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High Court of New Zealand Decisions |
Last Updated: 7 November 2018
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
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CIV-2018-409-000036
[2018] NZHC 2624 |
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BETWEEN
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VICTORIA ANNE McCARTNEY AND DARRYL LAWRIE McCARTNEY
Appellants
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AND
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CANTERBURY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
Respondent
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Hearing:
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25 July 2018
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Appearances:
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J Shaw and D Pine for the Appellants B D Vanderkolk for Respondent
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Judgment:
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9 October 2018
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JUDGMENT OF VENNING J
This judgment was delivered by me on 9 October 2018 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors: Wynn Williams, Christchurch
BVA, Palmerston North
McCARTNEY v CANTERBURY SPCA [2018] NZHC 2624 [9 October 2018]
Introduction
[1] Victoria and Darryl McCartney live on a lifestyle block at Balcairn north of Christchurch. They have a number of animals on the property and have, for years, had domestic pets, especially cats. On 28 June 2016 two of the McCartneys’ cats, Michael and Mary, were uplifted by SPCA officers. When uplifted, Michael was wearing his jersey and was lying on a cushion in front of the fire in the living room. Mary was outside in the sun. Later that day Michael was euthanised.
[2] Mrs McCartney was charged with two offences under the Animal Welfare Act 1999 (the Act), one each in relation to Michael and Mary. Mr McCartney was charged with an offence of obstruction under the Act.
[3] Following a four day hearing in the District Court on 11 to 14 December 2017 Judge D J L Saunders convicted Mrs McCartney on both charges.1 Mr McCartney was also convicted on the charge of obstruction. The Judge imposed fines of $1,500 on each charge in relation to Mrs McCartney’s convictions, together with Court costs. The Judge also made a reparation order in the sum of $4,221.86 in favour of the Canterbury SPCA and an order for witness expenses. Mr McCartney was fined $1,000 together with Court costs.
[4] Mr and Mrs McCartney have appealed their convictions to this Court.
Background
[5] When euthanised Michael was 11 years old. Mr and Mrs McCartney had the care of Michael since he was a kitten. Michael had a number of health issues. In April 2015 he was diagnosed with diabetes and was hospitalised for a period between April 2015 and July 2015. He was prescribed a glucose testing regime and insulin treatment. At the time Mrs McCartney was made aware of the complexities with the treatment and was given the option of euthanising Michael. She chose to administer the palliative treatment, which was quite complex.
1 Canterbury SPCA v McCartney [2017] NZDC 29361.
[6] Michael’s condition did not improve. With hindsight it appears that was a result of undiagnosed pancreatitis, a condition which results in insulin resistance.
[7] On 3 February 2016 Michael was diagnosed with pancreatic cancer by Dr Richard Lucy. That remained the diagnosis until the pathologist’s report following Michael’s death confirmed that Michael did not in fact have cancer. It had been misdiagnosed.
[8] Following the diagnosis of cancer, Mrs McCartney booked Michael in at the Rangiora Veterinary Centre (RVC) to be euthanised on 25 February 2016 by Dr Jolly. Dr Jolly was the vet the McCartneys generally dealt with and who had treated Michael. Dr Jolly was unavailable on 25 February 2016 and Mrs McCartney and Michael were seen by Dr Weight. The decision was made not to proceed with euthanasia that day.
[9] Dr Jolly saw Mrs McCartney and Michael on at least two further occasions, on 6 and 29 April 2016. Then on 22 June 2016 Mrs McCartney took Michael to Dr Lucy again. The attendance was for Michael to be assessed and for subcutaneous fluids to be administered as the McCartneys were finding it difficult to administer them at the time.
[10] Dr Lucy assessed Michael as being in very poor condition and recommended he be euthanised as soon as possible. Two days later, on 24 June, Dr Lucy spoke on a colleague to colleague basis to Dr Weight at RVC about Michael. Dr Weight then contacted Mrs McCartney the same day. It was an amicable conversation during which Mrs McCartney agreed that Michael would have to be euthanised. She requested a home visit and it was agreed that Michael would be euthanised at the McCartney’s home on Monday, 27 June.
[11] On the morning of 27 June 2016 Michael presented as considerably more ambulatory and buoyant than he had been. After going outside to the toilet, he had come back in and jumped on the bed. When Mrs McCartney gave him a cuddle he responded by purring. According to Mr McCartney he was displaying a lot of interest in moving around and seemed in good spirits. Mr McCartney had fed him and given him his insulin at breakfast time. Mrs McCartney rang RVC and spoke to the
receptionist. She left a message to the effect she did not want to proceed with the euthanasia procedure that day but would do so by the end of the week. Dr Weight rang back. Her recollection of the phone call is that she and Mrs McCartney were talking over each other but she does remember expressing to Mrs McCartney that if she did not proceed with euthanasia then they would be forced to get animal welfare agencies involved. Unfortunately the communication between them broke down at that stage. The call was terminated. Dr Weight then made contact with an inspector at the Canterbury SPCA, a Ms Walmsley.
[12] Ms Walmsley and Ms Cairns, a field inspector from the SPCA went to the McCartneys’ property at Balcairn the same day. There was an unfortunate confrontation with Mr McCartney at the verandah. He told them, using aggressive and unnecessarily foul language, to leave the property. They did not. Mrs McCartney then went inside and brought Michael out for the SPCA officers and allowed them to touch him but not to hold him. Ms Walmsley and Ms Cairns then left the property.
[13] The SPCA officers returned the next day on 28 June, accompanied by a police officer and with a search warrant. They uplifted Michael and Mary. Mary was uplifted because she was observed to have runny eyes and scabs on her ears.
[14] Ms McCartney had in the meantime, on the morning of 28 June, arranged for Michael to be euthanised by another vet, Dr Sutorius. The euthanasia was to be carried out on the evening of 30 June.
[15] After Michael was seized, the McCartneys were entitled to a second opinion as to whether euthanasia was required.2 A second opinion was obtained from Dr Elias. Dr Elias examined Michael on 28 June, after Dr Weight had seen him again. He did not consider euthanasia was immediately necessary but nevertheless recommended it to Mrs McCartney given the circumstances. Mrs McCartney agreed.
2 Animal Welfare Act 1999, s 138.
The charges
[16] Mrs McCartney was charged with ill-treating Michael between 22–27 June 2016, in breach of s 29(a) of the Act. The SPCA alleged that she caused Michael to suffer unreasonable or unnecessary pain or distress by not following veterinary advice.
[17] Mrs McCartney was also charged with failing to ensure that Mary received treatment to alleviate unreasonable or unnecessary pain or distress between 30 May and 27 June 2016, in breach of s 12(b) of the Act.
[18] Mr McCartney was charged with wilfully obstructing or hindering an inspector in the exercise of her powers, in breach of s 159(1) of the Act.
The District Court judgment
[19] In relation to the charge involving Michael, Judge Saunders noted that by 22 June 2016 the clinically observed position of Michael as related by Dr Lucy was that the cat was in a very poor condition and should be euthanised as soon as possible. He considered that advice should have been acted upon.
[20] While the Judge accepted that it might have been reasonable for Mrs McCartney to take time to say goodbye he noted Mrs McCartney had taken no steps to arrange any appointment to have Michael euthanised prior to Dr Weight ringing her on 24 June. The Judge noted from the defence evidence it appeared Mrs McCartney took the view that on 27 June Michael was happy and coping with trips and showing no sign of pain or distress. The Judge said he was “not convinced” that was the situation by 27 June and noted the observation of the SPCA inspector who attended the McCartneys’ property that day. That “brief” assessment was reinforced by the examination of Dr Weight on 28 June.
[21] Judge Saunders dismissed Dr Elias’ opinion following his examination of Michael on 28 June. He considered Dr Elias had failed to give the examination the care that was required. The Judge preferred the evidence of Dr Weight as to the state of Michael on the day. In his view:
The short point is that both Doctors Lucy and Weight had considered the time had come to carry out this procedure, whereas Mrs McCartney was still in denial.
[22] The Judge also rejected the evidence of Dr Burrough, a veterinary surgeon called by the defence.
[23] The Judge doubted whether Mrs McCartney would have followed through with the arrangements she had made with Dr Sutorius.
[24] Ultimately the Judge was satisfied that the prosecution established the veterinary advice was properly given and that the opinion of Dr Lucy was clearly conveyed to Mrs McCartney. He did not accept that, without the intervention of Dr Weight, Mrs McCartney would have taken any steps to arrange for euthanasia. On the evidence of Michael’s condition by 28 June it was, in his view, a situation where deferring termination was causing the animal to suffer unreasonable or unnecessary pain or distress. While that pain may have been alleviated by medication there was nothing that satisfied him that Mrs McCartney was providing the treatment and medication at the level which would have been necessary to relieve the pain or distress. The Judge found the charge proved.
[25] In relation to Mary the Judge noted that the photos taken of Mary on the date of seizure disclosed overt signs that called out for treatment. The condition affecting the eyes was evident. The McCartney’s treatment of the condition by bathing the eyes was insufficient. The lesions on the ear were also very evident. While he accepted the fact a tooth needed to be extracted might not have been evident, with regular checks and assessments it would have been detected. He finally noted the itchiness around Mary’s anal area which appeared to have gone unnoticed and untreated.
[26] The Judge was satisfied that any reasonable person who had owned and cared for cats would have taken more active steps to ensure Mary was assessed and treated for the various problems that she had, particularly in relation to her inward-turning eyelid and lesions on the ear and nose. He rejected a defence submission that neither of the conditions met the statutory standard of causing unreasonable or unnecessary pain or distress. He noted it was a strict liability offence. Ms McCartney sought to
rely on the statutory defence that she took all reasonable steps to ensure Mary received treatment, but the Judge did not accept she had done so.3. The charge was proved.
[27] In relation to the obstruction charge faced by Mr McCartney, the Judge noted there was a degree of conflict between the evidence of Mr McCartney and Ms Walmsley. He found that Mr McCartney’s behaviour was far from calm and rational. Mr McCartney had accepted in evidence that, with the benefit of hindsight, he could have handled the matter better. The Judge considered that Mr McCartney was not entitled to hinder or obstruct Ms Walmsley’s legitimate inquiry about the whereabouts of the cat. While Mrs McCartney was compliant, that was despite Mr McCartney telling her not to be.
[28] The Judge rejected the defence submission there was an illegal entry into the dwelling. He accepted that Ms Walmsley had stood on the verandah while speaking with the McCartneys but considered that she had not breached any rights in doing so. The Judge found the obstruction and hindering of the officer occurred before Ms Walmsley stepped forward to see Ms McCartney retrieve the cat from the living area. By that time the officers had already been hindered and obstructed in their inquiry. The Judge found the elements of the charge proved.
Grounds of appeal
[29] The appellants take a number of points on appeal. In relation to the Michael charge they can be summarised as:
(a) the Judge failed to identify the veterinary advice Mrs McCartney failed to follow;
(b) the Judge erred in finding that Mrs McCartney failed to follow veterinary advice;
3 Animal Welfare Act 1999, s 13(2)(a)(ii).
(c) the Judge was wrong in finding that any failure to follow veterinary advice caused unreasonable or unnecessary pain or distress during the relevant time frame;
(d) the Judge failed to properly consider the statutory defence and was in error in ultimately rejecting it.
[30] Mr Shaw also criticised the way the Judge dismissed the evidence of the veterinary surgeons called by the defence and the other witnesses who gave evidence as to Michael’s condition and behaviour on 27 June.
[31] In relation to the Mary charge the appellant submitted the Judge was wrong to find Mary was suffering from unreasonable or unnecessary pain or distress and in finding that Mrs McCartney failed to ensure Mary received treatment to alleviate any unnecessary or unreasonable pain or distress. She said he failed to properly consider the statutory defence.
[32] In relation to Mr McCartney’s conviction for obstruction, Mr Shaw submitted the Judge erred in failing to find the SPCA inspector remained unlawfully on the property after being required to leave. The Judge erred in finding the SPCA inspector was exercising her powers at the relevant time. Finally, he erred in finding the obstruction was wilful.
The SPCA response
[33] Mr Vanderkolk submitted the Court should be cautious before overturning a conviction where there were two plausible narratives open to the District Court Judge, one of which supported the conviction. While the appellant may disagree with the narrative the Judge decided to accept, such disagreement did not meet the test of miscarriage of justice. He noted the principle that an appeal court would be slow to interfere with a trial Judge’s findings of fact.
[34] On the particular grounds of appeal Mr Vanderkolk submitted that it was inconsistent for the appellant to contend that the elements of the offence had not been
made out but also to argue Mrs McCartney had satisfied the statutory defence. The two were incompatible.4
[35] In relation to the particular matters raised by the appellant Mr Vanderkolk submitted that the use of the phrase “as soon as possible” by the veterinary surgeons and their advice as to the need for euthanasia was clear and should have been acted upon. “As soon as possible” effectively meant at the next reasonable opportunity. He submitted it was open for the Judge to find that Mrs McCartney had failed to follow veterinary advice when she cancelled the euthanasia procedure on 27 June.
[36] While he acknowledged that aspects of the trial Judge’s reasoning was somewhat unclear there was sufficient evidence for him to be sceptical as to whether the appellant would have followed through with the euthanasia procedure of her own accord.
[37] Mr Vanderkolk submitted that the evidence of Doctors Jolly, Weight and Lucy established that Michael would have been suffering pain since the diagnoses of diabetes and pancreatitis. He submitted that the evidence was that Michael would have been suffering pain for a significant period of time. It was open for the Judge to infer that Michael was suffering such pain or distress on 27 June 2016.
[38] Mr Vanderkolk referred to the evidence of Dr Jolly as to the effect of pancreatitis and the evidence of Dr Weight about the disease. He submitted that the Court gave sufficient weight to the evidence of Dr Elias and Dr Burrough and was entitled to reject their evidence. Dr Burrough had not had the benefit of any clinical assessment and Dr Elias made only a cursory examination of Michael.
[39] Mr Vanderkolk submitted the statutory defence could not succeed as Mrs McCartney took no steps to follow veterinary advice and cancelled the euthanasia appointment.
[40] Finally he submitted the Judge was entitled to reject the evidence of Mrs McCartney, Debbie Olliver, Mr McCartney and Linda McCartney as to their
4 Bradshaw v R [2015] NZCA 98, (2015) 27 CRNZ 397 at [27].
observations of Michael on 27 June. It was a matter of weight for the Judge to assess the evidence.
[41] On the charge involving Mary, Mr Vanderkolk submitted the criticism the trial Judge failed to take account of Dr Burrough’s expert evidence about Mary’s condition was unfounded. The Judge had previously rejected Dr Burrough’s evidence on the basis the doctor had not had the benefit of actual clinical assessments. While the Judge accepted that placing sunscreen on Mary’s ears and bathing her eyes with water may have addressed the pain and distress to some degree it did not satisfy the requirement for the statutory defence to take all reasonable steps to ensure that pain or distress was not suffered. The condition prevailed and veterinary treatment was required.
[42] In the case of Mr McCartney’s conviction for obstruction Mr Vanderkolk submitted that the definition for dwellinghouse found in Rose v Police and Police v O’Byrne5 as relied on by the appellant was not applicable and that instead, assistance could be gained from references to the unlawful entry of dwellings in cases under the Sentencing Act 2002.6 He submitted it would be impracticable to define the “dwelling” as “including the path up to the residence” and that the definition of “dwelling” in the Act did not include the immediate land surrounding the dwelling. The inspector was lawfully exercising her inspection powers under s 127(1) of the Act when Mr McCartney obstructed and hindered her. It was clearly wilful. Alternatively he submitted that Ms Walmsley could rely on an implied licence which Mrs McCartney had effectively extended by constructively engaging with the Inspector.
The approach to the appeals against conviction
[43] As a first appeal against conviction s 232 of the Criminal Procedure Act 2011 applies:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
6 Pahau v R [2011] NZCA 147.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), 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.
(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[44] The factual findings that form a basis of the verdict reached by a Judge sitting alone are to be treated on the appeal as the equivalent of a jury verdict.7 Deference is required to those factual findings and to the advantages enjoyed by the Judge as a fact finder without abdicating the review function performed by the appellate court.
[45] The Court must consider whether there were errors, irregularities or occurrences affecting the trial or verdicts, and whether the error, irregularity or occurrence created a real risk the outcome of the trial was affected or that resulted in an unfair trial.8 In relation to s 232(4)(a) a real risk arises if there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered but for the error, irregularity or occurrence, irrelevant considerations for present purposes.
Preliminary matter
[46] Mr Vanderkolk cited the case of Bradshaw v R to support his proposition that it was not open for Mrs McCartney to simultaneously contend the elements of the
7 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].
8 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
offence had not been made out and to raise the statutory defence.9 Bradshaw v R concerned an appeal against conviction on a charge of male assaults female. The defence at trial was that the defendant did not hit the complainant. The Court found that a defence of self-defence could not be run if the defendant denied assaulting the complainant as the legal foundation for the defence of self-defence is that the defendant was justified in physically applying force for the purpose of defending himself from harm. Self-defence would have been the antithesis of a defence of denial of the action alleged or said to have been taken in the course of self-defence.
[47] The position in the present case is quite different. It is open for Mrs McCartney to argue that Michael (and Mary) were not subject to unreasonable or unnecessary pain or distress but that if they were she took steps to address that pain and distress. In Bradshaw the appellant sought to argue he had not hit the complainant, but if he had, it was justified. There was an inconsistency between the two propositions. In the present case there is no dispute that Michael was in pain and the McCartneys were providing palliative care to Michael (and provided some treatment for Mary). The issue was whether the pain was unreasonable or unnecessary and if so, whether Mrs McCarthy took all reasonable steps to follow veterinary advice in the case of Michael or to alleviate Mary’s pain or distress. The propositions are not inconsistent.
The scheme of the Act
[48] As Mr Vanderkolk noted, the Act reformed the law relating to the welfare of animals and the prevention of their ill-treatment. The amendment in 2015 recognised that animals are sentient. It requires owners of animals and persons in charge of animals to attend properly to the welfare of those animals.10
[49] Part 1 of the Act provides for the care of animals. Part 2 deals with conduct towards animals. The Act makes a distinction between offences relating to the care of an animal and conduct towards it.
9 Bradshaw v R, above n 4.
10 Animal Welfare Act 1999 Long Title as amended by the Animal Welfare Amendment Act (No 2) 2015. See also the discussion of the background to the Act in Erickson v Ministry for Primary Industries [2017] NZCA 271.
[50] The purpose of Part 1 is stated in s 9(1) to be:
to ensure that owners of animals and persons in charge of animals attend properly to the welfare of those animals.
[51] Section 9(2) provides:
This Part accordingly—
(a) requires owners of animals, and persons in charge of animals, to take all reasonable steps to ensure that the physical, health, and behavioural needs of the animals are met in accordance with both—
(i) good practice; and
(ii) scientific knowledge; and
(b) requires owners of ill or injured animals, and persons in charge of such animals, to ensure that the animals receive treatment that alleviates any unreasonable or unnecessary pain or distress from which the animals are suffering; and
(c) imposes restrictions on the carrying out of surgical procedures on animals; and
(d) provides for the classification of the types of surgical procedures that may be performed on animals; and
(e) specifies the persons or classes of persons who may perform each class of such surgical procedures; and
(f) specifies certain minimum conditions that must be observed in relation to the transportation of animals.
[52] As noted, part 2 of the Act deals with conduct towards animals. Its purpose is stated to be:11
to state conduct that is or is not permissible in relation to a species of animal or animals used for certain purposes—
(a) by prohibiting certain types of conduct; and
(b) by controlling the use and sale of traps and devices used to kill, manage, entrap, capture, entangle, restrain, or immobilise an animal.
11 Section 27.
The Michael charge
[53] As noted Mrs McCartney was charged and convicted with an offence under s 29(a) of the Act, which is under part 2 of the Act. Section 29(a) provides:
A person commits an offence who—
(a) ill-treats an animal; ...
[54] To ill-treat is defined in the interpretation section of the Act as:
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
[55] The offence is a strict liability offence in that it is not necessary for the prosecution to prove that Mrs McCartney intended to commit the offence.12 It would have been a defence, however, if Mrs McCartney proved that she took all reasonable steps not to commit a breach of s 29(a), i.e. not to ill-treat Michael in the way alleged.13
[56] Given the context of s 29 and that the offence in the present case must be based on an omission, namely the failure to follow veterinary advice, it is not apt to describe the pain or distress as being inflicted by Mrs McCartney nor that such was her object.
[57] In the context of this case the ill-treatment under s 29(a) must be that between 22 and 27 June 2016 Mrs McCartney caused Michael, by omitting to follow veterinary advice, pain or distress that in its kind or degree was unreasonable or unnecessary. The other offences under s 29(b) to (h) involve abusive conduct towards animals. Conduct of that nature is quite different to the gravamen of the complaint against Mrs McCartney.
[58] There would seem to be a more appropriate charge under s 14(1)(a) under Part 1 of the Act to address the allegation against Mrs McCartney. Section 14(1)(a) provides:
(1) A person commits an offence who, being the owner of, or a person in charge of, an animal, without reasonable excuse,—
12 Animal Welfare Act 1999, s 30(1).
13 Animal Welfare Act 1999, s 30(2)(a).
(a) keeps the animal alive when it is in such a condition that it is suffering unreasonable or unnecessary pain or distress; ...
[59] However, the appeal falls to be dealt with on the basis of the charge and conviction before the Court. The elements of the offence under s 29(a) which the SPCA was required to prove in this case are that:
(a) between 22 and 27 June 2016 Mrs McCartney caused Michael to suffer pain or distress;
(b) by not following veterinary advice; and
(c) that the pain or distress was, in its kind or degree, unreasonable or unnecessary.
[60] The first issue is to identify the veterinary advice that it is said Mrs McCartney failed to follow between 22 and 27 June 2016. The evidence only discloses two instances of direct veterinary advice to Mrs McCartney during the relevant time. The first was Dr Lucy’s advice on 22 June that Michael should be euthanised “as soon as possible”. The second was Dr Weight’s advice on 27 June, during the telephone call with Mrs McCartney, that the euthanasia procedure needed to be performed by the end of the week or welfare agencies would be involved.
[61] There also was the telephone discussion between Dr Weight and Mrs McCartney on 24 June when the arrangement was made for Michael’s euthanasia on 27 June but there is no evidence of any direct advice being given on that date, other than making the practical arrangements for the euthanasia to be carried out.
[62] Mr Vanderkolk submitted that Dr Lucy’s advice Michael should be euthanised “as soon as possible” should be given a common sense meaning. It was quite clear and meant at the next reasonable opportunity. With respect, however, that again begs the question of what the next reasonable opportunity might have been. While it could be argued that the next reasonable opportunity meant 24 June when the arrangements were made, Dr Weight accepted that in relation to the timing of euthanasia it was always a balance between giving owners more time and doing what needed to be done.
Further, by agreeing to schedule the procedure for 27 June, it can be inferred Dr Weight did not consider Michael would be in unreasonable or unnecessary pain between 24 and 27 June.
[63] A further difficulty with the prosecution case on this aspect is that, as Mr Vanderkolk accepted in his written submissions, it was established that Dr Weight advised Mrs McCartney on 27 June, a Monday, that euthanasia needed to be performed by the end of the week otherwise welfare agencies would become involved. That was further veterinary advice as to when the euthanasia should be carried out. It does not comfortably sit with the suggestion that “as soon as possible” meant the euthanasia had to be carried out by 27 June. On the evidence, Mrs McCartney had made arrangements for an alternative veterinary surgeon to carry out the euthanasia before the end of the week in compliance with Dr Weight’s requirement. The veterinary surgeon in question, Dr Sutorius, confirmed the arrangement had been made to euthanise Michael on the Thursday. While the Judge doubted Mrs McCartney would follow through with it that day, that was speculative.
[64] There is force in Mr Shaw’s submission that the request to postpone the euthanasia procedure on 27 June cannot be characterised as a failure to follow advice but rather an attempt to alter the arrangements previously agreed. Mrs McCartney followed the veterinary advice to have Michael euthanised. She made arrangements to that effect.
[65] With respect, the Judge’s conclusions on the point were as Mr Shaw submitted, generic and conclusory. He referred to Mrs McCartney being “in denial”, failing to accept or follow veterinary advice, and deferring the termination. However, for the reasons given above, the Judge was required to identify the specific advice Mrs McCartney failed to follow. He did not do so. To be fair to the Judge, the difficulty arose because of the nature of the charge. The matter may have been clearer had the prosecution proceeded under s 14 of the Act.
[66] For the above reasons I consider there were errors in the Judge’s reasons for concluding Mrs McCartney failed to follow veterinary advice between 22 and 27 June 2016.
[67] The next element of the charge that had to be proved was that the pain Michael was in was of a kind or degree which was unreasonable or unnecessary at the relevant time between 22 and 27 June.
[68] The only prosecution witnesses who saw Michael between 22 June and 27 June were Dr Lucy (on 22 June), and Ms Walmsley, the SPCA inspector, who carried out a very brief observation on 27 June. Dr Weight only saw Michael on 28 June after he had been uplifted.
[69] Dr Lucy did not refer to Michael suffering from any pain. His evidence in re- examination was that he explained to Mrs McCartney that the euthanasia should occur as soon as possible and that was because of his concern for Michael’s condition. He said:
So the fact that he was weak, the fact that he – his physical findings were such that I felt he [was], he was suffering.
But Dr Lucy did not give any evidence of the extent of that suffering to support a finding that it was of a kind or degree that was unreasonable or unnecessary. Relevantly, in his previous evidence he had accepted that while he said Michael should be euthanised as soon as possible, he did not put any particular timeframe on it either with Mrs McCartney when he saw her and Michael, nor when he discussed the matter with Dr Weight on 24 June.
[70] The particularly relevant day must be 27 June because the prosecution accepted that if Michael had been euthanised that day, Mrs McCartney would have complied with the veterinary advice.
[71] It is important to remember that the pain must be of a kind or degree that was unreasonable or unnecessary. Dr Weight gave evidence that when she saw Mrs McCartney and Michael on 25 February 2016 rather than Dr Jolly, she did consider Michael to be in some pain and she spoke about the quality of life and his pain. She qualified that later in her evidence by noting that when she saw Michael in February he was standing and bunting against her hand and while generally thin with a little bit of abdominal pain which was of concern, he was interactive. There is no suggestion
in her evidence and the charge does not suggest that the pain was such that it was unreasonable or unnecessary at that time for example. This was a cat with a medical condition that was in need of ongoing palliative care.
[72] It is necessary to consider Michael’s state on 27 June in relation to the pain, against the background evidence that his condition waxed and waned.14 The only inspection of Michael on 27 June was the cursory inspection by Ms Walmsley, who did not refer to him as being in pain on that day. While she described him as lifeless in Mrs McCartney’s hands and noted she could feel his spine and that he had lesions she did not say that he appeared to be in pain on the day.
[73] Against that there is the evidence of Mr McCartney and particularly Ms Deborah Olliver who did see Michael that day, 27 June. Ms Olliver described him as nudging her shin and playing without any actual signs of pain or distress.
[74] There is further evidence of the pain Michael was suffering on 28 June, but that was after the time period of the charge. Ms Walmsley took Michael to Dr Weight on 28 June. Dr Weight said Michael flinched as she examined his cranial abdomen. She decided to control the pain that she considered he would be in by giving him some buprenorphine, which is a moderately strong opiate pain reliever. She considered he would be suffering considerable pain and that euthanasia would be the “most appropriate course of action”. But that was in the context she believed Dr Lucy’s diagnosis of pancreatic cancer to be correct. Significantly there was the following passage:
Q: And would the lack of evidence of pancreatic cancer on post-mortem examination alter your opinion about suffering pain and distress that you earlier opined was present?
A: I’ve thought long and hard about this and I’m not sure it’s easy to answer. I don’t think that, again, if I go back to the same principles, he had a combination of diseases, diabetes, and chronic pancreatitis of which it’s impossible to treat in some cases. And he was suffering pain that we couldn’t control and we were doing everything we could, so in that sense I don’t think it would’ve changed it, no.
14 Both Drs Jolly and Burrough gave evidence to that effect.
[75] Dr Weight gave evidence as to the physiology of pain for pancreatitis in a cat as being the same as that in a human. She considered that Michael would have been suffering pain from his pancreatitis for quite a significant period of time and his skin would have been certainly itchy, if not painful. But under cross-examination Dr Weight did accept that palliative care was a viable and reasonable option, even considering the symptoms she observed in February 2016 and that pain relief could be provided.
[76] Dr Elias said that he did not have any impression of Michael exhibiting overt signs of pain or distress when he examined him on 28 June. He did not consider it necessary to euthanise him that day. Michael was walking about and took an interest in his surroundings. While Dr Elias realised that Michael had been given an opiate prior he noted that if animals are in pain and distress they lower their head, do not walk about, and they are not comfortable to look at. He would not have expected the pain relief to have made the significant difference he observed.
[77] I consider there is force in Mr Shaw’s submission that whether the pain or distress is unreasonable or unnecessary must be assessed in the context of the lengthy process of palliative care which was coming to an end. Further, an evaluative and contextual assessment is required. It is not sufficient that Michael was suffering from some pain or distress. The pain or distress must be such that in its kind or degree was unreasonable or unnecessary.
[78] Dr Burrough also gave extensive evidence regarding his analysis of the conditions Michael was suffering from and the degree of pain and distress associated with those conditions. He noted that sub-acute to chronic pancreatitis was not a characteristically painful condition. Symptoms could wax and wane or be effectively managed by the pain regime Michael was under. The Judge dismissed Dr Burrough’s evidence outright, with respect, without any particular analysis of it, other than that he had not inspected Michael. But as noted above, Dr Weight had not inspected him on 27 June either.
[79] The observations of both Dr Weight and Dr Elias on 28 June must be considered in the context that it was acknowledged by both prosecution and defence
witnesses that the condition Michael was suffering from could wax and wane from time to time. Even if Michael had been in unreasonable or unnecessary pain on 28 June (on which there is conflicting evidence) that does not support the conclusion he was in such unreasonable or unnecessary pain on 27 June.
[80] The Judge dealt with the matter of the extent of pain briefly.
[85] Based on the defence evidence now called, it would appear that Mrs McCartney took the view that Michael was happy, and coping with trips to town and showing no sign of pain or distress.
[86] I am not convinced that this was the situation by 27 June when I have the evidence of the observation of the SPCA Inspector.
[87] Her brief assessment is reinforced by the clinical examination on 28 June by Dr Weight.
...
[94] The short point is that both Drs Lucy and Weight had considered the time had come to carry out this procedure, whereas Mrs McCartney was still in denial.
...
[96] I am able to look at what was observed by Dr Weight and Dr Lucy in reaching the view that Michael was a very unwell cat and that Mrs McCartney was failing to accept or follow veterinary advice.
...
[100] Based on the evidence of the condition of Michael by 28 June, it was in my view a situation where deferring the termination was causing the animal to suffer unreasonable or unnecessary pain or distress.
[81] With respect, there was no an analysis of the evidence and the relevance of the uncontested evidence of the condition waxing and waning, nor of Dr Burrough’s evidence. As such, the Judge fell into further error.
[82] For the above reasons, I find the Judge’s errors mean that his conclusion the charge involving Michael was proved cannot stand.
The Mary charge
[83] Mrs McCartney was also charged with failing to ensure that Mary received treatment to alleviate unreasonable or unnecessary pain or distress, in breach of s 12(b) of the Act.
[84] The offence was laid under s 12(b) of the Act which provides:
A person commits an offence who, being the owner of, or a person in charge of, an animal,—
...
(b) fails, in the case of an animal that is ill or injured, to comply, in relation to the animal, with section 11; ...
Section 11 provides an obligation to ensure the animal receives treatment that alleviates any unreasonable or unnecessary pain or distress.
[85] The SPCA was required to prove that between 30 May 2016 and 27 June 2016:
(a) Mary was ill; and
(b) that Mrs McCartney failed to ensure that Mary received treatment that alleviated any unreasonable or unnecessary pain or distress being suffered by her.
[86] Again the offence is a strict liability offence with the prosecution not having to prove that Mrs McCartney intended to commit the offence.15
[87] The focus in the present case must be on whether the pain suffered by Mary was unreasonable or unnecessary. Consideration of those issues, particularly whether the pain was unreasonable, must be against the background of the concession by Dr Weight that if a cat had been presented to her with the conditions that Mary had she would have a discussion with the owner and, while she would be concerned that the cat may have been left to an extent before being presented, she would not have called the SPCA in as long as the owners were compliant about ongoing treatment.
15 Animal Welfare Act 1999, s 13(1).
[88] The evidence discloses that the two issues of particular concern in relation to Mary were the lesions on her ears and her inward-turning eyelid (a condition called an entropion). While there was reference to other issues there was no suggestion they caused any more than relatively minor discomfort.
[89] In relation to the lesions on the ears Dr Weight accepted that it would be fair to characterise that pain as relatively mild. That was consistent with Dr Burrough’s evidence which described the level of pain or discomfort from the ear lesions as “relatively mild discomfort”.
[90] The Judge seemed to conclude from the fact that the lesions were ultimately found to be skin cancer and had been evident for some time that the charge was made out but that reasoning did not address in particular whether the pain or distress was unreasonable or unnecessary to the extent it required more active treatment.
[91] The most significant issue was Mary’s inward-turning eyelid, the entropion condition. In relation to that Dr Weight’s evidence was that the condition would lead to pain and discomfort in the moderate range of pain. This was because the cornea is very sensitive and the eyelashes rubbing against it would cause discomfort. Dr Burrough considered the pain would be mild to moderate. On that evidence the Judge was entitled to find the pain unreasonable.
[92] Further even if the pain could be said in its kind or degree not to be unreasonable, it may nevertheless have still been unnecessary. The concept of “unnecessary pain” in this context is problematic. On one view, if the pain could be avoided by treatment then surely it would meet the test of being unnecessary. But again, context is important. It will be important to consider the evidence of the extent of the pain and how long the animal has been suffering from it in order to inform the decision whether it was unnecessary in the overall context of the particular situation. In Mary’s case, the evidence is that she was suffering from the eye condition, which was obvious, for at least five to six weeks. Both Mr and Mrs McCartney were aware of it as they sought to treat it with eyedrops and wipes. Pain of the type described for that length of time was unnecessary, as it could have been treated. While Mr McCartney suggested he thought it might have been caused by grass seed, when it did
not respond to the treatment, medical advice should have been sought. It was no answer to say that Mary did not like travelling in the car, and of course, the offence is a strict liability offence. Subject to the defence, the charge in relation to Mary was made out.
[93] The next issue is whether Mrs McCartney took all reasonable steps to ensure Mary received treatment to alleviate that unnecessary pain. Mr Shaw submitted that Mrs McCartney took steps to alleviate the pain, namely by bathing Mary’s eyes and applying eyedrops. The issue is whether that was sufficient to meet the test of all reasonable steps as required by s 13(2)(a) of the Act. Mr Shaw submitted that “to alleviate” was to make the suffering less severe, and that Mrs McCartney did that. Dr Weight did not directly address this in her evidence. However in Dr Burrough’s view unless there was some pain relief or anti-inflammatory medication included with the eye drops then the bathing of the eye was not likely to have had a major effect on the clinical condition. I take from that evidence he considered that bathing the eyes was not sufficient to alleviate the pain. The difficulty for the defence argument here is that it must have been obvious to Mrs McCartney that the treatment she had provided had not addressed the issue as the condition continued for a period of weeks.
[94] In summary, the evidence supports a conclusion that Mary was suffering from unreasonable and unnecessary pain caused by her eye condition and that Mrs McCartney did not take all reasonable steps to alleviate the condition. It was open for the Judge to have found the charge proven and to have rejected the statutory defence.
The obstruction charge
[95] The principal issue in relation to Mr McCartney’s obstruction conviction is whether the inspector, Ms Walmsley, was lawfully exercising her powers when it is said Mr McCartney obstructed her. It is an element of the offence charged, namely obstructing an inspector in the exercise of her powers that the inspector was lawfully exercising her powers at the time of the alleged obstruction. Mr McCartney could not be obstructing her if she was not acting in the lawful course of that duty at the time of his actions which are said to amount to obstruction. It is the defence case that at the relevant time she was in breach of her authority under the Act.
[96] In attending the McCartneys’ property in response to Dr Weight’s call the SPCA officers were exercising their powers under s 127 of the Act. In particular, s 127 provides:
(1) Subject to subsections (3) and (4), an inspector may—
(a) in the case of any land, premises, or place, at any reasonable time or times; and
(b) in the case of any vehicle, aircraft, or ship, at any reasonable time or times at which the vehicle, aircraft, or ship is stationary,—
enter, without warrant, that land or those premises or that place or any such vehicle, aircraft, or ship for the purposes of inspecting any animal on or in that land or those premises or that place or in or on any such vehicle, aircraft, or ship.
...
(3) No inspector may, under subsection (1), enter in or on any dwelling or marae unless he or she is authorised to do so by a search warrant issued under section 131.
[97] The section authorised the SPCA officers to enter the McCartneys’ land and premises for the purposes of inspecting Michael but, in the absence of a search warrant, it did not authorise them to enter in or on the McCartney’s dwelling.
[98] The issue is whether at the time Mr McCartney confronted SPCA Inspector Walmsley she was “in or on a dwelling” for the purposes of the Act. If so, Mr McCartney was entitled to tell her to leave as she had no authority to enter in or on a dwelling without a search warrant.
[99] At the time of the confrontation Mr McCartney was on the verandah of the property. Inspector Walmsley accepts she was on the step of the verandah. Was she, in standing on the step, in or on the dwelling and therefore in breach of s 127(3)? Dwelling is not defined in the Act. The Act uses the word “dwelling” in s 127 but “dwellinghouse” in s 145(2) in relation to enforcement. That may simply be a drafting error. There seems to be no particular reason to make a distinction between the two
concepts for the different sections, but if there is to be a distinction, one would expect dwelling to be of broader application than dwellinghouse.
[100] The words “dwelling” and “dwellinghouse” are not terms of art and may carry different meanings depending on their context and the purpose of the legislation they are found in. The ordinary meaning of dwelling as a “place of residence”,16 a “place where someone lives”,17 or “a shelter (such as a house) in which people live”,18 does not directly assist in determining the physical boundaries of a dwelling in the present context.
[101] The definitions of “dwelling” and “dwellinghouse” within legal dictionaries reflect variations in meaning. For example, in Mozley and Whiteley’s Law Dictionary “dwelling” is defined as:19
A building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses, and appurtenances belonging to or usually enjoyed with that building or part of it. It implies a building used or capable of being used as a residence by one or more families and provided with all the necessary parts and appliances, e g, floors, staircases, windows, etc.
[102] Statutory definitions of dwelling also vary depending on context. “Dwelling” under the Goods and Services Tax Act 1985 includes “any appurtenances belonging to or used with the premises”. Under the Housing Act 1955 “dwelling” includes “every garage, shed, and other building used in connection therewith; but does not include the land appurtenant to a dwelling”. Under s 17A of the Crimes Act 1961 “dwellinghouse” included “a building or other structure, or part of a building or other structure, that is used by the occupant principally as a residence”.
[103] A review of the authorities confirms, as one might expect, that the meaning to be ascribed to dwelling must be ascertained from the text of the particular Act and in light of its purpose.
19 J E Penner Mozley and Whiteley’s Law Dictionary (12th ed, Butterworths, London, 2001).
[104] Mr Shaw referred in particular to the cases of Rose v Police and New Zealand Police v O’Byrne. 20 I agree with Mr Vanderkolk’s submission that those decisions are not particularly helpful. They considered what was meant by the phrase “near a dwellinghouse” under s 48 of the Arms Act 1983. In Rose v Police Savage J discussed the meaning of “person” and concluded that it meant someone:
... linked to the dwellinghouse in the sense of being ... there; and being there means in the dwellinghouse, including its adjoining outhouses such as a garage or shed, and the immediate surrounds of the garden.
[105] Read in context it does not appear the Judge was offering a definition of “dwellinghouse” and even if he were, his words were chosen in light of the legislative purpose of the Arms Act.
[106] But nor do I consider Mr Vanderkolk’s reference to the meaning of dwelling by reference to criminal sentencing decisions is of assistance in the present case.
[107] In R v Summers the Court of Appeal interpreted the purpose of the powers in s 127 of the Animal Welfare Act as:21
[37] The relevant provisions of the Animal Welfare Act are necessarily focused on the welfare of animals and, in the context of that focus, there is necessarily some limitation on the property rights and privacy expectations of animal owners. Section 127 strikes something of a balance with the prohibition on entry into a dwelling or marae without a warrant. ...
[108] In the context of the welfare of animals, it is relevant that animals are commonly kept near houses, in yards or gardens or on land appurtenant to the home. These external areas are areas where the occupants of a home cannot claim to have significant privacy interests, or at least not when balanced against the purposes of the Act. To find otherwise would be to unnecessarily thwart the purpose of the legislation in protecting and promoting the welfare of animals. I consider the purpose of the Act supports a conclusion that the authority under s 127 authorises the inspector to enter yards, gardens, kennels and land appurtenant to the principal dwelling of the property.
20 Rose v Police and New Zealand Police v O’Byrne, above n 5.
21 R v Summers CA356/04, 8 December 2004.
[109] However, in the present case, the step of the verandah was part of the dwelling occupied by Mr and Mrs McCartney as their home. On any view of it the open verandah and the step leading to it were part of the private sphere of the McCartney’s home. They are physically distinct from the surrounding yards, garden, lawn and even pathways leading to the steps, which are areas where the interests of privacy would carry less weight.
[110] The inspector’s movement onto the step constituted an unauthorised entry on the appellants’ dwelling. Mr McCartney was not obstructing her in the exercise of a power under the Act when he told her to leave the property because she was no longer acting in accordance with her authority. Section 127(3) requires inspectors to obtain a search warrant if they wish to enter in or on a dwelling.
[111] Mr Vanderkolk suggested that in the alternative Ms Walmsley had an implied licence to remain on the property despite Mr McCartney asking her to leave. Members of the public, police officers and, he submitted animal welfare inspectors, have an implied licence to go to the front door of private premises to make inquiry of an occupier for any reasonable purpose.22
[112] Mr Vanderkolk’s submission was that, by going and getting Michael from inside the house and bringing him out so that Ms Walmsley could see him Mrs McCartney had effectively extended the implied licence for Inspector Walmsley to be on the property. The implied licence could not be revoked as one of the co-owners of the property present at the time had effectively co-operated with the Inspectors.
[113] This case involves a charge of obstruction. The SPCA was required to establish under s 159(1) that the inspector was acting in the exercise of a power or in the performance of a duty “under this Act”, at the time when the defendant is said to have obstructed or hindered the inspector. As the inspector had unlawfully entered on or in the McCartneys’ dwelling she was no longer acting in the exercise of a “power” under the Act. She had no authority to remain on the step. Mr McCartney was entitled to tell her to leave. To do so, even in the terms he used, was not obstruction of the
22 Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145 at [14].
inspector in the exercise of a power under the Act. Implied licence has no relevance to the exercise of the officer’s powers under the Act.
[114] The Judge’s conclusion that there was no illegal entry on or in the dwelling by Inspector Walmsley standing on the verandah was a finding of law, which for the reasons given above, I depart from. As Ms Walmsley was acting in excess of her authority and not exercising a lawful power under the Act at the time it is said Mr McCartney obstructed her, the charge of obstruction must fail. Mr McCartney’s appeal against conviction for obstruction must be allowed.
Result
[115] The appeal is allowed in part.
[116] Mrs McCartney’s conviction and sentence in relation to Michael is quashed. The fine and reparation associated with Michael’s treatment and euthanasia are set aside.
[117] The witnesses’ fees awarded for Dr Burger and for other witnesses relating to the Michael and obstruction charges are set aside.
[118] Mrs McCartney’s conviction and sentence in relation to Mary is upheld. The reparation relating to the medical treatment for Mary stands.
[119] Mr McCartney’s conviction and sentence for obstruction is quashed.
[120] Mr Vanderkolk suggested the Court should order a retrial if the appeal was allowed. Given the matters covered in this judgment, and the length of time the issue has been before the Court, I am satisfied that a retrial is not warranted and would not be in the interests of justice.
Venning J
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/2624.html