Evans v Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) [2024] NZHC 1089 (6 May 2024)

Last Updated: 22 May 2024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-529 [2024] NZHC 1089

BETWEEN	COLIN FREDERICK EVANS Plaintiff
AND	THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA) Defendant

Hearing:	23 April 2024
Appearances:	A Simperingham for Appellant R W Belcher and A Mitra for Respondent
Judgment:	6 May 2024

JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by Justice Lang On 6 May 2024 at 12 noon

Registrar/Deputy Registrar Date:..............................

Solicitors/counsel:

Luke Cunningham Clere, Wellington Woodward Chrisp, Gisborne

EVANS v THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA) [2024] NZHC 1089 [6 May 2024]

• [1] Following a Judge-alone trial in the District Court, Judge N R Dawson found Mr Evans guilty on 30 charges laid by the Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) under ss 12(a) and 29(a) of the Animal Welfare Act 1999 (the AWA).¹

• [2] The charges under s 12(a) alleged that Mr Evans had failed to meet his obligation under s 10 of the AWA to ensure that the physical, health and behavioural needs of horses in his care were met in a manner that was in accordance with both good practice and scientific knowledge. The charges laid under s 29(a) alleged that Mr Evans had ill-treated the horses and thereby caused them to suffer unreasonable and/or unnecessary pain and distress.

• [3] Mr Evans appeals against conviction. A central feature of the evidence adduced by the SPCA at trial comprised film footage it had obtained using a surveillance device warrant issued under s 49 of the Search and Surveillance Act 2002 (the SSA). Mr Evans contends that the SPCA obtained this evidence unlawfully and that it should have been excluded at trial. He says that admission of the evidence has created a real risk that the outcome of the trial was affected. He therefore contends a miscarriage of justice has occurred in terms of s 232(2)(c) of the Criminal Procedure Act 2011. He seeks an order that the convictions be set aside.

• [4] Mr Evans also advanced grounds of appeal alleging that the Judge had wrongly permitted the charges to be amended during the trial and failed to take into account evidence given by an expert witness called by the defence. In his oral submissions Mr Simperingham effectively conceded that counsel for the SPCA had answered these arguments in their written submissions to this Court. I therefore do not propose to deal with those arguments.

Background

• [5] For present purposes, it is only necessary to set out the background in broad terms. Between March 2017 and February 2018, the SPCA investigated complaints made by members of the public concerning the manner in which Mr Evans was caring

¹ Royal Society for the Prevention of Cruelty to Animals (SPCA) v Evans [2023] NZDC 13510.

for horses at stables situated on a property at Dairy Flat to the north of Auckland. This led SPCA inspectors to visit the stables in April and May 2017 and again in February 2018. The inspections led to the SPCA becoming concerned regarding the manner in which Mr Evans was caring for the horses.

• [6] On 8 June 2018, the SPCA obtained a surveillance device warrant from a Judge in the Manukau District Court. It then arranged for a technician to install a closed- circuit television (CCTV) camera in the stables. This occurred on an occasion when SPCA animal welfare officers inspected the stables on 14 June 2018. The surveillance by the CCTV camera provided a full view of the interior of the stables. From 14 June 2018 it was undertaken continuously for 24 hours each day over a 23-day period. During this period SPCA officers returned to the stables on several occasions to carry out further inspections. They took the opportunity during these visits to download film footage from the CCTV camera.

• [7] On 31 July 2018, the SPCA executed a search warrant at the property. They seized 13 horses under s 133(2) of the AWA. These were fostered out at various other properties.

• [8] The SPCA subsequently laid 58 charges against Mr Evans alleging offences under the AWA. Mr Evans elected trial by a Judge sitting without a jury.

• [9] Prior to trial Mr Evans objected to the admissibility of the CCTV film footage. He contended the SPCA had obtained it in breach of his right under s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) to be free from unreasonable search and seizure. The SPCA accepted it had obtained the evidence unlawfully but contended that the evidence should nevertheless not be excluded under s 30(4) of the Evidence Act 2006. Section 30(4) requires the Court to exclude improperly obtained evidence if this is proportionate to the impropriety that has occurred.

• [10] In a pre-trial ruling delivered on 6 July 2022, Judge A M Manuel held that exclusion of the evidence would not be a proportionate response to the impropriety that had occurred.² She therefore ruled the evidence admissible at Mr Evans’ trial.

² Auckland SPCA v Evans [2022] NZDC 12785 at [39].

• [11] The trial began before Judge G A Fraser on 15 November 2022. By 17 November 2022 the number of charges had been reduced to 49. Some charges laid under s 28 of the AWA had also been withdrawn and replaced by less serious charges laid under s 12(a). This change in circumstances led Judge Fraser to consider a further application by Mr Evans for exclusion of the CCTV film footage. Judge Fraser held that the evidence was admissible in a ruling delivered on 17 November 2022.³ Four days later, on 21 November 2022, Judge Fraser ruled that the trial should be aborted due to late disclosure of evidence by the prosecution.

• [12] A second Judge-alone trial commenced before Judge Dawson on 2 May 2023. By the time this trial concluded, the number of charges had been reduced to 44. Of these, the Judge found that 30 had been proved beyond reasonable doubt.

The SSA regime

• [13] Section 3(1) of the SSA defines “trespass surveillance” as follows:

trespass surveillance means surveillance that involves trespass to land or trespass to goods

• [14] Trespass surveillance most commonly occurs when an agency investigating the commission of offences installs a surveillance device, either visual or audio, within premises to record events that occur within those premises. In the present case both parties accept that the continuous use of a CCTV camera to record the events that occurred inside Mr Evans’ stables over a period of 23 days constituted trespass surveillance in terms of this definition.

• [15] Section 45(1) of the SSA restricts the circumstances in which an agency may seek a surveillance device warrant that authorises trespass surveillance:

45 Restrictions on some trespass surveillance and use of interception device

(1) Nothing in this subpart authorises any enforcement officer to undertake trespass surveillance (other than by means of a tracking device) except in order to obtain evidential material in relation to an offence—

³ Auckland SPCA v Evans [2022] NZDC 22580.

	(a)	that is punishable by a term of imprisonment of 7 years or more; or
	(b)	against section 16(4), 16A, 42A, 42B, 43, 43AA, 44, 44AA, 44A, 45, 50, 50A, 50AA, 50B, 50C, 50CA, 50D, 51, 53A(2), 54, 55, or 55A of the Arms Act 1983; or
	(c)	against section 25, 26, or 70 of the Psychoactive Substances Act 2013; or
	(d)	against section 308A of the Crimes Act 1961.
...

• [16] Section 46 of the SSA then provides:

46 Activities for which surveillance device warrant required

(1) Except as provided in sections 47 and 48, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:

...

(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:

(d) use of a surveillance device that involves trespass to land or trespass to goods:

(e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—

(i) 3 hours in any 24-hour period; or

(ii) 8 hours in total.

...

• [17] Section 49 of the Act sets out who may apply for a surveillance device warrant and what information an applicant must provide in support of an application for a surveillance device warrant:

49 Application for surveillance device warrant

(1) An application for a surveillance device warrant may be made only by an enforcement officer, and must contain, in reasonable detail, the following particulars:

(a) the name of the applicant:

(b) the provision authorising the making of an application for a search warrant in respect of the suspected offence:

(c) the grounds on which the application is made:

(d) the suspected offence in relation to which the surveillance device warrant is sought:

(e) the type of surveillance device to be used:

(f) the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance:

(g) a description of the evidential material believed to be able to be obtained by use of the surveillance device:

(h) the period for which the warrant is sought.

(2) If the enforcement officer cannot provide all the information required under subsection (1)(f) and (g), the application must instead state the circumstances in which the surveillance is proposed to be undertaken in enough detail to identify the parameters of, and objectives to be achieved by, the proposed use of the surveillance device.

(3) The applicant must disclose in the application—

(a) the details of any other applications for a search warrant or a surveillance device warrant that the applicant knows to have been made within the previous 3 months in respect of the person, place, vehicle, or other thing proposed as the object of the surveillance; and

(b) the result of that application or those applications.

(4) The applicant must, before making an application for a surveillance device warrant, make reasonable inquiries within the agency in which the applicant is employed or engaged for the purpose of complying with subsection (3).

(5) Despite subsection (1), an application for a surveillance device warrant seeking authority to use visual trespass surveillance or an interception device may only be made by—

(a) a constable; or

(b) an enforcement officer employed or engaged by a law enforcement agency that has been approved by an Order in Council made under section 50.

(Emphasis added)

• [18] Section 50(1) of the SSA permits the Governor-General, by Order in Council made on the recommendation of the Minister of Justice, to approve a specified law enforcement agency other than the Police to carry out visual trespass surveillance. Section 50(4) provides that, for the purposes of s 50, the only specified law enforcement agencies are the New Zealand Customs Service and the Department of Internal Affairs.

• [19] Independently of the SSA, animal welfare inspectors have the power under s 131(1)(a) and (c) of the AWA to obtain search warrants to search addresses, vehicles and other places where they believe offences under the AWA are being committed or where there may be evidence of such offences. They may also obtain a warrant under s 131(1)(b) where they have reasonable grounds to believe the suffering of any animal may be prevented or mitigated.

• [20] Animal welfare inspectors also have the ability to apply for some types of surveillance device warrants under the SSA. This flows from s 3(1) of the SSA, which defines “enforcement officer” for the purposes of the SSA as follows:

enforcement officer means—

(a) a constable; or

(b) any person authorised by an enactment specified in column 2 of the Schedule, or by any other enactment that expressly applies any provision in Part 4, to exercise a power of entry, search, inspection, examination, or seizure

• [21] The schedule to the SSA provides as follows:

Schedule

Powers in other enactments to which all or part of Part 4 of Search and Surveillance Act 2012 applies

...
Column 1	Column 2	Column 3	Column 4
Animal Welfare Act 1999	131(1) and (2)	Constable or animal welfare	All (except that
		inspector may obtain and execute	sections 118 and
		search warrant to search for	119 apply to
		evidence of offence against Animal	constables only)
		Welfare Act 1999 or to prevent or
		investigate suffering of animal

136(1) Constable or animal welfare Subparts 1, 5, 6, 7, inspector may dispose of 9 and 10

property seized under search warrant issued under section 131 of Animal Welfare Act 1999 or dispose of any animal taken under section 137 of that Act.

• [22] As can be seen from the excerpt from the Schedule set out above, animal welfare inspectors are empowered to exercise all the powers contained in Part 4 of the SSA other than those in ss 118 and 119. The provisions dealing with surveillance device warrants are situated in Part 4 of the SSA. Sections 118 and 119 of the SSA are not relevant for present purposes.

• [23] To summarise, animal welfare inspectors have the ability to apply for a surveillance device warrant under s 49 of the SSA. However, they cannot apply for a surveillance device warrant that authorises trespass surveillance. The only persons who may apply for such a warrant are police officers and enforcement officers employed by the New Zealand Customs Service and the Department of Internal Affairs.⁴

• [24] Further, jurisdiction only exists to obtain a surveillance device warrant that authorises trespass surveillance where the restrictions contained in s 45(1) do not apply. This means the applicant for such a warrant must be seeking to obtain evidential material relating either to an offence punishable by seven years imprisonment or one of the offences specified in s 45(1)(b) or (c). These do not include offences under the AWA.

• [25] Finally, s 51(b) of the SSA makes it a condition for the issuing of a surveillance device warrant that the restrictions contained in s 45 do not prevent the issuing of a surveillance device warrant in the circumstances. In practical terms this imposes an obligation on both the applicant for a surveillance device warrant and the Judge who determines the application to ensure that the restrictions in s 45 do not apply.

⁴ Search and Surveillance Act 2012, s 50(4).

The surveillance device warrant in the present case

• [26] The application for a surveillance device warrant in the present case was contained in an affidavit sworn by an animal welfare inspector. This described in considerable detail the inspections that the SPCA’s animal welfare officers had carried out at the stables between 5 April 2017 and 26 March 2018. Photographs taken during these were included. The affidavit also described interactions the animal welfare officers had had with Mr Evans. The application then set out the officer’s overall findings in relation to horses kept at the stables. The application concluded:

Orders sought

A surveillance device warrant granted in order to obtain and fix a surveillance device at a property for 30 days in order to capture evidence. I have reasonable grounds to suspect that the offence of failure to ensure that the physical health and behavioural needs of the horses are met in a manner that is in accordance with good practice and scientific knowledge under S12(a) of the Animal Welfare Act 1999 is being committed.

• [27] The SPCA provided a draft surveillance device warrant along with the application. It had earlier sought advice about these from the law firm at which the Crown Solicitor at Manukau is a director.

• [28] A copy of the warrant that a District Court Judge signed on 8 June 2018 is annexed to this judgment for convenience. As can be seen, paragraph 3.1 of the warrant authorised the use of visual surveillance devices, not involving trespass, namely video cameras. This properly reflected the fact that the SPCA is not entitled to apply for a surveillance device warrant that authorises trespass surveillance. However, paragraph 3.2 muddied the waters by authorising the SPCA to undertake surveillance of both the interior and exterior of the stables. The SPCA could only undertake visual surveillance of the interior of the stables if it could do so from outside Mr Evans’ property. Importantly, however, paragraph 3.5 wrongly authorised the SPCA to enter the stables, and to use reasonable force to do so, for the purpose of installing, maintaining or removing the surveillance device. It also authorised the SPCA to enter the stables to access and use electricity to power the device.

The impropriety

• [29] In effect, the surveillance device warrant authorised the SPCA to engage in trespass surveillance when it had no legal right to engage in that type of surveillance.

• [30] The SPCA did not ultimately use force to install or maintain the CCTV camera because it used otherwise lawful inspections of the stables to mask those activities. However, in doing so the SPCA accepts that it went beyond the purposes for which it was lawfully permitted to enter onto the property. The SPCA therefore accepts it did not obtain the CCTV film footage lawfully.

Did the surveillance constitute a “search”?

• [31] It is appropriate to note at this point that the SPCA accepts, as it realistically must, that the continuous use of the CCTV camera to film activities that occurred in the stables over a 23-day period constituted a “search” for the purposes of s 21 of NZBORA. That conclusion is inescapable having regard to way in which the use of cameras in this way has been categorised in cases such as Hamed v R⁵ and Tamiefuna v R.⁶ Those cases establish that the act of photographing or filming a person will constitute a search for the purposes of s 21 if the person being filmed had a reasonable expectation of privacy in the circumstances in which the photographing or filming occurred.⁷ That issue must obviously be answered in the affirmative in the circumstances of the present case.

Was the search nevertheless unreasonable?

• [32] Although the SPCA accepts that the evidence was obtained unlawfully, it nevertheless argues that the search was not unreasonable as is required for a breach of s 21 of NZBORA. It relies for this submission on the following passage from Tamiefuna v R:⁸
  • [43] Blanchard J [in Hamed v R] went on to state that where a search is found to have taken place, the next question is whether the search was reasonable. The answer to that second question would depend on the

⁵ Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

⁶ Tamiefuna v R [2023] NZCA 163, [2023] 3 NZLR 109.

⁷ Hamed v R, above n 4, at [163] and [167] per Blanchard J; Tamiefuna v R, above n 5, at [58].

⁸ Tamiefuna v R, above n 5.

degree of intrusion into privacy, together with the nature of the place or object searched, and the reasons why the search took place.⁹

• [44] The majority [in Hamed] also held that an unlawful search would generally amount to an unreasonable search, and that this applied to all cases except where the breach was minor or technical or where the police had a reasonable but erroneous belief that they were acting lawfully.¹⁰ On the facts, it appears that the Supreme Court unanimously held that the appellants had a reasonable expectation of privacy in respect of the surveillance and searches that had taken place on private land but,¹¹ by a majority, held this expectation did not extend to the surveillance of traffic on the public road.¹²

(Emphasis added)

• [33] For the SPCA, Mr Belcher relies on the italicised portion of the passage set out above from Tamiefuna. He submits that, although the breach in the present case was not minor or technical, the SPCA nevertheless had a reasonable albeit erroneous belief that it was acting lawfully.

• [34] The SPCA undoubtedly considered it was acting lawfully in obtaining and executing the warrant. Its solicitors were also obviously of the same view. However, their understanding was the product of a joint failure to appreciate that the SPCA had no legal right to seek a surveillance device warrant that authorised it to enter the stables to install, maintain and remove the CCTV camera. As an agency it did not have that right and the evidence that it sought to obtain did not relate to offending for which a surveillance device warrant of that type could be granted.

• [35] Any reasonable investigating agency that seeks a surveillance device warrant involving trespass surveillance must first ensure the Court has jurisdiction to make the orders it seeks. That is particularly so where, as here, the agency has never applied for a surveillance device warrant in the past. The legal advice that the SPCA sought related to the form of the application and warrant and the manner in which the SPCA intended to install the CCTV camera. It did not directly address the issue of whether the Court had jurisdiction to grant a surveillance device warrant authorising trespass

⁹ Hamed v R, above n 4, at [172].

¹⁰ At [174] per Blanchard J, [226] per Tipping J, and [263], n 265 per McGrath J. Gault J did not explicitly comment on this point, though he agreed with Blanchard J's reasons for determining that the appellants' rights under s 21 were breached: at [281].

¹¹ At [8] per Elias CJ, [171] and [176]—[178] per Blanchard J, [227] per Tipping J, [263] per McGrath J and [281] per Gault J.

¹² At [171] and [178] per Blanchard J, [263] per McGrath J and [281] per Gault J.

surveillance. This may be why the SPCA’s solicitors did not draw the SPCA’s attention to the fact that there was no jurisdiction for the Court to issue a surveillance device warrant that authorised the SPCA to enter Mr Evans’ premises to install, maintain and remove the surveillance device.

• [36] Given those circumstances, I am satisfied that the resulting search was unreasonable. It follows that the evidence was obtained in breach of s 21 of NZBORA. This means the Court is required to undertake the balancing process mandated by s 30 of the Evidence Act 2006 to ascertain whether exclusion of the evidence is proportionate to the impropriety that has occurred.

The balancing act under s 30 of the Evidence Act 2006

• [37] Section 30(2), (3) and (4) of the Evidence Act 2006 provide as follows:

(2) The Judge must—

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence:

(d) the seriousness of the offence with which the defendant is charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence.

(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

• [38] In undertaking this exercise in the District Court, Judges Manuel and Fraser considered that, although the SPCA acted in a manner that breached important rights, nevertheless the breaches were not deliberate or reckless. Rather, they resulted from a mistake or confusion on the part of the SPCA. In addition, Mr Evans’ expectation of privacy in the stables was considerably less than it would have been in his house.

• [39] Both Judges noted that the evidence obtained by the SPCA was well documented and highly probative of the charges. They also considered that the sheer number and nature of the charges meant that they involved allegations of serious offending of its type. Although other investigatory techniques may have been available, the Judges considered that these were unlikely to lead to such probative evidence being obtained.

• [40] Balancing these factors against the need for a credible criminal justice system, both Judge Manuel and Judge Fraser concluded that exclusion of the evidence would be disproportionate to the impropriety that had occurred. They therefore ruled the evidence admissible.

• [41] It is now necessary for me to engage in the same balancing process myself.

The importance of any right breached by the impropriety and the seriousness of the intrusion on it

• [42] The rights that the SPCA breached were Mr Evans’ rights to privacy and to be free from unreasonable search in the stables where he housed his horses. Privacy interests in this context are to be assessed objectively and not having regard to the particular use that may be made of premises by the person whose privacy rights have

been infringed.¹³ The focus here is on the inherent privacy interest of the area being searched.¹⁴

• [43] Although the stables were some distance from the road, they were part of a shared facility. The facility was visited on a reasonably regular basis by persons who had an involvement with Mr Evans, his horses, and a nearby racetrack that was used for training purposes. The area around the stables was therefore not used exclusively by Mr Evans.

• [44] Viewed objectively, the stables were Mr Evans’ place of work. They contained stalls where the horses lived along with locked storage areas. It could be anticipated that he would only be present at the stables whilst he was undertaking activities associated with the care of his horses. Although there was evidence that Mr Evans had stayed overnight at the stables on occasions it appears that he largely lived elsewhere. Taking these factors into account I agree with the Judges in the District Court that the right to expect privacy in this context was considerably less than would apply to a dwelling house or a residential address.

• [45] Further, the installation, maintenance and removal of the CCTV camera did not involve a covert breaking and entering of the stables as the warrant purported to allow. SPCA inspectors were lawfully on the premises when these activities occurred. To that extent the impropriety did not involve as great an intrusion on Mr Evans’ privacy as it otherwise may have.

• [46] On the other hand, the SPCA acknowledges that it exceeded its lawful powers when it used the opportunities presented by lawful inspections to covertly engage in unauthorised activities. The most serious aspect of the unauthorised intrusion lies in the fact that it involved the filming of activities that occurred inside the stables on a continuous basis for a 23-day period.

¹³ R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [63] and [114].

¹⁴ W v R [2017] NZCA 522 at [38].

The nature of the impropriety and, in particular, whether it was deliberate, reckless or done in bad faith

• [47] Mr Simperingham does not suggest that the SPCA acted in bad faith. Nor could he realistically do so. The SPCA was investigating complaints it had received from members of the public to ensure that horses in Mr Evans’ care were not suffering or being ill-treated. Having visited the stables in 2017 and early 2018 they discovered there was cause to be concerned on several fronts. These concerns were not alleviated despite follow-up visits and the issuing of several notices to Mr Evans under ss 129 and 130 of the AWA.

• [48] The SPCA also took the precaution of referring the draft application and warrant to its solicitors to ensure there were no issues arising out of it. Unfortunately, for the reasons I have already discussed, this did not have the desired effect. However, there is no suggestion that the SPCA or its solicitors knew there was a risk that what they were doing was unlawful. Had that been the case their actions would have been reckless. Their culpability lies in failing to appreciate that the wording used in the warrant authorised the use of trespass surveillance when the SPCA had no right to apply for a warrant authorising this. The impropriety has therefore occurred through negligence on the part of the SPCA, rather than through deliberate or reckless conduct.

The nature and quality of the improperly obtained evidence

• [49] It is common ground that the evidence obtained by the surveillance was central to the prosecution case. It provided a means by which the SPCA could prove important elements of the charges. Mr Belcher summarised the matters identified using the CCTV film footage in his written submissions as follows:¹⁵

(a) The horses suffered from neglect, inadequate and improper food and inadequate or no exercise.

(b) On the majority of the days, the horses remained in their stalls. Four horses were not let out of their stalls for the entire three-week period of surveillance. Judge Dawson found, “[t]he treatment of these horses, in particular the four horses that did not leave their stalls at all, can be likened to the treatment of battery hens rather than attending to the welfare needs of intelligent sentient animals.”

¹⁵ Footnotes omitted.

(c) Several horses were tied up for excessive periods, unable to lower their heads to any degree to eat food or drink water at ground level.

(d) Periods of 12 hours of starvation were usual. Periods of 30 and 42 hours without hay were observed.

(e) The horses received (on average) only 16% of the minimum daily recommended amount of roughage.

(f) All horses were observed eating their faeces (coprophagia) eating their sawdust bedding, chewing the wood at the back of their stalls and exhibiting depression and lethargy.

(g) Mr Evans was seen striking some of the horses, including with his arm, and hitting them with sturdy buckets, a broom and a shovel; in some cases causing significant distress.

• [50] I agree with the assessment of both Judges in the District Court that the evidence obtained through the film footage was not only compelling but also reliable to the point where it could not be refuted. It provided an independent empirical means by which the allegations made by the SPCA could be assessed.

The seriousness of the offending for which the SPCA sought to obtain evidence

• [51] I accept that any offending involving allegations involving the neglect or wilful ill treatment of animals must be viewed as moderately serious in general terms. However, it is also necessary in the present context to take into account two other factors. The first is the maximum penalty for the offences that the SPCA was investigating. Some of the charges that the SPCA withdrew during the first trial before Judge Fraser carried a maximum penalty of five years imprisonment. However, by the end of the trial the maximum penalty for all the remaining charges was 12 months imprisonment. The lower culpability of the charges laid under s 12(a) of the AWA is also reflected in the fact that they are strict liability offences for which the prosecution is not required to prove intent.¹⁶ The defendant may, however, escape conviction by establishing that he or she took all reasonable steps to comply with s 12(a).¹⁷

• [52] By comparison, s 45(1)(a) of the SSA requires the applicant to be seeking to obtain evidence to support charges carrying a maximum penalty of not less than seven

¹⁶ Animal Welfare Act 1999, s 13(1)

¹⁷ Section 13(2)(a)(i).

years imprisonment. The alleged offending that the SPCA was investigating in the present case was therefore well below the statutory threshold imposed by s 45(1)(a).

• [53] Secondly, the overall culpability of the offending may be gauged by the fact that, when Judge Dawson sentenced Mr Evans on 24 August 2023, he noted that the offending was at the medium level.¹⁸ This prompted the Judge to select a starting point of 180 hours community work.¹⁹ This demonstrates that, although the charges may be regarded as moderately serious offending of a particular type, they fall at the lower end of the scale so far as criminal culpability is concerned.

Were there any other investigatory techniques not involving any breach of the rights that were known to be available but were not used?

• [54] The only other investigatory technique that the SPCA could have used was to carry out further inspections and/or to execute search warrants at the stables. However, these techniques would not have captured images of Mr Evans ill-treating the animals because he would not have acted in this way if the inspectors had been present. Like the Judges in the District Court, I consider there were limited other alternative investigatory techniques available.

The existence of alternative remedies

• [55] I agree with the Judges in the District Court that there is no alternative remedy to exclusion that could address the impropriety that has occurred.

Assessment

• [56] Having reached these conclusions it is necessary for me to stand back and determine whether exclusion of the CCTV footage is a proportionate response to the impropriety that has occurred. In this context I am required by s 30(2)(b) of the Evidence Act to take into account the need for an effective and credible system of justice.

¹⁸ R v Evans [2023] NZDC 18281 at [4].

¹⁹ At [14]. The Judge also made orders requiring Mr Evans to pay the sum of $16,909.12 towards the costs of the prosecution and disqualifying him under s 169 of the AWA from owning or exercising control over horses for a period of seven years from 31 July 2018.

• [57] Weighing in favour of admissibility is the fact that the impropriety occurred through negligence on the part of the SPCA and its advisers rather than recklessness or deliberate disregard of the requirements of the SSA. The lesser expectation of privacy in what is effectively a place of work similarly supports the argument for admissibility, as does the undoubted probative value of the evidence. Weighing against these considerations is the continuous length of time over which the unauthorised surveillance occurred.

• [58] However, I consider the determinative factor in the present case to be the fact that the SPCA as an agency did not have the power to seek a surveillance device warrant that authorised it to engage in trespass surveillance. Nor did the offending that it was investigating qualify for the issue of such a warrant. Had the attention of the Judge who granted the application been drawn to either of these issues there could only have been one outcome. The Judge would inevitably have declined the application on the basis that there was no jurisdiction to grant the orders that the SPCA sought.

• [59] Parliament has chosen to impose strict criteria for surveillance device warrants that authorise trespass surveillance and the use of intercept devices. This no doubt reflects the fact that these types of surveillance are extremely intrusive. To address this issue Parliament has framed the SSA in a manner that makes it clear that trespass surveillance should only be undertaken by three nominated enforcement agencies. Furthermore, those agencies may only undertake such surveillance when they are seeking to obtain evidence about offending of the type specified in s 45 of the SSA. The offending the SPCA was investigating fell well outside the scope of offences for which a surveillance device warrant could be issued. These factors lead me to conclude that, if the evidence in the present case was to be admitted, it would significantly undermine Parliament’s clear intention to impose significant restrictions on the use of trespass surveillance.

• [60] It follows in my view that admission of the CCTV evidence would reduce the credibility of the criminal justice system. I therefore consider that it ought to have been excluded. This was the only appropriate response to the impropriety that occurred in the present case.

Result

• [61] For the reasons I have given I propose to allow the appeal against conviction. However, before formally setting aside the convictions on all charges, I consider it appropriate to give counsel for both parties the opportunity to review the evidence to ensure that they are satisfied that this is a correct response for all charges. There may be some charges that did not depend upon the CCTV footage. If that is the case the convictions on those charges should not be set aside.

• [62] I would be grateful if counsel could file a joint memorandum no later than 9 May 2024 advising me of the outcome of their review of the evidence. If there is any disagreement between them, I will arrange for the Registrar to convene a telephone conference so that the issue in dispute can be determined.

Lang J

Appendix 1

visual surveillance devices, not involving trespass, namely video cameras.

• 3.2 By means of the devices, to undertake surveillance of:

The interior and exterior of the stable building located at 'Premier Equine Services' 1235 Landfill Access Road, Dairy Flat, as well as paddocks and yards proximate to the stable buiïdina, and any facilities sttached to the building.

• 3.3 By means of the devices, to obtain e¥idential material n respect of the suspected offence, namely video camera footage showing:

• horses not being exercised;
• horses not being provided feed;
• horses not being provided adlib hay/roughage as previously instructed and as required to maintain good health; and
• horses displaying coprophagia and/or other abnormal behaviours.

• 3.4 To use any assistance that io reasonable ìn the circumstanceB tO carry out the activities authorised by this warrant.

• 3.5 To do any or all of the following, using any tarce that is reasonable in the circumstances to do so, in order to İP9täll, maintain or remove the surveillance devices or to access and use electricity to power the surveillance device:

enter the premises situated at 'Premier Equine Services' - 1235 Landfill Access Road, Dairy Flat.

4. This warrant is subject to the following conditions:

(a) A surveillance devtce warrant report must be provided within one month after the expiry of the period for which this warrant is in force to me, or if I am unable to act, then to a Judge of the same court.

(b) The surveillance device warrant report is required to provide the following information:

(i) the circumstances in which the surveillance device was used;

(ii) whether evidential material was obtained as a result of carrying out the activities authorised by the warrant;

(iii) whether or not that evidential material was the evidential material specified in paragraph 3.3 of this warrant;

(iv) whether any criminal proceedings have been brought or are under

consideration as a result of that evidential material;

(c) If the person executing this warrant has reasonable grounds to believe that a communication obtained pursuant to the warrant may be sub ect to a privilege specified in s 136 of the Search and Surveillance Act 2012, they must not use that communication unless its use is authorised by a Judge or the privilege is waived.

Signed at M = on day of 20 7

location date month year

District Court Judge