AGRICOLA ENTERPRISES LTD AND JOSEPH MICHAEL MCDONALD v MINISTRY FOR PRIMARY INDUSTRIES [2020] NZCA 136

AGRICOLA ENTERPRISES LTD AND JOSEPH MICHAEL MCDONALD v MINISTRY FOR PRIMARYINDUSTRIES [2020] NZCA 136 [1 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA431/2019[2020] NZCA 136BETWEEN AGRICOLA ENTERPRISES LTD ANDJOSEPH MICHAEL MCDONALDApplicantsAND MINISTRY FOR PRIMARY INDUSTRIESRespondentCourt: Gilbert, Ellis and Brewer JJCounsel: P V Cornegé and W Hendriske for ApplicantsA J Ewing for RespondentJudgment:(On the papers)1 May 2020 at 3 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Judge Menzies, following trial, convicted the applicants on charges broughtunder the Animal Welfare Act 1999.1 Duffy J dismissed their appeals againstconviction.2 The applicants now seek leave to come to this Court for a second appeal.1 Ministry for Primary Industries v McDonald [2018] NZDC 16909.2 McDonald v Ministry for Primary Industries [2019] NZHC 1844.[2] To grant leave, we must be satisfied that the appeal involves a matter of generalor public importance, such as an issue of "general principle or of general importancein the administration of the criminal law by the Courts",3 or that a miscarriage ofjustice may have occurred.4Background[3] The applicants are both relevantly engaged in the ownership and operation ofa dairy farm. The charges brought against them involve failing to ensure the physicalhandling of cows in a manner which minimised the likelihood of unreasonable orunnecessary pain or distress.5 The gravamen of the charges was that the cows' tailshad been broken during the applicants' physical handling of them.[4] The evidence was that of 516 cows examined, 186 (36 per cent) had brokentails.[5] The charges categorised the cows into two groups. The first group wasdescribed in the relevant charges as "no more than 12 cows". The cows were notidentified individually but were grouped because their injuries were allegedly new,having been suffered between 1 June 2016 and 24 January 2017 (the latter date beingthe date the herd was examined by animal welfare inspectors).[6] The second group was described in the relevant charges as "no more than107 cows". The cows were not identified individually and were grouped because theirinjuries were older than those of the first group of 12 cows.[7] The charges were stated to be representative charges.[8] The offences charged are offences of strict liability.63 Keenan v R [2005] NZSC 63 at [5]; cited in McAllister v R [2014] NZCA 175, [2014] 2 NZLR764 at [36].4 Criminal Procedure Act 2011, s 237(2).5 Animal Welfare Act 1999, ss 4(d), 10, 12 (a) and 165.6 Section 13.[9] A statutory limitation period meant that no charges were brought in relation tothe remaining 67 cows found to have broken tails.[10] There was no direct evidence of physical handling breaking tails.The prosecution depended on:(a) The opinions of two veterinary surgeons (Dr O'Driscoll and Dr Laven).(b) An admission by Mr McDonald to an animal welfare inspector that hewould sometimes "twist" cows' tails "just to push them forward".[11] The opinions of the veterinary surgeons were to the effect that although cowscan and do break their tails accidentally, the finding that 36 per cent of this herd hadbroken tails meant that tails were being broken by physical handling.Comparative studies in this area are limited, but a range of 5 per cent to 15 per cent ofa dairy herd having accidental breaks was indicated.The application[12] The first ground of the application is that the expert evidence of the veterinarysurgeons was equivocal and could not support a finding that the cows' tails had beenbroken through mishandling. The applicants submit this is a matter of general orpublic importance because similar evidence might be relied upon in futureprosecutions.[13] We do not accept this submission. The veterinary surgeons were expertsentitled to give their opinions on the significance of a herd having 36 per cent of itsnumber with broken tails. They gave their opinions. The opinions were not expressedin absolute terms but that does not mean they were equivocal. They were opinionsproperly qualified as to their degrees of certainty. They were able to be taken intoaccount by the trial Judge as part of the overall matrix of evidence, which includedthe admission of Mr McDonald.[14] The decision of the trial Judge was fact specific. The evidence was admissible,relevant and probative of the issues in the case.[15] The issue of the trial Judge's reliance on the expert evidence was argued beforeDuffy J who considered it in detail and gave reasons for upholding the trial Judge'sreliance on the expert evidence.7 We see no risk of a miscarriage of justice arisingfrom this ground.[16] The second ground for the application is that there was insufficient evidenceto find, beyond reasonable doubt, that the groups of cows referred to in the chargeswere cows which had tails damaged through mishandling. Accordingly, it issubmitted, it is reasonably arguable that a miscarriage of justice may have occurred.[17] The basis of this submission is that, although the evidence was that 36 per centof the herd had broken tails, the evidence was also that an unknown proportion ofthe broken tails would have occurred through accident. Therefore, there was nospecific evidence that cows in either of the groups had tails broken throughmishandling. There is a reasonable possibility that all the cows in each group hadaccidentally broken tails. There is a reasonable possibility that any cows with brokentails caused by mishandling were in the group of 67 cows in respect of which nocharges were laid.[18] We do not accept this submission. It was comprehensively and appropriatelyaddressed by Duffy J.8 It requires a factual analysis not suited to a second appeal.[19] In any event, the trial Judge was entitled to apply the evidence as a whole toall of the cows in the herd. It would be artificial to conclude that because cows hadbeen put into groups they should be treated differently.[20] We see no risk of a miscarriage of justice arising from this ground.Result[21] The application for leave to bring a second appeal is declined.7 McDonald v Ministry of Primaries Industries, above n 2, at [35]–[58].8 At [71]–[82].Solicitors:McBreens, Hamilton for ApplicantsCrown Law Office, Wellington for Respondent