Animal Welfare Act 1999

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.

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.

Animal Welfare on Farms: A lower standard for agricultural animals

A healthy flock of sheep

A report in the Dominion Post this week about a particularly nasty case of criminal neglect of sheep in the Manawatu highlights much of what is wrong with the enforcement and prosecution of animal welfare offences on farms in New Zealand:

75 sheep were found dead and another 25 had to be put down [immediately] because of alleged ill-treatment. SPCA officials raided the farm in August after being tipped off about the sheep. The 66-hectare farm is now under strict monitoring by vets and four SPCA inspectors. It is still being run by the farmer and has several hundred sheep.

Although full details have not yet been divulged by prosecutors, pending the laying of charges, it appears that the sheep were emaciated from starvation and severe neglect. The file is about to be sent to Crown Law for prosecution.

For reasons that will become clear, it is important to note that this was a raid carried out by the SPCA (Society for the Prevention of Cruelty to Animals). Under the Animal Welfare Act 1999, three bodies are statutorily-empowered to investigate and prosecute animal welfare cases; the Police, the Ministry of Agriculture and Forestry (MAF) and the SPCA. Only the Police and MAF are fully state-funded, the SPCA relies for 98% of its income on private donations. Continue reading »

Schechita, Halal and Ministerial Conflicts of Interest

It’s been a week of big announcements about animal welfare from the Minister of Agriculture, David Carter. We’ve seen not only the phase-out of sow crates but also the reversal of his decision in May 2010 to outlaw the traditional Jewish method of slaughter, schechita, for chickens.

Schechita slaughter requires the animal to be fully conscious as its throat is cut and it is allowed to bleed out. The NAWAC animal slaughter code created under the Animal Welfare Act 1999 (AWA) requires that an animal to be slaughtered must be first rendered insensible – stunned – so that it does not experience ‘unnecessary’ pain or distress. Although Muslims also object to the stunning of animals at slaughter, a compromise has been reached with halal slaughter whereby the animal is stunned at the instant the cut is made.

But there’s one revelation about the reasons behind the decision to ban schechita in the first place that the Minister would rather not see the light of day.

Documents obtained by the Herald on Sunday:

[A]ppear to show Carter broke the rules governing his portfolio by considering trade implications when making the original decision.

An allegation of conflict of interest has been made because of that – he holds shares in a company which exports meat and met with senior managers who wanted a ban on shechita to protect their interests. Continue reading »

Sow Crates Are To Be Phased-Out: But ‘harrowing’ crates remain

The Minister for Agriculture, David Carter, has confirmed that the new Pig Welfare Code will phase out the use of sow crates in New Zealand within the next five years. The ban will come into full effect in early 2016.

Many readers will remember that SoLVe (the University of Auckland Law Faculty student group that was the genesis of this blog) hosted a seminar given by Peter Sankoff (to a packed lecture theatre) on this issue on May 27th 2009.

A ban on sow stalls included in the draft welfare code was leaked to SAFE (Save Animals From Exploitation) in February this year.

The draft code, developed by the National Animal Welfare Advisory Committee (NAWAC), was to be released for public notification in December 2009 but was delayed following legal threats from the New Zealand Pork Industry Board. NAWAC preferred a ban by December 2017, a full two years later than the deadline that has been decided.

Sow stalls have already been banned in the United Kingdom and Sweden and will be soon phased out in Finland, Switzerland, the Netherlands and Denmark. 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 »

Dog Killers Set for Trial

The two men charged with the dog killings in Wellsford have now appeared in court. It was pretty much a standard appearance to enter a plea, and they won’t be back in court for a few more weeks, when a pre-commital hearing will take place.  The surprising piece of information coming out from this appearance was that the two defendants have elected a trial by jury.   Had anyone asked beforehand, I would have bet heavily that they would have gone for trial by judge alone.  Seems to me that their only chance of success in this case is showing that the dogs didn’t suffer sufficiently during the killing spree, and were killed quickly.  As hard as that sounds to believe, it would have a better chance of success before a judge, who would have a strong understanding of the prosecution’s burden of proof, and would be less likely to be swayed by the emotions of the situation.  I struggle to believe a jury will care about technicalities in light of the number of dead dogs, the “massacre-like” nature of the killings, and the sheer craziness of it all.

The defence’s most likely strategy is to put the dog owner on trial, suggesting that he had too many dogs, that their own dog was killed by his, and that he consented to the killing and is the real person to blame.  They may well be able to weaken his credibility as a witness, and perhaps sway a few jury members who worry about dangerous dogs.  As I’ve indicated in prior posts, Mr. Hargreaves is no choir boy, and has a lot to answer for himself – but I still don’t see how attacking him buys an acquittal.

This case should be won or lost on the basis of the scientific evidence, and the SPCA’s ability to show that the dogs suffered.   Regardless of the reasons for the killing, it was done in a manner that the SPCA should be able to show was detestable, and the owner’s actions will not be enough to legally absolve the defendants of responsibilty for what happened.  Still, with a jury involved, it should be a rousing trial, and an interesting one to follow.

Animal Abuser Registry?

California State Senator Dean Florez has proposed creating an ‘abuser registry’ for serious crimes involving animal cruelty. If it becomes law, this bill would place animal abusers on par with sex offenders and require the publication of abusers’ names, photographs, addresses, and other information. A draft copy of the proposed bill can be found here.

Continue reading »

New Animal Welfare Act Amendment Bill Introduced in Parliament

With surprisingly little fanfare or attention, the new Animal Welfare Act Amendment Bill has been introduced into Parliament.  You can download a copy of the Bill and read the government’s statement behind it here.

As promised, it’s got more than just an increase in penalty for wilful ill-treatment.

Watch this space to read my review of the Bill in a few days time…

Comprehensive Review of the Animal Welfare Act?

Interesting comment from David Carter, Minister of Agriculture – and responsible for the Animal Welfare Act 1999.  Not surprisingly, Parliament is fast-tracking Simon Bridges’ Bill to up the penalty on wilful ill-treatment, but Carter indicated in this article that he would consider ‘whether [the Bill] should be widened to make the Animal Welfare Act work better’.  Wow!  Could be significant.  Stay tuned…

Blowing Off Some Steam about Wellsford and Politicians

There’s a lot to be angry about these days.  Ever since a couple of lunatics decided to commit the ‘Wellsford Massacre’, by emptying their shotguns into a shed full of puppies, the media has been alight with stories about animal welfare.  In one sense, that’s good.  We certainly need to be paying more attention to what is, sadly, a prevalent problem.  Nonetheless, there’s a lot to get angry about from the media coverage as well.  I’m not sure whether it’s the media, the killers up in Wellsford, some lady calling me a dick-head, or a combination of all these things, but I’m feeling pretty steamed.  Rather than attempt a coherent blog in this state, I’ll throw out a few points on the ‘things that are making me mad’, and hope it makes some degree of sense in the end.

Disclaimer
Before doing so, a disclaimer.  I worry some times that people read parts of my comments rather than the whole.  So let me state this loud and clear: I am not against punishing people who commit cruelty against animals.  Far from it.  I’ve done as much to try and get sentences fairly applied as anyone, and have written legal articles, drafted submissions to Parliament and worked with prosecutors to bolster sentences for animal abusers.  It is, to be sure, a component of what needs to happen in order to have a country that treats animals better than it currently does.  Nonetheless, as you’ll see from my comments below, I have serious reservations about the way this has suddenly become ‘the answer’ to our problems.

My Talk with Simon Bridges, MP
A few weeks before he introduced his new Bill to raise the maximum penalty for wilful ill-treatment to animals causing death from three to five years, Simon Bridges called me to see what I thought.  I told him I thought it would do absolutely nothing for animals, and might even set back the cause.  I think he was taken aback, as my position seemed both counter-intuitive and contrary to the ‘animal lover’ position.  So I explained.   The problem, as I see it, is not the maximum sentence for the single most serious crime relating to animals.   A three year maximum, believe it or not, is fairly high by New Zealand standards.  Sure, judges rarely impose the maximum, but that’s true for all crimes.  Nonetheless, the three year maximum is not out-of-whack with other jurisdictions, and gives plenty of room to get jail time for those who commit horrid acts. Continue reading »