WALLACE AND GLOVER v RNZSPCA [2023] NZHC 617

WALLACE AND GLOVER v RNZSPCA [2023] NZHC 617 [24 March 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-092-012517[2023] NZHC 617BETWEEN JANINE ANN WALLACE ANDBARBARA GLOVERAppellantsAND ROYAL NEW ZEALAND SOCIETY FORTHE PREVENTION OF CRUELTY TOANIMALSRespondentHearing: 15 November 2022Appearances: D R F Gardiner for AppellantsL P Radich and S E Arnerich for RespondentJudgment: 24 March 2023JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 24 March 2023 at 3:20 pmRegistrar/Deputy RegistrarSolicitors:Kayes Fletcher Walker, AucklandIntroduction[1] Following a trial held in the District Court at Manukau in January and February2022, Ms Janine Wallace and her mother Mrs Barbara Glover (collectively – theappellants) were both found guilty and convicted of offences under the Animal WelfareAct 1999 (the Act). The charges which were brought by the RNZSPCA1 (the SPCA),related to the appellants' operation of "Volkerson Kennels" located on a large ruralproperty at Mangatangi, south of Auckland, where they kept and bredGerman Shepherd dogs. The charges alleged they had failed to meet the physical,health, and behavioural needs of dogs in their care,2 and that they had failed to alleviatepain or distress of an ill animal.3[2] In her reserved decision delivered on 31 March 2022, Judge K Grau found bothof the appellants guilty of 32 charges, being 26 charges of failing to meet the physical,health, and behavioural needs of an animal, and six charges of failing to alleviate thepain and distress of an animal.4 On 13 July 2022 Judge Grau sentenced the appellants.5She sentenced Ms Wallace to 12 months' intensive supervision and 300 hours ofcommunity work (with judicial monitoring),6 and Mrs Glover to nine months'supervision.7 Pursuant to s 169(3) of the Act Judge Grau disqualified both of theappellants from owning or exercising authority over dogs for a period of nine years.8Her Honour also made an order that the appellants each pay costs of $20,000.9[3] Both of the appellants appeal their convictions and sentences.[4] They appeal their convictions on the grounds that the Judge erred in herfindings regarding inadequate care of the dogs by applying the Act in an overlyprescriptive way, and by placing undue weight on the prosecution evidence of two1 Royal New Zealand Society for the Prevention of Cruelty to Animals.2 Animal Welfare Act 1999, ss 10, 12(a), and 25 (maximum penalty 12 months' imprisonment or toa fine not exceeding $50,000 or to both).3 Sections11(1), 12(b), and 25 (maximum penalty 12 months' imprisonment or to a fine notexceeding $50,000 or to both).4 Royal New Zealand Society for the Prevention of Cruelty to Animals Inc v Wallace [2022] NZDC541 [Conviction decision].5 R v Wallace [2022] NZDC 13368 [Sentencing decision].6 At [56] and [77].7 At [59] and [78].8 At [73] and [80].9 At [81].SPCA inspectors (Mr Kevin Plowright and Ms Laurie Davis), and SPCA staffveterinarians. The appellants say that video recordings from body cameras worn andoperated by SPCA inspectors Plowright and Davis on visits to Volkerson Kennels on12 and 13 October 2017 was not produced in evidence and accordingly not consideredby the Judge. Instead the prosecution produced a series of still photographic imagesselected from the video recordings. The appellants say that the recorded video imagesare favourable to them by showing that their care and treatment of the dogs wasconducted in a manner consistent with good practice, and had the recordings beenproduced by the SPCA and considered by the Judge, her factual findings would havebeen favourable to them. The appellants seek to have parts of these video recordingsadmitted as fresh evidence for the purposes of the appeal.[5] The appellants further allege that the Judge failed to address and apply theprovisions of the Animal Welfare (Dogs) Code of Welfare 2010. They submit that theJudge uncritically accepted key aspects of the evidence of the SPCA prosecutionwitnesses, and the SPCA narrative of events. The appellants also challenge the Judge'srejection of Ms Wallace's evidence regarding the six dogs seized by the SPCA on18 May 2018, and say that the Judge erred in relation to some of the adverse credibilityfindings she made against Ms Wallace.[6] As regards their appeal against sentence, the appellants say that the nine yeardisqualification imposed by the Judge under s 169(3) of the Act was manifestlyexcessive. They say that as Mrs Glover is now aged 84, the nine year disqualificationwill mean that she will not be able to have a dog for the rest of her life. The appellantsboth maintain that as neither of them had any previous convictions under the Act thelength of the disqualification order is manifestly excessive.Background[7] Judge Grau set out her reasons for her verdicts on the charges in acomprehensive decision. Her Honour also summarised the appellants' offending inher sentencing notes dated 13 July 2022, and it is convenient to set out her summaryhere:1010 Sentencing decision, above n 5.[8] Mrs Glover, it appears you bred German Shepherd dogs for manyyears with success and you were held in high regard in the German Shepherdbreeding world. You are 83 and you have never appeared in Court or haveany criminal history.[9] Ms Wallace, your involvement with the kennels seems to have startedin around the last 10 years, during or after a real estate career you had thatended in criminal charges from what I can tell. It appears thatVolkerson Kennels was selling puppies online for between $2,000 and $5,000.Ms Wallace, you strongly denied at the trial that this was a money-makingoperation. I must say I find that hard to believe. It seems implausible giventhe number of dogs you had and the significant cost and effort that must havebeen involved.[10] The SPCA's involvement began in mid-2017 when they receivedinformation that raised concerns about the dogs' welfare. The first inspectionshowed concerning conditions. The inspectors gave you a statutory notice, aninstruction to prevent or mitigate suffering under the Animal Welfare Act1999. That required you to take steps to improve conditions. You did not doso. When they returned there was no meaningful improvement. They toldyou there were far too many dogs and not enough facilities. You appeared tohave some insight at that point; you agreed to surrender five dogs.[11] A week later the investigators saw some improvement but there werestill a large number of dogs that were in poor living conditions. As I have said,I accept the SPCA were trying to work with you to get you to drop yournumbers to improve the conditions the dogs were living in.[12] You have both been very critical, saying that the SPCA were focusedon the numbers of dogs that you had. But that was because you had too manydogs to care for.[13] When they returned in October, they had given you time to makeimprovements, and, importantly, to reduce the number of dogs. But thatreinspection was disappointing when the change was not meaningful. So theyreturned the next day with a veterinarian and seized 15 dogs. Those were thedogs whose welfare was the most concerning.[14] Dr Beer, the SPCA vet, said she was struck by the number of dogs tiedup in locations that were clearly not set up for managing dogs. Dogs weretethered to poles and fences. Dogs were being housed in places that were notproper housing. Dogs were tethered unattended with choke chains which riskscausing injury to them. As their name suggests, they can choke a dog. Theysignificantly restrict movement and were described by the experts in the trialas a punitive or punishment device.[15] Ms Wallace, you kept saying during the trial that the SPCA were onlyseeing these dogs at a particular moment in time and that, every time the SPCAsaw a dog they had concerns with, it had only just been put there. It wasobvious to me that that was simply not correct. It was clear that many dogswere being tied up or otherwise kept in unsatisfactory or risky conditions forextended periods of time.[16] There were two dogs whose conditions were particularly bad. Debbie,a pregnant bitch, was locked in a small, filthy crate inside a locked, dark utilityshed. She had a dirty and matted coat. She had an untreated and obvious earinfection. Ms Wallace, your explanation was fanciful. You said this dog wasbeing monitored and observed because she was pregnant and that she wasbeing groomed for one to two hours daily by your mother and anothervolunteer worker. But the reality was she was hidden away lying in her ownfaeces and likely in pain. She had pus coming out of her ear which wouldhave been obvious to anyone who was actually caring for her.[17] I found it likely that she was being hidden from the SPCA. She wasa dog who was about to increase the population of dogs at the very time theSPCA was telling you that you needed to reduce numbers so that you couldcare adequately for those dogs.[18] Mr Radich has pointed out, in written submissions, that you said inyour evidence you had her in the crate to protect her against being taken bythe SPCA. I think that was a slip by you as you quickly denied you had saidor meant that. But I think that was a rare example of the truth slipping outwhen you gave your evidence at trial.[19] Even worse was the state that the dog, Ritza, was found in. She wastied up inside a small enclosure in a hay barn. The tether was twisted aroundher leg; her leg was forced up next to her head. The tether was cutting intoher leg and acting as a tourniquet, cutting off the blood supply. This dog wascompletely helpless, not even able to make a sound. The expert evidence wasthat it would have been very distressing and painful for the dog and that it waslikely she had been in that position for hours at least. She had to be euthanisedafter her treatment was unsuccessful. The leg and the dog could not be saved.[20] Again, Ms Wallace, your explanation was fanciful. You blamed theSPCA for causing the injury. You tried to suggest the dog's leg got tied up ina matter of seconds when the SPCA went into the hay barn, despite the expertevidence that this injury would have taken hours. You denied there wasanything wrong with the dog despite it being obvious that there was. Youcould not give a straight answer as to how the dog came to be tethered in thereand by who. You tried to blame the dog's death on the SPCA's treatment ofher when they took her. But it was very clear to me they were trying to treatthe injury that was caused from the way she had been tied up and left.[21] Thirteen other dogs were seized that day due to concerns they wereunderweight. Some had obvious ear infections, some had coats that werematted with dirt and faeces. Some dogs did not have proper access to water.Some were unsafely tethered. Three puppies were unsafely housed.[22] You attended an interview with the inspectors in November 2017,Ms Wallace. You said you wanted to work with them, but you would not givethem any meaningful information about the number of dogs at the kennels.However, there was some improvement after that time, and you did build newkennels.[23] But then in May 2018 the SPCA was alerted to the presence ofdistressed dogs on your property. They found six dogs by following the noiseof the dogs barking. Those dogs were tied to trees at the back of the farm, aconsiderable distance from the house. It took the SPCA about half an hour todrive there over rough terrain. These dogs were all underweight, some hadear infections. One had an obvious skin infection. Some had no access towater. Again, this seems to have been an attempt to hide dogs, and again, therewas an explanation that was fanciful, that these dogs had just been put thereto rest after exercise, despite it being obvious that they had been there for quitesome time. They were only found because they were barking in distress. Theywere not resting and relaxing after exercise as you claimed.[24] I need to set a starting point for this offending. I look at aggravatingand mitigating features; matters that make the offending worse or less serious.[25] What is aggravating is the scope of the neglect in this case.[26] I accept the prosecution's submission that the general conditionshowed a high level of neglect. Looking at many aspect – for example, thetethering with the choke chains, the unhygienic conditions, the lack of anyopportunity for behavioural enrichment - it seems to me that dogs were simplybeing warehoused because there were not enough people to care for them andgive them the attention they needed, not just to meet their physical needs butalso to meet their emotional needs.[27] You suggested they had a rich life because they lived on a ruralproperty. But some of the dogs were locked away in dark conditions. Otherswere tied up outside, hardly able to move. Others were in filthy dog runsskating through their own faeces. That is not behavioural enrichment.[28] Also, an aggravating factor is the opportunities that were given, butnot taken, to improve matters. Instead you hid dogs; you were still breedingdogs instead of reducing the numbers. I accept the prosecution's submissionthat this was conduct that can be described as wilful rather than negligent.[29] Next there is the extent of illness and injury with associated pain anddistress to the animals. Six dogs with untreated ear infections, two withuntreated skin infections, seven assessed as medically underweight. I recordhere that there were a significant number of other dogs that were very likelyunderweight too. I did not find you guilty in relation to those dogs onlybecause the evidence did not establish that to the high criminal standard ofbeyond reasonable doubt. Nevertheless, I consider it very likely those otherdogs were underweight too. Worst, of course, was Ritza who had to beeuthanised as a result of being left unsafely tethered and unattended.[30] I also accept there appears to be a financial motivation behind theoverpopulation and the neglect that has resulted, which makes this worse thanthe hoarder type of situation that the courts see, where a person keepsacquiring animals in the misguided hope they can care for them.Conviction appealsThe appellants[8] Mr Gardiner for the appellants submits that the body-camera video recordingsmade by SPCA inspectors Mr Plowright and Ms Davis should be admitted as freshevidence for the purposes of the appeal. The appellants have filed a memorandum inwhich they have identified multiple sections of the SPCA investigators' videorecordings as being relevant to specific charges, and have included brief particulars asto the relevance and significance of what appears in the video recordings which theycontend show that the dogs were being appropriately housed and cared for.Mr Gardiner submits that the body-cam video recordings provide a "differentnarrative" to that presented by the SPCA evidence and should be admitted in theinterests of justice in order that the Court can assess the relevance and accuracy of theprosecution evidence regarding the state of the dog kennels and the circumstances andcondition of the dogs when they were seized by the SPCA investigators on 13 October2017 and 18 May 2018.[9] Mr Gardiner submits that the Judge erred in her decision to reject the evidenceof Ms Wallace. He submits that the effect of the Judge's decision rejectingMs Wallace's evidence, was to significantly erode the presumption of innocence andthe Judge effectively abdicated her responsibility for subjecting the evidence of theprosecution witnesses to careful scrutiny — specifically the evidence of inspectorsPlowright and Davis and veterinarian Dr Beer — as to their evidence of what occurredon the occasions when dogs were seized from the appellants' property. As I understandthe appellants' contention, it is that the video recordings made by the SPCAinvestigators should be admitted in the interests of justice, because they providesupport for Ms Wallace's evidence as to what occurred when the SPCA officers cameand uplifted dogs from her property and support her evidence regarding the physicalcondition the dogs were in on the occasions of the inspectors' visits, and how the dogswere being housed and cared for.[10] Mr Gardiner submits that the body-camera video recordings constitute freshevidence that could not with reasonable diligence have been produced at trial. Hesubmits that the video recordings are credible and cogent evidence that in combinationwith other evidence produced at trial might reasonably have led to not guilty verdictsor at least some of the particulars alleged in respect of individual charges not beingfound proven.[11] Mr Gardiner makes written submissions regarding specific charges, and saysthat the appellants contend that the body camera video recordings will assist indetermining whether they were wrongly convicted and that the Judge may not havereached the conclusions she did regarding her verdicts had she seen the videorecordings.The respondent[12] Mr Radich for the respondent opposes the admission of the body-camera videorecordings made by Mr Plowright and Ms Davis as fresh evidence for the appeal. Henotes that the video recordings were disclosed to the appellants' previous counsel in2019, and again disclosed to their counsel Mr Gardiner in July 2020, some 18 monthsprior to the trial. Mr Radich also notes that well prior to the trial, the respondentnotified the appellants that it was not intending to play the video recordings at the trial,and that it would produce a photo booklet comprising a selection of still photographstaken from the video recordings. The respondent notes that playing the videorecordings would have taken several hours, and involve the playing of a considerableamount of irrelevant material.[13] The composition of the prosecution photo booklet was settled by agreementbetween counsel before trial. However, during the respondent's cross-examination ofMs Wallace two sections from the video recordings were played. The first was a videorecording showing the dog Ritza which was played at the request of the prosecution toshow Ritza's condition when she was found tethered in a small enclosure in a hay barnand seized by the SPCA investigators on 13 October 2017. The second videorecording was played to show the conditions in which the SPCA inspectors found fiveseven-month-old puppies being kept together in the woolshed, on their visit on12 October 2017. The respondent notes that the appellants' counsel did not put any ofthe video recordings to the prosecution witnesses during cross-examination, and didnot adduce any video recordings as part of their own evidence.[14] The respondent submits that the video evidence is not remotely fresh. It wasfirst disclosed to the appellants over two years prior to the trial and re-disclosed totheir trial counsel well prior to trial. The appellants were therefore in a position toadduce the video recordings at trial and chose not to do so. The respondent furthersubmits that the appellants have not provided any explanation as to why they chosenot to adduce the video recordings at trial if they are exculpatory of the appellants.The respondent says that even if the Court is prepared to view the video recordings forthe purposes of the appeal, it would likely require expert evidence to assist the Courtin interpreting the video images and what they relate to.Should the body camera video recordings be admitted in the interests of justice?[15] The Court can receive fresh evidence on appeal if it thinks it necessary orexpedient in the interests of justice.11 Generally, new evidence will need to be credibleand cogent.12 But the overriding criterion is the interests of justice.13[16] In R v Bain the Court of Appeal explained that:14[22] An appellant who wishes the Court to consider evidence not called atthe trial must demonstrate that the new evidence is: (a) sufficiently fresh; and(b) sufficiently credible. Ordinarily if the evidence could, with reasonablediligence, have been called at the trial, it will not qualify as sufficiently fresh.This is not an immutable rule because the overriding criterion is always whatcourse will best serve the interests of justice. On the other hand the Courtcannot overlook the fact that sometimes, for whatever reason, significantevidence is not called when it might have been. The stronger the furtherevidence is from the appellant's point of view, and thus the greater the risk ofa miscarriage of justice if it is not admitted, the more the Court may be inclinedto accept that it is sufficiently fresh, or not insist on that criterion beingfulfilled.[17] The "sequential series of tests" to be considered with regard to the admissionof fresh evidence on appeal is set out in Lundy v R:15(a) Is the evidence credible?(b) If so, is the evidence fresh in the sense that it could not havebeen obtained for the trial with reasonable diligence?(c) If the evidence is fresh and credible it should be admitted unlessit would have no effect on the safety of the conviction.11 Criminal Procedure Act 2011, s 335(2)(c).12 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and R v Bain [2004] 1 NZLR 638 (CA)at [22].13 R v Bain, above n 12, at [22].14 R v Bain, above n 12, approved by Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; andLundy v R, above n 12.15 Lundy v R, above n 12, at [120].(d) If the evidence is credible but not fresh, it may nevertheless beadmitted if there is a risk of a miscarriage of justice if it is notadmitted.[18] The body-camera video recordings comprise evidence that is clearly credibleand reliable as they are recordings made at the time of the SPCA investigators' visitsto the appellants' property on 12 and 13 October 2017 and 8 May 2018. However thevideo recordings are clearly not fresh evidence. It is evidence that was in theappellants' possession well before trial and they could have utilised it to support theirdefence to the charges had they wished to do so. Having made a deliberate andinformed decision not to produce the video recordings at their trial, they cannot nowclaim with any forceful justification that the interests of justice require that it now beadmitted for the purposes of their appeal.[19] Moreover having viewed the video recordings, I am satisfied that they showthe circumstances and conditions in which the appellants' dogs were being housed orkept, and the appearance of the dogs themselves is consistent with the descriptions ofwhat the SPCA witnesses said they observed. There is nothing in the video recordingswhich appears to be exculpatory of the appellants and the overall picture they presentis that of a large number dogs being housed in restricted and confined situations inwool shed pens, farm dog cages and in some cases tied up out in the open in an areaof bush well away from the farmhouse and other farm utility buildings. The particularsset out in the appellants' memorandum are of little assistance to the Court. While theparticulars refer to matters which the appellants contend show that: the dogs werebeing housed or tethered in situations in which they had access to water; in whichdespite being tethered they were able to move freely; or that the physical condition ofthe dogs was consistent with them being healthy and well-nourished; such matters arenot evident from viewing the video recordings. Where video recordings are said bythe appellants to show features of a dog's physical condition or how a specific dogwas being housed and cared for, it was open to them to adduce the video recordingsas evidence at trial in order to challenge the evidence of the SPCA inspectors andveterinary witnesses who described the conditions in which the dogs were beinghoused or tethered, as well as the physical condition of the dogs themselves.[20] In their memorandum identifying "segments" of the Mr Plowright andMs Davis body camera video recordings filed in support of their appeal, in respect ofeach video recording segment they have identified, the appellants have added briefnotes to show why or how the identified video images are considered relevant to theirappeal and justify the manner in which the dogs were being housed and cared for.However these brief notes fall well short of demonstrating that the Judge's factualfindings regarding the conditions the dogs were found in were in error. As I havenoted, in addition to the oral evidence of the prosecution witnesses, the Judge had thebenefit of also seeing the photographs taken by SPCA inspectors as well as the stillphotograph images taken from the body-camera video recordings made by inspectorsPlowright and Davis.[21] In my view the images and contents of the body-camera video recordings areconsistent with the evidence given by the prosecution witnesses, and the appellantshave failed to show that the video images are exculpatory of them. The overridingcriterion regarding the admission of fresh evidence on appeal is the interests of justice,and I am well satisfied that the interests of justice do not require the admission of thevideo recordings in this case. I further find that the appellants have not shown thatthere is a risk of miscarriage of justice if the video recording evidence is not admitted,and I decline to admit them as fresh evidence for this appeal. As a result, theappellants' conviction appeals based on the submission that, had the body-cameravideo recordings been played a trial, the Court's finding of fact may have beendifferent cannot succeed.Did the Judge err in her assessment of Ms Wallace's credibility?[22] The appellants submit that the Judge erred in her adverse finding regardingMs Wallace's credibility and discounting her evidence. The appellants say thatwhatever view the Judge took of Ms Wallace's credibility, it should not havedetermined the Judge's approach to all of her evidence. The appellants submit that theJudge's approach and her rejection of Ms Wallace's evidence resulted in an injusticeto both Ms Wallace herself and also to Mrs Glover whose position the Judge found tobe closely aligned with that of her daughter. As already noted, the appellants say thatthe approach adopted by the Judge effectively eroded the presumption of innocenceand represented an abdication by the Judge from her responsibility for determining"where the truth or otherwise lay on each charge". The appellants submit that theJudge's adverse finding regarding Ms Wallace's credibility should not mean that theevidence of the prosecution witnesses should not be carefully scrutinised.[23] Mr Radich for the respondent says other than saying that they disagree withand don't accept her findings, the appellants have failed to show why the Judge erredin making adverse credibility findings against Ms Wallace. Mr Radich notes thatappellate courts are appropriately cautious about departing from a trial judge'scredibility findings.[24] It is clear from Judge Grau's reasons for verdicts decision that Her Honourgave careful consideration to the issue of the credibility and reliability of Ms Wallace'sevidence. The following passages of the Judge's decision illustrate the careful mannerin which the Judge addressed this issue. She said:16[219] My second observation is that Ms Wallace would change her evidenceto suit her case. For example, Ms Wallace's evidence about the use of thesheep shed for housing dogs shifted repeatedly. She had initially said it wasonly a temporary measure. She had also said that when she described a dogbeing in a particular place temporarily, it did not mean overnight. She alsosaid dogs were in the sheep shed because of the weather and this was only amoment in time (although she did not say where their actual home was). Whenit was put to her that dogs would be housed there for days, her response wasthat people work in there, so it is a good spacious area. She added that beddingwas taken out in the morning and washed or thrown out. When herinconsistency was pointed out, i.e. that bedding indicated dogs were in thereovernight, she said she thought she was talking about tethering and that dogswould sometimes overnight there. She then said that, when she meanttemporary, it was until the new kennels were completed.[222] Ms Wallace was often unwilling or incapable of giving a straightanswer: For example, she said under cross examination that she did not acceptthere was a risk of injury from dogs being housed in the wool shed. She saidpeople worked there and it was MPI approved. When it was put to her that itwas not MPI approved for the housing of dogs, she responded that MPI do nothave documents for kennels. Asked to give the reason why she would say itwas MPI approved when that did not relate to dogs, her response was to askthe prosecutor if he was saying it was good enough for people but not goodenough for dogs. I found myself regularly having to ask Ms Wallace duringher cross examination to answer the questions she was being asked.16 Conviction decision, above n 4.[223] As another example, Ms Wallace was asked to comment on theprosecution evidence that dogs in general prefer to defecate away from wherethey are housed. Ms Wallace first said that all dogs were different, and theywould just decide themselves and it was a natural process. Asked again, shegave a general example that some dogs will defecate in a kennel even afterhaving been out for a run, and some will not. Asked a third time, she said itwould be lovely if they were all like that and said she agreed in part. Whenpressed she said she could only talk about her dogs. When asked if she wouldagree that it appeared there was a large proportion of her dogs that seemed toprefer to defecate where they live and sleep, she said it depends on how manytimes they are going, what they have been fed and how they have been trained.She also appeared to suggest a dog seen in a photograph had defecated becausea person had arrived, and that the kennel had just been water blasted. Icomment that this evidence also appeared to me to be at odds with herevidence of rigorous training in general and of giving families a chance to buya world class puppy as a family pet.[224] Ms Wallace was utterly unwilling to accept any proposition put to herby the prosecution, however reasonable. As a general example, she was askedwhether she accepted there were any shortcomings regarding the dogs' care atall. She did not (although I note she had accepted there were areas with roomfor improvement when she was interviewed in November 2017). She said theanimal husbandry was exemplary and that is revealed in the results that comeout of Volkerson Kennels. In particular, she would not accept there were anyshortcomings in relation to Ritza, despite that Ritza was obviously injured.Nor would she accept that Ritza would not have been injured if she had notbeen left tethered and unattended. Her response included that "I don't knowif that was staged." Nor would she accept the SPCA had a fair concern thatshe had not been upfront about the number of dogs at the property, saying "this has all been fabricated and it's been a created story to give it drama."[225] There was a repeated insistence that the dogs were "working dogs."This moniker was used, among other things, to justify dogs being outsidewithout shelter, and to assert that the dogs were of ideal weight despiteveterinarian evidence that they were not. Even if the dogs did work on thefarm, I do not consider the law relating to animal welfare provides for lesserobligations on their owners. Nor, despite the repeated reference to the GermanShepherd breed being classified as a 'working dog' did it appear likely fromthe evidence that many, or any, of the dogs were thus employed, whenMs Wallace made it clear that the farming operation was very separate fromthe dog kennels and she had nothing to do with the farm operation. Nor didher sister Ann (who dealt with the farm) have anything to do with the kennels.[226] There was the implausibility of some of Ms Wallace's evidence. Forexample:(a) Ritza's injury: Ms Wallace continued to insist there wasnothing wrong with Ritza. However, I could see the dog'sinjury with my own eyes in photographs. The video footagemade it even clearer. When that video was shown toMs Wallace she still would not accept there was a problemwith the dog's leg. Yet it was obvious the dog could not putits injured leg down, consistently with how she was foundwith her lead acting as a tourniquet on her leg.(b) That a water blaster, which must have been used every day (ifit was true that dog enclosures were cleaned daily) justhappened to have broken down on exactly two of the dayswhen the SPCA inspected the property – the time of the firstinspection on 28 July 2017 then again on 12 October 2017.(c) That Ms Wallace and her mother had a lot of help with thedogs from international students who were volunteer workersat the farm. At one stage she said there were 37 people from30 countries staying anywhere between a week to five or sixmonths. It was said there were two to seven at any one time,who stayed in the cottage and in their house. In my view,however, if there had been such assistance, the dogs'conditions would not have been as the SPCA inspectors foundthem.Nor were there any signs of these people in the SPCA's case,beyond one photograph of (the bottom half of) a personcleaning out a puppy pen in the deer stables on 4 August 2017.Ms Wallace referred to this photograph a number of times toassert that dog enclosures (that one and others) were cleanedregularly. She said that this was just one example but therewere many others. Yet there was no other evidence of thepresence of any other workers, which I would have expectedif there was always a team of workers (even a small team)helping with the care of so many dogs.Ms Wallace said the SPCA spoke to various people and tookphotos of international students on their body-cam footage. Ifthat was so, I would have expected it to be produced as partof the defence case, or at least put to the SPCA witnesses.Ms Wallace would not, or could not, provide any othersupporting evidence of the presence of these workers, eitherto the SPCA when they interviewed her in November 2017,or to the Court, stating that she would not breach their privacy.When asked about declining to answer SPCA questions aboutthese workers in her interview, Ms Wallace's response was torefer to what she said was an invalid search warrant,17 andthen to say she could give all names, addresses and phonenumbers. She also said maybe some could write and explaintheir experiences and that it was so valued even the DanishGovernment paid for their students to come and work on thefarm.It is important I note here that Ms Wallace did not have toprovide evidence on this (or any other) issue. But because she17 At various times in her evidence Ms Wallace referred to illegal search warrants. I had notpreviously been aware of any search warrants executed as part of the SPCA's investigation, and itdid not form part of the SPCA's case. I had assumed from Ms Wallace's evidence there mighthave been a ruling that the search warrant was unlawful, but Mr Radich advised that was not thecase. Mrs Glover's written submissions filed after the hearing also contain complaints about anunlawful search warrant.did not, it makes it easier to accept the prosecution's case thatthere were insufficient personnel to care for the dogs properly.(d) There were repeated assertions of evidence being suppressedby the SPCA, or of other evidence that was available. But nosuch evidence was provided to the Court.(e) There was the odd coincidence that Ms Wallace was notresponsible for the three dogs who were arguably in the worststate; Debbie, who was said to have been in the garage as hermother said it was the best place for her, Ritza who MsWallace had (at least initially) denied putting in the haybarn(and then denied putting her in the place she was found), andTiffany, who was said to have a skin infection becausesomeone else (unnamed) had poured a chemical on her.(f) That the SPCA's investigation was not motivated by animalwelfare but was designed to take Volkerson Kennel's bestbreeding stock for financial purposes - either to breed fromthem or sell them, and/or as a fundraising exercise. While MsWallace may believe this to be the case, there was no evidenceat all for her contention. Mr Plowright's response to MsWallace's belief they had been deliberately targeted by theSPCA as a result of an ill-intentioned complaint was to acceptthey were deliberately targeted, but that was because ofanimal welfare problems. He said they (the SPCA) had "bentover backwards to avoid today" (i.e. the trial). He alsorejected the proposition it was advantageous to the SPCA toseize pedigree dogs and publicise it to assist funding, sayingthe costs involved were incredible and that is why they wentto so much effort to avoid this from happening. He describedas absolutely ludicrous the proposition that the stock seizedwas of very good bloodlines and was taken for the purpose ofcrippling Volkerson Kennels. The allegation that the SPCA'smotivation was to breed from the seized dogs was made butwas not put to Mr Plowright.(g) There was an assertion that the six dogs were seized on 18May 2018 "because it was all in their [SPCA] strategic planthat there was going to be a disposal hearing of our 15 dogsin the beginning of June and at the same time from thebeginning of January to beginning of June, it was– we hadpublications asking the public for donations." However theevidence was that the SPCA was alerted to the presence ofthese dogs on 18 May 2018 by a neighbour who heard thembarking in distress. That is consistent with the conditionsthese dogs were found in, and inconsistent with Ms Wallace'sevidence they were happy dogs resting after a workout. Itappears much more likely to me that the dogs were beinghidden well out of the way at a time when Ms Wallace andMs Glover were in the process of trying to get their seizeddogs back.[25] The Judge's comprehensive examination of Ms Wallace's evidencedemonstrates that there were multiple and compelling reasons for rejecting herevidence as being implausible. However, having found Ms Wallace's evidence andher explanations to be unreliable, the Judge did not fail to subject the prosecutionwitnesses' evidence to scrutiny. She said:[227] Finally, there is the fundamental problem that, to make a findingMs Wallace was a credible and reliable witness, I would have to find that allof the SPCA witnesses - the inspectors, the veterinarians, and the pathologist- were not credible or reliable or both. I would have to find that they were alleither mistaken, though lack of expertise, or they were lying. In the case ofthe SPCA inspectors, this would have to be because they had an ulteriormotive for their investigation into Volkerson Kennels. And if the SPCAinspectors were indeed lying, they would need to have colluded to produce aconsistent account. Further, I would also have to find that two other DistrictCourt Judges, and a High Court Judge, were all wrong when they upheld theSPCA's seizure of dogs and declined to return them to Ms Wallace andMs Glover.18[228] However, as I have already recorded, rejection of Ms Wallace'saccount does not automatically lead to a finding of guilt. I must consider theevidence that I do accept in relation to each charge against each defendant anddecide if it proves each charge beyond reasonable doubt.[26] In her decision the Judge explained her reasons for finding the prosecutionwitness Kevin Plowright and the other prosecution witnesses to be credible andreliable. The Judge had the benefit of observing the prosecution witnesses giving theirevidence. In the case of Mr Plowright his evidence in chief occupied over a day anda half of the hearing and his cross-examination occupied approximately three days.The Judge said of Mr Plowright:[209] I had ample time to form the view that Mr Plowright was wellexperienced in his role and he gave his evidence in a straightforward mannerwithout exaggeration. He made concessions where appropriate. He wasunshaken in cross examination. Despite its length, and some of thepropositions that were put to him, he remained mostly patient. He appearedvery knowledgeable about dogs and animal welfare as would be expected. Hewas assisted by the notes he had taken in relation to the various inspectionswhich were made within 24 hours of the visit, and he had made those noteswith reference to body-worn camera footage of the inspections.[27] As regards the other prosecution witnesses, the Judge said:18 This is another matter that was not part of the SPCA's case but was raised by Ms Wallace. It isalso referred to in the written submissions of Mrs Glover.[212] All of the other prosecution witnesses gave their evidence in astraightforward manner without exaggeration. In relation to evidence givenin the capacity of an expert, I had no reason to doubt the expertise orexperience or impartiality of any prosecution witness.[213] I reject the contentions made regularly throughout the defence casethat various witnesses did not have experience regarding German Shepherds,pedigree and/or show dogs, with the apparent suggestion being that theVolkerson Kennels' dogs were somehow different to other dogs, or thatdifferent standards applied. I also reject the various suggestions thatprosecution witnesses were "city people" and so did not understand life in the"country."[214] This case involved minimum standards of hygiene, health and care ofdogs which must be the same for any dog in any location, and I consider thewitnesses were well qualified to comment on what they had seen.[28] The evidence of the prosecution witnesses was supported by a large number ofphotographs taken by the SPCA inspectors showing the dogs in the various locationswhere they were found, and including photographs of the injuries observed on Ritza.[29] It is therefore quite clear that the Judge did not fail to examine the evidence ofthe prosecution witnesses and consider whether on the basis of their evidence she wassatisfied that the prosecution had proved each of the charges beyond reasonable doubt.The Judge accepted the evidence of the prosecution witnesses SPCA InspectorsMr Plowright and Ms Davis and of veterinarian Dr Jess Beer, the SPCA's headveterinarian, regarding the condition of the dogs when seen by the SPCA investigatorsduring their visit to the appellants' property on 13 October 2017 when 15 dogs wereseized and on 18 May 2018 when a further six dogs were seized. For the reasons theJudge herself explained, she was entitled to find that the evidence of the prosecutionwitnesses was such as to satisfy her beyond reasonable doubt that the prosecution hadproved its case on each of the charges in respect of which she returned verdicts ofguilty.[30] The proper approach to be taken by an appellate court when considering anappeal where a trial judge's credibility findings are challenged, was explained by theSupreme Court in Sena v R. The Court observed:19[38] If an appellate court comes to a different view on the evidence, thetrial judge necessarily will have erred and the appeal must be allowed. But,19 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 (footnotes omitted).to the extent that [counsel] was suggesting that the role of an appellate courtis to consider the issues de novo as if there had been no hearing at firstinstance, then we do not agree. Since it is an appeal, it is for the appellant toshow that an error has been made. Further, in assessing whether there hasbeen an error, an appellate court must take into account any advantages a trialjudge may have had. Because of this, where the challenge is to credibilityfindings based on contested oral evidence, an appellate court will exercise"customary caution". There are two main reasons for this.[39] The first is that a slow-paced trial, at which the evidence emergesgradually, provides a good opportunity for evaluating the strengths andweaknesses of a case. In assessing the plausibility of what is said by thewitnesses, the judge has the advantage of being also able to form a view as towhat sort of people they are. This is an appreciable consideration despite thenow well-recognised difficulties with demeanour-based credibilityassessments.[40] The second consideration, in effect the other side of the coin to thefirst, is that appellate judges dealing with a case on the basis of a written recordof what happened at trial and the submissions of counsel are unlikely to be aswell-placed as a trial judge to determine contested questions of fact based oncontested oral evidence. For instance, what a witness means may beconveyed, at least in part, by gesture or intonation, something which will notbe apparent on the written record. More generally, the appellate process inwhich appellate judges are taken, sometimes rather selectively, to the aspectsof the evidence on which counsel rely does not replicate the advantages of atrial judge which we have just described.[31] Here, the appellants have failed to demonstrate that the Judge erred in hercredibility assessments of the prosecution witnesses and Ms Wallace. I am satisfiedthat the prosecution evidence which the Judge accepted to be credible and reliable,provides a comprehensive and compelling basis for the Judge's evidential findings andfor her verdicts. I accordingly find that the appellants have failed to demonstrate thatthe Judge erred in reaching guilty verdicts on the 32 charges for which convictionswere entered for both appellants, and I shall dismiss their appeal against theirconvictions.Sentence appeal[32] As I have noted, the appellants appeal against their sentences, and in particularthe nine year disqualification from owning or exercising control over any dogs.Mr Gardiner says that having regard to the Judge's factual findings and verdicts, thesentences imposed on the appellants of 12 months' intensive supervision and300 hours community work in the case of Ms Wallace, and eight months' supervisionin the case of Mrs Glover, appear justified.[33] Mr Gardiner submits that the Judge erred in relation to the length of thedisqualification order. In relation to Mrs Glover, Mr Gardiner notes that she has noprevious convictions and has had a lifetime of involvement with successfully breedingand showing German Shepherds. Counsel notes that in her sentencing remarks theJudge observed that:20.it is important for me to record that this is not a case of deliberate violenceor abuse of animals, this is a case of neglect and failing to care for sickanimals. It is a bad case of neglect, in my view.[34] Mr Gardiner says that the disqualification period imposed by the Judge is toosevere, and he notes that this is not a case where the seized dogs were found to haveuntreated medical conditions. He says with the exception of the dog Ritza, Ms Wallaceprovided explanations in relation to the ear infections and skin conditions observed,and says that where they were found to be present they were not untreated asMs Wallace was able to treat them with medication obtained from a medical doctor'spractice. Mr Gardiner says that the prosecution failed to produce any evidence to showMs Wallace had not provided the treatment she said she had, or to show that themedication she had available to her to use would not be effective. He submits that theJudge adopted an unduly severe approach to the issue of disqualification, and in anyevent failed to distinguish between Ms Wallace and Mrs Glover who althoughimplicated, did not have day to day control over the dogs on the property. He furthersubmits that a disqualification order could be made which limited the number of dogsMrs Glover and Ms Wallace could own or have under their control.[35] As regards the costs order, Mr Gardiner notes that in making the order directingeach of the appellants to pay costs of $20,000, the Judge did not explain the basis onwhich the order was made. Mr Gardiner says it is therefore not clear whether theJudge was relying on s 173 of the Act21 or s 13(3) of the Costs in Criminal CasesAct 1967.[36] He notes that at sentencing the respondent had submitted that $50,000 wouldbe an appropriate total sum and that the respondent had filed a memorandum stating20 Sentencing decision, above n 5, at [4].21 Counsel erroneously cites s 127 of the Animal Welfare Act. Section 173 of the Act contains thepower for the recovery of expenses incurred by a territorial authority and its inspectors.that the respondent's costs of the criminal prosecution of the appellants were $71,250,and that the SPCA costs associated with the investigation exceeded $300,000.22 Healso notes that the court has the power to award costs for legal fees pursuant to theCosts in Criminal Cases Act, and to exceed the scale costs provided for in Schedule 1of the regulations if satisfied that having regard to the special difficulty, complexity,or importance of the case, the payment of greater costs is desirable.23[37] Mr Gardiner says that while the appellants accept that an order for the paymentof expenses can be made under the Act and an order for the payment of legal costs canbe made under the Costs in Criminal Cases Act, in the absence of any explanation bythe Judge as to which provision or provisions she relied on and for what amount, it isnot possible to determine whether the Judge correctly determined the quantum of thecosts ordered. The appellants therefore question the Judge's decision to award costsat the level that she did. Mr Gardiner submits that the appellants were entitled todefend the charges and entitled to the benefit of the presumption of innocence. Hesubmits that having regard to these issues and the appellants' limited financial abilityto pay costs, the costs award should be reviewed and reduced to "a more realisticlevel".[38] In relation to the period of disqualification imposed by the Judge, Mr Radichsays that periods of disqualification in the region of 10 years in cases involvingoffending such as in the present case are not uncommon.24 He says that here there isalso the additional factor of the appellants being completely unrepentant, and thereforepresenting a high risk of re-offending. He notes that the appellants reject any criticismof their standards of animal husbandry. The respondent submits that the Judge did noterr in imposing the nine year disqualification, and could not have been criticised if ithad been for a longer period. Counsel also says that it is relevant that the appellantswere running a commercial operation which involved the selling of dogs forsubstantial sums.22 The amount included veterinary costs, SPCA board costs and other expenses. Mr Gardiner notesthat the court had power pursuant to the Animal Welfare Act to order the payment of expensesincurred by the respondent's investigators.23 Costs In Criminal Cases Act 1967, s 13(3).24 Kondratyeva v R [2015] NZCA 266; and Hiha v Wairarapa SPCA [2014] NZHC 390.The disqualification period[39] In fixing the disqualification period, the Judge explained that she had chosenthe nine-year period having regard to the reservations she had about the appellants'ability to care for animals and their unwillingness to provide the Court with anyreassurance in that regard. The Judge also explained that she did not distinguishbetween the appellants because she considered that Mrs Glover has the same inabilityto care for dogs properly as Ms Wallace, and because Mrs Glover's counsel informedher that in any event Mrs Glover did not own or care for any dogs. The Judge alsoobserved that enforcement would be impossible where the appellants are both livingon the same property, if one of the appellants were to have a different disqualificationperiod than the other.[40] The Judge said:25[61] I consider that a disqualification order is consistent with thepurpose of the Act to ensure that owners and persons in charge attend properlyto welfare. I also consider that a disqualification is warranted given theseriousness of the offending, Ms Wallace's character and previous offendinghistory that I consider demonstrates dishonesty, as did her conduct during thislengthy investigation. There is also now this conduct in asserting that they donot own any dogs, yet there are 30 dogs at the property possibly, it is quitelikely there are more, it is simply impossible to know.[62] It seems staggering to me that having been found guilty of neglectinganimals, there is a sudden ownership change which can only be, in my view,an attempt to avoid the effects of being disqualified.[63] Only a few days ago it was said that these dogs belonged to a companycalled Dogs NZ. Today it is said that it is sister Anne. A couple of weeks agoit was said that Anne does not have anything to do with the dogs' care.[64] I have no evidence that the numbers have been reduced and I wouldnot accept any submission that they have, without evidence in that regard. Thefact that you acknowledge no deficiencies in care is another matter.Mr Gardiner says you have now been in charge of dogs without incident forabout two and a half years but I do not have any comfort that any dogs thatare currently there are being adequately cared for when you are saying thatyou do not own them or care for them.[41] The case of Kondratyeva v R concerned an appeal against sentence on twocharges laid under the Act relating to the offenders' failure to provide appropriate care25 Sentencing decision, above n 5.for 50 cats found living on her property.26 The offender was sentenced to 125 hourscommunity work, 12 months supervision, and disqualified from owning animals for aperiod of 10 years. The 50 cats found on her property were living in conditionsdescribed as filthy and disgusting. The sentence and disqualification period wereupheld on appeal.27[42] Section 169 of the Act relevantly provides:Court may disqualify person from owning or exercising authority inrespect of animals(3) If this section applies in relation to a person, the court may (in additionto or in substitution for any other penalty or order) make an orderdisqualifying that person for any period that it thinks fit from beingthe owner of, or exercising authority over, or being the person incharge of,—(a) an animal or animals of a particular kind or description; or(b) animals generally.(4) In considering whether to make an order under subsection (3), thecourt must have regard to—(a) the purposes of Parts 1 and 2; and(b) the maximum penalty specified for the charge from which theconviction arose; and(c) the seriousness of the offending, including (withoutlimitation) the nature and gravity of the harm, the number ofanimals involved, and the frequency of the offending; and(d) the character of the person; and(e) the previous offending history (if any) of the person; and(f) any other circumstances of the case.[43] Pursuant to s 169(3) the court has the power to disqualify an offender fromowning or exercising authority over an animal or animals for any period that it thinksfit. In deciding whether to make a disqualification order and if so the duration of theorder, the Court must have regard to the matters set out in s 169(4).26 Kondratyeva v R, above n 24.27 At [24]–[26].[44] The purpose of the provisions contained in Part 1 of the Act is to require ownersof animals, and persons in charge of animals, to take all reasonable steps to ensure thatthe physical, health, and behavioural needs of the animals are met in accordance withboth good practice and scientific knowledge, and to require owners of ill or injuredanimals (and persons in charge of such animals) to ensure that the animalsreceive treatment that alleviates any unreasonable or unnecessary pain or distress fromwhich the animals are suffering.28 The purpose of the provisions in Part 2 is theprohibiting certain types of conduct relating to animals. 29[45] As I have noted, the maximum penalty for offending against ss 12(a) and 12(b)of the Act is 12 months' imprisonment or a $50,000 fine or both.[46] Pursuant to s 169(4)(c) the court is also required to have regard to theseriousness of the offending, including the nature and gravity of the harm, the numberof animals involved, and the frequency of the offending. The Judge found theappellants' offending was a bad case of neglect that related to 32 dogs. The Judgefound that the appellants had far too many dogs to be able to care for them properlyand that they did not have proper living conditions, with many living in filth. TheJudge also noted that despite being visited by the SPCA inspectors in mid-2017 andbeing given a statutory notice requiring them to improve the conditions in which thedogs were living and mitigate the dogs' suffering, the appellants did nothing toimprove their dogs' conditions. When the SPCA inspectors returned several monthslater in October 2017 they found that the living conditions for the dogs had not beensignificantly improved, and the number of dogs on the property had not been reduced.Five dogs were voluntarily surrendered and the following day a further 15 dogs wereseized by SPCA inspectors. In May 2018 the SPCA inspectors seized a further sixdogs which they found tied to trees at the back of the appellants' farm. These dogswere all underweight and some had ear infections. One dog was suffering from anobvious skin infection, and some had no access to water. The Judge found that thedogs were found as a result of their barking in distress and it appeared that they hadbeen tied up at the back of the farm in an attempt to hide them from the SPCAinspectors. The Judge also noted that the appellants had never disclosed the true28 Animal Welfare Act, s 9.29 Section 27(b).number of dogs under their care and had transferred ownership of some of their dogsin an attempt to avoid the effects of a disqualification order.[47] Although neither appellant had a history of prior offending under the Act,having regard to: the seriousness of the offending; the appellants' failure to take anyremedial measures following the SPCA's statutory notice; their refusal to accept anyresponsibility for the conditions in which the dogs were being kept; the poor physicalcondition of the dogs; and the appellants taking steps clearly intended to thwart theeffects of a disqualification order, the nine year disqualification period imposed by theJudge was certainly open to her. It is consistent with the 10 year disqualificationimposed in Kondratyeva v R which was upheld on appeal, and where the offendingwas broadly similar to the appellants' and also involved a large number of animals. Inmy view a nine year disqualification is consistent with meeting the purposes of theAct, and protecting animals, specifically in this case German Shepherd dogs, andensuring that their needs are properly met in accordance with good practice.[48] While the nine year disqualification may well mean that Mrs Glover may notbe permitted to own or exercise authority over dogs during her lifetime, I do notconsider that factor demonstrates that the Judge erred in imposing it. Having regardto her extensive experience as a dog breeder, Mrs Glover was obviously well aware ofthe standard of care required of a dog owner and having regard to the large number ofdogs on the property she could not have been in any doubt that they were not beingproperly cared for. As the Judge appropriately observed, although Ms Wallace had amore direct involvement and responsibility for the care of the dogs, both appellantswere equally responsible for the welfare of the dogs, and they were both involved inrunning a commercial operation by breeding and selling dogs. As both Ms Wallaceand Mrs Glover continue to live at the farm property, enforcement disqualificationorders for different periods would be impossible.[49] A judge deciding whether or not to make a disqualification order anddetermining the length of an order involves the exercise of the discretion in s 169(3).An appellant must show that there was an error of law or principle, or that the Judgetook into account irrelevant considerations or failed to take into account relevantconsiderations, or that its decision was plainly wrong, before this Court will interferewith the Judge's decision.30[50] I find that the appellants have failed to show that the Judge erred in relation tothe considerations she took into account or that her decision is plainly wrong. I findthat the Judge did not err by imposing the same period of disqualification onMrs Glover as on Ms Wallace, and I am also not persuaded that the Judge erred byimposing a nine year disqualification order in respect of both appellants.The costs order[51] Pursuant to s 173(1) of the Act all expenses reasonably incurred by inspectorsexercising any of the powers conferred by inter alia ss 133 and 138 of the Act inrelation to the execution of search warrants and the destruction of injured or sickanimals, including the costs of any veterinary treatment reasonably required inrespect of an animal and the costs of destroying an animal, are recoverable fromthe owner or person in charge or appearing to be in charge of the animal.[52] In making the order for costs and directing that each appellant pay costs of$20,000, the Judge noted that the SPCA's legal costs were slightly over $70,000 andthe actual costs incurred were $311,161.63. Although the Judge did not specificallyrefer to s 173(1) of the Act, it is clear that she had the power pursuant to that sectionto make an order requiring the appellants to pay costs to contribute to the expensesincurred by the SPCA in the course of executing the search warrants at their farmincluding the veterinary expenses incurred. The order for costs the Judge made wasaround 13 per cent of the $311,161 sum incurred by the SPCA as expenses, which doesnot include the $70,000 legal costs. It is therefore apparent that the Judge's costs orderwas based on s 173(1) of the Act and that the Costs in Criminal Cases Act was notengaged.[53] I am satisfied that the Judge's order requiring the appellants to pay coststotalling approximately 13 per cent of the actual costs incurred by the SPCA is30 May v May (1982) 1 NZFLR 165 (CA) at 170.reasonable if not generous given that the SPCA was seeking costs totalling $50,000. Iaccordingly reject the appellants' submission that the order for costs was excessive.Result[54] The appeal of both appellants against their convictions are dismissed.[55] The appeal of both appellants against their sentences are dismissed.[56] The appeal of both appellants against the order for costs imposed by the Judgeare dismissed._____________Paul Davison J