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David Tong

BA/LLB(Hons) Vegan Straight Edge
David Tong has written 43 posts for The Solution

Puppy mutilators avoid prosecution: SPCA lacks legal advice

From today’s Herald:

Sadists who hacked off an eight-week-old puppy’s ears with a pair of scissors have avoided prosecution because witnesses refused to give evidence in court.

After a lengthy investigation, Mr Blair established where the puppy came from and managed to find out what happened from several residents, but they refused to go on the record with their evidence, despite the SPCA’s numerous attempts to persuade them to.

As we have previously discussed, the bulk of the enforcement work under the Animal Welfare Act 1999 falls squarely (and heavily) on the SPCA’s unfunded shoulders.  In Auckland, the SPCA has the benefit of pro bono legal assistance

In Tauranga, it does not.  And it needs it.  Or, rather, if it is to keep fulfilling a law enforcement role, it needs to be treated like a law enforcement agent – meaning it needs to be funded to engage the firms holding Crown warrants (that is, Crown prosecutors) at the Crown rates. 

Here’s why:

71 Eligibility and compellability generally

(1) In a civil or criminal proceeding,-
(a) any person is eligible to give evidence; and
(b) a person who is eligible to give evidence is compellable to give that evidence.

That is section 71 of the Evidence Act 2006.  Any person (except the defendant/accused – s 73) is eligible to give evidence, and, if you are eligible to give evidence, you may be compelled to give evidence.  What does compelled mean?

It means that a person may be summonsed to give evidence.  If you don’t?  The Crimes Act 1961 kicks in:

352 Refusal of witness to give evidence

(1) If any witness, without offering any just excuse, refuses to give evidence when required, or refuses to be sworn, or having been sworn refuses to answer such questions concerning the charge as are put to him, the Court may order that, unless he sooner consents to give evidence or to be sworn or to answer the questions put to him, as the case may be, he be detained in custody for any period not exceeding 7 days, and may issue a warrant for his arrest and detention in accordance with the order.
(2) If the person so detained, on being brought up again at the trial, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him, the Court, if it thinks fit, may again direct that the witness be detained in custody for the like period, and so again from time to time until he consents to give evidence or to be sworn or to answer as aforesaid.
(3) Nothing in this section limits or affects any power or authority of the Court to punish any witness for contempt of Court.

Unless you have just excuse, if you refuse to give evidence, you may be jailed for a bit, then asked to give evidence.  If you refuse again, you can be jailed again, and the Court can damn well keep on jailing you until you change your mind.  And you’re in contempt of Court too.

And if you don’t refuse to give evidence, but just don’t turn up?  Section 351 allows a $500 fine and:

If any witness who has been summoned to give evidence at any trial … fails to attend at the time and place appointed, the Court may issue a warrant to arrest him and bring him before the Court, and may adjourn the trial.

Of course, if they don’t won’t to talk, they might not be very helpful in Court.  They’ll clam up.  But that’s okay for the prosecutor, because she can hit them with section 94 of the Evidence Act 2006:

94 Cross-examination by party of own witness

In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge.

For non-lawyers, let me explain what cross examination means.  It means that instead of asking you open questions, the lawyer can put closed statements to you, for you to say “yes” or “no” to.  Not “What did you see?” but “You saw him hacking off that puppy’s ears, didn’t you?”

And if you lie on the stand, that’s perjury.  If you say something different from what you said in a prior (“off the record”) conversation with the SPCA inspector – that’s a prior inconsistent statement, and, well, yes, the prosecutor can most probably adduce it as evidence.

Of course, none of this would help the SPCA in their initial investigation.  There’s no point in getting someone on the stand if you don’t know what they saw, heard, or did.  But they’ve already told the SPCA:

“They spoke to me but they were quite clear in their minds that they wanted to remain anonymous because of fear of the people that were involved,” he told NZPA.

“It’s frustrating knowing who’s responsible but not being able to take that extra step to follow through, which is a common problem that the SPCA has because the animals don’t talk so we do rely on either a confession or witness statements.”

So why can’t the SPCA convict the puppy mutilators again?

Because they don’t have good legal advice.

And why don’t they have good legal advice?

Because they can’t afford it.

And why can’t they afford it?

Because they’re fulfilling the state’s law-enforcement function without any government funding and without the legal assistance offered to the formal law-enforcement branches of the state.

That is: They’re doing the government’s job, but the government isn’t paying (or helping).

That simple.

Strange Bedfellows: The Netherlands and NZ; Welfarists and the Far Right

Kosher and halal slaughter are now illegal in the Netherlands:

 Just one week after the acquittal of fiery far-right politician Geert Wilders, the Dutch parliament struck another blow against multiculturalism in the Netherlands yesterday with the passage of a bill banning ritual animal slaughter. The bill requires that all animals be stunned before being slaughtered, a requirement that conflicts with halal and kosher stipulations that animals be fully conscious.

At first glance, this looks like a classic example of the far-right undercurrent that lurks below the surface in much of Europe.  It evokes Switzerland’s controversial minaret ban, for example.  You can easily picture a pale, thin Dutchman with close-cropped chestnut hair apoplectic about immigrants, their funny cuisine, and their sick, sick, sick farming practices.

But there’s something more, and something stranger going on there. 

Foreign Policy continues:

The bill was initially proposed by the Party of the Animals, which holds two seats in the 146-seat Dutch parliament and maintains that ritual methods of slaughter are inhumane.

The Party for Animals?  Here in New Zealand, where only one Party has an animal welfare spokesperson, that seems outlandish, and extraordinarily progressive. 

Of course, the far right are still in the game: 

 It gained support from centrists on similar grounds, but Wilders’s Freedom Party has also been a longtime proponent. In fact, it was Wilders who first raised the issue in 2007 when he objected to halal meat being served at a public school in Amsterdam.

Strange bedfellows.  The Dutch animal welfare movement and the Dutch far right.

All movements, especially single-issue movements such as traditional animal welfarism or animal rights, must be careful with who they align themselves with and take real care to consider the unintended consequences of their actions.  In advancing the cause of animals, we must take care not to alienate natural allies.  Animal liberation should not come at the cost of oppressing human minorities.

New Zealand and the Netherlands are bedfellows also.  Both are in the handful of countries that have banned kosher slaughter.  In New Zealand, however, halal slaughter is legal. 

The process was very different.  No odd alliance of the SPCA and the National Front, but the slow, methodical, industry-backed process of Codes of Welfare.  Without hue or cry, we banned kosher slaughter. 

And then backed down:

Under pressure on human rights grounds the Agriculture Minister David Carter has granted an exemption to the Commercial Slaughter Code of Welfare for the local Jewish community, to be able to slaughter chickens without pre-stunning. He is also under heavy pressure to continue to allow a temporary exemption for sheep and cattle, despite it contravening the code of welfare.

What surprises me about this tale is that the state, without an Act of Parliament, banned a fundamental part of Jewish practice.  As a lawyer, I strongly suspect that this Code of Welfare could be open to legal challenge on the grounds that it is ultra vires, or outside the power that Parliament has given the executive.  But to forestall any such claims, David Carter MP backed down.

SAFE is campaigning for him to stick to his guns – but I’d pick an easier battle.  Campaigning against Jewish religious expression makes you an easy target.

Long Live the Solution

Welcome to the Solution 2.0

When we started this blog two years ago, we did not think we would still be writing for it now.  We hoped that SoLVe would attract new writers to the blog each year.  We hoped that this would become a self-sustaining student initiative.

That did not happen.  The Solution has been in limbo for the last four months.  As some of you no doubt know, the Society of Legal Vegans and Vegetarians was wound up at the end of 2010.  It had a good run, forging strong friendships, and opening a lot of students’ minds to vegan and vegetarian alternatives.  But, unfortunately, we failed to really pass the baton on.  No younger crop of vegan and vegetarian law students seized the reins.

So, we wondered: What about the blog?

We could have let it wither away, or stand as a memorial to a student group that was.

But we decided not to do that.  We took a leave of absence, and now we’re back.  Better looking, faster, cleaner. Welcome to the new Solution.  Of the five original writers, two remain.  The rest have left Auckland, for Canada, Latin America, and Wellington.

Things are a bit different around here.  The new look is the most obvious change.  The Solution has had a makeover.  A more subtle change lies below that though.  Vernon and I are no longer just writing about veganism and animal law.  We are writing about what we want to write about.  From the start, we have both seen veganism and ecology as intimately connected, so expect to see more about the environment here.  This isn’t a blog about animal law anymore – if it ever was.

This is the blog we want to write.  And we want to write about a finer world and the practical ways we can make that happen – like veganism.

To Catch a Falling Star…

I’m currently reading John Brunners Catch a Falling Star.  The setting is surreal, fantastic even.  It comes across as a simple, dream-like tale, set many millennia hence, after the rise and fall of countless human empires and civilisations.  Ideas abound.  Big ideas.

As I write this, Tom Morello, the Nightwatchman, sings: The sky is falling, the sky is falling…

I’m not mad yet.  This is about animals, ecology, and veganism.  Bear with me for a moment.

The novel is one of Brunner’s earlier works, revised from one of his earliest novels.  But still.  Brunner is an author of tremendous vision.  His big novels – Stand on Zanzibar, about corporate control of an African state, AI, and the brutal military deconstruction of one man; The Sheep Look Up, about ecological collapse and the solution (the death of America); the Shockwave Rider, in which he coined the term ‘worm’ for a computer virus (in 1975);

But Catch a Falling Star is not really science fiction or fantasy.  Catch a Falling Star is a simple parable.  Every night, the Meat arrives in town.  Sometime, between now and the hundredth millenium in which the book is set, someone bred a bipedal species: the Meat.  And they run laughing to their deaths, joyously dying so that the people of the town can eat.

I cannot help but wonder how closely this vision parallels most people’s perceptions of the animal industries.  The meat just appears in the supermarket in a flash.  Perhaps, with a little thought, they recall that the animals were killed.  But, of course, sensible, smart, scientific people design cold, clinical slaughterhouses, so the animals die without pain.  And the farmers treat the animals nicely, so the animals live long, happy lives.  If they knew they were dying to make delicious food, they’d be happy, right?

Continue reading

5 Quick Thoughts on Citizens and Consumers

This post germinated in my mind as I walked home from SoLVe’s screening of Food Inc last night. The SoLVe team did a great job.  After the movie, Vernon Tava (Co-Editor of The Solution and past SoLVe President) facilitated a discussion between the 50-70 students present, with two lecturers – Peter Sankoff and Mohsen Al-Attar – present as expert commentators.

One of the most resounding and repeated themes was: What do we do now?  Naturally, I think we should go vegan – that’s a given.  But more fundamentally we should think more about what we eat – and what we consume in other ways.  When we come to food, we are all consumers.  To claim that is a tautology: We consume food.

Mohsen presented a juxtaposition between the self as consumer and the self as citizen.  I want to make five simple observations. Continue reading

Closing the Loopholes?

With much fanfare, the government launched an animal welfare amendment bill earlier this year.  You may remember our scepticism.  Now, with much less fanfare, Sue Kedgley MP’s clumsily-titled private members bill, the Animal Welfare Amendment (Treatment of Animals) Bill has been balloted to receive its first reading in September.

So, what does she hope to do? Continue reading

Guest Post: The Australian Whaling Claim

by William Fotherby

Will is a graduate of the University of Auckland and a solicitor at Bell Gully.  In 2008, he was one of the editors-in-chief of the Auckland University Law Review.

Australia has taken its campaign to end Japanese whaling to the International Court of Justice (ICJ).  The Australian statement of claim, dated 31 May 2010, alleges that Japan is in breach of its obligations under the International Convention for the Regulation of Whaling (ICRW).  It seeks an order revoking any permits by which Japan has conducted scientific whaling in the Antarctic and assurances from Japan that it will not conduct similar activities in the future.  New Zealand, among other countries, has indicated that it will look seriously at joining this court action.  This, after attempts to reach a political solution at the IWC’s annual meeting, in Agadir, Morocco, failed. Continue reading

Links for June 2010

Looking back over the month that was…

Return of the Links Digest

After a long absence, the links roundup is back from the grave.  What can I say?  Life’s been too busy, but now, fortified with six eight shots of espresso [‘I could see colors that weren’t in the visible spectrum…’], I give you a summary of animal law and animal rights related links from the last few weeks.

Chalk another death up to animal rights insanity and to the ongoing failure of the West to take counsel on practical matters from the Scripture.

Regular Transmission Will Resume Shortly

It’s been a quiet few weeks here at the Solution, but we have a few opinion pieces and articles in the pipeline.  Where have we been?

  • David and James have been frantically training, fundraising, and walking the Oxfam Trailwalker 2010.  Last weekend, Team Vegan knocked off the 100km in 22 hours and 26 minutes – and, no, it’s not a relay. Team Vegan finished 64th out of 265 teams. Go Team Vegan!
  • Vernon has been polishing off his thesis, coming up on the final weeks of his Master’s degree in law.
  • Ed has been fighting the (mostly) good fight, buried in work at the Manukau District Court.
  • Peter has spent six weeks back home in Canada.

Regular transmisson will resume shortly.  In the meantime – or any time – if you’re interested in writing a guest column for the blog, email us at contribute@thesolution.org.nz.

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