CHARTERIS v MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 3321

CHARTERIS v MINISTRY FOR PRIMARY INDUSTRIES [2023] NZHC 3321 [22 November 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2023-441-014[2023] NZHC 3321SIMON JOHN MINSON CHARTERISvMINISTRY FOR PRIMARY INDUSTRIESHearing: 26 September 2023 and 11 October 2023Appearances: E J Forster for AppellantJ D Bridgman for RespondentJudgment: 22 November 2023JUDGMENT OF GRICE J(Appeal against conviction. Interim suppression request)Introduction[1] Mr Simon Charteris operates a specialist farming business involvingaggregating near end-of-life rams from around the country on his property in Hastings.The rams are held for a short period before moving to a meat processing plant,Progressive Meats Ltd (PML) also in Hastings. Mr Charteris' business requirestransportation of the rams to his property, and then on to PML.11 Ministry for Primary Industries v Charteris [2023] NZDC 3883 [Liability Decision] at [1]. Thisappeal was part heard on 26 September 2023 and adjourned to enable the complete District Courtfile to be transferred to the High Court.[2] On 10 March 2023, the Judge found Mr Charteris guilty of three charges unders 23(2)(c) of the Animal Welfare Act 1999 (the AWA); namely, permitting, withoutreasonable excuse, the transport of an animal while the condition or health of thatanimal rendered it unfit to be transported.2[3] On 18 August 2023 the Court sentenced Mr Charteris to pay a $3800.00 fineon the charges. In that decision, The Judge also declined Mr Charteris' application forpermanent name suppression.3[4] Mr Charteris now seeks to appeal his convictions, pursuant to s 229 of theCriminal Procedure Act 2011 (the CPA). Mr Charteris has interim name suppressionpending the outcome of the appeal. He does not seek continued name suppressionbeyond the delivery of the appeal decision, nor does he appeal the sentence.Liability Decision of The Judge[5] The Judge began by setting out a summary of the allegations in relation to eachof the three charges;4(a) Charge one (CRN –037): it was alleged that Mr Charteris, on5 August 2020, permitted a ram, without reasonable excuse, to betransported to PML whilst it was suffering from severe bilateral foreleglameness, meaning the ram was not fit for transport.(b) Charge two (CRN –038): it was alleged that Mr Charteris, on11 November 2020, permitted a ram, without reasonable excuse, to betransported to PML whilst it was suffering from severe lameness on itsright front leg and was non-weight bearing, meaning the ram was unfitfor transport.2 Liability Decision, above n 1; Animal Welfare Act 1999 (AWA), ss 23(2)(c) and 25(a) (maximumpenalty 12 months' imprisonment or fine not exceeding $50,000 or both).3 Ministry for Primary Industries v Charteris [2023] NZDC 12477 [Sentence and SuppressionDecision].4 Liability Decision, above n 1, at [2].(c) Charge three (CRN –039): it was alleged that Mr Charteris, on2 December 2020, permitted a ram, without reasonable excuse, to betransported to PML with a broken and ingrown horn, meaning the ramwas unfit for transport.[6] The Judge then set out the relevant burden and standard of proof. This wasthat the prosecution must prove each of the charges beyond reasonable doubt.5 Healso set out the approach to be taken to the assessment of evidence, explaining that thefact that three of the vets called as witnesses are employed by MPI (Ms Upsher,Ms Huang and Mr Chan), "neither dilutes nor strengthens the evidence they havegiven".6 His Honour noted that"[a]ll witnesses gave evidence in a straightforward,clear and matter of fact manner", and that Mr Marshall (the vet called by the defence)did not challenge the opinions offered by the other witnesses.7[7] The prosecution's case at trial was that the health issues made the rams unfitfor transport. Mr Charteris' case was that this had not been proven by the prosecutionto the requisite standard. As to the alleged injuries. Mr Charteris did not seek to relyon any defences such as reasonable excuse or s 24 of the AWA.8[8] The Judge set out the statutory scheme of the AWA including the requiredelements of the offence. His Honour noted that, if all of the elements of the chargesare proved, Mr Charteris could still escape liability by establishing, on the balance ofprobabilities, a reasonable excuse or the defence in s 24 of the AWA (that aCode of Welfare was in existence at the time of the alleged offence and the minimumstandards were equalled or exceeded).9 The relevant Code of Welfare was theTransport Within New Zealand Code.10 The definition of 'lame' relevant to a sheepwas also set out, as was the guiding regulation regarding transportation of animalswith ingrown or injured horns.11 The law is not disputed on appeal.5 At [3]–[7].6 At [14].7 At [15].8 At [19].9 At [24]–[29]; AWA, ss 23(1), 24(2) and 168A.10 At [28]; Code of Welfare: Transport Within New Zealand Code 2018 (see below).11 At [32]; in accordance with regs 38, 39 and 40 of the Animal Welfare (Care and Procedures)Regulations 2018, set out below.[9] The Judge then considered whether the rams were unfit to be transported onthe relevant dates.[10] In relation to charge one, the Judge accepted the evidence of Mr Chan that theram was lame at the time that it was loaded for transportation to PML. Mr Chan wasbased at PML and he was required to conduct ante mortem inspections of theanimals.12 Mr Chan noted that the relevant ram was lame in that it was lying down,as opposed to running around like the others.13 The ram was then examined (both anteand post mortem) and photographed, and Mr Chan concluded that the ram was lamein both its forelegs. It was common ground that the ram had an underlying disease,14Mr Chan noted that the hoof on the right leg of the animal was detached and there wasan overgrown hoof on the left foreleg.15 This would have caused the animaldiscomfort or pain.16[11] For the defence, Mr Charteris gave evidence that he did not see a lame ramwhen loading the rams for transportation. Mr Charteris had walked the rams 1.64 kmsfrom their paddock to the stockyards where the rams were loaded for transportation toPML.17 Mr Marshall provided expert evidence for the defence and said, indisagreement with Mr Chan, that the injury could have been fresh. This was based onMr Marshall's evidence referencing some fresh blood being transferred from thewound to the pen's concrete floor, and the absence of contamination of the woundfrom grass or dirt that might be expected had the ram walked over farm ground.18Mr Marshall had formed this view by reading and hearing the evidence of the othervets, and the photographic evidence.19[12] In considering the evidence in relation to charge one, the Judge said at [49]:It is important at this point to note that I have formed the view that whenconsidering the evidence of the MPI veterinarians against the evidence ofMr Marshall, the evidence of the MPI veterinarians should be preferred. The12 At [37].13 At [38].14 At [44].15 At [40].16 At [41].17 At [43].18 At [45].19 At [50].reason for this is that each of the MPI veterinarians personally inspected theram in question. Mr Marshall did not have that opportunity.[13] His Honour also noted that the severity of the lameness is immaterial. Whatwas required was that the ram met the regulatory definition of 'lame', if so, theminimum standard for transportation had not been met.20 Mr Charteris did not seekto rely on any reasonable excuse or affirmative defence, so the strict liability nature ofthe relevant charges meant the above was enough to find Mr Charteris guilty on chargeone.21[14] Regarding the second charge, evidence for the prosecution was given byMs Upsher, who had the same job as Mr Chan.22 Ms Upsher gave evidence that on11 November 2020, she inspected a mob of rams (about 10 minutes after their arrival)and noted the relevant ram for this charge as being severely lame and non-weightbearing in the right front limb. The ram also had an odd gait and kept its head down.Ms Upsher then photographed the ram. She formed the opinion that the ram had anarthritic joint, with swelling that would have been developing for a number of weeks,and that the ram was unfit for transport. She believed that the ram would not havebeen weight bearing at the time of loading.23[15] On this, Mr Marshall did not provide extensive comment. He had beenprovided with the photographic evidence and said that although the ram was"obviously" lame, an in-depth examination or further testing would be required to beable to determine what actually led to the swelling.24 Mr Forster's submission wasthat, in any case, the arthritic condition could have taken a few weeks to develop, andthe resultant swelling is not synonymous with lameness. He said that the conditioncould have been exacerbated by a recent blow which would have made it appear muchworse than when loaded.25[16] Once again, the Judge accepted the evidence of Ms Upsher that the ram had anarthritic joint, but that there was no evidence that the ram suffered an acute injury20 At [51]; reg 40 of the Animal Welfare (Care and Procedures) Regulations 2018.21 At [54].22 At [56].23 At [57]–[61].24 At [62].25 At [64].during transportation or some other time prior to inspection. Mr Charteris wasaccordingly found guilty on this charge.26[17] Turning to the final charge, Ms Huang gave evidence. She was working atPML checking animals before slaughter at the relevant time. The animals arrived atPML on 2 December 2020 but were not checked until 3 December 2020.27Ms Huang's evidence was that on the inspection of the ram, she could see the horngrowing from the top of the head and going downwards, noting a split to the horn andthe inflamed skin from the ingrown horn. She said that she could not see the end ofthe horn because it was growing into the skin above the ram's eye.28[18] Mr Forster cross-examined Ms Huang on whether the crack in the horn couldhave occurred in the 22 hours that the ram was in the yard at PML. Ms Huang wassceptical about this. She said that while she could not exclude the possibility that tworams had a fight, her experience in the ram yards were that the animals were stationarymost of the time.29 She formed the view that because there was not that much bloodwhich would be expected from an injury of this kind—with the blood being onlyaround the injury site, and not in the pen or on other animals—the injury would haveoccurred on the farm.30[19] Mr Marshall said he required more information, which was unavailable.[20] The Judge concluded that:[82] What I am left with then is the evidence of Ms Huang and her opinion.Her opinion is that the crack/split injury to the horn was caused at the farmand was therefore present prior to the ram being transported.[83] Even if this is incorrect and that the ram's horn was cracked during anunknown incident in the pens at PML, it is most unlikely that such injurywould have caused the tip of the horn to pierce the skin to the degree that ithas. Ms Huang could not see a gap between the ram's head and the horn. Therewas pink inflammation at the skin margin, the area immediately around wherethe horn met the skin. The other surrounding skin was dark. Clearly the skinwas disturbed, and the tip was growing into the ram's head. It is most26 At [69].27 At [74].28 At [76].29 At [79].30 At [80].improbable that this injury could have been caused after the ram wastransported.[84] Having considered the evidence I have formed the view that theprosecution has proved its case beyond reasonable doubt. I am satisfied thatthe ram's horn was cracked/split and the ram's horn was ingrown. The ramwas not fit for transport.[21] Accordingly, Mr Charteris was found guilty on the third charge as well as thefirst two.Grounds of appeal[22] Mr Charteris advances the following grounds of appeal:(a) on all charges, the learned Judge erred in misapplying the correct onusand standard of proof;(b) on all charges, the learned Judge failed to identify the critical issue(whether there was a reasonable possibility that the rams became lameor injured after transportation); and(c) on charge one, the learned Judge erred in making a broad conclusorycredibility preference in preferring the prosecution's vet evidence overthat of the defence vet's evidence.Approach on appealConviction appeal[23] The Court must allow an appeal against a decision of a judge in a judge-alonetrial if the Court is satisfied that the judge erred in their assessment of the evidence tosuch an extent that a miscarriage of justice has occurred, or a miscarriage of justicehas occurred for any reason.31 The Court must dismiss the appeal in any other case.[24] A miscarriage of justice is any error, irregularity, or occurrence in relation toor affecting the trial that has created a real risk the outcome of the trial was affected31 Criminal Procedure Act 2011 (CPA), ss 232(2)(b)–(c).or has resulted in an unfair trial or a trial that was a nullity.32 A miscarriage of justiceis "more than an inconsequential or immaterial mistake or irregularity".33 A trial willbe unfair if an error or irregularity departs from good practice in a manner that is "sogross, or so persistent, or so prejudicial, or so irremediable" that an appellate Courtmust condemn the trial as unfair and quash the decision..34[25] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".35 The appellant does not have to establish that the verdictwas "actually unsafe" but rather that there is a real possibility the verdict would beunsafe.36 To establish a "real risk" that the outcome was affected, "something more"than a simple disagreement with a judge's factual assessment is required.37[26] Appeals are conducted by way of rehearing.38 If this Court comes to a differentview on the evidence, the trial judge will necessarily have erred, and the appeal mustbe allowed. However, the appellate court is not to consider the issues de novo. It isfor the appellant to show that an error has been made, taking into account theadvantages a trial judge may have had in assessing the evidence. Where the challengeon appeal is to credibility findings based on contested oral evidence, an appellate courtwill exercise 'customary' caution in overturning the judge's credibility findings.39Applicable Code of Welfare and minimum standards[27] The Code of Welfare for animal transportation is the 'Transport Within NewZealand' code.40 Minimum Standard No. 6 of this Code provides as follows:Minimum Standard No. 6 – Selecting and Accepting Animals for Transport32 CPA, s 232(4).33 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].34 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002]UKPC 19, [2002] 1 WLR 2237 at [28].35 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].36 R v Sungsuwan, above n 35, at [110].37 Gotty v R [2017] NZCA 528 at [15].38 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [32].39 Sena v R, above n 38, at [38].40 Code of Welfare: Transport Within New Zealand Code 2018.(a) Proper care must be taken when deciding whether it is appropriate to transportyoung, old, pregnant or otherwise physiologically or behaviourallycompromised animals.(b) Animals must not be transported if they are likely to give birth during thejourney or be affected by metabolic complications of late pregnancy as a resultof the journey.(c) Animals must not be transported unless they are fit enough to withstand theentire journey without suffering unreasonable or unnecessary pain or distress.(d) Animals to be transported must be able to stand and to bear weight on alllimbs.(da) Lame cattle, deer, pigs, sheep, and goats must not be transported, except asallowed by regulation 40 of the Animal Welfare (Care and Procedures)Regulations 2018.(e) An animal with horns or antlers must not be transported in a manner thatallows the animal to seriously injure itself or another animal.(f) Animals with a bleeding, discharging, or broken (and unhealed) velvet antler,horn, or pedicle must not be transported, except as allowed by regulation 39of the Animal Welfare (Care and Procedures) Regulations 2018.(fa) Animals must not be transported within seven days of being castrated orhaving their tail docked.(g) Animals must not be transported if they display any injuries, signs of disease,abnormal behaviour or physical abnormalities that could compromise theirwelfare during the journey, unless a veterinary declaration of fitness fortransport has been completed.[28] Regulation 40 of the Animal Welfare (Care and Procedures) Regulations 2018(the AWCPR), referred to in Minimum Standard No. 6(da) above, is as follows:40 Restrictions on transporting lame animals(1) The owner of, and every person in charge of, a cattle beast, sheep,deer, pig, or goat that is lame must not transport the animal, or allowthe animal to be transported, unless—(a) the animal is accompanied by a veterinary certificate thatstates that the animal is fit for transport; or(b) the animal is accompanied by a veterinary certificate thatspecifies conditions that must be complied with to manage theanimal welfare risks associated with the transport and theowner or person in charge complies with all relevantconditions.(5) In this regulation,—(c) a sheep or goat is lame if—(i) the animal is not weight bearing on 1 or more limbswhen moving or standing; or(ii) the animal has difficulty walking and holds its headbelow its backline almost continuously.[29] Restrictions on transporting animals with ingrown or injured horns is also setout in regs 38 and 39 of the AWCPR:38 Restrictions on transporting animals with ingrown horns(1) This regulation applies in respect of an animal with an ingrown hornthat involves part of the horn (other than the base of the horn) piercingor inflaming any part of the animal's body or causing a skin abrasion.(2) The owner of, and every person in charge of, an animal in respect ofwhich this regulation applies must not transport the animal, or allowthe animal to be transported, unless—(a) the animal is accompanied by a veterinary certificate thatstates that the animal is fit for transport; or(b) the animal is accompanied by a veterinary certificate thatspecifies conditions that must be complied with to manage theanimal welfare risks associated with the transport and theowner, or person in charge, complies with all relevantconditions.39 Restrictions on transporting animals with injured horns orantlers(1) This regulation—(a) applies in respect of an animal with a bleeding, discharging,or broken (and unhealed) velvet antler, horn, or pedicle; but(b) does not apply in respect of a deer if the bleeding or dischargeis a result of the deer naturally casting its antlers.(2) The owner of, and every person in charge of, an animal in respect ofwhich this regulation applies must not transport the animal, or allowthe animal to be transported, unless—(a) the animal is accompanied by a veterinary certificate thatstates that the animal is fit for transport; or(b) the animal is accompanied by a veterinary certificate thatspecifies conditions that must be complied with to manage theanimal welfare risks associated with the transport and theowner, or person in charge, complies with all relevantconditions; Positions of the partiesMr Charteris[30] On charge one, Mr Forster submits that there were three errors; themisapplication of the onus and standard of proof, a failure to identify the critical issueof whether the injuries could have occurred after transportation, and the making of aconclusory credibility preference between the expert vets' evidence. Mr Forstersubmits that the prosecution has not been able to prove beyond reasonable doubt thatthe ram was lame when it was loaded for transport to PML, and there is a reasonablepossibility it only became lame after loading.[31] Regarding the misapplication of the onus and standard of proof, Mr Forstertakes issue with the emphasised elements of the following passage from the Judge'sLiability Decision:41[52] Mr Forster has suggested that the ram's injury may have occurredduring transportation, suggesting that the injury could have been caused byanother ram or on a part of the plant at PML. There is no evidence, however,supporting that submission.[53] Mr Charteris said he did not observe any lame ram when he loadedthe rams onto the transport. Even if I accept that evidence, it proves only thatMr Charteris did not see any lame ram but is not conclusive of whether theram was lame. The lame ram may have been there to be seen but was simplynot observed by Mr Charteris.[54] I prefer the evidence of Mr Chan which was based on his examinationof the lame ram, that in his opinion, the ram was lame at the time when it wasloaded for transportation to PML. From a strict liability perspective, that issufficient. It is reasonable to accept that the condition of the ram on inspectionis deemed to be the condition on the loading of the animal for transportation.This is consistent with strict liability creating a rebuttable presumption. Thedefendant does not seek to rely on reasonable excuse or any affirmativedefence.41 Above n 1.[32] Mr Forster submits that this passage shows the Judge was incorrectly applyinga rebuttable presumption that the ram was in the same condition when loaded as it waswhen later inspected at PML, and therefore shifting an evidential onus onto thedefendant to rebut this 'presumption'. He says this is inconsistent with the Judge'sown discussion regarding the standard of proof to be applied at [3]–[7] of thejudgment.42 Mr Forster argues that the absence of information about whether theinjury occurred after transportation does not mean that it did not occur at all (he callsthis the 'absence of evidence fallacy'). He notes that it is unlikely anyone would havebeen able to see an injury occurring in the back of a stock truck trailer anyway, andthe evidence of Mr Marshall supports a finding that the ram was not lame when loadedfor transportation.[33] This led to the second error, according to Mr Forster's submissions. This wasthat the Judge failed to identify whether it was a reasonable possibility the ram onlybecame lame after it was loaded. Mr Forster also submits that, without an explanationas to why Mr Marshall's opportunity for observation was inhibited by not seeing theram live, his Honour fell into error by in preferring in a broad conclusory approachMr Chan's evidence. He says that the reasoning applied by the Court, taken to itsnatural conclusion, allows the Court to prefer the live examination of any case over asubsequent forensic examination, regardless of the merits of each opinion.Accordingly, Mr Forster submits that had the correct reasoning been applied, the Courtcould have concluded that there was a reasonable possibility the ram became lameafter loading for transportation and therefore the conviction should be overturned.[34] Turning to the second charge, Mr Forster submits that there were the sameerrors as above in that the Judge misapplied the onus and standard of proof, and madethe related failure to identify the critical issue. Mr Forster submits that these errorsare apparent in the following passage from the Liability Decision:43[66] I accept the evidence of both Ms Upsher and Mr Marshall that at thetime Ms Upsher inspected the ram, about 10 minutes after it arrived at PML,the ram was lame. This raises the rebuttable presumption that the ram waslame when it was loaded for transportation. The defence does not seek to rebutthis presumption.42 Liability Decision, above n 1.43 Liability Decision, above n 1 (emphasis added).[67] I accept Ms Upsher's evidence that the ram had an arthritic joint, withswelling which had developed over a few weeks.[68] There is no evidence that the ram suffered an acute injury duringtransportation or at some other time prior to inspection.[69] I accept that the ram was lame and not fit for transport. Accordingly,Mr Charteris is found guilty on this charge.[35] Mr Forster says that the Judge again incorrectly applied a presumption that theram was lame when loaded at [66], and wrongly required Mr Charteris to rebut this.He says that a failure to address whether the ram could have been injured duringtransportation suffers from the same 'absence of evidence fallacy', which is illustratedat [68]. Mr Forster says that this means there was a reasonable possibility the rambecame lame after loading and the conviction should be overturned.[36] The same two errors were raised in respect of charge three. Mr Forster alsocriticises Ms Huang's examination; in that she could not get too close to the ram forsafety reasons and so a single, zoomed photograph was relied upon for the observation.He also notes that no histology of the horn and skin was undertaken, and Mr Marshall'sevidence supports the conclusion that, without this histology (and a range of otherexaminations), it was not possible to provide an opinion about the recency of the hornbreak or whether it was ingrown.[37] Mr Forster says that, although the Judge did not expressly state that he wasapplying a reverse onus, the conclusion that it was improbable the injury could havebeen caused after the ram was transported must be looked at in the context of the twoearlier decisions. He notes also that Ms Huang herself said she could not exclude thepossibility that two rams had had a fight while at PML, and that although she thoughtthe injury would have occurred prior to the animal arriving at PML, she could not givea definitive answer.44 Again, Mr Forster says this misapplication meant that the issueof whether it was a reasonable possibility that the ram suffered a broken or ingrownhorn after loading was never assessed.[38] On this, Mr Forster submits that there is a reasonable doubt that the issues withthe ram's horn were apparent prior to loading. He points to Ms Huang's acceptance44 Set out at [79]–[80] of the Liability Decision, above n 1..in cross-examination that a ram's horn could break in seconds, and despite stating thatshe did not believe the split happened the day of her inspection, she did not try to datethe inflammation of the sheep's skin and agreed that the aging of the split could havebeen less than 48 hours. Mr Forster further argues that Ms Huang discounted that thehorn could have been broken in transportation because the trip was short, but she didnot consider other factors such as terrain on the journey or whether the rams had beentightly packed. He says that it is notable that the ram's broken/ingrown horn was notidentified until the second day at PML.[39] Further, Mr Foster says that the timing of the crack in the ram's horn couldwell have been when it was in the yard as it was actually there for a day before theMPI vet, Ms Huang, examined it. He points to exhibit B produced at the hearing whichis a diagram of the yard bearing the initials of the vet with a time of "5.35am" and dateof 3 December 2022 entered. This is a day later or 22 hours after the ram had arrivedat the PML yard. The Judge had referred to the checking being done by Ms Huang on2 December.45 Mr Foster says the Judge's reasoning was therefore conclusory inpreferring the evidence of Ms Huan.[40] Mr Forster developed his argument in relation to this charge further in oralargument. He said having read the submissions of the respondent he had changed hisfocus in relation to the third charge. He said that while the Judge correctly referred tothe standard of proof as beyond reasonable doubt,46 a nuanced reading of the judgmentindicates that the Judge did not apply that standard.[41] Mr Forster says that while the Judge did not refer to the "rebuttablepresumption" as he did in relation to the earlier two charges one cannot be confidentthat he in fact had approached the proof in the same erroneous manner. Mr Forstersubmits that the prosecution cannot prove the injuries were present at the point ofloading for transportation and charge three should also be dismissed.45 Liability Decision, above n 1, at [71].46 Liability Decision, above n 1, at [85].The Ministry for Primary Industries[42] Starting with charge one, Mr Bridgman submits that his Honour did notmisapply the onus of proof. He acknowledged that the reference to a "rebuttablepresumption" is incorrect, this was simply a phrase used by the Judge to summarisehis reasoning. Mr Bridgman says that, having regard to the case in its entirety, theonus was not misapplied. He says that the judge addressed the requisite issues, andalthough his wording may have been incorrect, there was no fundamental error and amiscarriage of justice had not occurred.[43] Mr Bridgman does not accept that the Judge exhibited any kind of evidentialfallacy. Rather, he says that the relevant comments made by the Judge meant that therewas no evidence in support of the submission that the rams became lame after loading.Mr Bridgman also says that the Judge did not make any kind of "conclusory credibilitypreference". He submits that the Judge did not make a finding as to credibility, butrather a finding of accuracy. Mr Bridgman submits that the judge gave reasons wereas to why he preferred Mr Chan's evidence. This was because Mr Chan was able touse all his senses when he had examined the ram in person. This was in comparisonwith Mr Marshall's assessment on the photos and documents. The submission wasthat this was exactly the type of analysis of witnesses that the trial Judge is best placedto assess.[44] Turning to charge two, Mr Bridgman again denies a misapplication of the onusof proof, for the reasons given above. Again, Mr Bridgman says that the evidencebefore the Judge was sufficient for a finding that the lameness was due to a chroniccondition which could not have been developed in the short journey. The critical issueof when lameness developed was therefore addressed and no miscarriage has occurred.[45] Mr Bridgman puts forward similar submissions in relation to charge three.Once again, Mr Bridgman says that the Judge correctly considered all of the evidencebefore him and did not misapply the onus of proof in any way. He says that the Judgereached the only reasonable conclusion on the evidence—being that the ingrown hornwas not an acute condition—and that sufficient reasons were provided for this.Discussion[46] If the Judge's reasoning had been that only because the ram was lame when itarrived at PML it must have been lame when loaded on to the truck, and so found thecharge was proved, he would have been in error. However, I accept the submission ofMr Bridgman that, reading the Judge's reasoning in its context, it is clear that he wasnot misapplying the burden of proof or otherwise placing an illegitimate onus onMr Charteris. I agree with Mr Bridgman that the term "rebuttable presumption" issimply a poor choice of words by the Judge.[47] Throughout the judgment, it is clear that the Judge weighed up the evidenceand arguments offered by the parties, and then came to the conclusion that the relevantram was unfit at the time it was loaded and did not become so afterwards. The Judgeused the term "rebuttable presumption" once he had already set out the evidence ofthe parties and made a determination as to which he would prefer. I accept that it isclear that what the Judge meant when using the term "rebuttable presumption" wasthat, once the actus reus had been established beyond reasonable doubt, Mr Charteriscould have relied on any reasonable excuse or affirmative defence. Mr Charteris chosenot to do so. This led the Judge to refer to the presumption (i.e, the actus reus havingbeen established) as not being 'rebutted'. This is evident from the wording of para[54].47 I note as well that the Judge correctly sets out the standards of proof to beapplied at [3]–[7] of the Liability Decision,48 suggesting he was aware and applied thecorrect law in this regard.[48] I do not accept Mr Forster's submission that the Judge failed to identify andaddress a critical issue; being the state of the ram at the time of loading. Again, it isclear that the Judge assessed all of the evidence provided and came to the conclusionthat the rams were unfit for transport at the relevant time, to the requisite standard ofbeyond reasonable doubt. I also accept the submission of Mr Bridgman that the Judgedid not display any kind of illogical or fallacious reasoning in evaluating the evidenceoffered. In context, the Judge's comment that there was "no evidence supportingthat [defence] submission" does not lend itself to, as Mr Forster would have it, the47 Liability Decision, above n 1.48 Above n 1.Judge finding there was no evidence at all offered by the defence in relation to aparticular point or issue. The statement portrays that there was no evidence thatadvanced the point sought to be made. This is a finding that was open for the Judgeto have made.[49] I also accept Mr Bridgman's submission that the Judge did not make sweepingor conclusory credibility preferences in relation to the witnesses. The Judge did notsuggest that Mr Marshall was not a credible witness, rather, he concluded that theevidence of the prosecution witnesses was more accurate given their ability to observethe rams at the relevant time. I agree with Mr Bridgman that it is a matter of commonsense given the issues in this case as to why first-hand experience evidence may bepreferred. Injuries to animals can be detected by senses such as smell (for example inrelation to charge one, where necrotic flesh regarding a degloved hoof would be ableto be smelt). I do not accept the submission of Mr Forster that taking this propositionto its natural conclusion means that in-person evidence will always be preferred.Generally, the evaluation of evidence requires more than simply assessing whethersomeone viewed an event first-hand. It requires assessments of credibility,consistency, and reliability, and there is nothing to suggest that the Judge did not takethese considerations into account when evaluating the expert evidence. I agree withMr Bridgman that the customary caution normally observed by appellate courts whenconsidering credibility findings on contested oral evidence must also be applied here.[50] As to charge one, the Judge made no error in his conclusions based on theevidence of Mr Marshall, Mr Charteris and Mr Chan. There was common ground thatthere was underlying disease in relation to the ram that would have developed overtime. Mr Chan's evidence was that an otherwise healthy hoof would not havedegloved in this way. The ram also had other health issues which would have alsocontributed to a finding that it was unfit for transport (such as a cavity under the hoof,an overgrown hoof and a swollen carpal joint). On the disagreement as to the'freshness' of the injury, it was open to the Judge to find that there was limitedevidence supporting a submission that any 'degloving' occurred on PML premises. Ialso accept Mr Bridgman's submission that the 'degree of lameness' does not have abearing on whether the ram is unfit for transport; the only requirement is that it meetthe definition of 'lame'. On the evidence, it was open for the Judge to find that theram was unfit for loading at the time of transport and hold charge one proved beyondreasonable doubt.[51] In regard to charge two, based on the evidence of Mr Marshall and Ms Upsherthere is no reasonable possibility that a different verdict could have been reached.Mr Marshall's evidence was that the condition of the ram was likely chronic, andalthough acute trauma or an unfamiliar surface may have exacerbated the condition,and further information was required to make such a finding. Ms Upsher's evidencealso suggested that there was no obvious skin injury, and that it was likely that theswelling occurred over a period of weeks as a result of arthritis, the evidence taken inthe round suggests that the ram would have been non-weightbearing (and thereforeunfit) at the time of transport.49[52] In regard to the third charge, the evidence of Mr Charteris, Mr Marshall andMs Huang does not allow of a reasonable possibility that a different verdict could havebeen reached. I agree with the Judge that Mr Marshall's expert evidence was notparticularly illuminating on the cracked and ingrown horn suffered by the relevantram. In contrast, Ms Huang's evidence was consistent and convincing. She said thatthe injuries did not seem fresh and were likely present before transport. Although Iacknowledge Mr Forster's point that the rams were held for around 22 hours beforeinspection, Ms Huang's clear evidence was whilst the injury could have been causedby two rams fighting, the absence of fresh blood, lack of injury to other animals andthe extent to which the horn was ingrown suggested the injuries were not a recentoccurrence.[53] For these reasons, there has been no error in the reasoning of the Judge such asto give rise to a miscarriage of justice in this case. Nor did the Judge err in hisassessment of the evidence such as to give rise to a miscarriage of justice.Conclusion[54] Accordingly, the appeal is dismissed.49 In line with the definition at reg 40 of the AWCPR, set out above.____________________Grice JSolicitor:Elvidge & Partners