WILLIAMSON v R [2015] NZCA 621 [18 December 2015]

IN THE COURT OF APPEAL OF NEW ZEALAND

CA398/2014

[2015] NZCA 621

BETWEEN

DOUGLAS JOHN WILLIAMSON

Appellant

AND

THE QUEEN

Respondent

CA399/2014

BETWEEN

JOHN BLACKWOOD WILLIAMSON

Appellant

AND

THE QUEEN

Respondent

Hearing:

11 November 2015

Court:

Kós, Fogarty and Mallon JJ

Counsel:

T W Fournier and E Huda for Appellants

M H Cooke for Respondent

Judgment:

18 December 2015 at 12.30 pm

JUDGMENT OF THE COURT

A The appeals against conviction are dismissed.

B The applications to adduce fresh evidence are declined.

C The appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

[1] The appellants, Messrs Williamson, faced trial in the District Court at

Christchurch on indictment for:

(a) One count alleging ill-treatment of a horse under s 29(a) of the

Animal Welfare Act 1999. (To which they pleaded guilty after

hearing the Crown’s case.)

(b) Six counts alleging wilful ill-treatment of horses under s 28(1)(c) of

the Animal Welfare Act. (To which they, likewise, pleaded guilty.)

(c) Eleven counts alleging failure to ensure the physical, health and

behavioural needs of horses are met under ss 10 and 12(a) of the

Animal Welfare Act. (To which they pleaded guilty to five of the

counts, being discharged on the balance.)

[2] Messrs Williamson made applications to vacate their pleas of guilty. These

were declined by Judge Saunders.1 Subsequently, they were each sentenced to

16 months’ imprisonment by Judge Farish.

[3] The appellants appeal against their convictions. They contend Judge

Saunders erred in refusing to allow them to vacate their guilty pleas. They contend

that the Judge failed to properly assess the relevant issues when considering whether

there had been a miscarriage of justice.

[4] They also appeal against the sentence of 16 months’ imprisonment imposed

by Judge Farish.2 They contend that she incorrectly assessed the seriousness of the

offending. That she was wrong to adopt a starting point of imprisonment. And that

1 R v Williamson DC Christchurch CRI-2012-009-10644, 17 June 2014.

2 R v Williamson DC Christchurch CRI-2012-009-10644, 16 July 2014.

if imprisonment was the correct type of sentence, 16 months was too high. Finally, if

the end point was imprisonment, the Judge misdirected herself when considering and

rejecting home detention.

Narrative

[5] On 2 October 2009, two SPCA inspectors went to the property at Quaifes

Road, occupied by the appellants. They found quite a few horses in various states of

condition, in paddocks with very minimal feed.

[6] They returned four days later, on 6 October. The two same inspectors, but

this time accompanied by a veterinarian, Dr Amira Mikhial.

[7] Following that visit, one of the SPCA inspectors met with Mr John

Williamson the next day and gave him a Notice of Instruction under s 130 of the

Animal Welfare Act requiring the horses to have good quality hay until there was

better grazing and also to be wormed with a commercial broad spectrum wormer, to

be deloused and, for some horses with long cracked hoofs, for them to be tended to.

These visits were followed up. There was a further visit in early November, another

in December. Some improvement was observed to the horses’ skin, but otherwise

there was no evidence of compliance with the notice. Mr John Williamson said he

had deloused and wormed most of the horses and had fed hay to them but not every

day. At the visit on 15 December he was handed another s 130 Notice of Instruction,

again giving him instructions to supply hay to the horses. Both at this meeting and

earlier meetings, there had been some concerns about the quality of the water

troughs and the ability to refill and supply fresh clean water.

[8] There was another visit on 23 December. Mr Douglas Williamson was there

and feeding out hay. He was also working on fences. There were 31 horses on the

property at this time. There was little change in the body condition of them. There

was another meeting on site between two SPCA inspectors and Mr John Williamson

on 27 January 2010. There was some talk about moving the horses. Another s 130

Notice of Instruction was served. On 16 February 2010, Mr John Williamson

advised the inspectors by phone he was getting more hay, working on the fencing to

separate the horses and on the water troughs. A further inspection on 23 February

confirmed that additional hay was provided but no further steps to comply with the

notice were evident.

[9] There were further discussions in March between an SPCA inspector and

Mr John Williamson.

[10] On 26 March, two SPCA inspectors and Dr Ranken, a veterinary surgeon

inspected the horses. They found the horses in a very poor body condition and a

very poor state of wellbeing. Officials of the SPCA decided to remove the horses.

They understood they needed to apply for a search warrant to do so. To that end, a

search warrant was obtained on 27 March.

[11] On 29 March 2010, a team of SPCA inspectors arrived at the property to

execute the search warrant. They found that 12 horses had been moved elsewhere

since the previous visit. When asked about the missing horses, the appellants were

not forthcoming. Douglas Williamson refused to disclose where they were, and told

an SPCA inspector, "You're not going to find them”.

[12] During the execution of the search warrant, one of the horses, a colt, was

found down in a back paddock. He was unable to get up. He was euthanised. He is

the subject of one of the charges of wilful ill-treatment.

[13] An emaciated stallion, Danny B, was also discovered on the property,

confined in a small, dark stable. There was no feed available, and the stall had no

bedding. Danny B's ribs were visible through his skin, he had patchy hair loss and

swollen limbs, and he was exhibiting behaviour characteristic of animals subjected

to long periods of confinement and boredom. He was the subject of the count of

ill-treatment, s 29(a).

[14] The horses were removed to another property. There was further examination

of the horses by Dr Ranken and Dr van den Enden, both from the Canterbury Equine

Clinic, and Dr Senior, a veterinarian acting for the Williamsons. Five horses were

euthanised. The veterinarians, including Dr Senior, agreed that the condition of

those horses was extremely poor. Dr van den Enden phrased the criteria of

assessment in this way:

… the purpose of our assessment was to assess the general health of these

horses and the body conditions for those horses and the chances for those

horses to recuperate and develop into a normal healthy horse, and that’s why

the three of us were there.

[15] His opinion was:

… the general condition of those horses was extremely poor … because

these horses were all very young and they were not fully grown it’s my

professional opinion the chances of these horses could develop themselves

into healthy grown up horses was very, very slim and it is my opinion that

these horses were basically not recoverable.

[16] It was Dr Ranken’s recommendation that 10 to 12 horses in the lowest body

condition score (one out of five) should be humanely destroyed.

[17] The body score of the bay colt euthanised in the field and the five other

horses had a body condition score of zero. The colt was euthanised because it could

not get up. The other horses were euthanised “because they would never reach their

adult growths”.

[18] The post mortem results showed that there was such a loss or destruction or

absence of muscular structure in the horses that they were basically eating

themselves. The normal fat layer under the skin had completely gone.

[19] On 31 March 2010, a team of SPCA inspectors and three veterinarians,

Dr Ranken, Dr van den Enden and Dr Lucia Tucker-Nuttall (representing the

Williamsons), went to a third property at West Coast Road, where the 12 horses that

were originally at the first property had been moved. There these 12 horses were

examined again.

The trial

[20] The Crown case was that, by failing to provide sufficient water and feed,

adequate housing, and to protect the horses from disease, the appellants had

ill-treated Danny B, wilfully ill-treated the six horses that were euthanised, and had

failed to comply with their statutory duty to ensure the physical, health and

behavioural needs of 11 other horses were met.

[21] The Crown alleged the ill-treatment of the horses that were euthanised had

been wilful, as the deterioration in their condition had been evident for some time,

the appellants had ignored the SPCA directions specified in the statutory notices for

their improved care, and the appellants had attempted to avoid further examination

of their horses by shifting 12 horses off the property.

[22] The appellants’ defence at trial (signalled by the cross-examination of Crown

witnesses) was that they had maintained an adequate feeding and de-worming

regime, and that the deterioration in the condition of the horses was caused by an

excess of iron in their drinking water (iron toxicosis), rather than malnutrition.

[23] Dr Ranken and Dr Fairly, a veterinary pathologist, were cross-examined on

the issue of iron toxicosis:

(a) Dr Ranken said he had never seen iron toxicosis in horses, and as far

as he was concerned there was no evidence of that from the results of

the post-mortems he conducted. He said that if a horse had iron

toxicosis, it would most likely be inappetent (not wanting to eat), and

would have quite obvious liver problems.

(b) Dr Fairly was asked about his post-mortem findings in relation to

pigmented lesions that he saw on the livers of two horses. He said he

had tested those for iron and they had come back negative.

[24] Messrs Eason and Owen, trial counsel for the appellants did not consider the

trial was going very well for their clients. They were particularly influenced by the

impact of the evidence of Dr Robert Fairly. In addition to [23](b) above, his

evidence was that the level of worm burden in the horses was "highly unusual",

suggesting "a very high exposure to parasites”. He also said in his evidence-in-chief

he had never seen that level of worm burden before in his 30 years of experience.

[25] Dr Fairly explained that parasites normally migrate through the abdomen. He

added: “If you can see them that’s phenomenal really.”

[26] Dr Fairly also found the presence of parasitic infestation in fat around the

kidney which he thought was highly remarkable. Again, it was something he had

never seen before. Another remarkable finding related to omental fat attached to the

spleen. Again, there was a remarkable number of parasites present. He found a large

egg count of parasites per gram in the faeces of the animal, the standard being that

anything over 500 was considered significant for horses over six months or a year

and he found in one animal, 2,000 and in another animal, 3,900.

[27] Dr Fairly explained that the parasitic worms feed on the tissues of the animal

which generates an inflammatory response that in turn causes a leakage of protein

into the gut which passes out in the faeces and is lost to the animal.

Pleas of guilty

[28] Plainly, the evidence of the pathologist, Dr Fairly, coming on top of the

evidence of the other veterinarians in the field, Dr van den Enden and Dr Ranken,

painted a picture of horses in a very poor condition, overwhelmed with parasites,

with iron toxicosis discounted as a cause.

[29] After four days of evidence, the Crown case ended on the afternoon of

Thursday the 18th. Before retiring, the trial Judge remarked that if the jury returned

guilty verdicts, an appropriate starting point for sentence would be imprisonment.

[30] This generated a discussion between Messrs Williamson and their counsel.

The topic was a possible plea agreement. Counsel advised their clients that the

Crown’s evidence had diminished their prospects of any success. Relying on this

advice, Messrs Williamson instructed their counsel to approach Crown counsel to

negotiate a plea agreement. No agreement was reached. Mr Eason decided he

would make an application for a discharge under s 347 of the Crimes Act in respect

of his client, Mr Douglas Williamson.

[31] The plea for a discharge was based on a point of procedure. The notices of

breach to the Animal Welfare Act had been given to his brother, not to him.

Mr Eason made this application on his own initiative and in disregard of his client’s

instructions. His client had wanted to remain loyal to his brother. Mr Eason’s

initiative appears to have been something of a last ditch attempt to obtain a

successful outcome for his client. But it came at the end of the Crown case, and it is

not suggested that it altered the direction of prior cross-examination. The application

was unsuccessful.

[32] Mr Owen, John Williamson’s trial counsel, sought a 20-minute adjournment

to obtain instructions to engage in a plea negotiation with the Crown. The

adjournment was granted. Messrs Williamson and their lawyers had another group

discussion as to whether they would accept the plea agreement offered by the Crown

the previous day. Messrs Williamsons say that neither Mr Eason nor Mr Owen gave

substantial legal advice to them in that regard. However, the trial issues were

relatively simple. The context was all about the lack of care for horses. The

Williamsons knew that they had not complied with notices for several months. They

knew their only defence was toxicosis. They had heard the evidence over four days.

They had heard the Judge talking of prison. In the context, it was not necessary for

their counsel to do any sophisticated analysis on top of passing their judgement to

their clients that the trial, before a jury, was going badly for them. The choice was

either for the trial to continue or to negotiate a plea agreement. Messrs Williamson

then instructed their counsel to negotiate the plea agreement. The agreement by the

Crown was resurrected and Messrs Williamson accepted it.

[33] The plea agreement was a minor compromise in the appellants’ favour. Of

the 11 counts of failing to ensure the physical health and behavioural needs, there

were pleas to five and the balance of six were withdrawn. More significant,

however, was that Messrs Williamson pleaded guilty to the ill-treatment of the

stallion, Danny B and six counts of wilful ill-treatment of the horses that had been

put down.

Application to vacate guilty pleas

[34] The guilty pleas were entered into in July 2013. On 7 November, the

appellants applied to vacate their guilty pleas on the ground that their trial counsel

had induced them to plead guilty under the mistaken belief that no tenable defence

could be advanced.

[35] The application to vacate the guilty pleas depended on persuading the Court

that a miscarriage of justice would result if the conviction was not overturned. A

miscarriage of justice would arise if their counsel gave erroneous advice or induced a

decision on the part of the client to plead guilty under the mistaken belief or

assumption that no tenable defence existed or could be advanced.3

[36] The application to vacate the pleas was heard by Judge Saunders. He

declined the application, after a detailed analysis of the narrative of events. He did

not consider there was tenable defence seen to be available at the time the decision to

plead was entered. He did not think Dr Senior could have assisted the defence if he

had given evidence as he had agreed to the euthanising of the five horses.

Argument in this Court

[37] Mr Fournier submitted that a miscarriage of justice had occurred because:

(a) Counsel induced the appellants to plead guilty under the mistaken

belief that no tenable defence could be advanced.

(b) Counsel failed to follow the appellants’ instructions as to the choice of

defence to advance.

(c) Veterinarian, Dr Kathleen Parton’s evidence has become available

since trial and this evidence has the potential to impact on the safety

of the appellants’ convictions.

3 See decisions of the Court of Appeal in R v Le Page [2005] 2 NZLR 845 (CA) at [14] and [16],

and R v Merrilees [2009] NZCA 59 at [33]–[34].

[38] We address the second proposition (b) that counsel failed to follow the

appellants’ instructions first, then turn to the challenge to counsel’s advice to the

appellants to plead guilty and, finally, address the proposition that Dr Parton’s

evidence on toxicosis, which has become available since the trial, if admitted has the

potential to impact on the safety of the appellants’ convictions.

Failure to follow the appellants’ instructions as to the choice of defence to

advance and the decision to plead guilty

[39] A Full Court of this Court has recently examined the relevant principles

applicable to appeals raising issues about the conduct of trial counsel. This is the

decision of Hall v R.4 The first paragraph of the judgment reads:

Appeals raising issues about the conduct of trial counsel now form a

significant proportion of criminal appeals before the Court. The decision of

the Supreme Court in R v Sungsuwan emphasises that the “ultimate

question” where trial counsel conduct is in issue is whether justice has

miscarried. This Court’s judgment in R v Clode and the Court of Appeal

(Criminal) Rules 2001 set out procedures currently applicable to appeals

challenging the conduct of trial counsel.

(Footnotes omitted).

[40] This proposition is developed in paragraphs [8]–[11] of the judgment:

[8] The relevant principles applicable to appeals raising issues about the

conduct of trial counsel are now well-settled. These principles are set out by

the Supreme Court in R v Sungsuwan. In delivering the judgment of the

majority in R v Sungsuwan Gault J stated that:

[C]onsideration of whether there was in fact an error or irregularity

on the part of counsel, and whether there is a real risk it affected the

outcome, generally will be an appropriate approach. If the matter

could not have affected the outcome any further scrutiny of counsel’s

conduct will be unnecessary. But whatever approach is taken, it

must remain open for an appellate court to ensure justice where there

is real concern for the safety of a verdict as a result of the conduct of

counsel even though, in the circumstances at the time, that conduct

may have met the objectively reasonable standard of competence.

[9] The effect of Sungsuwan was summarised by this Court in R v

Scurrah. Arnold J in that case noted that, generally, the judgments in

Sungsuwan “indicate that the focus should be on the trial process and its

outcome rather than on the characterisation of counsel’s conduct”. The

Court observed that in the majority judgment, Gault J initially identified two

cases at opposite ends of the spectrum. The first was where “the alleged

4 Hall v R [2015] NZCA 403.

counsel error could not have affected the outcome of the trial. In that type of

case, there was no need to go further.”

[10] The case at the other end of the spectrum was where counsel’s

alleged error had “effectively prevented the accused person from presenting

a defence. In that type of case, prejudice would readily be found”. Gault J

in Sungsuwan identified a further class of case where counsel’s conduct was

judged to be in the interests of the accused person at the time. In those

cases, this Court said:

Even though such conduct may possibly have affected the outcome,

an appeal would not be allowed if the judgment exercised by counsel

was a judgment that another competent counsel might exercise in the

course of a further trial … . However, the Judge recognised the

possibility that in rare cases counsel’s conduct, although reasonable,

might have led to a miscarriage of justice, so that an appeal would

have to be allowed … .

[11] The focus is on whether there has been a miscarriage of justice.

Arnold J stated:

[17] The approach appears to be, then, to ask first whether there

was an error on the part of counsel and, if so, whether there is a real

risk that it affected the outcome by rendering the verdict unsafe. If

the answer to both questions is “yes”, this will generally be

sufficient to establish a miscarriage of justice, so that an appeal will

be allowed.

[18] On the other hand, where counsel has made a tactical or

other decision which was reasonable in the context of the trial, an

appeal will not ordinarily be allowed even though there is a

possibility that the decision affected the outcome of the trial. This

reflects the reality that trial counsel must make decisions before and

during trial, exercising their best judgment in the circumstances as

they exist at the time. Simply because, with hindsight, such a

decision is seen to have reduced the chance of the accused achieving

a favourable outcome does not mean that there has been a

miscarriage of justice. Nor will there have been a miscarriage of

justice simply because some other decision is thought, with

hindsight, to have offered a better prospect of an outcome favourable

to the accused than the decision made.

[19] This analysis will be sufficient to deal with most cases.

[20] But there will be rare cases where, although there was no

error on the part of counsel (in the sense that what counsel did, or

did not do, was objectively reasonable at the time), an appeal will be

allowed because there is a real risk that there has been a miscarriage

of justice.

(Footnotes omitted).

[41] By contrast, Mr Fournier relied on [67] and [69] of the judgment, which

reads:

[67] The starting point in terms of the authorities in this Court is R v

McLoughlin. In that case the Court said that the “plain unvarnished fact”

was that counsel “most certainly had no right to disregard [the client’s]

instructions”. The Court said that after giving advice, counsel’s duty was

either to act on the instructions received or to withdraw. As Cooke J said in

R v Pointon, decided soon after R v McLoughlin, the latter case was “in the

extreme category … of counsel acting contrary to express and definite

instructions to call certain witnesses (as to an alleged alibi)”.

…

[69] In an appeal based on a failure to follow instructions as to these

fundamental decisions, the focus will be on whether, as a matter of fact,

there was a failure to do so. “Instructions” in this context mean a clear

direction as to how the trial or an aspect of it is to be run. This Court in R v

S drew a distinction between “an expression of the client’s views on a

particular matter” and “directions to be observed and implemented by

counsel”.

[42] The paragraph in between, however, is important and we think directly

relevant to the judgment in this case:

[68] There may be cases where a failure to follow instructions on a

fundamental decision does not give rise to a miscarriage but they will be

rare. One example is this Court’s decision in R v Chin. The Court in that

case said that even if there had been a “firm instruction” to trial counsel that

Mr Chin was to give evidence, failure to call him would not, “in the

particular circumstances” of the case, have resulted in a miscarriage of

justice. That was because the Court heard from Mr Chin as to what he

would have told the jury if he had given evidence. The Court found that his

evidence “would have invited incredulity from the jury”.

(Footnotes omitted).

[43] As always, dicta in cases should be read against the material facts and issues

that the Court were deciding. There is no absolute rule that counsel are obliged at all

times to act on the instructions received from their clients as to the defence of the

case. The ultimate test is whether there was a miscarriage of justice or not.

[44] Of course, there are cases where failure to pursue instructions as to the

defence can warrant a new trial. Mr Fournier relies on the case of R v McLoughlin.5

This was a case where the instructions to counsel were to run an alibi as a defence to

rape charges. He had arranged for the alibi witnesses to be present at the trial. The

barrister started doing this during the trial and then decided to take it no further and

began cross-examining on the incompatible defence of consent. The Court of

5 R v McLoughlin [1985] 1 NZLR 106 (CA)

Appeal in that case found that the defendant had been deprived of every proper

opportunity to put his defence to the jury and set aside the verdict and ordered a new

trial.

[45] But those are not the facts of this case.

[46] Mr Fournier submitted that Mr Eason had failed to follow instructions as to

the choice of defence to advance, based on Mr Douglas Williamson’s version of

events. Mr Douglas Williamson instructed Mr Eason that he wanted to defend the

charges on the basis that he and his brother had adequately fed and dewormed the

horses. As to the reason they were in poor condition, it may be they were suffering

from iron toxicity. Similarly, it was submitted that Mr Owen failed to follow

instructions and defend the charges on the basis he and his brother had adequately

fed and dewormed the horses.

[47] The facts proven were wholly against them. By the end of the Crown case,

there was no support in the evidence for the proposition that the defendants were

adequately feeding and deworming the horses. The pasture was very poor and the

horses full of worms, as several autopsies showed. Their condition did not

materially improve after service of the notices.

[48] In the face of the very prejudicial evidence over four days before the jury and

the hint of the Judge at the end of that evidence,6 it was appropriate for counsel to

discuss with their clients whether to enter plea discussions with the Crown. To

continue to defend the charges on the basis that the horses had been adequately fed

and dewormed would have been hopeless and increased the prospects of an

imprisonment sentence if, as appeared to be inevitable, the trial proceeded and guilty

verdicts were returned. Inasmuch as the s 347 application on behalf of Douglas

Williamson failed, there was no prejudicial consequence to Douglas, the application

being made in the absence of the jury and the cross-examination of the Crown

witnesses was unaffected by the applications, being made at the end of the evidence

by the experts.

6 See [29] above.

[49] We think this set of facts are very materially different from the set of facts

confronting the Court of Appeal in R v McLoughlin where counsel abandoned an

alibi defence, with supporting witnesses, without instructions.

[50] Ultimately, Mr Fournier’s argument depended upon the proposition that there

was a reasonable defence of iron toxicosis. Once that is rejected, Mr Fournier’s

argument falls away.

[51] The test of whether or not there has been a miscarriage of justice is an

objective one. It goes to the safety of the verdict. It is impossible, on the evidence

before this Court, to advance the proposition that the appellants had any serious

tenable defence. On the contrary, we think Messrs Eason and Owen acted

professionally to minimise, so far as they could, the impact of the law upon their

clients’ proven conduct.

[52] Accordingly, there was good reason for the appellants’ counsel to recommend

a settlement plea. They pointed out to their clients that the Crown evidence

diminished their prospects of success. This advice was reinforced by the remark of

the Judge observing the possibility of a term of imprisonment at the end of the

Crown case. The Judge was inviting some plea agreement to bring the proceedings

to an end.

[53] Both the recommendations of counsel and the invitation from the Judge

confirm that these professionals saw, after four and a half days’ evidence, an

overwhelming case against the defendants. There was no realistic prospect that they

could escape conviction, given the state of the horses and their failure to respond

properly to the notices from October 2009 to the end of March 2010.

[54] We think that Judge Farish was right to encourage a plea. Judge Saunders

was right to rule against allowing the Williamson brothers to withdraw their pleas.

There was no miscarriage of justice, essentially because no tenable defence has been

demonstrated. This aspect of the appeal against conviction is dismissed.

Fresh evidence – the significance of Dr Parton’s evidence

[55] The appellants rely on proposed evidence from Dr Parton. She is a

veterinarian surgeon. She never saw the horses. All she has seen are the blood

results for the stallion, Danny B. She says:

The diagnosis that horses in the herd may have had iron toxicity cannot be

proved or disproved as investigations were not performed at the time of

impoundment and it is unlikely to be determined at this time.

[56] She records that the iron content in the water from the farm at Quaifes Road

was measured by Hill Laboratories in Hamilton at 0.62 grams/m3 which is over

twice the recommended limit of iron in drinking water. She then concludes:

Given the amount of time the horses were grazing on this property, this

chronic exposure to the iron in the water exceeds any scientific research

conditions that have been published in peer reviewed journals, however,

given the number of publications on iron toxicity in animals there is a case

for supporting iron toxicity.

[57] She goes on to make it clear that she is not making a diagnosis of iron

toxicity.

[58] The admission of fresh evidence on appeal is governed by a sequential series

of tests:7

(a) Is the evidence credible?

(b) If so, is the evidence fresh in the sense that it could not have been

obtained for the trial with reasonable diligence?

(c) If the evidence is fresh and credible it should be admitted unless it

would have no effect on the safety of the conviction.

(d) If the evidence is credible but not fresh, it may nevertheless be

admitted if there is a risk of a miscarriage of justice if it is not

admitted.

7 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

[59] However, the evidence is not fresh. It was not as if iron toxicosis, as a

defence, had not been identified. It had been. Mr Douglas Williamson had obtained

analysis of water samples after the horses were removed. This showed high iron

levels. His trial counsel, Mr Eason, then spent some time conferring with the

veterinary pathologist from Massey University, Dr McLaughlin, about that. He,

however, discounted the defence, in part because he considered iron toxicosis would

not alter the parasitic worm burden the horses were found to have.

[60] The fact that scientific evidence is not fresh does not mean that it cannot be

admitted on appeal.8 More significant in this case is our view that admitting the

evidence would have no effect on the safety of the conviction. The Crown

witnesses, Dr Ranken and Dr Fairly, were cross-examined on iron toxicosis.

Dr Ranken said he had never seen iron toxicosis in horses. Dr Fairly said he had

tested brown pigment on the livers of two of the euthanised horses for iron and they

had come back negative.

[61] Indeed, as already recorded in [28] above, it was the evidence of the

pathologist, Dr Fairly, coming on top of the other witnesses, which generated the

plea of guilty. Judge Saunders, in his review in the District Court, put it this way:

[67] Water samples taken after the horses were removed had been

submitted for analysis and high iron concentration was said to have been

found in the samples.

[68] This was, it seems, the primary focus of the defence case. After the

expert evidence of Mr Fairley [sic] about the impact of severe worm burdens

in the results, it did not appear that the issue of iron toxicosis was a viable

defence, hence the need to reappraise the strength of any defence evidence.

[62] In this Court, Mr Fournier (who was counsel for the Williamson brothers

before Judge Saunders), has endeavoured again to bring the focus back on iron

toxicosis as a cause. To breathe life into this possibility as a tenable defence

involves disregarding the severe parasitic burden on these horses and the narrative of

neglect by the SPCA witnesses following the first inspection on 2 October 2009,

through six months, to the end of March 2010.

8 At [120]–[126].

[63] In our view, Dr Parton’s evidence is essentially speculative but, more

significantly, overwhelmed by the impact of the evidence from the other

veterinarians.

[64] We do not think there is any risk of a miscarriage of justice if the affidavit of

Dr Parton is not made the subject of evidence in a retrial. In short, it is not credible

as a defence in the face of the proven condition of the horses infected by parasites

(worms) and the narrative of persistent neglect. The applications to adduce this

evidence are declined.

Was it proved the horses were distressed?

[65] In this Court, it was also submitted that trial counsel did not inform their

clients that a defence could be advanced on the basis that the Crown failed to adduce

sufficient evidence to prove beyond a reasonable doubt that the distress caused to the

horses that were the subject of counts two through to seven, was so great that it was

necessary to destroy them.

[66] The context of this argument is s 28(1)(c) of the Animal Welfare Act which

provides:

28 Wilful ill-treatment of animals

(1) A person commits an offence if that person wilfully ill-treats an

animal with the result that—

…

(c) the pain or distress caused to the animal is so great that it is

necessary to destroy the animal in order to end its suffering;

[67] Counts 2–7 were alleging breach of this section.

[68] The argument in this Court was that they were put down without proof that

the pain or distress caused to the animal was so great that it was necessary to destroy

the animal in order to end its suffering. Reliance was placed on evidence that the

judgment of the veterinarians, in respect of each animal, was that the animals would

not be able to recover to their full adult size.9

[69] In our view, this was not the effect of the evidence. It needs to be kept in

mind that these animals were put down without the consent of their owners, the

appellants in this case. They were put down because the veterinary surgeons

(including the surgeon acting for the Williamsons) considered that the deterioration

of the animals was irrecoverable. Putting down an animal without the owner’s

consent is serious conduct by a veterinary surgeon. We have no doubt that the

reference by the veterinarian surgeons to the irrecoverability of these animals was a

final consideration, after having examined the animals over some time and identified

their plight. The decision to enthanise the six horses was a humane response.

[70] In the course of her sentencing remarks, Judge Farish said that the facts that

she and the jury heard were:10

… disturbing and at times very distressing. Mr Vanderkolk [Crown counsel]

is right that the effect of the videos and the photos that the jury saw,

particularly of the colt that was euthanized on the property and of Danny B

caused them visible distress. I, at times, had to limit the amount of video

footage that they were able to see

[71] In the light of the evidence, reinforced by Judge Farish’s observations of that

evidence, it would have been hopeless to try to persuade the jury that the test,

namely, “distress caused to the animals was so great that it was necessary to destroy

them in order to end their suffering” was not established.11

[72] None of the grounds of appeal are made out. The appeals against conviction

are dismissed.

Sentencing appeal

[73] Mr Fournier’s submissions on sentence were that the Judge adopted too high

a starting point. Second, that she erred by considering remorse, or the absence of it,

9 See [15] above.

10 R v Williamson, above n 2, at [5].

11 Animal Welfare Act 1999, s 28(1)(c).

to be a determinative factor in deciding against home detention, given this was a case

of neglect rather than deliberate infliction of harm.

[74] The Crown submitted that there is no established tariff for this kind of

offending. It considered that counsel for the appellant was relying on the Court of

Appeal decision of R v Albert as a similar case.12

It pointed out that this was a case

where the appellant was convicted on only one count of wilful ill-treatment of an

animal and one count of failing to comply with his statutory duty to care for his

horses. Furthermore, the offending in that case covered a period of only ten days,

compared to almost six months in this case.

[75] The Crown also submitted that Albert should be read now against an

appreciation that the maximum penalties available under the Act were increased by

legislative amendment on 1 July 2010.13

[76] The explanatory note to the Bill said the amendments were to bring about an

increase in penalties imposed. The maximum penalty for s 28 offending was

increased from three to five years’ imprisonment and from a $50,000 to a $100,000

fine.

[77] Moreover, there is substance to the proposition that sentences of

imprisonment are usually coincident with deliberate infliction of harm.14

In the case

of Ministry for Primary Industries v Erasmus Mr Erasmus broke the tails of 115 of

135 cows.15

The tail’s function is to swing away flies. As a consequence, many

cows suffered broken legs, swollen hocks and some developed large haematomas on

their hind legs which became infected and abscessed. Mr Erasmus attempted to

lance some of the abscesses with a knife. Of the 135 cows, one was put down

immediately and 26 were put down at a subsequent stage. An end sentence of two

12

R v Albert CA126/03, 19 December 2003. 13

Animal Welfare Amendment Act 2010. 14

Ministry of Primary Industries v Erasmus [2013] NZHC 281, [2013] NZAR 311; Karekare v

Police HC Hamilton CRI-2011-419-67, 3 November 2011; Hurring v Society for Prevention of

Cruelty to Animals HC Dunedin CRI-2009-412-19, 8 September 2009; Burton v Police [2013]

NZHC 1389; Karena v Police HC Hamilton CRI-2005-419-118, 13 October 2005; Gwatkin v

Police HC New Plymouth CRI-2011-443-5, 1 March 2001; and Ford v Royal Society for the

Prevention of Cruelty to Animals HC Christchurch CRI-2004-409-149, 9 September 2004. 15

Ministry of Primary Industries v Erasmus, above n 14..

years one month’s imprisonment was imposed. These cases, however, are not

authority that the convictions have to be deliberate ill-treatment before a prison

sentence is imposed. Whether imprisonment is the appropriate starting point does

not depend on whether the initial action is (often very brief) violent cruelty or not.

Rather, it depends on a range of factors including intended or apprehended effect on

the animal, the extent of suffering, the number of animals suffering, the period of

time of suffering, the ultimate consequence for the animals and the nature of any

third party intervention.

[78] Judge Farish went through the narrative of events in some detail, largely

covered in the earlier part of this judgment. She considered as the first aggravating

feature, the length of time over which the animals were suffering, which was nearly

six months from 2 October 2009 through to their uplift or their demise on 29 March

2010. She was impressed by the number of animals involved and the fact that the

defendants were on notice. She saw them as not accepting “responsibility for why

your horses were in such terrible condition”. She did not accept that they did not

appreciate the state of the six horses euthanised, or Danny B, which was

disappointing and an important issue for her in terms of the sentencing exercise.

These findings of fact by Judge Farish mean that the neglect in this cases was not

just carelessness. Rather, it had reached the point of being wilful. Hence, the laying

of the charges under s 28 in respect of the six horses which were euthanised.

[79] Judge Farish summed up the history:16

This was not the SPCA coming down on you hard, this was the SPCA trying

to find a way in which they might be able to assist. If you had not got the

finances, if you could not cope with the number of horses, if you were out of

your depth in relation to your care of the horses, they were prepared to assist

and help but you continued.

[80] She took into account their good character otherwise. She recognised that

they had lost access to their previous land which would have been adequate for the

care of the horses (but had been compulsorily acquired after the Canterbury

earthquakes) and found themselves with a lot of horses on a very small area of land,

16

R v Williamson, above n 2, at [11].

some 15 acres. She recognised they might have been distracted from the plight of

the horses’ welfare by other issues in relation to the Selwyn District Council.

[81] But overall she considered that they were arrogant, ignoring SPCA and

veterinary advice. For these reasons, she considered that a term of imprisonment

was an appropriate starting point.

[82] She rejected Crown counsel’s submission of a starting point of four years’

imprisonment, based on accumulating available sentences. She looked at it on a

totality basis and took a starting point of 18 months’ imprisonment. She gave a 10

per cent credit for no prior convictions and being of good character. She reminded

herself that she could only impose a term of imprisonment if she was satisfied no

other sentence or combination of sentences met the principles and purposes of

sentencing.

[83] She turned to consider home detention, relying on the decisions in

Fairbrother v R, Manikpersadh v R and the High Court decision in Kumar v R.17

Applying these authorities, the Judge said that home detention is generally suitable

only for defendants whose remorse was clear, so that they might be expected to

convert a less restrictive sentence into a meaningful rehabilitative response. She

considered that a sentence of home detention would not bring that about and,

accordingly, imposed a sentence of 16 months’ imprisonment.

[84] The Crown submitted that this line of reasoning did not mean that the Judge

treated their lack of remorse as the determinative factor. They drew attention to the

overall analysis by Judge Farish:18

Home detention is one step down from a sentence of imprisonment. It is

designed to hold you accountable, to deter you, to denounce your conduct

and ultimately, to try and hold you responsible and also to rehabilitate you.

The problem for me though, in terms of a sentence of home detention, is that

it will bring about none of those aspects. You have no remorse, you do not

accept responsibility for this offending. The offending is grave. It is nearly

at the highest in relation to the most serious that one could see in relation to

the horses. They needed to be euthanised on the spot because of the poor

17

Fairbrother v R [2013] NZCA 340; Manikpersadh v R [2011] NZCA 452; and Kumar v R [2014]

NZHC 146 at [19]. 18

R v Williamson, above n 1, at [38].

condition that they were in. You were on notice and had been on notice for

nearly six months of their condition. As I said, and I am reminded by what

Justice Kós has said, there is no remorse. Home detention would not meet

any of those principles and purposes of sentence, so the sentence is one of 16

months’ imprisonment.

[85] It can be seen from the above paragraph that the Judge does not rely solely on

the lack of remorse; the second half of the paragraph also emphasises the gravity of

the offending and the six month period of their condition.

[86] We agree with the Crown that the aggravating features of offending in the

present case are the serious mistreatment of a large number of animals, over a long

period of time, by persons whose experience with horses meant they ought to have

known better. Any acceptance of responsibility was not apparent in John

Williamson’s case, and came late in the piece in Douglas’ case. It was open in these

circumstances to the Judge to conclude it was appropriate to imprison them and to, in

that regard, adopt an 18 month starting point.

[87] We think that the Judge’s approach to sentencing does not display any error

of law. That she has turned her mind to the relevant considerations. Accordingly,

there is no basis to intervene on appeal. The appeals against sentence are dismissed.

Solicitors: Crown Law Office, Wellington for Respondent