R v Collins
[2008] NZCA 235
•11 July 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA476/06
[2008] NZCA 235THE QUEEN
v
BRIAN DERMOT THOMAS COLLINS
Hearing:27 May 2008
Court:William Young P, Randerson and Harrison JJ
Counsel:Appellant in person
P J Shamy and S L Litt for Crown
Judgment:11 July 2008 at 3.30 pm
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed to the extent of reducing an order to pay costs but is otherwise dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Table of Contents
Para No
Introduction [1]
District Court Evidence
(1) Prosecution [4]
(2) Defence [30]
Adjournment Application [39]
Appeal [47](1) Previous Acquittal [48]
(2)Legal Representation: ss 24 and 25 New Zealand
Bill of Rights Act 1990 [50]
(a) Legal Aid [51]
(b) Trial [60](c) Miscellaneous Issues [73]
(3) Amendments [80]
(4) Disclosure [84]
(5) Code of Recommendations and Minimum Standards [86]
Sentence [90](1) Community Work [91]
(2) Veterinarian Costs [93]
(3) Disqualification [94]
Result [102]
Introduction
[1] Mr Brian Collins appeals against his conviction following trial before Judge Noble and a jury in the District Court at Invercargill on two charges of ill-treating horses under s 29(a) Animal Welfare Act 1999.
[2] Mr Collins also appeals against the sentence imposed of 200 hours community work together with an order to pay veterinarian costs of $929.80, disqualification for a period of two years from owning or exercising authority in respect of equines and from having any involvement in their management or farming, and an order for disposal within seven days of all horses currently in his possession.
[3] As in this Court, Mr Collins represented himself at trial.
District Court Evidence
(1) Prosecution
[4] The case for the prosecution, the Ministry of Agriculture and Forestry (MAF), was that Mr Collins ill-treated two elderly mares, one a thoroughbred and the other a standardbred, by underfeeding them over a prolonged period.
[5] A number of witnesses gave evidence for the prosecution at trial including an animal welfare inspector, Mr Peter Presland, employed by MAF. He inspected a rural property occupied by Mr Collins at Browns, near Winton in Southland, on 11 November 2004. Mr Collins also occupied a property nearby at Oreti Bridge. He grazed horses on both. Mr Presland was responding to complaints from members of the public.
[6] Mr Presland noticed a 25 year old thoroughbred mare at the Browns property. She was in foal and in poor condition. He also noted that the grass cover, the only available feed, was light. A disagreement, in which Mr Collins expressed himself in abusive terms, followed Mr Presland’s inquiry about whether he was feeding supplements to the mare. Mr Collins initially resisted Mr Presland’s suggestion to obtain a veterinary opinion on the horse’s condition. Later, though, he agreed for his veterinarian, Mr Andrew Roe, to assess her.
[7] Mr Presland returned to the Browns property on 15 November. Also present were Mr Roe and a police officer. There was another disagreement about the adequacy of Mr Collins’ feeding regime. Mr Collins advised Mr Presland that he was feeding the thoroughbred mare a Mitavite product at the rate of two kilograms per day. Mr Presland responded by suggesting to Mr Collins that he feed the product according to the manufacturer’s recommendation of four kilograms per day. Mr Collins disagreed, suggesting that Mr Presland wanted to kill the mare.
[8] The next day Mr Presland issued a notice to Mr Collins at the property under s 130 Animal Welfare Act (all subsequent statutory references are to that enactment unless otherwise stated) requiring him to:
Feed Mitavite Breeda or its equivalent as per the manufacturer’s recommendations, i.e. for the aged [thoroughbred] mare feed at 4 kg per day on an ongoing basis.
Mr Presland noted also that the thoroughbred mare, which had by then foaled, had lost condition, and that five mares and one stallion were on the Browns property.
[9] On 29 November Mr Presland issued another s 130 notice to Mr Collins at the property requiring him to:
Feed [the thoroughbred mare] NRM Affinity or its equivalent as per manufacturer’s recommendations: i.e. 4-5 kg plus hay from foaling to peak lactation at 3-4 months, ensure adequate water available at all times.
Mr Presland also supplied Mr Collins with copies of all relevant sections of the Code of Recommendations issued by MAF together with relevant provisions from the Animal Welfare Act.
[10] On a visit to the property on 16 December Mr Presland observed that the thoroughbred mare had lost further condition. Mr Collins admitted that it ‘had gone back’. Again Mr Presland discussed the feeding regime with Mr Collins, emphasising the need for future planning to address the ongoing feed deficit and expressing his opinion that the property could not sustain the number of horses grazing there.
[11] Mr Presland visited the property on 26 January 2005. He observed another mare, a standardbred which had foaled within the previous 14 days, showing hair loss and a prominent rump. Messrs Presland and Collins differed about that mare’s condition: Mr Presland thought it was poor whereas Mr Collins considered it to be very good considering her stage of lactation. There was still no grass cover but Mr Collins stated his intention to feed the horses five kilograms of supplements per day.
[12] Mr Presland inspected the property with Mr Roe on 14 February. After greeting Mr Presland with a disparaging remark, Mr Collins accused him of poisoning the standardbred mare. Mr Presland’s notes recorded that the standardbred mare’s neckline and spine were prominent, all ribs were showing, all horizontal processes were prominent, she was suffering severe atrophy (muscle wastage) of the hind quarters and was hungry, eating vigorously when offered grass. He also took photographs.
[13] Mr Collins agreed with Mr Presland that the mare’s condition was poor but attributed it to changing feed supplement brands and weather conditions. Mr Presland noted there was no grass (equivalent to less than 800 kilograms of dry matter per hectare) and was concerned the horses would suffer under competition for little if any feed. Five mares, two foals and a stallion were then on the property. It remained overstocked and, in Mr Presland’s opinion, the condition of each horse would not improve without a severe reduction in numbers. Mr Collins admitted that the thoroughbred mare was being picked on by the other horses, compounding her feeding difficulties.
[14] Following this visit Mr Presland, on MAF’s behalf, applied to the District Court at Invercargill for a temporary enforcement order for the notices earlier issued. That order was made on 22 February 2005.
[15] In cross-examination by Mr Collins, Mr Presland confirmed that the Code of Recommendations was a guideline for good practice because it set minimum standards; that the thoroughbred mare was being fed Mitavite but only at two kilograms per day; and that at one stage in late 2004 Mr Collins told him he was feeding two kilograms of supplements to five of the mares and four kilograms to the thoroughbred mare. He agreed that Mr Collins was also feeding the chaff to the mare which provided bulk. By comparison, Mr Presland noted, Mitavite has high nutritional value.
[16] Mr Presland confirmed that he first noted the standardbred mare was in poor condition when visiting Mr Collins’ property on 26 January 2005; and that he had previously considered her one of the five horses in good condition. Mr Collins’ question acknowledged that the mare had lost condition but suggested it was attributable to foaling distress. Mr Presland disagreed.
[17] Mr Roe visited the Browns property on three occasions with Mr Presland. On the first visit, on 15 November 2004, he inspected the thoroughbred mare. He assessed her condition by reliance on the Carroll & Huntington scale, an internationally accepted horse conditioning scoring system which adopts a score ranging from 0, amounting to emaciation, to 5. In Mr Roe’s assessment the mare’s condition was between 1 and 1.5. He noted evidence of muscle wasting particularly over the pelvic area and ribs. Otherwise, the mare was in good health and there was no sign of any underlying illness or disease. He also observed her pregnancy.
[18] Mr Roe confirmed that he endorsed Mr Presland’s advice when given to Mr Collins to feed the mare with a supplement especially designed for pregnant mares. The recommended minimum of four kilograms of feed daily was based on her weight and state of pregnancy, to ensure no further loss of condition during the remainder of her pregnancy and while she was feeding the foal.
[19] Mr Roe visited the property on 29 November with Mr Presland. By then the mare had foaled but had not lost any further condition from the previous visit. Mr Roe repeated his earlier recommendation to Mr Collins about maintaining levels of the feed supplement.
[20] Mr Roe inspected the standardbred mare when visiting the property on 14 February 2005. He scored her condition at 1 on the Carroll & Huntington scale. He noted that her ribs and top part of the backbone were very prominent. There was noticeable muscle wasting over the hind quarters and around the neck. There was no obvious sign of any underlying illness or disease. In Mr Roe’s opinion the standardbred mare was ‘probably very thin’.
[21] Mr Roe also observed the thoroughbred mare. He generally confirmed Mr Presland’s description of her condition. The horse had neither gained nor lost condition since late November but was probably thinner than the standardbred mare.
[22] Mr Roe said that a larger proportion of a horse’s diet must be made up from a supplementary source because the amount of grass likely to be grown on a rural property in Southland reduces seasonally from February towards autumn. He made a comparative assessment between the amount of feed each of the horses on the property needed daily and the amount available based upon the absence of grass cover plus the supplements Mr Collins was feeding the horses. He concluded that each horse was suffering a food deficit of about five kilograms of dry matter per day.
[23] In Mr Roe’s opinion each mare urgently needed another five kilograms per day of feed from some other source on 14 February. He considered that the poor condition manifested by the two mares was caused by prolonged underfeeding. Mr Roe could not determine whether each had suffered a small amount of underfeeding over a long period or a more severe underfeeding over a short period. As a result of the underfeeding, each horse depended upon her own body fat and muscle reserves to meet her daily requirements (the ideal is to have a mare in good condition at the early stages of pregnancy (the gestation period is 11 months) and it is difficult to add condition in late pregnancy).
[24] Mr Roe saw the two mares again on 6 April. Each was now in the care of other parties following Mr Collins’ hospitalisation in late February for a hip operation and recovery. The thoroughbred mare had improved to 2 on the Carroll & Huntington scale and her condition was moderate. The standardbred mare had improved to about 1.5, from very thin to thin. Both custodians confirmed that each mare was receiving additional and adequate nutrition.
[25] Mr Collins did not challenge Mr Roe’s opinion in cross-examination. His questions were of a peripheral nature. He hinted briefly that the horses may have been suffering from selenium poisoning or copper poisoning. Mr Roe replied that the latter condition was very rare in horses and that the symptoms manifested by the mares were not consistent with the former.
[26] A retired veterinarian, Mr James Mason, also gave evidence for the prosecution. He visited Mr Collins’ property on 18 March 2005. He inspected the thoroughbred mare. In his opinion she was very thin and the foal was emaciated. The pasture was heavily contaminated with flat weeds, causing low nutrition. Mr Mason considered that the cause of the mare’s problem was obvious – a lack of food – compounded by the demands imposed by a suckling foal. He confirmed Mr Roe’s opinion that the mare would have had to draw on her own body reserves to make up the shortfall. In his view the Browns property was only able to sustain three horses.
[27] On the same day Mr Mason went to Mr Brian Dodds’ property nearby. The standardbred mare was now grazing there along with three other mares and three foals belonging to Mr Collins. In his opinion the standardbred mare was in considerably better condition than the thoroughbred. Mr Mason attributed this improvement to the availability of greater feed on a dairy farm. Mr Collins’ brief cross-examination did not challenge Mr Mason’s opinion.
[28] Another witness, Ms Kara Dickson, worked as a milking assistant on Mr Dodds’ property. Ms Dickson held a galloping trainers licence and was interested in horses. When delivering the mares and foals to Mr Dodds’ property in mid February, Mr Collins had dropped off a bag of mix and a bag of copra meal.
[29] Ms Dickson noticed that the three larger mares would chase the standardbred mare away from the feed supplements if they were fed together. So Ms Dickson isolated the mare from the others to ensure that she obtained her share. As a result the mare’s condition had improved to ‘really good’ when she left the property in early May 2005. Some time later Mr Collins advised Ms Dickson that the mare had died.
(2) Defence
[30] Mr Collins was the only witness in his defence. He confirmed that he had destroyed the two mares in June and July 2005 respectively. He said that from May, following a very wet autumn, to November 2004 he fed supplements to each horse including chaff (chopped up straw containing some oats) and NRM Affinity at the rate of about two kilograms per day. On Mr Presland’s advice he increased the amount of supplement in November but the chaff ran out at that time.
[31] Mr Collins said the two mares were well bred and given to him because they were no longer of commercial value as brood mares. He intended to obtain a filly foal from each as a good foundation mare. He asserted that he cared for his horses well, observing that both mares were at geriatric stages. He acknowledged problems but attributed them to poor weather and age. He said the two mares would have been immediately destroyed if they had not been pregnant.
[32] In cross-examination Mr Collins conceded that the thoroughbred mare was in a very light condition (by which he meant not as fat as a brood mare should have been); that one of the s 130 notices served on him in November 2004 directed him to feed her with the supplement at four kilograms per day; and that he did not have much time or respect for MAF or Mr Presland.
[33] Mr Collins asserted that after receipt of the MAF notice he fed the horses with additional supplements but not of the type and at the rate directed, saying that was unnecessary; that the mares’ problems started after service of the notice in late November; that the standardbred mare’s problems only occurred after she foaled in January 2005, when he began feeding her at the recommended level; and that Mr Roe’s scores of the conditions of the mares at 1 and 1.5 were inaccurate.
[34] Mr Collins was equivocal about what he fed the horses over the relevant period. Initially he admitted that he did not comply with the s 130 notices because he did not normally feed Mitavite and switched to another brand. He said he told Mr Presland on 29 November 2004 that he was feeding each horse one kilogram of Balancer instead of Mitavite. Then he said he changed the feed from Mitavite to NRM Affinity and Balancer. The Affinity was fed to all horses including the mares at the rate of two kilograms per day. The Balancer was a horse feed pellet and was fed only to the two pregnant mares. Mr Collins had it available when Mr Presland first visited on 11 November.
[35] Mr Collins later acknowledged that he was not feeding the thoroughbred mare four kilograms a day of NRM Affinity in accordance with the s 130 notice because ‘I didn’t need to’. He asserted that after 29 November he started feeding each mare four kilograms a day ‘and that’s when the problem started, the horses fell to bits’. He rationalised the deterioration in the thoroughbred’s condition when observed by Mr Presland on 16 December by reference to an extremely wet period. He also said that he later started feeding the standardbred mare four kilograms of Affinity daily ‘and she got worse’.
[36] Mr Collins admitted that when Messrs Presland and Roe returned on 14 February he accused the former of poisoning both the mares; that, when asked by the two men to accompany them on an inspection of the horses, he directed them to leave the property immediately in obscene terms; that the standardbred mare was thin and ‘she certainly wasn’t very happy’; and that the thoroughbred’s condition had not improved though he asserted that it had not reverted either.
[37] Later, when questioned by Judge Noble, Mr Collins volunteered that he had ‘waffled a fair bit on the feeds’ in cross-examination. He said that he was unable to obtain the recommended quantities of Affinity because of a temporary shortage in November. That was when he started feeding Balancer to the two pregnant mares. He said he fed some Affinity but started adding sweet feeds, which was an error because both the Affinity and sweet feed had the same levels of minerals. Mr Collins said that from mid February 2005 he discovered the possibility of the horses being poisoned. So he reduced the feed levels to two kilograms each of Affinity and sweet feed for the mares and started introducing Copra.
[38] Mr Collins closed to the jury following the Crown’s address.
Adjournment Application
[39] Before addressing each of the grounds of appeal advanced by Mr Collins, we record that Mr Collins sought an adjournment when the appeal was called for hearing on 27 May. The grounds were set out in a written application to the Registrar on 10 May 2008. The President issued a minute on 19 May provisionally declining the application but advised Mr Collins of his right to renew it when the appeal was called for hearing. We dismissed Mr Collins’ application after hearing from him and Mr Shamy for the Crown in opposition. Our brief grounds for refusing Mr Collins’ application follow.
[40] The relevant events leading to Mr Collins’ prosecution occurred in late 2004 and early 2005. Charges were laid in June 2005 but trial did not take place until November 2006. The transcript shows that Mr Collins was principally responsible for the delays. He was sentenced in December 2006.
[41] Mr Collins was granted an adjournment of the first fixture to hear his appeal in this Court in May 2007. Its purpose was to enable him to obtain legal representation and identify allegedly non-disclosed documents. However, Mr Collins has since failed to comply with a condition of the adjournment that he was to provide a list of those documents promptly to Crown counsel.
[42] Mr Collins acknowledged that following the adjournment the Legal Services Agency referred him to a lawyer with whom he conferred. Mr Collins left us in no doubt that he decided not to pursue the reference because he regarded the lawyer as likely to be influenced by the Crown and unsuitable for his purposes. In Mr Collins’ own words:
If the Court can actually find a lawyer with sufficient integrity to act as a legal representative and not as a puppet for the Crown I will accept their appointment.
[43] Mr Collins’ first ground for seeking an adjournment of the fixture was that he required more time to obtain documents from MAF, principally scientific evidence upon which MAF settled its standards for compliance with the physical, health and behavioural needs of animals. He related this request to the provisions of s 10.
[44] In our judgment Mr Collins has had ample time ever since he was first charged three years ago to obtain the relevant scientific information. A minute issued by Judge Phillips on 8 August 2006 records the Crown Solicitor’s advice that the Crown and MAF had disclosed all relevant documents to Mr Collins, including information relating to a ‘Code of Welfare for Horses’. The Judge also noted that the Crown Solicitor had requested MAF to supply Mr Collins with copies of any scientific material relating to the Code. His minute was apparently issued when dismissing a request by Mr Collins for an adjournment of the trial on the ground of non-disclosure.
[45] In any event, Mr Collins was unable to establish how the scientific information might assist his appeal. That information is only an ingredient of a charge under s 10 of failing to ensure ‘the physical, health, and behavioural needs of the animals in accordance with good practice and scientific knowledge’. The Crown withdrew that charge before trial. The scientific information is not an element of the two ill-treatment charges under s 29 on which Mr Collins was convicted and was at best of peripheral relevance given the simple and straightforward nature of the Crown case which focused on the very poor condition of both mares.
[46] Mr Collins’ second ground was that his recent request for information about the qualifications of MAF staff members including Mr Presland remain unanswered. He sought evidence of Mr Presland’s date of birth so that he could check the educational institutes which Mr Presland claimed to have attended. These particulars are plainly immaterial.
Appeal
[47] Mr Collins raises 24 grounds of appeal against conviction. We agree with Mr Shamy that they fall into discrete categories, which we will address as follows.
(1) Previous Acquittal
[48] Mr Collins’ first composite ground of appeal is that Judge Moran erred on 8 November 2006 in dismissing a plea of previous acquittal or autrefois acquit. At that time the indictment contained four counts. The first alleged that Mr Collins contravened the enforcement order made on 22 February 2005 by failing to sell, destroy or give away the two mares and foals and to provide an appropriate record of sale, destruction or gift to MAF: s 152(1). As noted, the second count alleging a failure to ensure the physical health and behavioural needs of the two mares was withdrawn. The remaining two counts of ill-treatment were the ones on which Mr Collins was convicted.
[49] Mr Collins’ argument that Judge Walsh’s discharge of the enforcement order on 9 December 2005 constituted an acquittal on all charges laid in June 2005 must fail. The enforcement order was made on MAF’s application in the civil jurisdiction of the District Court. That order did not charge a criminal offence, let alone the same offence as ill-treating the mares, but was made for the purpose of empowering MAF to enforce the s 130 notices earlier issued by Mr Presland. Mr Collins’ alleged breach of its terms was the subject of a discrete criminal charge based upon events occurring in June 2005 while the enforcement order was in full force. Its discharge on 9 December 2005 had no legal effect on an existing breach of the order or on the two ill-treatment charges which were unrelated to the order.
(2)Legal Representation: ss 24 and 25 New Zealand Bill of Rights Act 1990
[50] Second, Mr Collins submits that he was denied the right to consult and instruct a lawyer: s 24(c) New Zealand Bill of Rights Act 1990 (NZBORA), on the ground that he applied for a grant of legal aid but was refused.
(a) Legal Aid
[51] It is settled that s 24 NZBORA does not guarantee that the state will provide a lawyer for a defendant in all cases even where he is facing a serious charge except that he has an absolute right to the state’s legal assistance if both the interests of justice so require and he does not have sufficient means to provide for his own legal assistance: s 24(f); R v Condon [2007] 1 NZLR 300 (SC) at [76]. Mr Collins was entitled to apply for legal aid given that the proceedings were criminal in nature: s 6 Legal Services Act 2000 (LSA). He apparently satisfied two of the three prerequisites for consideration for a grant: s 8(1)(a) and (c) LSA. He is a natural person and the offences for which he was charged are punishable by a maximum term of imprisonment of six months: ss 29 and 37.
[52] Copies of correspondence passing between Mr Collins and the Legal Services Agency confirm that on 15 July 2005 the Agency declined Mr Collins’ application for legal aid ‘because the charges are not considered serious enough to warrant …’ a grant. The Agency advised Mr Collins of his right to apply for reconsideration of the decision and, if he was dissatisfied following that step, to apply for a review to the Legal Aid Review Panel (the Panel). Mr Collins exercised his right to apply for a reconsideration but by letter dated 28 February 2006 the Agency advised that its original decision would stand because:
There is very little, if any, likelihood of a sentence of imprisonment if you are convicted of these offences and no other factors which would warrant a grant of aid in the interests of justice.
[53] It is not for us to determine whether or not the Agency correctly exercised its statutory discretion in declining legal aid under s 8 LSA, although its assessment that Mr Collins was at little risk of imprisonment following conviction was correct. It is notable that on both occasions the Agency expressly advised Mr Collins of his right to apply for review to the Panel but there is no evidence that Mr Collins ever pursued this right.
[54] We do not know whether or not Mr Collins’ means were sufficient to provide for his own legal assistance. He advised us that he owned the two properties where the horses were grazing. He did not provide any details of values or of the amount of any charges secured against the properties. We do know, however, from the probation report that in November 2006 Mr Collins was in receipt of a State benefit.
[55] It appears that Mr Collins had consulted a lawyer in or before July 2005. Correspondence from MAF to Mr Collins in April 2006 refers to its discharge of disclosure obligations in letters to his legal representative at the Southland Community Law Centre on 19 and 25 July 2005. Mr Collins advised us that he had spoken with a solicitor at the Centre but expressed an unequivocal lack of confidence in the quality of service available.
[56] Minutes of Mr Collins’ appearances in the District Court before trial are relevant. At a preliminary hearing on 8 March 2006 Mr Collins advised Judge Callaghan of his intention to appeal the Agency’s earlier refusal to grant legal aid. At a subsequent hearing on 7 June he advised Judge Phillips that his ‘appeal to the … Panel’ had been unsuccessful. The transcript suggests, however, that Mr Collins was in fact referring to the result of his request for reconsideration of the original decision.
[57] Mr Collins presented as a single-minded individual who was suspicious of and had little time for lawyers. His bluntly expressed opinion was that members of the legal profession who might be available to conduct his defence would be unable to exercise independence from the Crown. Judge Noble’s assessment on sentencing that Mr Collins was not prepared to accept professional advice unless he agreed with it supports our conclusion that Mr Collins would not be willing to listen to legal advice or guidance on the conduct of his defence or entry of a plea. In our view there was a real prospect of an irretrievable breakdown in the solicitor/client relationship if legal aid had been granted. Furthermore, Mr Collins did not appear inhibited or dissatisfied with by his lack of legal representation at trial.
[58] We are not in a position to determine whether Mr Collins was rightly denied legal aid but we proceed on the basis that, even if an accused person makes an informed choice to go to trial without a lawyer or is rightly refused legal aid, an appellate Court must still examine the overall fairness of trial because the right to a fair trial is absolute and a defendant cannot be validly convicted if the trial is for any reason unfair: Condon at [80].
[59] The steps which this Court must undertake in determining whether or not Mr Collins received a fair trial are as follows (Condon at [82]):
The Court should examine the manner in which the Judge presided over the trial, especially whether the Judge clearly explained the Court procedures to the accused and thereby minimised the disadvantage of being unfamiliar with the trial process and with rules of evidence. It will be relevant also whether the accused had the benefit of guidance from a lawyer or an amicus at any time prior to or during the trial. The Court must have regard to the personal characteristics of the appellant, such as level of intelligence and education, previous experience in a courtroom and ability to express him or herself clearly and sensibly in that setting. It must look to see whether the case involved any difficult legal issues or had other complexities which might have benefited from analysis by a trained legal mind. It should also look at the nature of the Crown case and at how effectively the accused in fact managed to convey the nature of the defence in cross-examination of Crown witnesses, examining defence witnesses, giving evidence (if the accused chose to do so) and addressing submissions to the Court. Mason J pointed out in McInnis [143 CLR 575] that the calibre of the accused’s forensic performance is a relevant, but not a critical, factor in the determination of fairness. The appeal Court should not be too ready to conclude from a reading of the transcript that the defence has been conducted as competently as counsel, with professional skill and detachment, would likely have done. A transcript does not necessarily convey the full atmosphere of the courtroom and in particular the demeanour of the accused before the jury. A fortiori, if the full transcript, including addresses, is not available.
[Footnotes excluded]
(b) Trial
[60] The primary area of examination is the manner of Judge Noble’s conduct of the trial. However, it is appropriate first to refer briefly to a minute issued by Judge Phillips on 18 October 2006 following a callover that day. The Judge dealt with the mode of giving evidence for some Crown witnesses, noting that they were to be available for cross-examination, and an agreed admission of facts. The Judge recorded that he explained ‘at some length’ to Mr Collins the issue for trial and his rights to issue witness summonses to call two individuals whom the Crown might not call as witnesses. He referred again to the disclosure questions raised by Mr Collins, and concluded by recording his emphasis that the Crown was bound to prove its case beyond reasonable doubt on each element of the charge and that Mr Collins was not obliged to prove anything at all.
[61] At the start of the trial Judge Noble provided Mr Collins with a written summary of his rights and obligations including the advice required by s 364 Crimes Act 1961. His objective was plainly to ensure that Mr Collins was not disadvantaged by self-representation. The Judge intervened appropriately during examination-in-chief of Crown witnesses. For example, he declined to allow Mr Roe, who was the first Crown witness, to produce a report on events about which he would give evidence viva voce. He explained to Mr Collins before cross-examination that he could only question Mr Roe on issues relevant to the case. He intervened appropriately in cross-examination to enjoin Mr Collins and Mr Roe against speculation. He allowed Mr Collins to resume questioning Mr Roe while the Crown prosecutor was re-examining.
[62] Mr Presland’s evidence was always going to present the greatest management difficulties for the Judge. Mr Collins’ animosity towards him was obvious. He objected early in Mr Presland’s evidence-in-chief to an application for leave to refer to notes made on his first visit to Mr Collins’ property. The Judge himself examined the circumstances in which the notes were made before granting leave. He assisted Mr Collins in securing amplification of Mr Presland’s professional qualifications and other issues. He obtained clarification from Mr Presland at other appropriate points of cross-examination and intervened where necessary on grounds of relevance.
[63] At the conclusion of the Crown case Judge Noble, apparently of his own volition, discharged Mr Collins on the first count of contravening the enforcement order. He advised the jury that there was a reasonable possibility Mr Collins may have believed the enforcement order was ‘effectively on hold’ pending a further hearing. He directed the jury to disregard all the evidence led on that charge when deliberating on the remaining two counts. The effect of the Judge’s initiative was to ensure that Mr Collins’ interests were protected on this count as if he had been represented by competent defence counsel.
[64] Judge Noble led Mr Collins’ evidence-in-chief. He adduced all evidence which might possibly be available to Mr Collins in defence; his questions and Mr Collins’ answers occupy seven pages of the transcript. The Judge gave Mr Collins every opportunity to establish that he did not intend to commit the offences, even though as we shall explain shortly he was charged with offences of strict liability.
[65] Mr Collins does not criticise Judge Noble’s summing-up, and nor could he. That is because the Judge’s directions on the law erroneously favoured Mr Collins. The Judge directed the jury correctly that the Crown carried the burden of proving beyond reasonable doubt that Mr Collins ill-treated a mare – that is, he caused it to suffer unnecessary distress by any act or omission: s 29(a); but that, because it was an offence of strict liability, the Crown did not have to prove mens rea – that is, an element of intention or wilfulness: s 30(1). He summarised the evidence, noting that the veterinarians’ opinions were largely unchallenged.
[66] Judge Noble then advised the jury that three possible defences were available to Mr Collins: s 30(2). He focused on what he understood was Mr Collins’ principal defence, that of taking all reasonable steps not to ill-treat the mares: s 30(2)(a). He outlined the evidential basis of Mr Collins’ defence, before summarising its legal effect in this way (at [26]):
… Mr Collins objectively took all reasonably possible steps to avoid unnecessary distress to the horses and therefore it is at least reasonably possible, and if you conclude that it is reasonably possible, that objectively he did so, then you would find him not guilty of the charge.
[Our emphasis]
[67] Judge Noble reinforced this message of an onus on the Crown to negate all possible grounds of defence by his reminder that ‘… Mr Collins assumes no burden of proving his innocence or of proving anything else …’: at [27].
[68] While this point was not raised by Mr Shamy, we are satisfied that the Judge erred significantly in his direction (at [26] recited above) but to Mr Collins’ benefit. Section 30(2) of the statute provides:
… it is a defence in any prosecution for an offence against section 29(a) if the defendant proves—
(a)That, in relation to the animal to which the prosecution relates, the defendant took all reasonable steps not to commit a breach of section 29(a) …
[69] The Animal Welfare Act, consistently with the principles applying to offences of strict liability, casts an evidential burden on the defendant if the Crown proves the factual ingredients of ill-treatment; that onus is to be discharged by the standard of proof on the balance of probabilities: Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) at 85. Judge Noble’s direction, however, was to acquit if the jury was satisfied that it was reasonably possible Mr Collins ‘took all reasonably possible steps’ to avoid ill-treating the horses. In effect the Judge was advising the jury that the Crown had the burden of proving beyond reasonable doubt that the statutory defence was not available instead of directing on the affirmative burden assumed by Mr Collins.
[70] The Judge’s error was compounded to Mr Collins’ benefit by his subsequent direction to the jury to acquit if they were left with a reasonable doubt about the truth of Mr Collins’ account. Even if the jury were left in that state, they would still have been bound to decide whether any steps taken by Mr Collins were objectively reasonable. The Judge’s direction absolved the jury from this task.
[71] Judge Noble granted Mr Collins a further indulgence. A defendant cannot without the leave of the Court raise a defence of taking reasonable steps unless within seven days of service of a summons or such other time as the Court allows he has delivered to the prosecutor a written notice stating an intention to rely on s 30(2). The notice must specify the reasonable steps that the defendant will claim to have taken: s 30(3)(b)(i). The Judge’s sentencing notes confirm Mr Collins was allowed to run his substantive defence at trial despite his failure to comply with ss 30(2) and (3).
[72] In summary, we are satisfied that Judge Noble conducted the trial fairly; that he was diligent to ensure Mr Collins was not prejudiced by his lack of legal representation; and that the unintended effect of his erroneous directions on the law favoured Mr Collins.
(c) Miscellaneous Issues
[73] However, that conclusion does not exhaust our inquiry. We must consider all the other issues mandated by Condon at [82]. First, it is unclear whether Mr Collins had the benefit of guidance from a lawyer before trial. As noted, he acknowledged speaking to a solicitor employed by the Southland Community Law Centre. But, consistent with his attitude towards lawyers, Mr Collins seemed dismissive of the benefits he might obtain from this quarter. The absence of legal guidance is not in our judgment a controlling factor.
[74] Second, we have had regard to Mr Collins’ personal characteristics. He has not had a formal tertiary education although he advised us that he had completed three papers in commercial law at Otago University. He appears to be reasonably intelligent and familiar with his legal rights if at times misguided about their nature and effect. He demonstrated a high degree of self-confidence in his ability to express himself. He has a forthright, gruff and at times belligerent manner, dominated by a sense of persecution by and corruption within MAF. While these characteristics may not have endeared Mr Collins to a jury, they would have emerged in any event given our satisfaction that he was determined to give evidence in his own defence at trial (indeed, the inherent strength of the Crown case left him with no option).
[75] Third, the case did not raise any difficult legal issues or present other complexities which might have benefited from analysis by a trained legal mind. Such issues as arose were predominantly fact based. The poor condition of the horses over the relevant period was not in material dispute. The only possible issue was whether or not Mr Collins took reasonable steps to avoid ill-treatment. Again this was a circumstance based inquiry to be determined by applying an objective test.
[76] Fourth, Mr Collins’ cross-examination was structured and adequate. He put his version of events – some relevant but others not – to witnesses for commentary where appropriate. On occasions his questions were intemperate or speculative but not excessively so. Mr Collins seemed to have a grasp of the rudiments of cross-examination. His closing address demonstrated the same skill level. It was logical and succinct, while covering all relevant bases.
[77] Mr Collins’ only notable error was a failure to put allegations of partiality or bias towards the Crown to Mr Mason, the retired veterinarian. He advanced this suggestion in evidence and in his address. He drew criticism from the Judge for failing to raise it with Mr Mason. However, we infer that Mr Mason would inevitably have rejected that suggestion if made; he was hardly likely to admit what the Judge described in summing-up as ‘an extraordinary proposition’ that his opinion represented what MAF had told him to say. The question would probably have been disallowed in any event because it was without an evidential foundation.
[78] Mr Collins did not challenge the veterinarians’ opinions about the condition of each mare. He was unlikely to attempt to dispute Mr Roe’s evidence given that Mr Roe was his veterinarian whose appointment by MAF to advise on the thoroughbred mare’s condition he endorsed. Mr Collins’ approach suggested an acceptance of the experts’ conclusions although he retained an unarticulated animus towards Mr Mason.
[79] We emphasise that the Crown’s case was strong if not overwhelming. On sentencing Mr Collins Judge Noble noted that the jury returned guilty verdicts ‘very quickly’. Mr Collins could easily have avoided prosecution by feeding the mares in compliance with MAF’s notices, based on his own veterinarian’s advice. He was given every indulgence to rectify his earlier defaults. But Mr Collins knew best, and by his own concession he deliberately disregarded MAF’s recommendations. Legal representation would not have rescued Mr Collins from the incriminating consequences of his own conduct, admissions and contradictory evidence. We are not satisfied that Mr Collins’ lack of legal representation denied him his right of a fair trial or gave rise to any risk of a miscarriage of justice.
(3) Amendments
[80] Mr Collins’ third composite ground of appeal is that he was not fully informed of amendments made to the charges during trial or given a full opportunity to consider their implications, leading to his inability to challenge the admission of prejudicial evidence, particularly photographs of the horses taken on a site visit.
[81] The only amendments made to the indictment were in Mr Collins’ favour. The first count was withdrawn by leave and the second was dismissed by Judge Noble. These steps could not possibly have prejudiced Mr Collins. The other two counts remained unchanged.
[82] Mr Collins’ primary concern is with the photographs. His position at trial and on appeal was that the photographs were deliberately misleading, consistent with the bad faith which he claimed drove the prosecution. Judge Noble recorded Mr Collins’ objection and the Crown’s acceptance that the photographs ‘are of varying quality’, observing that they had lost quality in reproduction and should not have been admitted. He expressly invited the jury to disregard the photographs and focus instead on the viva voce evidence.
[83] We have viewed the photographs. While we agree with the Judge that the quality is not good, this imperfection does not render them prejudicial and in our view the Judge was generous to Mr Collins in directing the jury to disregard the photographs.
(4) Disclosure
[84] Mr Collins’ fourth composite ground of appeal is that the Crown breached its obligations of disclosure. He says the Crown’s defaults caused delays in obtaining a fixture for trial, leaving him with inadequate time to prepare his defence. Furthermore, he submits the Crown failed to provide full discovery; as a result, the trial was not open and fair.
[85] We have already addressed this ground when giving reasons for declining Mr Collins’ application for an adjournment in this Court. In argument on appeal Mr Collins did not identify any non-disclosed documents other than those referred to in his written application for an adjournment of the appeal hearing. Mr Collins first raised this complaint before Judge Callaghan on 8 March 2006 and it was the subject of rulings issued by Judge Phillips on 7 June, 20 July, 8 August and 18 October 2006. Judge Phillips was satisfied that the Crown had fully discharged its disclosure obligations and Mr Collins has not satisfied us that the Judge was wrong.
(5)Code of Recommendations and Minimum Standards
[86] Mr Collins’ fifth and final composite ground of appeal is that the Crown relied upon MAF’s Code of Welfare (or Code of Recommendations and Minimum Standards for the Welfare of Horses) which, he says, fails to satisfy the statutory requirement of good practice and scientific knowledge upon which an owner’s obligations to meet the physical, health and behavioural needs of an animal are based.
[87] Mr Collins’ submission appears to confuse two different concepts. As we have previously pointed out, the Crown must prove the necessary standards of ‘good practice and scientific knowledge’ on a charge of failing to ensure the physical, health, and behavioural needs of an animal under s 10. Those standards were irrelevant to the two ill-treatment charges under s 29(a). The Code was admissible evidence on the ill-treatment although the Crown’s reliance on it was in fact limited to reference to the Carroll & Huntington scale.
[88] Mr Collins was entitled to raise as an affirmative defence to the ill-treatment charges that the Code was in existence and that in all material respects he equalled or exceeded its minimum standards: s 30(2)(c). But Mr Collins does not suggest on appeal that the Judge erred in advising the jury that he did not rely on it. Instead, as Mr Collins emphasised in this Court, his argument at trial was that the Code was obsolete and irrelevant.
[89] This ground also fails and consequently Mr Collins’ appeal against his conviction is dismissed.
Sentence
[90] Mr Collins separately appeals against his sentence of 200 hours community work, an order to pay veterinarian costs of $929.80, disqualification for a period of two years from owning or exercising authority in respect of equines and having any involvement in their management and farming and an order that he dispose of all horses in his possession within seven days.
(1) Community Work
[91] Judge Noble was satisfied that Mr Collins’ offending was serious. In his view the evidence was sufficient to establish charges of wilful ill-treatment. The maximum sentence upon conviction for each charge was six months imprisonment or a fine of $25,000. While implying acceptance of the Crown’s starting point of a fine in the range of $4,000-$5,000, Judge Noble took account of Mr Collins’ straitened financial circumstances as a beneficiary on a limited income and accepted Mr Collins’ inability to pay a fine. Thus a term of community work was appropriate.
[92] In our judgment Judge Noble’s imposition of a term of community work cannot be challenged. Mr Collins’ financial position ruled out the alternative of a fine. A community based sentence was the only available alternative for what we agree was serious offending. A term of 200 hours cannot be considered excessive.
(2) Veterinarian Costs
[93] Mr Shamy accepts that the Judge erred in ordering Mr Collins to pay veterinarian costs of $929.80. The account included an invoice for $432 for Court appearances as an expert witness which cannot be recovered. It was appropriate for Judge Noble to order Mr Collins to pay veterinarian fees but in the lesser sum of $497.80 ($929.80 less $432).
(3) Disqualification
[94] The Court’s power to disqualify is provided for in s 169:
Power to disqualify persons from having custody of animals
(1) Where any person is convicted of an offence against -
…
(c)Any section in Part 1 or Part 2 and the Court is of the opinion that by reason of the serious nature of the offence the person should be disqualified under this subsection …
The Court may (in addition to or substitution for any other penalty):
… disqualify a person, for such period as it thinks fit, from being the owner of, or exercising authority in respect of, an animal or animals of a particular kind or description.
[95] Mr Collins fell within the jurisdictional threshold for disqualification. He was convicted of an offence against a nominated provision and the Judge had concluded that the offending was of a serious nature. The Judge did not expressly state that Mr Collins should be disqualified for that reason but his reference to s 169(1)(c) suggests that he was conscious of the jurisdictional threshold.
[96] We are satisfied that both the decision to disqualify and its term were open to the Judge in the circumstances. As noted, the nature of Mr Collins’ offending was serious. Judge Noble agreed with the probation officer’s assessment that Mr Collins failed to appreciate fully the basic needs of dependent animals. The circumstances of his ill-treatment of both horses, and in particular his wilful failure to provide them with minimal levels of supplementary feed, suggests a disturbing indifference to their welfare.
[97] Judge Noble’s assessment that Mr Collins ‘kept the two animals going until they had delivered healthy foals’ is relevant in this respect. Mr Collins’ conduct raises real questions about his suitability to act as a custodian of horses. The term of disqualification reflects the Judge’s acceptance of Mr Collins’ submission that disqualification would be onerous for him.
[98] Mr Shamy acknowledges that the term may seem onerous by comparison to R v Albert CA126/03 19 December 2003, where this Court dismissed an appeal against a term of disqualification for 18 months following the appellant’s conviction on charges of ill-treatment of 12 horses and of failing to meet his obligations as an owner. However, as the decision in Albert affirms at [18] and [19], a sentencing Judge has a wide discretion to impose a disqualification within the total sentence, especially where he or she is satisfied that the term of disqualification is of a length necessary to meet the statutory principle of deterrence.
[99] Judge Noble recorded Mr Collins’ denial of his offending. He was plainly concerned that Mr Collins would not be deterred without suffering the burden of a prohibitory order for an appropriate period which the Judge was best placed to assess. This sanction provided the only realistic means of both forcing Mr Collins to review his entrenched attitudes and to protect the future welfare of horses which may come into his custody.
[100] Accordingly, we are not satisfied that Judge Noble erred in imposing a term of disqualification for two years.
[101] Finally, we are satisfied that it was within the Judge’s power to make an order for disposal of all horses currently in Mr Collins’ possession: s 172. While the Judge did not explain the basis of his jurisdiction, s 172 provides that the District Court may if it considers desirable for the protection of an animal order its forfeiture to the Crown, with the power of disposal reserved to the Minister of Agriculture and Forestry. We construe his reference to an order that ‘all equines currently in [Mr Collins’] possession and control are to be disposed of’ as requiring forfeiture to the Crown. MAF then has the right to sell or dispose of the animals. We are not prepared to interfere with an order which was open to the Judge, who was fully acquainted with the facts of Mr Collins’ offending.
Result
[102] Mr Collins’ appeal against his conviction on two charges of ill-treating animals is dismissed. His appeal against sentence is also dismissed except to the extent that the order for payment of veterinarian costs is reduced from $929.80 to $497.80.
Solicitors:
Crown Law Office, Wellington
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