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Ministry for Primary Industries v McDonald [2018] NZDC 16909 (17 August 2018)

Last Updated: 18 June 2021


IN THE DISTRICT COURT
AT TE AWAMUTU
CRI-2017-072-000199

MINISTRY FOR PRIMARY INDUSTRIES
Prosecutor

v

JOSEPH MICHAEL McDONALD & AGRICOLA ENTERPRISES LIMITED
Defendants

Hearing:
4, 5 July 2018
Appearances:
Mr Herlihy for the Prosecution Mr P Cornege for the Defendants
Judgment:
17 August 2018 at 3.30pm

RESERVED JUDGMENT OF JUDGE A S MENZIES

Charges


[1] The Ministry for Primary Industries (MPI), has charged the two defendants Joseph Michael McDonald and Agricola Enterprises Limited with offences under the Animal Welfare Act 1999 (the Act).

[2] The defendant Mr McDonald faces two charges under s 12(a) of the Act, alleging that as a person in charge of a herd of dairy cattle, he failed to comply with s 10 of the Act, by failing to ensure that the physical and behavioural needs of cows were met in a manner that was in accordance with good practice and scientific knowledge. More specifically, it is alleged this involved failing to ensure physical handling of the cows in a manner which minimised the likelihood of unreasonable or unnecessary pain or distress.

MINISTRY FOR PRIMARY INDUSTRIES v JOSEPH MICHAEL McDONALD [2018] NZDC 16909 [17

August 2018]

[3] One of the charges (CRN 0019) alleges the offence was committed between 1 June 2016 and 24 January 2017 in respect of new injuries identified in the tails of no more than 12 cows at the time the dairy herd was inspected on 24 January 2017 at Ohaupo.

[4] The second charge (CRN 0020) alleges the same offence committed between 1 June 2012 and 24 January 2017 in respect of no more than 107 cows being those identified as having older injuries at the time of the inspection on 24 January 2017.

[5] The defendant Agricola Enterprises Limited faces two identical charges under s 12(a) of the Act in respect of the same dates, location and cows as the owner of the dairy cattle.

[6] The defendant Mr McDonald in his capacity as a director of Agricola Enterprises Limited, faces two further charges under sections 12(a) and 165 of the Act in respect of the same dates, location and cows in his capacity as a director of Agricola Enterprises Limited. The offence description for these charges particularises the same alleged offences committed by Agricola Enterprises Limited (as owner of the animals), along with the additional particulars that as a director of Agricola Enterprises Limited, Mr McDonald knew or should have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

Onus


[7] MPI having brought this prosecution, carries the onus of establishing the charges to the required standard of beyond reasonable doubt. That onus remains on MPI throughout the prosecution. The fact that in this case one defendant Mr McDonald gave evidence and other defence evidence was called, does not alter that onus. If I were to accept the defence evidence, the charges would need to be dismissed. If the defence evidence creates reasonable doubt, then the defendants would be entitled to the benefit of that doubt. If I do not accept the defence evidence,

I would be obliged to put aside that evidence and then determine on the basis of the prosecution evidence that I accept, whether or not the charges have been established to the required standard.


Focus


[8] The focus of this hearing was a form of injury commonly referred to as tail breaks. The prosecution case was that a significant number of cows in the herd had injuries to their tails in the form of tail breaks which were evidence of the allegations contained within the parameters of the various charges.

Defence


[9] A number of issues were conceded by the defendants for the purposes of the prosecution. There was no argument that Agricola Enterprises Limited owned the herd, that Mr McDonald was a director of that company and that Mr McDonald was in charge of the herd at all relevant times. The company shareholders and directors were Mr McDonald and other family members and Mr McDonald was directly involved in the day to day running of the farm and management of the herd. While there were others involved in the milking and day to day functions involving the herd on the farm, Mr McDonald was personally involved as well to a significant degree.

[10] While the defendants acknowledged tail breaks evident in the herd, the defence raised is that the prosecution evidence relating to the tail breaks does not establish the charges to the required standard. No distinctions were drawn as to the responsibility as between the two defendants. Both defendants argue the prosecution has not been established to the required standard.

[11] As a consequence, any finding against Mr McDonald in his capacity as the person in charge, would lead to a comparable finding in respect of those allegations against both the company and Mr McDonald as a director.

Legal provisions


[12] The various relevant legal provisions arising under the Act are now set out:

(a) Section 2: Interpretation

Owner, in relation to an animal, includes the parent or guardian of a person under the age of 16 years who—

(a) owns the animal; and
(b) is a member of the parent’s or guardian’s household living with and dependent on the parent or guardian.

(b) Section 4: Definition of physical, health, and behavioural needs

In this Act, unless the context otherwise requires, the term physical, health, and behavioural needs, in relation to an animal, includes—

(a) proper and sufficient food:

(ab) proper and sufficient water:

(b) adequate shelter:
(c) opportunity to display normal patterns of behaviour:
(d) physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress:
(e) protection from, and rapid diagnosis of, any significant injury or disease,—

being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal


(c) Section 10 Obligation in relation to physical, health, and behavioural needs of animals

The owner of an animal, and every person in charge of an animal, must ensure that the physical, health, and behavioural needs of the animal are met in a manner that is in accordance with both—

(a) good practice; and
(b) scientific knowledge

(d) Section 12: Animal welfare offences

A person commits an offence who, being the owner of, or a person in charge of, an animal,—

(a) fails to comply, in relation to the animal, with section 10; or
(b) fails, in the case of an animal that is ill or injured, to comply, in relation to the animal, with section 11; or
(c) kills the animal in such a manner that the animal suffers unreasonable or unnecessary pain or distress.

(e) Section 13: Strict liability


(1) In a prosecution for an offence against section 12, it is not necessary for the prosecution to prove that the defendant intended to commit an offence.

(1A) In a prosecution for an offence against section 12 committed after the commencement of this subsection, evidence that a relevant code of welfare was in existence at the time of the alleged offence and that a relevant minimum standard established by that code was not complied with is rebuttable evidence that the person charged with the offence failed to comply with, or contravened, the provision of this Act to which the offence relates.

(2) Subject to subsection (3), it is a defence in any prosecution for an offence against section 12 if the defendant proves—
(3) Except with the leave of the court, subsection (2) does not apply unless, within 7 days after the service of the summons, or within such further time as the court may allow, the defendant has delivered to the prosecutor a written notice—

(f) Section 164: Liability of employers and principals


(1) Subject to subsection (3), where any offence is committed against this Act or any regulations made under this Act by a person as the employee of another person, that offence must, for the purposes of this Act, be treated as committed by that other person as well as by the first-mentioned person, whether or not it was done with that other person’s knowledge or approval.
(2) Where an offence is committed against this Act or any regulations made under this Act by a person acting as the agent of another person, that offence must, for the purposes of this Act, be treated as committed by that other person as well as by the first-mentioned person, unless it is done without that other person’s express or implied authority.
(3) In any proceedings for an offence against this Act or any regulations made under this Act against any person in respect of any offence alleged to have been committed against this Act or any regulations made under this Act by an employee of that person, it is a defence for that person to prove,—

(g) Section 165: Liability of directors and officers of bodies corporate

Where any body corporate is convicted of an offence against this Act, every director and every person concerned in the management of the body corporate is guilty of the like offence if it is proved—

(a) that the act that constituted the offence took place with his or her authority, permission, or consent; or
(b) that he or she knew or should have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

[13] Those provisions provide the statutory framework for the assessment of this prosecution. As previously noted, some of the matters arising are not in contest. It is noted that strict liability applies and it is not therefore necessary for MPI to prove that the defendants intended to commit an offence. It is sufficient for the prosecution to establish that the defendants failed to achieve the outcomes alleged in the charges and that in the case of Mr McDonald as a director, he knew or should have known that the offences were being committed and failed to take all reasonable steps to prevent them.

[14] The Act authorises a Code of Welfare formalised by notice published in the Gazette. Such a Code of Welfare dated 15 December 2016 was produced as an exhibit (the Code) and was relied upon by MPI for the purposes of establishing good practice and scientific knowledge under the Act. The Code produced came into force on 16 December 2016 and revoked and replaced the Code of Welfare: Dairy Cattle dated 13 June 2014. No earlier versions of the Code were produced in evidence. Neither counsel raised any issue in relation to that matter and I have assumed for the purposes of this decision that provisions comparable to the 2016 version of the Code were in place throughout the period it is alleged the offending occurred. The provisions of the Code appear to reflect good practice.

MPI Case


[15] MPI called four witnesses. Jason Corlett and Stefan Halberg are both animal welfare inspectors who visited the defendants’ farm property in response to a complainant from a member of the public relating to broken tails. On 17 January 2017, they inspected the defendants’ herd, which at the time was split into two mobs. Although they did not take any specific records at the time, they both formed the view that there was a high percentage of cows that had damaged tails that warranted further inquiry.

[16] Therefore, Mr Corlett subsequently attended the property with a veterinarian instructed by MPI, Dr Ashley O’Driscoll. Mr Corlett assisted Dr O’Driscoll to undertake a detailed assessment of the entire herd, documenting the process at the time.

[17] Mr Corlett produced the Code, a spreadsheet he prepared reflecting the record of the inspection, recorded in a “tail assessment” book.

[18] Mr Corlett also undertook an interview with Mr McDonald which was recorded. Both the CD and a transcript of the conversation were produced as exhibits.

[19] Mr Corlett also analysed information provided by the defence in relation to the tail assessments and produced that analysis.

[20] MPI called as an independent expert, Associate Professor Richard Anthony Laven, the Associate Professor for Animal Health at Massey University. Dr Laven has completed a PhD at the University of London and at the same time, completed a residency in farm animal pathology. His initial qualification was as a Bachelor of Veterinary Medicine from the University of London in 1989 and after qualification he worked at London University working in the farm practice and teaching veterinary students. He also worked in a mixed farm practice where he dealt with mostly dairy cattle for four years.
[21] Dr Laven provided other evidence of his academic qualifications and relevant background experience and I am satisfied he is a suitably qualified expert to provide evidence in the context of these prosecutions.

[22] Dr Laven was not personally involved in the inspection of the herd and based his analysis upon the information provided to him which in turn predominantly reflected the evidence of Dr O’Driscoll. He was told that the examination of the herd indicated tail breaks in 36% of the defendants’ herd and was then asked to comment on a range of related issues. His brief is encapsulated in the following paragraph from his statement of evidence at page 3:

I was also asked to comment specifically on the case, in particular whether the number of affected cows in the herd was acceptable and how this compare (sic) to a national average, whether the breaks could be put down to misadventure, and whether a diligent farmer have (sic) noticed the high percentage of breaks.


[23] Dr Laven described the composition of the tail being a continuation of the spine with the vertebrae being separated by cartilage discs with a series of blood vessels and nerves running underneath. The joints between the vertebrae are surrounded by ligaments which allow the tail to be flexible. Dr Laven described the tail in dairy cattle as being a very important and sensitive organ. He referred to the use of the tail to control cows as “jacking” the tail. This process was described as moving the tail to control the cow. Lifting the tail would cause the cow to move forward. Bending the tail to the side would cause the cow to move sideways. This process requires very little force or strength. If done correctly with a minimum of force, moving the tail in that manner is not detrimental to the animal.

[24] Dr Laven outlined that when tails are referred to as “broken” it does not necessarily mean a fracture of the bones of the vertebrae. Such breaking commonly means the breaking of the connections between the vertebrae, breaking the ligaments and the cartilage connections as opposed to the bone itself. An injury caused by bending and twisting the tail is thus more akin to a human dislocating a finger. The injury results in inflammation around the joint and damage to the nerves and blood vessels.
[25] Dr Laven referred to research to suggest the amount of force required to break a tail. A comparison was drawn with the torque required to lift a bottle containing two litres of water at the end of a 0.7 metre long stick. He considered that such force would be unlikely to be applied accidentally.

[26] Dr Laven said a cow with a broken tail is more sensitive to pain, particularly if the damage was recent. A tail left untreated and allowed to heal naturally (a process that is likely to take a period of weeks) leaves the cow prone to more pain in the future. In summary Dr Laven considered the breaking of a tail by bending or twisting would cause immediate severe pain and distress which, if untreated, could lead to prolonged pain (which could last for months) and permanent or prolonged loss of the use of the tail. Anyone aware of a dairy cow with a recently broken tail should in Dr Laven’s opinion ensure treatment by administering analgesic for at least one week with veterinary advice being obtained.

[27] Dr Laven then commented on the evidence of Dr O’Driscoll to the effect that 36% of the herd had broken tails. He was asked to compare that percentage with other known research or data and comment accordingly. In doing so, Dr Laven referred to a Canadian study by Zurbrigg et al (2005) which analysed data from 317 tie stall farms in Canada. That analysis revealed that 62% of farms had no broken tails and only 17 (5%) had more than 15%. That data was in respect of tie stalls where cows are tied to a stall in a barn which involves a greater chance of accident or misadventure than in the New Zealand system. The Zurbrigg study identified that the only likely cause of broken tails was tails being stepped on by another in a tie stall system and becoming broken by forceful manipulation by stock people. Dr Laven’s evidence was then to the effect that without evidence to the contrary, on a New Zealand dairy farm, the vast majority of broken tails would be due to mishandling. Dr Laven referred to the Welfarm study and based on his reference to the Zurbrigg study, the Welfarm data and his own experience, his opinion was that irrespective of the cause, farms with more than 15% broken tails should be investigating the cause of that high percentage. His view was that under New Zealand conditions, it is likely that the vast percentage of broken tails on such farms is due to forceful manipulation by farm staff.

Further, he said that if this is the case, then there is additional distress caused to the cow as they will associate the painful stimulus with being handled by the member of staff who caused the injury.


[28] Dr Laven outlined the caveat “it is likely that” is important because to make the claim that on all farms with a high percentage of broken tails poor handling must be responsible, would be incorrect. Dr Laven drew a colourful analogy with the black swan principle – Europeans thought all swans were white until they saw their first Australia black swan. Dr Laven then offered the comparison that he has never seen a herd where 36% of tails were broken where there was not significant involvement of poor handling, but that does not mean that it cannot happen.

[29] Dr Laven noted that the 36% of cattle recorded as having tail injuries was far higher than both the high rates reported in the Welfarm initiative data and the Zurbrigg study. He therefore regarded 36% as clearly unacceptable. Further, he expressed the view that the injuries described by Dr O’Driscoll, especially those seen in the proximal and middle thirds of the tail, were extremely unlikely to have been caused by misadventure. He confirmed that the torque required to damage a cow’s tail is significant and was of the view that a tail would not break for instance just from pushing against a zig-sag rail in a herringbone cow shed. That was largely because a cow pressing against a zig-zag rail would not cause such a break against the rail because the impact would be pressing the tail back into the soft udder portion of the cow.

[30] There were a number of caveats to Dr Laven’s evidence. He referred in his evidence to protocols from Ireland and the United Kingdom but did not produce the details of those protocols in evidence. He also accepted that there is a dearth of data, not only in New Zealand but world-wide. Hence the reference to the Canadian study which was the only study of which Dr Laven indicated he was aware focusing on broken tails and likely causes. He acknowledged that the Zurbrigg study itself recognised that there is scant scientific literature available on the cause of broken tails and that his evidence was based upon the evidence that was available, notwithstanding its imperfections. In fact it was put to Dr Laven that he was misrepresenting the

position about the availability of evidence in order to support the MPI position. His response to that proposition was as follows (NOE page 61):

No because actually if I looked at my personal benefit I would benefit significantly if MPI started losing broken tail cases because I would be able to get large amounts of funding from MPI or I would be able to guide MPI to people who would get large amounts of funding.


[31] Further on, he said:

This is the first time I’ve referred to the Zurbrigg study because I was specifically asked about numbers and the problem is that we don’t have good numbers. We still don’t even after the Welfarm data. But what I do know is that farms that manage their cows well can manage significantly less than broken tails than 15%. What I do know is that farms that I have been involved with that have had high levels of broken tails, they generally have been – so far as I have not seen one where there was anything else causing the broken tails other than force or manipulation. That is my thinking. I am not making any claims about in this case. If you can prove that there was wasn’t force or manipulation, something else was happening, I would be very happy because I am not interested in somebody being prosecuted for some, for doing something they haven’t done. I am interested in making sure that people who do break cow’s tails through force or manipulation are properly dealt with by the Animal Welfare Act. My job here is to say what do I think from a farm that’s got 36%. I think that’s too many cows. I think it’s likely to be due to force or manipulation. The brief of evidence gives some of my explanation of why I think that but even if the Zurbrigg study had never been published I would still think that.


[32] Dr O’Driscoll is a qualified veterinary surgeon, registered with the New Zealand Veterinary Council. She graduated from Ontario Veterinary College with a doctor of veterinary medicine in April 2010. She has worked in New Zealand primarily as a dairy veterinary since August 2010.

[33] Dr O’Driscoll was engaged by MPI to undertake the assessment of tails of the defendants’ herd and did so on 24 January 2017. She attended an afternoon milking and then undertook examination of 516 mixed age, primarily Friesian cows, on the defendants’ Ohaupo property. Putting aside the issue of broken tails, Dr O’Driscoll’s evidence was to the effect that the herd appeared to be in good order, were well managed at the milking and there were no other obvious health concerns relating to the herd.
[34] In the context of broken tails, Dr O’Driscoll identified 186 cows from the total of 516 as having one (or more) tail injuries. Of the 186 cows identified, 12 had new injuries and 174 cows had old injuries. New injuries were classified as palpable dislocation between tail bones or complete unilateral or bilateral laxity of tail on lateral flexion which had not had enough time (eight plus weeks for bone, six plus months for ligaments) to have fully stabilised and healed.

[35] Looking at the results, Dr O’Driscoll considered that it was obvious the majority of tail injuries were old injuries and that there was a different distribution of injuries when comparing the old and the new.

[36] It was Dr O’Driscoll’s evidence that any damage (bone, ligament, etc) at any level of the tail would cause an unacceptable degree of acute and perhaps chronic pain.

[37] The sheer number of old injuries in the middle third of the tail in this herd surprised Dr O’Driscoll. She considered that breaking a cow’s tail in the proximal and middle thirds would require considerable deliberate force at a level far beyond average handling, which would certainly cause severe pain.

[38] It was Dr O’Driscoll’s evidence that occasional tail injuries occur from accidents (tail caught in gate etc) but the number and location of injuries (middle or distal third of tail) on the defendants’ farm ruled accidents out as a major factor. Dr O’Driscoll could not think of a fault in housing or the milking shed that could result in such a situation and she therefore concluded that the injuries were caused by a person handling the cows.

Defence case


[39] The defendants called a number of witnesses. One defendant, Mr Joseph Michael McDonald gave evidence himself. The remaining witnesses called by the defence were as follows:
[40] The defendant Mr Joseph McDonald confirmed the family structure of the farming operation at 150 Lynds Road Ohaupo. He is a director of Agricola Enterprises Ltd. He and his wife and their Trust own half of Agricola Enterprises Ltd and his parents own the other half. Mr McDonald and his parents are directors of the company.

[41] Mr McDonald confirmed that he is the farm manager responsible for the day- to-day running and managing of the farm and the management of the cows. The defendant’s mother looks after the administrative side of the farm and his father is involved in calf rearing, together with other day to day jobs around the farm. Mr McDonald’s wife also assists from time to time during calving and during herd testing.

[42] Mr McDonald has been involved in farming all his working life and at the time of giving evidence was 42 years old. He became involved with the farming enterprise on Lynds Road in or about 2002 and his current responsibilities include allotment of the pasture to the cows, organising staff for the daily jobs, overseeing the decisions of his 2IC where the cows go, liaising with contractors and others providing services on the farm, management and allotment of effluent and maintenance of the shed and the farm itself.
[43] Mr McDonald confirmed that there were two fulltime staff members working with his father and himself.

[44] Mr McDonald described using the services of Mr David Oertley for veterinary services with a further advisory service provided by Mr Brian Mackay, who provides advice on animal nutrition, pasture nutrition and makes regular assessment of the health and wellbeing of the animals. Mr McDonald confirmed that the farm is open to visits and inspection by outside agencies and the farm is Grade 3, which means the farm has provided high quality milk without any downgraded milk for the complete season.

[45] Mr McDonald described the interaction with MPI which led to this prosecution, including the interview undertaken with Mr Corlett. Mr McDonald confirmed in his evidence that everything that he said in that interview was correct, although he said that at the time of the interview he had not had the opportunity of reviewing the results of Dr O’Driscoll’s assessment. Nor had he had the opportunity of engaging his own expert to assess the tail damage.

[46] Mr McDonald said that he had never knowingly damaged a cow’s tail and said that he had never observed his staff doing so.

[47] Mr McDonald then described the comments made in the interview with Mr Corlett about handling cows’ tails. He described a number of circumstances where it was appropriate to do so, including circumstances where less dominant animals have been flipped into the bins and have to be assisted quickly to avoid the risk of asphyxiation or drowning from fluid in their lungs. In those circumstances Mr McDonald said using the cow’s tail to assist the cow may be necessary. Another example was where a cow may have suffered paralysis from pinching of a nerve during calf birth and Mr McDonald described using the cow’s tail to steady the cow so it can stand for longer and have the blood flowing back through its legs.

[48] Mr McDonald acknowledged that there were cows with breaks in their tails. His view was that none of the tails that he identified had fresh breaks. They had a calcified deviation from normal and he did not regard it as necessary to seek veterinary

advice in those circumstances. He also noted that every farm, every herd that he had seen, has animals with deviations in their tails and he therefore did not consider that his herd was any different from any other herd.


[49] Mr McDonald considered that some of the tail breaks may have been attributable to breaks occurring in the milking shed.

[50] Mr McDonald produced as an exhibit a video of a milking session in the milking shed on the defendants’ property. The video shows the cows backed into the stalls which have a zig zag railing running along the back. The video shows the cows undergoing the normal milking operation with movement back towards the zig zag rail, compressing the tails between the cow and the rail.

[51] Still photographs were also produced of one particular cow, number 472, which featured in both the prosecution evidence and the defence evidence as an example of a visible tail break apparent from the angle at which a portion of the tail hung.

[52] In relation to the MPI enquiry, Mr McDonald confirmed that Dr O’Driscoll assessed 516 cows, of which she identified 186 as having a damaged tail. He also confirmed that of the 186 Dr O’Driscoll assessed, Mr Lindsay assessed 128 as some cows had been culled from the herd between the visit from MPI and the inspection by Mr Lindsay.

[53] Mr McDonald also referred to Mr Lindsay’s report which indicated the total herd was 642. Mr McDonald said that the correct total is approximately 570.

[54] Mr McDonald said that following Mr Lindsay’s examination, a recommendation was made to extend the breast rail forward in the milking shed so there was more room in the bails and less risk of the cows damaging their tails. While that provided the cows with more space, Mr McDonald was concerned that it raised other issues such as health and safety risks as there was more room for the cows to kick the cups off and hit the milkers.
[55] In response to the specific question of Mr McDonald as to whether he had any idea how his cows’ tails were damaged, his response was in the following exchange:1

Q. Do you have any idea how your cows’ tails were damaged?


  1. Apart from Mr Lindsay has indicated as a possibility, no, we, no I do not.

Q. Have you ever damaged the cows’ tails?

A. No I have not.

Q. Have you seen your staff damage your cows’ tails?

A. No.


[56] In cross-examination Mr McDonald was asked briefly about the farming business structure. He acknowledged that as the person in charge, he has obligations to the animals in his care. He also accepted that the company Agricola Enterprises Ltd has obligations to the cows as the owner. He also accepted that as Agricola Enterprises Ltd is a corporate entity, it relies on him as the person in charge to meet its obligations.

[57] Mr McDonald accepted the obligations arising under the Code of Welfare and in particular, the extract that was put to him in evidence in the following terms:

Owners, managers or persons in charge are required to ensure that their staff have either the relevant knowledge and training, or appropriate supervision and support to ensure that the health and welfare needs of the dairy cattle in their care are met. Personnel should undergo training either formally or on the job by experienced supervisors. All staff including contract or temporary staff should be trained and competent in all the relevant tasks.


[58] His response to questions in cross-examination about tail breaks was to the effect that he saw no obvious fresh breaks and therefore there was no need in his opinion to either carry out a full herd inspection himself or instruct a veterinarian to do likewise.

[59] Mr McDonald was then asked about the interview with Mr Corlett in which various questions were put to Mr McDonald about using or “jacking” cows’ tails. In response to this specific question from Mr Corlett whether he “would use the tail to get them into a head”, his response was:

1 NOE, page 136.

Some twist sometimes, just to push them forward. Um, that’s oh hard to explain how I, how I do it, but it’s not, well not with a – I don’t believe there’s enough force to have broken the tail.


[60] Mr McDonald then said in evidence that he had quite obviously used the wrong terminology and that he was uncomfortable in the interview. He acknowledged in the interview using the word twist, but said it was the wrong terminology and that he was in fact referring to cow jacking, which is lifting the tail. He did however accept that he was physically manipulating or physically handling the tail to get the cow to move in a particular direction.

[61] Again with reference to the interview, he was asked in the interview:

Have you ever twisted the tail and thought that its gone too far?


[62] Mr McDonald answered:

Um, I don’t know how to answer that one. Have I, um, there’s been, there’s been times when I’ve or I’ve thought that’s just getting too twisted yes and I’ve, I’ve stopped so before I’ve done any damage so I thought I’ve done any damage.


[63] Again in evidence Mr McDonald explained that during the interview using the word “twisting” was the wrong terminology and that he was referring to lifting the tails to get the cows to go forward.

[64] In relation to Dr O’Driscoll’s 36 percent assessment, Mr McDonald was asked in cross-examination whether he believed that was high, to which he responded in the interview: “I think it is, yes”. In evidence Mr McDonald then explained that when the interview was conducted he did not have any other knowledge or information to go on except for Dr O’Driscoll’s analysis so he had nothing with which to compare it. The following exchange then occurred with the Bench on that topic:2

The Court:

Q. Well Mr Herlihy, if you are leading [are leaving] that question, I just want to ask Mr McDonald are you now saying that what’s outlined in the question and answer at the bottom, sorry the top of page 11, does not reflect your position?

2 NOE, page 150.

A. No, it – all I am saying is that the only information that I have from Dr O’Driscoll was that it was what she had stated so it’s high but in comparison to what – so it higher than what I would like? Correct. Is it higher than I was aware of? Correct.

Q. Well do you now say that you no longer think it’s high?

A. No I still think it’s high. I was unaware it was that high until Dr O’Driscoll’s inspection.


[65] Later in his evidence, Mr McDonald was involved in the following exchange3 with the Bench, relating again to his comments in the interview with Mr Corlett about use of the word “twists”.

Q. And then your response, some twists, sometimes, just to push them forward? In cross-examination you said that something to the effect that you were uncomfortable in the interview and that wasn’t what you meant to say?

A. Oh, not that I was uncomfortable. I wasn’t sure of the correct terminology as such. I – what I was meaning was the tails are lifted up, not necessarily, not twisted. So I understand that that looks like I’ve changed what I’ve been saying.

Q. So are you saying that instead of twist in that response you meant to say lifted up?

A. Correct.

Q. Well in the preceding lead up, nobody’s used the word twist so why did you use the word twist if you meant lifted up?

A. I cannot recall why I used the word twist, sir.

Q. Are you saying that it is the wrong word because you never twisted tails?

A. Yes, that’s correct.


[66] Mr Greg Lindsay confirmed that he is a veterinarian and a partner in Franklin Veterinary Services, having worked primarily with dairy cattle in north Waikato since graduating from Massey University with a Bachelor of Veterinary Science nine years ago. He has been involved in the Welfarm Scheme (a pilot animal welfare monitoring programme) which requires annual tail scoring to be performed on enrolled herds using Infovet’s tail-scoring software.

3 NOE, page 161.

[67] Mr Lindsay described scoring 256 animals at the defendants’ farm property. He described Welfarm tail-scoring definitions and provided a tail-score summary as a result of his visit on 30 June 2017. The table he produced summarising his results referred to the number of significant tail lesions across the range of age groups at 19.3 percent. His assessment suggested that the results on the defendants’ farm compared favourably with the Welfarm national database.

[68] Mr Lindsay’s enquiries suggested that the vast majority of tail breaks were located in either the middle or distal thirds of the tail and many were difficult to see with the naked eye. He also suggested that a number of tail lesions (dislocated and non-dislocated) aligned directly with the zig zag rail. Combined with that fact that he witnessed animals putting significant pressure on the vertebrae of the tail when pushing back into the zig zag rail, he concluded that was a likely cause of many of the lesions. He was of the view that a tail bent in a u-shaped fashion as the cow backed up would certainly provide sufficient force to snap the connective tissues of the tail against the zig zag rail. He did not consider that such an observation could account for all of the lesions identified but did suggest that hypothesis went some way to explain why the proportion of affected cows increases with age.

[69] Mr Lindsay added a word of caution that in his opinion, retrospective tail break investigations are difficult to pass comment, given the distinct lack of research on the topic. Specifically, he then noted:

Given the seriousness of the allegations involved and potential for criminal charges, I believe there needs to be a significant amount of work on the topic to provide a base from which to operate. Obviously the physical act of breaking a cow’s tail is a direct breach of the Animal Welfare Act and should be held to account, but care needs to be given when drawing wider conclusions from old lesions in a herd situation.


[70] Mr Lindsay accepted in cross-examination that he arrived at his 19.3 percent as reflecting the 124 animals with lesions he identified in relation to a herd of 642. He accepted that he did not examine 642 animals and that in order for the 19.3 to have validity, it had to be assumed that the balance of the herd that he did not inspect had no tail breaks. He then accepted that such an assumption could not be either tested nor proven, and that without scoring the whole herd, the 19.3 percent he arrived at could not be relied upon.
[71] Mr David Oetley confirmed that he is a qualified veterinarian, graduated May 2000, who has had extensive experience of rural veterinarian work. He began working with the defendants in 2002 and has provided veterinary services to the farm since that time. As a consequence he has visited the farm on numerous occasions and provided spreadsheets showing visits to the farm. His visits to the farm have been prompted by a range of different reasons, including the need to check the rear of cows from time to time and to a limited extent, handle their tails. His evidence was that he had not been looking for broken or damaged tails but that the tails he did observe did not alarm him as being significantly out of the ordinary.

[72] The tenor of his evidence is reflected in paragraph 2.14 from his brief:

In my experience, many dairy farms have cows with damaged tails. I have noticed cows with damaged tails on the McDonald farm. That is not at all unusual. However, nothing I have noticed about the herd and the McDonalds’ management of the herd has ever caused me concern.


[73] He then described the various enquiries he undertook following MPI involvement. He was present when Dr O’Driscoll undertook her examination of the herd on 24 January 2017 but not for the entire assessment. He said that he did not disagree with her assessment or her conclusions, but considers that both her assessment and conclusions are inconsistent with his experience working with Mr Joseph McDonald and his observations of his animal husbandry over 15 years. Mr Oetley said that during his approximately 18 years as a veterinarian he has never been asked to treat a cow with a damaged tail of the kind which are the subject of this prosecution. In his view, unless farmers were checking the tails of their cows on a daily basis (which is simply not practicable) or they were present at the time of injury, it is likely that farmers would not identify issues in time to apply treatment of the sort suggested (eg administering an analgesic for at least one week).

[74] In general terms, Mr Oetley was very complimentary about the farming practices of the defendants, including a willingness to obtain veterinary assistance. Mr Oetley regards the defendants’ herd management as transparent and conscientious and he also confirmed that he had never personally witnessed any wilful neglect nor mistreatment of the cows by Mr Joseph McDonald and he expressed the opinion that Mr McDonald would not tolerate that by others as well.
[75] The evidence of Mr Mackay and Mr Woods reflected similar experiences as those reflected in Mr Oetley’s evidence. Mr Mackay is a qualified veterinarian with extensive experience, who has had regular contact with the defendants’ farm since 2008. His role has been to evaluate for health and nutrition, using cow signs and data analysis, along with tissue and feed analyses. For these purposes he visits the farm between three to five times per season and discusses with farming personnel how to improve the cows’ comfort and health and welfare.

[76] Mr Mackay has confirmed that he has never seen any mistreatment on the farm, nor any other behaviour by staff of the herd to cause concern.

[77] In the context of damaged tails, Mr Mackay confirmed he was familiar with the issue but had never been asked specifically to conduct an examination on the defendants’ farm. However he has never noticed any significant issues, nor anything out of the ordinary regarding the cows’ tails.

[78] Mr Woods is an artificial insemination technician and in that capacity has been working with the defendants on their farm for the last ten years. Given the nature of the insemination process, he has a good view of cows’ tails needing to lift the tail to carry out his work. He confirmed he had never specifically examined cows’ tails for damage, but had never noticed any issues with the cows’ tails on the defendants’ farm. If he had done so, he would have drawn it to the attention of Mr McDonald.

Discussion


[79] The MPI case alleges failure on the part of the defendants to ensure physical handling of the cows in a manner which minimised the likelihood of unreasonable or unnecessary pain or distress. Within those parameters, the focus is on broken tails.

[80] There are two initial features that I am satisfied are either acknowledged or established on the evidence as a starting point to the assessment. The first is that 186 cows of the total herd of 516 inspected by Dr O’Driscoll had injuries or “tail breaks”. The second point is that tail breaks will obviously vary in degree of severity but would cause a cow pain or distress.
[81] The MPI evidence from Doctors Laven and O’Driscoll in particular, confirmed that a considerable degree of force would be required to cause a tail break which would certainly cause severe pain.

[82] A prosecution requires that the pain or distress caused by such tail breaks would need to be unreasonable or unnecessary. For example there may be emergency situations where grabbing and potentially twisting a cow’s tail is justified to avoid a greater harm. The evidence also establishes that tail breaks can occur accidentally. Examples are by one cow treading on the tail of another in the cow shed or a tail being caught in a gate. It also needs to be recognised in the context of any particular prosecution that a given herd may contain cows purchased with existing tail breaks. All of these types of examples were traversed in the evidence.

[83] There is no direct evidence available in support of the prosecution in the sense of there being any witness or witnesses who actually observed mishandling of the defendant’s cows that could or did cause a tail break. Indeed, the evidence was to the contrary in the sense that tail breaks aside, all of the evidence suggested the farming practices of the defendants were appropriate.

[84] Given the lack of direct evidence in the sense described, the prosecution relies on inferences being drawn to establish the charges. Drawing an inference is a legitimate method of assessing evidence subject to the standard of proof of beyond reasonable doubt being observed. Drawing an inference means forming a conclusion from other facts that are established that lead to a particular conclusion. Drawing inferences does not however mean filling gaps in the evidence by guess work or speculation. There must be a legitimate foundation to draw an inference. The essence of a conclusion based on drawing inferences is that no one particular issue may carry great weight in itself but collectively a number of such issues can justify a particular outcome.

[85] The MPI case is that 36% is too high. That of course is a comparative term and raises the question as to with what the 36% should be compared. In this context the MPI evidence falls into two related but discrete areas. The first is the expert or data-based evidence.
[86] All of the experts were agreed that there is a dearth of relevant research worldwide specific to the causes of tail breaks in dairy herds. That concern was reflected in Dr Laven’s evidence and was reiterated by Mr Lindsay. Both those witnesses reflected that care needs to be taken in undertaking a retrospective inquiry as to the cause of tail breaks relying on research data. Put another way, there is not currently (and may never be) sufficient reliable research data to enable the formulaic approach to such an assessment involving the simple comparison of tail break percentages in one herd measured against some form of accepted norm.

[87] While recognising the limitations of research data currently available, Dr Laven in particular took the view with reliance on the Zurbrigg study to suggest that a percentage of 36% is significantly beyond a level that might otherwise be explained by accidental causes. He went so far as to say that even without the Zurbrigg study, his view was that 36% indicated mishandling of cows in the absence of any other reasonable cause. Doctor O’Driscoll shared that view and their expert opinions based on both their experience and the available data was that a level of 36% was significantly beyond their experience with other herds and indicated a stock handling problem.

[88] The evidence called by the defence did not question the percentage and recognised it as high. Indeed, Mr McDonald himself accepted that to be the case. The defence evidence expressed some surprise at the level of 36%. That however may be explained by the fact that none of the defence witnesses other than Mr Lindsay were engaged specifically to check cow tails and some of the breaks would have required manual manipulation of the tail as they would not have been visually obvious. Mr Lindsay was engaged specifically to examine the cows although at a later stage. He did not therefore assess the exact herd as examined by Dr O’Driscoll. In any event the examination by Mr Lindsay did not reveal significantly different numbers of broken tails in comparison to Dr O’Driscoll’s assessment.

[89] The picture presented by that evidence, which I accept is established, is that the percentage of broken tails at 36% of the herd was unacceptably high and called for explanation. One explanation that was offered related to the cows causing breakages by backing up to the rail in the milking shed. Mr Lindsay suggested that may be an

explanation for some of the numbers and he recommended adjusting the rails to lessen that risk. Dr Laven gave detailed evidence that was supported by Dr O’Driscoll to the effect that such breakages would be highly unlikely given that the tail would be pushed against the soft part of the cow around the udder area which would be most unlikely to cause breaks of the type concerned. Further, such an explanation would not address breaks in different parts of the tail.


[90] I accept the prosecution evidence in this regard. It is evidence offered by two independent experts which appeared to me compelling and logical.

[91] Other explanations that were offered were accidents such as other cows treading on the tail, tails being caught in gates and cows being bought into the herd with existing tail breaks. I accept they are likely explanations for some numbers but I do not accept those explanations would explain 36%. They were not offered as suggesting such an explanation.

[92] Mr McDonald when he gave evidence himself could not explain the high level of breakages beyond referring to Mr Lindsay’s explanation.

[93] The resulting picture is therefore a significant number of unexplained tail breakages. Mr McDonald’s evidence in the hearing was to the effect that he had never twisted, broken or otherwise abused a cow’s tail and had never seen his staff doing likewise. Mr McDonald confirmed in his evidence that he was actively involved on a day to day basis with the handling of the herd on the farm and would therefore have had the opportunity to handle the cows on a regular basis and to observe his staff.

[94] Mr McDonald’s evidence did however differ from his comments in the initial interview with Mr Corlett. Rather than a total denial in the interview consistent with his evidence in Court, his responses to Mr Corlett suggested quite clearly that tail jacking occurred and that he himself twisted cow’s tails but thought he would have released them prior to causing any breakage. Mr McDonald was the person who used the term twisting in the interview and it is obviously not a complicated term. In evidence, he maintained that he had been unsettled in the interview and had used the

wrong term. Rather than twisting he should have said lifting. He acknowledged that his comments might be seen as changing his story.


[95] I consider there is little doubt that is precisely what has occurred. Mr McDonald is an adult who was interviewed on a routine basis by Mr Corlett. There is not criticism of the circumstances of the interview being undertaken. Mr Corlett was quite clear as to why Mr McDonald was being interviewed and Mr McDonald was advised at the outset he had the right to refrain from making any statement and to remain silent. He was also advised of the right to consult a lawyer prior to answering questions.

[96] I am satisfied that the interview in fact represents the more accurate position. His subsequent evidence in Court was an attempt to downplay the comments made in interview no doubt because he realised the potentially incriminating implications of what he had said to Mr Corlett.

[97] I found Mr McDonald’s explanations in evidence unconvincing. In the context of an inquiry about broken tails, his explanation that he used the word twisting instead of lifting was simply not credible. I do not therefore accept Mr McDonald’s denial in evidence that he never twisted cow’s tails.

[98] The only logical inference that can be drawn from this assessment is that a significant portion of the 36% of tail breaks were caused by stock handling. I find that Mr McDonald was involved in, and/or condoned, tail jacking as a means of controlling cows which in turn led to tail breaks. Such behaviour was contrary to both good practice and scientific knowledge. It is impossible to determine what proportion of the 36% is attributable to that behaviour but it is not necessary to do so as I consider a finding that tail jacking leading to tail breaks occurred is sufficient to support the charges. I am satisfied that by participating in and/or condoning such practices, Mr McDonald thereby failed to ensure physical handling of the cows in the manner which minimised the likelihood of unreasonable or unnecessary pain or distress. He did so personally and in his capacity as a director of the company.

Conclusion


[99] I therefore find that all charges are established against both defendants. Convictions are entered accordingly.

Disposition


[100] The defendants have been remanded to appear in the Hamilton District Court on 17 September 2018 at 10am. Sentencing is to proceed on that date. I direct the prosecution to file submissions for sentencing by 3 September and the defendants to file submissions by 10 September 2018.

A S Menzies District Court Judge

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