Evans v Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA)

[2024] NZHC 1567

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-529

[2024] NZHC 1567

BETWEEN

COLIN FREDERICK EVANS

Appellant

AND

THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA)

Respondent

Hearing:	On the papers
Counsel:	A Simperingham for Appellant R W Belcher for Respondent
Judgment:	14 June 2024

SUPPLEMENTARY JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by Justice Lang On 14 June 2024 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Luke Cunningham Clere, Wellington Woodward Chrisp, Gisborne

EVANS v THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SPCA) [2024] NZHC 1567 [14 June 2024]

[1] On 6 May 2024, I issued a judgment in this proceeding in which I upheld an appeal by Mr Evans against convictions entered on 30 charges laid under ss 12A and 29A of the Animal Welfare Act 1999 (the AWA).1 In my judgment I held that the prosecuting agency, The Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA), had obtained CCTV film footage of Mr Evans’ stables that breached his rights to privacy and to be free from unlawful search and seizure.2 I held that this evidence ought to have been excluded at Mr Evans’ trial because this was the only appropriate response to the impropriety that had occurred.3

[2]    Before setting the convictions aside, I gave counsel for the SPCA the opportunity to make submissions as to whether any of the convictions could be saved on the basis that they were supported by evidence that was independent of the CCTV film footage. The SPCA has now identified seven charges that it says were supported by evidence that has no connection with the CCTV film footage.4

[3]    Mr Evans challenges the SPCA’s stance on this point. He says the SPCA obtained the evidence after it executed a search warrant that was invalidly obtained. He therefore says the evidence is inadmissible and the convictions on the seven charges should be set aside.

The charges

[4]    The convictions related to charges alleging that Mr Evans had failed to properly attend to the welfare of horses in his care. The seven charges for which the SPCA seeks to retain convictions relate to six horses, referred to at trial as AR1, JP1, GR5, IP4, HV3 and BR2. Of these, only AR1, BR2 and GR5 were housed in the stables that were subject to CCTV surveillance. The remaining horses were paddocked outside in surrounding fields.

[5]The charges that relate to these horses can be categorised as follows:

1      Evans v The Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) [2024] NZHC 1089.

2 At [36].

3 At [60].

4      The SPCA have identified the seven charges as those with the following CRNs: 19044500365; 19044500369; 19044500388; 19044500410; 19044500380; 19044500378; and 19044500379.

(a)charges alleging the ill-treatment of horses by omitting to provide adequate farrier care in breach of relevant minimum standards in the Code of Welfare: Horses and Donkeys 2016 (Code of Welfare);5

(b)charges alleging a failure to ensure that the physical, health and behavioural needs of the horses were met in a manner consistent with good practice and scientific knowledge and in breach of relevant minimum standards in the Code of Welfare by failing to provide adequate care for their hooves;6

(c)charges alleging the ill-treatment of horses by omitting to provide them with adequate dental care.7

The issue

[6]    SPCA inspectors carried out seven separate inspections of Mr Evans’ property between 5 April 2017 and 14 June 2018.8 On the last visit they were accompanied by a technician, who installed the CCTV camera in the stables. Inspectors then carried out four further inspections between 19 June and 6 July 2018.9 The CCTV camera was removed on the last of these visits.

[7]    On 30 July 2018, the SPCA obtained a search warrant from a Deputy Registrar of the District Court. This permitted SPCA inspectors to enter and search Mr Evans’ property. It also authorised them to seize evidence, including horses they found on the property.

[8]    SPCA inspectors executed the search warrant on the following day. As noted in my judgment,10 they seized 13 horses. These were fostered out at other properties. After the SPCA had seized the horses, it arranged for them to be examined by

5      Identified by CRNs 19044500365, 19044500369 and 19044500410.

6      Identified by CRNs 19044500378 and 19044500379.

7      Identified by CRNs 19044500388 and 19044500380.

8      Inspections were carried out in 2017 on 5 April, 9 April, 4 May and 23 May, followed by further inspections in 2018 on 22 February, 26 February and 14 June.

9      Inspections were carried out on 19 June, 25 June, 29 June and 6 July 2018.

10     Evans v The Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA), above n 1, at [7].

veterinarians and a farrier. The results of these examinations, referred to by counsel as “downstream evidence”, constituted the evidence upon which the SPCA relied to establish the seven charges now in issue.

[9]    Mr Evans says the search warrant was not validly obtained because it relied in part on evidence obtained by the SPCA from the CCTV footage. The validity of the search warrant is therefore the primary issue now to be determined in relation to the seven charges identified by the SPCA.

Was the search warrant validly obtained?

The law

[10]   The impropriety in the present case flowed from the fact that the SPCA included information in its application for a search warrant that it had obtained by unlawfully and unreasonably conducting surveillance with the CCTV camera. It is common ground, however, that there must be a causative link between an alleged impropriety and evidence being obtained.11 Where, as here, there is a gap between the impropriety and the subsequently obtained evidence, the question is whether the evidence would have been obtained but for the impropriety. 12

[11]In R v Williams, the Court of Appeal observed:13

[242]In cases where there is a gap in time between the breach and the gathering of the evidence, if that evidence would not have been obtained but for the breach, then the subsequent downstream evidence is tainted by the original breach…Any subsequent searches are unreasonable on that basis, except:

(a)where the evidence can be seen to be independent of an earlier breach as in Hearne-Smith (a known witness offering evidence of unrelated offending) and Ceccolini (a witness offering unprompted evidence based on an independent recollection); or

(b)where the connection between the breach and the evidence is so attenuated that the breach cannot sensibly be considered as having caused the evidence to be obtained.

11     R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [47].

12     Perry v R [2015] NZCA 530 at [52].

13     R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.

[243]The strength of the links of the subsequent evidence to the breach is taken into account when assessing the seriousness of the breach under the Shaheed balancing test.

The application

[12]   In order to obtain a search warrant under s 131 of the AWA, the SPCA needed to satisfy the issuing officer that there were reasonable grounds for believing that in or on Mr Evans’ property:

(a)an offence under the AWA had been or was being committed;14 or

(b)the suffering of an animal could be prevented or mitigated;15 or

(c)evidence could be obtained of an offence being committed under the AWA.16

[13]   The application stated that the SPCA had reasonable grounds to believe that offences against the AWA were being committed on Mr Evans’ land and premises. It focussed on an alleged failure by Mr Evans to meet the physical, health and behavioural needs of the horses in his care. These comprise offences under s 12 of the AWA. The failure to provide adequate hay or roughage was highlighted in this context.

[14]   The application also stated that there were approximately 13 standard-bred horses on the land, comprising mixed males and females, whose suffering could be prevented or mitigated. The application went on to state:

Description of evidential material

I have reasonable grounds to believe that a search of the specified land / premises / vehicle(s) will find things that may be evidence of the specified offences, namely:

·     Approximately thirteen standard-bred horses, mixed males and females. [Further veterinary assessment, possible only if the horses are in SPCA custody, is expected to reveal physiological evidence of the specified offences, eg. Stomach ulcers.]

14 Animal Welfare Act 1999, s 131(1)(a).

15     Section 131(1)(b).

16     Section 131(1)(c).

·     Any receipts, documents, paperwork, correspondence relating to veterinary treatment of any animals.

·     Any receipts, documents, paperwork, correspondence relating to general care, feed, equipment, training, showing and sale of horses.

·     Any documents or correspondence regarding Harness racing NZ.

[15]   This narrative makes it clear that the application was based on the statutory criteria for the issuing of a search warrant under the AWA.

[16]   As I have already noted, SPCA inspectors carried out inspections of Mr Evans’ property on 11 occasions between 5 April 2017 and 6 July 2018. The SPCA relied on evidence obtained during these inspections in seeking the search warrant. In addition, the application relied on the CCTV footage captured between 14 June and 6 July 2018.

Analysis

[17]   The application for a search warrant was nine pages in length. Of these, the first two and a half pages set out background detail. The next three and a half pages described in  considerable  detail  what  the  inspectors  found  when  they  visited Mr Evans’ property between 5 April 2017 and 14 June 2018. This section of the application also referred to the steps the inspectors had taken to bring issues of concern to Mr Evans’ attention both orally and formally by notices issued under s 130 of the AWA.

[18]   The application then recorded that four SPCA inspectors and a technician were present at the property on 14 June 2018 when the CCTV camera was installed during the inspection carried out on that date. The application went on to describe what the inspectors found when they subsequently carried out further inspections on 19 June, 25 June, 29 June and 6 July 2018. During these inspections the inspectors also took the opportunity to download footage from the CCTV camera.

[19]   A description of what the CCTV film footage revealed then occupied slightly less than two full pages of the application. The remainder of the application dealt with formal matters that are not relevant for present purposes.

[20]   The details of what the CCTV film footage showed obviously lent weight to the application for a search warrant. However, having read the application in full, I am satisfied that the detailed information that it disclosed regarding the inspectors’ observations of the horses and stables during their visits between 5 April 2017 and 6 July 2018 provided ample grounds to justify the search warrant being issued.

[21]   Further, I do not take Mr Evans to challenge the lawfulness of the inspectors’ visits to Mr Evans’ property for the purpose of inspecting the welfare of the horses in his care. This is not surprising. Section 127 of the AWA provides as follows:

127Power to inspect land, premises, and places and stationary vehicles, aircraft, and ships

(1)Subject to subsections (3) and (4), an inspector may—

(a)in the case of any land, premises, or place, at any reasonable time or times; and

(b)in the case of any vehicle, aircraft, or ship, at any reasonable time or times at which the vehicle, aircraft, or ship is stationary,—

enter, without warrant, that land or those premises or that place or any such vehicle, aircraft, or ship for the purposes of inspecting any animal on or in that land or those premises or that place or in or on any such vehicle, aircraft, or ship.

[22]   The first inspection occurred on 5 April 2017 after the SPCA received information from a member of the public raising issues of concern about the welfare of the horses on Mr Evans’ property. The evidence shows that the SPCA remained concerned about those issues throughout the period during which the inspectors conducted their  inspections.  The  inspectors  were  particularly  concerned  about Mr Evans’ failure to provide the horses in his care with adequate roughage or hay. These issues clearly justified the inspectors exercising their powers of entry and inspection between 5 April 2017 and 6 July 2018.

[23]   Mr Simperingham submits on Mr Evans’ behalf that the five inspections undertaken on and after 14 June 2018 should be viewed as being part of the surveillance exercise being undertaken using the CCTV camera. I disagree. The inspectors certainly used these inspections to install the camera and then download film from it. However, in each case they also made detailed observations of the horses

on the property and the conditions in which they were being kept. I therefore regard the inspections undertaken on these visits as being separate to the CCTV surveillance that was also being undertaken during this period.

[24]   Mr Simperingham also submits that the delay that occurred before the SPCA obtained the search warrant should lead the Court to infer that the SPCA knew it did not have sufficient evidence to obtain a search warrant without the evidence it obtained using the CCTV surveillance. This submission overlooks the fact that the sufficiency of the evidence advanced in support of the application for a search warrant is ultimately a matter for the Court. The SPCA’s views on that issue are irrelevant for present purposes.

[25]   Mr Simperingham also points out that the SPCA clearly 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 being made. This issue also has little relevance. The key issue is whether the SPCA had sufficient evidence to obtain a search warrant on the date that it obtained the warrant. For the reasons I have given I am satisfied it did.

[26]   Finally, Mr Simperingham also refers to his understanding that the SPCA did not immediately arrange for the horses to be seen by a farrier or veterinarian after they had been uplifted from Mr Evans’ property. I am unsure what the Court is supposed to infer from this. The short point for present purposes is that, regardless of when the examinations were undertaken, the 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.

[27]   It follows that I am satisfied the search warrant was validly obtained. The evidence supporting the convictions on the seven charges now in issue was also lawfully obtained.

Result

[28]   The appeal against conviction in relation to charges numbered CRN 19044500365, 19044500369, 19044500388, 19044500410, 19044500380, 19044500378 and 19044500379 is dismissed.

[29]   The appeal against conviction on the remaining charges is allowed and the convictions are set aside. The sentences imposed on those charges are also set aside.

[30]   It will now be necessary for me to adjust the sentence imposed on Mr Evans to reflect the fact that he has now been convicted on a lesser number of charges. The Registrar is to arrange a telephone conference with counsel during the week commencing 17 June 2024 to discuss this issue.

Lang J