Balfour v The Queen - [2010] NZCA 465

IN THE COURT OF APPEAL OF NEW ZEALAND
CA340/2010
CA341/2010
[2010] NZCA 465
BETWEENDAVID NEIL BALFOUR

DARYL KIRSTY REID BALFOUR
Applicants

ANDTHE QUEEN

Respondent

Hearing:8 September 2010

Court:O'Regan P, Stevens and Simon France JJ
Counsel:E J Forster for David Balfour

J G Turnbull for Daryl Balfour
S B Edwards and P L Murray for Respondent

Judgment:13 October 2010 at 2.30 pm

JUDGMENT OF THE COURT

AThe application to extend the time to make an application for leave to appeal against the District Court decision of 15 December 2009 (CA340/2010) is dismissed.
BThe application for leave to appeal against the District Court decision of 18 May 2010 (CA341/2010) is dismissed.

_______________________________________________________________
REASONS OF THE COURT
(Given by O’Regan P)
Introduction
[1] The applicants, Mr and Mrs Balfour, face four indictably-laid charges under the Animal Welfare Act 1999. The charges resulted from a search of their property in March 2007 by SPCA inspectors. During the search 161 cats and 87 dogs were located. The Crown alleges that the animals were housed in appalling conditions and displayed indications of disease and behavioural difficulties as a result of this.
[2]        There are two applications before this Court. The first, CA340/2010, is an application for leave to appeal against aspects of a decision of Judge Garland dealing with an application made by the Crown under s 344A of the Crimes Act 1961 for a ruling that the evidence obtained from the search conducted in March 2007 was admissible at trial.[1] This application was filed well outside the 10 day time period within which such applications must be made.[2] So we need to decide whether an extension of time to make the application should be granted; if so, whether leave to appeal should be granted; and, if so, whether the appeal should be allowed. We heard argument on all three of those issues.
[1]      R v Balfour DC Palmerston North CRI-2007-010-000136, 15 December 2009.
[2]      Crimes Act 1961, s 379A(4).
[3]        The second application, CA341/2010, is an application for leave to appeal against a decision of Judge Fraser refusing to make an order that the Crown provide further particulars of the counts in the indictment.[3] This application was brought within time. During the hearing, we ascertained from counsel that there had been no discussion between counsel for the Crown and the defence seeking an agreed solution to the defence’s request for further particulars of the indictment. We adjourned the hearing of the application to allow those discussions to occur. We have now received a memorandum from counsel indicating that they have agreed on the particulars and that this appeal is now resolved. In those circumstances, we formally dismiss it.
CA340/2010: Background
[3]      R v Balfour DC Palmerston North CRI-2007-010-000136, 18 May 2010.
[4]        Application CA340/2010 relates to one narrow aspect of Judge Garland’s decision, which was otherwise very favourable to the applicants’ position (there was no cross-appeal by the Crown). In order to understand the point now at issue in the present application, it is necessary…

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.

Continue reading Balfour v The Queen

Details

AGLC: Balfour v The Queen [2010] NZCA 465
Case: [2010] NZCA 465
Decision Date: 13 October 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the applicants, Mr. and Mrs. Balfour, appealed against decisions made by the District Court. The Balfours face charges under the Animal Welfare Act 1999, following a search of their property that resulted in the seizure of numerous animals. The applicants brought two applications before the Court of Appeal, the first being an application for an extension of time to seek leave to appeal against a decision of the District Court that evidence obtained from a search of their property was admissible at trial. The second application was for leave to appeal against a decision that refused to order the Crown to provide further particulars of the counts in the indictment. The Court had to determine whether to grant an extension of time for the first application and whether to grant leave to appeal for both applications.

The Court found that there was no merit in the proposed appeal and that the matter was not of principle but was essentially fact-specific. The Court held that the availability of an alternative investigative technique under s 30 of the Evidence Act 2006, in this case, the power under s 127 of the Animal Welfare Act 1999, was not a negative factor but a positive factor favoring the admission of evidence obtained from the search (apart from the search of the dwelling). The Court also noted that the 10-day period for such applications was set for a reason, namely to ensure that pre-trial matters such as this were resolved promptly. The Court refused the extension of time to seek leave to appeal against the District Court's decision. The Court dismissed the application for leave to appeal against the District Court's decision on the particulars, as the matters at issue were now resolved.

Orders