WALLACE & ANOR v THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS AUCKLAND (SPCA AUCKLAND) [2019] NZHC 1599

WALLACE & ANOR v THE ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALSAUCKLAND (SPCA AUCKLAND) [2019] NZHC 1599 [10 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-2667[2019] NZHC 1599UNDER the Animal Welfare Act 1999IN THE MATTER of an appeal against a Decision of theDistrict CourtBETWEEN JANINE ANN WALLACE and BARBARAGLOVERAppellantsAND THE ROYAL SOCIETY FOR THEPREVENTION OF CRUELTY TOANIMALS AUCKLAND (SPCAAUCKLAND)RespondentHearing: 21 May 2019Appearances: M Ryan for AppellantE T Fletcher and Y H Olsen for RespondentJudgment: 10 July 2019JUDGMENT OF WALKER JThis judgment was delivered by me on 10 July 2019 at 4.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction[1] This is an appeal from a decision of Judge McGuire in the District Courtdeclining an application to stay or adjourn proceedings for disposal orders under theAnimal Welfare Act 1999 (the Act). The appellants, Ms Wallace and Ms Glover,contend that a stay or adjournment pending resolution of related criminal proceedingsis necessary to avoid impinging fair trial rights. Although the application in theDistrict Court was styled as an application for stay, it is common ground that it was,in effect, an adjournment application.1Approach to this appeal[2] The refusal to adjourn the disposal order proceeding was an exercise ofdiscretion. Ms Wallace and Ms Glover must therefore persuade me that there was anerror of law or principle or the Judge took into account irrelevant considerations, failedto take into account a relevant consideration or was plainly wrong.2 The suggestederror relied on by Ms Wallace and Ms Glover is characterised as the finding that s136Aof the Act was a justified limitation on their fair trial rights.Background[3] The respondent, the Royal New Zealand Society for the Prevention of Crueltyto Animals (the SPCA), is an approved organisation under the Act and responsible forprosecutions. On 18 May 2018, the SPCA seized six German Shepherd dogs from aproperty of Ms Wallace and her mother, Ms Glover. On 23 August 2018, the SPCAfiled a Notice of Application for Disposal Orders under the Act. The application seeksauthority to sell, rehome or, as a last resort, euthanise the dogs. In the event the dogsare sold, the proceeds of sale are to be held by theSPCA after deduction of the cost of care and sale and the balance paid to the owners.[4] Ms Wallace and Ms Glover filed a notice of opposition contending that theyhad not failed to meet their obligations as owners and the dogs were in excellent health.Ms Wallace made a supporting affidavit. Mr Ryan, counsel for Ms Wallace and1 The relief sought in the Notice of Appeal dated 28 November 2018 is adjournment pendingdetermination of the criminal charges.2 K v B [2010] NZSC 112; [2011] 2 NZLR 1.Ms Glover, characterises this affidavit as deliberately pithy because of the shadow ofpotential criminal proceedings.[5] On 2 November 2018, the SPCA laid criminal charges against Ms Wallace andMs Glover for animal welfare offences under the Act. These included charges relatingto the six German Shepherds, but also charges relating to other dogs not the subject ofthis appeal. The SPCA also filed a notice to cross-examine Ms Wallace.[6] A hearing date of 28 November 2018 was allocated. On 22 November,Ms Wallace and Ms Glover applied to stay the hearing until conclusion of the criminalcase. The following day, the SPCA filed a memorandum in opposition and withdrewits notice for cross-examination. It withdrew the notice for pragmatic reasons in theinterests of progressing the matter without delay. It also opposed the application onthe broader ground that the very purpose of the disposal order process would bedefeated if disposal order applications had to wait until conclusion of a criminalproceeding.[7] The application for stay was heard as a preliminary argument on 28 November2018. Although dismissed by the District Court, the argument took up all availablehearing time. The practical effect was a de facto adjournment. It is unclear to mewhether, subject to this judgment, the disposal proceeding may still be scheduled tobe heard before the prosecution given an anticipated resolution date in 2020.3Ms Wallace and Ms Glover now appeal the adjournment refusal.Issues[8] Section 136A of the Act reads:4136A Disposal of animals seized or taken into custody prior tocommencement or determination of proceedings(1) This section applies if—(a) 1 or more animals are seized by a constable or an inspector,under the authority of a search warrant issued under section3 The appellants' written submission seeks that the application for disposal order should beadjourned pending determination of the criminal proceedings.4 This citation does not include amendments not yet in force in the Animal Welfare Amendment Act(No. 2) 2015.131, or are taken into possession by an inspector under section127 or a constable under section 137(1); and(b) either—(i) proceedings for an offence involving that animal orthose animals—(A) have been commenced but not yetdetermined; or(B) have not yet been commenced but areintended to be commenced within areasonable period; or(ii) the owner of that animal or those animals cannot belocated.(2) If this section applies, the District Court, on its own motion, or on anapplication by a constable or an inspector, may make an orderauthorising—(a) the sale of the animal or animals; or(b) the placement of the animal or animals with another person;or(c) the destruction or other disposal of the animal or animals; or(d) the dehorning or performance of other surgical procedures onthe animal or animals.(3) The District Court—(a) must, before making an order under subsection (2), give theowner of the animal or animals, if known and able to becontacted, an opportunity to be heard; and(b) may make an order under subsection (2) if it is satisfied thatthere are good reasons for making that order; and(c) may, when making the order, impose conditions (whetherrelating to the payment of any security holder in the animal oranimals or otherwise).(4) In determining whether to make any order referred to in subsection(2), the court must have regard to the following matters:(a) whether the owner of the animal or animals has beenidentified, and if not, the steps that have been taken to identifyand contact that person:(b) the number of animals involved:(c) whether the animal or animals are being kept for economicpurposes or for companionship:(d) the cost of continuing to hold the animal or animals:(e) the physical state of the animal or animals:(f) whether it is reasonable or practicable for the animal oranimals to be placed elsewhere:(g) whether it is reasonable or practicable for the Ministry or anapproved organisation to retain possession of and care for theanimal or animals until the determination of the proceedingsrelating to the animal or animals:(h) whether any person will suffer material or other loss, and theextent of that loss, if the animal or animals are sold:(i) any other matters the court considers relevant.(5) If an animal is sold under the authority of an order under subsection(2)(a), the proceeds of sale (if any) must be held by the Ministry or anapproved organisation (after deducting (in order) the costs of sale, anysums required to be paid to a security holder or any other person undera condition of the order for sale, and any costs incurred by the Crownor approved organisation in caring for the animal or animals orproviding veterinary treatment to that animal or those animals).(6) The Ministry or approved organisation referred to in subsection (5)must, unless the proceeds of sale are forfeited to the Crown undersection 172(1) or the owner of the animal is unknown or cannot becontacted, pay the proceeds of sale to the owner as soon aspracticable—(a) after the determination of the proceedings for an offenceinvolving that animal or those animals; or(b) after a decision is taken not to commence any suchproceedings.[9] Materially for the purposes of this appeal, the Court must give the owner of theanimals an opportunity to be heard before making any order and s 136A(4) sets outmandatory criteria for determining whether to make an order for disposal. The non-hierarchical criteria include:(a) the cost of continuing to hold the animal or animals (s 136A(4)(d));(b) the physical state of the animals (s 136A(4)(e));(c) whether it is reasonable or practicable for the Ministry or an approvedorganisation (such as the SPCA) to retain possession of and care for theanimal or animals until the determination of the proceedings relating tothe animal or animals (s 136A(4)(g)).[10] Most significantly, the disposal procedure is available where the owner of theanimals cannot be located, or if proceedings for an offence involving the animals hasbeen commenced or is intended to be commenced within a reasonable period.5[11] On the plain wording of the text therefore, including that of the mandatorycriteria, the section contemplates a disposal order being made before the determinationof criminal proceedings. The issue is whether there is any error of law in JudgeMcGuire's determination that the civil disposal proceeding need not await the outcomeof the prosecution in order to preserve fair trial rights.Arguments[12] Mr Ryan contends that there is an inherent tension between these provisions inthe Act and the right to a fair trial under s 25(d) and s 27(3) of the New Zealand Billof Rights Act 1990. He relies on the decision of Asher J in Commissioner of Police vBurgess,6 although that case involves the different context of the compulsoryexamination procedure of the Criminal Proceeds (Recovery) Act 2009 (CPRA). Hedraws an analogy between the disposal procedure in the Act and the forfeiture orderregime under the CPRA, because evidence provided by the owner in opposition to adisposal application can be used, without restriction, in the impending criminalproceedings. He maintains that this tension is not moot merely because an affidavithas already been filed and the notice to cross-examine withdrawn.[13] Mr Ryan adds that Ms Wallace wishes to expand her evidence at the hearingas to the value of the bloodlines of the dogs, but fears that doing so will open her upto cross-examination with consequent impact on the criminal prosecution. He notesthat Ms Wallace has not filed any affidavit evidence and suggests that this is becauseof the fair trial issues which are engaged.5 Animal Welfare Act 1999, s 136A(1)(b).6 Commissioner of Police v Burgess [2011] 2 NZLR 703 (HC).[14] Mr Fletcher for the SPCA, submits that the withdrawal of the notice to cross-examine Ms Wallace answers the concern about fair trial rights in the specificcircumstances of this case. In short, because Ms Wallace elected to file an affidavitand because the SPCA withdrew its notice to cross-examine, there is no further impacton the fairness of the criminal proceedings. On the broader point, Mr Fletcher submitsthat the legislature specifically addressed and resolved the tension between thedisposal order procedure and subsequent criminal proceedings, as evidenced by theclear wording in s 136A. He says this approach is supported by the principle that fairtrial rights are not absolute and may be subject to justified limitations, pursuant to s 5New Zealand Bill of Rights Act 1990.[15] Both parties draw assistance from the forfeiture order regime under the CPRA,although they emphasise different elements. The leading case is Commissioner ofPolice v Wei where the Court of Appeal discussed the approach to be taken where civilactions to recover the proceeds of crime overlap with criminal proceedings.7 Similararguments were made in that case, namely that "giving evidence and being cross-examined in the civil matter could assist the police and prosecution in relation to theinvestigation and prosecution of the criminal charges against them."8[16] In the civil forfeiture regime under the CPRA, the Commissioner of Policemust satisfy the Court on the balance of probabilities that the property at issue istainted property in terms of the CPRA. Tainted property is defined as property thathas, wholly or in part, been acquired as a result of significant criminal activity ordirectly or indirectly derived from significant criminal activity.9 In the case of a profitforfeiture order, the Commissioner must satisfy the Court that the respondentunlawfully benefited from significant criminal activity and has an interest inproperty.107 Commissioner of Police v Wei [2012] NZCA 279.8 At [7].9 Criminal Proceeds (Recovery) Act 2009, s 5.10 Criminal Proceeds (Recovery) Act 2009, s 55(1).[17] The Court of Appeal set out several statements of principle in Wei: 11(a) There is nothing in the CPRA that requires priority be given to the civilproceedings over criminal trials;(b) Equally, there is no rule that civil proceedings must be adjourned ifrelated criminal proceedings are pending;(c) Each case is fact specific and calls for a balancing exercise;(d) Where the prosecuting agency is, in effect, the same party as the civilplaintiff, the considerations of entitlement to pursue the civil claimwithout delay are substantially diluted;(e) The CPRA is silent as to Parliament's intention as to which proceedingsshould go first;(f) The purpose of the civil forfeiture regime is to reduce the ability ofcriminals and their associates to continue to expand their criminalenterprise;(g) An essential question is whether waiting for criminal charges to bedetermined before addressing the forfeiture application impedesParliament's legislative intention.[18] In my view, there is likely to be considerable overlap in the evidence and thesubject matter of civil forfeiture applications under the CPRA and the related criminalproceedings. For example, the question of whether the defendant has engaged insignificant criminal activity is also the central issue in the criminal trial. In contrast,a disposal order application in the animal welfare jurisdiction does not present thesame degree of overlap. The mandatory considerations in s 136A(4) do not necessarilyrequire the Court to take a view on the original reasons for uplifting the animals,although it must have regard to any other matters it considers relevant. In this regard,11 Commissioner of Police v Wei [2012] NZCA 279 at [40]-[47].I consider the requirement to take into account the physical state of the animals refersto the state of the animals at the time of determining the application, not, as here, overa year ago when the animals were uplifted.Analysis[19] In my judgment, the most instructive guidance in Commissioner of Police vWei is the following statement:12In our consideration of the appeals, we keep ourselves firmly grounded in thenature of the decision under appeal in each case, namely a decision by a Judgeabout the time at which an application should be heard. This is a discretionarydecision tailored to the facts of each case. It requires the Judge to undertakea balancing exercise, assessing the interests of each party, to reach aconclusion as to where the interests of justice lie.[20] I accept that withdrawal of the notice to cross-examine means that there is nothreat to the fair trial rights of Ms Wallace in the circumstances of this case. If the riskwas a real one, the better course would have been to address this at the time of filingthe opposition. It was not, and Ms Wallace voluntarily filed an affidavit.[21] I also consider that the additional evidence Ms Wallace wishes to adduce aboutthe bloodlines of the dogs is of marginal, if any, relevance to the criminal prosecution.It is however a factor in the disposal proceeding because the mandatory factors in s136A(4) of the Act include whether the animals are being kept for economic purposesor for companionship; and whether any person will suffer material or other loss, andthe extent of that loss, if the animals are sold. It is also relevant that there is noapparent redress for Ms Wallace and Ms Glover in the event the dogs are sold, andtheir bloodlines are lost for breeding purposes.[22] In my view, it is up to the Judge hearing the application to permit furtherevidence by affidavit. Similarly, it is better for the trial Judge to determine whetheradditional oral evidence might be given and limitations, if any, as to cross-examination. These matters are better addressed in a fact specific context rather than12 Commissioner of Police v Wei [2012] NZCA 279 at [40], citing O'Malley v Southern LakesHelicopters Limited HC Christchurch CP513/89; 4 December 1990.trying to extract more generalised principles. I am mindful that appellate courts mustbe sensitive to the practical reality of control of the conduct of proceedings.13[23] There are significant differences between the criminal proceeds jurisdictionand the animal welfare jurisdiction:(a) The prejudicial impact of delay in civil forfeiture proceedings isgenerally slight compared to the impact of delay in the animal welfarecase;(b) Animals require active daily care in the form of behavioural enrichmentand attention, whereas seized property merely requires storage;(c) Animal care costs are significant. The costs for the care of the GermanShepherds is projected to be $170,000 if the prosecution is notconcluded until October 2020. Although these costs are hotly disputed,it is inevitable that there will be substantial costs for feeding, housingand potentially veterinary expenses, without any obvious recoveryavenue for the SPCA in the event of a successful prosecution.14(d) The purpose and policy of the two regimes is obviously very different.While the CPRA is silent as to Parliament's intention as to whichproceedings should go first, s 136A of the Act expressly contemplatesthe determination of disposal proceedings before the conclusion ofrelated offence proceedings.(e) The mischief which s 136A seeks to overcome is the costs for agenciesand the negative impacts for the animals if disposal proceedings had towait for the criminal prosecution to conclude. This befits the purposeof the Act reflected in its long title "to reform the law relating to the13 Commissioner of Police v Wei [2012] NZCA 279 at [6].14 Mr Ryan submits that costs could be recovered by the SPCA at the end of the civil hearing in theDistrict Court. I do not consider that is possible or realistic for a charitable entity to try to recoveractual costs in a separate proceeding. On the other hand, to preserve economic interests, it mustbe practically open to dog owners to meet agreed care costs while the dogs are in custody and thusprovide an alternate basis for staying the disposal proceeding.welfare of animals and the prevention of their ill-treatment; and, inparticular to [among other things], recognise that animals are sentient".[24] Cross-checking with the legislative history of the introduction of s 136Aconfirms the purpose and intent behind the chosen language and supports myconclusion.15 Section 136A of the Act was inserted on 1 October 2012 by s 196 of theSearch and Surveillance Act 2012. Prior to that, a prosecuting authority did not haveany statutory permission to sell, rehome or otherwise dispose of animals whilecriminal offence proceedings were on foot. The practical result of this was theprosecuting authority had to care for any animals seized until the proceedingsconcluded, which conceivably takes months, or even years if there were appeals.16 Ifthe owner was convicted, forfeiture could be obtained under s 172 of the Act. In thecase of acquittal, the animal or animals would be returned to the owner.[25] Mr Ryan submits that the disposal provisions under Part 4(6) of the Search andSurveillance Act 2012 apply to the disposal of the animals in this case and that thereis a degree of inconsistency between the provisions. This submission can be disposedof briefly – the disposal rules in subpart 6 only apply to things seized under specifiedstatutory powers and are subject to any other enactment.Decision[26] It is clear to me that the text and purpose of s 136A supports a disposalapplication being heard before resolution of the related criminal proceedings. Indeed,depending on the circumstances of a particular case, waiting for criminal charges tobe determined before addressing a disposal application may impede the legislativeintention of the legislature by making s136A a redundant provision.[27] Balancing the respective interests of the parties against the framework of s136A of the Act, I conclude therefore that there is no error of law in Judge McGuire'srefusal to grant an adjournment. The appeal is dismissed.15 Neil Wells (ed) Animal Law in New Zealand (online ed, Thomson Reuters) at 15.2; Ministry ofAgriculture and Forestry Departmental Report on the Animal Welfare Amendment Bill 2010 (30March 2010) at 7.16 See Summers v Attorney-General HC Whangarei M53/02, 4 February 2003 at [62].Costs[28] I direct that the appellants are to pay costs of the appeal to the respondent on a2B basis. If costs cannot be resolved by agreement, I direct:(a) The respondent to file a memorandum of no more than 3 pages within21 days;(b) The appellants to file any responsive memorandum of no more than 3pages within a further 14 days;(c) Any reply memorandum to be filed within a further 7 days.[29] In that event, I will deal with the issue of costs on the papers..Walker J