Smithey v Ministry for Primary Industries - [2023] NZHC 1607

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-45

CRI-2023-409-46 [2023] NZHC 1607

BETWEEN
REBECCA SMITHEY

Appellant

AND

MINISTRY FOR PRIMARY INDUSTRIES

Respondent

Hearing: 21 June 2023

Appearances:

A M McCormick for Appellant K A Courteney for Respondent

Judgment:

27 June 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 June 2023 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

SMITHEY v MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 1607 [27 June 2023]

Introduction

[1] The appellant, Rebecca Smithey, pleaded guilty to and was convicted on one charge of ill treatment of an animal.1 She applied for a discharge without conviction and permanent name suppression. Those applications were declined by Judge Couch on 8 March 2023.2 Ms Smithey appeals both those decisions.

Facts of the offending

[2] On 25 February 2022, Ms Smithey was at the North Otago A&P show as a professional rider. She was employed to ride the horse Nobel Soul, also known as Solly. While in the oval, Ms Smithey dismounted and stood in front of the horse while holding the reins and proceeded to physically and verbally abuse the horse. She repeatedly kicked the horse in the knees, slapped him around the neck and chest with the reins, struck him in the head and jabbed him in the mouth using the bit and reins. She waved her hands in the horse’s face and shouted at him. The acts were done while walking towards the horse, forcing him to walk backwards. The incident lasted over two minutes, with one minute and 11 seconds recorded on video.

[3] The horse received no lasting injuries from the incident but displayed behaviours consistent with him experiencing pain from the blows to his body and trauma to his mouth and distress from the manner in which he was handled and shouted at.

District Court decision

[4] On 8 March 2023, Judge Couch declined Ms Smithey’s application for a discharge without conviction and sentenced her to pay a fine of $1,650 and court costs of $130. He also declined to order for name suppression which was sought on the grounds that publication would cause her extreme hardship.

[5] In assessing the gravity of the offending, the Judge traversed the summary of facts. He also added some more context which was drawn from affidavit evidence

1 Animal Welfare Act 1999, ss 29(a) and 37: maximum penalty 12 months’ imprisonment, a fine of
$50,000 or both.
2 Ministry for Primary Industries v Smithey [2023] NZDC 4321.

filed in support of Ms Smithey’s applications. He acknowledged that Ms Smithey has had a lifetime interest in horses and worked with them for most of her adult life. On the day in question, Ms Smithey had been working with Solly and he performed poorly by engaging in behaviour known as “spinning” and was getting out of control. She said she struck the horse in the various ways in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] NZHC 1607
Decision Date: 27 June 2023

CaseChat Overview and Summary

Rebecca Smithey appeals the decision of Judge Couch to decline her application for a discharge without conviction and permanent name suppression. Smithey was convicted of one charge of ill-treatment of an animal after she physically and verbally abused her horse at a show, causing it pain and distress. Smithey's appeal is based on two main grounds. Firstly, she argues that the District Court overstated the gravity of the offending by not taking into account mitigating factors, such as the horse's behaviour and Smithey's previous injury and trauma. Secondly, she contends that the consequences of conviction will be out of all proportion to the gravity of the offending due to the negative impact on her future career and the media backlash she has already faced. The High Court found that the District Court correctly assessed the gravity of the offending based on the evidence before it, including expert evidence and the horse's behaviour during the incident. While Smithey's previous experience and trauma were considered, they did not excuse her overreaction and departure from the standard of horsemanship expected of a rider. Regarding the consequences of conviction, the Court found that while a conviction may negatively impact Smithey's career, the fact that her actions were already well known in equestrian circles reduces the significance of the conviction. Furthermore, publication of her name would likely have a lesser impact given the widespread knowledge of her involvement in the incident. The Court concluded that the consequences of conviction were not out of all proportion to the gravity of the offending. As such, the appeal against the discharge without conviction and name suppression orders was dismissed.

Orders