Attorney-General v Pickering HC Hamilton CP24/98

[2001] NZHC 883

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY CP24/98

BETWEEN THE ATTORNEY-GENERAL
Plaintiff

AND ROBERT JAMES PICKERING
Defendant

Hearing: 21 September 2001

Counsel: I C Carter and GAJ Stanish for the Plaintiff
T Sutcliffe for the Defendant

Date of Judgment: 21 September 2001

ORAL JUDGMENT OF PATERSON J

Solicitors
Crown Law Office, DX SP 20208, Wellington for the Plaintiff
Till Henderson King, DX GP 20037, Hamilton, for the Defendant

[1] In a judgment given on 19 September I made findings that Mr Pickering, contrary to the terms of an injunction, sold an unlicenced animal remedy to seven farmers and used the unlicenced animal remedy Fertex on the sheep and calves of two other farmers. Leave was therefore given to the Attorney-General to issue a writ of arrest to bring Mr Pickering before this Court so the consequences of his failure to obey injunctive orders could be determined. That was the purpose of the hearing this morning.

[2] Rule 609 provides that where any person has been brought before the Court on a writ of arrest the Court may commit him to prison for such term as to the Court appears necessary and as may be by law allowed unless he sooner complies with the order of the Court for non performance or for non observance for which he has been committed.

[3] The Attorney-General seeks a term of imprisonment and has suggested that the appropriate term is three months.

[4] It is not necessary to set out fully the history of this matter as it appears in the judgment of 19 September and in early judgments referred to therein. However I briefly note it as follows.

[a] Mr Pickering was in October 1996 convicted of five relevant offences.

[b] In November 1998 he was convicted of a further seven relevant offences. I note however that the offences were committed before the injunction which I am now to refer to.

[c] In July 1998 this Court granted the Attorney-General injunctive relief and ordered that Mr Pickering be prohibited from manipulating animals contrary to reg.3 of the Animals Protection (Codes of Ethical Conduct) Regulations 1987 and from selling or using unlicenced animal remedies contrary to ss 40(2) and (5) of the Animal Remedies Act.

This was nothing more than an order that Mr Pickering comply with the law. It is rare to issue injunctions of this nature but Doogue J thought that the circumstances were appropriate to do so and it was necessary to do this to endeavour to ensure that Mr Pickering observed the law.

[d] Notwithstanding that injunction Mr Pickering continued to flout the law for a period from October 1998 to at least March or April 2000. This is the result of the findings made in the judgment of 19 September.

[e] The application for leave to file a writ of arrest was filed in December 1999. It will be noted therefore that some of the offences referred to in the judgment of 19 September occurred after Mr Pickering knew there was an application seeking to have him arrested for breaching the injunction.

[5] Mr Sutcliffe spoke of mitigation on behalf of Mr Pickering. He accepted that the breaches were not accidental. In support of the submissions he provided three affidavits and an undertaking signed by Mr Pickering. This undertaking was that Mr Pickering would not knowingly sell or use Fertex or any other agricultural compound contrary to any of the provisions of the Agricultural Compounds and Veterinary Medicines Act 1997. That Act has replaced the legislation referred to in the earlier injunction. There is one other aspect of the undertaking to which I will return shortly.

[6] Some of the material contained in the affidavits filed in mitigation suggest there is opposition to Mr Pickering from the scientific community. A suggested reason was that Mr Pickering was first in the field. A Dr Dalton makes many allegations against the scientific community. I note however that these are allegations only and there was no opportunity nor in my view the necessity for there to be any reply to the allegations. Mr Pickering’s relationship with the scientific community is a background fact and perhaps explains some of his actions but in my view is not central to the issue before the Court this morning.

[7] There was also reference to lack of financial support although as Mr Carter pointed out at one stage Mr Pickering or his associated interests received a grant of $225,000 from a Government agency.

[8] The further matter referred to in the undertaking is an undertaking to cooperate fully with Howard Moore and Industry New Zealand reach an agreement with the Animals Remedies Board, the Minister of Agriculture and Forestry, and to arrange for provisional licencing and ethical trials of the zinc-based injectable agricultural compound known as Fertex. An earlier affidavit from Mr Moore was filed at the time an adjournment application was made at the beginning of the trial and a further affidavit has been filed in support of this proceedings. Counsel also waived privilege and produced correspondence which indicated the terms of the proposed settlement which was discussed when the adjournment was granted last week. An offer was made by Mr Pickering on a without prejudice basis that he would admit breaches of the injunction, undertake not to engage in any further breaches of the injunction pending the outcome of the ethical trials, and consent to an order to lie in Court pending the outcome of the ethical trials. This offer was rejected on behalf of the Ministry of Agriculture and Forestry and one of the reasons given for its rejection was that Mr Pickering’s personal promise not to deal in Fertex did not guarantee that the promise will in fact be performed given Mr Pickering’s history of disregard to the criminal law and formal orders for injunction of this Court. There is also a reference to no information having been supplied as to how, where, or by whom Fertex is produced. At the background of the settlement proposals was support from Industry New Zealand to assist Mr Pickering to ascertain whether or not Fertex or a zinc-based injectable remedy was licensable under the appropriate legislation. It was submitted on behalf of Mr Puckering that the opportunity now exists with the support of Industry New Zealand to develop this matter further.

[9] A further submission made was that Crown in bringing these proceedings was concentrating on the punitive purpose of a writ of arrest rather than the coercive purpose, this later submission was rejected by Mr Carter on behalf of the Crown.

[10] A further matter submitted in mitigation was that Mr Pickering’s motivation was animal welfare. It was said he has many supporters. It was obvious from the reluctance of several witnesses who appeared in this hearing that he does have some support. Further, it was suggested that Mr Pickering could pay a fine if necessary and as I understand that that fine was to be raised from family members and supporters, once again demonstrating that he does certainly have some support in the farming community.

[11] Because of these considerations it was submitted that the climate is now different and Mr Pickering has an opportunity to develop this product and this Court should impose a fine.

[12] Mr Pickering has been unsuccessful in having Fertex licenced. In my assessment he has developed an obsession in respect of the worth of the product and the opposition to it. Dr Dalton referred to reasonable paranoia. Mr Pickering has no doubt felt persecuted and disadvantaged. I suspect he is not an unintelligent man. Nevertheless, no matter what the value of Fertex may ultimately prove to be, he has displayed no respect for the law as is obvious from the history I have just recounted. The Attorney-General has obviously no confidence that he will observe the law in the future as counsel requested that if he were to be imprisoned a term be imposed that he not treat animals at the prison farm.

[13] This Court normally allows the person to purge his disobedience of the injunction by doing what he should have done. Usually a final opportunity is given to the person to obey the order of the Court and a common course is for the Court to direct that the writ of arrest lie in the office for a defined number of days and on further failure to be forthwith issued. That alternative is not available in this case because as the Court of Appeal noted in a previous appeal by Mr Pickering, this is not a case where conduct has occurred which can be remedied while an order lies in Court.

[14] The purpose of a writ of arrest was summarised by Salmon LJ said in Jennison v Baker [1972] 1 All ER 997, 1001

“Contempt” is an unfortunate and misleading phrase. It suggests that it exists to protect the dignity of the Judge. Nothing could be further from the truth. The power exists to ensure that justice shall be done. Solely to this end it prohibits acts and words tending to obstruct the administration of justice. The public at large, not less than an individual litigant, have an interest, and a very real interest, in justice being effectively administered. Unless it is so administered, the rights, indeed the liberty of the individuals will perish.”

That reference is, in my view, appropriate in the present case. It is also of note that in that case the Court of Appeal held the writ of arrest was properly granted and the term of imprisonment which followed was appropriate even though the injunction had ceased to have effect by the time the matter came to the Court.

[15] As was noted in the earlier judgment, concern was expressed at an earlier time by the New Zealand Veterinary Association, the Meat Producers Board and Federated Farmers as to the use of Fertex. This Court cannot predict whether or not Fertex will one day become a licenced animal remedy. What it must take account of is attempts to licence that remedy have not been success and attempts to prevent it being used by Mr Pickering have not succeeded.

[16] Imprisonment for contempt is a last resort. No Judge takes pleasure in imprisoning for contempt in what is in some ways disobeying a civil injunction, albeit that it is based on a breach of law. However, in some cases and in my view this was one, the administration of justice does require that a term of imprisonment be imposed. There should be a warning to others.

[17] I have considered the possibility of a fine but accept the submission of the Crown that if Mr Pickering himself is not in a position to pay a pay and I am advised that this is the case and that any paid would be paid by family and supporters, the fine itself would hardly have either a coercive or punitive aspect.

[18] In these circumstances, Mr Pickering, I have reluctantly formed the view that this Court has no alternative but to impose a term of imprisonment upon you. This term should be no longer than that required to adhere to the purposes of the term of imprisonment. In the circumstances I impose on you a term of imprisonment of one month.