New Zealand Society for the Prevention of Cruelty to Animals v Murphy [2021] NZDC 25795 (9 June 2021)

Last Updated: 30 March 2022

IN THE DISTRICT COURT AT MASTERTON I TE KŌTI-Ā-ROHE KI WHAKAORIORI

CIV-2021-035-000036 [2021] NZDC 25795

BETWEEN	ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELY TO ANIMALS Applicant
AND	FIONA MURPHY Respondent

Hearing:	8 June 2021
Appearances:	E Pairman for the Applicant The Respondent represented herself
Judgment:	9 June 2021

DECISION OF JUDGE W K HASTINGS

[1] This is an originating application on notice for an order to dispose of seized property under s 163(1) of the Search and Surveillance Act 2012 (SSA). The seized property is a miniature horse named Freckles. The Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) seeks authorisation to dispose of Freckles by selling and rehoming her.

[2] The RNZSPCA initially sought an order with respect to Bob as well. Bob was a chestnut thoroughbred gelding. By memorandum dated 4 June 2021, Ms Pairman informed the Court that Bob was euthanised on 28 May 2021 following an examination by a veterinarian. The application was amended so that it only related to Freckles.

[3] The application is not made under the Animal Welfare Act 1999 because the applicant decided not to file criminal charges against Ms Murphy. As this is an

originating application on notice under s 163 of the Search and Surveillance Act 2012, Ms Murphy was given an opportunity to be heard. The applicant and the respondent were heard on 8 June 2021.

[4] Section 163 of the Search and Surveillance Act 2012 provides as follows:

163 Application to District Court to dispose of seized property

(1) Any person who seizes anything, or to whom anything is produced, or any other enforcement officer to whom the thing is transferred, may apply to the District Court for an order that the thing be disposed of (by sale or otherwise) in the manner, and at a time, that the court may direct if,—

• (a) in the applicant’s opinion,—
  
  • (i) the thing concerned is perishable or likely to deteriorate; or
    
  • (ii) the cost of holding the thing is unreasonable having regard to its market value; and
    
• (b) the applicant has made reasonable efforts to advise the people described in section 156(2) of the intended application.
  

(2) The court may grant the order if it is satisfied that—

• (a) the thing is perishable or likely to deteriorate; or
  
• (b) the cost to the applicant or his or her employer, or to any other person to whom the thing might be transferred, of holding it is unreasonable having regard to its market value.
  

(3) The applicant or his or her employer must hold in custody any proceeds received from carrying out the order (less any deductions permitted under subsection (4)) as if the proceeds were the seized property, and section 151(1) applies accordingly, with any necessary modifications.

(4) The deductions referred to in subsection (3) are, in a case in which the court orders that the thing be disposed of by sale, the costs of sale and any sums required to be paid to a security holder or other person as a condition of the order for sale.

(5) If the court refuses the order, the applicant or his or her employer or another person to whom the thing is transferred must continue to hold the thing until it is released in accordance with section 151(2).

[5] The Court therefore may grant the order if it is satisfied that Freckles is likely to deteriorate, or if the cost to the foster home currently looking after Freckles is unreasonable having regard to her market value.

[6] The application is supported by an affidavit from Louisa Broughton, an equine veterinarian, dated 27 May 2021; and an affidavit dated 25 February 2021 from Georgina May Kemp, an inspector appointed under s 124 of the Animal Welfare Act 1999. Both were in Court and were available for cross examination.

[7] Ms Broughton stated that on both her visits Freckles was wearing inappropriate covers for the weather, there was little to no viable grazing at the property, there was no clinical reason why Freckles should not be given the freedom to perform behaviours natural to her, there were multiple hazards at the property risking injury, there was a lack of safe fencing, and there were extensive piles of faeces. Ms Broughton expressed her concern that Ms Murphy was unable to follow veterinary direction and properly cater for her horse’s high maintenance needs.

[8] Ms Kemp executed a search warrant at Ms Murphy’s address on 2 March 2021. In her affidavit, she describes finding Freckles in the patio area of the house. She said there was no feed available, the area was small, and there were a lot of faeces. Freckles was taken to a foster home where she was released into a paddock under supervision.

[9] Both Ms Broughton and Ms Kemp describe fairly heated confrontations with Ms Murphy at her address.

[10] In Court, I gave Ms Murphy permission to hand up further documentation consisting of her comments on post-it notes about Ms Kemp’s affidavit and an extensive handwritten account that included a number of appendices from veterinarians. She also took Ms Pairman and me though photographs of her property on her phone to show that, in her view, it was suitable for the horses that had been removed from her property. On my view of the photographs, they showed a property that was quite overgrown and unkempt.

[11] Ms Murphy made a number of oral submissions including that she spent eight years with her horses without a day off, that she had done nothing wrong, and that contrary to the affidavits of Ms Broughton and Ms Kemp, the horses, including Freckles, were in good condition. She said that Freckles’ diet needs to be

controlled. She said that “Freckles thinks she is a Clydesdale when it comes to her stomach.” She said she has been bringing horses back to health for 45 years and that her family have been involved with horses for generations.

[12] Frank Stammers spoke from the gallery in support of Ms Murphy and said she looks after her animals. He took issue with a statement in Ms Kemp’s affidavit that she suspected he would return Bob to Ms Murphy if Ms Kemp returned Bob to him. The submissions made by Ms Murphy and Mr Stammers were imbued with their suspicion of Ms Kemp’s motive in seizing the animals.

[13] Having read the affidavits of Ms Kemp and Ms Broughton, having heard from Ms Murphy and Mr Stammers, and having heard the submissions of Ms Pairman, I am satisfied that the applicant has made out the grounds for the order requested. I am satisfied on the basis of Ms Kemp’s affidavit that Freckles’ market value is between

$300 and $400, and that the cost to maintain Freckles is less than the cost of $240 month to maintain both Bob and Freckles, but is nevertheless unreasonable in light of Freckles’ market value. This part of Ms Kemp’s affidavit was not challenged by Ms Murphy.

[14] Although not necessary for an order to be made under s 163, I am satisfied that Ms Kemp had good reason to seize Freckles and that the seizure was properly carried out.

[15] I therefore order that the horse Freckles seized on 2 March 2020 be disposed of by sale or otherwise to be rehomed pursuant to s 163(1) and (2) of the SSA.

[16] The following conditions apply if the horse Freckles is sold pursuant to s 163(3) and (4) of the SSA:

• (a) That the proceeds of the sale must be held by the SPCA as if the proceeds were the seized property and s 151(1) applies accordingly, with any necessary modifications;

• (b) The SPCA may deduct the cost of sale and any sums required to be paid to a security holder or other person as a condition of the order for sale.
  

Judge WK Hastings

District Court Judge

Date of authentication: 09/06/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.