Charteris v Ministry for Primary Industries
[2023] NZHC 3321
•22 November 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2023-441-014
[2023] NZHC 3321
SIMON JOHN MINSON CHARTERIS v
MINISTRY FOR PRIMARY INDUSTRIES
Hearing: 26 September 2023 and 11 October 2023 Appearances:
E J Forster for Appellant
J D Bridgman for Respondent
Judgment:
22 November 2023
JUDGMENT OF GRICE J
(Appeal against conviction. Interim suppression request)
Introduction
[1] Mr Simon Charteris operates a specialist farming business involving aggregating near end-of-life rams from around the country on his property in Hastings. The rams are held for a short period before moving to a meat processing plant, Progressive Meats Ltd (PML) also in Hastings. Mr Charteris’ business requires transportation of the rams to his property, and then on to PML.1
1 Ministry for Primary Industries v Charteris [2023] NZDC 3883 [Liability Decision] at [1]. This appeal was part heard on 26 September 2023 and adjourned to enable the complete District Court file to be transferred to the High Court.
CHARTERIS v MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 3321 [22 November 2023]
[2] On 10 March 2023, the Judge found Mr Charteris guilty of three charges under s 23(2)(c) of the Animal Welfare Act 1999 (the AWA); namely, permitting, without reasonable excuse, the transport of an animal while the condition or health of that animal rendered it unfit to be transported.2
[3] On 18 August 2023 the Court sentenced Mr Charteris to pay a $3800.00 fine on the charges. In that decision, The Judge also declined Mr Charteris’ application for permanent name suppression.3
[4] Mr Charteris now seeks to appeal his convictions, pursuant to s 229 of the Criminal Procedure Act 2011 (the CPA). Mr Charteris has interim name suppression pending the outcome of the appeal. He does not seek continued name suppression beyond the delivery of the appeal decision, nor does he appeal the sentence.
Liability Decision of The Judge
[5] The Judge began by setting out a summary of the allegations in relation to each of the three charges;4
(a)Charge one (CRN –037): it was alleged that Mr Charteris, on 5 August 2020, permitted a ram, without reasonable excuse, to be transported to PML whilst it was suffering from severe bilateral foreleg lameness, meaning the ram was not fit for transport.
(b)Charge two (CRN –038): it was alleged that Mr Charteris, on 11 November 2020, permitted a ram, without reasonable excuse, to be transported to PML whilst it was suffering from severe lameness on its right front leg and was non-weight bearing, meaning the ram was unfit for transport.
2 Liability Decision, above n 1; Animal Welfare Act 1999 (AWA), ss 23(2)(c) and 25(a) (maximum penalty 12 months’ imprisonment or fine not exceeding $50,000 or both).
3 Ministry for Primary Industries v Charteris [2023] NZDC 12477 [Sentence and Suppression Decision].
4 Liability Decision, above n 1, at [2].
(c)Charge three (CRN –039): it was alleged that Mr Charteris, on 2 December 2020, permitted a ram, without reasonable excuse, to be transported to PML with a broken and ingrown horn, meaning the ram was unfit for transport.
[6] The Judge then set out the relevant burden and standard of proof. This was that the prosecution must prove each of the charges beyond reasonable doubt.5 He also set out the approach to be taken to the assessment of evidence, explaining that the fact that three of the vets called as witnesses are employed by MPI (Ms Upsher, Ms Huang and Mr Chan), “neither dilutes nor strengthens the evidence they have given”.6 His Honour noted that“[a]ll witnesses gave evidence in a straightforward, clear and matter of fact manner”, and that Mr Marshall (the vet called by the defence) did not challenge the opinions offered by the other witnesses.7
[7] The prosecution’s case at trial was that the health issues made the rams unfit for transport. Mr Charteris’ case was that this had not been proven by the prosecution to the requisite standard. As to the alleged injuries. Mr Charteris did not seek to rely on any defences such as reasonable excuse or s 24 of the AWA.8
[8] The Judge set out the statutory scheme of the AWA including the required elements of the offence. His Honour noted that, if all of the elements of the charges are proved, Mr Charteris could still escape liability by establishing, on the balance of probabilities, a reasonable excuse or the defence in s 24 of the AWA (that a Code of Welfare was in existence at the time of the alleged offence and the minimum standards were equalled or exceeded).9 The relevant Code of Welfare was the Transport Within New Zealand Code.10 The definition of ‘lame’ relevant to a sheep was also set out, as was the guiding regulation regarding transportation of animals with ingrown or injured horns.11 The law is not disputed on appeal.
5 At [3]–[7].
6 At [14].
7 At [15].
8 At [19].
9 At [24]–[29]; AWA, ss 23(1), 24(2) and 168A.
10 At [28]; Code of Welfare: Transport Within New Zealand Code 2018 (see below).
11 At [32]; in accordance with regs 38, 39 and 40 of the Animal Welfare (Care and Procedures) Regulations 2018, set out below.
[9] The Judge then considered whether the rams were unfit to be transported on the relevant dates.
[10] In relation to charge one, the Judge accepted the evidence of Mr Chan that the ram was lame at the time that it was loaded for transportation to PML. Mr Chan was based at PML and he was required to conduct ante mortem inspections of the animals.12 Mr Chan noted that the relevant ram was lame in that it was lying down, as opposed to running around like the others.13 The ram was then examined (both ante and post mortem) and photographed, and Mr Chan concluded that the ram was lame in both its forelegs. It was common ground that the ram had an underlying disease,14 Mr Chan noted that the hoof on the right leg of the animal was detached and there was an overgrown hoof on the left foreleg.15 This would have caused the animal discomfort or pain.16
[11] For the defence, Mr Charteris gave evidence that he did not see a lame ram when loading the rams for transportation. Mr Charteris had walked the rams 1.64 kms from their paddock to the stockyards where the rams were loaded for transportation to PML.17 Mr Marshall provided expert evidence for the defence and said, in disagreement with Mr Chan, that the injury could have been fresh. This was based on Mr Marshall’s evidence referencing some fresh blood being transferred from the wound to the pen’s concrete floor, and the absence of contamination of the wound from grass or dirt that might be expected had the ram walked over farm ground.18 Mr Marshall had formed this view by reading and hearing the evidence of the other vets, and the photographic evidence.19
[12]In considering the evidence in relation to charge one, the Judge said at [49]:
It is important at this point to note that I have formed the view that when considering the evidence of the MPI veterinarians against the evidence of Mr Marshall, the evidence of the MPI veterinarians should be preferred. The
12 At [37].
13 At [38].
14 At [44].
15 At [40].
16 At [41].
17 At [43].
18 At [45].
19 At [50].
reason for this is that each of the MPI veterinarians personally inspected the ram in question. Mr Marshall did not have that opportunity.
[13] His Honour also noted that the severity of the lameness is immaterial. What was required was that the ram met the regulatory definition of ‘lame’, if so, the minimum standard for transportation had not been met.20 Mr Charteris did not seek to rely on any reasonable excuse or affirmative defence, so the strict liability nature of the relevant charges meant the above was enough to find Mr Charteris guilty on charge one.21
[14] Regarding the second charge, evidence for the prosecution was given by Ms Upsher, who had the same job as Mr Chan.22 Ms Upsher gave evidence that on 11 November 2020, she inspected a mob of rams (about 10 minutes after their arrival) and noted the relevant ram for this charge as being severely lame and non-weight bearing in the right front limb. The ram also had an odd gait and kept its head down. Ms Upsher then photographed the ram. She formed the opinion that the ram had an arthritic joint, with swelling that would have been developing for a number of weeks, and that the ram was unfit for transport. She believed that the ram would not have been weight bearing at the time of loading.23
[15] On this, Mr Marshall did not provide extensive comment. He had been provided with the photographic evidence and said that although the ram was “obviously” lame, an in-depth examination or further testing would be required to be able to determine what actually led to the swelling.24 Mr Forster’s submission was that, in any case, the arthritic condition could have taken a few weeks to develop, and the resultant swelling is not synonymous with lameness. He said that the condition could have been exacerbated by a recent blow which would have made it appear much worse than when loaded.25
[16] Once again, the Judge accepted the evidence of Ms Upsher that the ram had an arthritic joint, but that there was no evidence that the ram suffered an acute injury
20 At [51]; reg 40 of the Animal Welfare (Care and Procedures) Regulations 2018.
21 At [54].
22 At [56].
23 At [57]–[61].
24 At [62].
25 At [64].
during transportation or some other time prior to inspection. Mr Charteris was accordingly found guilty on this charge.26
[17] Turning to the final charge, Ms Huang gave evidence. She was working at PML checking animals before slaughter at the relevant time. The animals arrived at PML on 2 December 2020 but were not checked until 3 December 2020.27 Ms Huang’s evidence was that on the inspection of the ram, she could see the horn growing from the top of the head and going downwards, noting a split to the horn and the inflamed skin from the ingrown horn. She said that she could not see the end of the horn because it was growing into the skin above the ram’s eye.28
[18] Mr Forster cross-examined Ms Huang on whether the crack in the horn could have occurred in the 22 hours that the ram was in the yard at PML. Ms Huang was sceptical about this. She said that while she could not exclude the possibility that two rams had a fight, her experience in the ram yards were that the animals were stationary most of the time.29 She formed the view that because there was not that much blood which would be expected from an injury of this kind—with the blood being only around the injury site, and not in the pen or on other animals—the injury would have occurred on the farm.30
[19]Mr Marshall said he required more information, which was unavailable.
[20]The Judge concluded that:
[82] What I am left with then is the evidence of Ms Huang and her opinion. Her opinion is that the crack/split injury to the horn was caused at the farm and was therefore present prior to the ram being transported.
[83] Even if this is incorrect and that the ram’s horn was cracked during an unknown incident in the pens at PML, it is most unlikely that such injury would have caused the tip of the horn to pierce the skin to the degree that it has. Ms Huang could not see a gap between the ram’s head and the horn. There was pink inflammation at the skin margin, the area immediately around where the horn met the skin. The other surrounding skin was dark. Clearly the skin was disturbed, and the tip was growing into the ram’s head. It is most
26 At [69].
27 At [74].
28 At [76].
29 At [79].
30 At [80].
improbable that this injury could have been caused after the ram was transported.
[84] Having considered the evidence I have formed the view that the prosecution has proved its case beyond reasonable doubt. I am satisfied that the ram’s horn was cracked/split and the ram’s horn was ingrown. The ram was not fit for transport.
[21] Accordingly, Mr Charteris was found guilty on the third charge as well as the first two.
Grounds of appeal
[22]Mr Charteris advances the following grounds of appeal:
(a)on all charges, the learned Judge erred in misapplying the correct onus and standard of proof;
(b)on all charges, the learned Judge failed to identify the critical issue (whether there was a reasonable possibility that the rams became lame or injured after transportation); and
(c)on charge one, the learned Judge erred in making a broad conclusory credibility preference in preferring the prosecution’s vet evidence over that of the defence vet’s evidence.
Approach on appeal
Conviction appeal
[23] The Court must allow an appeal against a decision of a judge in a judge-alone trial if the Court is satisfied that the judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.31 The Court must dismiss the appeal in any other case.
[24] A miscarriage of justice is any error, irregularity, or occurrence in relation to or affecting the trial that has created a real risk the outcome of the trial was affected
31 Criminal Procedure Act 2011 (CPA), ss 232(2)(b)–(c).
or has resulted in an unfair trial or a trial that was a nullity.32 A miscarriage of justice is “more than an inconsequential or immaterial mistake or irregularity”.33 A trial will be unfair if an error or irregularity departs from good practice in a manner that is “so
gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court must condemn the trial as unfair and quash the decision..34
[25] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.35 The appellant does not have to establish that the verdict was “actually unsafe” but rather that there is a real possibility the verdict would be unsafe.36 To establish a “real risk” that the outcome was affected, “something more” than a simple disagreement with a judge’s factual assessment is required.37
[26] Appeals are conducted by way of rehearing.38 If this Court comes to a different view on the evidence, the trial judge will necessarily have erred, and the appeal must be allowed. However, the appellate court is not to consider the issues de novo. It is for the appellant to show that an error has been made, taking into account the advantages a trial judge may have had in assessing the evidence. Where the challenge on appeal is to credibility findings based on contested oral evidence, an appellate court will exercise ‘customary’ caution in overturning the judge’s credibility findings.39
Applicable Code of Welfare and minimum standards
[27] The Code of Welfare for animal transportation is the ‘Transport Within New Zealand’ code.40 Minimum Standard No. 6 of this Code provides as follows:
Minimum Standard No. 6 – Selecting and Accepting Animals for Transport
32 CPA, s 232(4).
33 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
34 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
35 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
36 R v Sungsuwan, above n 35, at [110].
37 Gotty v R [2017] NZCA 528 at [15].
38 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
39 Sena v R, above n 38, at [38].
40 Code of Welfare: Transport Within New Zealand Code 2018.
(a)Proper care must be taken when deciding whether it is appropriate to transport young, old, pregnant or otherwise physiologically or behaviourally compromised animals.
(b)Animals must not be transported if they are likely to give birth during the journey or be affected by metabolic complications of late pregnancy as a result of the journey.
(c)Animals must not be transported unless they are fit enough to withstand the entire journey without suffering unreasonable or unnecessary pain or distress.
(d)Animals to be transported must be able to stand and to bear weight on all limbs.
(da) Lame cattle, deer, pigs, sheep, and goats must not be transported, except as allowed by regulation 40 of the Animal Welfare (Care and Procedures) Regulations 2018.
(e)An animal with horns or antlers must not be transported in a manner that allows the animal to seriously injure itself or another animal.
(f)Animals with a bleeding, discharging, or broken (and unhealed) velvet antler, horn, or pedicle must not be transported, except as allowed by regulation 39 of the Animal Welfare (Care and Procedures) Regulations 2018.
(fa) Animals must not be transported within seven days of being castrated or having their tail docked.
(g)Animals must not be transported if they display any injuries, signs of disease, abnormal behaviour or physical abnormalities that could compromise their welfare during the journey, unless a veterinary declaration of fitness for transport has been completed.
[28] Regulation 40 of the Animal Welfare (Care and Procedures) Regulations 2018 (the AWCPR), referred to in Minimum Standard No. 6(da) above, is as follows:
40 Restrictions on transporting lame animals
(1)The owner of, and every person in charge of, a cattle beast, sheep, deer, pig, or goat that is lame must not transport the animal, or allow the animal to be transported, unless—
(a)the animal is accompanied by a veterinary certificate that states that the animal is fit for transport; or
(b)the animal is accompanied by a veterinary certificate that specifies conditions that must be complied with to manage the animal welfare risks associated with the transport and the owner or person in charge complies with all relevant conditions.
…
(5) In this regulation,—
…
(c)a sheep or goat is lame if—
(i)the animal is not weight bearing on 1 or more limbs when moving or standing; or
(ii)the animal has difficulty walking and holds its head below its backline almost continuously.
[29] Restrictions on transporting animals with ingrown or injured horns is also set out in regs 38 and 39 of the AWCPR:
38Restrictions on transporting animals with ingrown horns
(1)This regulation applies in respect of an animal with an ingrown horn that involves part of the horn (other than the base of the horn) piercing or inflaming any part of the animal’s body or causing a skin abrasion.
(2)The owner of, and every person in charge of, an animal in respect of which this regulation applies must not transport the animal, or allow the animal to be transported, unless—
(a)the animal is accompanied by a veterinary certificate that states that the animal is fit for transport; or
(b)the animal is accompanied by a veterinary certificate that specifies conditions that must be complied with to manage the animal welfare risks associated with the transport and the owner, or person in charge, complies with all relevant conditions.
…
39Restrictions on transporting animals with injured horns or antlers
(1)This regulation—
(a)applies in respect of an animal with a bleeding, discharging, or broken (and unhealed) velvet antler, horn, or pedicle; but
(b)does not apply in respect of a deer if the bleeding or discharge is a result of the deer naturally casting its antlers.
(2)The owner of, and every person in charge of, an animal in respect of which this regulation applies must not transport the animal, or allow the animal to be transported, unless—
(a)the animal is accompanied by a veterinary certificate that states that the animal is fit for transport; or
(b)the animal is accompanied by a veterinary certificate that specifies conditions that must be complied with to manage the animal welfare risks associated with the transport and the owner, or person in charge, complies with all relevant conditions; …
…
Positions of the parties
Mr Charteris
[30] On charge one, Mr Forster submits that there were three errors; the misapplication of the onus and standard of proof, a failure to identify the critical issue of whether the injuries could have occurred after transportation, and the making of a conclusory credibility preference between the expert vets’ evidence. Mr Forster submits that the prosecution has not been able to prove beyond reasonable doubt that the ram was lame when it was loaded for transport to PML, and there is a reasonable possibility it only became lame after loading.
[31] Regarding the misapplication of the onus and standard of proof, Mr Forster takes issue with the emphasised elements of the following passage from the Judge’s Liability Decision:41
[52] Mr Forster has suggested that the ram’s injury may have occurred during transportation, suggesting that the injury could have been caused by another ram or on a part of the plant at PML. There is no evidence, however, supporting that submission.
[53] Mr Charteris said he did not observe any lame ram when he loaded the rams onto the transport. Even if I accept that evidence, it proves only that Mr Charteris did not see any lame ram but is not conclusive of whether the ram was lame. The lame ram may have been there to be seen but was simply not observed by Mr Charteris.
[54] I prefer the evidence of Mr Chan which was based on his examination of the lame ram, that in his opinion, the ram was lame at the time when it was loaded for transportation to PML. From a strict liability perspective, that is sufficient. It is reasonable to accept that the condition of the ram on inspection is deemed to be the condition on the loading of the animal for transportation. This is consistent with strict liability creating a rebuttable presumption. The defendant does not seek to rely on reasonable excuse or any affirmative defence.
41 Above n 1.
[32] Mr Forster submits that this passage shows the Judge was incorrectly applying a rebuttable presumption that the ram was in the same condition when loaded as it was when later inspected at PML, and therefore shifting an evidential onus onto the defendant to rebut this ‘presumption’. He says this is inconsistent with the Judge’s own discussion regarding the standard of proof to be applied at [3]–[7] of the judgment.42 Mr Forster argues that the absence of information about whether the injury occurred after transportation does not mean that it did not occur at all (he calls this the ‘absence of evidence fallacy’). He notes that it is unlikely anyone would have been able to see an injury occurring in the back of a stock truck trailer anyway, and the evidence of Mr Marshall supports a finding that the ram was not lame when loaded for transportation.
[33] This led to the second error, according to Mr Forster’s submissions. This was that the Judge failed to identify whether it was a reasonable possibility the ram only became lame after it was loaded. Mr Forster also submits that, without an explanation as to why Mr Marshall’s opportunity for observation was inhibited by not seeing the ram live, his Honour fell into error by in preferring in a broad conclusory approach Mr Chan’s evidence. He says that the reasoning applied by the Court, taken to its natural conclusion, allows the Court to prefer the live examination of any case over a subsequent forensic examination, regardless of the merits of each opinion. Accordingly, Mr Forster submits that had the correct reasoning been applied, the Court could have concluded that there was a reasonable possibility the ram became lame after loading for transportation and therefore the conviction should be overturned.
[34] Turning to the second charge, Mr Forster submits that there were the same errors as above in that the Judge misapplied the onus and standard of proof, and made the related failure to identify the critical issue. Mr Forster submits that these errors are apparent in the following passage from the Liability Decision:43
[66] I accept the evidence of both Ms Upsher and Mr Marshall that at the time Ms Upsher inspected the ram, about 10 minutes after it arrived at PML, the ram was lame. This raises the rebuttable presumption that the ram was lame when it was loaded for transportation. The defence does not seek to rebut this presumption.
42 Liability Decision, above n 1.
43 Liability Decision, above n 1 (emphasis added).
[67] I accept Ms Upsher’s evidence that the ram had an arthritic joint, with swelling which had developed over a few weeks.
[68] There is no evidence that the ram suffered an acute injury during transportation or at some other time prior to inspection.
[69] I accept that the ram was lame and not fit for transport. Accordingly, Mr Charteris is found guilty on this charge.
[35] Mr Forster says that the Judge again incorrectly applied a presumption that the ram was lame when loaded at [66], and wrongly required Mr Charteris to rebut this. He says that a failure to address whether the ram could have been injured during transportation suffers from the same ‘absence of evidence fallacy’, which is illustrated at [68]. Mr Forster says that this means there was a reasonable possibility the ram became lame after loading and the conviction should be overturned.
[36] The same two errors were raised in respect of charge three. Mr Forster also criticises Ms Huang’s examination; in that she could not get too close to the ram for safety reasons and so a single, zoomed photograph was relied upon for the observation. He also notes that no histology of the horn and skin was undertaken, and Mr Marshall’s evidence supports the conclusion that, without this histology (and a range of other examinations), it was not possible to provide an opinion about the recency of the horn break or whether it was ingrown.
[37] Mr Forster says that, although the Judge did not expressly state that he was applying a reverse onus, the conclusion that it was improbable the injury could have been caused after the ram was transported must be looked at in the context of the two earlier decisions. He notes also that Ms Huang herself said she could not exclude the possibility that two rams had had a fight while at PML, and that although she thought the injury would have occurred prior to the animal arriving at PML, she could not give a definitive answer.44 Again, Mr Forster says this misapplication meant that the issue of whether it was a reasonable possibility that the ram suffered a broken or ingrown horn after loading was never assessed.
[38] On this, Mr Forster submits that there is a reasonable doubt that the issues with the ram’s horn were apparent prior to loading. He points to Ms Huang’s acceptance
44 Set out at [79]–[80] of the Liability Decision, above n 1..
in cross-examination that a ram’s horn could break in seconds, and despite stating that she did not believe the split happened the day of her inspection, she did not try to date the inflammation of the sheep’s skin and agreed that the aging of the split could have been less than 48 hours. Mr Forster further argues that Ms Huang discounted that the horn could have been broken in transportation because the trip was short, but she did not consider other factors such as terrain on the journey or whether the rams had been tightly packed. He says that it is notable that the ram’s broken/ingrown horn was not identified until the second day at PML.
[39] Further, Mr Foster says that the timing of the crack in the ram’s horn could well have been when it was in the yard as it was actually there for a day before the MPI vet, Ms Huang, examined it. He points to exhibit B produced at the hearing which is a diagram of the yard bearing the initials of the vet with a time of “5.35am” and date of 3 December 2022 entered. This is a day later or 22 hours after the ram had arrived at the PML yard. The Judge had referred to the checking being done by Ms Huang on 2 December.45 Mr Foster says the Judge’s reasoning was therefore conclusory in preferring the evidence of Ms Huan.
[40] Mr Forster developed his argument in relation to this charge further in oral argument. He said having read the submissions of the respondent he had changed his focus in relation to the third charge. He said that while the Judge correctly referred to the standard of proof as beyond reasonable doubt,46 a nuanced reading of the judgment indicates that the Judge did not apply that standard.
[41] Mr Forster says that while the Judge did not refer to the “rebuttable presumption” as he did in relation to the earlier two charges one cannot be confident that he in fact had approached the proof in the same erroneous manner. Mr Forster submits that the prosecution cannot prove the injuries were present at the point of loading for transportation and charge three should also be dismissed.
45 Liability Decision, above n 1, at [71].
46 Liability Decision, above n 1, at [85].
The Ministry for Primary Industries
[42] Starting with charge one, Mr Bridgman submits that his Honour did not misapply the onus of proof. He acknowledged that the reference to a “rebuttable presumption” is incorrect, this was simply a phrase used by the Judge to summarise his reasoning. Mr Bridgman says that, having regard to the case in its entirety, the onus was not misapplied. He says that the judge addressed the requisite issues, and although his wording may have been incorrect, there was no fundamental error and a miscarriage of justice had not occurred.
[43] Mr Bridgman does not accept that the Judge exhibited any kind of evidential fallacy. Rather, he says that the relevant comments made by the Judge meant that there was no evidence in support of the submission that the rams became lame after loading. Mr Bridgman also says that the Judge did not make any kind of “conclusory credibility preference”. He submits that the Judge did not make a finding as to credibility, but rather a finding of accuracy. Mr Bridgman submits that the judge gave reasons were as to why he preferred Mr Chan’s evidence. This was because Mr Chan was able to use all his senses when he had examined the ram in person. This was in comparison with Mr Marshall’s assessment on the photos and documents. The submission was that this was exactly the type of analysis of witnesses that the trial Judge is best placed to assess.
[44] Turning to charge two, Mr Bridgman again denies a misapplication of the onus of proof, for the reasons given above. Again, Mr Bridgman says that the evidence before the Judge was sufficient for a finding that the lameness was due to a chronic condition which could not have been developed in the short journey. The critical issue of when lameness developed was therefore addressed and no miscarriage has occurred.
[45] Mr Bridgman puts forward similar submissions in relation to charge three. Once again, Mr Bridgman says that the Judge correctly considered all of the evidence before him and did not misapply the onus of proof in any way. He says that the Judge reached the only reasonable conclusion on the evidence—being that the ingrown horn was not an acute condition—and that sufficient reasons were provided for this.
Discussion
[46] If the Judge’s reasoning had been that only because the ram was lame when it arrived at PML it must have been lame when loaded on to the truck, and so found the charge was proved, he would have been in error. However, I accept the submission of Mr Bridgman that, reading the Judge’s reasoning in its context, it is clear that he was not misapplying the burden of proof or otherwise placing an illegitimate onus on Mr Charteris. I agree with Mr Bridgman that the term “rebuttable presumption” is simply a poor choice of words by the Judge.
[47] Throughout the judgment, it is clear that the Judge weighed up the evidence and arguments offered by the parties, and then came to the conclusion that the relevant ram was unfit at the time it was loaded and did not become so afterwards. The Judge used the term “rebuttable presumption” once he had already set out the evidence of the parties and made a determination as to which he would prefer. I accept that it is clear that what the Judge meant when using the term “rebuttable presumption” was that, once the actus reus had been established beyond reasonable doubt, Mr Charteris could have relied on any reasonable excuse or affirmative defence. Mr Charteris chose not to do so. This led the Judge to refer to the presumption (i.e, the actus reus having been established) as not being ‘rebutted’. This is evident from the wording of para [54].47 I note as well that the Judge correctly sets out the standards of proof to be applied at [3]–[7] of the Liability Decision,48 suggesting he was aware and applied the correct law in this regard.
[48] I do not accept Mr Forster’s submission that the Judge failed to identify and address a critical issue; being the state of the ram at the time of loading. Again, it is clear that the Judge assessed all of the evidence provided and came to the conclusion that the rams were unfit for transport at the relevant time, to the requisite standard of beyond reasonable doubt. I also accept the submission of Mr Bridgman that the Judge did not display any kind of illogical or fallacious reasoning in evaluating the evidence offered. In context, the Judge’s comment that there was “no evidence … supporting that [defence] submission” does not lend itself to, as Mr Forster would have it, the
47 Liability Decision, above n 1.
48 Above n 1.
Judge finding there was no evidence at all offered by the defence in relation to a particular point or issue. The statement portrays that there was no evidence that advanced the point sought to be made. This is a finding that was open for the Judge to have made.
[49] I also accept Mr Bridgman’s submission that the Judge did not make sweeping or conclusory credibility preferences in relation to the witnesses. The Judge did not suggest that Mr Marshall was not a credible witness, rather, he concluded that the evidence of the prosecution witnesses was more accurate given their ability to observe the rams at the relevant time. I agree with Mr Bridgman that it is a matter of common sense given the issues in this case as to why first-hand experience evidence may be preferred. Injuries to animals can be detected by senses such as smell (for example in relation to charge one, where necrotic flesh regarding a degloved hoof would be able to be smelt). I do not accept the submission of Mr Forster that taking this proposition to its natural conclusion means that in-person evidence will always be preferred. Generally, the evaluation of evidence requires more than simply assessing whether someone viewed an event first-hand. It requires assessments of credibility, consistency, and reliability, and there is nothing to suggest that the Judge did not take these considerations into account when evaluating the expert evidence. I agree with Mr Bridgman that the customary caution normally observed by appellate courts when considering credibility findings on contested oral evidence must also be applied here.
[50] As to charge one, the Judge made no error in his conclusions based on the evidence of Mr Marshall, Mr Charteris and Mr Chan. There was common ground that there was underlying disease in relation to the ram that would have developed over time. Mr Chan’s evidence was that an otherwise healthy hoof would not have degloved in this way. The ram also had other health issues which would have also contributed to a finding that it was unfit for transport (such as a cavity under the hoof, an overgrown hoof and a swollen carpal joint). On the disagreement as to the ‘freshness’ of the injury, it was open to the Judge to find that there was limited evidence supporting a submission that any ‘degloving’ occurred on PML premises. I also accept Mr Bridgman’s submission that the ‘degree of lameness’ does not have a bearing on whether the ram is unfit for transport; the only requirement is that it meet the definition of ‘lame’. On the evidence, it was open for the Judge to find that the
ram was unfit for loading at the time of transport and hold charge one proved beyond reasonable doubt.
[51] In regard to charge two, based on the evidence of Mr Marshall and Ms Upsher there is no reasonable possibility that a different verdict could have been reached. Mr Marshall’s evidence was that the condition of the ram was likely chronic, and although acute trauma or an unfamiliar surface may have exacerbated the condition, and further information was required to make such a finding. Ms Upsher’s evidence also suggested that there was no obvious skin injury, and that it was likely that the swelling occurred over a period of weeks as a result of arthritis, the evidence taken in the round suggests that the ram would have been non-weightbearing (and therefore unfit) at the time of transport.49
[52] In regard to the third charge, the evidence of Mr Charteris, Mr Marshall and Ms Huang does not allow of a reasonable possibility that a different verdict could have been reached. I agree with the Judge that Mr Marshall’s expert evidence was not particularly illuminating on the cracked and ingrown horn suffered by the relevant ram. In contrast, Ms Huang’s evidence was consistent and convincing. She said that the injuries did not seem fresh and were likely present before transport. Although I acknowledge Mr Forster’s point that the rams were held for around 22 hours before inspection, Ms Huang’s clear evidence was whilst the injury could have been caused by two rams fighting, the absence of fresh blood, lack of injury to other animals and the extent to which the horn was ingrown suggested the injuries were not a recent occurrence.
[53] For these reasons, there has been no error in the reasoning of the Judge such as to give rise to a miscarriage of justice in this case. Nor did the Judge err in his assessment of the evidence such as to give rise to a miscarriage of justice.
Conclusion
[54]Accordingly, the appeal is dismissed.
49 In line with the definition at reg 40 of the AWCPR, set out above.
Grice J
Solicitor:
Elvidge & Partners
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