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High Court of New Zealand Decisions |
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:
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14 April 2016
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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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