Teremoana v Auckland SPCA
[2016] NZHC 733
•20 April 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-030 [2016] NZHC 733
BETWEEN TEREPAI NOEL TEREMOANA
Appellant
AND
AUCKLAND SPCA Respondent
Hearing: 11 April 2016 Appearances:
D H P Schellenberg for Appellant
H C Stuart for RespondentJudgment:
20 April 2016
JUDGMENT OF DAVISON J
This judgment was delivered by me on 20 April 2016 at 9.30 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
TEREMOANA v AUCKLAND SPCA [2016] NZHC 733 [20 April 2016]
Introduction
[1] The appellant, Mr Terepai Noel Teremoana, was convicted and sentenced on one charge of recklessly ill-treating an animal with the result that the animal was seriously injured or impaired,1 at the conclusion of a judge-alone trial in the District Court, Manukau on 24 September 2015.
[2] The animal to which the charge relates is a dog, described as a pit-bull terrier cross called Psyko.
[3] Mr Teremoana appeals against his conviction.
Background
[4] The charge against Mr Teremoana relates to the treatment of Psyko during the period of 29 June 2012 to 21 July 2012, where he was said to be living at a property situated at 42 McDivitt Street, Manurewa (the Property).
[5] On 21 July 2012, an SPCA Inspector, Ms Laurie Davis, arrived at the Property following a complaint made to the SPCA by a member of the public about “a tan coloured puppy that’s falling over at the property”.
[6] According to Ms Davis’s evidence, the front door of the Property was answered by a person called Rodney who took her through to the bathroom after she had told him that she was there to follow up a complaint in relation to a dog at the Property. She said she saw Psyko “inside the bath tub lying [sic] like… an oil skin jacket or something like that and it was pretty much just a skeleton with fur, shaking, looking at me.”
Psyko’s condition
[7] Psyko was transferred to the Manukau After-Hours Veterinary Clinic and was seen by Dr Anna Jolly. According to her written statement dated 17 October 2012,
Dr Jolly’s initial examination of Psyko was that:
1 Animal Welfare Act 1999, s 28A(1)(d).
On arrival his heart and respiratory rates were elevated, although they settled on hospitalisation to an acceptable range. His mucous membranes were noticeably pale, dry and tacky… His body temperature was subnormal at
37.8 degrees Celsius.
His demeanour was depressed and he appeared weak, walking with a short stride and hunched back.
… In my 24 years as a veterinarian, this is without comparison; the most emaciated dog I have ever seen…
[8] The following day, Psyko was transferred to the SPCA Auckland at Mangere. He was assessed by Dr Peter McQueen. In his written statement dated 12 June 2013, he summarised Pysko’s condition as follows:
The dog weighed 11.8 kg on our scales. It was emaciated with the ribs, spine, pelvis, and temporal bone obvious. An estimated reasonable weight for this dog would be 19 kg to 21 kg. There were multiple pressure sores on the legs and rump and a small wound at the tip of the tail. The pressure sores on the Ischia (prominent pelvic bones either side of tail were deep (full skin thickness). The dog reportedly had diarrhoea…
The blood results reported a marked anaemia, hypoalbuminaemia (below normal level of the protein albumin in the blood) and other mild/not clinically significant changes. The faecal results reported 1200 Strongyle (hookworm) eggs per gram, 300 Trichuris (whip worm) eggs per gram and were negative for Ascarid (round worm). The positive results are clinically significant.
On 2nd August I prescribed a topical antibiotic cream (Tricin) for the wounds on the Ischia as they were healing slowly. By 15th August they were healing well.
On 27th August 2012 the dog’s recorded weight was 16.5 kg and on 4th
September it was 18.5 kg. Eventually the dog’s weight stabilised between
20 kg and 22 kg. On 29th August I examined the dog and noted everything
was healing well and the dog’s body condition was good.
The laboratory testing confirmed the dog had a significant worm burden and blood changes consistent with this and starvation. A hookworm burden is often associated with dogs being kept in dirty conditions.
In my opinion, at the time of first examination, this dog was emaciated and that this was primarily due to a lack of adequate nutrition for weeks if not months and that this would have been causing a measure of on-going distress. The dog also had significant skin wounds, some of which were weeks old if not older and that these would have been causing a measure of pain and suffering and were unlikely to resolve without veterinary intervention.
…
[9] An order was eventually made authorising the disposal of Psyko due to temperamental issues.
Occupiers of the Property
[10] At some point up to and including 29 June 2012, the relevant occupiers of the
Property were Mr Teremoana; Charlie Vaki; Marilyn Vaki and Marilyn Watarawi.
[11] There had also been a number of other dogs at the Property, including “Bull- Boy” or “Boy-Boy”, owned by Rodney Tuhuia; “Lady”, owned by Marilyn Vaki; and “Chok”, owned by Desmond Vaki.
[12] It is not in dispute that Charlie Vaki was the owner of Psyko, and that he had been living at the Property with other occupants in the early part of 2012. However, following being charged with arson and, as a condition of EM bail, he was required to remain at an address in Glen Innes (EM bail address). Psyko remained at the Property as Charlie Vaki was not permitted to take an animal to his EM bail address.
Alleged facts
[13] There were seven witnesses called at the trial. I will address the evidence in some detail below, but essentially, the prosecution case was that Mr Teremoana had agreed to assume responsibility in relation to the physical, health and behavioural needs of Psyko2 (“day-to-day care of Psyko”) once Charlie Vaki moved out of the Property and relocated to his EM bail address.
[14] Mr Teremoana denied having entered into any such an arrangement with Charlie Vaki, saying that he could not have done so as he was not living at the Property when Charlie Vaki became subject to an EM bail condition and that, by the time he moved back in to the Property, Charlie Vaki had already moved out. In any event, the appellant’s case at trial was that he believed Psyko was being looked after
by Marilyn Vaki and that the dog was not his responsibility.
2 See Animal Welfare Act, s 10. See also, the definition of “physical, health, and behavioural needs of animals” set out at s 4 of that Act.
[15] It is not in dispute that on 29 June 2012, Marilyn Vaki moved out of the Property, taking her dog, Lady with her. Psyko was left at the Property. Mr Teremoana’s evidence was that he was unaware that Psyko had remained at the Property from 29 June 2012 until the date at which Ms Davis of the SPCA attended the Property.
[16] As already noted, Mr Teremona was convicted on the charge of recklessly ill- treating an animal. On 3 February 2016, Mr Teremoana was sentenced to four months’ imprisonment with leave to apply for home detention. He was also ordered to pay the SPCA the sum of $2583.33 for the Society’s expenses incurred in respect of Psyko. The Judge also disqualified him from owning or exercising any authority over a dog, or any other form of domestic animal, for a period of five years, commencing on 3 February 2016. Mr Teremoana served three weeks in prison before being granted bail and applying to serve the remainder of his sentence by way of home detention. His application is currently awaiting determination and the outcome of this appeal.
District Court decision
[17] Having outlined the evidence, the Judge said the evidence of Marilyn Watarawi was inherently contradictory. He also noted that Marilyn Watarawi and Charlie Vaki were initially facing similar charges under the Animal Welfare Act 1999 and that the prosecution had withdrawn the charges. In Marilyn Watarawi’s case, the charge was withdrawn on the day of Mr Teremoana’s trial. The Judge noted that Charlie Vaki “denied the suggestion that he was blaming [Mr Teremoana] so as to obtain the withdrawal of a separate SPCA charge that had been laid against himself
[sic].”3
[18] The Judge proceeded to outline the elements of the charge against Mr Teremoana. He was satisfied that Mr Teremoana was a person “in charge” of Psyko based on the following findings of fact:
(a) when Charlie Vaki left the Property, “responsibility had to be transferred to someone else”;
(b)for some time prior to the beginning of July 2012, “Psyko was known to be there by his owner Charlie Vaki, Marilyn Vaki (when an occupier) and, more importantly, [Mr Teremoana]”;
(c) although Mr Teremoana had been an itinerant occupant at the Property, he “was certainly an occupier in May, June and July of 2012 through to the time that Psyko, in his emaciated condition, was seen by the SPCA officials”;
(d)although Mr Teremoana did not necessarily seek to assume the day-to- day care of Psyko, he did nevertheless agree to accept responsibility of Psyko’s care whilst Charlie Vaki was subject to an EM bail condition, by reason of being an occupier of the Property;
(e) when Marilyn Vaki moved out of the Property, she took Lady with her, “leaving Psyko at the Property in the firm belief that his ongoing care would be in the hands of [Mr Teremoana] and others remaining at the [Property]”.
(f) Psyko was known to the occupants of the Property to have remained at the address after Marilyn Vaki had moved out (relying on Marilyn Watarawi’s evidence in cross-examination that after Marilyn Vaki had moved out, she herself had seen Psyko there “a few times”); and
(g)amongst the occupants of the Property, the “most dominant male occupier” was Mr Teremoana. The Judge held, “I find it inconceivable his explanation that he could have lived at the address and not known of the continued existence of Psyko”.
[19] The Judge concluded that:4
Psyko was at the property, as was the defendant and, therefore, Psyko was under the defendant’s possession or custody. As such, he was under the defendant’s care, control and supervision.
[20] He was satisfied that Psyko was recklessly ill-treated with the result that
Psyko was seriously injured or impaired.
Submissions
The appellant’s submissions
[21] Mr Shellenberg, for the appellant, submits the Judge erred in his factual findings. Namely, there was insufficient evidence to establish that Mr Teremoana was in charge, or responsible for the day-to-day care, Psyko.
[22] In Mr Shellenberg’s submission, the Judge wrongly preferred the evidence of
Marilyn Vaki and Charlie Vaki, and had failed to give reasons for his view.
[23] Next, Mr Shellenberg challenges the credibility and reliability of Marilyn Vaki, saying her evidence at trial was inherently contradictory. In his submission, Marilyn Vaki gave inconsistent evidence on a number of issues, including:
(a) whether it was agreed between them that she would take Psyko at some point once she was to settle in to her new address;
(b) whether she had assumed care of Psyko by feeding him;
(c) whether she was scared of dogs (such that she would not have been able to assume care of Psyko).
[24] Her evidence was also inconsistent with that of other prosecution witnesses. For example, she said the conversation during which Mr Teremoana agreed to assume the day-to-day care of Psyko had taken place at the Property, whereas Charlie Vaki’s evidence was that Mr Teremoana agreed to assume responsibility for Psyko in the course of a conversation that took place at Marilyn Vaki’s old address,
when a number of other family members were present and at a time prior to her moving in to the Property.
[25] Mr Shellenberg says the Judge failed to take into account any of these inconsistencies when weighing the strength and reliability of the prosecution evidence, which was obviously in conflict with that of the appellant.
[26] Also relevant, submits Mr Shellenberg, is Marilyn Vaki’s motive to lie in order to protect her own position and that of her grandson, Charlie Vaki, and also because of her hatred of Mr Teremoana for having previously assaulted her daughter, Marilyn Watarawi, with whom he had been in a relationship at the time.
[27] In any event, Marilyn and Charlie Vaki gave inconsistent evidence as to where the conversation between Charlie Vaki and Mr Teremoana, regarding responsibility for the day-to-day care of Psyko, actually took place.
[28] In Mr Shellenberg’s submission, Mr Teremoana could not have agreed to assume the day-to-day care of Psyko at the time Charlie Vaki left the Property, simply because he himself was not living at the Property as a consequence of having assaulted Marilyn Watarawi.
[29] Mr Shellenberg says that any liability should have attached to Marilyn Vaki as the evidence tends to show that she had either assumed or had agreed to assume responsibility for Psyko’s care.
[30] Simply because Mr Teremoana returned to the Property as an occupant, at some time after Charlie Vaki left the Property, does not mean he thereby became responsible for the day-to-day care of Psyko, says Mr Shellenberg. Further, there was nothing to support the finding that he was “the most dominant male occupier.” Mr Teremoana’s evidence was that he had not been aware that Psyko had been left at the Property. In Mr Shellenberg’s submission, his evidence is corroborated by Marilyn Watarawi’s evidence that, from the time that Marilyn Vaki had moved out, Psyko could have been left at the Property without anyone noticing.
[31] As I understand it, the appellant does not take issue with the Judge’s finding that Psyko was recklessly ill-treated with the result that he was seriously injured or impaired. This appeal turns on whether or not the Judge erred in his finding that Mr Teremoana was at the relevant time responsible for Psyko’s day-to-day care.
The respondent’s submission
[32] Ms Stuart, for the respondent, says the Court ought to be cautious in addressing this appeal, as the matters raised by the appellant predominantly relate to issues pertaining to the witnesses’ credibility and reliability. She refers to authority in support of the view that an appellate court will be “reluctant to differ from the judge who has seen and heard the witnesses, unless it can be clearly shown that he has fallen into error.”5 In her submission, the Judge’s finding was not made in error.
[33] Ms Stuart submits Marilyn Vaki’s evidence was not “inconsistent”. One of the examples to which she refers is Marilyn Vaki’s evidence that she had never fed Psyko, despite having earlier told an SPCA inspector that she had previously been responsible for feeding him. Ms Stuart says that any such discrepancy was corrected by Marilyn Vaki’s explanation that although she had assumed some responsibility for purchasing dog food while she was residing at the Property, she had never actually fed Psyko and that it had been Mr Teremoana who had.
[34] In Ms Stuart’s submission, the Judge was justified in preferring the evidence of Marilyn and Charlie Vaki over that of the appellant. Furthermore, Mr Teremoana’s evidence itself was not credible. For example, his evidence that he had not received any of the multiple messages sent by the SPCA inspectors, requesting that he contact the Society after Psyko had been uplifted from the Property, is unreliable in light of his acknowledgment that the SPCA were in possession of the correct contact phone number.
[35] In Ms Stuart’s submission, there can be no question that Psyko, while being kept at the Property, was under Mr Teremoana’s day-to-day care.
5 Powell v Streatham Manor Nursing Home [1935] AC 246 (HL) at 256.
[36] During the course of my oral discussion with counsel, Ms Stuart said that even if the Judge erred in his finding that Mr Teremoana agreed to assume day-to- day care of Psyko, he nevertheless remains liable under the Animal Welfare Act by reason of his role as an occupier of the Property. Ms Stuart was unable to refer me to any authority in support of that proposition.
Approach to appeal
[37] Section 229 of the Criminal Procedure Act 2011 provides a convicted person with a right of appeal against conviction. An appeal court must allow a first appeal against conviction if satisfied that in the case of a judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.6
[38] Section 232(4) of the Criminal Procedure Act defines the reference
“miscarriage of justice” as meaning:
… any error, irregularity, or occurrence in, or in relation to, or affecting the
trial that –
(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.
[39] Not every error will result in a miscarriage of justice. In Matenga v R, the Supreme Court stated “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.7 A “real risk” exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.8
[40] Not every departure from good practise will amount to an unfair trial. The
errors or irregularities must be “so gross, or so persistent, or so prejudicial, or so
irremediable” that the court must quash the conviction.9
6 Criminal Procedure Act 2011, s 232(2)(b).
7 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
8 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
9 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78] and [28].
[41] Generally an appellate court will defer to findings of credibility made by the court below where that court has enjoyed the advantage of seeing and hearing the witnesses and the findings cannot be shown to be plainly wrong.10
[42] An appeal against conviction proceeds by way of rehearing. I am therefore required to consider all matters which were before the Judge, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my own judgement.
Analysis
[43] At paragraph 16 of the decision, the Judge outlined the “essential elements”
of a charge under s 28A(1)(d) as being:
(a) That the defendant was the person in charge of Psyko. (b) That he ill-treated Psyko.
(c) That he did so recklessly.
(d) The ill-treatment caused Psyko to suffer unnecessary pain and distress.
[44] The Judge referred to the legislative definition of “person in charge” as set
out in s 2 of the Animal Welfare Act:
person in charge, in relation to an animal, includes a person who has the animal in that person’s possession or custody, or under that person’s care, control, or supervision
[45] To clarify, s 28(1) does not refer to the phrase “person in charge”. The
section simply refers to “a person” more generally:
28A Reckless ill-treatment of animals
(1) A person commits an offence if that person recklessly ill-treats an animal with the result that—
…
(d) the animal is seriously injured or impaired.
10 See R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [76], [83], [84]; And Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5], [13].
[46] Since the actus reus element in the circumstances of this case is one of omission, the case turns on whether or not the evidence establishes beyond reasonable doubt, that Mr Teremoana had accepted and assumed responsibility for Psyko’s day-to-day care once Charlie Vaki had moved out of the Property and in to his EM bail address.
[47] The need for proof that Mr Teremoana had assumed responsibility for Psyko’s day-to-day care is essential if liability is to attach to his failure to act in accordance with the duties arising from that responsibility, as distinct from his role as simply one of several occupants of the Property. I do not accept Ms Stuart’s proposition that mere occupiers of a property at which an animal, or animals are kept, thereby attract liability under the Animal Welfare Act. For persons such as an occupant of premises at which an animal is being kept or housed, to have legal responsibility for the care of an animal, and potential liability for a failure to do so, there has to been a willing and intentional acceptance of that responsibility to assume care, control or supervision.
[48] The term “ill-treated” is defined in s 2 of the Animal Welfare Act as follows:
ill-treat, in relation to an animal, means 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.
[49] The term “seriously injured or impaired”:
(a) involves—
(i) prolonged pain and suffering; or
(ii) a substantial risk of death; or
(iii) loss of a body part; or
(iv) permanent or prolonged loss of a bodily function; and
(b) requires treatment by or under the supervision of a veterinarian
[50] It is not in dispute that Psyko was “ill-treated” with the result that he was seriously injured or impaired. The issue in this appeal is whether responsibility and liability for Psyko’s condition when he was seized by the SPCA on 21 July 2012, is rightly attached to Mr Teremoana.
Did Mr Teremoana assume responsibility for Pysko’s day-to-day care when Charlie
Vaki moved out of the Property?
[51] The starting point is whether Charlie Vaki actually and effectively assigned his obligations in relation to the day-to-day care of Psyko to another person. As the animal’s owner, his obligations in relation to the physical, health, and behavioural needs of Psyko continued to exist and apply even when Psyko was no longer in his immediate possession or custody.11
[52] In circumstances where Charlie Vaki was required to remain at an EM bail address at which Psyko could not be kept, Charlie Vaki was required to ensure that an identifiable person was able and willing to be responsible for the day-to-day care of Psyko. Moreover, Charlie Vaki, as the dog’s owner, was required to satisfy himself that such a person was capable of attending to the physical health and behavioural needs of Psyko in a manner that was in accordance with both good
practice and scientific knowledge.12
[53] Thus the essence of this appeal turns on whether there is evidence to prove beyond reasonable doubt, that Charlie Vaki had arranged for Mr Teremoana to assume responsibility for the day-to-day care of Pysko, and that Mr Teremoana had accepted and agreed to assume such a role in place of Charlie Vaki until some other arrangements were made. If it cannot be shown to the requisite standard that such an arrangement between Mr Teremoana and Charlie Vaki was made, then the conviction entered against Mr Teremoana cannot stand.
[54] The Judge was satisfied that Mr Teremoana and Charlie Vaki had entered into such an arrangement. The Judge clearly preferred the evidence of Marilyn and Charlie Vaki, and in doing so, found them both to be credible and reliable witnesses (with the consequence that Mr Teremoana’s evidence was rejected by the Judge). However, no reasons were given by the Judge for having reached that view. Although Ms Stuart is quite right to point out that an appellate court should be slow
to depart from findings of credibility and reliability where the trial-judge has had the
11 Contrast to a person “in charge” of an animal, for example, where obligations are statutorily confined to circumstances where the animal is “in that person’s possession or custody, or under that person’s care, control, or supervision”: see Animal Welfare Act, s 2.
12 See Animal Welfare Act, s 10.
benefit of seeing and hearing the witnesses, however an appellate court should not accept such findings uncritically. The difficulty here is that no reasons were given for the Judge’s view that the evidence of Marilyn and Charlie Vaki was to be preferred. Specifically, the Judge failed to address whether their credibility and reliability was doubtful in a context where:
(a) Marilyn Vaki accepted in evidence that she did not like Mr Teremoana because he had assaulted her daughter while she was pregnant, and because “another time he got angry and he nearly hit her with a car”. In response to the question, “you’re still angry at Mr Teremoana aren’t you”, she replied, “What do you expect when he does nothing at home.”
(b)The witnesses had reason to believe that some or all of them were, themselves, at risk of prosecution. Charlie Vaki and Marilyn Watarawi were both previously facing charges in relation to Psyko’s condition but the charges were withdrawn shortly before the commencement of Mr Teremoana’s trial. The prosecution stated that Marilyn Watarawi’s charges were withdrawn on the basis that she would give evidence at Mr Teremoana’s trial.
(c) Marilyn Vaki is the grandmother of Charlie Vaki and the mother of Marilyn Watarawi so, in circumstances where it was clear that she held animus towards Mr Teremoana, there was at least a risk and danger that she had sought to identify Mr Teremoana as being solely responsible for Psyko’s condition. Furthermore, having regard to the evidence tending to show that Marilyn Vaki had in fact either assumed, or had agreed to assume responsibility for the day-to-day care of Psyko, the prospect of her being motivated by a desire to avoid prosecution was also relevant, and required careful consideration.
[55] In my assessment, these issues cast real doubt on the credibility and reliability of the prosecution witnesses. Furthermore, the Judge failed to give reasons as to why Mr Teremoana’s version of events was not to be accepted.
[56] Another issue relating to the reliability and credibility of Marilyn and Charlie Vaki is that there was not a consistent and coherent version of events given by them. For example, Marilyn Vaki’s evidence was that the conversation between Mr Teremoana and Charli Vaki during which Mr Teremoana unequivocally agreed to assume the day-to-day care of Psyko (“the conversation”) took place at the
Property.13 Charlie Vaki, on the other hand, said the conversation took place at
Marilyn Vaki’s old address, therefore at a time prior to her moving in to the Property.
[57] If such a conversation had in fact taken place, it is unlikely that those persons directly involved would not be able to accurately recall where and when it took place. Having regard to the conflicting evidence as to where and when this important conversation took place, there must be real doubt as to the accuracy and reliability of both witnesses on what is the crucial issue in the case.
[58] This point of conflict is, in my view, also crucial to the overall finding as to whether Mr Teremoana had ever agreed to assume the day-to-day care of Psyko.
[59] The Judge appears to have accepted that any such conversation would have happened around the time Charlie Vaki was required to relocate to his EM bail address. Charlie Vaki’s own evidence was that the conversation took place when he went to collect his belongings from Russell Road (being Marilyn Vaki’s old address, before she relocated to the Property) in preparation for having to remain at his EM bail address:
Q. Are you saying that, where are you saying [the conversation]14 where did that take place?
A. When I picked up my stuff from Ross Road,15 everyone was over at my
Nan’s as usual.
[60] Charlie Vaki then clarified that the address to which he was referring was
“Russell Road”:
13 Also saying that she was present in person at the time.
14 At trial, Charlie Vaki contended that the arrangement whereby Mr Teremoana would assume day-to-day care of Psyko arose out of a request made by Mr Teremoana to keep Psyko in his possession or custody in order to guard the Property. This proposition was rejected by the Judge at trial.
15 Although the trial transcript reads “Ross Road”, it seems likely that this is a transcript error as a
result of “Russell Road” being misheard – see further evidence set out at paragraph [60].
Q. You said when you got put on this 24-hour curfew you went back to 42
McDivitt which was allowed so you could collect your –
A. No
Q. – clothes?
A. – in Russell Road, didn’t you hear, in Russell Road?
Q. Oh. Russell Road. A. Yeah.
…
A. The discussion as done at Russell Road on my, the day that I was
released. Everyone was over at Russell Road at my Nan’s…
[61] Marilyn and Charlie Vaki did not state in evidence the date on which Marilyn Vaki moved in to the Property and/or Charlie Vaki became subject to an EM bail condition.16 However, according to Mr Teremoana, Marilyn Vaki moved in to the Property around late March 2012. If that is correct, and if Mr Teremoana and Charlie Vaki did in fact reach an agreement as to the care of Psyko at the Russell Road address, then any such agreement must have been reached in or before March
2012.
[62] I accept Mr Shellenberg’s submission that it is unlikely that, in or before March 2012, Mr Teremoana would have agreed to assume the day-to-day care of Psyko (who was being kept at the Property) given that Mr Teremoana was not then living at the Property, and did not commence living there until May 2012.
[63] Furthermore, Marilyn Vaki’s evidence was that she intended to take Psyko to her new address once she had settled in there. It is not clear how that fits into the alleged arrangement between Mr Teremoana and Charlie Vaki. Neither Marilyn nor Charlie Vaki addressed this aspect in their evidence.
[64] Ms Stuart submits that whether or not there was a separate agreement between Marilyn and Charlie Vaki, to the effect that Marilyn would assume care of
Psyko once she settled in to her new address, is not at issue here. The issue is
16 At the hearing, Mr Shellenberg said that the result date for Charlie Vaki’s charge for arson was
on 2 February 2012 so he would have become subject to EM bail around that time.
whether there was at least a temporary arrangement in place between Mr Teremoana and Charlie Vaki, whereby it was agreed that Psyko was under Mr Teremoana’s care at the time he was seized by the SPCA.
[65] I am not convinced that Marilyn Vaki’s evidence as to her intention of caring for Psyko when she was settled into her new address is irrelevant to the issue at hand. If anything, her evidence shows that she intended to assume responsibility for the care of Psyko once Charlie Vaki had moved out of the Property. Added to that, is Charlie Vaki’s comment in evidence that both he and Marilyn Vaki fed Psyko before he moved out of the Property. It was put to him that Marilyn Vaki continued to assume responsibility once he had left the Property, and while he denied that proposition, the weight to be attached to his response turns on a broader assessment of his credibility and reliability.
[66] In my view, while there is evidence to show that Marilyn Vaki had accepted and assumed responsibility for Psyko’s care while she was living at the Property, on the basis that she would take the dog with her when she left to move to her new address, there is no evidence to establish that once she departed, taking only her dog, Lady, that Mr Teremoana was thereafter to be responsible for Psyko’s day-to-day care. When Marilyn Vaki moved out, leaving Psyko behind until she had settled in to her new home, there was at best, nothing more than an assumption on the part of Charlie Vaki, as the dog’s owner, that Psyko would be fed and cared for by the remaining occupants of the Property. I am satisfied on the evidence, that from the time at which Marilyn Vaki left the Property, there was never an identifiable individual who was responsible for the physical health and behavioural needs of Psyko. In that context, the Judge appears to have attached liability to Mr Teremoana on the basis that he was the “dominant male occupier”. With respect, even if Mr Teremoana is appropriately described in those terms, it is an insufficient basis upon which to hold him legally liable for the ill-treatment of Psyko by means of a failure to care for him. My reasons are below.
[67] First, as I have said, liability under the Animal Welfare Act does not attach to mere occupiers of a property. Where the person is not the owner of the animal, there has to be an unequivocal agreement on the part of the person upon which an
obligation is to be placed, that he or she is to assume responsibility for the day-to- day care of the animal. On the facts, it has not been shown to the requisite standard that Mr Teremoana ever entered into such an arrangement with Charlie Vaki.
[68] Secondly, there is nothing to suggest that only male occupants at the Property were responsible for the care of dogs. For example, Marilyn Vaki was the person in charge of the dog Lady.
[69] Thirdly, unlike other occupants at the Property, Mr Teremoana did not himself own an animal, and there is nothing to suggest that he was actively involved in the day-to-day care of any other animal. For example, he said in evidence that, on one occasion, he fed the dogs (Psyko, Bull-Boy and Lady) but was told by Marilyn Vaki to:
Fuck off, leave my f-ing fuckin dog, and it’s (inaudible 11:15:53) fuckin
responsibility.
[70] In evidence, he was asked:
Q. And after that, did you ever feed the dogs?
A. No, ‘cos she told me not to.
[71] Again, that is to be weighed against Marilyn Vaki’s evidence, which is that:
I did not say that. Why would I say that when Charlie asked him to watch
Psyko.
[72] Next, the Judge was satisfied that when Marilyn Vaki moved out of the Property, she took Lady with her, and left Psyko at the Property “in the firm belief” that his on-going care would be in the hands of Mr Teremoana and others remaining at the Property. However, the witnesses were all consistent in the view that before Marilyn Vaki left the Property, she made it known to the occupants at the Property that she was intending to take both Lady and Psyko with her. In evidence, Marilyn Vaki said:
Q. You said to Mr Teremoana and the other people in the house that it was your intention to take Lady, the dog Lady and the dog Psyko with you to your new address didn’t you, you made that known to the other people?
A. Yes I made it known but I took Lady with me.
[73] That appears to be consistent with Mr Teremoana’s evidence that he did not
know Psyko was left at the Property:
Q. So when she moved out what did you think had happened to the dogs
Lady and Psyko?
A. Well, she moved out [and] she took them, but, I had no idea that they were still there, um, time to time she would bring Lady over to stay, time to time, but then she would pick them up, um, but I didn’t know anything about Psyko because I didn’t know Psyko was still there.
[74] Earlier, he had stated:
Well, when she moved out, I was at work at, I was working at that time as a contractor, mmm, I was contracting, landscaping, renovations and all that, and at the time she moved out I was at work so I had no idea that she moved out,… and usually when you move out of someone’s house you take all your belongings, that’s including your pets, whatever your bring with you, and yeah.
[75] Ms Stuart submits that the Judge was right to reject Mr Teremoana’s evidence that he did not know that Psyko was still kept at the Property after Marilyn Vaki had moved out. However, some support for Mr Teremoana’s claim can be found in the evidence that the kennel’s location in the backyard had been shifted, with the result that it was no longer visible from his bedroom window (which is consistent with his belief that Psyko, and related belongings, were taken by Marilyn Vaki once she moved out). Further, that he was hardly ever present at the Property during daylight hours due to work commitments, and that when he arrived home, “all [he] wanted to do was relax”. In this regard, I note that Mr Teremoana said he would leave the Property around 7 am each morning and return home around 9 pm.
[76] The Judge also relied on Marilyn Watarawi’s evidence that she had seen Psyko in July “a few times”, in support of his conclusion that Psyko was known to have remained at the Property by the occupants after Marilyn Vaki had moved out. However, in my view, it is not appropriate to transfer Marilyn Watarawi’s knowledge to Mr Teremoana, given that she appears to have spent more time at the Property during daylight hours than he would have. In any event, I do however agree with Ms
Stuart’s submission that Marilyn Watarawi was not a reliable witness in light of the
Judge’s observation that she too gave contradictory evidence.
[77] On balance, I am satisfied that the evidence here was not sufficiently cogent, consistent and reliable to meet the requisite standard of amounting to proof beyond reasonable doubt that Mr Teremoana was the person entrusted with caring for Psyko, and that he had responsibility for the day-to-day care of Psyko. While it is beyond doubt that Psyko was ill-treated by means of serious and inhumane neglect, there is no sufficient evidence that there was a legal obligation upon Mr Teremoana to provide for his care, and that by failing to do so, he was liable for the reckless ill- treatment of Psyko under s 28A(1)(d) of the Animal Welfare Act. Having reached that conclusion, it follows that I am satisfied that a miscarriage of justice has occurred, and accordingly, I allow the appeal.
Conclusion
[78] For the reasons given, the appeal is allowed and the conviction is quashed.
Davison J
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