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A v North Taranaki SPCA [2016] NZHC 688 (14 April 2016)

Last Updated: 10 May 2016


ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF APPELLANTS PURSUANT TO SECTION 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY




CRI-2016-443-001

CRI-2016-443-002 [2016] NZHC 688

BETWEEN
A
Appellant
AND
NORTH TARANAKI SPCA Respondent

CRI-2016-443-003
CRI-2016-443-004



BETWEEN A Appellant

AND NORTH TARANAKI SPCA Respondent

Hearing:
6 April 2016
Counsel:
M S Boyd for first named appellant
J M Woodcock for second named appellant
S J Simpkin for respondent
Judgment:
14 April 2016




RESERVED JUDGMENT OF DOBSON J



[1] The appellants live and work together. Their desire to care for stray cats has led to their prosecution by the respondent under s 12 of the Animal Welfare Act 1999 (the Act), charging that they did not ensure that the physical health and behavioural

needs of eight cats in their care were met.





A v NORTH TARANAKI SPCA [2016] NZHC 688 [14 April 2016]

[2] Both appellants promptly pleaded guilty but applied for discharges without conviction, and permanent name suppression. Those applications were dismissed by Judge G P Barkle in the District Court at New Plymouth on 21 December 2015.1

Both were convicted on the charge and ordered to pay reparation of $4,500. Under s 169 of the Act, orders were made that they are to own or have authority over no more than two cats each for a period of three years. An order was also made for the forfeiture of the cats that had been taken by the SPCA.

[3] Both appellants have now appealed their convictions and the refusal of name suppression. On appeal, they have repeated the arguments that did not find favour in the District Court.

[4] The appellants are 55 and 46 years of age respectively. They have for some time had a practice of taking in stray cats and caring for them. They take their responsibilities seriously. They regularly take the cats to a veterinarian, and also worm and de-flea the cats.

[5] Prior to July 2014, the appellants had lived at a property they shared with their mother, which was more than adequate for caring for the cats they took in. However, after that property became unavailable to them, they have had difficulties finding other accommodation and have been living in a motor vehicle that they have had to share with the eight cats.

[6] On 24 December 2014, an SPCA inspector discovered the appellants’ vehicle parked at an address with their eight cats inside it. Although a nearby building had provided shade for the vehicle earlier in the day, it was exposed to the sun at the time and the inspector recorded a temperature of 22 degrees Celsius. The inspector discovered that there were a number of litter boxes in the vehicle, as well as bowls of biscuits and clean drinking water. The inspector noted a strong smell of ammonia and that one of the cats had a severe mouth infection. That cat had to be euthanised. The remaining cats were examined by a veterinarian, and some had health issues. This level of care was assessed as breaching the minimum standards required under

the Act and a charge was laid against each of the appellants.

1 North Taranaki SPCA v A [2015] NZDC 25329

[7] It was accepted that the appellants had no intention to mistreat their cats, and any failure to meet the minimum standards of care was unintentional on their part. The vet who regularly treated the cats confirmed their commitment to caring for the cats. Neither of the appellants has any previous convictions. The cat that had to be euthanised was a stray that had not been in their care for long.

[8] Their concerns at the consequences of a conviction focused on the adverse impacts on their employment of a conviction, and publicity of it. Both have been employed as caregivers at a rest home for the last 19 years. They both receive the minimum wage and have concerns, which appear to be reasonable, that if convictions and publicity leads to their losing their present jobs, they would have great difficulty finding equivalent employment. The focus of their concerns is on the manager responsible for them at the rest home. They both depose to a very difficult relationship with the manager, who they characterise as bullying and unreasonable.

[9] The appellants’ concerns are confirmed by an affidavit from a union representative who has had to intervene on their behalf in employment disputes with the manager in the past. The union representative describes a number of instances she has observed of high-handed and bullying tactics by the manager, involving the appellants and other staff members to whom the manager takes personal exception.

[10] The union representative’s particular concern is that a conviction and publicity in respect of it would give the manager a pretext to contend that it constituted serious misconduct. That concept is defined in their contract as:

Any action or inaction that brings the reputation of the organisation into disrepute, or a conviction for a criminal offence that may impact negatively on the organisation or services provided to residents.

[11] The union representative confirms that the appellants would have to disclose their conviction to the manager if it is confirmed. From her previous experiences with the manager, the union representative predicts that she would try to link the care of cats to the appellants’ ability to care for residents. Further, that the manager would raise the concerns reflected in the SPCA’s charges with the appellants’ work colleagues and create hurt and humiliation for them. It would also provide a pretext

for bullying them, which the union representative describes as a feature of the

manager’s supervision of her staff.

[12] The test for the grant of a discharge without conviction requires the Court to be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.2 In this case, the Judge approached that assessment accepting that the level of criminality was low. That finding is criticised on appeal, on the ground that the Judge did not recognise indeed just how low the level of criminality was.

[13] On the extent of adverse consequences that would flow from a conviction, the Judge reviewed the risks of bullying and the prospect of the employer using the conviction as a ground for asserting there had been serious misconduct by the appellants. The Judge considered that if the employer took unfair or unjustified advantage of the existence of a conviction to victimise the appellants, then they could resort to the protections in employment law, and in particular under the Employment Relations Act 2000, to prevent intimidation or unfair dismissal. I sense that the Judge was concerned not to pre-empt the employer’s entitlement to know of the circumstances of any conviction, so that the employer was adequately informed of any misconduct by employees that the employer might consider was relevant to the employee’s performance at work.

[14] The Judge’s approach was criticised as unduly narrow, or unrealistic, in the argument on the appeals. Both Ms Boyd and Ms Woodcock emphasised that the appellants’ work situation reflected a substantial power imbalance, leaving them vulnerable to unreasonable conduct by their employer. The comfort of employment law protections was characterised as more theoretical than real. The manager’s past conduct had demonstrated an unreasonable attitude which was likely to create an obligation for them to defend their entitlement to stay in their employment, involving very substantial risk and stress for them. It was argued that this likelihood created the requisite adverse consequences out of all proportion to the criminality of the

appellants.



2 Sentencing Act 2002, s 107.

[15] The harm caused to the cats justified the initiation of a prosecution. Both on its own terms, and as a precedent, the appellants failed to ensure that the physical health and behavioural needs of the cats were met.

[16] However, the context in which the appellants were not able to provide a better quality environment for the cats places this prosecution at the very bottom of the range of circumstances where prosecution could be justified. The appellants positively cared for stray cats they took in, they had them monitored by a vet regularly, and provided as best they could for the cats in their care. Constraining the cats in a car was forced on the appellants by their own housing difficulties, so there was no positive decision to deny the cats a better environment than they might have been able to provide. I was assured by Ms Woodcock that the appellants’ living arrangements have improved again, so that no repetition of the incident is likely to occur.

[17] All of those circumstances would be understood by anyone reviewing a conviction in light of the appellants’ prompt guilty pleas. The unusual feature that makes the adverse consequences much more serious is the somewhat precarious employment position that the appellants have. It is a big step to find that the protections of employment law are inadequate, especially as this evaluation depends on strong criticisms of the employer where, of necessity, the employer has had no opportunity to respond to them. There is a prospect that the appellants and the union representative have overstated the risk of unjustified retaliation by the employer.

[18] Allowing for a measure of overstatement in the concerns deposed to, I am still of the view that the history of the appellants’ employment and their vulnerability in any action taken against them as a result of a conviction, does create the requisite prospect that a conviction would be out of all proportion to the gravity of the omissions constituting their offending.

[19] Each assessment under s 107 has to reflect the particular weighting appropriately given to the consequences of a conviction relative to the seriousness of the conduct leading to prosecution. It would be most unusual that an employee’s vulnerability to an employer’s unreasonable exploitation of the fact of a conviction

will take such adverse consequences to the point of being out of proportion to the gravity of the offending. That is particularly so as in the vast majority of situations, criminal offending will be a matter that is relevant to an employer.

[20] However, with respect to the Judge, I consider that it was wrong to treat the protections available under employment law as sufficient to downgrade the adverse consequences to a state where they remained in proportion to the gravity of the offence.

[21] Accordingly, I am minded to allow the first aspect of the appeals. Subject to the reservation addressed below, I intend to order a discharge without conviction for both appellants.

[22] That outcome has consequences for the other aspects of the orders made by the District Court Judge, which were not contested. Under s 106(3)(c) of the Sentencing Act, on ordering a discharge without conviction the Court may make any order that the Court is required to make on conviction. In addition to entering convictions, the District Court Judge ordered that reparation be paid by the appellants in the amount of $4,500 each, to be paid at the rate of $20 per week. Nothing was made of the magnitude of this order on the appeal, but it is significant and represents a large penalty for those on the minimum wage. The Judge also made an order under s 169 of the Act that neither of the appellants was to own or have authority over any more than two cats each for a period of three years. He also made an order under s 172 of the Act for the three cats that were then in the custody of the SPCA to be forfeited by the appellants.

[23] Counsel for the appellants volunteered that, if this aspect of their appeals was successful, for the avoidance of any doubt as to whether the other orders were “required” on entry of a conviction so as to bring these orders within s 106(3)(c), each of them would in any event undertake to comply with the terms of those orders.

[24] I propose adopting that course, and the primary order allowing this aspect of the appeal is not to come into force for 10 working days. Within that period, both appellants are to file formal undertakings with the Court confirming that:

(a) they will continue paying, until fully discharged, the reparation orders totalling $4,500 in each case;

(b) they will not own or have authority over any more than two cats each for a period of two years from 21 December 2015; and

(c) they consent to the forfeiture of the three cats that were in the custody of the SPCA on 21 December 2015.

[25] If undertakings in those terms are not filed, the Registry is to refer the matter back to me. Assuming that they are, the convictions are to be quashed and discharges without conviction entered as soon as unqualified undertakings are received.

[26] The Judge’s refusal to grant suppression of the appellants’ names followed the approach he adopted in dismissing the applications for discharge without conviction.

[27] The hurdle to be overcome in making out a case for name suppression is deliberately set very high because of the public interest in the open conduct of the Court’s business. The test is a two stage one. First, under s 200 of the Criminal Procedure Act 2011, the Court must be satisfied of the likelihood of one of the consequences specified in s 200(2) of that Act. In this case, it is claimed by the appellants that publication would cause extreme hardship to them. Only if that consequence is made out could the Court go on and assess the balancing of interests between the convicted person seeking name suppression, and the interests of the public in knowing the circumstances of the offending and the identity of the offender.

[28] Extreme hardship has been characterised as a very high level of hardship,3

and that hardship such as publication causing bullying of children at school is a form





3 R v Wilson [2014] NZHC 32 at [27].

of hardship but not necessarily extreme hardship, which requires something out of the ordinary.4

[29] In declining name suppression, the Judge focused on the consequences of embarrassment, shame and distress that often accompanied Court proceedings, but did not recognise the consequences here as reaching the very high bar of extreme hardship that was required. An aspect of the Judge’s reasoning was that the appellants had shown sufficient resilience to still be working at the rest home, with the assistance of the union representative, notwithstanding prior steps taken against them by the manager. The Judge saw consistency between his rejection of disproportionate adverse consequences under s 107 of the Sentencing Act, and the absence of extreme hardship for the purposes of s 200 of the Criminal Procedure Act.

[30] Given my contrary decision on the disproportionate consequences of a conviction, that invites fresh consideration on the extent of hardship that would follow from publication of the fact of the appellants having achieved discharges without conviction on appeal. That outcome should take their situation out of the employment law risk, which existed with a conviction, of it being treated as serious misconduct. Nonetheless, the appellants and the union representative on their behalf are concerned that the circumstances of the SPCA prosecution would be unjustly held against them as bringing the employer’s business into disrepute, which would provide the basis for a charge of serious misconduct. Publication would also provide a context for the bullying and intimidatory tactics that the appellants are seriously concerned about. Given that the pressures are still likely to lead to dismissal or constructive dismissal, where re-employment options are likely to be very limited for the appellants, I am satisfied these consequences are something out of the ordinary such that they constitute extreme hardship.

[31] Once that first part of the test for name suppression is made out, the balancing of the public interest against their private concern is relatively clear. This was very minor offending on the scale of abuse of animals and there is regrettably no shortage of other examples available to the media to emphasise the importance of

responsible care for animals. There can be no material and genuine public interest in

4 Ryan v R [2014] NZHC 3371 at [12].

the detailed circumstances of these two appellants, and I am satisfied the balance is firmly in favour of suppression.

[32] Accordingly, I also allow this part of the appeal and direct that the names and circumstances of the appellants are not to be published. In this case, this extends to publication of the appellants’ ages, relationship to one another and living situation.








Dobson J




Solicitors:

Hannam & Co, New Plymouth

Crown Solicitor, New Plymouth

Counsel:

J M Woodcock, New Plymouth


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