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 to provide some background.  The search which took place in March 2007 was proceeded by an earlier search in September 2006, executed by the police in order to locate two allegedly stolen dogs. 

[5] After the September 2006 search, the police officer involved wrote to the Ministry of Agriculture and Fisheries and the SPCA outlining some concerns about the number of animals on the Balfours’ property and the conditions in which they were kept. Nothing happened until 5 March 2007, when the search now in issue took place. A warrant for the search was obtained under s 131 of the Animal Welfare Act. Judge Garland was critical of the SPCA for allowing such a long delay between the police officer’s report and the search, which the Judge said was because the SPCA had wished to undertake the search itself, rather than alerting other enforcement bodies. The search was carried out under the power delegated to SPCA as an inspector under s 124 of the Animal Welfare Act.

[6] The SPCA officers and police who undertook the search were accompanied by a cameraman from TVNZ, who was contracted by SPCA to film evidence as an “assistant” under s 133(c) of the Animal Welfare Act. There was, however, another agenda at play, namely the desire to attract publicity for the activities of the SPCA. The arrangement was that TVNZ retained ownership and control over the resulting film and the right to screen it after the conclusion of the trial.

[7]        The search and seizure operation took place over a number of days.  It encompassed both the Balfours’ dwelling, as well as a number of other buildings (including a disused pigsty) used to house animals.  By the conclusion of the search, all of the animals had been euthanized, removed from the property by the SPCA or handed over to new owners found by the Balfours. 

Judge Garland’s decision

[8]        Judge Garland held that the search warrant was invalid and the search itself was unlawful and unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990.

[9]        Judge Garland found that the search was unlawful for two reasons.  The first was that the search warrant was invalid because of the delay between the September 2006 search and the warrant application some five months later.  The Judge found that, given the delay, the SPCA did not have reasonable grounds to believe that the animals were living in conditions detrimental to their welfare.  He also found that some of the statements made in the affidavit supporting the application for the warrant were hearsay and unspecific. 

[10] Further, the Judge found that the presence of the TVNZ cameraman was not permitted by s 133(c) of the Animal Welfare Act. That section allows for the use of “assistants as may be reasonable in the circumstances for the purposes of searches”. He saw the presence of the cameraman as predominantly a means to attract publicity, and not for a legitimate law enforcement purpose. The cameraman was not an “assistant” for the purposes of the Act.

[11]       Having found that the search was unlawful and unreasonable in terms of s 21 of the New Zealand Bill of Rights Act 1990, the Judge then considered the appropriate remedy under s 30 of the Evidence Act 2006.  In brief, the Judge found:

(a)the search was a serious infringement on the right to be free from unreasonable search and seizure;

(b)there was a significant infringement of the privacy rights of the applicants, particularly in so far as the search related to their home;

(c)the conduct of the SPCA in obtaining the warrant was careless and sloppy;

(d)the charges were not particularly serious;

(e)excluding the evidence was the only available remedy that could provide redress to the applicants.

[12] Against those factors which favoured the exclusion of the evidence, the Judge balanced the importance of the evidence to the prosecution case (without it the prosecution would fail). He also took into account the fact that the SPCA could have entered the property for the purposes of carrying out an inspection under s 127 of the Animal Welfare Act. Section 127 provides that an inspector (which includes the SPCA) has a right to enter any land premises or place at any reasonable time without warrant for the purpose of inspecting any animal on or in that place. However, the power does not extend to dwellings. A search warrant must be obtained for a search of a dwelling. The Judge described this latter factor as “neutral”.

[13] In a carefully drafted formulation of an appropriate remedy, the Judge determined that the film footage taken by the TVNZ cameraman should not be admitted as evidence. He also excluded the evidence obtained in the applicants’ home, including the film footage, photographs and written and oral evidence of the officers. However, he did not exclude the remainder of the evidence, such as the evidence of the officers as to what they observed at the property (other than the home). In part he was influenced in that by the fact that the privacy interest in the areas other than the applicants’ home was less significant than that relating to the home itself, and also the fact that the SPCA could have exercised the right of inspection under s 127.

The proposed point on appeal

[14] For the applicants, Mr Forster argued that the Judge was wrong to see the availability of the alternative inspection power under s 127 as a neutral factor. He said that this should have been seen as a significant factor favouring the exclusion of all evidence. Mr Forster cited in support of that proposition an observation made by this Court in Pollard v R[4] to the effect that the availability of other investigatory techniques needed to be considered in the context of the s 30 balancing exercise.  However, that decision did no more than recite the requirement of the section, and apply it to the particular facts.  We do not see it as providing any particular support for the proposed appeal in this case. 

[4]      Pollard v R [2010] NZCA 294 at [23].

[15] Judge Garland did consider the s 30(3)(e) factor (the availability of another investigatory technique not involving any breach of rights). He saw it as neutral. In essence, the remedy which the Judge crafted in terms of s 30 was designed to enable the Crown to use at trial only the evidence which would have been available to it if the s 127 technique had been applied.

[16] Mr Forster pointed out that s 127 can be used only after prior notification to the owners. However, we think that, given the present background, any such notice would have been minimal, to ensure that the applicants were not given an opportunity to engage in a cleanup prior to the entry of the SPCA officers. Accordingly, we doubt that the use of the inspection power would have made a great deal of difference to the nature and scope of the search exercise. Rather it would have been limited to the premises outside the applicants’ home. It was thus appropriate to exclude the evidence obtained from there as a result of the search which was, in fact, undertaken.

[17] In those circumstances, we see the fact that a similar search exercise could have been undertaken in reliance on the s 127 power as a positive factor, favouring admission of the evidence obtained from the search (apart from the search of the dwelling), rather than as a negative factor (as Mr Forster argued) or a neutral factor (as the Judge said). We agree that the availability of an “alternative investigative technique” under s 30 will often be a factor pointing towards exclusion of evidence obtained from an unlawful search. However we do not see the s 127 power as falling within that category, but see it instead as among the other matters that the Court can consider under s 30(3). Section 127 does not involve an alternative investigative technique – it is in essence a search power – it is simply that the legal process authorising the inspection or search is different from that provided for in s 131.

Extension of time

[18]       We see no merit in the proposed appeal.  We would not have been disposed to grant leave to appeal, as we see the matter as involving no point of principle and being essentially confined to the facts of this case.  But it is not necessary for us to determine the question of leave because there is a prior question, namely whether an extension of time should be given for the leave application to be made. 

[19]       The application was about four and a half months outside the 10 day period provided for such applications, and there is little in the way of explanation for this delay.  As it turns out, the trial which was scheduled to take place earlier this year has been adjourned at the request of the defence, and so the delay in pursuing the application for leave to appeal has not caused any additional disruption to the trial process.  But the 10 day period has been set for a reason, namely the need to ensure that pre-trial matters such as this are resolved promptly.  And in the absence of any good reason for the delay, we are not disposed to grant an extension of time to seek leave.

Result

[20]       We refuse an extension of time to seek leave to appeal against Judge Garland’s decision.

[21]       We dismiss the application for leave to appeal against Judge Fraser’s decision, as the matters at issue are now resolved.

Solicitors:

Crown Law Office, Wellington for Respondent