COLIN FREDERICK EVANS AND THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED
[2024] NZCA 668
•16 December 2024 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA449/2024 |
| BETWEEN | COLIN FREDERICK EVANS |
| AND | THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED |
| Court: | Katz, Dunningham and Powell JJ |
Counsel: | A M Simperingham for the Applicant |
Judgment: | 16 December 2024 at 10.00 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Powell J)
Following a judge-alone trial, Colin Evans was convicted and sentenced on 30 charges under ss 12(a) and 29(a) of the Animal Welfare Act 1999 (AWA).[1] The charges involved the ill treatment of horses,[2] and the failure to ensure that the physical, health and behavioural needs of horses in his care were met in accordance with good practice and scientific knowledge.[3]
[1]The Royal Society for the Prevention of Cruelty to Animals (SPCA) v Evans [2023] NZDC 13510; and Royal New Zealand Society for the Prevention of Cruelty to Animals v Evans [2023] NZDC 18281.
[2]Animal Welfare Act 1999, ss 29(a) and 37(a). Maximum penalty: 12 months’ imprisonment and/or a $50,000 fine.
[3]Sections 10, 12(a) and 25(a). Maximum penalty: 12 months’ imprisonment and/or a $50,000 fine.
On appeal to the High Court, Lang J allowed Mr Evans’ first appeal in part. Having determined video surveillance footage relied upon by the District Court was inadmissible,[4] Lang J quashed 23 of Mr Evans’ convictions and upheld the remaining seven.[5] Lang J then adjusted Mr Evans’ sentence on his remaining convictions.[6]
[4]Evans v The Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) [2024] NZHC 1089 [High Court judgment No 1].
[5]Evans v The Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) [2024] NZHC 1567 [High Court judgment No 2] at [28]–[29].
[6]Evans v The Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) [2024] NZHC 1729 [sentencing notes] at [26].
Mr Evans now seeks leave to bring a second appeal against his seven remaining convictions. The application is opposed by the respondent, The Royal New Zealand Society for the Prevention of Cruelty to Animals Inc (SPCA). By minute dated 26 July 2024, Ellis J directed that the application for leave be dealt with separately to the proposed appeal and on the papers.
Relevant law
Mr Evans’ application is brought pursuant to s 237 of the Criminal Procedure Act 2011.[7] Section 237(2) provides that this Court must not give leave for a second appeal unless satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[7]It is noted that the original application for leave to bring a second appeal was made under s 223 seeking a second appeal against a pre-trial decision. As the SPCA pointed out, the application was, in fact, an application for leave to bring a second appeal against a conviction pursuant to s 237. While no formal application to that effect was made, the appellant’s substantive submissions have approached the application on the basis it is brought under s 237.
The threshold under s 237(2)(a) is high. An appeal is unlikely to give rise to an issue of general or public importance unless it raises an issue of “general principle or of general importance in the administration of the criminal law”, including one that has broad application beyond the circumstances of the particular case.[8]
[8]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36], quoting Keenan v R [2005] NZSC 63 at [5].
The threshold for a miscarriage of justice under s 237(2)(b) is also high, and not every error amounts to a miscarriage. This Court will be slow to grant leave where success for an appellant would require this Court to reverse concurrent findings of fact below. This particularly applies where the trial was before a judge alone, because the appellant has had the benefit of two judgments giving reasons for those factual findings.[9] This Court can also be expected to decline leave on this ground where the appeal concerns issues that have been thoroughly traversed by the lower courts.[10]
[9]R (CA176/16) v Police [2016] NZCA 403 at [26], citing: McAllister v R, above n 11, at [38]; Butler v Police [2016] NZCA 27 at [3]; and Warren v R [2016] NZCA 108 at [30].
[10]Mathew Downs (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CPA237.04], citing Wells v R [2015] NZCA 528.
This Court’s perception of the strength of the issues that might be raised on appeal relates to whether a miscarriage of justice may have occurred as well as, perhaps, whether an appeal is of general or public importance.
Background
The background to this matter was summarised on appeal by Lang J in the High Court in the following terms:[11]
[5] … Between March 2017 and February 2018, the SPCA investigated complaints made by members of the public concerning the manner in which Mr Evans was caring for horses at stables situated on a property at Dairy Flat to the north of Auckland. This led SPCA inspectors to visit the stables in April and May 2017 and again in February 2018. The inspections led to the SPCA becoming concerned regarding the manner in which Mr Evans was caring for the horses.
[6] On 8 June 2018, the SPCA obtained a surveillance device warrant from a Judge in the Manukau District Court. It then arranged for a technician to install a closed‑circuit television (CCTV) camera in the stables. This occurred on an occasion when SPCA animal welfare officers inspected the stables on 14 June 2018. The surveillance by the CCTV camera provided a full view of the interior of the stables. From 14 June 2018 it was undertaken continuously for 24 hours each day over a 23-day period. During this period SPCA officers returned to the stables on several occasions to carry out further inspections. They took the opportunity during these visits to download film footage from the CCTV camera.
[7] On 31 July 2018, the SPCA executed a search warrant at the property. They seized 13 horses under s 133(2) of the AWA. These were fostered out at various other properties.
[8] The SPCA subsequently laid 58 charges against Mr Evans alleging offences under the AWA. Mr Evans elected trial by a Judge sitting without a jury.
[9] Prior to trial Mr Evans objected to the admissibility of the CCTV film footage. He contended the SPCA had obtained it in breach of his right under s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) to be free from unreasonable search and seizure. The SPCA accepted it had obtained the evidence unlawfully but contended that the evidence should nevertheless not be excluded under s 30(4) of the Evidence Act 2006. Section 30(4) requires the Court to exclude improperly obtained evidence if this is proportionate to the impropriety that has occurred.
[10] In a pre-trial ruling delivered on 6 July 2022, Judge A M Manuel held that exclusion of the evidence would not be a proportionate response to the impropriety that had occurred. She therefore ruled the evidence admissible at Mr Evans' trial.
…
[12] A second Judge-alone trial commenced before Judge Dawson on 2 May 2023. By the time this trial concluded, the number of charges had been reduced to 44. Of these, the Judge found that 30 had been proved beyond reasonable doubt.
[11]High Court Decision No 1, above n 6 (footnote omitted).
Lang J ruled that the CCTV footage of the stables was improperly obtained as the SPCA could never have legally obtained the authority to undertake such video surveillance from inside the property.[12] As a result, Lang J concluded the evidence ought to have been excluded at trial under the proportionality test in s 30 of the Evidence Act 2006 (EA).[13] His Honour then sought further submissions as to whether all of Mr Evans’ convictions should be set aside or whether some could be saved on the basis that they were supported by evidence obtained independently of the CCTV footage.[14]
[12]At [29]–[30].
[13]At [56]–[60].
[14]At [61].
In the course of further submissions, the SPCA identified seven charges that did not rely on the CCTV evidence. Instead, those seven charges relied on the records of inspections carried out before and during the period that the CCTV footage was obtained, and the evidence of veterinarians and a farrier who examined the horses after they had been seized pursuant to a search warrant that enabled the horses in question to be removed from the property (the downstream evidence).[15]
[15]High Court Decision No 2, above n 7, at [7]–[8].
The focus of the High Court appeal shifted at that point to the issue of the search warrant because it relied in part on the excluded CCTV footage; if the horses were not lawfully seized pursuant to the search warrant, the downstream evidence was not admissible. Addressing the issue in a second judgment, Lang J noted that there must be a causative link between an alleged impropriety and the evidence being obtained. His Honour took the view that, where there is a gap between the impropriety and the subsequently obtained evidence, as there was in this case between the downstream evidence and the CCTV surveillance, the question is whether the evidence would have been obtained but for the impropriety.[16]
[16]At [10], citing R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [47] and Perry v R [2015] NZCA 530 at [52].
In this case, Lang J noted that the application for the search warrant disclosed detailed information about the inspectors’ observations of the horses and stables during their eleven visits between 5 April 2017 and 6 July 2018.[17] Although five of those visits (those that took place on and after 14 June 2018) were used by the inspectors to install the CCTV camera and download film from it, Lang J found that in each case the inspections also made detailed observations of the horses on the property and the conditions in which they were being kept. Therefore, his Honour concluded that the inspections undertaken on these visits were separate to the CCTV surveillance that was also being undertaken during this period.[18]
[17]High Court Decision No 2, above n 7, at [20].
[18]At [23].
As a result, although the details of the CCTV footage supported the search warrant application, Lang J held that the detailed information about the inspections provided, in of itself, ample grounds to justify the search warrant being granted.[19] His Honour further emphasised that the lawfulness of those inspections was not challenged.[20]
[19]At [20].
[20]At [21].
Ultimately Lang J considered that the sufficiency of evidence for a search warrant application was a matter for the Court, and that the SPCA’s views on that issue were irrelevant. Therefore, his Honour disregarded Mr Evans’ arguments that the SPCA:
(a)had delayed obtaining the search warrant because it believed it did not have sufficient evidence to obtain a search warrant without the CCTV footage;[21]
(b)did not regard the plight of the horses as being sufficiently serious prior to 30 July 2018 to justify an application for a search warrant;[22] and
(c)did not immediately arrange for the horses to be seen by a farrier or veterinarian after they had been uplifted.[23]
[21]At [24].
[22]At [25].
[23]At [26].
Justice Lang therefore concluded that the search warrant and downstream evidence was lawfully obtained. Given this position, it was not necessary for Lang J to consider whether the search warrant or downstream evidence should be excluded under s 30(2)(b) of the EA.
As a result, Lang J dismissed Mr Evans’ appeal against the remaining seven charges.[24] Following the filing of further submissions, in his Honour’s third judgment Lang J adjusted Mr Evans’ sentence to take into account the result of the appeal. Mr Evans was ultimately sentenced to concurrent sentences of 72 hours community work on each of the seven charges and ordered to pay costs of $7,000. Finally, an order was made pursuant to s 169 of the AWA disqualifying Mr Evans from owning, expressing authority over or being the person in charge of horses for a period of two years from 24 August 2023.[25]
The position of Mr Evans
[24]At [28].
[25]Sentencing notes, above n 8, at [26].
On behalf of Mr Evans, Mr Simperingham submitted that leave to bring a second appeal should be granted because the proposed appeal:
(a)is strong;
(b)is of an appropriate nature;
(c)addresses a matter of general and public importance; and
(d)concerns a miscarriage of justice.
Mr Simperingham submitted that the proposed appeal is “feasible and strong”. In Mr Simperingham’s submission, the proposed appeal does not take issue with findings of fact, but with the application of the law in relation to the downstream evidence by the lower courts, and specifically the High Court’s conclusion that the downstream evidence was properly obtained.
In support of this proposition, Mr Simperingham reprised the arguments made in the High Court. He submitted the search warrant and the downstream evidence were improperly obtained and, for much the same reasons as Lang J excluded the CCTV evidence on appeal, the search warrant and downstream evidence should have been excluded under s 30 of the EA. The result would mean Mr Evans’ seven remaining convictions would also be quashed.
Specifically, Mr Simperingham contended:
(a)As the search warrant was obtained with partial reliance on the CCTV footage, there is a direct link between the unlawful CCTV surveillance and the obtaining of the downstream evidence.
(b)It is uncertain whether the SPCA would have applied for a search warrant or exercised its seizure powers had it not been for the CCTV footage, noting that the SPCA only applied for the warrant, seized the horses and obtained the downstream evidence after obtaining the CCTV footage, suggesting that until the CCTV footage was obtained the SPCA did not have grounds to seize the horses.
(c)The High Court erred in holding that the five SPCA inspections that occurred on and after 14 June 2018 were separate to the CCTV surveillance. Mr Simperingham argued that the purpose of these visits was to install, check or remove the CCTV camera, and that it is therefore unclear whether these inspections would have occurred if the SPCA was not gathering the CCTV footage. In Mr Simperingham’s submission, this makes it even less likely that the search warrant application would have succeeded given it relied on observations from both the CCTV footage and the SPCA inspections carried out on and after 14 June 2018.
(d)The downstream evidence is not independent of the CCTV footage because the witnesses that gave the downstream evidence made repeated reference to the footage in their evidence. Accordingly, Mr Simperingham argued it is clear that the trial judge relied to some extent on the CCTV footage to convict Mr Evans on the seven remaining charges. He also notes that the footage is relevant to those charges because it illustrates how the horses were exercised, fed and had their hooves trimmed — which affects the condition of their hooves and teeth.
Finally, Mr Simperingham, on behalf of Mr Evans, submitted that the proposed appeal involves a matter of general and public importance because it concerns an important question of law in relation to the use and control of statutory search powers that conflict with the NZBORA. He noted that the SPCA already has great search and seizure powers under the AWA, and so ruling the downstream evidence to be properly obtained and admissible despite being connected to a search warrant that was obtained with partial reliance on illegally gathered CCTV footage is not in the public interest nor the interests of justice, and is contrary to the need to have an effective and credible system of justice.
Discussion
Having considered the arguments advanced on behalf of Mr Evans, we conclude that leave should not be granted to bring a second appeal. We are satisfied that the proposed appeal does not involve a matter of general or public importance and that there is no risk that a miscarriage of justice may have occurred.
First, while we accept that the validity of the search warrant that enabled seizure of the horses was considered for the first time at the first appeal, this in and of itself does not provide a basis for granting leave to bring a second appeal. It is no different to any situation where an appeal is allowed in part at the first appeal, which inevitably would lead to a partial recasting of the key matters at issue.
As Mr Belcher submitted on behalf of the SPCA, leave is unlikely to be granted where the intended appeal raises issues in the nature of a factual assessment specific to the circumstances of the case, or challenges the application of well-established concepts to a particular fact pattern.[26] Likewise, this Court can generally be expected to decline leave where the appeal concerns issues that have been carefully traversed by the court (or courts) below.[27]
[26]Citing McAllister v R, above n 11, at [36]. Mr Belcher provided the following examples of such cases: Manoah v R [2020] NZCA 121; Hartley v Police [2020] NZCA 334; Job v R [2021] NZCA 322; Khalifa v New Zealand Police [2021] NZCA 409; Wedge v R [2024] NZCA 259; and R v Stewart [2022] NZCA 280.
[27]Citing Job v R, above n 35, at [18]; and Wells v R [2015] NZCA 528, above n 15, at [12].
In considering there were sufficient grounds for the search warrant to be issued without reliance on the CCTV footage, it is clear that Lang J applied settled law to the facts before him — specifically whether evidence was improperly obtained. As Mr Belcher has submitted, the proposed appeal simply seeks to revisit the factual analysis undertaken by the High Court against settled questions of law in order to obtain a different result. Mr Simperingham has not pointed to any authority to suggest Lang J’s analysis was incorrect, still less that any issue of principle arises that would have broader significance beyond this case. We accept Mr Belcher’s submission that simply because the appeal relates to the exercise of statutory powers of search and seizure does not mean it raises matters of wider importance.[28] It follows that no novel issue or point of law arises for this Court to clarify, nor is there any issue raised which is the subject of conflicting authority.
[28]Citing, as examples: Rangihuna v R [2021] NZCA 589 at [13]; Wild v New Zealand Police [2017] NZCA 420 at [18]–[19]; Jones v New Zealand Police [2020] NZCA 444 at [18]; and Khalifa v R, above n 35, at [8].
Moreover, to the extent that Mr Simperingham is now attempting to challenge the sufficiency of the evidence of the proof of the seven charges remaining in issue, we note that this issue was not raised in the High Court. On the contrary, Lang J made it clear that “the [District Court Judge] found that the evidence of the farrier and veterinarians was sufficient to establish the seven charges now in issue. I am not being asked to revisit that issue”.[29]
[29]High Court Decision No 2, above n 7, at [26].
It likewise follows we are not satisfied there has been any error or irregularity creating a real risk that the outcome of the High Court appeal had been affected. As a result, the high threshold for a miscarriage of justice has not been met.
Decision
The application for leave to bring a second appeal is declined.
Solicitors:
Woodward Chrisp Lawyers, Gisborne for Applicant
Luke Cunningham Clere, Auckland for Respondent
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