Balfour v R

IN THE SUPREME COURT OF NEW ZEALAND

SC 110/2013
[2013] NZSC 149

BETWEEN	DAVID NEIL BALFOUR Applicant
AND	THE QUEEN Respondent

SC 111/2013
BETWEEN	DARYL KIRSTY REID BALFOUR Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Glazebrook and Arnold JJ
Counsel:	Applicant D N Balfour in person E J Forster for Applicant D K R Balfour S B Edwards for Respondent
Judgment:	18 December 2013

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

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REASONS

The applicants, Mr and Mrs Balfour, were convicted of three representative animal neglect charges under the Animal Welfare Act 1999.[1] Their appeal to the Court of Appeal having been unsuccessful,[2] they seek leave to appeal to this Court. Broadly, the grounds on which they seek leave are:
(a)The trial Judge was wrong not to exclude all of the illegally obtained evidence. Although he excluded some of that evidence, he ruled that other parts were admissible on the basis of an evaluation under s 30 of the Evidence Act 2006.[3] The applicants raise a number of points under this head.
(b)The use of representative charges was unjustified and prejudicial to the applicants. The Court of Appeal’s analysis of this point was, they contend, in error.
(c)The evidence of two expert witnesses should not have been admitted, in one case because the witness was said not to be impartial and in the other because the expert’s notes were not disclosed to the defence.
[1]R v Balfour DC Palmerston North CRI-2007-010-136, 22 December 2011.
[2]Balfour v R [2013] NZCA 429.
[3]R v Balfour (2009) 9 HRNZ 211 (DC) at [244].
We are not satisfied that it is necessary in the interests of justice that we hear and determine these appeals. The applicants argue that the Court of Appeal’s discussion of the relevance of alternative investigative techniques (s 30(3)(e) of the Evidence Act) raises a question of general or public importance. We do not agree. All that this case involves is the application of well-established principles to a particular fact situation. Nor do we accept that there is a risk of a substantial miscarriage of justice. The Court of Appeal addressed the matters raised by the applicants in detail. We are not persuaded that any material error in the Court’s analysis has been identified. Finally, the failure of the applicants’ business does not make this a matter of general commercial importance.
The applications for leave to appeal are accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The applicants in this case, Mr. and Mrs. Balfour, sought leave to appeal their convictions for three counts of animal neglect under the Animal Welfare Act 1999. Their appeal to the Court of Appeal having been dismissed, they now applied for leave to appeal to the Supreme Court of New Zealand. The respondents, represented by the Crown Law Office, opposed the applications. The applicants argued that the trial judge erred in not excluding all illegally obtained evidence, the use of representative charges was unjustified, and the evidence of two expert witnesses should not have been admitted. The Supreme Court was tasked with determining whether the applicants' grounds for appeal warranted leave to appeal to the Court.

The primary legal issues before the Supreme Court were whether the trial judge's exclusion of illegally obtained evidence was appropriate, whether the use of representative charges was justified, and whether the evidence of the two expert witnesses should have been excluded. The applicants argued that the trial judge erred in not excluding all illegally obtained evidence, despite excluding some of it based on a section 30 evaluation under the Evidence Act 2006. They also contended that the use of representative charges was unjustified and prejudicial and that the evidence of two expert witnesses should not have been admitted due to alleged impartiality and undisclosed notes. The Court of Appeal had already addressed these issues, and the Supreme Court needed to determine whether the applicants' arguments warranted leave to appeal.

The Supreme Court found that the applicants had not demonstrated that it was necessary in the interests of justice to hear and determine these appeals. The Court was not persuaded that the Court of Appeal's discussion of the relevance of alternative investigative techniques raised a question of general or public importance. The Court also found that there was no risk of a substantial miscarriage of justice, as the Court of Appeal had addressed the matters raised by the applicants in detail. The Supreme Court concluded that the failure of the applicants' business did not make this a matter of general commercial importance. Therefore, the applications for leave to appeal were dismissed.

The Supreme Court's final orders were that the applications for leave to appeal were dismissed. The applicants' arguments regarding the exclusion of illegally obtained evidence, the use of representative charges, and the admissibility of expert witness evidence were not deemed sufficient to warrant leave to appeal. The Court of Appeal's detailed analysis of these issues was upheld, and no further appeal was permitted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established