E J Forster for Appellants S B Edwards for Respondent
Judgment:
13 September 2013 at 10.00 am
JUDGMENT OF THE COURT
AThe application by the appellants for leave to adduce further evidence on appeal is declined.
BThe appeals against conviction and sentence are dismissed.
CThe appeal against the orders for costs is allowed and the orders made in the District Court under the Costs in Criminal Cases Regulations 1987 and the Witnesses and Interpreters Fees Regulations 1974 are set aside.
Para No Introduction [1] The District Court trial [8] The conviction appeals [10] The Animal Welfare Act 1999 [12] The pre-trial ruling [18] Interpreting the phrase “any significant injury or disease” [25] Proof of injury or disease required? [29] Meaning of “adequate shelter” [34] Breach of s 24(d) of the NZBORA? [38] Unfair use of representative charges? [46] Expert evidence [49]
Dr Flint [54] Mr McLaren [61]
Verdicts unsupported by the evidence? [68] Necessary to identify cats in distress specifically? [88] The sentence appeals [96]
Discharge without conviction? [100] Manifestly excessive fines? [105] Lesser period of disqualification? [118]
Costs appeal [127] Result [138]
Introduction
Mr and Mrs Balfour (the Balfours) appeal against their convictions following a 30-day judge-alone trial in the District Court at Palmerston North on the following three representative charges brought under ss 10 and 12(a) and s 29(a) of the Animal Welfare Act 1999 (the AWA):[1]
(a)failing to ensure that the physical, health, and behavioural needs of no more than 87 dogs were met (count 1);
(b)failing to ensure that the physical, health, and behavioural needs of no more than 161 cats were met (count 2); and
(c)ill-treating no more than 161 cats (count 4).
[1]R v Balfour DC Palmerston North CRI-2007-010-136, 22 December 2011 [conviction decision].
They also appeal against their sentences, comprising fines totalling $12,500 each, payable to the Royal New Zealand Society for the Prevention of Cruelty to Animals (the SPCA) under s 171 of the AWA, disqualification from owning cats or dogs (other than their own pets) for a period of 20 years,[2] and orders for costs under the Costs in Criminal Cases Regulations 1987 and the Witnesses and Interpreters Fees Regulations 1974 totalling $27,818.08.[3]
[2]R v Balfour DC Palmerston North CRI-2007-010-136, 29 June 2012 [sentencing decision].
[3]R v Balfour DC Palmerston North CRI-2007-010-136, 3 May 2013 [costs decision].
The Crown did not submit that the Balfours required leave to appeal against the costs orders. We adopt the view that leave is not required under s 379CA of the Crimes Act 1961,[4] but if leave had been required, we would have been prepared to treat the notice of appeal as an application for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Balfour v The Queen [2013] NZCA 429
Case
[2013] NZCA 429
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand dismissed the appeals by Daryl Kirsty Reid Balfour and David Neil Balfour against their convictions and sentences. The Balfours were convicted and sentenced in the District Court on three counts of failing to ensure the physical, health and behavioural needs of their animals were met and ill-treating animals, contrary to the Animal Welfare Act 1999. The Balfours also appealed against the orders for costs. The Court of Appeal declined the Balfours’ application for leave to adduce further evidence on appeal. The appeals against conviction and sentence were dismissed. The appeal against the orders for costs was allowed and the orders made in the District Court under the Costs in Criminal Cases Regulations 1987 and the Witnesses and Interpreters Fees Regulations 1974 were set aside. The Court found that the convictions were supported by the evidence, and the sentences were not manifestly excessive. The Court held that the Judge erred in ordering the Balfours to pay the costs of the prosecution as it was not just and reasonable in the circumstances of the case.