Crow v Ministry of Primary Industries [2015] NZHC 571 (26 March 2015)

Last Updated: 7 May 2015

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-043-001488 [2015] NZHC 571

BETWEEN	BRIAN TERENCE CROW Appellant
AND	MINISTRY OF PRIMARY INDUSTRIES Respondent

Hearing:	4 February 2015
Appearances:	S W Hughes QC for Appellant S A H Bishop & K E Martley for Respondent
Judgment:	26 March 2015

_{JUDGMENT OF KEANE J}

This judgment was delivered by me on 26 March 2015 at 12pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Wellington

CROW v MINISTRY OF PRIMARY INDUSTRIES [2015] NZHC 571 [26 March 2015]

[1] On 16 October 2014, after a hearing in the District Court, New Plymouth, Brian Crow was convicted by Judge Sygrove of two offences: selling to Nilesh Kumar on 8 February 2013 and on 8 March 2013 ‘animal product’, slaughtered and dressed goats, which he knew had not been processed as Parts 2 – 5 of the Animal Products Act 1999 require. He was found not guilty of a third such offence on 15

February 2013. He was sentenced to 150 hours community work. He appeals his convictions.

[2] Before the hearing Mr Crow admitted that on the three dates, the subject of the charges, he had sold live goats to Mr Kumar, with whom he was originally jointly charged: 11 goats on 8 February 2013, eight goats on 15 February 2013, and five goats on 8 March 2013. He denied that he had sold Mr Kumar slaughtered and dressed goats; and that, as counsel agreed in a memorandum to the Judge, was the critical issue. If all he had done was to sell Mr Kumar live goats he had not sold him

‘animal product’.

[3] The Judge held Mr Crow had sold Mr Kumar ‘animal product’ on the two dates, because that was the result of those two sales, and of several earlier sales to others admitted as evidence of propensity. On those two dates, and in most if not all of the earlier sales, the goats were slaughtered and dressed on Mr Crow’s property by the purchasers, often with Mr Crow’s help, and occasionally by Mr Crow himself. The Judge acquitted Mr Crow on the third charge because, while he had slaughtered a goat that day, that could have been as food for his dogs.

[4] In his primary ground of appeal Mr Crow contends that the Judge was wrong in law, and consequently in fact, to hold that it was immaterial whether he had been paid for the goats while they were alive, or after they had been slaughtered and dressed. Though he did not give evidence, he had said when interviewed that he had been paid for live goats and that, while he had allowed them to be slaughtered and dressed on his property, and had sometimes helped, that was not part of the bargain. The Judge could not on the evidence, he contends, be satisfied that it was.

[5] Mr Crow’s second ground of appeal is contingent on his first. He contends that the Judge wrongly rejected the evidence of the only prosecution witness able to

give direct evidence of the two sales, Mr Kumar, who had by then been convicted and sentenced for his offences.¹ Mr Kumar’s evidence was that then and on earlier dates he had paid for live goats, and not for slaughtered and dressed goats, even though Mr Crow sometimes helped him to slaughter and dress them.

[6] The Judge was wrong, Mr Crow contends, to reject Mr Kumar’s evidence, as he did, in part on the basis that Mr Kumar was not cross examined as to whether he purchased live or slaughtered and dressed goats, and in part because English was not his first language and he appeared anxious to please. As the Ministry accepts, he was in fact cross examined as to what he purchased; and, Mr Crow contends, he gave plain answers to plain questions.

[7] Whether the Judge was right to reject Mr Kumar’s evidence because he was anxious to please may turn as well on Mr Crow’s further related ground of appeal in which he contends that, though the Judge did not say so, the Judge impermissibly took into account Mr Kumar’s inconsistent witness statement, which he had seen when deciding whether to declare Mr Kumar hostile. Having held Mr Kumar not to be hostile, Mr Crow contends, the Judge was obliged to leave the statement out of account.

[8] Finally, and more peripherally, Mr Crow contends, the Judge was incorrect to hold that the evidence of prior sales ‘mainly’ concerned sales made before the three in issue. The Ministry accepts this to be so, but points out that this evidence was admitted primarily to establish Mr Crow’s propensity to deal in slaughtered and dressed goats, not as direct evidence.

Appeal principles

[9] Mr Crow’s appeal must be allowed if I am satisfied that ‘the Judge erred in his ... assessment of the evidence to such an extent that a miscarriage of justice has

_occurred’.² _{A miscarriage of justice is, in the context of this case, any ‘error’ that}

¹ Mr Kumar pleaded guilty on 19 October 2013 to three charges of selling non-compliant animal product under s 128(1)(b) of the Animal Products Act 1999, as a result of purchasing from Mr Crow and on-selling.

² Criminal Procedure Act 2011, s 232(1) and (2)(b) and (c).

‘has created a real risk that the outcome of the trial was effected’, or ‘has resulted in an unfair trial’.³

[10] This question must be answered in its own terms. For there to be a miscarriage of justice in a Judge-alone trial, any error by the Judge in evaluating the evidence must carry a ‘real risk’ of rendering his or her decision unreasonable; and ‘a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong’.⁴

[11] Furthermore, this is a general appeal by way of rehearing. It is not an appeal from the verdict of a Judge without a jury.⁵ The appellant must show that in some material sense the decision under appeal is wrong. But I must make my own assessment, always taking into account as to issues of credibility the advantage the Judge had in seeing and hearing the witnesses.⁶

[12] That said, on this appeal the essential issue is more confined in focus. It is whether the Judge was incorrect to define as widely and purposively as he did the form of ‘sale’, which the Act makes an offence. If he was wrong as to that, his findings on the evidence have equally to be open to question. If he was right as to that, his evidential findings are less susceptible of challenge.

Nature and scope of sale

[13] The Judge held that on the two dates Mr Crow sold Mr Kumar slaughtered and dressed goats, because he assisted Mr Kumar to slaughter and dress them, or did so himself. The result of each of those two transactions was that Mr Kumar left Mr Crow’s property with slaughtered and dressed goats. The Judge did not consider it to be decisive when money changed hands because, as he said, after making a survey of

_{the Act:}⁷

³ _{Section 232(4).}

⁴ _{R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at [110] per Tipping J.}

⁵ _{R v Slavich [2009] NZCA 188.}

⁶ _{Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].}

⁷ Ministry of Primary Industries v Crow DC New Plymouth CRI-2013-043-1488, 16 October

2014 at [38].

It would defeat the purpose of the APA if a person was able to trade in animal product, but could avoid compliance simply by accepting payment for the product prior to the killing and other processing of the animal.

[14] The Judge also found that the ‘very wide’ interpretation, which he consciously gave to the critical terms in the Act, ‘sell’ and ‘trade’, was consistent with its relevant object; and that, having regard to analogous cases, to which I will refer, he was obliged to accord to those terms, and to s 128(1)(b), which creates the offences charged, that wider ambit.

[15] As the Judge recognised, the objects of a statute have always to be highly relevant, when a term in a statute has to be given meaning; and the object most immediately in point in this case is the first of the two that the present Act identifies. That object is to:⁸

Minimise and manage risks to human or animal health arising from the production and processing of animal material and products by instituting measures that ensure so far as is practicable that all traded animal products are fit for their intended purpose.

[16] No less relevant, however, as is contended for Mr Crow, is that the Act makes a distinction between ‘animal material’ and ‘animal product’. The former includes

‘any live or dead animal, or any tissue or other material taken or derived from an

animal’.⁹ The latter is defined as a subset of the former. It is:

any animal material that has been processed (other than simply transported or stored in such a way as not to involve any alteration to its nature) for the purpose, or ultimate purpose, of consumption or other use by humans or animals.

[17] No less pertinent also is that the Act distinguishes between the two in the offences it creates. Section 128(1)(a) makes it an offence to sell or offer or possess for sale ‘animal material’ governed by the Act, which the person charged knows

‘does not or no longer meets any relevant specification’. Section 128(1)(b) makes it an offence to sell or offer or possess for sale ‘animal product’ governed by the Act,

_{which the person charged knows:}

⁸ _{Animal Products Act 1999, s 2(a).}

⁹ Sections 4, 7(1)(a).

has not been processed in accordance with the requirements of ... that apply

to the product, or is not otherwise fit for intended purpose.

[18] If Mr Crow had been charged with an offence against s 128(1)(a), which might or might not have been apt, it would not have mattered whether the goats were sold alive or when slaughtered and dressed. He was charged, however, with three offences against s 128(1)(b), and that is why the issue whether in each instance he sold live or slaughtered and dressed goats proved to be so critical. If he had sold live goats he could not have committed the offences charged. He would not have sold

‘animal product’.

[19] The Judge had, therefore, to focus as he did on the definitions of ‘sale’ and

‘trade’, which are set out in s 4. It defines ‘sell’ as having ‘the same meaning as trade’, and ‘sale’ as having a corresponding meaning. It defines ‘trade’ as meaning to ‘sell for human or animal consumption or use’. It confirms, without being exhaustive, that six categories of activity constitute ‘trade’. It then sets out a seventh, which expresses their essence, ‘Every other method of disposition for valuable consideration’. And one of the six specific categories, that in paragraph (b), is especially pertinent:

Offering or attempting to sell, or receiving for sale, or having in possession or exposing for sale, or sending or delivering for sale, or causing or permitting to be sold, offered, or exposed for sale.

[20] Even the six specific categories of trade, however, do not prescribe when property is to pass on sale and there are no decisions of this Court, or any other, of which I am aware in which that has been decided in a comparable case, or at all. The Judge was right to say, nevertheless, that unless they are specifically imported, the statutory and common law principles governing the sale of goods have no definitive place in the analysis.

[21] Very recently, the Court of Appeal said in Ministry of Fisheries v Vu that whether there had been a transaction with the Crown was not to be assessed by reference to contract principles. ‘Recourse to principles other than those of criminal

_{law is seldom helpful in dealing with offences’.}¹⁰

¹⁰ Ministry of Fisheries v Vu [2010] NZCA 469, [2011] NZAR 114 at [37].

[22] So too, in the much earlier case, R v During, the Court of Appeal declined to interpret the phrase ‘offer to ... supply’, under the Narcotics Act 1965, to mean ‘an offer capable through acceptance by the offeree so as to form a contract to supply through sale’.¹¹ It held that the phrase had to be interpreted against the objects of the Act, which were to prevent the use of or traffic in dangerous drugs; and thus it held that:¹²

one of the harms at which the section is plainly and unambiguously directed is an intimation by the person charged to another that he is ready on request to supply to that other drugs of a kind prohibited by the statute.

[23] So too, in R v Gosney, where the appellant assisted with division of heroin after purchase and the issue was whether he was party to the sale, the Court of Appeal held that the sale was complete before he played his part and allowed his appeal. But it also held that the words ‘sell, give, supply, or administer’, as they appeared in the Misuse of Drugs Act 1975, ‘should be understood in their ordinary or common meaning rather than in any technical sense.’¹³

[24] So too, in Young (MAF) v Thorburn Thorp J held that the default rules in s 20 of the Sale of Goods Act 1908 governing intention have limited significance when deciding whether there has been a ‘sale’ under the Fisheries Act.¹⁴ In that case, as in this, the word ‘sale’ was defined more broadly. It included ‘offering’ or ‘exposing for sale’ or ‘sending’ or ‘delivering for sale’. But, even supposing the Sale of Goods Act 1908 did apply, it would not have taken the Judge significantly further.

[25] Section 19(1) of that Act says that property in a contract for specific goods ‘is transferred to the buyer at such time as the parties to the contract intend it to be transferred’; and s 19(2) says that this intention is to be ascertained having regard to

‘the terms of the contract, the conduct of the parties and the circumstances of the

_case’.

¹¹ _{R v During [1973] 1 NZLR 366 (CA) at 367.}

¹² _{At 373.}

¹³ _{R v Gosney [1977] 2 NZLR 130 (CA) at 132.}

¹⁴ Young (Ministry of Agriculture and Fisheries) v Thorburn HC Whangarei M53/83, 16 September

1983.

[26] Even s 20, which sets out rules for deciding that intention where the contract is silent, does not greatly assist. Rule 1, for example, says:

Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, is postponed.

It does not necessarily follow that property passes when money changes hands where, as here, there is evidence that steps were invariably taken afterwards and, arguably, that it was only then that delivery was made and property passed.

[27] This last possibility is by the way. The essential point is that the Judge was obliged to interpret the word ‘sale’ widely, having regard to the relevant object of the Act: to prevent the sale of ‘animal product’ in a state unfit for consumption. He was entitled to hold that the ‘sale’, which s 128(1)(b) makes an offence, is one in which the ultimate outcome is the delivery of ‘animal product’, regardless of when the money changed hands.

Kumar evidence

[28] On this analysis, Mr Kumar’s evidence that he paid for the goats while they were alive cannot be decisive. It can only be a factor. It remains relevant, as does the Judge’s finding that Mr Kumar was ‘not clear about exactly when he paid for them’.¹⁵ The Judge gave several instances, drawing on Mr Kumar’s evidence:

(a) ‘I just pay him at the paddock or sometimes he stayed at the house, I

just give it to him’.

(b) ‘I don’t know, maybe I give him at the paddock or at the house’.

(c) ‘When he, when he put all the goat in the pen, he’ll just tell the price then, I just gave him the money’.

(d) ‘I give him the money and then I just, he’ll just take the money and I

_{just kill them. And sometimes he just give it to me a one’.}

¹⁵ Ministry of Primary Industries v Crow, above n 7, at [14].

[29] As the Ministry points out also, Mr Kumar gave evidence that on 8 March

2013, when all the goats were killed and processed by Mr Crow but later removed by

Mr Kumar, he said he did not know when the money changed hands.

[30] I am unable to accept, however, that the Judge was entitled to reject Mr Kumar’s evidence as unreliable because English was his second language. As a review of the transcript shows, most especially when Mr Kumar was cross examined, he was asked plain questions to which he gave plain answers.

[31] When cross examined, Mr Kumar said that he bought goats from Mr Crow in an agreed number and size (he preferred smaller goats), and at an agreed price, and that he paid the price then and there while the goats were still alive. He also said that he did not pay Mr Crow to slaughter the goats or dress them. At that point the goats were his. He slaughtered and dressed them himself and, if Mr Crow helped him, that was as a favour.

[32] I agree also that the Judge could not conclude that Mr Kumar gave answers designed to serve the interests of Mr Crow, or himself, if the Judge relied on Mr Kumar’s witness statement, which he had reviewed to decide whether to declare Mr Kumar hostile. The statement was plainly inconsistent with Mr Kumar’s evidence. In his statement Mr Kumar said that he purchased slaughtered and dressed goats. But the Judge did not declare him hostile. The statement then became irrelevant.

[33] What is relevant is that, when Mr Kumar gave evidence, he had been convicted on his plea of the three offences with which he was jointly charged with Mr Crow, and he had been sentenced. He had nothing to lose and nothing to gain by giving the evidence that he gave.

Remaining strands of evidence

[34] Mr Kumar’s evidence had, however, to be set against the four other strands of evidence on which the Ministry’s case rested, and the Judge was able to found his decision, firstly, on admissions Mr Crow made before the hearing, two of which are especially significant.

[35] Mr Crow accepted, when interviewed, that between November 2011 – March

2013 he regularly sold goats from his property to purchasers, who took them away, slaughtered and dressed, in a variety of vehicles, including one with the name

‘Taranaki Fresh’, a food company, printed on the side. He also accepted that he had slaughtered and dressed some on his own, or had assisted the purchasers, and that he invariably cleared away the offal.

[36] Secondly, the Judge was able to rely on consistent video surveillance evidence from video cameras overlooking Mr Crow’s front paddock as to the two dates in issue.

[37] On 8 February 2013 Mr Crow herded 11 goats, with Mr Kumar’s help, into a temporary pen. He slaughtered six and Mr Kumar hung them on a tree and skinned and gutted them. Mr Kumar left and returned in excess of an hour later to remove the carcasses from the tree and put them into the boot of his car. On 8 March 2013

Mr Crow herded and slaughtered and processed five goats by himself. Mr Kumar arrived 20 or 30 minutes later, packaged them up and placed them in the boot of his car. He then drove up to Mr Crow’s house before driving away.

[38] As to the third transaction charged, that on 15 February 2013, in respect of which the Judge acquitted Mr Crow, the surveillance evidence was that Mr Crow herded eight goats with Mr Kumar’s help into the temporary pen and that Mr Kumar slaughtered and dressed seven and Mr Crow one. The Judge held that the one goat Mr Crow had slaughtered and dressed might have been for his dogs.

[39] Thirdly, the Judge had uncontested propensity evidence, admitted in summary in the admissions of fact, from a former neighbour of Mr Crow’s, Mr Tonks. He described a series of occasions between November 2011 – February – March 2013 in which visitors to Mr Crow’s property slaughtered and dressed goats by themselves, often helped by Mr Crow, and invariably left with dressed carcasses. Mr Crow invariably dealt with the offal.

[40] Fourthly, there were also text messages admitted without contest, going to propensity, which were equally consistent:

(a) On 21 November 2012 a text on Mr Crow’s mobile phone asked ‘cn u drop a harf of goat of b4 i go to pd at 7.30 TH MIS WONTS IT’. Mr Crow replied ‘K’. Then on 21 November 2012, from the same number, ‘did you get the money’. Mr Crow replied ‘not yet’.

(b) On 2 December 2012 a text from Mr Crow’s phone said ‘got that meat hea’ and on 16 December 2012 another from Mr Crow’s phone asked

‘U wanna goat 4 dog tuck’.

[41] Even if the Judge had taken Mr Kumar’s evidence at face value he would have been entitled to hold, as he did, that when the money changed hands was not decisive. In each case, as to which there is evidence, and most particularly on the two dates in issue, he was entitled to find that what was sold and purchased were not live goats, but slaughtered and dressed goats; that, in substance, Mr Crow sold contravening ‘animal product’.

Outcome

[42] In the result, I find that the Judge made no error of law or of fact carrying any

possibility of a miscarriage of justice. I uphold Mr Crow’s conviction and dismiss

_{his appeal.}

P.J. Keane J