Charteris v The King
[2025] NZCA 244
•16 June 2025 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA112/2024 |
| BETWEEN | SIMON JOHN MINSON CHARTERIS |
| AND | THE KING |
| Hearing: | 14 May 2025 |
Court: | Thomas, Fitzgerald and Eaton JJ |
Counsel: | E J Forster and S B W Yee for Appellant |
Judgment: | 16 June 2025 at 2.30 pm |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe appellant is discharged without conviction on all three charges.
CThe fine of $3,800 is set aside and an order that the appellant pay $3,800 towards the Ministry for Primary Industries’ costs is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
At 54 years of age and with no prior convictions,[1] Simon Charteris was convicted of three charges of permitting without reasonable excuse rams to be transported when they were unfit for transport.[2] He now appeals against the refusal to discharge him without conviction.
Background
[1]Save for a 1987 conviction for being a minor found in a bar.
[2]Ministry for Primary Industries v Charteris [2023] NZDC 3883 [conviction judgment]; and Animal Welfare Act 1999, s 23(2)(c).
Mr Charteris was convicted of the three charges following a Judge-alone trial before Judge Matenga in the District Court at Hastings.[3]
[3]Conviction judgment, above n 2.
On sentencing Mr Charteris on 18 August 2023, the Judge accepted the gravity of the offending was low, the result of an inadvertent slip or a simple error.[4] In two instances, the rams were lame and in one the ram had an ingrown and cracked horn.[5] He also accepted that there was a real and appreciable risk of a conviction having a consequential impact on Mr Charteris’ employment.[6] But he was not persuaded the consequences of conviction would be out of all proportion to the gravity of the offending.[7] He declined Mr Charteris’ application for a discharge without conviction and fined him $3,800.[8]
[4]Ministry of Primary Industries v Charteris [2023] NZDC 12477 [discharge judgment] at [21] and [35].
[5]At [3].
[6]At [33].
[7]At [37].
[8]At [55].
Mr Charteris appealed his conviction to the High Court on the grounds the Judge erred by misapplying the onus and standard of proof, failing to identify the critical issue on the charges, and making a broad credibility preference as to the expert evidence.[9] He did not appeal his fine or the refusal to discharge him without conviction. On 22 November 2023, in the High Court, Grice J dismissed Mr Charteris’ conviction appeal.[10]
[9]Charteris v Ministry for Primary Industries [2023] NZHC 3321 [conviction appeal judgment] at [22].
[10]At [54].
Mr Charteris then sought to appeal the decision not to discharge him without conviction, by way of a sentence appeal.[11]
[11]Charteris v Ministry for Primary Industries [2024] NZHC 353 [jurisdiction judgment] at [4].
An appeal solely seeking to challenge a discharge without conviction decision is properly characterised as an appeal against conviction.[12] The High Court therefore concluded that, because Mr Charteris had already appealed his conviction, the High Court lacked jurisdiction to hear the appeal.[13] This Court then gave leave for a second appeal against conviction.[14] Leave was granted on the basis that there were arguable errors in the District Court judgment refusing to discharge Mr Charteris without conviction, meaning a miscarriage of justice may have occurred.[15]
Grounds of appeal
[12]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8].
[13]Jurisdiction judgment, above n 11, at [17].
[14]Charteris v R [2024] NZCA 556 [leave to appeal decision] at [15].
[15]At [11]–[14].
The grounds of appeal involve two alleged material errors:
(a)there was a disconnect between the District Court’s acceptance that the gravity of the offending was low and there was a real and appreciable risk of an impact on Mr Charteris’ employment and the finding that those consequences would not be out of all proportion to the gravity of the offending; and
(b)the Court failed to address Mr Charteris’ personal circumstances and, had the Court done so, it was conceivable the penalty would have been reduced to the point that the test for discharge would have been met.
While incorporating those grounds into our assessment, we propose to address the appeal as follows:
(a)Did the Judge err in failing to take account of personal circumstances in his assessment of the gravity of the offending?
(b)If so, were the consequences of the conviction out of all proportion to the gravity of the offending?
Did the Judge err in failing to take account of personal circumstances in his assessment of the gravity of the offending?
Facts of the offending
Mr Charteris operated a specialist farming business whereby near end-of-life rams from around the country were delivered to him at his property in Hastings. He held the rams for a short period before transporting them to a meat processing plant, Progressive Meats Ltd (PML), also in Hastings.
Mr Charteris was charged with three offences under s 23(2)(c) of the Animal Welfare Act 1999 alleging that, on three occasions, he was a person in charge of a ram and permitted it, without reasonable excuse, to be transported while the condition of that ram was such as to render it unfit to be so transported. The charges related to: 5 August 2020, when the ram was described as having severe bilateral foreleg lameness; 11 November 2020, when the ram was described as having severe lameness on the right front limb and being non-weight bearing; and 2 December 2020, when the ram was described as having a broken and ingrown horn. On all occasions, the transport was to PML. The maximum penalty at the time was 12 months’ imprisonment or a fine not exceeding $50,000 or both.[16]
[16]Animal Welfare Act, s 25(a).
The burden of proving that there was a reasonable excuse lay on Mr Charteris.[17] Mr Charteris did not assert reasonable excuse. Rather, he claimed the Ministry for Primary Industries (MPI) could not prove that each of the rams was unfit to be transported.
[17]Section 168A.
In a prosecution for an offence against s 23, evidence that a relevant minimum standard of a relevant welfare code that was in existence at the time it was breached is rebuttable evidence that the person charged with the offence failed to comply.[18] It is a defence if a defendant proves the minimum standards in the relevant welfare code were in all respects equalled or exceeded.[19] The relevant welfare code was the Code of Welfare: Transport within New Zealand 2018 which in turn referred to lame animals not being transported except as allowed by reg 40 of the Animal Welfare (Care and Procedures) Regulations 2018.[20] Those Regulations also prohibited the transport of an animal with an ingrown or broken horn.[21]
[18]Section 24(1).
[19]Section 24(2).
[20]Code of Welfare: Transport within New Zealand 2018, minimum standard 6(da).
[21]Animal Welfare (Care and Procedures) Regulations 2018, regs 38–39.
The Judge considered all those matters when he assessed the evidence. He heard from the veterinary technical specialists employed by MPI, who were based at PML and conducted ante-mortem inspections of animals arriving at the plant to determine if they were fit for transport and slaughter. On all three occasions, a veterinarian had inspected the relevant ram and observed the injuries alleged. Mr Charteris gave evidence that he did not observe either the two incidents of lameness or the incident of an ingrown horn. Mr Charteris also called an expert veterinarian to address the possibility that the various injuries were either suffered during transportation or at some other time prior to inspection.
The Judge was satisfied on the evidence that the charges were proved beyond reasonable doubt and he found Mr Charteris guilty.[22]
Evidence in support of application to be discharged without conviction
[22]Conviction judgment, above n 2, at [86].
In his affidavit in support of his application, Mr Charteris explained that his business, McCharty Ltd (McCharty), was the only business of its kind in New Zealand supplying lower value meat cuts for export. It was unique in that it specialised in end‑of-life rams from New Zealand sheep farmers with products sent to markets around the world. The business was established in 2008. Mr Charteris initially ran the business with his father-in-law but, when he died in August 2019, Mr Charteris began managing the business himself. In his experience, New Zealand sheep farmers would have between eight to ten end-of-life rams to dispose of each year, which was a challenge for the farmers who would typically leave them to live out their remaining time on the farm or use them for pet food. It was not economically viable for meat processors to process rams for individual farmers. By accumulating the end-of-life rams from across New Zealand, McCharty had sufficient numbers to make processing viable, which provided an income to farmers when otherwise there would have been none. At the time of his application to be discharged without conviction in June 2023, McCharty was processing between 10,000 and 15,000 rams per year.
Mr Charteris explained that it is more challenging to handle rams, especially old-age rams, than other herd animals. Given their age, old-age rams are also more likely to suffer ailments. Since taking over the business from his father-in-law, Mr Charteris had reviewed and developed animal welfare practices set out in three policies: the Ram Standards Policy; the Livestock Arrivals Policy; and the Livestock Loadout Policy.
Those policies were provided to employees and suppliers and kept in the farm woolshed. Mr Charteris said he sat down with his employees to check they had read and understood them.
Rams were kept on the farm for between 3 and 14 days before transportation to PML, 6 km away.
From the time of arrival on the farm to departure, Mr Charteris and his employees inspected the animals at three intervals:
(a)On arrival, when the rams were unloaded and reconciled against the declarations which accompanied them. The rams were divided into three lines: rams ready for slaughter; rams requiring shearing; and rams exhibiting signs of injury or symptoms of illness, which were put into a “hospital paddock”.
(b)At shearing, when rams requiring shearing were seen at close quarters.
(c)On departure, when the rams were mustered from a big pen into small pens holding between 16 to 17 rams. The smaller pens were then walked through to inspect the rams for signs of injury or illness before they were loaded up the truck ramp. To muster the rams into smaller pens, the rams were individually counted into the pens by Mr Charteris and/or one of his employees.
Mr Charteris said:
21 Animal welfare standards remain at the top of my business values. I am regularly reviewing our policies and procedures for the care and wellbeing of our livestock.
22 An independent rural farm veterinary expert, Mr Simon Marshall, has reviewed my inspection policies and procedures and confirmed they are robust. I did not see the rams to be in the condition as captured in the Works’ vets’ photographs, on farm. Had I done so, I would have removed them from the herd to be transported without question.
23 In the context of the 10,000 and 15,000 animals processed annually, these incidents are outliers and are not representative of my practice.
Simon Marshall, veterinarian, provided an affidavit. He was asked to assess the adequacy of Mr Charteris’ ram inspection practices and procedures in place at the time of the offences. He concluded the policies and procedures were robust and complied with the minimum standards contained in the Code of Welfare: Transport within New Zealand 2018 and the Code of Welfare: Sheep and Beef Cattle 2018.
The evidence in support of the application to be discharged included eight letters of reference which we discuss in detail below.
Decision refusing to discharge Mr Charteris without conviction
Against that backdrop, we turn to the District Court decision refusing to discharge Mr Charteris without conviction.
Counsel for MPI had submitted a fine with a starting point of $5,000 or 300 hours’ community work was appropriate.[23] Mr Charteris sought a fine of around $3,000 together with a discharge without conviction and permanent name suppression.[24]
[23]Discharge judgment, above n 4, at [5].
[24]At [6].
The Judge began by setting out the test in the Sentencing Act 2002:[25]
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[25]At [7].
He noted the applicable principles had been well-traversed by this Court.[26] The Judge set out a three-step process: assessing the gravity of the offending, the consequences of a conviction and whether the consequences were out of all proportion to the gravity of the offence.[27] If so, then the Court had a discretion pursuant to s 106.[28]
[26]At [8], citing Blythe v R [2011] NZCA 190; Rahim v R [2018] NZCA 182; R v Smyth [2017] NZCA 530; and R v Hughes [2008] NZCA 546.
[27]At [9].
[28]At [9].
The Judge said the assessment of the gravity of the offending was as to the seriousness of the offending within the context of the type of offence.[29] He noted the offences were strict liability.[30] He referred to his comment in the conviction decision that it was unnecessary to make any findings regarding the degree of lameness of the rams, noting the minimum standard required nothing further and he therefore did not consider any further submissions in relation to the degree of lameness.[31]
[29]At [11].
[30]At [12].
[31]At [13], referring to conviction judgment, above n 2, at [51].
The Judge considered Mr Charteris’ policies and practices were relevant in order to gauge whether or not the breaches were inadvertent.[32] The Judge noted that McCharty could process 10,000 to 15,000 end-of-life rams annually and concluded that the three incidents were not representative of the business or quality of Mr Charteris’ stockmanship practices.[33] He noted Mr Charteris had taken the advice of a veterinary expert.[34] He accepted the submission that all Mr Charteris could do was inspect the animals visually when they arrived at his property and were being prepared for transportation.[35]
[32]At [14].
[33]At [15].
[34]At [16].
[35]At [16].
The Judge then took account of the six infringement notices and five letters Mr Charteris had received from MPI alerting him to issues with his stock.[36] They related to the transportation of rams at various times between 20 October 2016 and 14 April 2022, including the transportation of rams with ingrown horns and lameness.[37]
[36]At [17].
[37]At [17].
The Judge noted Mr Charteris had pleaded not guilty to all three charges.[38] He then said:
[21] Having considered the circumstances of the offending, the mitigating and aggravating features, I accept the assessment of counsel that the gravity of the offending should be characterised as being low.
[38]At [20].
We will address the Judge’s assessment of direct and indirect consequences under the next heading and at this point simply note that, when addressing proportionality, the Judge repeated that the facts disclosed low-level offending and that Mr Charteris’ offending was “inadvertent, a slip or a simple error”.[39]
Did the Judge use the correct legal test?
[39]At [34]–[35].
While the Judge referred to case law describing the test under s 107, we are not satisfied it was properly applied in the circumstances. The first stage of the test has been described in this Court as follows:[40]
[15] At the first stage of the s 107 analysis, the statute directs attention to a determination of the gravity of the offence. That suggests at first sight that the court is concerned at that stage only with determining the gravity of the criminal act, but it is now well-settled that the exercise requires an assessment of the proportionality between the overall gravity of the offending and the consequences. The “gravity of the offence”, therefore, is to be assessed by considering all the aggravating and mitigating factors relating to the offending and the offender.
[40]Rahim v R, above n 26 (emphasis in original and footnote omitted).
It appears, both from the words and approach of the Judge, that his assessment of the gravity involved considering the offending itself plus the personal aggravating factors of the six previous infringement notices and five letters. It did not however consider personal mitigating factors. In particular, there was no consideration of Mr Charteris’ good standing in the community and lack of prior convictions.
Mr Charteris was 54 years old, with no criminal convictions save for a 1987 conviction for being a minor found in a bar in respect of which he was fined. That conviction can be put to one side. Mr Charteris can be considered to have no prior convictions.
The Judge made no reference to the eight letters of reference which had been filed. Because of their importance, we canvass them in some detail.
The Managing Director of PML described Mr Charteris’ business as beneficial for farmers, as well as for providing employment for PML’s workers. He said PML’s dealings with Mr Charteris over 15 years were honourable and professional. The Livestock Manager of Carrfields Livestock, Hastings, had personally dealt with Mr Charteris in a voluntary role and could not speak more highly of the tireless hours he would devote without complaint. He said Mr Charteris had “huge respect in the farming community”. The Director of MTF Finance, Hastings, has known Mr Charteris for over 20 years and “found his honesty and integrity to be beyond reproach”. He spoke of the high regard and respect with which he is held in the rural banking industry.
Steve Wyn-Harris, a sheep and beef farmer, had been supplying rams to Mr Charteris. He noted rams are not the “easiest of the sheep classes to deal with” and described the service provided by McCharty as ensuring animals were treated in a professional and humane manner. Tim and Jacs Klingender described Mr Charteris as a “fine upstanding man”, being of the utmost integrity, kind and hospitable. They both came from farming backgrounds and described Mr Charteris’ “tremendous stockmanship” with his dogs and the animals he managed. Tom O’Sullivan, sheep farmer, described the service provided by McCharty as “vital”, saying that, without the service, the New Zealand meat industry would be at much higher risk of multiple welfare incidents. He noted that Mr Charteris has gone to significant lengths to install robust processes to ensure his animals were in full health.
Rhys Harman, Waimārama Surf Club IRB Racing Coach, and General Director on its Board of Trustees, discussed his selection of Mr Charteris as recipient of one of the Club’s most prestigious awards, the Robert Barr Memorial Cup. He selected Mr Charteris for the award given his countless hours devoted on a voluntary basis to the Club, his generosity and his leadership. He described Mr Charteris as a man of “outstanding character, reliability, dependability and integrity”.
The former Principal of Twyford School discussed Mr Charteris’ election to the School Board of Trustees and role of Chairman, describing Mr Charteris as one of the best chairpersons with whom he had worked. He said Mr Charteris is not only positive and enthusiastic but he admired him for his integrity and empathy, saying he went “above and beyond” to support the school.
As a counter to that evidence, Mr Blaschke, for the respondent, submitted the offending represented “a considerable failure by a significant commercial operator to meet his animal welfare obligations”. In his submission, there were multiple opportunities for close and safe inspection to ensure the health of the rams, saying their injuries ought to have been “obvious and observable”, seemingly taking issue with the Judge’s characterisation of the offending as a simple error. He emphasised Mr Charteris himself was directly responsible for the offending — he was a specialist operator and acutely aware that the nature of his operation carried a high animal welfare risk. He had received repeated warnings. That meant, in Mr Blaschke’s submission, that the Judge clearly did not accept Mr Charteris was of good character when it came to animal welfare. He did not accept the offending, pleading not guilty.
We consider the Judge was well-placed to conclude that the gravity of the offending was low. However, in assessing the gravity of the offending, the Judge erred in failing to take account of the fact that Mr Charteris was otherwise of good character — evidenced by his lack of a criminal record and significant contribution to the community over a long period. When these matters are added to the assessment, the already low gravity of offending is reduced even further.
Were the consequences of the convictions out of all proportion to the gravity of the offending?
Having found an error in the Judge’s approach, we undertake afresh an assessment of the consequences of conviction, then conduct the weighing exercise and consider the discretion as required by ss 107 and 106 of the Sentencing Act respectively.
What did the Judge say about the consequences of conviction?
At the time the matter was before the District Court, McCharty was still operating. However, Mr Charteris’ evidence was to the effect that, since the COVID‑19 pandemic and war in Ukraine, the cost of operating the business had increased and its profitability reduced.[41] Mr Charteris had deposed that he would need to seek alternative employment, likely to be in either agribusiness or farm management, or return to the rural banking industry where Mr Charteris had considerable experience.[42] The Judge noted that Mr Charteris’ accountant had provided an affidavit in support of Mr Charteris’ evidence about the business.[43]
[41]Discharge judgment, above n 4, at [22].
[42]At [22].
[43]At [22].
It was submitted that Mr Charteris’ chances of obtaining gainful employment in his desired areas would be severely undermined if he were convicted.[44] In support of the submission, affidavits were filed from an agribusiness recruitment consultant, the ASB Rural Banking Manager for East Coast Manawatu and a director of Fern Ridge Ltd, a specialist meat trading and marketing company.[45] The Judge accepted that the evidence “certainly” supported the submission Mr Charteris made.[46]
[44]At [23].
[45]At [23].
[46]At [23].
The Judge then referred to the submissions on behalf of MPI to the effect that, because Mr Charteris was planning a trip to explore business opportunities overseas and given his business involved a national monopoly, the Court should infer it was highly unlikely that Mr Charteris would lose his business.[47] It was also submitted that the Court should not usurp the role of a professional body or potential employer to decide the significance of a particular conviction.[48] The Judge considered prospective employers would likely already know of the offending and therefore the application for a discharge without conviction was weaker.[49] He noted that Mr Charteris had been a rural manager with ASB for a number of years and it would therefore be more likely that the circumstances of his offending would be fully known, understood and considered.[50] He also pointed out that AgRecruit, for example, asks candidates not only whether they had any convictions but whether they had ever been charged.[51]
[47]At [24]–[25].
[48]At [27].
[49]At [27].
[50]At [27].
[51]At [28].
The Judge did not consider that the submissions on international travel or effect on Mr Charteris’ mental health and sense of self were sufficient but was satisfied the direct and indirect consequences in relation to the impact on employment was a matter which should properly be considered.[52] He accepted there was a real and appreciable risk of such consequences.[53]
[52]At [33].
[53]At [33].
In his assessment of proportionality, the Judge weighed up the effect convictions could have on Mr Charteris’ ability to find alternative employment, saying:
[36] … I use that term ‘alternative employment’ deliberately as the defendant is currently employed as a director of a company which has a unique position within the farming industry in New Zealand. No one else processes near end-of-life rams. Mr Charteris has a high volume and it is therefore unlikely in my view that his ongoing customers will change their practices and cease to supply Mr Charteris.
The Judge was not persuaded that the consequences would be out of all proportion and declined the application.[54] He also declined Mr Charteris’ application for permanent name suppression because he was not satisfied the threshold test was met.[55]
Fresh evidence
[54]At [37].
[55]At [54]. Mr Charteris has not appealed the refusal to grant permanent name suppression to this Court.
Mr Charteris filed an affidavit dated 1 March 2024 in support of his application for leave to appeal. That revealed Mr Charteris ceased ram processing from August 2023, as a result of a downturn in the price of ram meat and increased costs. Mr Charteris then sought alternative employment and was employed as a rural banker for Heartland Bank from 28 August 2023. However, after receipt of the 14 December 2023 High Court judgment dismissing Mr Charteris’ appeal against conviction, he told Heartland Bank of the outcome and his employment was ended. Heartland Bank considered that was in its best interests as the conviction “poses potential risks to the brand and reputation of Heartland Bank”. Although Mr Charteris had since obtained alternative employment in banking, he now realises how vulnerable his employability within his industry has become.
Mr Blaschke accepted the evidence before the District Court focused on the possibility of things occurring and Mr Charteris’ affidavit was evidence that they had in fact occurred. He therefore acknowledged its relevance and that Mr Charteris was not attempting to advance consequences of conviction which were not raised at first instance. We concur. The evidence is fresh, reliable and cogent.
Assessment
Mr Blaschke submitted the evidence filed in support of the application shows the high regard in which Mr Charteris is held and therefore, in his submission, he is far from unemployable. He also criticised the lack of any evidence as to the financial consequences of not being able to obtain employment. Mr Blaschke emphasised the purpose of the relevant part of the Animal Welfare Act is to ensure those in charge of animals attend properly to their welfare.[56] He noted Mr Charteris had received a further warning and infringement notice subsequent to the offending for substantially the same kind of welfare breaches and submitted that was relevant to the discretionary stage of the assessment.
[56]Section 9(1).
We accept those submissions. Nothing in this decision should be read as undermining the importance of the Act’s purpose or animal welfare more generally.
However, we do consider it particularly relevant that Mr Charteris’ business has ceased operating and that the risk of the convictions adversely affecting Mr Charteris’ employment has been borne out. Notwithstanding that he is now in employment, we consider there is a real and appreciable risk that the convictions will be an impediment to his future employability.
In light of our assessment of the gravity of the offending, and our finding on the consequences of a conviction, we are satisfied the consequences are out of all proportion and, exercising our discretion, discharge Mr Charteris without conviction.
It follows that the $3,800 fine must be set aside.[57] However, we consider it appropriate to order Mr Charteris to pay $3,800 in costs to MPI.[58]
Result
[57]Section 25. This section provides that a person who commits an offence against s 23(2) is liable for a fine on conviction.
[58]Sentencing Act 2002, s 106(3)(a).
The appeal is allowed.
The appellant is discharged without conviction on all three charges.
The fine of $3,800 is set aside and an order that the appellant pay $3,800 towards the Ministry for Primary Industries’ costs is substituted.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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