Koberstein v The King
[2024] NZHC 316
•26 February 2024
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
AppellantAND
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 Mr Corlett, on 21 February 2018, in response to a complaint received about sheep with flystrike on Mr Koberstein’s property.
[3] Flystrike, which occurs commonly in sheep, is infestation with maggots from fly species following the laying of eggs on a sheep’s skin. The fly eggs hatch within about 24 hours and the maggots go through three stages over about six days before they drop off, pupate and then hatch into adult flies. The second- and third-stage maggots feed on the sheep’s skin or on the flesh (by scraping the skin surface and secreting enzymes which break down the skin surface). This can be painful for the sheep. They can become dehydrated and stop eating. Initially, the sheep are irritated, but then they become more depressed and usually seek shade. If not treated, they often die.
[4] According to the inspectors, when they arrived at the farm they told Mr Koberstein they had received a complaint about flystrike in the lambs and were there to conduct an inspection. Mr Koberstein’s immediate response was, “Well show me a sheep farmer who hasn’t flystrike at the moment”. In relation to steps taken to manage flystrike in the lambs, one of the inspectors noted that Mr Koberstein said:
(a)he had treated his lambs with a mix of Vetrazin and Cyrex – two forms of flystrike prevention treatment – at the time of docking in September/October 2017;
(b)he thought this combination of treatment would give the lambs 16 weeks’ worth of protection;
(c)the lambs had been crutched in late January;
(d)the inspectors would find flystrike in some of his lambs and that the flystrike they would find would be on lambs that had their back or flanks affected; and
(e)he hoped to have his lambs shorn within a week – he had not been able to shear them because of the wet weather.
[5] According to Mr Halberg, in response to asking Mr Koberstein whether he had been spot treating the lambs, Mr Koberstein said that the problem with spot treating was that he had to muster the lambs and he did not want to respray them with flystrike treatment because of the two-month withholding period before shearers would shear them. He said that he had treated a few of the lambs but only the ones he had been able to catch in the paddock, given it was quite hard to do so.
[6] The inspectors went up to the airstrip paddocks. Around this area of the farm they found lambs showing obvious signs of flystrike, and dead lamb carcasses. It was immediately obvious to the inspectors that there was a significant welfare issue.
[7] Mr Corlett said that (while Mr Halberg was on the phone) Mr Koberstein also said that he was unwilling to dip the sheep as they were about to get shorn, and once they were dipped the shearers would not shear the sheep for two months.
[8] After seeking advice from a sheep veterinarian, Mr Halberg issued Mr Koberstein with a formal instruction under s 130 of the AWA. This required Mr Koberstein to comply with the following in order to prevent or mitigate animal suffering:
�Yard lambs and spot treat all lambs affected with flystrike within 48 hours of the issue of this notice.
OR
‚Shear and treat all lambs for flystrike (prevention and treatment) within 72 hours of the issue of this notice.
OR
ƒTreat all lambs for flystrike regardless of shearing within 48 hours of this notice.
„Contact AWI Stefan Halberg within 24 hours if this notice cannot be complied with.
[9] Mr Koberstein said he would have to comply with option � as it was the only option; options ‚ or ƒ were not really options (as he had 1,700 lambs).
[10] The inspectors returned to the property on 26 February 2018. They were satisfied that the s 130 notice had been complied with. A number of the affected lambs had been shorn.
Trial
[11] At trial in March 2021, the prosecution case was that there was an obvious flystrike issue and that Mr Koberstein took inadequate steps to prevent, and treat the lambs on his farm for, flystrike. Given Mr Koberstein’s experience, the prosecution contended that the signs of flystrike would have been obvious to him and that as a result of his inaction, eight sheep had died after suffering unnecessarily, and approximately 100 others were affected by flystrike.
[12] The prosecution called evidence from the two inspectors about their visits, and expert evidence from Dr Ridler, an Associate Professor for Sheep and Beef Cattle Health and Production at Massey University, with a Bachelor of Veterinary Science and a PhD in sheep and cattle. The prosecution also adduced photos and videos of the dead sheep, and of living sheep affected by flystrike.
[13] Mr Koberstein’s defence was that he took all reasonable steps to prevent and treat the flystrike-affected sheep in various ways and that he at least met the requirements of the Sheep and Beef Cattle Code of Welfare (the Code).5 Mr Koberstein also disputed the number of sheep identified as having been affected by flystrike, contending that there were considerably less than 100 sheep affected. In addition to producing a number of exhibits, Mr Koberstein’s case was based on his own evidence, and the evidence of:
(a)Mrs Koberstein, his wife;
(b)Mr Furlong, a sheep breeder;
(c)Mr Palmer, a farmhand; and
5 Ministry of Primary Industries, Code of Welfare: Sheep and Beef Cattle dated 15 December 2016.
(d)Mr Christensen, the shearer involved in shearing Mr Koberstein’s sheep and lambs in the 2017/2018 season.
District Court judgment
[14]In a detailed judgment, the Judge found the three charges proved.
[15]In doing so, the Judge accepted the expert evidence of Dr Ridler.6
[16] The Judge also said she did not find Mr Koberstein’s evidence to be credible about a number of matters including:7
(a)The frequency of monitoring of the sheep post-15 February 2018, when there was obviously a flystrike issue on the farm.
(b)Mr Koberstein’s evidence that he had checked about three mobs of lambs for flystrike and treated them by shearing them.
(c)The evidence about the number of sheep affected by flystrike, which according to Mr Koberstein was only 32, and not the 100 the inspectors say they counted.
(d)Mr Koberstein’s evidence that there was increased surveillance by he and Mrs Koberstein from 15 February 2018.
(e)The evidence about the application of Zapp Encore.
(f)Mr Koberstein’s evidence about contacting potential shearers on 18 February 2018.
[17] The Judge set out a timeline, including the steps Mr Koberstein said he took in terms of prevention and treatment of flystrike.8
6 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [20]-[23].
7 At [31].
8 At [48].
[18] The Judge referred to Dr Ridler’s evidence about preventative steps.9 These included dagging, removing carcasses and applying an ectoparasiticide in about December unless the sheep are being shorn at that time. Increased monitoring is important when it is wet and warm. The Judge then referred to Dr Ridler’s evidence about signs of flystrike and treatment,10 before setting out the relevant section of the Code.11 The Judge said that Mr Koberstein was familiar with the Code.12
Section 28A charge
[19]The Judge approached the s 28A charge by reference to four elements:13
(a)was Mr Koberstein in charge of the eight sheep;
(b)did he ill-treat the eight sheep;
(c)whether in doing so, he was reckless; and
(d)whether the sheep died as a result.
[20] On the first question, the Judge accepted that Mr Koberstein was the person in charge of the eight sheep as defined in s 2 of the AWA.14 Although Mr Koberstein disputed that one of the dead sheep was owned by him, all the affected sheep were located in the vicinity of his airstrip paddock and not in the remote parts of his farm. As such, the Judge considered they were under his care, control or supervision.
[21] The Judge was sure that Mr Koberstein had ill-treated the sheep by omitting to treat them for flystrike,15 because:
9 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [53]-[56].
10 At [57]-[65].
11 At [67].
12 At [68(a)].
13 At [71].
14 At [72]-[75].
15 Culminating at [96]. Ill-treat is defined in the AWA as “causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary”.
(a)the fact that the sheep were suffering from flystrike must have been obvious to Mr Koberstein, a very experienced farmer;
(b)she accepted Dr Ridler’s evidence that flystrike was present in the flock for a minimum of seven days;
(c)flystrike causes pain and suffering in sheep;
(d)badly affected sheep can die, which is what Dr Ridler said happened here. Her evidence was that the eight sheep died from flystrike;
(e)the pain and suffering was unnecessary in its kind or degree, because earlier steps should have been taken to monitor and treat the affected sheep. With regular monitoring and treatment sheep should not get to the stage where they die from flystrike;
(f)the sheep had not been shorn due to the weather. Dr Ridler was also of the view that the sheep had not been treated with a whole-body treatment of ectoparasiticide. As such, increased vigilance to treat affected sheep was vital;
(g)context is important. It could not be realistically suggested that this is a situation where pain and distress is necessary (that is, proportionate)
– for example, docking.
[22] As for whether Mr Koberstein was reckless, the Judge considered it appropriate to adopt the approach in Power v Auckland Society for the Prevention of Cruelty to Animals,16 which she considered was, in reality, the same as that in the Supreme Court case of Cameron v R.17 The Judge said the prosecution had to prove that Mr Koberstein was aware of the risk that the eight sheep would die as a result of ill-treatment (the subjective element), and that Mr Koberstein deliberately ran that risk when it was unreasonable to do so (the objective element).18
16 Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159.
17 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161.
18 At [97]-[105].
[23] Taking both Dr Ridler and Mr Koberstein’s evidence into account, the Judge considered that Mr Koberstein must have been aware of the risk that sheep would die given his experience, knowledge of the Code and the obvious signs of flystrike on the farm.19
[24] The Judge also concluded that Mr Koberstein deliberately ran the risk that sheep would die as a result of ill-treatment when it was unreasonable to do so.20 Mr Koberstein knew that there was flystrike on his farm, that badly affected sheep can die and there were steps he could and should have taken to prevent this, by treating the sheep. This would have required him to take steps to identify and treat the sheep, as per Dr Ridler’s evidence – that if applying an insecticide to all lambs was not an option because shearing was imminent, the entire mob should have been mustered and all affected lambs should have been treated by shearing the affected area and applying an ectoparasiticide. Mr Koberstein cannot have done so, despite his evidence that he was checking the sheep for flystrike every day from around 13 or 14 February 2018 and that he had checked about three mobs of lambs for flystrike and treated them by shearing them, because of the number of dead and badly affected sheep found by the inspectors. As Dr Ridler said, with regular monitoring and prompt treatment, sheep should not get to the stage where they die from flystrike. Also, Mrs Koberstein was away for a period of days during the period Mr Koberstein said there was increased surveillance, and Mr Koberstein’s evidence about mustering and checking mobs was inconsistent with what he told the inspectors on 21 February 2018.
[25] As to causation, while the sheep were not autopsied, Dr Ridler’s evidence was that flystrike would have been a major contributor to the death of all but one of the sheep based on the photographs, and there was no charge in relation to that sheep. Dr Ridler did not see any value in autopsying. Having regard to Dr Ridler’s evidence, the Judge was sure that flystrike was a substantial and operative cause of death.21
19 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [106]-[110].
20 At [112]-[121].
21 At [122]-[126].
Section 12 charges
[26] The Judge referred to the relevant statutory provisions, including the s 13(2) defences, and said Mr Koberstein relied on s 13(2)(c) – that the minimum standards established by the Code were in all respects equalled or exceeded. The Judge said the combined effect of the letter of 22 November 2018 and the notice22 was that Mr Koberstein was relying on the defence in s 13(2)(c) and not the defence in s 13(2)(a)(i), but said she had set out the approach to “all reasonable steps” in the context of a s 13(2)(a)(i) defence because one of the minimum standards for managing flystrike is that all reasonable steps must be taken to prevent, or identify and manage the risk of flystrike in sheep.23
[27] In relation to the s 12(a) charge, the Judge said that there was no dispute that Mr Koberstein was in charge of the sheep on his farm and approached the charge by asking three remaining questions:
(a)How many sheep were affected by flystrike?
(b)Did Mr Koberstein fail to prevent flystrike in the affected sheep?
(c)Did he have a defence under s 13(2)?
[28] On the first question, the Judge accepted the evidence of the inspectors that there were approximately 100 sheep affected by flystrike.24 She found unconvincing Mr Koberstein’s evidence that 32 sheep were affected. Mr Christensen’s shearing invoice dated 26 February 2018 saying that 191 fly-blown lambs were shorn suggested the number was higher than Mr Koberstein’s tally. So did Mr Christensen’s evidence. The Judge noted that it may not be necessary to make a finding as to the number of sheep affected, but said she had no reason to doubt the evidence of the inspectors.
[29] As to whether Mr Koberstein failed to prevent flystrike in the affected sheep, the Judge acknowledged that Mr Koberstein took some steps, for example docking
22 The notice required by s 13(3) was served late but leave was granted given the earlier comprehensive 22 November 2018 letter.
23 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [141] and [144].
24 At [151]-[160].
and crutching and the application of flystrike insecticide at docking. However, the Judge said she had difficulty accepting that Zapp Encore was applied at crutching between 29 December 2017 and 9/10 January 2018. She also said that Mr Koberstein’s evidence about the frequency of monitoring was not credible given the obvious signs of flystrike on 21 February 2018. She said his evidence of increased surveillance was inconsistent with Mrs Koberstein’s evidence that she was away for a period of days. The Judge said Mr Koberstein’s evidence about his efforts to contact shearers on 18 February 2018 was not truthful. She also said his evidence about mustering mobs and checking them for flystrike was at odds with what he told the inspectors and with the obvious signs of flystrike on dead and affected sheep.
[30] Having regard to Dr Ridler’s evidence, the Judge said she was sure that Mr Koberstein failed to prevent flystrike and rejected Mr Koberstein’s evidence about the various steps he said he took to manage and prevent it.25 The Judge said it was no answer to say that flystrike was due to wet and warm weather as those conditions required heightened vigilance.
[31] Turning to the s 13(2) defence, the Judge said the applicable minimum standard in the Code was that: “All reasonable steps must be taken to prevent, or identify and manage the risk of flystrike in sheep”. The Judge acknowledged that some preventive steps were taken. She noted the flystrike occurred to the body, not the back, of the sheep. She said the critical issue was whether, given the wet and warm weather and the increased risk of flystrike, Mr Koberstein had taken all reasonable steps to prevent, identify and manage that risk of flystrike in sheep. The Judge said that this turned on whether Mr Koberstein did undertake frequent inspections of sheep to identify early flystrike cases, whether the sheep were shorn before or during the risk period for flystrike, and whether and how effective the application of the insecticide was.
[32] The Judge said that even though Mr Koberstein did not rely on the defence in s 13(2)(a)(i), the principles drawn from the cases involving “all reasonable steps” were relevant in assessing compliance with the minimum standard in the Code.
25 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [168].
[33] As regards frequent inspection of sheep to identify early flystrike cases, the Judge repeated her earlier findings. In terms of shearing the lambs, the Judge referred to Mr Furlong’s evidence that he shears around Christmas which gives him approximately a month of not having to worry, and after that he would regularly spray insecticide. The Judge said that, if shearing earlier was not possible, Mr Koberstein needed to apply insecticide or increase monitoring significantly.
[34] The effect of the insecticide applied at docking (even if applied correctly) would have worn off by 21 February 2021. The Judge then referred back to her finding in relation to Zapp Encore. Even if it was applied, the sheep were not monitored to ensure the treatment remained effective as it was not effective by mid-February.
[35] The Judge concluded that Mr Koberstein had not proved that he equalled or exceeded the minimum standard and the s 12(a) charge was proved, because:26
(a)she did not accept his evidence that he frequently inspected his sheep to identify early flystrike cases in the relevant period;
(b)the sheep were not shorn before and/or during the risk period;
(c)while insecticide was applied at docking, stock was not monitored to ensure treatments remained effective, given the obvious signs of flystrike.
[36] In relation to the s 12(b) charge, there was no dispute that Mr Koberstein was in charge of his sheep or that sheep were ill (and the Judge had addressed the number of sheep affected). The Judge said the real dispute was whether Mr Koberstein had failed to ensure that the sheep received treatment that alleviated any unreasonable or unnecessary pain or distress being suffered by them.
[37] The Judge said that when the inspectors arrived on 21 February 2018 there were sheep with obvious signs of flystrike and referred to Dr Ridler’s opinion that there had been active flystrike for at least five days, likely longer. The Judge referred
26 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [178].
again to Dr Ridler’s view about treatment. She said that much of what she had said in respect of the s 28A charge was relevant to the s 12(b) charge. Mr Koberstein knew that flystrike was a problem on the farm from 15 February 2018, and was aware of the Code and the need for appropriate treatment at the earliest opportunity.
[38] As the signs of flystrike were obvious to the inspectors on 21 February 2018, they must also have been obvious to Mr Koberstein given his considerable farming experience. He also acknowledged that there were lambs with, and severely affected by, flystrike. As the lambs could not be shorn due to the wet weather, Mr Koberstein needed to have taken other steps to treat the affected lambs for flystrike. The Judge referred again to Dr Ridler’s evidence that once Mr Koberstein was aware of flystrike, he needed to muster the lambs, check them and treat them for flystrike. The Judge also referred again to her finding not accepting Mr Koberstein’s evidence that he had mustered three mobs of lambs and treated them for flystrike, and to what Mr Koberstein told the inspectors when asked if he had been spot treating the affected lambs – that he would have had to muster them and he did not want to respray them with flystrike treatment because of a two-month withholding period.
[39] Given that flystrike was obvious in a number of lambs when the inspectors arrived, and Dr Ridler’s evidence about appropriate treatment and that sheep with flystrike suffer pain and distress, the Judge said she was sure that Mr Koberstein had failed to ensure that the sheep received treatment that alleviated any unreasonable or unnecessary pain or distress being suffered by them.27
[40] As for Mr Koberstein’s s 13(2) defence, the relevant minimum standard was that: “Affected sheep must receive appropriate treatment at the earliest opportunity”.28 The Judge referred to the timeline detailing Mr Koberstein’s steps and repeated that she did not accept that he had mustered in about three mobs and treated them. She assessed that Mr Koberstein did not act urgently to treat the affected lambs. He needed to have been far more proactive. He should have applied insecticide or increased his monitoring and at the first signs mustered the sheep to the yards,
27 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [195].
28 Ministry of Primary Industries, Code of Welfare: Sheep and Beef Cattle dated 15 December 2016, at [15(b)].
separated them out and treated them. He was able to treat them once the s 130 notice was served but failed to do so appropriately before that.
[41] The Judge concluded that Mr Koberstein had not satisfied her on the balance of probabilities that affected sheep received appropriate treatment at the earliest opportunity and found the s 12(b) charge proved, given:29
(a)The obvious signs of flystrike.
(b)That a number of sheep were affected by flystrike.
(c)Dr Ridler’s evidence that the signs would have been obvious for a minimum of seven days.
(d)Dr Ridler’s evidence that as soon as there were one or more cases, the lambs should have been mustered, checked and affected lambs treated, which did not happen.
(e)Mr Koberstein was aware of the Code and the need for treatment.
(f)The Judge did not accept Mr Koberstein’s evidence that he had taken appropriately proactive steps to treat affected lambs for flystrike. If he had, the inspectors would not have found lambs with obvious signs of flystrike on 21 February 2018.
Approach on appeal
[42] In the case of a Judge-alone trial, a conviction appeal must be allowed if the Court is satisfied that:30
(a)the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred (s 232(2)(b)); or
29 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [201].
30 Criminal Procedure Act 2011, s 232(2).
(b)a miscarriage of justice has occurred for any other reason (s 232(2)(c)).
[43] Otherwise, the appeal must be dismissed.31 Thus, s 232(2)(b) is concerned with assessment of the evidence, whereas s 232(2)(c) is concerned with whether something material has gone wrong with the trial beyond the sufficiency of the evidence.32
[44] An appeal against conviction governed by s 232(2)(b) proceeds by way of rehearing on the record.33 In relation to appeals under s 232(2)(b), the appellate court has the responsibility of considering the merits of the case afresh.34 The appellate court must be persuaded that a miscarriage has occurred, but the weight it gives to the reasoning of the court below is a matter for the appellate court’s assessment. No deference is required beyond the customary caution appropriate in cases where the trial judge has had the advantage of seeing the witnesses, such as where credibility is important.35
[45] Miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that: 36
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[46] The inquiry involves a two-step process: was there an error, irregularity or occurrence in or in relation to or affecting the trial and, if so, did either of the states of affairs in (a) or (b) referred to arise in consequence?37
31 Criminal Procedure Act 2011, s 232(3).
32 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [25]; Misa v R [2019] NZSC 134, [2020] 1 NZLR
85 at [45].
33 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
34 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].
35 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13];
Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38]-[40].
36 Criminal Procedure Act 2011, s 232(4).
37 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].
[47] In relation to (a), whether an error, irregularity or occurrence in or in relation to or affecting the trial “has created a real risk the outcome was affected”, the Supreme Court has confirmed:38
That question ‘requires consideration of whether there is a reasonable possibility another verdict would have been reached’. If the answer to that question is ‘no’, that is the end of the matter and the appeal will be dismissed. If the answer to that question is ‘yes’, … the appeal court then asks whether it is sure of guilt. If the answer is ‘no’, the appeal will be allowed. If the answer is ‘yes’, the court determines the error did not in fact create a real risk that the outcome was affected and the appeal will be dismissed.
[48] In relation to (b), whether the error, irregularity, or occurrence “has resulted in an unfair trial or a trial that was a nullity”, contrary to the defendant’s absolute right to a fair trial,39 requires an assessment of the circumstances of the trial as a whole. As the Supreme Court said in Condon v R:40
A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair … it is at the point when the departure from good practice is ‘so gross, or so persistent, or so prejudicial, or so irremediable’ that an appellate court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe.
Animal Welfare Act 1999 – applicable provisions
[49]Sections 10 to 13 in Part 1 of the AWA provide:
10Obligation in relation to physical, health, and behavioural needs of animals
The owner of an animal, and every person in charge of an animal, must ensure that the physical, health, and behavioural needs41 of the animal are met in a manner that is in accordance with both—
(a)good practice; and
(b)scientific knowledge.
38 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].
39 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77].
40 At [78].
41 The phrase “physical, health, and behavioural needs” is defined in s 4.
11Obligation to alleviate pain or distress of ill or injured animals
(1)The owner of an animal that is ill or injured, and every person in charge of such an animal, must ensure that the animal receives treatment that alleviates any unreasonable or unnecessary pain or distress being suffered by the animal.
(2)This section does not—
(a)limit section 10; or
(b)require a person to keep an animal alive when it is in such a condition that it is suffering unreasonable or unnecessary pain or distress.
12Animal welfare offences
A person commits an offence who, being the owner of, or a person in charge of, an animal,—
(a)fails to comply, in relation to the animal, with section 10; or
(b)fails, in the case of an animal that is ill or injured, to comply, in relation to the animal, with section 11; or
(c)kills the animal in such a manner that the animal suffers unreasonable or unnecessary pain or distress.
13Strict liability
(1)In a prosecution for an offence against section 12, it is not necessary for the prosecution to prove that the defendant intended to commit an offence.
(1A) In a prosecution for an offence against section 12 committed after the commencement of this subsection, evidence that a relevant code of welfare was in existence at the time of the alleged offence and that a relevant minimum standard established by that code was not complied with is rebuttable evidence that the person charged with the offence failed to comply with, or contravened, the provision of this Act to which the offence relates.
(2)Subject to subsection (3), it is a defence in any prosecution for an offence against section 12 if the defendant proves—
(a)that, in relation to the animal to which the prosecution relates, the defendant took,—
(i)in the case of an offence against section 12(a), all reasonable steps to comply with section 10; or
(ii)in the case of an offence against section 12(b), all reasonable steps to comply with section 11; or
(iii)in the case of an offence against section 12(c), all reasonable steps not to commit a breach of section 12(c); or
(b)that the act or omission constituting the offence took place in circumstances of stress or emergency, and was necessary for the preservation, protection, or maintenance of human life; or
(c)that there was in existence at the time of the alleged offence a relevant code of welfare and that the minimum standards established by the code of welfare were in all respects equalled or exceeded.
(3)Except with the leave of the court, subsection (2) does not apply unless, within 7 days after the service of the summons, or within such further time as the court may allow, the defendant has delivered to the prosecutor a written notice—
(a)stating that the defendant intends to rely on subsection (2); and
(b)specifying—
(i)where the defendant intends to rely on subsection (2)(a), the reasonable steps that the defendant will claim to have taken; or
(ii)where the defendant intends to rely on subsection (2)(b), the circumstances of stress or emergency, and the reasons why the act or omission was necessary for the preservation, protection, or maintenance of human life; or
(iii)where the defendant intends to rely on subsection (2)(c), the relevant code of welfare that was in existence at the time of the alleged offence, and the facts that show that the minimum standards established by that code of welfare were in all respects equalled or exceeded.
[50]Section 28A in Part 2 of the AWA relevantly provides:
28A Reckless ill-treatment of animals
(1)A person commits an offence if that person recklessly ill-treats an animal with the result that—
(a)the animal is permanently disabled; or
(b)the animal dies; or
(c)the pain or distress caused to the animal is so great that it is necessary to destroy the animal in order to end its suffering; or
(d)the animal is seriously injured or impaired.
…
[51]As the Court of Appeal said in Balfour v R:42
[12] The AWA is the single most important piece of legislation in New Zealand relating to the protection of all kinds of animals under human control.43 It replaced earlier legislation, which had focussed principally on prohibiting cruelty to animals,44 with new provisions derived from internationally accepted principles known as the “Five Freedoms” of animal welfare, namely:45
(a)Freedom from thirst — by ready access to fresh water and a diet to maintain full health and vigour.
(b)Freedom from discomfort — by providing a suitable environment including shelter and a comfortable resting area.
(c)Freedom from pain, injury and disease — by prevention or rapid diagnosis and treatment.
(d)Freedom to express normal behaviour — by providing sufficient space, proper facilities and company of the animal’s own kind.
(e)Freedom from fear and distress — by ensuring conditions which avoid mental suffering.
[13] The AWA imposes core obligations on persons responsible for the care of animals,46 and provides for codes of welfare establishing minimum standards, and promoting best practice and appropriate behaviour.47 As subpara (1)(a) of the AWA’s long title states, there is a duty of care on owners of animals and persons in charge of animals to attend properly to the welfare of those animals.
[14] The particular purpose of pt 1 of the AWA is to require owners of animals, and persons in charge of animals:48
“... to take all reasonable steps to ensure that the physical, health, and behavioural needs of the animals are met in accordance with both –
42 Balfour v R [2013] NZCA 429.
43 Laws of New Zealand Animals (online ed) at [1]; Neil Wells Animal Law in New Zealand
(Thomson Reuters, Wellington, 2011) at [23.1]-[23.9].
44 Protection of Animals Act 1835 (UK); Cruelty to Animals Act 1878; Animals Protection Act 1960.
45 Neil Wells and Judith Nicholson “Five Plus Three: Legislating for the Five Freedoms and the Three Rs — Animal Welfare Act 1999 (New Zealand)” (2004) 32 ATLA 417.
46 Part 1.
47 Sections 68-79.
48 Section 9(2)(a).
(i)good practice; and
(ii)scientific knowledge;”
The expression “the physical, health, and behavioural needs” of animals is defined in s 4. …
[15] This purpose is then implemented in pt 1 by s 10, which imposes a positive obligation on owners of animals, and every person in charge of animals, to ensure the physical, health, and behavioural needs of the animals are met in that manner, and by ss 12 and 13 which make it an offence of strict liability to fail to comply with that obligation. There is a statutory defence if the defendant can prove on the balance of probabilities that he or she took reasonable steps to comply with s 10, or the act or omission took place in circumstances of emergency, or that there was a relevant code of welfare in existence and the minimum standards of the code were in all respects met or exceeded.49
[16] Part 2 of the AWA then contains provisions prohibiting and allowing particular types of conduct in relation to species of animals or animals used for certain purposes.50 …
Grounds of appeal
[52] Mr Koberstein contends there has been a miscarriage of justice in that the Judge made findings of fact for which there was no, or insufficient, evidence, and misdirected herself on the law as it applies to s 28A of the AWA. Regarding the facts, Mr Morison submitted in essence that the evidence did not support the Judge’s preference for the evidence of the inspectors and, in particular, Dr Ridler, nor did it support the Judge’s reservations about the credibility of Mr Koberstein’s evidence.
[53] In support of Mr Koberstein’s appeal against his s 12(a) and (b) convictions, Mr Morison’s detailed submissions, in summary, contend that the Judge erred in:
(a)stating that Mr Koberstein relied only on the defence in s 13(2)(c) and did not rely on s 13(2)(a)(i);
(b)rejecting his evidence that Zapp Encore was applied to his sheep between 29 December 2017 and 9/10 January 2018;
49 Section 13(2).
50 Section 27.
(c)rejecting his evidence that he undertook daily checks of his sheep from mid-February 2018;
(d)rejecting his evidence that he made efforts to contact a number of shearing contractors on 18 February 2018;
(e)rejecting his evidence that he moved and treated three mobs of lambs prior to 21 February 2018;
(f)rejecting his evidence that only 32 lambs were affected; and
(g)ultimately finding that Mr Koberstein fell short of taking all reasonable steps to prevent and treat flystrike.
[54] In support of Mr Koberstein’s appeal against his s 28A conviction, Mr Morison contends that the Judge erred in:
(a)finding that flystrike was a substantial and operative cause of the sheep’s death; and
(b)law, by applying the incorrect test for recklessness.
Analysis
[55] It is common ground that the offences under ss 12 are strict liability offences51 with the statutory defence in s 13(2) available, whereas the offence under s 28A of the AWA requires recklessness.
[56] No issue is taken with the test applied by the Judge in relation to the s 12 charges, as summarised in Balfour. I address the evidence relating to Mr Koberstein’s measures and practices to treat flystrike, which is relevant to each charge, in the context of the s 12 charges before turning to Mr Koberstein’s challenge concerning recklessness under s 28A.
51 Section 13(1)-(1A).
Section 12 charges
[57] The relevant part of the Code in Part 7 entitled “Husbandry Practices” is section 7.7 entitled “Managing Flystrike”, which I also set out in full:
Introduction
Sheep can be prone to flystrike (the feeding of blowfly maggots on the flesh) especially in warm and moist conditions and where sheep are daggy, or have wounds. Flystrike can cause pain, distress and extreme suffering through inflammation, infection, reduced appetite and weight loss. Badly affected sheep may die.
In some localities flystrike can occur at any time of year but the period of highest risk is generally summer/early autumn.
Minimum Standard No. 15 – Managing Flystrike (a) All reasonable steps must be taken to prevent, or identify and manage the risk of flystrike in sheep.
(b) Affected sheep must receive appropriate treatment at the earliest opportunity.
General Information
Measures for preventing and managing flystrike in sheep include:
· frequent inspection of sheep to identify early strike cases
· prevention or early treatment of injured or diseased skin that might attract blowflies, e.g. lumpy wool (dermatophilosis), foot rot and ram fight injuries
· application of insecticide (e.g. dipping, pour-ons) at strategic intervals throughout the period of risk (long-acting insecticides can normally provide up to 12 weeks protection against flystrike).
However, stock need to be monitored to ensure treatments remain effective throughout that time.
· tail docking
· crutching, dagging, or shearing before and/or during the risk period
· control of pasture to prevent dag formation that can follow access to lush feed
· control of internal parasites that could contribute to faecal soiling of the breech
· grazing sheep on plants containing condensed tannins (e.g. birdsfoot trefoil, sulla); to reduce the incidence of dags and flystrike
· grazing sheep on ryegrass that contain safe endophytes can reduce the incidence of flystrike
· moving sheep to areas which are cool and windy or to relatively high altitude pastures where blowflies are not present or are less active.
The New Zealand Merino Industry has decided that surgical mulesing (the surgical removal of the breech and/or tail skin folds of merino or merino- dominant sheep) will cease by December 2010. Many growers have already ceased surgical mulesing.
[58] Mr Morison’s preliminary submission was that the Judge was wrong to state that Mr Koberstein relied only on the defence in s 13(2)(c) (that is, he in all respects equalled or exceeded the Code’s minimum standards) and did not rely on the defence in s 13(2)(a)(i) (that is, that he took all reasonable steps to comply with section 10). I do not consider this gives rise to any miscarriage. Even if the defence in s 13(2)(a)(i) was separately put in issue, the Judge had regard to it and characterised Mr Koberstein’s defence generally as that he had taken all reasonable steps to prevent and treat the flystruck animals in various ways and that he had at least met the requirements of the Code.52 Moreover, in the context of this case, the wording of the relevant minimum standard means that the overlap is such that the s 13(2)(a)(i) defence could not apply if the s 13(2)(c) defence did not apply.
[59] Next, Mr Morison submitted that Mr Koberstein’s evidence reflects that he met or exceeded the Code and that the Judge was wrong to conclude that the steps he took, both leading up to and following the initial visit by the inspectors on 21 February 2018, fell short of the Code. He submitted the Judge erred, in light of the weight of the evidence proving otherwise, when concluding that Mr Koberstein fell short of taking all reasonable steps to prevent and treat flystrike during the months leading up to 21 February 2018.
[60] Mr Morison submitted that in adopting the evidence of Dr Ridler, almost to the exclusion of the evidence that was called by Mr Koberstein, the trial Judge misrepresented the situation as reflected in the evidence. He characterised Dr Ridler as an expert academic veterinarian whose specialist subject was New Zealand sheep medicine, whereas Mr Koberstein was a highly experienced sheep and cattle farmer
52 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [40].
who had dealt with the practical difficulties presented by sheep and cattle husbandry on a day-to-day basis over several decades. He submitted that farmers experience flystrike and it is unreasonable to expect there would be no flystrike in that unseasonably hot and wet period. Mr Morison submitted the “perfect storm” of circumstances which converged upon Mr Koberstein’s property in January and February 2018 were almost unprecedented and that he called upon all his experience to prevent flystrike during the months leading up to February 2018 as well as to treat flystrike once it gained a foothold on his property from mid-February 2018.
[61] Mr Morison also submitted that the Judge’s timeline was selective and failed to include a number of additional steps that Mr Koberstein took to mitigate the onset and treatment of flystrike in the animals. Mr Morison also challenged the Judge’s conclusion that she did not find Mr Koberstein’s evidence to be credible about a number of matters. Mr Morison submitted that the Judge took an unreasonable predisposition to Mr Koberstein’s and other defence evidence, albeit he acknowledged this was really a submission that the Judge’s findings were unreasonable.
[62] I accept that Dr Ridler was an academic and trained veterinarian rather than someone with practical farming experience. However, she was a qualified expert and her expertise to opine on the issues was not in dispute. As Ms McConachy submitted for the respondent, it was open to the trial Judge to accept Dr Ridler’s evidence as to the appropriate steps that should have been taken to prevent and treat flystrike. Even accepting that Dr Ridler’s opinion might not have fully appreciated the practical difficulties involved in taking those steps (that an experienced farmer would appreciate), the Judge acknowledged that it was for her to decide how much weight or importance to give Dr Ridler’s opinion and whether to accept it at all in the context of all the evidence.53 Further, the defence case focused on the steps that Mr Koberstein said he took rather than disputing the steps that Dr Ridler said should have been taken.
[63] Like the Judge, I accept that Mr Koberstein was a very experienced farmer, having graduated from Massey University and subsequently worked as a shepherd,
53 Ministry for Primary Industries v Koberstein [2021] NZDC 3549 at [20].
stock manager and land management field officer before successfully purchasing the property as a ballot farm in 1984. He had farmed there since – for 34 years as at 2018.
[64] Dr Ridler accepted that the risk period for flystrike in the North Island is from sometime in October, depending on the season, through to about May, depending on the season, but the high risk period is December to March generally. The fly activity tends to be most active when it is warm and wet. The evidence was that January and February 2018 were unseasonably wet and hot. There was evidence that a lot of farms had problems with flyblow that year, and several farms had it quite bad.
[65] I also accept, as the Judge did, that Mr Koberstein had taken a number of steps to prevent flystrike in the period before 15 February 2018. These included a breeding programme to improve resistance, special pasture types, weather monitoring, Mr and Mrs Koberstein’s frequent monitoring of sheep to identify early flystrike, crutching ewes prior to lambing, docking lambs from late October to early November 2017, crutching lambs from late December 2017 to early January 2018, shearing ewes from 30 January to 2 February 2018 and seeking to arrange shearing of the lambs in early February. Also, I accept that Mr and Mrs Koberstein were periodically checking their mobs and moving them around during the period up until mid-February 2018 in case they were able to shear at short notice. I also accept that the evidence indicated that flystrike was under control at the Kobersteins’ farm until mid-February. Increase in flystrike was noticed around 15 February 2018.
[66] The submission that the Judge’s timeline was selective and failed to include a number of additional steps that Mr Koberstein took to mitigate the onset of, and treat, flystrike in the animals was dependent on undermining the Judge’s findings that Mr Koberstein did not take all the steps he claimed. I turn to address those findings.
[67] Mr Morison took issue with the Judge’s assessment of the evidence regarding the use of the flystrike insecticide Zapp Encore. The Judge said she had difficulty accepting that Zapp Encore was applied at crutching between 29 December 2017 and 9/10 January 2018. The Judge acknowledged that was Mr Koberstein’s evidence, and that Mrs Koberstein and their farm worker, Mr Palmer, gave consistent evidence but
noted that Dr Ridler said that, if there had been this treatment as claimed, she would not have expected to see such high numbers of flystrike.
[68] However, as Mr Morison submitted, Dr Ridler conceded that Zapp Encore may have a reduced period of protection due to resistance to its main chemical. I accept, as Mr Koberstein acknowledged, this might explain why Zapp Encore applied in late December to early January may have ceased being effective by mid-February. Even so, the Judge’s difficulty accepting that Zapp Encore was applied at crutching was based on the lack of diary entries, the lack of reference to Zapp Encore in the lawyers’ letter dated 22 November 2018, and Mr Koberstein’s mention of the two- month withholding period after applying insecticide before the lambs could be shorn.54 I accept that the lack of reference to Zapp Encore in the lawyers’ letter of 22 November 2018 may be explicable. I also accept that the Judge may have misinterpreted options
‚ and ƒ in the s 130 instruction as requiring only treatment of all lambs “with” flystrike rather than treatment of all lambs “for” flystrike,55 and that the only realistic option available to Mr Koberstein given the timeframes was option �, to yard and spot treat all lambs with flystrike. In any event, however, the two-month withholding period referred to by Mr Koberstein would apply and what he told the inspectors on 21 February 2018 was inconsistent with applying Zapp Encore. As well as being inconsistent with what he told the inspectors about the two month withholding period, Mr Halberg recalled that Mr Koberstein said he did not use Zapp Encore, which he considered to be terrible stuff. The Judge’s difficulty with the Zapp Encore evidence was justified. In any event, if Zapp Encore was applied in late December to early January, it was clearly not effective by mid-February.
[69] It was not in dispute that it only became apparent there was significant flystrike in mid-February. Mrs Koberstein went away from the farm to help family for about four days around 14/15 to 18/19 February. She said that if significant flystrike had been observed prior to her departure, she would have stayed on the farm. The expert evidence was that flystrike can progress quickly so treatment is urgent – even a delay
54 I note the Judge accepted Mr Koberstein’s claim that there was such a two-month withholding period after applying insecticide even though Dr Ridler said there was no need to wait two months.
55 Mr Halberg and Mr Koberstein made the same error referring to “with” in relation to option ƒ when describing the instruction in evidence, albeit that Mr Koberstein correctly explained what it would require.
of 12 or 24 hours can have a big impact on prognosis. In these circumstances, the key issue was whether adequate steps were taken during the period between 15 and 21 February 2018.
[70] Mr Koberstein said that as the weather deteriorated in February and shearing was not possible, and when he started to notice flystrike around 15 February, he and his wife increased the amount of surveillance. He went around the paddocks that were further away checking all the mobs every second day and then increased this to every day. He then said this started around 13 or 14 February. He said he started moving mobs up into the woolshed/yards and had checked about three mobs (totalling 600 to 800 lambs) and treated 30 to 40 lambs that had flystrike by 21 February when the inspectors visited.
[71] The evidence indicated that Mrs Koberstein’s absence coincided with more serious flystrike. She was not there to carry out her regular walks. She said that from 20 February, all of a sudden there was quite a lot of fly (flystrike) because it just rained and rained and it was hot.
[72] As indicated, the Judge did not accept that Mr Koberstein’s evidence that he had mustered in about three mobs and treated them was credible. I accept that Mr Koberstein’s evidence was that he had treated affected lambs, not the entire mobs. I also accept that Mr Koberstein referred to diary notes on 19 and 20 February suggesting he had identified some lambs with flystrike, fixed them (he recalled about 30 to 40) and “got two loads done”, and that Mrs Koberstein also referred to a note about mustering a mob on 20 February and that she “fixed up 12”. Mr Koberstein said that he moved the lambs up to the airstrip paddocks a day or so before 21 February.
[73] It was not in dispute that Mr Koberstein moved sheep up to the airstrip and neighbouring paddocks which were exposed to cool winds. Those windy, cooler conditions reduced the incidence of flystrike. Even accepting that the mobs with flystrike seen by the inspectors around the airstrip paddocks may have been different mobs, Mr Koberstein’s explanation for missing the flystruck sheep in the airstrip paddocks – that they were animals mustered there the day or two days before and
would have been hidden – seems unlikely if he had recently mustered them to those paddocks.
[74] In any event, having reviewed the evidence and given the Judge’s advantage of seeing the witnesses where credibility is important, it was open to the Judge not to accept Mr Koberstein’s evidence that he had mustered in about three mobs and treated them. He may have been wary of dealing with the inspectors as he said, but this does not explain the inconsistency between what he told them on 21 February 2018 and his account at trial.
[75] There was evidence that Mr Koberstein was attempting to arrange shearing from mid-January and this had become a significant issue due to the unseasonably wet summer as shearers will not shear wet sheep. Mr Koberstein’s phone records showed that he tried to call his principal shearing contractor, Mr Christensen, several times in the second half of January. I accept that there was a shortage of local shearing contractors and that, following a wet period, it was difficult to get a shearer. Mr Koberstein sheared his ewes between 30 January and 2 February and tentatively booked Mr Christensen to shear his lambs on 7 February but that did not occur due to the weather.
[76] Mr Koberstein said he tried a number of potential shearers on 18 February. This was another of the matters that the Judge had reservations about. The Judge said Mr Koberstein’s farm diary entry containing a list of all the people he tried to contact was inconsistent with his Spark phone records. The Judge concluded his evidence about his efforts to contact shearers on 18 February 2018 was not truthful. Mr Morison challenged this finding on the basis that it was never put to Mr Koberstein that the Spark records did not reflect calls made to the 11 shearers or whether he used another phone. Mr Morison submitted that Mr Koberstein’s evidence on this point was uncontested and it was not open to the Judge to reject it. I note the Spark records were adduced by the defence, but I accept that the inconsistency should have been put to Mr Koberstein before there was a finding that his evidence on this point was untruthful. There might have been an explanation.
[77] In relation to the number of sheep affected by flystrike, the Judge accepted the evidence of the inspectors that there were approximately 100, and found unconvincing Mr Koberstein’s evidence that there were only 32, given Mr Christensen’s invoice for
191 flyblown lambs and his evidence. This finding was only relevant to Mr Koberstein’s credibility – the Judge noted that it may not be necessary to make a finding as to the number of sheep affected, but said she had no reason to doubt the evidence of the inspectors.
[78] As to the credibility finding, Mr Morison submitted the 100 lambs referred to by the inspectors based on the 26 February visit may not have been the same lambs that Mr Christensen had shorn on 23 February. However, Mr Halberg said that Mr Koberstein indicated they were the worst affected lambs that had been shorn and treated on the Friday (23 February 2018). I accept that Mr Koberstein paid Mr Christensen $3 per lamb, above the normal rate given the short notice and that he had to give up another job. While that premium does not itself explain why Mr Christensen would invoice for shearing 191 flyblown lambs, the shearing tally book suggests that the total shorn included ewes and that some lambs were crutched rather than shorn. Mr Christensen said in evidence that probably not every one was flyblown but a certain amount would have been for him to do that. Also, Mr Corlett said he counted at least 50 affected lambs on the 21 February visit. Given the inconsistent evidence, this credibility finding may have been influenced by the Judge’s other factual findings rather than being clear on its own. In any event, it was open to the Judge to assess that Mr Koberstein was downplaying the number of sheep affected.
[79] Overall, having reviewed the evidence and given the Judge’s advantage of seeing the witnesses where credibility is important, I conclude there was a proper basis for the Judge to prefer the evidence of Dr Ridley and the animal welfare inspectors, and to make adverse credibility findings in relation to material parts of Mr Koberstein’s evidence. The evidence showed that once significant flystrike was apparent in mid-February, unless Mr Koberstein could arrange shearing of the lambs urgently, he should have mustered all the lambs to the yards, separated out those with flystrike and treated them. The Judge was ultimately entitled to conclude (to be sure) that Mr Koberstein fell short of proving that he took all reasonable steps to prevent and treat flystrike.
[80] I am satisfied that no miscarriage of justice has occurred in relation to the s 12(a) and (b) convictions.
Section 28A
[81] In relation to the s 28A conviction, Mr Morison first submitted that there was no scientific evidence that the eight sheep died from flystrike. He submitted that the Judge misquoted Dr Ridler’s report and pointed to concessions Dr Ridler made in cross-examination.
[82]The test for cause of death is substantial and operative cause.56
[83] In terms of “scientific” evidence, I accept there were no autopsies carried out on the dead sheep. I also accept that when cross-examined about the cause of death to three of the sheep, Dr Ridler’s evidence was less than definitive. In two cases, she said she would assume the most likely cause of death would have been flystrike. In a third case, she said that she was confident the most significant factor was flystrike. I accept too that when Dr Ridler was asked about the 60 lambs that Mr Koberstein said had died from heat stress after being shorn and treated following the service of the s 130 notice, and when asked about pneumonia, she somewhat inconsistently responded that autopsies would have to be done to be definitive about why they died.
[84] Given this evidence, while I do not accept that autopsies were required, there is some merit in the submission that cause of death was not proved to the required standard in respect of three of the sheep. On that basis, the particulars of the charge might have been amended. However, it was open to the Judge to accept Dr Ridler’s evidence (which was not materially misquoted), especially the more definitive evidence in relation to the dead sheep in respect of which there were no such concessions.
[85] Next, Mr Morison submitted that Mr Koberstein did not recklessly ill-treat eight sheep by omitting to treat them for flystrike. He sought to draw a distinction between the tests in Power v Auckland Society for the Prevention of Cruelty to
56 Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159 at [35]- [36], citing R v Lewis [1975] 1 NZLR 222 (CA) at 227.
Animals57 and Cameron v R,58 and advocated the need for reasonableness to be assessed “in the circumstances known to the defendant”.
[86] Power also involved an appeal against conviction under s 28A(1)(b) of the AWA. Andrews J stated:59
The test for recklessness has both a subjective and an objective element. In this case the prosecution had to establish that:60
(a)Ms Power was aware of the risk that Pip would die as a result of ill-treatment (the subjective element); and
(b)Ms Power deliberately ran that risk when it was unreasonable to do so (the objective element).
[87] The case cited by Andrews J in the footnote in this passage, R v Tipple, addressed recklessness in the context of discharge of a firearm with reckless disregard. In Tipple, the Court of Appeal said:61
… In New Zealand criminal law, at least in the context of discharging firearms, “reckless” or “recklessness” requires a conscious taking by the accused/defendant of the relevant risk. In short, subjective recklessness is required to find the accused guilty. Although this is now the established position, at least for a charge such as the appellant faced, it has not always been so. The New Zealand cases divide into two camps: those holding that the test is subjective; and those which, following the House of Lords’ decision in R v Caldwell [1982] AC 341, apply an objective test. We discuss Caldwell in [32]-[33] following.
[88] The Court of Appeal then set out a brief overview of the cases in the “subjective” and “objective” camps before referring to Caldwell, stating that the House of Lords’ judgments in that case radically changed the law in England. Caldwell substituted a wholly objective test.62 The Court of Appeal then noted that the House of Lords’ decision in R v G63 restored the pre-Caldwell position, preferring the view that a person will be reckless where he is aware of a risk, and it is, “in the circumstances known to him”, unreasonable to take the risk.64
57 Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159.
58 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161.
59 Power v Auckland Society for the Prevention of Cruelty to Animals [2015] NZHC 2159 at [25].
60 See R v Tipple CA217/05, 22 December 2005 at [27]-[34].
61 At [27].
62 R v Tipple CA217/05, 22 December 2005 at [32]-[33].
63 R v G [2004] 1 AC 1034 (HL) at 1057.
64 R v Tipple at [34].
[89] Cameron v R involved serious drug offences where knowledge or intention were not specifically provided for in the definition of the crime. The Supreme Court concluded that in such cases, in accordance with the general principles of mens rea, recklessness (that is recognition of the likelihood that the material in question is illicit and an unreasonable disregard of that risk) should suffice to constitute mens rea.65
[90]In its reasons, the Supreme Court also referred to R v G:66
In Regina v G, the House of Lords addressed recklessness as mens rea and in doing so reconsidered Caldwell and Lawrence.67 The offence in issue in G was the unlawful damage of property and the mens rea of the offence, included “being reckless as to whether... such property” would be damaged. The conclusion reached by the House of Lords was that a person acts recklessly for the purposes of the statute in issue:68
... with respect to—(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.
[91] As the Supreme Court said, much will depend on the language of the offence- creating provision.69 The Court summarised the position as follows:70
In cases such as the present in which the offence is not defined in terms which require actual knowledge or intention and nothing less, we consider that recklessness as explained in G will (at least usually and perhaps always) be sufficient to satisfy mens rea requirements as to circumstance and result. For these purposes, recklessness is established if:
(a) the defendant recognised that there was a real possibility that:
(i)his or her actions would bring about the proscribed result; and/or
(ii)that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
[92] Here, it is common ground that the offence involves the subjective and objective elements identified in Power. I accept Mr Morison’s submission that the objective component requires an assessment based on the circumstances known to the defendant. Although that was not stated in Power, where the issue did not arise on the
65 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [13].
66 At [68].
67 R v G [2003] UKHL 50 [2004] 1 AC 1034.
68 At [41] per Lord Bingham.
69 At [72].
70 At [73].
facts, I do not consider that Power is inconsistent with that approach. That was the approach in Tipple, cited in Power, and it is the approach in Cameron.
[93] However, I do not consider this assists Mr Koberstein in this case. As Mr Morison responsibly acknowledged, there is no suggestion in this case of any circumstances taken into account by the Judge that were unknown to Mr Koberstein at the time.
[94] Mr Morison also submits that the test in Power only applies the mental element of recklessness to one part of the actus reus, that is, the resulting death (this being a case of death under s 28A(1)(b)) and not to the circumstance that caused the death, that is, the suffering (ill-treatment). I do not accept this submission. The relevant risk in the subjective component identified in Power was the risk that the animal would die as a result of ill-treatment. That requires awareness of the risk of both the ill-treatment and the resulting death. Similarly, the Judge here identified the subjective element as whether Mr Koberstein was aware of the risk that the animal would die as a result of ill-treatment. Also, it is unnecessary to show that Mr Koberstein believed that his acts or omissions would lead to the death of the eight sheep that are the subject of the charge, or indeed would lead to the death of sheep generally. Awareness of the risk that they would die as a result of ill-treatment is sufficient.
[95] Turning to the facts, I accept that Mr and Mrs Koberstein had no intention of ill-treating their sheep. Rather, the s 28A conviction was based on recklessness. As to the subjective element, the conviction was based on Mr Koberstein’s awareness of the risk that sheep would die as a result of ill-treatment, that is, causing them to suffer by omitting to treat them for flystrike. On the evidence, the Judge was entitled to find that Mr Koberstein must have been aware of the risk that sheep would die as a result of failure to treat for flystrike given his experience, his knowledge of the Code and the obvious signs of flystrike on the farm. This was not challenged. Mr Koberstein acknowledged that from 15 February 2018 he realised that flystrike had become a problem on his farm and that during the five days prior to the inspector’s visit on 21 February 2018 he knew that there were lambs severely affected by flystrike. Rather, Mr Koberstein’s position was that he was doing everything that he could to mitigate and treat his livestock.
[96] As to the objective element, I also consider that the Judge was entitled on the evidence to conclude (to be sure) that Mr Koberstein deliberately ran the risk that sheep would die as a result of ill-treatment when it was unreasonable to do so. Given the evidence of what Mr Koberstein told the inspectors, the Judge was entitled not to accept that he had taken all the steps he claimed to have taken to identify and treat the sheep, and to conclude that, in those circumstances, it was unreasonable for him to have run that risk and not urgently done more in the period between 15 and 21 February 2018. As indicated, he could have yarded the lambs and spot treated those affected with flystrike.
[97] Mr Morison submitted that Mr Koberstein had a reasonable understanding of the situation leading up to and during the days following 15 February 2018. However, as indicated, the correct question is whether it was unreasonable for him to run the risk that sheep would die as a result of failing to do more to treat them for flystrike.
[98] I am satisfied that no miscarriage of justice has occurred in relation to the s 28A conviction.
Conclusion
[99] Accordingly, no miscarriage of justice has occurred and the appeal against the convictions must be dismissed.
Result
[100]The appeal is dismissed.
Gault J
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