
135 cows.15 The tail’s function is to swing away flies. As a consequence, many
cows suffered broken legs, swollen hocks and some developed large haematomas on
their hind legs which became infected and abscessed. Mr Erasmus attempted to
lance some of the abscesses with a knife. Of the 135 cows, one was put down
immediately and 26 were put down at a subsequent stage. An end sentence of two
12
13
14
15
R v Albert CA126/03, 19 December 2003.
Animal Welfare Amendment Act 2010.
Ministry of Primary Industries v Erasmus [2013] NZHC 281, [2013] NZAR 311; Karekare v
Police HC Hamilton CRI-2011-419-67, 3 November 2011; Hurring v Society for Prevention of
Cruelty to Animals HC Dunedin CRI-2009-412-19, 8 September 2009; Burton v Police [2013]
NZHC 1389; Karena v Police HC Hamilton CRI-2005-419-118, 13 October 2005; Gwatkin v
Police HC New Plymouth CRI-2011-443-5, 1 March 2001; and Ford v Royal Society for the
Prevention of Cruelty to Animals HC Christchurch CRI-2004-409-149, 9 September 2004.
Ministry of Primary Industries v Erasmus, above n 14..
years one month’s imprisonment was imposed.
These cases, however, are not
authority that the convictions have to be deliberate ill-treatment before a prison
sentence is imposed. Whether imprisonment is the appropriate starting point does
not depend on whether the initial action is (often very brief) violent cruelty or not.
Rather, it depends on a range of factors including intended or apprehended effect on
the animal, the extent of suffering, the number of animals suffering, the period of
time of suffering, the ultimate consequence for the animals and the nature of any
third party intervention.
[78]
Judge Farish went through the narrative of events in some detail, largely
covered in the earlier part of this judgment. She considered as the first aggravating
feature, the length of time over which the animals were suffering, which was nearly
six months from 2 October 2009 through to their uplift or their demise on 29 March
2010. She was impressed by the number of animals involved and the fact that the
defendants were on notice. She saw them as not accepting “responsibility for why
your horses were in such terrible condition”. She did not accept that they did not
appreciate the state of the six horses euthanised, or Danny B, which was
disappointing and an important issue for her in terms of the sentencing exercise.
These findings of fact by Judge Farish mean that the neglect in this cases was not
just carelessness. Rather, it had reached the point of being wilful. Hence, the laying
of the charges under s 28 in respect of the six horses which were euthanised.
[79]
Judge Farish summed up the history:16
This was not the SPCA coming down on you hard, this was the SPCA trying
to find a way in which they might be able to assist. If you had not got the
finances, if you could not cope with the number of horses, if you were out of
your depth in relation to your care of the horses, they were prepared to assist
and help but you continued.
[80]
She took into account their good character otherwise. She recognised that
they had lost access to their previous land which would have been adequate for the
care of the horses (but had been compulsorily acquired after the Canterbury
earthquakes) and found themselves with a lot of horses on a very small area of land,
16
R v Williamson, above n 2, at [11].
some 15 acres. She recognised they might have been distracted from the plight of
the horses’ welfare by other issues in relation to the Selwyn District Council.
[81]
But overall she considered that they were arrogant, ignoring SPCA and
veterinary advice. For these reasons, she considered that a term of imprisonment
was an appropriate starting point.
[82]
She rejected Crown counsel’s submission of a starting point of four years’
imprisonment, based on accumulating available sentences. She looked at it on a
totality basis and took a starting point of 18 months’ imprisonment. She gave a 10
per cent credit for no prior convictions and being of good character. She reminded
herself that she could only impose a term of imprisonment if she was satisfied no
other sentence or combination of sentences met the principles and purposes of
sentencing.
[83]
She turned to consider home detention, relying on the decisions in
Fairbrother v R, Manikpersadh v R and the High Court decision in Kumar v R.17
Applying these authorities, the Judge said that home detention is generally suitable
only for defendants whose remorse was clear, so that they might be expected to
convert a less restrictive sentence into a meaningful rehabilitative response. She
considered that a sentence of home detention would not bring that about and,
accordingly, imposed a sentence of 16 months’ imprisonment.
[84]
The Crown submitted that this line of reasoning did not mean that the Judge
treated their lack of remorse as the determinative factor. They drew attention to the
overall analysis by Judge Farish:18
Home detention is one step down from a sentence of imprisonment. It is
designed to hold you accountable, to deter you, to denounce your conduct
and ultimately, to try and hold you responsible and also to rehabilitate you.
The problem for me though, in terms of a sentence of home detention, is that
it will bring about none of those aspects. You have no remorse, you do not
accept responsibility for this offending. The offending is grave. It is nearly
at the highest in relation to the most serious that one could see in relation to
the horses. They needed to be euthanised on the spot because of the poor
17
18
Fairbrother v R [2013] NZCA 340; Manikpersadh v R [2011] NZCA 452; and Kumar v R [2014]
NZHC 146 at [19].
R v Williamson, above n 1, at [38].
condition that they were in. You were on notice and had been on notice for
nearly six months of their condition. As I said, and I am reminded by what
Justice Kós has said, there is no remorse. Home detention would not meet
any of those principles and purposes of sentence, so the sentence is one of 16
months’ imprisonment.
[85]
It can be seen from the above paragraph that the Judge does not rely solely on
the lack of remorse; the second half of the paragraph also emphasises the gravity of
the offending and the six month period of their condition.
[86]
We agree with the Crown that the aggravating features of offending in the
present case are the serious mistreatment of a large number of animals, over a long
period of time, by persons whose experience with horses meant they ought to have
known better.
Any acceptance of responsibility was not apparent in John
Williamson’s case, and came late in the piece in Douglas’ case. It was open in these
circumstances to the Judge to conclude it was appropriate to imprison them and to, in
that regard, adopt an 18 month starting point.
[87]
We think that the Judge’s approach to sentencing does not display any error
of law. That she has turned her mind to the relevant considerations. Accordingly,
there is no basis to intervene on appeal. The appeals against sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent