Agricola Enterprises Ltd v Ministry for Primary Industries
[2020] NZCA 136
•1 May 2020 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA431/2019 [2020] NZCA 136 |
| BETWEEN | AGRICOLA ENTERPRISES LTD AND JOSEPH MICHAEL MCDONALD |
| AND | MINISTRY FOR PRIMARY INDUSTRIES |
| Court: | Gilbert, Ellis and Brewer JJ |
Counsel: | P V Cornegé and W Hendriske for Applicants |
Judgment: | 1 May 2020 at 3 pm |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
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REASONS OF THE COURT
(Given by Brewer J)
Introduction
Judge Menzies, following trial, convicted the applicants on charges brought under the Animal Welfare Act 1999.[1] Duffy J dismissed their appeals against conviction.[2] The applicants now seek leave to come to this Court for a second appeal.
[1]Ministry for Primary Industries v McDonald [2018] NZDC 16909.
[2]McDonald v Ministry for Primary Industries [2019] NZHC 1844.
To grant leave, we must be satisfied that the appeal involves a matter of general or public importance, such as an issue of “general principle or of general importance in the administration of the criminal law by the Courts”,[3] or that a miscarriage of justice may have occurred.[4]
Background
[3]Keenan v R [2005] NZSC 63 at [5]; cited in McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
[4]Criminal Procedure Act 2011, s 237(2).
The applicants are both relevantly engaged in the ownership and operation of a dairy farm. The charges brought against them involve failing to ensure the physical handling of cows in a manner which minimised the likelihood of unreasonable or unnecessary pain or distress.[5] The gravamen of the charges was that the cows’ tails had been broken during the applicants’ physical handling of them.
[5]Animal Welfare Act 1999, ss 4(d), 10, 12 (a) and 165.
The evidence was that of 516 cows examined, 186 (36 per cent) had broken tails.
The charges categorised the cows into two groups. The first group was described in the relevant charges as “no more than 12 cows”. The cows were not identified individually but were grouped because their injuries were allegedly new, having been suffered between 1 June 2016 and 24 January 2017 (the latter date being the date the herd was examined by animal welfare inspectors).
The second group was described in the relevant charges as “no more than 107 cows”. The cows were not identified individually and were grouped because their injuries were older than those of the first group of 12 cows.
The charges were stated to be representative charges.
The offences charged are offences of strict liability.[6]
[6]Section 13.
A statutory limitation period meant that no charges were brought in relation to the remaining 67 cows found to have broken tails.
There was no direct evidence of physical handling breaking tails. The prosecution depended on:
(a)The opinions of two veterinary surgeons (Dr O’Driscoll and Dr Laven).
(b)An admission by Mr McDonald to an animal welfare inspector that he would sometimes “twist” cows’ tails “just to push them forward”.
The opinions of the veterinary surgeons were to the effect that although cows can and do break their tails accidentally, the finding that 36 per cent of this herd had broken tails meant that tails were being broken by physical handling. Comparative studies in this area are limited, but a range of 5 per cent to 15 per cent of a dairy herd having accidental breaks was indicated.
The application
The first ground of the application is that the expert evidence of the veterinary surgeons was equivocal and could not support a finding that the cows’ tails had been broken through mishandling. The applicants submit this is a matter of general or public importance because similar evidence might be relied upon in future prosecutions.
We do not accept this submission. The veterinary surgeons were experts entitled to give their opinions on the significance of a herd having 36 per cent of its number with broken tails. They gave their opinions. The opinions were not expressed in absolute terms but that does not mean they were equivocal. They were opinions properly qualified as to their degrees of certainty. They were able to be taken into account by the trial Judge as part of the overall matrix of evidence, which included the admission of Mr McDonald.
The decision of the trial Judge was fact specific. The evidence was admissible, relevant and probative of the issues in the case.
The issue of the trial Judge’s reliance on the expert evidence was argued before Duffy J who considered it in detail and gave reasons for upholding the trial Judge’s reliance on the expert evidence.[7] We see no risk of a miscarriage of justice arising from this ground.
[7]McDonald v Ministry of Primaries Industries, above n 2, at [35]–[58].
The second ground for the application is that there was insufficient evidence to find, beyond reasonable doubt, that the groups of cows referred to in the charges were cows which had tails damaged through mishandling. Accordingly, it is submitted, it is reasonably arguable that a miscarriage of justice may have occurred.
The basis of this submission is that, although the evidence was that 36 per cent of the herd had broken tails, the evidence was also that an unknown proportion of the broken tails would have occurred through accident. Therefore, there was no specific evidence that cows in either of the groups had tails broken through mishandling. There is a reasonable possibility that all the cows in each group had accidentally broken tails. There is a reasonable possibility that any cows with broken tails caused by mishandling were in the group of 67 cows in respect of which no charges were laid.
We do not accept this submission. It was comprehensively and appropriately addressed by Duffy J.[8] It requires a factual analysis not suited to a second appeal.
[8]At [71]–[82].
In any event, the trial Judge was entitled to apply the evidence as a whole to all of the cows in the herd. It would be artificial to conclude that because cows had been put into groups they should be treated differently.
We see no risk of a miscarriage of justice arising from this ground.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
McBreens, Hamilton for Applicants
Crown Law Office, Wellington for Respondent
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