Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159 (8 September 2015)

Last Updated: 9 September 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-000152 [2015] NZHC 2159

UNDER	the Animal Welfare Act 1999
BETWEEN	ANNE POWER Appellant
AND	AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS Respondent

Hearing:	10 August 2015
Counsel:	D R F Gardiner for Appellant J R Billington QC and J Edwards for Respondent
Judgment:	8 September 2015

_{JUDGMENT OF ANDREWS J}

This judgment was delivered by me on 8 September 2015 at 9.45am pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Nigel G Cooke, Auckland Russell McVeagh, Auckland Counsel:

D R F Gardiner, Auckland

_{J Billington QC, Auckland}

POWER v AUCKLAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS [2015] NZHC

2159 [8 September 2015]

Introduction

[1] In a reserved decision delivered on 9 April 2015, Judge N R Dawson convicted the appellant, Ms Power, on a charge brought by the Auckland Society for the Prevention of Cruelty to Animals (“the SPCA”) of reckless ill-treatment of an animal causing its death.¹ Ms Power was sentenced on 3 June 2015. She was banned from owning or exercising authority over animals for 10 years, ordered to pay reparation of expenses incurred by the SPCA in the sum of $4710.05, and

ordered to pay prosecution costs of $1512. The Judge also ordered forfeiture to the

SPCA of all animals owned by Ms Power.²

[2] Ms Power has appealed against both conviction and sentence.

The charges against Ms Power: relevant provisions of the Animal Welfare Act

1999

[3] Ms Power was charged under s 28A(1)(b) of the Animal Welfare Act 1999 which provides, as relevant:

28A Reckless ill-treatment of animals

(1) A person commits an offence if that person recklessly ill-treats an animal with the result that—

...

(b) The animal dies; or

...

[4] Ms Power was charged in the alternative under s 29(a) of the Act which provides, as relevant:

29 Further offences

A person commits an offence who—

(a) ill-treats an animal; or

_...

¹ _{Auckland SPCA v Power [2015] NZDC 5331 (“the conviction decision”).}

² R v Power [2015] NZDC 9783 (“the sentencing decision”).

[5] Section 30(1) of the Act provides that s 29(a) creates an offence of strict liability:

30 Strict liability

(1) In a prosecution for an offence against section 29(a), it is not necessary for the prosecution to prove that the defendant intended to commit an offence.

...

However, s 30(2) provides a defence to a charge under s 29(a). Section 30(2)

provides (as relevant):

(2) subject to subsection (3), it is a defence in any prosecution for an offence under section 29(a) if the defendant proves –

(a) that in relation to the animal to which the prosecution relates, the defendant took all relevant steps not to commit a breach of section 29(a); or

...

Background

[6] Although Ms Power owned several animals, the prosecution concerned a horse, a 32 year old gelding named “Pip”. On 11 September 2013, an SPCA inspector, Mr Plowright, found Pip lying dead in a paddock on a property used by Ms Power for grazing. Mr Plowright, and veterinary surgeons who gave evidence for the SPCA, were of the view that Pip had died of severe malnutrition resulting from poor dental hygiene that had caused injuries in his mouth which prevented him from eating.

[7] Ms Power accepted at trial that for some 10 days before Pip’s death she had only viewed him from a distance. She had not then, or earlier, observed any sign of ill health. She believed he had adequate feed, and access to two paddocks, although she had stopped feeding him supplementary hard feed at the beginning of September. While she had, in the past, arranged veterinary treatment for Pip the veterinary surgeon (Dr Bond) had last seen him (from a distance, and wearing a horse cover) in May 2013.

[8] Ms Power considered that her care of Pip was adequate. Her case in the District Court was that she had seen no signs of distress in Pip, that he had died of old age, and that his particular condition when found by Mr Plowright was caused by rapid post-mortem dehydration.

Conviction

[9] In the conviction decision the Judge accepted that Ms Power loved and cared for her animals, including Pip, and fully believed that she took good care of them.³

_{He went on to find:} ⁴

However, the evidence proves to a standard of beyond reasonable doubt that she recklessly ill-treated Pip with the result that he slowly starved to death and would have been in severe pain for at least months before his death. The expert evidence and evidence of other witnesses is such that any reasonable horse owner would and should have done more to check up on and monitor Pip’s condition on a regular basis, and had that happened it would have been apparent that veterinarian attention was urgently required. Any lay person, let alone any person with experience of horses, could see at a glance Pip’s severely emaciated and starved condition. ...

[10] The Judge then found that Ms Power’s “failure to check Pip more closely at least once during that 10 – 11 day period was reckless”, but then went on to consider whether the mens rea element of s 28A(1)(b) (that is, recklessness) had been satisfied.⁵

[11] The Judge found that:⁶

[14] Ms Power’s reckless ill-treatment of Pip includes the failure to:

• Check on his condition by regularly looking under his horse cover thereby not noticing his emaciated condition.

• Properly worming him, at a time of the year when parasites are most abundant.

• Checking to see that he had adequate grazing and failing to notice that the gate to the top paddock was closed.

_{• Never having had his teeth properly checked.}

³ _{Conviction decision at [12].}

⁴ At [12].

• Failing to notice the rain scald and loss of hair to all four fetlocks.

As an experienced horse owner Ms Power knows very well that these checks and treatments are a necessary part of caring for a horse. Had Ms Power done any of these checks then even with her delusory views about how well she cared for Pip, even she would have known he needed urgent treatment. She has cared for horses for many decades and has called upon veterinarians in the past when her animals have required attention. This Court therefore finds that the mens rea element of s 28A(1)(b) has been established and she is guilty of the offence under the section accordingly.

[12] Having convicted Ms Power under s 28A(1)(b), it was not necessary for the Judge to consider the alternative charge under s 29(a). However, he observed that, for the same reasons, he would have found Ms Power guilty under s 29A if he had not found her guilty under s 28A(1)(b).⁷

Sentencing

[13] At sentencing, the Judge noted that Ms Power had five previous convictions relating to animal welfare and control of animals. He considered her history of negligent ownership of animals was relevant to her sentencing.⁸ The Judge found that Ms Power’s awareness of her obligations, the extent of prolonged, extreme pain and suffering caused, an abuse of trust, and a wilful blindness regarding Pip’s care, as well as her previous convictions, were aggravating features of the offending.⁹

[14] The Judge found that his acceptance that Ms Power cares for her animals, her remorse, and the fact that she did not intend to cause Pip harm were mitigating features.¹⁰ However, Ms Power’s view as to her ability to care for animals was delusory and the Judge considered that that factor, together with her conviction record, meant that she should not be put back into the position of owning animals.¹¹

Suspension of sentence

[15] As well as appealing against conviction and sentence, Ms Power applied for the sentence to be suspended pending the outcome of the appeal. That application

⁷ _{At [15].}

⁸ _{Sentencing decision at [3].}

⁹ At [6]–[7].

was heard by Woolford J on 12 June 2015. By that time, the SPCA had taken possession of, and sold, approximately 50 head of cattle. His Honour ordered that the sentence was to be suspended pending the determination of the appeal, and that the proceeds of sale of the cattle was to be paid into the trust account of Ms Power’s solicitor, to be held on interest-bearing deposit.¹²

Approach to appeal

[16] Pursuant to s 232(2)(b) and (c) of the Criminal Procedure Act 2011, the High Court can allow an appeal from a Judge-alone trial if it is satisfied that the District Court Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any reason. Section 232(4) provides that a “miscarriage of justice” means:

... any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) Has created a real risk that the outcome of the trial was affected; or

(b) Has resulted in an unfair trial, or a trial that was a nullity.

[17] Not every “error or irregularity” causes a miscarriage of justice. As the Supreme Court held in Matenga v R, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.¹³ An appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe, rather that there is a real possibility that the verdict would be unsafe.¹⁴

[18] In the present case, Ms Power’s contention is, in essence, that there has been a miscarriage of justice in that the Judge made findings of fact for which there was

_{no, or no sufficient, evidence and that he misdirected himself as to the law.}

¹² _{Power v Auckland SPCA [2015] NZHC 1347.}

¹³ Matenga v R [2009] NZSC 18 at [30].

Appeal against conviction

[19] The issues raised in Ms Power’s appeal against conviction focus on the Judge’s consideration of, and findings in relation to, the three elements of the charge under s 28A(1)(b), namely:

(a) Whether Ms Power ill-treated Pip;

(b) Whether in doing so, Ms Power was reckless; and

(c) Whether Pip died as a result.

Did Ms Power ill-treat Pip?

[20] Ill-treatment is defined in s 2 of the Animal Welfare Act as follows:

Ill-treat, in relation to an animal, means causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary.

[21] It was contended for Ms Power in the District Court that she had taken all reasonable steps to ensure that she did not ill-treat Pip. Her evidence was that during the winter months (up to the beginning of September) Pip was fed with a hard supplement feed, and he was also fed lucerne and hay; he was wearing a good quality horse cover; he had been wormed not long before his death with a broad spectrum wormer; his mouth had been inspected and there was no sign of discomfort, ulcers, discharge or dribbling; he was not emaciated when last seen, and was often felt under the cover to ensure he was warm and his ribs were covered and showing no sign of abnormal loss of body weight, distress, or pain; and he had been observed in the paddock to ensure he was eating.

[22] In reaching his conclusion that Ms Power had ill-treated Pip, the Judge preferred the evidence given by Mr Plowright and by the veterinarians called for the prosecution. One of the veterinarians called for the SPCA was Dr Wilson, who works with large animals (a large proportion of which are horses) and has been a horse owner for 20 years. She described her examination and post-mortem of Pip, carried out in the paddock where he was found. Her evidence, and that of

Drs Gordon and Hardcastle, was (in summary) that Pip was emaciated, and was suffering from periodontal disease that would have been causing him extreme pain such that he could not eat.

[23] The Judge also preferred the evidence given by lay witnesses, who evidence was as to their many years of experience owning and caring for horses. They gave evidence as to their understanding of the reasonable standard of care and monitoring required for a horse, particularly a horse of Pip’s age.

[24] I am not persuaded that the Judge erred in accepting the prosecution evidence, and in concluding that Ms Power had ill-treated Pip. That conclusion was clearly open to the Judge on the evidence.

Did the Judge err in finding that Ms Power was reckless?

[25] The test for recklessness has both a subjective and an objective element. In this case the prosecution had to establish that:¹⁵

(a) Ms Power was aware of the risk that Pip would die as a result of ill- treatment (the subjective element); and

(b) Ms Power deliberately ran that risk when it was unreasonable to do so

(the objective element).

[26] The subjective element requires an actual subjective appreciation of the risk at the relevant time.¹⁶ Mr Billington submitted that proof of a subjective appreciation of risk can be inferred from the circumstances, probabilities and evidence given in the case. He also submitted that in the context of animal welfare charges, the courts have inferred subjective appreciation of risk on the basis of the “obviousness” of the risk.

[27] Mr Billington referred to a District Court sentencing decision on a charge of reckless ill-treatment, Royal Society for the Prevention of Cruelty to Animals v

¹⁵ _{See R v Tipple CA217/05, 22 December 2005 at [27]–[34].}

¹⁶ R v Tipple, above n 15 at [27] and [28]; see also R v Harney [1987] NZCA 86; [1987] 2 NZLR 576 (CA) at 581.

Wilson, in support of this proposition, noting that the Judge commented in that case:¹⁷

If you had been anywhere near those chickens, it would have been patently apparent to you, as it was to the inspectors, that they were starving.

As a sentencing exercise after a guilty plea, the District Court Judge in RSPCA v Wilson was not required to, and did not, analyse and address the elements of a charge under s 28A(1)(b). Further, and in any event, it is not binding on this Court.

[28] It must be observed that in the present case, the Judge did not expressly outline and address the separate subjective and objective elements of the test of recklessness, and his consideration of the “mens rea element of the offence” came after his conclusion that Ms Power was reckless. In these circumstances, the process whereby the Judge reached his conclusion as to Ms Power’s guilt is unclear.

[29] There is, however, a more fundamental difficulty with the Judge’s finding

that Ms Power was reckless. This is in his finding that:¹⁸

... this Court is in no doubt that Ms Power loves and cares for all her animals. She fully believes that she takes good care of them.

[30] The express finding that Ms Power “fully believes that she takes good care of” her animals is inconsistent with a “conscious appreciation of a risk”. The Judge’s finding precludes the making of an inference that Ms Power appreciated the risk of ill-treating Pip: as she fully believed she was taking good care of Pip, it cannot be inferred that she appreciated that he was at risk of dying as a result of her treatment of him.

[31] It follows that the Judge could not have found that Ms Power consciously appreciated a risk of Pip’s dying, or indeed a risk that Pip might be suffering pain or distress unnecessarily. The subjective element of the test for recklessness has not

_{been established.}

¹⁷ Royal Society for the Prevention of Cruelty to Animals v Wilson DC Dunedin CRI-2012-012-

_{938, 1 June 2012 at [8].}

¹⁸ Conviction decision at [12].

[32] Similarly, the Judge’s finding that Ms Power “fully believes she takes good care of” her animals would also preclude a finding that she deliberately ran the risk of ill-treating Pip.

[33] I conclude that the Judge erred in finding that Ms Power was reckless. As a result of that conclusion, the conviction under s 28A(1)(b) cannot stand. However, for completeness, I turn to consider the Judge’s finding as to the cause of Pip’s death.

Did the Judge err in finding that Ms Power’s treatment of Pip caused his death?

[34] As noted earlier, the SPCA contended in the District Court that Pip’s death resulted from Ms Power’s ill-treatment of him, whereas Ms Power contended that he had died of old age.

[35] As the Court of Appeal said in R v Lewis, there may be more than one effective cause of death.¹⁹ The test that is applied where there may be more than one cause of death is to ask whether a particular alleged cause of death is a substantial and operative cause of death.²⁰

[36] What amounts to a substantial and operative cause is a question of fact and degree, but it is sufficient to show that the alleged cause had a non-negligible effect on bringing about the end result. It will not be enough for the defence to show that the result would have happened eventually, if it was the conduct of the defendant that caused it to happen at that particular time.

[37] In the present case, the prosecution expert witnesses all said that Pip’s death resulted from his periodontal disease, which led to his not being able to eat. Mr Gardiner submitted that the Judge did not distinguish between many conditions which could have led to Pip’s death, and failed to take sufficient account of the fact that Pip was an elderly horse, of small stature, who had dehydrated quickly after he

_{died. Mr Gardiner further submitted that the prosecution witnesses had qualified}

¹⁹ _{R v Lewis [1975] 1 NZLR 222 (CA) at 227.}

²⁰ R v McKinnon [1980] NZCA 22; [1980] 2 NZLR 31 (CA) at 37.

their opinions as to why Pip died, and had conceded that he could have died of old age.²¹

[38] Having reviewed the evidence, I am not persuaded that the Judge was wrong to conclude that malnutrition resulting from periodontal disease was a substantial and operative cause of Pip’s death. That conclusion does not preclude old age also being a contributing cause of death. However, I am satisfied that the evidence before the Judge was a sufficient basis for finding that ill-treatment was a substantial and operative cause of death.

Conclusion as to appeal against conviction

[39] As noted earlier, Ms Power’s conviction on the charge under s 28A(1)(b) of the Animal Welfare Act cannot stand, as recklessness has not been established. That conviction must be quashed.

Alternative charge under s 29(a) of the Animal Welfare Act

[40] As noted earlier, Ms Power was charged in the alternative of an offence under s 29(a) of the Animal Welfare Act, that she ill-treated an animal. Also previously noted, s 29(a) creates an offence of strict liability. While s 30(2) provides a defence to a charge under s 29(a) (if the defendant establishes that he or she took all relevant steps not to commit a breach of s 29(a)) the Judge in this case did not accept that defence.

[41] I am not persuaded that the Judge was wrong in that conclusion and to find that, if Ms Power had been found not guilty on the charge under s 28A, he would have found her guilty on the charge under s 29(a). That conclusion was clearly open to the Judge on the evidence before him.

[42] Pursuant to s 234 of the Criminal Procedure Act, if a Court allows a first appeal against conviction, the appeal court may direct that a judgment of conviction

_{for a different offence be entered, if the appeal court is satisfied that the person could}

21. Although, when making this concession, Dr Wilson said that Pip should not have died of old age in the condition he was in.

have been found guilty of that offence at trial, and the trial Judge was satisfied of the facts necessary to prove that offence. In this case, I am satisfied as to both requirements. Ms Power could have been found guilty of an offence under s 29(a), and the Judge was satisfied of the facts necessary to prove the offence.

[43] I therefore direct that a conviction be entered against Ms Power of ill- treatment of an animal pursuant to s 29(a) of the Animal Welfare Act.

Appeal against sentence

[44] In light of my conclusion that Ms Power should be convicted of an offence under s 29(a) rather than the offence under s 28A(1)(b), her sentence should be reviewed. Further, I note Mr Billington’s submission at the appeal hearing, in which he invited the Court to allow the appeal insofar as it ordered forfeiture of Ms Power’s animals.

[45] As I did not hear submissions as to the appropriate sentence on a charge under s 29(a), I propose to remit the matter back to the District Court for sentencing on that charge.

Result

[46] Ms Power’s appeal against conviction on a charge under s 28A(1)(b) of the Animal Welfare Act is allowed. Her conviction on that charge is quashed and a conviction on a charge under s 29(a) of ill-treating an animal is entered.

[47] The matter is remitted back to the District Court at North Shore for Ms Power to be sentenced on the charge under s 29(a), noting that the SPCA does not seek

_{forfeiture of Ms Power’s animals.}

Andrews J