R v Hata CA441/05 [2006] NZCA 441 (21 August 2006)

Last Updated: 29 January 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA441/05

THE QUEEN

v

_{GEORGE HATA}

Hearing: 16 May 2006

Court: Chambers, Baragwanath and Venning JJ Counsel: G R Tomlinson for Appellant

K B F Hastie for Crown

Judgment: 21 August 2006 at 11 am

_{JUDGMENT OF THE COURT}

A The application for leave to appeal is granted.

B The appeal is allowed to the extent that the evidence of Mr Wilson obtained on 8 October 2004 is ruled inadmissible.

C An order is made that this judgment and the reasons therefor are not to be published in the news media or on the internet or in other publicly accessible database until final disposition of the trial. Publication in a

_{law report or a law digest is, however, permitted.}

R V HATA CA CA441/05 21 August 2006

REASONS

Chambers and Venning JJ [1] Baragwanath J (dissenting in part) [35]

CHAMBERS AND VENNING JJ

(Given by Venning J)

Introduction

[1] This is an application for leave to appeal against a pre-trial ruling given on

14 October 2005 by Judge Callander in the District Court at Tauranga on an application under s 344A of the Crimes Act 1961. The Judge ruled in favour of the Crown and held the disputed evidence was admissible.

Background

[2] The following facts emerge from the evidence given at depositions and during the course of the voir dire. On 6 October 2004 Mr Wilson, an animal control officer employed by the Opotiki District Council, went to the appellant’s property in response to a complaint that a pair of horses that had been in the appellant’s yard for about three weeks were getting out on to the road. Mr Wilson saw two horses at the property in separate pens. Mr Wilson did not go on the property but in his capacity as stock control officer he checked to confirm the appellant’s gate was secure. At the time he noticed the hay in the yards appeared to have been fouled by horse urine and manure. He also observed that the horses had bits in their mouths with the lead from the bits left to trail on the ground.

[3] On 8 October 2004 Mr Wilson returned to the property. That day he entered the yards. He noted that there was very little water in the container in the front pen and that what hay there was, was not fit for consumption as it had been trampled into the faeces and dirt. Mr Wilson examined the colt gelding. It had been recently castrated and not properly tended to. The bit in its mouth had also rubbed raw, having been pulled so tight the skin was just about growing around it. Mr Wilson removed the bit and the rope and bridle from the gelding. He also examined the second horse, a filly. Again the horse’s water container had very little water in it. Its yard was in the same poor condition with trampled hay. There was no grass or other food present for the filly. Mr Wilson’s wife, who accompanied him on this second occasion, took a number of photographs of the horses and the condition of their yards.

[4] After his inspection of the horses, Mr Wilson telephoned Ms Jenkins, who was employed by the Opotiki District Council as an animal welfare officer. Ms Jenkins was also an inspector under the Animal Welfare Act 1999 (the Act). Mr Wilson reported the conditions in which the horses were being kept and his concern about their condition and welfare to Ms Jenkins. Ms Jenkins had no transport. She was unable to travel the 18 kilometres from Opotiki to the appellant’s property that evening. She instructed Mr Wilson to organise a truck to remove the horses from the property. He did so. The horses were uplifted from the property and taken to the Council pound at the direction of Ms Jenkins.

[5] The next day Ms Jenkins briefly checked on the horses and then went to the appellant’s property. The appellant was not there. Ms Jenkins inspected the yards where the horses had been kept and left a notice of entry under s 129 of the Act. Inter alia, the notice told the appellant as owner of the property that the animals had been removed, the grounds for removal and where Ms Jenkins could be contacted. On 11 October Mr Hata came to the Opotiki SPCA to speak to Ms Jenkins about the matter. She asked him to return in the afternoon for a formal interview. During the course of the interview Ms Jenkins took a statement from him in which he admitted ownership of the horses. He claimed to have been feeding and watering the horses every day or every other day. He admitted that he had gelded the colt.

[6] A few days after they were removed from the appellant’s property, the horses were observed by a veterinary surgeon, Dr Hegh, when she was at Mr Wilson’s property. Dr Hegh described both horses as being in poor condition with poor muscling, evident ribs and long shaggy coats. One had scars or wounds around the mouth consistent with having been caused by a steel bit or something similar. The gelding had been recently castrated. There was swelling around the horse’s prepuce and evidence of serum and blood oozing from the wound. Dr Hegh’s observation of the horses was conducted at a distance, as she was not asked to examine them.

[7] The appellant was charged with a breach of s 12(a) of the Act by failing to ensure that the physical health and behavioural needs of the two horses were met in a manner that was in accordance with both good practice and scientific knowledge. He was also charged under s 21(1)(a) that without reasonable excuse he performed a significant surgical procedure, namely castration, on one of the horses.

The decision in the District Court

[8] In his oral decision Judge Callander recorded the concession of the Crown that Mr Wilson’s actions were unlawful and that the horses were taken off the appellant’s property illegally by Mr Wilson. The Judge noted that an unlawful search and seizure did not necessarily equate with unreasonableness and vice versa, and found there was no bad faith, nor any reckless disregard of the appellant’s rights by Mr Wilson. The Judge referred to R v Shaheed [2002] 2 NZLR 377 (CA) and, applying a balancing exercise, he ruled the evidence as admissible.

The parties’ submissions

[9] Mr Tomlinson submitted that Mr Wilson’s entry onto the property was unlawful as was his removal of the horses from the property and accordingly the whole of the evidence that followed, including the appellant’s interview with Ms Jenkins and the veterinary inspection, should be excluded as resulting from Mr Wilson’s unlawful conduct.

[10] Ms Hastie for the Crown acknowledged that the entry and seizure of the horses by Mr Wilson was illegal but submitted that although unlawful the search and seizure were not unreasonable. Alternatively she submitted that the challenged evidence should be admitted on application of the balancing test referred to in Shaheed.

The legislative background

[11] Section 127 of the Act as relevant reads:

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; and

...

enter, without warrant, that land or those premises or that place or any such vehicle, aircraft, or ship for the purposes of inspecting any animal on or in that land or those premises or that place or in or on any such vehicle, aircraft, or ship.

...

(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 or in or on the vehicle, aircraft, or ship, that—

...

(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).

In this case s 127(3) and (4) have no application.

[12] Section 129 reads:

129 Notice of entry

If the person in charge of the land, premises, or place or the vehicle, aircraft, or ship, as the case may be, is not present at the time at which a power of entry is exercised, without warrant, under section 127, the inspector must leave in a prominent place on the land, premises, or place or in or on the vehicle, aircraft, or ship a written statement of—

(a) The time and date of the entry; and

(b) The purpose of the entry; and

(c) The condition of any animals inspected; and

(d) The animals (if any) that have been removed from the premises in accordance with section 127(5); and

(e) The name of that inspector; and

(f) The address of the police station or other office to which inquiries should be made.

[13] Section 130 reads:

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;

...

Decision

[14] The evidence in issue is that of Mr Wilson’s observations (on both 6 and

8 October 2004), and the evidence of Ms Jenkins and Dr Hegh. There can be no challenge to the lawfulness of Mr Wilson’s actions on his first visit to the property on 6 October 2004. On that day he did not enter the yards, but observed the horses and the conditions of the yards. Mr Wilson’s evidence of his observations that day is admissible. The real issue arises in relation to his actions on 8 October, his evidence obtained that day, and the subsequent evidence of Ms Jenkins and Dr Hegh.

[15] In the present case Mr Wilson’s entry to the appellant’s land on 8 October

2004 was unlawful. He was not an inspector and had no right to enter the land. The Crown accepts that. Mr Wilson reported his findings to Ms Jenkins. Ms Jenkins directed him to remove the animals. It is implicit that Ms Jenkins came to the view, on the basis of what Mr Wilson told her, that the physical health and the need for proper care made it necessary and desirable that the horses be removed from the land. But Ms Jenkins was not authorised to direct Mr Wilson to take that step on her behalf. The right to remove the horses under s 127(5) could only arise under s 127(1) during the exercise of a power of entry and inspection by Ms Jenkins as an inspector. The Act envisages that the inspector must himself or herself form a view as to the animals’ condition and needs, during the course of such inspection.

[16] Before considering the effect of the unlawfulness of Mr Wilson’s actions on the evidence he obtained that day, we turn to consider the position of the evidence of Ms Jenkins and Dr Hegh.

[17] On the morning of 9 October Ms Jenkins took a number of steps which, in our view, authorised the continued detention of the horses. Ms Jenkins first confirmed that the state of the horses was such that they should be seen by a veterinarian for assessment. She then travelled to the appellant’s property and inspected the state of the yards the horses had been kept in. It is implicit that she determined that the standard of the care as shown by the yards and the physical state of the horses were such that the horses should not be returned, but rather should be

kept off the appellant’s property. Ms Jenkins then left a notice of entry, addressing the matters set out in s 129.

[18] In determining the legality of Ms Jenkins’ actions on 9 October, and thus the admissibility of her and Dr Hegh’s evidence, the particular nature of the subject matter, in this case horses, as living creatures and the purposes of the Act must be borne in mind.

[19] Ms Jenkins could have returned the horses to the appellant’s property on

9 October. Having regard to the purpose of the Act and the wide powers Ms Jenkins had as an inspector, she could then, legitimately, have immediately exercised her power of entry under s 127(1), re-seized the animals and removed them from the property to arrange for their subsequent inspection and care. Given the distressed state of the animals it is not surprising Ms Jenkins did not follow that artificial procedure. Instead Ms Jenkins took what steps were practically available to her to regularise the position. She confirmed the need to detain the animals for proper care, visited the appellant’s property, assessed the yards as providing insufficient care and left a notice under s 129.

[20] Section 127 provides for a series of discrete steps, namely entry onto land, inspection, seizure, removal and detention, all directed at one of the principal purposes of the Act, to ensure that owners attend properly to the welfare of their animals. While Ms Jenkins’ actions could not cure the unlawful search and seizure by Mr Wilson, they did ensure that the subsequent detention of the horses on

9 October under her authority was lawful.

[21] A distinction may be drawn between the unlawful search and subsequent seizure and detention of inanimate evidence, for example drugs and the continued detention of the horses (after the initial unlawful seizure by Mr Wilson) in the present case. In the former case the position is not recoverable. The police cannot accept their mistake, return the drugs and then apply for a search warrant to search the premises and re-seize the drugs. Once the drugs are seized in the context of an unlawful search in breach of s 21 of the New Zealand Bill of Rights Act 1990 then, subject to the issue of reasonableness of the search and application of the test in

Shaheed, the evidence is inadmissible. However, in the present case, Ms Jenkins could have returned the animals and then inspected and re-seized them. Their poor state was an ongoing condition that would have authorised, indeed required, Ms Jenkins to act in that way. The evidence that followed the continued detention, namely Ms Jenkins’ evidence, the statement made by the appellant to Ms Jenkins and Dr Hegh’s evidence, was obtained after Ms Jenkins had satisfied herself the continued detention was necessary to provide for the horses’ physical wellbeing and in order to provide proper care for them.

[22] The purpose and principles of the Act are relevant in this regard. The preamble to the Act recites that inter alia it is an Act “to require owners of animals, and persons in charge of animals, to attend properly to the welfare of those animals”. Section 9 provides that the purpose of Part 1 of the Act, which provides for the care of animals, is to:

(1) ... ensure that owners of animals and persons in charge of animals attend properly to the welfare of those animals.

(2) This Part accordingly—

(a) Requires owners of animals, and persons in charge of animals, to take all reasonable steps to ensure that the physical, health, and behavioural needs of the animals are met ...

(b) Requires owners of ill or injured animals, and persons in charge of such animals, to ensure that the animals receive, where practicable, treatment that alleviates any unreasonable or unnecessary pain or distress from which the animals are suffering; and

(c) Imposes restrictions on the carrying out of surgical procedures on animals; ...

[23] As one might expect “the physical, health, and behavioural needs” is defined to include proper and sufficient food and water and physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress: s 4.

[24] The provisions of the Act that allow for the detention of the animal(s) have, as their prime purpose, meeting the welfare needs of the animal(s). It may be that while the animals are detained, and in the course of inspection and treatment, evidence will be obtained that may support a prosecution against the owner. That is,

however, a consequence of the detention and inspection rather than its purpose. That may be contrasted with the situation of the detention by the police of seized drugs. The purpose of the detention in such a case is primarily to preserve evidence for the purposes of the prosecution.

[25] In the circumstances we consider that the continued detention of the horses on 9 October and later, after Ms Jenkins had taken all practical steps available to her to regularise the position that she faced that day, was lawful. It follows that the evidence of Ms Jenkins and Dr Hegh was not obtained unlawfully and is properly admissible.

[26] That leaves the evidence of Mr Wilson. The evidence of his observations on

6 October is properly admissible. His evidence gained on 8 October (including the photographs taken that day) is, however, prima facie inadmissible as following the unlawful search and seizure.

Was Mr Wilson’s entry and seizure reasonable?

[27] Mr Wilson acted unlawfully in entering the property and in seizing the horses. An unlawful search and seizure is not necessarily an unreasonable search and seizure: R v Jefferies [1994] 1 NZLR 290 (CA); R v Grayson & Taylor [1997]

1 NZLR 399 (CA). But in our view Mr Wilson’s entry and the seizure were both unlawful and unreasonable. Mr Wilson knew he did not have authority to enter the property to check on the horses’ condition; indeed he rang Ms Jenkins because he lacked authority. While Mr Wilson was concerned for the condition of the horses it cannot be said to have been a situation of urgency. Mr Wilson had himself left the horses for two days after he observed them on 6 October, and later, after they had been seized, neither he nor Ms Jenkins sought a formal inspection by Dr Hegh. Dr Hegh’s evidence is limited to her observations at Mr Wilson’s property.

[28] That leaves the balancing test under R v Shaheed. In that regard we note that the search was not seriously intrusive. The search was of yards on a farm property. It was not a search of the appellant’s home or even a building. The seizure was, however, intrusive. The horses were taken from the appellant’s property, without the appellant’s knowledge.

[29] The breach was deliberate. As noted, Mr Wilson knew that he lacked authority. While accepting that Mr Wilson acted with the best of intention, he knew he did not have authority to go on the property to act as he did. He also knew that he did not have authority to seize the horses.

[30] Next, there were other options available. Mr Wilson could have gone and picked up Ms Jenkins, who was not far away. He could have brought her to the property to see the horses for herself. Alternatively, he could have called the police for assistance. Every member of the police has the powers of an inspector under the Act: see s 2(1). This was not a situation of urgency. Mr Wilson had left the horses for two days after his first observation. The horses apparently recovered without the need for veterinary treatment.

[31] Mr Wilson’s evidence would be credible and reliable, but balanced against that there is other evidence available to support a prosecution, that of Ms Jenkins and Dr Hegh, that is equally credible and reliable on the matters in issue in the prosecution.

[32] The seriousness with which Parliament regards the matter is reflected in the maximum penalty of six months’ imprisonment or fine of $25,000.

[33] On balance, and after weighing the above considerations, the scales come down against admitting the evidence that Mr Wilson obtained on 8 October. It is particularly relevant that Mr Wilson was not presented with an urgent situation, but still deliberately chose to go onto the appellant’s property and seized the horses in the knowledge he did not have authority to do so.

[34] For those reasons, we hold the evidence of Mr Wilson obtained on 8 October inadmissible, but the other disputed evidence is admissible.

BARAGWANATH J The competing policies

[35] On this appeal the Court must deal with the evidential result of a conflict among important public policies. No-one may in the exercise of public office enter another’s property without either consent or specific common law or statutory right. Exercise of authority to affect property rights must be authorised. Those in charge of animals must treat them decently and be penalised if they do not. A balanced judgment is taken to the admissibility of evidence obtained unlawfully.

[36] Here the terms on which Parliament gave authority to public officers to remove animals from private property and retain possession of them, expressed in the Animal Welfare Act 1999 were not properly complied with. The question concerns the consequences

[37] I differ from the majority in relation to the evidence of Mr Wilson obtained on 8 October 2004 for two broad reasons.

“No urgency”

[38] An essential theme of the legislation is to minimise the likelihood of unreasonable or unnecessary pain for animals. The majority express the view “This was not a situation of urgency. Mr Wilson had left the horses for two days after his first observation.” Certainly Mr Wilson did not treat the situation as urgent. But having on 6 October noticed that the horses’ feed had been fouled by horse urine and manure, common decency required that he follow the matter up. He was under no legal duty to do so; the common law imposes no obligation to rescue animals any

more than humans. But I respectfully disagree with the majority that his delay in acting signified absence of urgency.

[39] The urgency lay not in how Mr Wilson acted but in the known fact that the horses were being maltreated and the need that presented for prompt response. There has long been a general tendency to toleration of cruelty to animals. Professor Gary Francione of Rutgers University, the author of Introduction to Animal Rights (Temple University Press, Philadelphia 2000), recently wrote in a French journal:

We love our dogs and domestic cats...yet our general attitude to animals demonstrates our insensitivity and passive complicity towards their great suffering. So long as animals are seen as property and as chattels their torment will continue.

Pour l’abolition de l’animal-esclave Le Monde Diplomatique August 2006 p20

[40] But in New Zealand times have changed. Parliament has made plain that cruelty is not to be tolerated. The long title of the Animal Welfare Act is expressed “to reform the law relating to the welfare of animals and the prevention of their ill-treatment”. Section 10 requires every person in charge of an animal to ensure that the physical, health, and behavioural needs of the animal are met. Section 11 requires that every person in charge of an animal ensure that the animal receives treatment that alleviates any unreasonable or unnecessary pain or distress. Those provisions are mirrored in s 9 which states the purpose of the Act. It would be contrary to such policy to regard unreasonable delay in alleviating pain as tolerable.

[41] When Mr Wilson did act he went about it the wrong way by making his own entry into the property as a trespasser instead of drawing the condition of the yards to the attention of Ms Jenkins or another inspector under the Animal Welfare Act, such as a police officer. Although his entry was in law a trespass it entailed no more than walking over the grass to examine the horses which he had seen from the road. There was no significant interference with the appellant’s privacy. Given that the common law imputes a licence to enter a property to communicate with the occupier, there is in my opinion no reason to characterise Mr Wilson’s entry as seriously intrusive. Nor do the majority find that it was.

[42] The fouling of the feed which Mr Wilson had previously observed was confirmed and he also saw the physical evidence of maltreatment of the colt gelding. He arranged for his wife to photograph the horses and the condition of the yards and telephoned Ms Jenkins who was unable to come out. He accepted her request that he organise a truck to remove the horses which he took to the pound at her direction.

[43] The evidence as to the specific condition of the horses including the photographs was obtained in the course of an unlawful trespass. But there should in my opinion be factored into the Shaheed analysis that the trespass resulted from a reasonable perception that the horses were being maltreated, at the least by the fouling of their feed, and required attention. I do not assess Mr Wilson’s action of approaching horses visible from the road as conduct warranting the opprobrium of the Court so as to justify exclusion of his evidence of the maltreatment of the horses which he saw during the trespass. Nor do I share the opinion of the majority that Mr Wilson’s delay for two days somehow dispels the urgency of the need for intervention once he did appreciate their condition, especially that of the gelding.

[44] The majority’s conclusion of intrusive behaviour relates not to the stage of entry but the next of removal of the horses, to which I will come next. I would exercise the Shaheed judgment in favour of admitting the evidence of what Mr and Mrs Wilson saw and photographed.

“The gravity of the unlawful removal of the horses”

[45] The second point relates to the analysis of the removal of the horses, which at first sight appears intrusive. I am however of the view that the act of removing the horses was the act of Ms Jenkins who, having personal authority to remove the horses, directed Mr Wilson to do so, effectively as her agent. It should not in the particular circumstances be classified as such grave breach of the law as to allow the appellant to be relieved from admission of the resulting evidence. It is necessary to examine the statute.

[46] Certainly Ms Jenkins did not comply with s 127 which provides:

127 Power to inspect land, premises, and places and stationary vehicles, aircraft, and ships

(1) Subject to subsection... (3)... , 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...

(2) A member of the police may, for the purpose of exercising the powers conferred by this section or of enabling an inspector to exercise any of the powers conferred by this section, stop any vehicle if the member of the police has reasonable grounds to believe that an animal on or in that vehicle is suffering or is likely to suffer unreasonable or unnecessary pain or distress.

(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, ... that—

... (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...—

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... to assist the inspector with an inspection under subsection (1).

(Emphasis added)

[47] Section 128 requires an inspector exercising a power of entry under s 127 at the time of initial entry to produce evidence of his or her appointment as an inspector and of his or her identity.

[48] An inspector who makes an entry of unoccupied premises must leave notice of having done so. Section 129 states:

129 Notice of entry

If the person in charge of the land, premises, or place ... as the case may be, is not present at the time at which a power of entry is exercised, without warrant, under section 127, the inspector must leave in a prominent place on the land, premises, or place or in or on the vehicle, aircraft, or ship a written statement of—

(a) The time and date of the entry; and

(b) The purpose of the entry; and

(c) The condition of any animals inspected; and

(d) The animals (if any) that have been removed from the premises in accordance with section 127(5); and

(e) The name of that inspector; and

(f) The address of the police station or other office to which inquiries should be made.

[49] An inspector has a general power to prevent or mitigate animal suffering:

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;...

[50] The effect of the Act is to impose stringent quality standards for the appointment of inspectors and to specify their powers with particularity.

[51] Section 127 recognises a hierarchy of privacy interests. By subsection (3)

any entry in or on a dwelling or marae requires a search warrant issued by

a District Court Judge, a Justice or community magistrate or Registrar. By subsection (2) the power of stopping a vehicle may be exercised only by a member of the police. Subsections (1) and (7) read together express a legislative policy that any entry into land without a warrant must be by an inspector personally whether or not accompanied by any other person. Such procedure builds into the entry procedure the safeguard of the stringent qualifications of personal involvement of an official who meets the s 124 criteria.

[52] It follows that, since there was never any exercise by the inspector personally of the power of entry of the land under s 127(1), the qualification for exercise of the power under subsection (5) of taking and maintaining possession of the animals - namely that “an inspector who exercises a power of entry under subsection (1) has reasonable grounds to believe...” - has not been satisfied. The exercise by an inspector of such power of entry was a statutory condition precedent to the legality of the taking: R v Manchester City Magistrates ex p Davies [1989] QB 631 (CA).

[53] So even as the act of Ms Jenkins, Mr Wilson’s entry onto the property and removal of the horses did not comply with the law.

[54] To the extent that she was able, by returning to the property and leaving the s 129 notice, Ms Jenkins sought to ratify and confirm the process that had been commenced at her direction the following day.

[55] The legally correct course was for Mr Wilson to telephone the inspector from outside the property and await her arrival. The fact that she lacked transport and would be unable to make the trip until the following day, when in the event it was Mr Wilson’s wife who drove her to the farm, points to the practical difficulty that Mr Wilson and Ms Jenkins faced. It has been noted that his response to the concern developing in his mind had been to act unlawfully and take a look. Having done so he reported what he saw to the inspector and acted on her direction to remove the horses, whose pitiful condition has been described.

[56] The purpose of the Act stated in s 9, requiring that the needs of animals are met and that they receive treatment to alleviate any unnecessary pain or distress, is a

key expression of Parliament’s policy. It is reinforced by s 130. That is a qualitative consideration that distinguishes this case from others of unlawful search and seizure of inanimate objects, such as unlawful drugs. Like dogs, considered in Hamilton City Council v Fairweather [2002] NZAR 477 at 490, horses as living creatures are entitled to greater consideration than the mere chattels as which animals were classified at common law.

[57] A further point is that discovery was inevitable as a result, particularly of the unorthodox behaviour of the neighbours. Mr Wilson was already on inquiry before he made his unlawful entry and it is inconceivable that the condition of the animals would remain undetected for much longer.

[58] Had the matter stopped there I would have admitted the ensuing evidence. I regard the breaches of law as insignificant when seen in context. The initial trespass was trivial; the intrusive removal of the horses was performed by act of the officer authorised to carry it out performed by her agent at her direction. While there was breach because she did not herself attend the property, the reasons were the practical one of her lack of transport and the very significant one of the colt’s need for prompt veterinary attention.

[59] The Courts are vigilant to ensure compliance with the law. But they will also keep the response to infringement rational and proportionate. In Attorney-General’s Reference (No 3 of 1999) [2001] 2 AC 91 (HL) a DNA sample retained by the police in breach of legislation stating in imperative terms that such samples “must be destroyed” required it to have been destroyed. The statute did not in terms prohibit the use in evidence of a sample unlawfully retained. Lord Cooke, like Lord Steyn, applied to the evidentiary decision the principle stated by Lord Hailsham in London and Clydeside Estates Ltd v Aberdeen DC [1980] 1 WLR 182 at 190 which he had previously cited in AJ Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at

5 (CA):

I do not wish to be understood in the field of administrative law...to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.

[60] But the matter does not stop there. As the majority observe, it is unreal to suggest that, following Mr Wilson’s trespass and the subsequent act of entering and removing stock in the absence of an authorised officer, the council should have solemnly returned the abused horses to the appellant’s property and then gone through the statutory processes of entry and seizure by the inspector. Such course would be inconsistent with the inspector’s obligations under s 130 to take all such steps as the inspector considers are necessary or desirable to prevent or mitigate the suffering of the animals.

[61] At the time she issued her notice Ms Jenkins possessed the full authority provided by s 127 required for her to assume control over the horse. She had already obtained physical possession of it, albeit by unlawful means, and had the power to go through the formality of returning and uplifting the horse in a formal manner which it is not disputed would have validated the seizure and the subsequent securing of evidence of the horses’ condition. Parliament has not directed how she should act and this Court must determine that question by application of legal principle.

[62] While formality has its place in law, as denoting when an act has legal consequences, the law is practical. Where a person with power to obtain lawful possession has both actual possession and the means by her own formal act of converting that into lawful possession, the law treats that as done which ought to be done. That was the principle of Walsh v Lonsdale (1882) 21 Ch D 9 where Lonsdale agreed in writing (but not by deed as required by the Real Property Act 1845) to grant a seven year lease of a weaving mill to Walsh. The law provided that distress for rent was unlawful unless there was a legal tenancy. Having entered into possession Walsh fell into arrears. Lonsdale distrained for the rent and Walsh claimed damages on the basis that he was not a tenant at law. Walsh would not become such until an order for specific performance was made against him. But Fry J and the Court of Appeal held in favour of Lonsdale. Implicit in their decisions was that, being able to secure the legal tenancy, they were to be treated as having it.

[63] Here the combination of Ms Jenkins’ agent’s securing physical (albeit unlawful) possession for her, coupled with her having full legal authority to secure

lawful possession, followed by the giving of the statutory notice which was the only other condition of her lawful possession, made that last step a legal act having the effect of giving her lawful possession.

[64] The technical analysis is consistent with precedent as well as principle. At Roman law possession in one capacity could be converted into possession in a different capacity by a symbolic legal act as by the process of traditio brevi manu: where a transferor’s thing was in the possession of another, the legal act of uttering formal words of authorisation could convert the other’s mere possession of the thing into ownership. See Andrew Borkowski Textbook on Roman Law (2ed 2003) at 198 citing D41.1.9.5; see also Garrow & Fenton Law of Personal Property (6ed 1998) at

29, fn 20.

[65] I do not regard the removal of the horses to receive treatment as such a breach of the law as to justify exclusion of the account of what Mr Wilson saw on

8 October. Accordingly in my view the subsequent evidence of Mr Wilson is admissible.

The other evidence

[66] It follows from my approach that I agree with the majority that the remaining evidence in this case must be admitted.

Conclusion

[67] I would simply dismiss the appeal.

Solicitors:

Gowing & Co, Whakatane for Appellant

Crown Law Office, Wellington