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Koberstein v The King

Koberstein v The King

Case [2024] NZHC 316 26 February 2024

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-37

[2024] NZHC 316

BETWEEN WARREN MICHAEL GEORGE KOBERSTEIN
Appellant

AND

THE KING

Respondent

Hearing: 3 October 2023 (Heard at Hamilton)

Appearances:

G B Morison for the Appellant

A McConachy for the Respondent

Judgment:

26 February 2024

JUDGMENT OF GAULT J

This judgment was delivered by me on 26 February 2024 at 4:15 pm.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr G B Morison, Barrister, Auckland
Mr P H Fisher (appellant’s instructing solicitor), Clancy Fisher Oxner & Bryant, Tokoroa Ms A McConachy, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

KOBERSTEIN v R [2024] NZHC 316 [26 February 2024]

Introduction

[1] Mr Koberstein appeals against convictions following a Judge-alone trial and the reserved judgment of Judge M A MacKenzie in the District Court at Tokoroa dated 23 June 2021,1 in respect of three charges of contravening the Animal Welfare Act 1999 (AWA):

(a)Reckless ill-treatment of eight sheep with the result that all eight sheep died, by causing them to suffer, by an omission to treat them for flystrike, pain or distress that in its kind was unnecessary (the s 28A charge).2

(b)Being a person in charge of approximately 100 sheep, failed to comply with s 10 of the AWA to ensure that the physical, health and behavioural needs of the animals were met in a manner in accordance with both good practice and scientific knowledge, by failing to prevent flystrike in the said sheep (the s 12(a) charge).3

(c)Being a person in charge of approximately 100 sheep that were ill from flystrike, failed to comply with s 11 of the AWA to ensure that the animals received treatment that alleviated any unnecessary pain or distress being suffered by the said animals (the s 12(b) charge).4

Factual background

[2] The charges arose following a visit to Mr Koberstein’s property near Mangakino by two Ministry for Primary Industries (MPI) animal welfare inspectors,

1 Ministry for Primary Industries v Koberstein [2021] NZDC 3549. Mr Koberstein no longer advances his appeal against the pre-trial decisions made by the Judge in respect of (i) the admissibility of video evidence gathered by Ministry for Primary Industries animal welfare inspectors, and statements made by Mr Koberstein, on 26 February 2018 and (ii) whether the proceedings should have been stayed.
2 Animal Welfare Act 1999, s 28A. Maximum penalty three years’ imprisonment or a fine not exceeding $75,000, or both; and disqualification for any period from being the owner of, or exercising authority over, or being the person in charge of, an animal or animals of a particular kind or description, or animals generally (s 169(3)).
3 Animal Welfare Act 1999, s 12(a). Maximum penalty 12 months’ imprisonment or a fine not exceeding $50,000 or both (s 25(a); and disqualification (s 169(3).
4 Animal Welfare Act 1999, s12(b). Maximum penalty 12 months’ imprisonment or a fine not exceeding $50,000 or both (s 25(a)); and disqualification (s 169(3)).

Mr Halberg and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Koberstein v The King

Details

AGLC: Koberstein v The King [2024] NZHC 316
Case: [2024] NZHC 316
Decision Date: 26 February 2024

CaseChat Overview and Summary

Warren Michael George Koberstein appeals against his convictions following a Judge-alone trial for three charges under the Animal Welfare Act 1999 (AWA). The charges relate to the neglect and subsequent deaths of eight sheep due to flystrike on his farm. Koberstein contests the District Court's findings of fact and the application of the law, particularly concerning the requirement of recklessness for the charge under section 28A of the AWA. The appeal hinges on whether the District Court erred in its assessment of the evidence and legal standards, leading to a miscarriage of justice.

In reviewing the evidence, the court found that the District Court correctly assessed the credibility of witnesses and applied the law appropriately. The court accepted the District Court's findings that Koberstein failed to take all reasonable steps to prevent and treat flystrike in his sheep, leading to the deaths of eight sheep and the suffering of approximately 100 others. The court also upheld the District Court's application of the recklessness test in relation to the charge under section 28A, concluding that Koberstein was aware of the risk of sheep dying from flystrike and deliberately ran that risk when it was unreasonable to do so.

The court found that the District Court's conclusions were supported by the evidence and that no miscarriage of justice had occurred. Consequently, the appeal against the convictions is dismissed.

The appeal is dismissed.

Orders