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SUMMERS Alan William v R [2004] NZCA 302 (8 December 2004)

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SUMMERS Alan William v R [2004] NZCA 302 (8 December 2004)

Last Updated: 17 December 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA356/04

THE QUEEN

v

ALAN WILLIAM SUMMERS

Hearing: 26 October 2004

Court: William Young, Randerson, and Heath JJ

Counsel: W D McKean for Appellant
H D M Lawry and P J Magee for Crown

Judgment: 8 December 2004

JUDGMENT OF THE COURT

Leave to appeal is granted but the appeal is dismissed.

REASONS

(Given by William Young J)

Table of Contents

Para No

Introduction [1]
Background [2]
The legislative background [16]
The issues in the case [29]
The appellant’s particular arguments

The entries on to the farm on 25 and 26 July 2002 [33]
were unlawful
MAF inappropriately took over the appellant’s [39]

veterinarian, Dr Stocker
The consultation procedure required by s 138 was [43]
not carried out before the destruction of the animals

The appellant’s exclusion from the euthanasia [55]
and autopsy processes was unlawful

The appellant’s exclusion from the euthanasia and [59]
autopsy processes has prejudiced his defence
The appellant’s primary arguments [64]
Result [72]

Introduction

[1] This is an application for leave to appeal against a pre-trial ruling given on 1 September 2004 by Judge Hubble in the District Court at Whangarei in which, on an application brought under s 344A of the Crimes Act 1961, he ruled in favour of the Crown on the admissibility of disputed evidence.

Background

[2] On 4 July 2002, two Ministry of Agriculture and Forestry ("MAF") officials, Messrs King and Culham, went to inspect the appellant’s farm. During the inspection they were accompanied by the appellant and his son. The son recorded the process using a video camera. The appellant was advised to have a veterinarian present the following day.
[3] Dr Greg Stocker, who had previously provided veterinary services to the appellant, was contacted and he agreed to attend.
[4] On 5 July the two MAF officials and Dr Stocker met with the appellant. The MAF officials and Dr Stocker were of the view that a farm consultant should be engaged. The appellant rejected a number of farm consultants suggested by the MAF officials. Eventually the parties agreed on Ms Amanda McLeod. Again, the appellant’s son recorded the events of the day with a video camera. The appellant also kept a record by using a dictaphone.
[5] On 18 July, another MAF official (Mr Alan Wilson), Dr Stocker and Ms McLeod visited the property. A more thorough inspection was undertaken, again videoed by the appellant’s son. Mr Wilson served a statutory notice on the appellant, requiring specific action to be taken to mitigate the inspected animals’ suffering. The action required was to move the animals to a reserve grazing area. Mr Wilson also advised the appellant that on Monday 22 July, the stock were to be mustered for closer examination.
[6] The appellant did not comply with the statutory notice.
[7] The inspection of the appellant’s stock and related activities occupied the entire working week which commenced on Monday 22 July. This exercise was referred to by MAF as "Operation Silvanus". Involved in the operation were MAF officials, Dr Stocker, Ms McLeod, and another veterinarian who works in the same veterinary practice as Dr Stocker. The activities were supervised by Constable Godinet who was brought in by MAF to ensure that order was maintained.
[8] Search warrants were obtained to cover the activities which took place on 22, 23, and 24 July. These activities involved, inter alia, the inspection of all animals on the farm and the taking of blood and faecal samples for analysis. Only some of the animals on the farm had ear tags. MAF tagged all the animals. During the inspection process one cow (tag number 11) died and the appellant attempted unsuccessfully to conceal its body. Another cow (tag number 245) was identified as being in poor condition. The appellant was asked to feed it two litres of molasses and transport it to a shed for preferential treatment. The appellant did not comply with these requests and the cow was eventually euthanased on 25 July.
[9] By the evening of 24 July, the MAF team had decided to remove the stock to an adjoining farm. The removal of the stock was to facilitate further assessment (for which the appellant’s drafting yards were not suitable). It was proposed that some animals were to be sold to a neighbour, others returned to the appellant’s property or transported to another property and the remainder would be destroyed.
[10] Accordingly, Mr Wilson wrote to the appellant in these terms:

Dear Sir
The Ministry has now concluded the information-gathering phase of their investigation into the welfare of animals on your Far North Road property.
This process has been done under the provisions of the Animals Welfare Act 1999 in consultation with veterinarians and an agricultural consultant.
Based on the analysis of the information gathered it is now necessary to take further action under the provisions of the Animal Welfare Act 1999.
Effective immediately the Ministry is taking control of all animals on the far except:

 The group of feeder calves housed at the shed (for which you will need to make alternative feeding arrangements or consider selling).
 The pig, the goat and the horses.
 A small group of bulls and a small group of rising two year old heifers.

This is due to the physical condition of your animals, and your property that cannot sustain the current animal population.
Therefore, all animals will be removed to grazing except those that the veterinarians consider unfit to travel, these will be destroyed.
Please note that whilst they are in a place of safety they remain in your ownership. The disposal or return of the animals is open to negotiation subject to improvement of conditions on the property and in the welfare of the stock to ensure the sustainable welfare of the animals.
At the cessation of this operation you will be provided with a list detailing the stock removed or destroyed.
Yours faithfully
Alan Wilson
Investigator (Animal Welfare)

[11] MAF officials decided not to seek further search warrants to cover what was proposed for 25 and 26 July. They formed the view that further warrants were not required. This view seems to have been based on what they had been told by the Registrar of the District Court with whom they had been dealing and coincided with the opinion of Constable Godinet and legal advice they received from their head office. The assumptions were that the existing search warrants covered what they planned to do on 25 and 26 July and in any event there was independent statutory authority under the Animal Welfare Act 1999. We will discuss these assumptions later in this judgment.
[12] As already indicated, on 25 July one cow (tag number 245) was destroyed. A further 67 animals were euthanased on that day and the following day. Ten animals, including the cow which had already died (tag number 11), were subjected to post-mortem examination. A tent was erected on the neighbour’s property to prevent people (including journalists) who had gathered from viewing the euthanasia and post-mortem processes.
[13] On 25 July, the appellant and his son tried to gain entry into the tent to take a video record of what was happening. They had obtained permission from the landowner. However, Dr Stocker was not prepared to continue working if this was to happen. Constable Godinet excluded the appellant and his son from the property under threat of arrest. He was not prepared to have the appellant and his son record proceedings from a site approximately 40 metres away.
[14] Throughout the events that occurred on 22 to 26 July, the appellant’s son continued to use a video camera, although it appears that it did not function on one of the days in question.
[15] In describing the events of July 2002, and in particular what happened between 22 and 26 July, we have not sought to evoke the emotional impact on those who were involved. We must, however, allow for this in our assessment of the evidence. The execution of Operation Silvanus had significant implications for the appellant and his family and was plainly upsetting for them. It was also obviously not an easy exercise for the MAF officials and veterinarians who were involved. Dr Stocker had never been involved in euthanasia of the scale required for the purposes of Operation Silvanus. It would appear that a number of those involved were genuinely appalled and emotionally distressed by the state of the cattle. Relationships between the MAF team (including the veterinarians and Constable Godinet) and the appellant and his family and supporters understandably became irascible.

The legislative background

[16] Before identifying the issues in the case, it is necessary to refer to the relevant provisions of the Animal Welfare Act.
[17] Section 127 provides:

127 Power to inspect land, premises, and places and stationary vehicles, aircraft, and ships
(1) Subject to subsections (3) and (4), an inspector may--

(a) In the case of any land, premises, or place, at any reasonable time or times; ...

enter, without warrant, that land or those premises or that place ... for the purposes of inspecting any animal on or in that land or those premises or that place ... .
...
(3) No inspector may, under subsection (1), enter in or on any dwelling or marae unless he or she is authorised to do so by a search warrant issued under section 131.
...
(5) Where an inspector who exercises a power of entry under subsection (1) has reasonable grounds to believe, in respect of any animal found on or in the land, premises, or place ... that--

(a) The animal has been wilfully ill-treated contrary to section 28; or
(b) The physical, health, and behavioural needs of the animal or the need for the animal to receive treatment from a veterinarian make it necessary or desirable to remove the animal from the land, premises, or place or the vehicle, aircraft, or ship,--

the inspector may take and maintain possession of the animal, by force if necessary, and convey the animal to another place.
(6) The inspector may keep the animal at a place chosen by the inspector until--

(a) The animal is, under section 172, forfeited to the Crown or to an approved organisation; or
(b) A District Court Judge orders that the animal be delivered to the owner of the animal or to the person charged with the offence against this Act.

(7) An inspector may take any person in or on any land, premises, or place or in or on an aircraft, ship, or vehicle to assist the inspector with an inspection under subsection (1).

[18] It is common ground that the inspections of the appellant’s farm which occurred on 4 and 18 July were pursuant to s 127 and that no warrant was required.
[19] Section 130(1) provides:

130 Power to prevent or mitigate suffering
(1) Where an inspector, either in the course of the exercise of a power of entry under section 127 or at any other time, has reasonable grounds to believe that an animal is suffering or is likely to suffer unreasonable or unnecessary pain or distress, the inspector--

(a) May take all such steps as the inspector considers are necessary or desirable to prevent or mitigate the suffering of the animal; and
(b) May, by notice in writing given by the inspector to the owner or the person in charge of the animal or any person appearing to be in charge of the animal, require the person to whom the notice is given to take all such steps as the inspector considers are necessary or desirable to prevent or mitigate the suffering of the animal.

[20] The notice that was given to appellant on 18 July was pursuant to this section.
[21] More importantly, one of the reasons why the MAF officials did not obtain further search warrants after 24 July was because they considered that ss 127 and 130 provided adequate authority for them to have continued physical access to the appellant’s property and to remove stock to the adjoining property. We will discuss later in the judgment whether this is so.
[22] Section 131 provides for the granting of search warrants. Section 131(3) is in these terms:

(3) A person who applies for a search warrant must, having made reasonable inquiries, disclose--

(a) Details of every previous application for a search warrant (being an application made under this Act or the Animals Protection Act 1960) to search the land, premises, or place or the vehicle, aircraft, or ship that the person knows has been made in respect of the land, premises, or place concerned or the vehicle, aircraft, or ship concerned; and

(b) The result of each application

[23] Section 133 provides for the effect of search warrants:

133 Powers conferred by search warrant
(1) Subject to any special conditions specified in the search warrant under section 132, a search warrant authorises the person executing the search warrant--
...

(b) To enter and search the land, premises, or place specified in the search warrant on 1 occasion during the currency of the search warrant at a time that is reasonable in the circumstances:
(c) To use such assistants as may be reasonable in the circumstances ... for the purposes of the entry and search of the land, premises, or place:
(d) To use such force as is reasonable in the circumstances for the purposes of effecting entry, and for breaking open any thing in or on the land, premises, or place ... :

(e) To search for and seize--

(i) Any thing found in or on the land, premises, or place ... that is, or is a thing of a kind or description, specified in the search warrant concerned:
(ii) Any thing that the person believes on reasonable grounds to be a thing in respect of which the person could have obtained a search warrant under section 131.

(2) If an inspector executes a search warrant and seizes an animal under that search warrant, the inspector may maintain possession of that animal, and convey that animal to another place.
(3) The inspector may keep the animal at a place chosen by the inspector until--

(a) That animal is, under section 172, forfeited to the Crown or to an approved organisation; or
(b) A District Court Judge orders that the animal be delivered to the owner of that animal or to the person charged with the offence against this Act.

(4) Where an inspector executes a search warrant and the inspector is satisfied an animal is suffering unreasonable or unnecessary pain or distress because--

(a) The physical, health, and behavioural needs of the animal are not being met; or

(b) For any other reason,--
the inspector may take any steps that the inspector considers are necessary or desirable to prevent or mitigate the suffering of the animal.
(5) Every person called upon to assist any member of the police or any inspector executing a search warrant has the powers described in paragraphs (d) and (e) of subsection (1).

[24] In this case, search warrants were required to search the appellant’s dwelling; see s 127(3). Search warrants were also required to authorise the taking of blood and faecal samples from the animals. Multiple search warrants were initially thought to be required given the "1 occasion" limitation provided for by s 133(1)(b). Among the reasons why MAF did not seek further warrants after 24 July was the belief that the execution of Operation Silvanus was a single "occasion" for the purposes of this limitation.
[25] The destruction of animals is provided for by s 138:

138 Destruction of injured or sick animals (other than marine mammals)
(1) If an inspector, auxiliary officer, or a veterinarian finds a severely injured or sick animal (other than a marine mammal), and in his or her opinion, the animal should be destroyed because reasonable treatment will not be sufficient to make the animal respond and the animal will suffer unreasonable or unnecessary pain or distress if it continues to live, he or she must, as soon as possible,--

(a) Consult with the owner of that animal, if that owner can be found within a reasonable time; and
(b) If the owner asks for a second opinion from a veterinarian as to whether that animal should be destroyed, allow the owner to obtain that second opinion.

(2) If--

(a) The owner of a severely injured or sick animal cannot be found within a reasonable time; or
(b) The owner of a severely injured or sick animal--

(i) Does not, on being found, agree to the destruction of the animal; and
(ii) Does not obtain within a reasonable time a second opinion from a veterinarian as to whether the animal should be destroyed,--

the inspector, or auxiliary officer, or veterinarian, as the case may be, must, without delay, destroy that animal or cause it to be destroyed.
(3) If the owner of a severely injured or sick animal is found and consulted under subsection (1), and agrees that the animal should be destroyed,--

(a) The inspector, auxiliary officer, or veterinarian, as the case may be, must, without delay, destroy that animal or cause it to be destroyed; or
(b) The owner of that animal must, without delay, destroy that animal or cause it to be destroyed.

(4) If the owner obtains a second opinion under subsection (1)(b), and the other veterinarian agrees that the animal should be destroyed,--

(a) The inspector, auxiliary officer, or veterinarian as the case may be, must, without delay, destroy that animal or cause it to be destroyed; or
(b) The owner of that animal must, without delay, destroy that animal or cause it to be destroyed.

(5) Where, under this section, an inspector, auxiliary officer, or veterinarian destroys an animal or causes it to be destroyed, he or she may dispose of the carcass in such manner as he or she thinks fit.

[26] There is a surprising lacuna in s 138 in that it does not provide for what happens if a second opinion from a veterinarian is obtained and is to the effect that the animal should not be destroyed.
[27] In the event that a second opinion from a veterinarian is obtained under s 138(1)(b), the section plainly envisages an animal-by-animal assessment. It is well open to argument that such an approach is also required in relation to the consultative process provided for by s 138(1)(b). As will become apparent, the MAF officials did not engage with the appellant on an animal-by-animal consultation prior to the destruction of each animal. The reasons for this are not clear but may well have been associated with the view that the destruction of the animals could be effected under s 130 or s 133(4) without engaging s 138. In this Court, Mr Lawry for the Crown accepted that this approach was incorrect and that where animals are to be destroyed, the general powers provided for by ss 130 and 133(4) are required to be exercised in a way which accords with s 138. Mr Lawry was also inclined to accept that s 138(1)(a) requires the consultative process to proceed on a basis which involves consideration of each animal which is a candidate for destruction.
[28] We will revert to these concessions later in this judgment.

The issues in the case

[29] The appellant’s evidential challenge is focused on the results of the post-mortem examinations and thus arises out of the events which occurred on 25 and 26 July. We note that in his written submissions Mr McKean suggested that those events "contaminated" what happened between 22 and 24 July. The basis for this contention was not developed in any detail and we do not see this aspect of his argument as credible.
[30] Mr McKean advanced two primary propositions:

1. The post-mortem examination results were obtained pursuant to processes involving unlawful and unreasonable search and seizure and ought to be excluded.
2. The post-mortem examination results were obtained in circumstances which infringed the appellant’s rights under s 24(1) of the New Zealand Bill of Rights Act 1990 to prepare a defence.

[31] These primary arguments were buttressed by a series of more specific arguments:

1. The entries on to the farm on 25 and 26 July 2002 were unlawful.

2. MAF inappropriately took over the appellant’s veterinarian, Dr Stocker.

3. The consultation procedure required by s 138 was not carried out before the destruction of the animals.
4. The appellant’s exclusion from the euthanasia and autopsy processes was unlawful.
5. The appellant’s exclusion from the euthanasia and autopsy processes has prejudiced his defence.

[32] We will deal first with the more particular arguments before addressing the appellant’s primary contentions.

The appellant’s particular arguments

The entries on to the farm on 25 and 26 July 2002 were unlawful

[33] Mr McKean accepted that no warrant was required for what transpired on 4 and 18 July 2002 and that the events of 22, 23 and 24 July 2002 were adequately within the scope of the search warrants obtained at that time. So this argument focuses on the events of 25 and 26 July. He maintained the "1 occasion" limitation means that the search warrants obtained on 22, 23 and 24 July were spent and could not be regarded as authorising the entry or search and seizure processes which took place on 25 and 26 July. He also asserted that the general empowering provisions of ss 127 and 130 cannot be invoked in circumstances in which entry onto private property and the seizure of animals is for evidence gathering purposes.
[34] In the District Court, Judge Hubble concluded that ss 127 and 130 authorised MAF to enter onto the appellant’s farm and to remove his animals. He was also of the view that for the purposes of s 133(1)(b), the execution of Operation Silvanus could fairly be regarded as "1 occasion" with the result that the search warrants obtained on 22, 23 and 24 July were still extant on 25 and 26 July.
[35] Mr Lawry adopted the Judge’s reasoning.
[36] We agree with Judge Hubble on both points.
[37] The relevant provisions of the Animal Welfare Act are necessarily focused on the welfare of animals and, in the context of that focus, there is necessarily some limitation on the property rights and privacy expectations of animal owners. Section 127 strikes something of a balance with the prohibition on entry into a dwelling or marae without a warrant. In circumstances in which ss 127 and 130 are likely to be invoked, evidence gathering is likely to be amongst the purposes of the MAF officials involved. The question is whether the circumstances warrant the exercise of those powers and if they do, the fact that evidence gathering motives are also in the minds of the MAF officials can hardly be regarded as invalidating the actions they take.
[38] On the "1 occasion" limb of the argument, Mr McKean’s approach came down to the proposition that a search warrant authorises a single entry only. If this is so, a search warrant would become spent if the officer executing the warrant stepped off the property (for instance to make a telephone call from the car he or she arrived in) but presumably would have remained current in the current context if the MAF team had taken the simple precaution of leaving an officer on the property over night. In the unlikely event that this was intended by the legislature, we would have expected the legislation to provide specifically that a search warrant permits only a single entry. Instead, the legislature chose to use the more open-textured word "occasion". In context, we see no abuse of language in treating a single animal welfare exercise (as Operation Silvanus was) as a single occasion for the purposes of s 131(1)(b).

MAF inappropriately took over the appellant’s veterinarian, Dr Stocker

[39] To describe Dr Stocker as "the appellant’s veterinarian", as Mr McKean did, is perhaps an over-statement. It is, however, clear that he was initially invited to the property because he had previously provided veterinary services to the appellant’s animals. As events panned out, payment for his services was made by MAF and in the course of the execution of Operation Silvanus, he became very much an integral part of the MAF team.
[40] It is clear on the evidence that the appellant became particularly antagonistic towards Ms McLeod and he was on a number of occasions invited to obtain for himself the services of another consultant. On the other hand, there was no evidence that the appellant was invited to obtain the services of another veterinarian. In fact the appellant did not offer any criticism of Dr Stocker and his professionalism was not challenged in any way on appeal.
[41] This last point is of some relevance to the questions which arise as to compliance with s 138 and we will revert to this point shortly.
[42] An evaluation of the complaint now under consideration requires assessment of the context. It would be surprising if the appellant did not, at a reasonably early stage in proceedings, recognise that Dr Stocker had taken an adverse view of the condition of the animals, his stocking policy and his standards of animal husbandry. The obtaining of a search warrant on 22 July must have alerted the appellant to the likelihood of criminal proceedings. The course that events were taking must have indicated the probability that Dr Stocker was likely to be a prosecution witness. It is hard to see why he would have thought that he was not entitled to obtain other veterinary advice. There was certainly no evidence from the appellant to this effect as he did not give evidence at the hearing of the s 344A application.

The consultation procedure required by s 138 was not carried out before the destruction of the animals

[43] Section 130(1)(a) permits an inspector to take "all such steps" as he or she "considers are necessary or desirable to prevent or mitigate the suffering of [an] animal" if he or she believes that animal "is suffering or is likely to suffer unreasonable or unnecessary pain or distress".
[44] Similarly expressed powers apply when a search warrant is being executed. Section 133(4) permits an inspector to "take any steps that [he or she] considers are necessary or desirable to prevent or mitigate the suffering of [an] animal" if he or she is satisfied that the animal "is suffering unreasonable or unnecessary pain or distress". The phrase "unreasonable or unnecessary pain or distress" is also to be found in s 138(1) of the Act. Given that destruction of an animal might be thought to be a subset of the steps which might be necessary or desirable to prevent or mitigate suffering, we are of the view that general powers to prevent or mitigate suffering under ss 130 and s 133(4) are subject to the s 138 procedure.
[45] As we have already noted, Mr Lawry accepted that s 138 is applicable where destruction of animals is involved and, as is apparent, we think that he was right to do so. He was also inclined to accept that s 138(1) required an animal-by-animal consultative process before destruction, albeit that this was not in quite the explicit terms of his acceptance that s 138(1) applied.
[46] Section 138(1)(a) requires the inspector, auxiliary officer or veterinarian concerned to consult with the owner of the animal. The only exception to that obligation is if the owner cannot be located within a reasonable time. If the owner asks for a second opinion from a veterinarian as to whether the animal should be destroyed, the owner must be allowed to obtain the second opinion: see s 138(1)(b). The provision no doubt reflects the value of livestock to farmers who are reliant on their animals for their livelihood.
[47] On the facts of this case, the owner of the animals was available at the scene. Thus, the qualification relating to the location of the owner within a reasonable time has no application. For that reason, we express no opinion on issues that arise if that circumstance exists.
[48] In ordinary circumstances, consultation would require advice to the owner of the animals to be destroyed. A reasonable opportunity should normally be given to the owner to discuss the reasons for doing so and the possibility of pursuing options other than the destruction of the animals. The section usually requires the identification of animals individually or at least mustering those to be destroyed in a separate area. That is necessary in the usual case so the owner may identify the animals upon which he may require a second opinion.
[49] The nature and scope of any consultation will depend on the circumstances including the exigencies of the situation and animal welfare considerations. The conduct of the owner may also have a bearing on the issue. If an owner adopts an uncooperative or even belligerent attitude, the extent and nature of the obligation to consult may be viewed in a different light. An owner’s conduct may make consultation impossible to achieve or at least limit the steps required by the officials to meet the obligation.
[50] The number of animals involved in this case (68 were selected for euthanasia) highlights the particular practical problems that existed, to which we are not unsympathetic. It is not entirely clear why MAF did not consult in the manner suggested. There is a suggestion in the evidence that the investigators believed that they were not acting pursuant to s 138. It is possible they thought they were acting pursuant to the general powers conferred by s 130. Alternatively, it may be that the investigators considered that the events of 22, 23 and 24 July and the terms of the letter of 25 July involved the sort of consultation required by s 138.
[51] Having reviewed the evidence, we are not taken to the point where we can be confident it has been demonstrated there was necessarily a failure to consult as s 138 requires. There can be little doubt that the appellant was taking a difficult and obstructive approach to the events on his farm which had been proceeding over some days. He had been put on notice of the intention of the MAF officials to destroy animals found unfit to travel (but without specific identification of those involved). Despite written advice to that effect, he had done nothing towards obtaining the opinion of another veterinarian. At no stage did he express any lack of confidence in Dr Stocker’s professionalism.
[52] The evidence before the Judge did not focus on the consultation obligation with sufficient precision to enable us to come to any clear answer in the present case as to whether the obligation was met. Arguably, it was not (as counsel accepted) and we are prepared to proceed on that assumption.
[53] In his judgment, Judge Hubble referred to the destruction of the animals. He continued:

[51] Most of these animals were destroyed because the inspectors found them to be sick to the point that they would not survive a six to seven hour journey in a cattle truck to new grazing. In other words, in terms of s 138 the animal would suffer unreasonable and unnecessary pain or distress. Although arguments may be raised as to whether all of these animals should be destroyed "because reasonable treatment will not be sufficient", that is not the issue that the Court is concerned with.
[52] The issue is whether or not these animals had been ill treated, and in my judgment, arguments surrounding proper procedure under s 138 do not in themselves provide a basis for excluding evidence. Furthermore, in the present case, where inspections over the previous three days made it apparent that some animals would need to be euthanased, there was a continuing opportunity for Mr Summers to obtain an independent opinion, if he was able to do so.
[53] I do not accept that any criticism can be levelled at the inspectors or the veterinarian Mr Stocker, who had the unpleasant and emotional task of destroying 68 animals. Autopsy and photographic evidence of the individual animals destroyed is yet to emerge.
[54] It is clear that Mr Summers objected to the animals being destroyed, and from his perspective there is a question mark as to why an attempt was not made to assist them or some of them in the reserve paddock on his property, supplemented by molasses or other treatment. However, Mr Summers had been specifically directed to take action earlier by a notice under s 130, and had failed to carry it out. Further, his treatment or lack of treatment of cow No. 245 would have given the inspectors no confidence that the animals would survive. The reasonableness or otherwise of the decision to put down individual animals is not, however, germane to the issue of admissibility of the evidence. It is but one factor in assessing the reasonableness of the search in the event that a warrant was necessary, yet not obtained.

[54] We agree with the Judge that any failure to follow the procedures required by s 138 does not in itself render the post-mortem and pathology evidence inadmissible, but is a relevant consideration in determining the reasonableness of the actions of MAF.

The appellant’s exclusion from the euthanasia and autopsy processes was unlawful

[55] The appellant’s position is that he had permission from the landowner to be in the area in which the euthanasia and post-mortem processes were being conducted and that Constable Godinet had no authority to exclude him.
[56] Constable Godinet told the appellant that unless he left the area he would be arrested for trespass. In acting on this basis he was assuming that the MAF team were, for the purposes of the Trespass Act 1980, the lawful occupiers of the relevant area. That may or may not have been an accurate view of the law but there is no reason to doubt that it was bona fide held. Nor is there any reason to suppose that the Constable would not have carried out his threat if the appellant had refused to leave. Such an arrest would have been "justified" under s 32 of the Crimes Act irrespective of the accuracy of the Constable’s assumption. On that basis, the arrest which was threatened would not have been unlawful.
[57] As well, a common-sense view is required. The situation confronting Constable Godinet and the MAF team was extremely stressful. A large number of animals were required to be destroyed. They were to be killed using a firearm. Dr Stocker, who was much affected by what was happening, was, unsurprisingly, not prepared to work with the appellant and his son present and filming what was happening. In that context, for the appellant to insist on being present would arguably have amounted to the offence of obstruction under s 158 of the Animals Welfare Act. Further, and importantly, Constable Godinet had an obligation to maintain the peace. Given that he was confronted with an extremely distressing and potentially volatile situation in which a firearm was being used, we would be very reluctant to second guess his judgment as to what was required.
[58] We will be referring shortly to the reasons why the appellant claims to have been prejudiced in his defence by his exclusion and inability to film the euthanasia and post-mortem procedures. Had they been conveyed to Constable Godinet, it may be that it would have been sensible for him to have allowed the appellant to record what was happening (and thus mitigate the risk of forensic prejudice) but from a sufficient distance to ensure that Dr Stocker did not feel impeded in what he was doing. There is no evidence that his concerns as to possible forensic prejudice were conveyed to Dr Stocker and Constable Godinet at the time. Constable Godinet would have been focusing at the time primarily on the likely immediate consequences if he had permitted the appellant and his son to be present and film the euthanasia and related processes. In that context we do not see his actions as unreasonable.

The appellant’s exclusion from the euthanasia and autopsy processes has prejudiced his defence

[59] The appellant’s position, as conveyed by Mr McKean, is that his exclusion from the euthanasia and autopsy processes has prejudiced his defence. In part this is because the appellant was not able to suggest that specific animals be examined in particular ways. As well, Mr McKean says that the appellant is not now able to identify the animals which were subject to post-mortem examination.
[60] At the hearing of the s 344A application Mr McKean showed Dr Stocker photographs of the animals which were taken during this process and obtained concessions from Dr Stocker that these photographs did not show sufficient detail to enable the appellant to identify the animals which were subject to post-mortem examination.
[61] The material shown to Dr Stocker was incomplete. There are also photographs which were taken when the animals were ear-tagged by the MAF team. As well the appellant’s son has a video record of much of what transpired between 22-26 July. The appellant himself did not give evidence at the hearing of the s 344A application and there is thus nothing from him to suggest that identification is not possible.
[62] We accept that there is the possibility that the appellant would have derived some forensic advantages if he had been able to record on video the euthanasia and autopsy processes. But the possibility of some forensic disadvantage for a defendant or potential defendant is the necessary concomitant of much that happens in the world of law enforcement, for instance as to what photographs should be taken at a crime scene, what scientific tests should be carried out, what initial inquiries should be taken and so on. Decisions often have to be made in circumstances of pressure and without full information. Endeavouring to avoid such forensic prejudice may well involve conflict with other values or considerations which are relevant to the criminal justice process. In this case, the sort of monitoring which the appellant would have preferred would probably have resulted in Dr Stocker refusing to carry on and thus might have impeded the implementation of the Act.
[63] Against that background it is not possible to regard the forensic prejudice alleged by the appellant resulting from his exclusion from the euthanasia and autopsy processes as resulting in prejudice to his defence; at least in a way which the law regards as significant.

The appellant’s primary arguments

[64] It will be recalled that the appellant’s primary arguments are:

1. The post-mortem examination results were obtained pursuant to processes involving unlawful and unreasonable search and seizure and ought to be excluded.
2. The post-mortem examination results were obtained in circumstances which infringed the appellant’s rights under s 24(1) of the New Zealand Bill of Rights Act to prepare a defence.

[65] Both arguments can be conveniently considered together.
[66] As is apparent from what we have said, we are of the view that the search warrants obtained on 22, 23, and 24 July were still available to MAF despite the "1 occasion" limitation. Those warrants and ss 127 and 130 provided authority for the MAF team to enter the appellant’s farm on 25 and 26 July and to remove his stock.
[67] In the absence of non-compliance with s 138(1) a search and seizure issue of any significance could not easily be identified. Had there been compliance with s 138(1) the animals would be treated as having been lawfully removed from the appellant’s farm and destroyed and disposed of in the discretion of MAF: s 138(5). In any event, taking of samples from the bodies of the animals was covered by at least the last of the search warrants.
[68] There are strong grounds for arguing that despite this deviation from the statutory process, the post-mortem examination and the taking of samples for later analysis was nonetheless reasonable because:

1. There is no suggestion of bad faith.
2. The view that s 138 did not apply could have been held reasonably, the section not previously having been the subject of judicial consideration.
3. It is open to argument, and it would be possible to believe reasonably, that s 138(1) was complied with by the consultation processes which had taken place.
4. The circumstances confronting the MAF team were extremely difficult and thus provided a context in which it would not be surprising if mistakes were made.
5. The taking of the body samples was covered by the last of the search warrants.
6. While there were procedural irregularities in relation to s 138, there is no evidence to suggest any substantive unfairness. In other words there has been no evidence to suggest that the animals in question ought not to have been euthanased and thus that a s 138 consultation process would have made any appreciable difference.

[69] It has long been established that a search and seizure, while unlawful, may nevertheless not be "unreasonable" for the purposes of s 21 of the New Zealand Bill of Rights: R v Jefferies [1994] 1 NZLR 290 (CA). We are satisfied that the circumstances described in the previous paragraph are sufficient to characterise the search and seizure process involving the post mortem examinations and taking of samples as not "unreasonable" for the purposes of s 21.
[70] We are also well-satisfied that the appellant’s rights under s 24(1) of the New Zealand Bill of Rights Act have not been infringed. This conclusion really follows from what we have earlier said which also makes it unnecessary to consider the significance of s 24 of the New Zealand Bill of Rights Act conferring rights only on those "charged with an offence", a status which the appellant did not have in July 2002.
[71] On that basis it is unnecessary to consider the case on the balancing exercise required by R v Shaheed [2002] 2 NZLR 377 and we find that the disputed evidence is admissible at trial.

Result

[72] We grant leave to appeal but dismiss the appeal.

Solicitors:
Webb Ross Johnson, Whangarei for Appellant
Crown Solicitor, Auckland

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[2]	On 4 July 2002, two Ministry of Agriculture and Forestry ("MAF") officials, Messrs King and Culham, went to inspect the appellant’s farm. During the inspection they were accompanied by the appellant and his son. The son recorded the process using a video camera. The appellant was advised to have a veterinarian present the following day.
[3]	Dr Greg Stocker, who had previously provided veterinary services to the appellant, was contacted and he agreed to attend.
[4]	On 5 July the two MAF officials and Dr Stocker met with the appellant. The MAF officials and Dr Stocker were of the view that a farm consultant should be engaged. The appellant rejected a number of farm consultants suggested by the MAF officials. Eventually the parties agreed on Ms Amanda McLeod. Again, the appellant’s son recorded the events of the day with a video camera. The appellant also kept a record by using a dictaphone.
[5]	On 18 July, another MAF official (Mr Alan Wilson), Dr Stocker and Ms McLeod visited the property. A more thorough inspection was undertaken, again videoed by the appellant’s son. Mr Wilson served a statutory notice on the appellant, requiring specific action to be taken to mitigate the inspected animals’ suffering. The action required was to move the animals to a reserve grazing area. Mr Wilson also advised the appellant that on Monday 22 July, the stock were to be mustered for closer examination.
[6]	The appellant did not comply with the statutory notice.
[7]	The inspection of the appellant’s stock and related activities occupied the entire working week which commenced on Monday 22 July. This exercise was referred to by MAF as "Operation Silvanus". Involved in the operation were MAF officials, Dr Stocker, Ms McLeod, and another veterinarian who works in the same veterinary practice as Dr Stocker. The activities were supervised by Constable Godinet who was brought in by MAF to ensure that order was maintained.
[8]	Search warrants were obtained to cover the activities which took place on 22, 23, and 24 July. These activities involved, inter alia, the inspection of all animals on the farm and the taking of blood and faecal samples for analysis. Only some of the animals on the farm had ear tags. MAF tagged all the animals. During the inspection process one cow (tag number 11) died and the appellant attempted unsuccessfully to conceal its body. Another cow (tag number 245) was identified as being in poor condition. The appellant was asked to feed it two litres of molasses and transport it to a shed for preferential treatment. The appellant did not comply with these requests and the cow was eventually euthanased on 25 July.
[9]	By the evening of 24 July, the MAF team had decided to remove the stock to an adjoining farm. The removal of the stock was to facilitate further assessment (for which the appellant’s drafting yards were not suitable). It was proposed that some animals were to be sold to a neighbour, others returned to the appellant’s property or transported to another property and the remainder would be destroyed.
[10]	Accordingly, Mr Wilson wrote to the appellant in these terms:

	The group of feeder calves housed at the shed (for which you will need to make alternative feeding arrangements or consider selling).
	The pig, the goat and the horses.
	A small group of bulls and a small group of rising two year old heifers.

[11]	MAF officials decided not to seek further search warrants to cover what was proposed for 25 and 26 July. They formed the view that further warrants were not required. This view seems to have been based on what they had been told by the Registrar of the District Court with whom they had been dealing and coincided with the opinion of Constable Godinet and legal advice they received from their head office. The assumptions were that the existing search warrants covered what they planned to do on 25 and 26 July and in any event there was independent statutory authority under the Animal Welfare Act 1999. We will discuss these assumptions later in this judgment.
[12]	As already indicated, on 25 July one cow (tag number 245) was destroyed. A further 67 animals were euthanased on that day and the following day. Ten animals, including the cow which had already died (tag number 11), were subjected to post-mortem examination. A tent was erected on the neighbour’s property to prevent people (including journalists) who had gathered from viewing the euthanasia and post-mortem processes.
[13]	On 25 July, the appellant and his son tried to gain entry into the tent to take a video record of what was happening. They had obtained permission from the landowner. However, Dr Stocker was not prepared to continue working if this was to happen. Constable Godinet excluded the appellant and his son from the property under threat of arrest. He was not prepared to have the appellant and his son record proceedings from a site approximately 40 metres away.
[14]	Throughout the events that occurred on 22 to 26 July, the appellant’s son continued to use a video camera, although it appears that it did not function on one of the days in question.
[15]	In describing the events of July 2002, and in particular what happened between 22 and 26 July, we have not sought to evoke the emotional impact on those who were involved. We must, however, allow for this in our assessment of the evidence. The execution of Operation Silvanus had significant implications for the appellant and his family and was plainly upsetting for them. It was also obviously not an easy exercise for the MAF officials and veterinarians who were involved. Dr Stocker had never been involved in euthanasia of the scale required for the purposes of Operation Silvanus. It would appear that a number of those involved were genuinely appalled and emotionally distressed by the state of the cattle. Relationships between the MAF team (including the veterinarians and Constable Godinet) and the appellant and his family and supporters understandably became irascible.

[16]	Before identifying the issues in the case, it is necessary to refer to the relevant provisions of the Animal Welfare Act.
[17]	Section 127 provides:

[18]	It is common ground that the inspections of the appellant’s farm which occurred on 4 and 18 July were pursuant to s 127 and that no warrant was required.
[19]	Section 130(1) provides:

[20]	The notice that was given to appellant on 18 July was pursuant to this section.
[21]	More importantly, one of the reasons why the MAF officials did not obtain further search warrants after 24 July was because they considered that ss 127 and 130 provided adequate authority for them to have continued physical access to the appellant’s property and to remove stock to the adjoining property. We will discuss later in the judgment whether this is so.
[22]	Section 131 provides for the granting of search warrants. Section 131(3) is in these terms:

[26]	There is a surprising lacuna in s 138 in that it does not provide for what happens if a second opinion from a veterinarian is obtained and is to the effect that the animal should not be destroyed.
[27]	In the event that a second opinion from a veterinarian is obtained under s 138(1)(b), the section plainly envisages an animal-by-animal assessment. It is well open to argument that such an approach is also required in relation to the consultative process provided for by s 138(1)(b). As will become apparent, the MAF officials did not engage with the appellant on an animal-by-animal consultation prior to the destruction of each animal. The reasons for this are not clear but may well have been associated with the view that the destruction of the animals could be effected under s 130 or s 133(4) without engaging s 138. In this Court, Mr Lawry for the Crown accepted that this approach was incorrect and that where animals are to be destroyed, the general powers provided for by ss 130 and 133(4) are required to be exercised in a way which accords with s 138. Mr Lawry was also inclined to accept that s 138(1)(a) requires the consultative process to proceed on a basis which involves consideration of each animal which is a candidate for destruction.
[28]	We will revert to these concessions later in this judgment.

[33]	Mr McKean accepted that no warrant was required for what transpired on 4 and 18 July 2002 and that the events of 22, 23 and 24 July 2002 were adequately within the scope of the search warrants obtained at that time. So this argument focuses on the events of 25 and 26 July. He maintained the "1 occasion" limitation means that the search warrants obtained on 22, 23 and 24 July were spent and could not be regarded as authorising the entry or search and seizure processes which took place on 25 and 26 July. He also asserted that the general empowering provisions of ss 127 and 130 cannot be invoked in circumstances in which entry onto private property and the seizure of animals is for evidence gathering purposes.
[34]	In the District Court, Judge Hubble concluded that ss 127 and 130 authorised MAF to enter onto the appellant’s farm and to remove his animals. He was also of the view that for the purposes of s 133(1)(b), the execution of Operation Silvanus could fairly be regarded as "1 occasion" with the result that the search warrants obtained on 22, 23 and 24 July were still extant on 25 and 26 July.
[35]	Mr Lawry adopted the Judge’s reasoning.
[36]	We agree with Judge Hubble on both points.
[37]	The relevant provisions of the Animal Welfare Act are necessarily focused on the welfare of animals and, in the context of that focus, there is necessarily some limitation on the property rights and privacy expectations of animal owners. Section 127 strikes something of a balance with the prohibition on entry into a dwelling or marae without a warrant. In circumstances in which ss 127 and 130 are likely to be invoked, evidence gathering is likely to be amongst the purposes of the MAF officials involved. The question is whether the circumstances warrant the exercise of those powers and if they do, the fact that evidence gathering motives are also in the minds of the MAF officials can hardly be regarded as invalidating the actions they take.
[38]	On the "1 occasion" limb of the argument, Mr McKean’s approach came down to the proposition that a search warrant authorises a single entry only. If this is so, a search warrant would become spent if the officer executing the warrant stepped off the property (for instance to make a telephone call from the car he or she arrived in) but presumably would have remained current in the current context if the MAF team had taken the simple precaution of leaving an officer on the property over night. In the unlikely event that this was intended by the legislature, we would have expected the legislation to provide specifically that a search warrant permits only a single entry. Instead, the legislature chose to use the more open-textured word "occasion". In context, we see no abuse of language in treating a single animal welfare exercise (as Operation Silvanus was) as a single occasion for the purposes of s 131(1)(b).

[39]	To describe Dr Stocker as "the appellant’s veterinarian", as Mr McKean did, is perhaps an over-statement. It is, however, clear that he was initially invited to the property because he had previously provided veterinary services to the appellant’s animals. As events panned out, payment for his services was made by MAF and in the course of the execution of Operation Silvanus, he became very much an integral part of the MAF team.
[40]	It is clear on the evidence that the appellant became particularly antagonistic towards Ms McLeod and he was on a number of occasions invited to obtain for himself the services of another consultant. On the other hand, there was no evidence that the appellant was invited to obtain the services of another veterinarian. In fact the appellant did not offer any criticism of Dr Stocker and his professionalism was not challenged in any way on appeal.
[41]	This last point is of some relevance to the questions which arise as to compliance with s 138 and we will revert to this point shortly.
[42]	An evaluation of the complaint now under consideration requires assessment of the context. It would be surprising if the appellant did not, at a reasonably early stage in proceedings, recognise that Dr Stocker had taken an adverse view of the condition of the animals, his stocking policy and his standards of animal husbandry. The obtaining of a search warrant on 22 July must have alerted the appellant to the likelihood of criminal proceedings. The course that events were taking must have indicated the probability that Dr Stocker was likely to be a prosecution witness. It is hard to see why he would have thought that he was not entitled to obtain other veterinary advice. There was certainly no evidence from the appellant to this effect as he did not give evidence at the hearing of the s 344A application.

[43]	Section 130(1)(a) permits an inspector to take "all such steps" as he or she "considers are necessary or desirable to prevent or mitigate the suffering of [an] animal" if he or she believes that animal "is suffering or is likely to suffer unreasonable or unnecessary pain or distress".
[44]	Similarly expressed powers apply when a search warrant is being executed. Section 133(4) permits an inspector to "take any steps that [he or she] considers are necessary or desirable to prevent or mitigate the suffering of [an] animal" if he or she is satisfied that the animal "is suffering unreasonable or unnecessary pain or distress". The phrase "unreasonable or unnecessary pain or distress" is also to be found in s 138(1) of the Act. Given that destruction of an animal might be thought to be a subset of the steps which might be necessary or desirable to prevent or mitigate suffering, we are of the view that general powers to prevent or mitigate suffering under ss 130 and s 133(4) are subject to the s 138 procedure.
[45]	As we have already noted, Mr Lawry accepted that s 138 is applicable where destruction of animals is involved and, as is apparent, we think that he was right to do so. He was also inclined to accept that s 138(1) required an animal-by-animal consultative process before destruction, albeit that this was not in quite the explicit terms of his acceptance that s 138(1) applied.
[46]	Section 138(1)(a) requires the inspector, auxiliary officer or veterinarian concerned to consult with the owner of the animal. The only exception to that obligation is if the owner cannot be located within a reasonable time. If the owner asks for a second opinion from a veterinarian as to whether the animal should be destroyed, the owner must be allowed to obtain the second opinion: see s 138(1)(b). The provision no doubt reflects the value of livestock to farmers who are reliant on their animals for their livelihood.
[47]	On the facts of this case, the owner of the animals was available at the scene. Thus, the qualification relating to the location of the owner within a reasonable time has no application. For that reason, we express no opinion on issues that arise if that circumstance exists.
[48]	In ordinary circumstances, consultation would require advice to the owner of the animals to be destroyed. A reasonable opportunity should normally be given to the owner to discuss the reasons for doing so and the possibility of pursuing options other than the destruction of the animals. The section usually requires the identification of animals individually or at least mustering those to be destroyed in a separate area. That is necessary in the usual case so the owner may identify the animals upon which he may require a second opinion.
[49]	The nature and scope of any consultation will depend on the circumstances including the exigencies of the situation and animal welfare considerations. The conduct of the owner may also have a bearing on the issue. If an owner adopts an uncooperative or even belligerent attitude, the extent and nature of the obligation to consult may be viewed in a different light. An owner’s conduct may make consultation impossible to achieve or at least limit the steps required by the officials to meet the obligation.
[50]	The number of animals involved in this case (68 were selected for euthanasia) highlights the particular practical problems that existed, to which we are not unsympathetic. It is not entirely clear why MAF did not consult in the manner suggested. There is a suggestion in the evidence that the investigators believed that they were not acting pursuant to s 138. It is possible they thought they were acting pursuant to the general powers conferred by s 130. Alternatively, it may be that the investigators considered that the events of 22, 23 and 24 July and the terms of the letter of 25 July involved the sort of consultation required by s 138.
[51]	Having reviewed the evidence, we are not taken to the point where we can be confident it has been demonstrated there was necessarily a failure to consult as s 138 requires. There can be little doubt that the appellant was taking a difficult and obstructive approach to the events on his farm which had been proceeding over some days. He had been put on notice of the intention of the MAF officials to destroy animals found unfit to travel (but without specific identification of those involved). Despite written advice to that effect, he had done nothing towards obtaining the opinion of another veterinarian. At no stage did he express any lack of confidence in Dr Stocker’s professionalism.
[52]	The evidence before the Judge did not focus on the consultation obligation with sufficient precision to enable us to come to any clear answer in the present case as to whether the obligation was met. Arguably, it was not (as counsel accepted) and we are prepared to proceed on that assumption.
[53]	In his judgment, Judge Hubble referred to the destruction of the animals. He continued:

[55]	The appellant’s position is that he had permission from the landowner to be in the area in which the euthanasia and post-mortem processes were being conducted and that Constable Godinet had no authority to exclude him.
[56]	Constable Godinet told the appellant that unless he left the area he would be arrested for trespass. In acting on this basis he was assuming that the MAF team were, for the purposes of the Trespass Act 1980, the lawful occupiers of the relevant area. That may or may not have been an accurate view of the law but there is no reason to doubt that it was bona fide held. Nor is there any reason to suppose that the Constable would not have carried out his threat if the appellant had refused to leave. Such an arrest would have been "justified" under s 32 of the Crimes Act irrespective of the accuracy of the Constable’s assumption. On that basis, the arrest which was threatened would not have been unlawful.
[57]	As well, a common-sense view is required. The situation confronting Constable Godinet and the MAF team was extremely stressful. A large number of animals were required to be destroyed. They were to be killed using a firearm. Dr Stocker, who was much affected by what was happening, was, unsurprisingly, not prepared to work with the appellant and his son present and filming what was happening. In that context, for the appellant to insist on being present would arguably have amounted to the offence of obstruction under s 158 of the Animals Welfare Act. Further, and importantly, Constable Godinet had an obligation to maintain the peace. Given that he was confronted with an extremely distressing and potentially volatile situation in which a firearm was being used, we would be very reluctant to second guess his judgment as to what was required.
[58]	We will be referring shortly to the reasons why the appellant claims to have been prejudiced in his defence by his exclusion and inability to film the euthanasia and post-mortem procedures. Had they been conveyed to Constable Godinet, it may be that it would have been sensible for him to have allowed the appellant to record what was happening (and thus mitigate the risk of forensic prejudice) but from a sufficient distance to ensure that Dr Stocker did not feel impeded in what he was doing. There is no evidence that his concerns as to possible forensic prejudice were conveyed to Dr Stocker and Constable Godinet at the time. Constable Godinet would have been focusing at the time primarily on the likely immediate consequences if he had permitted the appellant and his son to be present and film the euthanasia and related processes. In that context we do not see his actions as unreasonable.

[59]	The appellant’s position, as conveyed by Mr McKean, is that his exclusion from the euthanasia and autopsy processes has prejudiced his defence. In part this is because the appellant was not able to suggest that specific animals be examined in particular ways. As well, Mr McKean says that the appellant is not now able to identify the animals which were subject to post-mortem examination.
[60]	At the hearing of the s 344A application Mr McKean showed Dr Stocker photographs of the animals which were taken during this process and obtained concessions from Dr Stocker that these photographs did not show sufficient detail to enable the appellant to identify the animals which were subject to post-mortem examination.
[61]	The material shown to Dr Stocker was incomplete. There are also photographs which were taken when the animals were ear-tagged by the MAF team. As well the appellant’s son has a video record of much of what transpired between 22-26 July. The appellant himself did not give evidence at the hearing of the s 344A application and there is thus nothing from him to suggest that identification is not possible.
[62]	We accept that there is the possibility that the appellant would have derived some forensic advantages if he had been able to record on video the euthanasia and autopsy processes. But the possibility of some forensic disadvantage for a defendant or potential defendant is the necessary concomitant of much that happens in the world of law enforcement, for instance as to what photographs should be taken at a crime scene, what scientific tests should be carried out, what initial inquiries should be taken and so on. Decisions often have to be made in circumstances of pressure and without full information. Endeavouring to avoid such forensic prejudice may well involve conflict with other values or considerations which are relevant to the criminal justice process. In this case, the sort of monitoring which the appellant would have preferred would probably have resulted in Dr Stocker refusing to carry on and thus might have impeded the implementation of the Act.
[63]	Against that background it is not possible to regard the forensic prejudice alleged by the appellant resulting from his exclusion from the euthanasia and autopsy processes as resulting in prejudice to his defence; at least in a way which the law regards as significant.

[65]	Both arguments can be conveniently considered together.
[66]	As is apparent from what we have said, we are of the view that the search warrants obtained on 22, 23, and 24 July were still available to MAF despite the "1 occasion" limitation. Those warrants and ss 127 and 130 provided authority for the MAF team to enter the appellant’s farm on 25 and 26 July and to remove his stock.
[67]	In the absence of non-compliance with s 138(1) a search and seizure issue of any significance could not easily be identified. Had there been compliance with s 138(1) the animals would be treated as having been lawfully removed from the appellant’s farm and destroyed and disposed of in the discretion of MAF: s 138(5). In any event, taking of samples from the bodies of the animals was covered by at least the last of the search warrants.
[68]	There are strong grounds for arguing that despite this deviation from the statutory process, the post-mortem examination and the taking of samples for later analysis was nonetheless reasonable because:

[69]	It has long been established that a search and seizure, while unlawful, may nevertheless not be "unreasonable" for the purposes of s 21 of the New Zealand Bill of Rights: R v Jefferies [1994] 1 NZLR 290 (CA). We are satisfied that the circumstances described in the previous paragraph are sufficient to characterise the search and seizure process involving the post mortem examinations and taking of samples as not "unreasonable" for the purposes of s 21.
[70]	We are also well-satisfied that the appellant’s rights under s 24(1) of the New Zealand Bill of Rights Act have not been infringed. This conclusion really follows from what we have earlier said which also makes it unnecessary to consider the significance of s 24 of the New Zealand Bill of Rights Act conferring rights only on those "charged with an offence", a status which the appellant did not have in July 2002.
[71]	On that basis it is unnecessary to consider the case on the balancing exercise required by R v Shaheed [2002] 2 NZLR 377 and we find that the disputed evidence is admissible at trial.