McCARTNEY v CANTERBURY SPCA [2018] NZHC 2624

McCARTNEY v CANTERBURY SPCA [2018] NZHC 2624 [9 October 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-000036[2018] NZHC 2624BETWEEN VICTORIA ANNE McCARTNEY ANDDARRYL LAWRIE McCARTNEYAppellantsAND CANTERBURY SOCIETY FOR THEPREVENTION OF CRUELTY TOANIMALSRespondentHearing: 25 July 2018Appearances: J Shaw and D Pine for the AppellantsB D Vanderkolk for RespondentJudgment: 9 October 2018JUDGMENT OF VENNING JThis judgment was delivered by me on 9 October 2018 at 2.15 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Wynn Williams, ChristchurchBVA, Palmerston NorthIntroduction[1] Victoria and Darryl McCartney live on a lifestyle block at Balcairn north ofChristchurch. They have a number of animals on the property and have, for years, haddomestic pets, especially cats. On 28 June 2016 two of the McCartneys' cats, Michaeland Mary, were uplifted by SPCA officers. When uplifted, Michael was wearing hisjersey and was lying on a cushion in front of the fire in the living room. Mary wasoutside in the sun. Later that day Michael was euthanised.[2] Mrs McCartney was charged with two offences under the Animal Welfare Act1999 (the Act), one each in relation to Michael and Mary. Mr McCartney was chargedwith an offence of obstruction under the Act.[3] Following a four day hearing in the District Court on 11 to 14 December 2017Judge D J L Saunders convicted Mrs McCartney on both charges.1 Mr McCartneywas also convicted on the charge of obstruction. The Judge imposed fines of $1,500on each charge in relation to Mrs McCartney's convictions, together with Court costs.The Judge also made a reparation order in the sum of $4,221.86 in favour of theCanterbury SPCA and an order for witness expenses. Mr McCartney was fined $1,000together with Court costs.[4] Mr and Mrs McCartney have appealed their convictions to this Court.Background[5] When euthanised Michael was 11 years old. Mr and Mrs McCartney had thecare of Michael since he was a kitten. Michael had a number of health issues. In April2015 he was diagnosed with diabetes and was hospitalised for a period between April2015 and July 2015. He was prescribed a glucose testing regime and insulin treatment.At the time Mrs McCartney was made aware of the complexities with the treatmentand was given the option of euthanising Michael. She chose to administer thepalliative treatment, which was quite complex.1 Canterbury SPCA v McCartney [2017] NZDC 29361.[6] Michael's condition did not improve. With hindsight it appears that was aresult of undiagnosed pancreatitis, a condition which results in insulin resistance.[7] On 3 February 2016 Michael was diagnosed with pancreatic cancer by DrRichard Lucy. That remained the diagnosis until the pathologist's report followingMichael's death confirmed that Michael did not in fact have cancer. It had beenmisdiagnosed.[8] Following the diagnosis of cancer, Mrs McCartney booked Michael in at theRangiora Veterinary Centre (RVC) to be euthanised on 25 February 2016 by Dr Jolly.Dr Jolly was the vet the McCartneys generally dealt with and who had treated Michael.Dr Jolly was unavailable on 25 February 2016 and Mrs McCartney and Michael wereseen by Dr Weight. The decision was made not to proceed with euthanasia that day.[9] Dr Jolly saw Mrs McCartney and Michael on at least two further occasions, on6 and 29 April 2016. Then on 22 June 2016 Mrs McCartney took Michael to Dr Lucyagain. The attendance was for Michael to be assessed and for subcutaneous fluids tobe administered as the McCartneys were finding it difficult to administer them at thetime.[10] Dr Lucy assessed Michael as being in very poor condition and recommendedhe be euthanised as soon as possible. Two days later, on 24 June, Dr Lucy spoke on acolleague to colleague basis to Dr Weight at RVC about Michael. Dr Weight thencontacted Mrs McCartney the same day. It was an amicable conversation duringwhich Mrs McCartney agreed that Michael would have to be euthanised. Sherequested a home visit and it was agreed that Michael would be euthanised at theMcCartney's home on Monday, 27 June.[11] On the morning of 27 June 2016 Michael presented as considerably moreambulatory and buoyant than he had been. After going outside to the toilet, he hadcome back in and jumped on the bed. When Mrs McCartney gave him a cuddle heresponded by purring. According to Mr McCartney he was displaying a lot of interestin moving around and seemed in good spirits. Mr McCartney had fed him and givenhim his insulin at breakfast time. Mrs McCartney rang RVC and spoke to thereceptionist. She left a message to the effect she did not want to proceed with theeuthanasia procedure that day but would do so by the end of the week. Dr Weight rangback. Her recollection of the phone call is that she and Mrs McCartney were talkingover each other but she does remember expressing to Mrs McCartney that if she didnot proceed with euthanasia then they would be forced to get animal welfare agenciesinvolved. Unfortunately the communication between them broke down at that stage.The call was terminated. Dr Weight then made contact with an inspector at theCanterbury SPCA, a Ms Walmsley.[12] Ms Walmsley and Ms Cairns, a field inspector from the SPCA went to theMcCartneys' property at Balcairn the same day. There was an unfortunateconfrontation with Mr McCartney at the verandah. He told them, using aggressiveand unnecessarily foul language, to leave the property. They did not. Mrs McCartneythen went inside and brought Michael out for the SPCA officers and allowed them totouch him but not to hold him. Ms Walmsley and Ms Cairns then left the property.[13] The SPCA officers returned the next day on 28 June, accompanied by a policeofficer and with a search warrant. They uplifted Michael and Mary. Mary was upliftedbecause she was observed to have runny eyes and scabs on her ears.[14] Ms McCartney had in the meantime, on the morning of 28 June, arranged forMichael to be euthanised by another vet, Dr Sutorius. The euthanasia was to be carriedout on the evening of 30 June.[15] After Michael was seized, the McCartneys were entitled to a second opinionas to whether euthanasia was required.2 A second opinion was obtained from Dr Elias.Dr Elias examined Michael on 28 June, after Dr Weight had seen him again. He didnot consider euthanasia was immediately necessary but nevertheless recommended itto Mrs McCartney given the circumstances. Mrs McCartney agreed.2 Animal Welfare Act 1999, s 138.The charges[16] Mrs McCartney was charged with ill-treating Michael between 22–27 June2016, in breach of s 29(a) of the Act. The SPCA alleged that she caused Michael tosuffer unreasonable or unnecessary pain or distress by not following veterinary advice.[17] Mrs McCartney was also charged with failing to ensure that Mary receivedtreatment to alleviate unreasonable or unnecessary pain or distress between 30 Mayand 27 June 2016, in breach of s 12(b) of the Act.[18] Mr McCartney was charged with wilfully obstructing or hindering an inspectorin the exercise of her powers, in breach of s 159(1) of the Act.The District Court judgment[19] In relation to the charge involving Michael, Judge Saunders noted that by 22June 2016 the clinically observed position of Michael as related by Dr Lucy was thatthe cat was in a very poor condition and should be euthanised as soon as possible. Heconsidered that advice should have been acted upon.[20] While the Judge accepted that it might have been reasonable for MrsMcCartney to take time to say goodbye he noted Mrs McCartney had taken no stepsto arrange any appointment to have Michael euthanised prior to Dr Weight ringing heron 24 June. The Judge noted from the defence evidence it appeared Mrs McCartneytook the view that on 27 June Michael was happy and coping with trips and showingno sign of pain or distress. The Judge said he was "not convinced" that was thesituation by 27 June and noted the observation of the SPCA inspector who attendedthe McCartneys' property that day. That "brief" assessment was reinforced by theexamination of Dr Weight on 28 June.[21] Judge Saunders dismissed Dr Elias' opinion following his examination ofMichael on 28 June. He considered Dr Elias had failed to give the examination thecare that was required. The Judge preferred the evidence of Dr Weight as to the stateof Michael on the day. In his view:The short point is that both Doctors Lucy and Weight had considered the timehad come to carry out this procedure, whereas Mrs McCartney was still indenial.[22] The Judge also rejected the evidence of Dr Burrough, a veterinary surgeoncalled by the defence.[23] The Judge doubted whether Mrs McCartney would have followed through withthe arrangements she had made with Dr Sutorius.[24] Ultimately the Judge was satisfied that the prosecution established theveterinary advice was properly given and that the opinion of Dr Lucy was clearlyconveyed to Mrs McCartney. He did not accept that, without the intervention of DrWeight, Mrs McCartney would have taken any steps to arrange for euthanasia. On theevidence of Michael's condition by 28 June it was, in his view, a situation wheredeferring termination was causing the animal to suffer unreasonable or unnecessarypain or distress. While that pain may have been alleviated by medication there wasnothing that satisfied him that Mrs McCartney was providing the treatment andmedication at the level which would have been necessary to relieve the pain or distress.The Judge found the charge proved.[25] In relation to Mary the Judge noted that the photos taken of Mary on the dateof seizure disclosed overt signs that called out for treatment. The condition affectingthe eyes was evident. The McCartney's treatment of the condition by bathing the eyeswas insufficient. The lesions on the ear were also very evident. While he acceptedthe fact a tooth needed to be extracted might not have been evident, with regularchecks and assessments it would have been detected. He finally noted the itchinessaround Mary's anal area which appeared to have gone unnoticed and untreated.[26] The Judge was satisfied that any reasonable person who had owned and caredfor cats would have taken more active steps to ensure Mary was assessed and treatedfor the various problems that she had, particularly in relation to her inward-turningeyelid and lesions on the ear and nose. He rejected a defence submission that neitherof the conditions met the statutory standard of causing unreasonable or unnecessarypain or distress. He noted it was a strict liability offence. Ms McCartney sought torely on the statutory defence that she took all reasonable steps to ensure Mary receivedtreatment, but the Judge did not accept she had done so.3. The charge was proved.[27] In relation to the obstruction charge faced by Mr McCartney, the Judge notedthere was a degree of conflict between the evidence of Mr McCartney and MsWalmsley. He found that Mr McCartney's behaviour was far from calm and rational.Mr McCartney had accepted in evidence that, with the benefit of hindsight, he couldhave handled the matter better. The Judge considered that Mr McCartney was notentitled to hinder or obstruct Ms Walmsley's legitimate inquiry about the whereaboutsof the cat. While Mrs McCartney was compliant, that was despite Mr McCartneytelling her not to be.[28] The Judge rejected the defence submission there was an illegal entry into thedwelling. He accepted that Ms Walmsley had stood on the verandah while speakingwith the McCartneys but considered that she had not breached any rights in doing so.The Judge found the obstruction and hindering of the officer occurred before MsWalmsley stepped forward to see Ms McCartney retrieve the cat from the living area.By that time the officers had already been hindered and obstructed in their inquiry.The Judge found the elements of the charge proved.Grounds of appeal[29] The appellants take a number of points on appeal. In relation to the Michaelcharge they can be summarised as:(a) the Judge failed to identify the veterinary advice Mrs McCartney failedto follow;(b) the Judge erred in finding that Mrs McCartney failed to followveterinary advice;3 Animal Welfare Act 1999, s 13(2)(a)(ii).(c) the Judge was wrong in finding that any failure to follow veterinaryadvice caused unreasonable or unnecessary pain or distress during therelevant time frame;(d) the Judge failed to properly consider the statutory defence and was inerror in ultimately rejecting it.[30] Mr Shaw also criticised the way the Judge dismissed the evidence of theveterinary surgeons called by the defence and the other witnesses who gave evidenceas to Michael's condition and behaviour on 27 June.[31] In relation to the Mary charge the appellant submitted the Judge was wrong tofind Mary was suffering from unreasonable or unnecessary pain or distress and infinding that Mrs McCartney failed to ensure Mary received treatment to alleviate anyunnecessary or unreasonable pain or distress. She said he failed to properly considerthe statutory defence.[32] In relation to Mr McCartney's conviction for obstruction, Mr Shaw submittedthe Judge erred in failing to find the SPCA inspector remained unlawfully on theproperty after being required to leave. The Judge erred in finding the SPCA inspectorwas exercising her powers at the relevant time. Finally, he erred in finding theobstruction was wilful.The SPCA response[33] Mr Vanderkolk submitted the Court should be cautious before overturning aconviction where there were two plausible narratives open to the District Court Judge,one of which supported the conviction. While the appellant may disagree with thenarrative the Judge decided to accept, such disagreement did not meet the test ofmiscarriage of justice. He noted the principle that an appeal court would be slow tointerfere with a trial Judge's findings of fact.[34] On the particular grounds of appeal Mr Vanderkolk submitted that it wasinconsistent for the appellant to contend that the elements of the offence had not beenmade out but also to argue Mrs McCartney had satisfied the statutory defence. Thetwo were incompatible.4[35] In relation to the particular matters raised by the appellant Mr Vanderkolksubmitted that the use of the phrase "as soon as possible" by the veterinary surgeonsand their advice as to the need for euthanasia was clear and should have been actedupon. "As soon as possible" effectively meant at the next reasonable opportunity. Hesubmitted it was open for the Judge to find that Mrs McCartney had failed to followveterinary advice when she cancelled the euthanasia procedure on 27 June.[36] While he acknowledged that aspects of the trial Judge's reasoning wassomewhat unclear there was sufficient evidence for him to be sceptical as to whetherthe appellant would have followed through with the euthanasia procedure of her ownaccord.[37] Mr Vanderkolk submitted that the evidence of Doctors Jolly, Weight and Lucyestablished that Michael would have been suffering pain since the diagnoses ofdiabetes and pancreatitis. He submitted that the evidence was that Michael wouldhave been suffering pain for a significant period of time. It was open for the Judge toinfer that Michael was suffering such pain or distress on 27 June 2016.[38] Mr Vanderkolk referred to the evidence of Dr Jolly as to the effect ofpancreatitis and the evidence of Dr Weight about the disease. He submitted that theCourt gave sufficient weight to the evidence of Dr Elias and Dr Burrough and wasentitled to reject their evidence. Dr Burrough had not had the benefit of any clinicalassessment and Dr Elias made only a cursory examination of Michael.[39] Mr Vanderkolk submitted the statutory defence could not succeed as MrsMcCartney took no steps to follow veterinary advice and cancelled the euthanasiaappointment.[40] Finally he submitted the Judge was entitled to reject the evidence of MrsMcCartney, Debbie Olliver, Mr McCartney and Linda McCartney as to their4 Bradshaw v R [2015] NZCA 98, (2015) 27 CRNZ 397 at [27].observations of Michael on 27 June. It was a matter of weight for the Judge to assessthe evidence.[41] On the charge involving Mary, Mr Vanderkolk submitted the criticism the trialJudge failed to take account of Dr Burrough's expert evidence about Mary's conditionwas unfounded. The Judge had previously rejected Dr Burrough's evidence on thebasis the doctor had not had the benefit of actual clinical assessments. While the Judgeaccepted that placing sunscreen on Mary's ears and bathing her eyes with water mayhave addressed the pain and distress to some degree it did not satisfy the requirementfor the statutory defence to take all reasonable steps to ensure that pain or distress wasnot suffered. The condition prevailed and veterinary treatment was required.[42] In the case of Mr McCartney's conviction for obstruction Mr Vanderkolksubmitted that the definition for dwellinghouse found in Rose v Police and Police vO'Byrne5 as relied on by the appellant was not applicable and that instead, assistancecould be gained from references to the unlawful entry of dwellings in cases under theSentencing Act 2002.6 He submitted it would be impracticable to define the"dwelling" as "including the path up to the residence" and that the definition of"dwelling" in the Act did not include the immediate land surrounding the dwelling.The inspector was lawfully exercising her inspection powers under s 127(1) of the Actwhen Mr McCartney obstructed and hindered her. It was clearly wilful. Alternativelyhe submitted that Ms Walmsley could rely on an implied licence which MrsMcCartney had effectively extended by constructively engaging with the Inspector.The approach to the appeals against conviction[43] As a first appeal against conviction s 232 of the Criminal Procedure Act 2011applies:232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.5 Rose v Police HC Wellington AP112/91, 27 August 1991; and New Zealand Police v O'Byrne DCChristchurch CRN-12009003074, 5 November 2012.6 Pahau v R [2011] NZCA 147.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellantpleaded guilty.[44] The factual findings that form a basis of the verdict reached by a Judge sittingalone are to be treated on the appeal as the equivalent of a jury verdict.7 Deference isrequired to those factual findings and to the advantages enjoyed by the Judge as a factfinder without abdicating the review function performed by the appellate court.[45] The Court must consider whether there were errors, irregularities oroccurrences affecting the trial or verdicts, and whether the error, irregularity oroccurrence created a real risk the outcome of the trial was affected or that resulted inan unfair trial.8 In relation to s 232(4)(a) a real risk arises if there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered butfor the error, irregularity or occurrence, irrelevant considerations for present purposes.Preliminary matter[46] Mr Vanderkolk cited the case of Bradshaw v R to support his proposition thatit was not open for Mrs McCartney to simultaneously contend the elements of the7 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].8 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.offence had not been made out and to raise the statutory defence.9 Bradshaw v Rconcerned an appeal against conviction on a charge of male assaults female. Thedefence at trial was that the defendant did not hit the complainant. The Court foundthat a defence of self-defence could not be run if the defendant denied assaulting thecomplainant as the legal foundation for the defence of self-defence is that thedefendant was justified in physically applying force for the purpose of defendinghimself from harm. Self-defence would have been the antithesis of a defence of denialof the action alleged or said to have been taken in the course of self-defence.[47] The position in the present case is quite different. It is open for Mrs McCartneyto argue that Michael (and Mary) were not subject to unreasonable or unnecessary painor distress but that if they were she took steps to address that pain and distress. InBradshaw the appellant sought to argue he had not hit the complainant, but if he had,it was justified. There was an inconsistency between the two propositions. In thepresent case there is no dispute that Michael was in pain and the McCartneys wereproviding palliative care to Michael (and provided some treatment for Mary). Theissue was whether the pain was unreasonable or unnecessary and if so, whether MrsMcCarthy took all reasonable steps to follow veterinary advice in the case of Michaelor to alleviate Mary's pain or distress. The propositions are not inconsistent.The scheme of the Act[48] As Mr Vanderkolk noted, the Act reformed the law relating to the welfare ofanimals and the prevention of their ill-treatment. The amendment in 2015 recognisedthat animals are sentient. It requires owners of animals and persons in charge ofanimals to attend properly to the welfare of those animals.10[49] Part 1 of the Act provides for the care of animals. Part 2 deals with conducttowards animals. The Act makes a distinction between offences relating to the care ofan animal and conduct towards it.9 Bradshaw v R, above n 4.10 Animal Welfare Act 1999 Long Title as amended by the Animal Welfare Amendment Act (No 2)2015. See also the discussion of the background to the Act in Erickson v Ministry for PrimaryIndustries [2017] NZCA 271.[50] The purpose of Part 1 is stated in s 9(1) to be:to ensure that owners of animals and persons in charge of animals attendproperly to the welfare of those animals.[51] Section 9(2) provides:This Part accordingly—(a) requires owners of animals, and persons in charge of animals,to take all reasonable steps to ensure that the physical, health,and behavioural needs of the animals are met in accordancewith both—(i) good practice; and(ii) scientific knowledge; and(b) requires owners of ill or injured animals, and persons incharge of such animals, to ensure that the animals receivetreatment that alleviates any unreasonable or unnecessarypain or distress from which the animals are suffering; and(c) imposes restrictions on the carrying out of surgical procedureson animals; and(d) provides for the classification of the types of surgicalprocedures that may be performed on animals; and(e) specifies the persons or classes of persons who may performeach class of such surgical procedures; and(f) specifies certain minimum conditions that must be observedin relation to the transportation of animals.[52] As noted, part 2 of the Act deals with conduct towards animals. Its purpose isstated to be:11to state conduct that is or is not permissible in relation to a species of animalor animals used for certain purposes—(a) by prohibiting certain types of conduct; and(b) by controlling the use and sale of traps and devices used to kill,manage, entrap, capture, entangle, restrain, or immobilise an animal.11 Section 27.The Michael charge[53] As noted Mrs McCartney was charged and convicted with an offence unders 29(a) of the Act, which is under part 2 of the Act. Section 29(a) provides:A person commits an offence who—(a) ill-treats an animal; [54] To ill-treat is defined in the interpretation section of the Act as:ill-treat, in relation to an animal, means causing the animal to suffer, by anyact or omission, pain or distress that in its kind or degree, or in its object, or inthe circumstances in which it is inflicted, is unreasonable or unnecessary[55] The offence is a strict liability offence in that it is not necessary for theprosecution to prove that Mrs McCartney intended to commit the offence.12 It wouldhave been a defence, however, if Mrs McCartney proved that she took all reasonablesteps not to commit a breach of s 29(a), i.e. not to ill-treat Michael in the way alleged.13[56] Given the context of s 29 and that the offence in the present case must be basedon an omission, namely the failure to follow veterinary advice, it is not apt to describethe pain or distress as being inflicted by Mrs McCartney nor that such was her object.[57] In the context of this case the ill-treatment under s 29(a) must be that between22 and 27 June 2016 Mrs McCartney caused Michael, by omitting to follow veterinaryadvice, pain or distress that in its kind or degree was unreasonable or unnecessary.The other offences under s 29(b) to (h) involve abusive conduct towards animals.Conduct of that nature is quite different to the gravamen of the complaint against MrsMcCartney.[58] There would seem to be a more appropriate charge under s 14(1)(a) under Part1 of the Act to address the allegation against Mrs McCartney. Section 14(1)(a)provides:(1) A person commits an offence who, being the owner of, or a person incharge of, an animal, without reasonable excuse,—12 Animal Welfare Act 1999, s 30(1).13 Animal Welfare Act 1999, s 30(2)(a).(a) keeps the animal alive when it is in such a condition that it issuffering unreasonable or unnecessary pain or distress; [59] However, the appeal falls to be dealt with on the basis of the charge andconviction before the Court. The elements of the offence under s 29(a) which theSPCA was required to prove in this case are that:(a) between 22 and 27 June 2016 Mrs McCartney caused Michael to sufferpain or distress;(b) by not following veterinary advice; and(c) that the pain or distress was, in its kind or degree, unreasonable orunnecessary.[60] The first issue is to identify the veterinary advice that it is said Mrs McCartneyfailed to follow between 22 and 27 June 2016. The evidence only discloses twoinstances of direct veterinary advice to Mrs McCartney during the relevant time. Thefirst was Dr Lucy's advice on 22 June that Michael should be euthanised "as soon aspossible". The second was Dr Weight's advice on 27 June, during the telephone callwith Mrs McCartney, that the euthanasia procedure needed to be performed by the endof the week or welfare agencies would be involved.[61] There also was the telephone discussion between Dr Weight and MrsMcCartney on 24 June when the arrangement was made for Michael's euthanasia on27 June but there is no evidence of any direct advice being given on that date, otherthan making the practical arrangements for the euthanasia to be carried out.[62] Mr Vanderkolk submitted that Dr Lucy's advice Michael should be euthanised"as soon as possible" should be given a common sense meaning. It was quite clearand meant at the next reasonable opportunity. With respect, however, that again begsthe question of what the next reasonable opportunity might have been. While it couldbe argued that the next reasonable opportunity meant 24 June when the arrangementswere made, Dr Weight accepted that in relation to the timing of euthanasia it wasalways a balance between giving owners more time and doing what needed to be done.Further, by agreeing to schedule the procedure for 27 June, it can be inferred Dr Weightdid not consider Michael would be in unreasonable or unnecessary pain between 24and 27 June.[63] A further difficulty with the prosecution case on this aspect is that, as MrVanderkolk accepted in his written submissions, it was established that Dr Weightadvised Mrs McCartney on 27 June, a Monday, that euthanasia needed to be performedby the end of the week otherwise welfare agencies would become involved. That wasfurther veterinary advice as to when the euthanasia should be carried out. It does notcomfortably sit with the suggestion that "as soon as possible" meant the euthanasiahad to be carried out by 27 June. On the evidence, Mrs McCartney had madearrangements for an alternative veterinary surgeon to carry out the euthanasia beforethe end of the week in compliance with Dr Weight's requirement. The veterinarysurgeon in question, Dr Sutorius, confirmed the arrangement had been made toeuthanise Michael on the Thursday. While the Judge doubted Mrs McCartney wouldfollow through with it that day, that was speculative.[64] There is force in Mr Shaw's submission that the request to postpone theeuthanasia procedure on 27 June cannot be characterised as a failure to follow advicebut rather an attempt to alter the arrangements previously agreed. Mrs McCartneyfollowed the veterinary advice to have Michael euthanised. She made arrangementsto that effect.[65] With respect, the Judge's conclusions on the point were as Mr Shaw submitted,generic and conclusory. He referred to Mrs McCartney being "in denial", failing toaccept or follow veterinary advice, and deferring the termination. However, for thereasons given above, the Judge was required to identify the specific advice MrsMcCartney failed to follow. He did not do so. To be fair to the Judge, the difficultyarose because of the nature of the charge. The matter may have been clearer had theprosecution proceeded under s 14 of the Act.[66] For the above reasons I consider there were errors in the Judge's reasons forconcluding Mrs McCartney failed to follow veterinary advice between 22 and 27 June2016.[67] The next element of the charge that had to be proved was that the pain Michaelwas in was of a kind or degree which was unreasonable or unnecessary at the relevanttime between 22 and 27 June.[68] The only prosecution witnesses who saw Michael between 22 June and 27 Junewere Dr Lucy (on 22 June), and Ms Walmsley, the SPCA inspector, who carried out avery brief observation on 27 June. Dr Weight only saw Michael on 28 June after hehad been uplifted.[69] Dr Lucy did not refer to Michael suffering from any pain. His evidence in re-examination was that he explained to Mrs McCartney that the euthanasia should occuras soon as possible and that was because of his concern for Michael's condition. Hesaid:So the fact that he was weak, the fact that he – his physical findings were suchthat I felt he [was], he was suffering.But Dr Lucy did not give any evidence of the extent of that suffering to support afinding that it was of a kind or degree that was unreasonable or unnecessary.Relevantly, in his previous evidence he had accepted that while he said Michael shouldbe euthanised as soon as possible, he did not put any particular timeframe on it eitherwith Mrs McCartney when he saw her and Michael, nor when he discussed the matterwith Dr Weight on 24 June.[70] The particularly relevant day must be 27 June because the prosecution acceptedthat if Michael had been euthanised that day, Mrs McCartney would have compliedwith the veterinary advice.[71] It is important to remember that the pain must be of a kind or degree that wasunreasonable or unnecessary. Dr Weight gave evidence that when she saw MrsMcCartney and Michael on 25 February 2016 rather than Dr Jolly, she did considerMichael to be in some pain and she spoke about the quality of life and his pain. Shequalified that later in her evidence by noting that when she saw Michael in Februaryhe was standing and bunting against her hand and while generally thin with a little bitof abdominal pain which was of concern, he was interactive. There is no suggestionin her evidence and the charge does not suggest that the pain was such that it wasunreasonable or unnecessary at that time for example. This was a cat with a medicalcondition that was in need of ongoing palliative care.[72] It is necessary to consider Michael's state on 27 June in relation to the pain,against the background evidence that his condition waxed and waned.14 The onlyinspection of Michael on 27 June was the cursory inspection by Ms Walmsley, whodid not refer to him as being in pain on that day. While she described him as lifelessin Mrs McCartney's hands and noted she could feel his spine and that he had lesionsshe did not say that he appeared to be in pain on the day.[73] Against that there is the evidence of Mr McCartney and particularly MsDeborah Olliver who did see Michael that day, 27 June. Ms Olliver described him asnudging her shin and playing without any actual signs of pain or distress.[74] There is further evidence of the pain Michael was suffering on 28 June, butthat was after the time period of the charge. Ms Walmsley took Michael to Dr Weighton 28 June. Dr Weight said Michael flinched as she examined his cranial abdomen.She decided to control the pain that she considered he would be in by giving him somebuprenorphine, which is a moderately strong opiate pain reliever. She considered hewould be suffering considerable pain and that euthanasia would be the "mostappropriate course of action". But that was in the context she believed Dr Lucy'sdiagnosis of pancreatic cancer to be correct. Significantly there was the followingpassage:Q: And would the lack of evidence of pancreatic cancer on post-mortemexamination alter your opinion about suffering pain and distress thatyou earlier opined was present?A: I've thought long and hard about this and I'm not sure it's easy toanswer. I don't think that, again, if I go back to the same principles,he had a combination of diseases, diabetes, and chronic pancreatitisof which it's impossible to treat in some cases. And he was sufferingpain that we couldn't control and we were doing everything we could,so in that sense I don't think it would've changed it, no.14 Both Drs Jolly and Burrough gave evidence to that effect.[75] Dr Weight gave evidence as to the physiology of pain for pancreatitis in a catas being the same as that in a human. She considered that Michael would have beensuffering pain from his pancreatitis for quite a significant period of time and his skinwould have been certainly itchy, if not painful. But under cross-examination DrWeight did accept that palliative care was a viable and reasonable option, evenconsidering the symptoms she observed in February 2016 and that pain relief could beprovided.[76] Dr Elias said that he did not have any impression of Michael exhibiting overtsigns of pain or distress when he examined him on 28 June. He did not consider itnecessary to euthanise him that day. Michael was walking about and took an interestin his surroundings. While Dr Elias realised that Michael had been given an opiateprior he noted that if animals are in pain and distress they lower their head, do notwalk about, and they are not comfortable to look at. He would not have expected thepain relief to have made the significant difference he observed.[77] I consider there is force in Mr Shaw's submission that whether the pain ordistress is unreasonable or unnecessary must be assessed in the context of the lengthyprocess of palliative care which was coming to an end. Further, an evaluative andcontextual assessment is required. It is not sufficient that Michael was suffering fromsome pain or distress. The pain or distress must be such that in its kind or degree wasunreasonable or unnecessary.[78] Dr Burrough also gave extensive evidence regarding his analysis of theconditions Michael was suffering from and the degree of pain and distress associatedwith those conditions. He noted that sub-acute to chronic pancreatitis was not acharacteristically painful condition. Symptoms could wax and wane or be effectivelymanaged by the pain regime Michael was under. The Judge dismissed Dr Burrough'sevidence outright, with respect, without any particular analysis of it, other than that hehad not inspected Michael. But as noted above, Dr Weight had not inspected him on27 June either.[79] The observations of both Dr Weight and Dr Elias on 28 June must beconsidered in the context that it was acknowledged by both prosecution and defencewitnesses that the condition Michael was suffering from could wax and wane fromtime to time. Even if Michael had been in unreasonable or unnecessary pain on 28June (on which there is conflicting evidence) that does not support the conclusion hewas in such unreasonable or unnecessary pain on 27 June.[80] The Judge dealt with the matter of the extent of pain briefly.[85] Based on the defence evidence now called, it would appear thatMrs McCartney took the view that Michael was happy, and coping with tripsto town and showing no sign of pain or distress.[86] I am not convinced that this was the situation by 27 June when I havethe evidence of the observation of the SPCA Inspector.[87] Her brief assessment is reinforced by the clinical examination on 28June by Dr Weight.[94] The short point is that both Drs Lucy and Weight had considered thetime had come to carry out this procedure, whereas Mrs McCartney was stillin denial.[96] I am able to look at what was observed by Dr Weight and Dr Lucy inreaching the view that Michael was a very unwell cat and that Mrs McCartneywas failing to accept or follow veterinary advice.[100] Based on the evidence of the condition of Michael by 28 June, it wasin my view a situation where deferring the termination was causing the animalto suffer unreasonable or unnecessary pain or distress.[81] With respect, there was no an analysis of the evidence and the relevance of theuncontested evidence of the condition waxing and waning, nor of Dr Burrough'sevidence. As such, the Judge fell into further error.[82] For the above reasons, I find the Judge's errors mean that his conclusion thecharge involving Michael was proved cannot stand.The Mary charge[83] Mrs McCartney was also charged with failing to ensure that Mary receivedtreatment to alleviate unreasonable or unnecessary pain or distress, in breach of s 12(b)of the Act.[84] The offence was laid under s 12(b) of the Act which provides:A person commits an offence who, being the owner of, or a person in chargeof, an animal,—(b) fails, in the case of an animal that is ill or injured, to comply, inrelation to the animal, with section 11; Section 11 provides an obligation to ensure the animal receives treatment thatalleviates any unreasonable or unnecessary pain or distress.[85] The SPCA was required to prove that between 30 May 2016 and 27 June 2016:(a) Mary was ill; and(b) that Mrs McCartney failed to ensure that Mary received treatment thatalleviated any unreasonable or unnecessary pain or distress beingsuffered by her.[86] Again the offence is a strict liability offence with the prosecution not having toprove that Mrs McCartney intended to commit the offence.15[87] The focus in the present case must be on whether the pain suffered by Marywas unreasonable or unnecessary. Consideration of those issues, particularly whetherthe pain was unreasonable, must be against the background of the concession by DrWeight that if a cat had been presented to her with the conditions that Mary had shewould have a discussion with the owner and, while she would be concerned that thecat may have been left to an extent before being presented, she would not have calledthe SPCA in as long as the owners were compliant about ongoing treatment.15 Animal Welfare Act 1999, s 13(1).[88] The evidence discloses that the two issues of particular concern in relation toMary were the lesions on her ears and her inward-turning eyelid (a condition called anentropion). While there was reference to other issues there was no suggestion theycaused any more than relatively minor discomfort.[89] In relation to the lesions on the ears Dr Weight accepted that it would be fairto characterise that pain as relatively mild. That was consistent with Dr Burrough'sevidence which described the level of pain or discomfort from the ear lesions as"relatively mild discomfort".[90] The Judge seemed to conclude from the fact that the lesions were ultimatelyfound to be skin cancer and had been evident for some time that the charge was madeout but that reasoning did not address in particular whether the pain or distress wasunreasonable or unnecessary to the extent it required more active treatment.[91] The most significant issue was Mary's inward-turning eyelid, the entropioncondition. In relation to that Dr Weight's evidence was that the condition would leadto pain and discomfort in the moderate range of pain. This was because the cornea isvery sensitive and the eyelashes rubbing against it would cause discomfort. DrBurrough considered the pain would be mild to moderate. On that evidence the Judgewas entitled to find the pain unreasonable.[92] Further even if the pain could be said in its kind or degree not to beunreasonable, it may nevertheless have still been unnecessary. The concept of"unnecessary pain" in this context is problematic. On one view, if the pain could beavoided by treatment then surely it would meet the test of being unnecessary. Butagain, context is important. It will be important to consider the evidence of the extentof the pain and how long the animal has been suffering from it in order to inform thedecision whether it was unnecessary in the overall context of the particular situation.In Mary's case, the evidence is that she was suffering from the eye condition, whichwas obvious, for at least five to six weeks. Both Mr and Mrs McCartney were awareof it as they sought to treat it with eyedrops and wipes. Pain of the type described forthat length of time was unnecessary, as it could have been treated. While MrMcCartney suggested he thought it might have been caused by grass seed, when it didnot respond to the treatment, medical advice should have been sought. It was noanswer to say that Mary did not like travelling in the car, and of course, the offence isa strict liability offence. Subject to the defence, the charge in relation to Mary wasmade out.[93] The next issue is whether Mrs McCartney took all reasonable steps to ensureMary received treatment to alleviate that unnecessary pain. Mr Shaw submitted thatMrs McCartney took steps to alleviate the pain, namely by bathing Mary's eyes andapplying eyedrops. The issue is whether that was sufficient to meet the test of allreasonable steps as required by s 13(2)(a) of the Act. Mr Shaw submitted that "toalleviate" was to make the suffering less severe, and that Mrs McCartney did that. DrWeight did not directly address this in her evidence. However in Dr Burrough's viewunless there was some pain relief or anti-inflammatory medication included with theeye drops then the bathing of the eye was not likely to have had a major effect on theclinical condition. I take from that evidence he considered that bathing the eyes wasnot sufficient to alleviate the pain. The difficulty for the defence argument here is thatit must have been obvious to Mrs McCartney that the treatment she had provided hadnot addressed the issue as the condition continued for a period of weeks.[94] In summary, the evidence supports a conclusion that Mary was suffering fromunreasonable and unnecessary pain caused by her eye condition and that MrsMcCartney did not take all reasonable steps to alleviate the condition. It was open forthe Judge to have found the charge proven and to have rejected the statutory defence.The obstruction charge[95] The principal issue in relation to Mr McCartney's obstruction conviction iswhether the inspector, Ms Walmsley, was lawfully exercising her powers when it issaid Mr McCartney obstructed her. It is an element of the offence charged, namelyobstructing an inspector in the exercise of her powers that the inspector was lawfullyexercising her powers at the time of the alleged obstruction. Mr McCartney could notbe obstructing her if she was not acting in the lawful course of that duty at the time ofhis actions which are said to amount to obstruction. It is the defence case that at therelevant time she was in breach of her authority under the Act.[96] In attending the McCartneys' property in response to Dr Weight's call theSPCA officers were exercising their powers under s 127 of the Act. In particular, s 127provides:127 Power to inspect land, premises, and places and stationaryvehicles, aircraft, and ships(1) Subject to subsections (3) and (4), an inspector may—(a) in the case of any land, premises, or place, at any reasonabletime or times; and(b) in the case of any vehicle, aircraft, or ship, at any reasonabletime or times at which the vehicle, aircraft, or ship isstationary,—enter, without warrant, that land or those premises or that place or anysuch vehicle, aircraft, or ship for the purposes of inspecting anyanimal on or in that land or those premises or that place or in or onany such vehicle, aircraft, or ship.(3) No inspector may, under subsection (1), enter in or on any dwellingor marae unless he or she is authorised to do so by a search warrantissued under section 131.[97] The section authorised the SPCA officers to enter the McCartneys' land andpremises for the purposes of inspecting Michael but, in the absence of a searchwarrant, it did not authorise them to enter in or on the McCartney's dwelling.[98] The issue is whether at the time Mr McCartney confronted SPCA InspectorWalmsley she was "in or on a dwelling" for the purposes of the Act. If so, MrMcCartney was entitled to tell her to leave as she had no authority to enter in or on adwelling without a search warrant.[99] At the time of the confrontation Mr McCartney was on the verandah of theproperty. Inspector Walmsley accepts she was on the step of the verandah. Was she,in standing on the step, in or on the dwelling and therefore in breach of s 127(3)?Dwelling is not defined in the Act. The Act uses the word "dwelling" in s 127 but"dwellinghouse" in s 145(2) in relation to enforcement. That may simply be a draftingerror. There seems to be no particular reason to make a distinction between the twoconcepts for the different sections, but if there is to be a distinction, one would expectdwelling to be of broader application than dwellinghouse.[100] The words "dwelling" and "dwellinghouse" are not terms of art and may carrydifferent meanings depending on their context and the purpose of the legislation theyare found in. The ordinary meaning of dwelling as a "place of residence",16 a "placewhere someone lives",17 or "a shelter (such as a house) in which people live",18 doesnot directly assist in determining the physical boundaries of a dwelling in the presentcontext.[101] The definitions of "dwelling" and "dwellinghouse" within legal dictionariesreflect variations in meaning. For example, in Mozley and Whiteley's Law Dictionary"dwelling" is defined as:19A building or part of a building occupied or intended to be occupied as aseparate dwelling, together with any yard, garden, outhouses, andappurtenances belonging to or usually enjoyed with that building or part ofit. It implies a building used or capable of being used as a residence by oneor more families and provided with all the necessary parts and appliances, e g,floors, staircases, windows, etc.[102] Statutory definitions of dwelling also vary depending on context. "Dwelling"under the Goods and Services Tax Act 1985 includes "any appurtenances belonging toor used with the premises". Under the Housing Act 1955 "dwelling" includes "everygarage, shed, and other building used in connection therewith; but does not includethe land appurtenant to a dwelling". Under s 17A of the Crimes Act 1961"dwellinghouse" included "a building or other structure, or part of a building or otherstructure, that is used by the occupant principally as a residence".[103] A review of the authorities confirms, as one might expect, that the meaning tobe ascribed to dwelling must be ascertained from the text of the particular Act and inlight of its purpose.16 Angus Stevenson Shorter Oxford English Dictionary (6th ed, Oxford University Press, Oxford,2007).17 Collins English Dictionary (online ed, HarperCollins Publishers, Glasgow, accessed 26 September2018).18 Merriam-Webster Dictionary (online ed, Merriam-Webster, Springfield (Mass), accessed 26September 2018).19 J E Penner Mozley and Whiteley's Law Dictionary (12th ed, Butterworths, London, 2001).[104] Mr Shaw referred in particular to the cases of Rose v Police and New ZealandPolice v O'Byrne. 20 I agree with Mr Vanderkolk's submission that those decisions arenot particularly helpful. They considered what was meant by the phrase "near adwellinghouse" under s 48 of the Arms Act 1983. In Rose v Police Savage J discussedthe meaning of "person" and concluded that it meant someone: linked to the dwellinghouse in the sense of being there; and being theremeans in the dwellinghouse, including its adjoining outhouses such as agarage or shed, and the immediate surrounds of the garden.[105] Read in context it does not appear the Judge was offering a definition of"dwellinghouse" and even if he were, his words were chosen in light of the legislativepurpose of the Arms Act.[106] But nor do I consider Mr Vanderkolk's reference to the meaning of dwellingby reference to criminal sentencing decisions is of assistance in the present case.[107] In R v Summers the Court of Appeal interpreted the purpose of the powers ins 127 of the Animal Welfare Act as:21[37] The relevant provisions of the Animal Welfare Act are necessarilyfocused on the welfare of animals and, in the context of that focus, there isnecessarily some limitation on the property rights and privacy expectations ofanimal owners. Section 127 strikes something of a balance with theprohibition on entry into a dwelling or marae without a warrant. [108] In the context of the welfare of animals, it is relevant that animals arecommonly kept near houses, in yards or gardens or on land appurtenant to the home.These external areas are areas where the occupants of a home cannot claim to havesignificant privacy interests, or at least not when balanced against the purposes of theAct. To find otherwise would be to unnecessarily thwart the purpose of the legislationin protecting and promoting the welfare of animals. I consider the purpose of the Actsupports a conclusion that the authority under s 127 authorises the inspector to enteryards, gardens, kennels and land appurtenant to the principal dwelling of the property.20 Rose v Police and New Zealand Police v O'Byrne, above n 5.21 R v Summers CA356/04, 8 December 2004.[109] However, in the present case, the step of the verandah was part of the dwellingoccupied by Mr and Mrs McCartney as their home. On any view of it the openverandah and the step leading to it were part of the private sphere of the McCartney'shome. They are physically distinct from the surrounding yards, garden, lawn and evenpathways leading to the steps, which are areas where the interests of privacy wouldcarry less weight.[110] The inspector's movement onto the step constituted an unauthorised entry onthe appellants' dwelling. Mr McCartney was not obstructing her in the exercise of apower under the Act when he told her to leave the property because she was no longeracting in accordance with her authority. Section 127(3) requires inspectors to obtaina search warrant if they wish to enter in or on a dwelling.[111] Mr Vanderkolk suggested that in the alternative Ms Walmsley had an impliedlicence to remain on the property despite Mr McCartney asking her to leave. Membersof the public, police officers and, he submitted animal welfare inspectors, have animplied licence to go to the front door of private premises to make inquiry of anoccupier for any reasonable purpose.22[112] Mr Vanderkolk's submission was that, by going and getting Michael frominside the house and bringing him out so that Ms Walmsley could see him MrsMcCartney had effectively extended the implied licence for Inspector Walmsley to beon the property. The implied licence could not be revoked as one of the co-owners ofthe property present at the time had effectively co-operated with the Inspectors.[113] This case involves a charge of obstruction. The SPCA was required to establishunder s 159(1) that the inspector was acting in the exercise of a power or in theperformance of a duty "under this Act", at the time when the defendant is said to haveobstructed or hindered the inspector. As the inspector had unlawfully entered on or inthe McCartneys' dwelling she was no longer acting in the exercise of a "power" underthe Act. She had no authority to remain on the step. Mr McCartney was entitled totell her to leave. To do so, even in the terms he used, was not obstruction of the22 Tararo v R [2010] NZSC 157, [2012] 1 NZLR 145 at [14].inspector in the exercise of a power under the Act. Implied licence has no relevanceto the exercise of the officer's powers under the Act.[114] The Judge's conclusion that there was no illegal entry on or in the dwelling byInspector Walmsley standing on the verandah was a finding of law, which for thereasons given above, I depart from. As Ms Walmsley was acting in excess of herauthority and not exercising a lawful power under the Act at the time it is said MrMcCartney obstructed her, the charge of obstruction must fail. Mr McCartney's appealagainst conviction for obstruction must be allowed.Result[115] The appeal is allowed in part.[116] Mrs McCartney's conviction and sentence in relation to Michael is quashed.The fine and reparation associated with Michael's treatment and euthanasia are setaside.[117] The witnesses' fees awarded for Dr Burger and for other witnesses relating tothe Michael and obstruction charges are set aside.[118] Mrs McCartney's conviction and sentence in relation to Mary is upheld. Thereparation relating to the medical treatment for Mary stands.[119] Mr McCartney's conviction and sentence for obstruction is quashed.[120] Mr Vanderkolk suggested the Court should order a retrial if the appeal wasallowed. Given the matters covered in this judgment, and the length of time the issuehas been before the Court, I am satisfied that a retrial is not warranted and would notbe in the interests of justice.__________________________Venning J