Balfour & Balfour v R
13 September 2013
MEDIA RELEASE – FOR IMMEDIATE PUBLICATION
Daryl Kirsty Reid Balfour
v The Queen
David Neil Balfour v The Queen
(CA 444/2012 and CA445/2012  NZCA 429)
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at Judicial Decisions of Public Interest:
Court of Appeal panel: Justice White (presiding and giving reasons for the Court), Justice Goddard and Justice Simon France.
On 5 March 2007 Royal New Zealand Society for the Prevention of Cruelty to Animals (SPCA) inspectors, assisted by police, conducted a search under warrant of the rural property of Mr and Mrs Balfour. The Balfours operated a commercial partnership breeding pedigree cats and dogs on the property. The search was filmed by a Television New Zealand cameraman contracted by the SPCA to film evidence as an “assistant”. The SPCA found a large number of cats and dogs on the property. The cats and dogs were described as living in filthy, unhygienic conditions. The cats were suffering from a range of diseases some lacked access to water and were dehydrated. As a result of the search most of the cats and many of the dogs were destroyed.
The Balfours were subsequently charged with four offences under the Animal Welfare Act 1999 (the AWA). The AWA makes it an offence to fail to meet the physical, health, and behavioural needs of animals (proper and sufficient food and water; adequate shelter; the opportunity to display normal patterns of behaviour; physical handling that minimises the chance of unreasonable or unnecessary pain or distress; and protection from and rapid diagnosis of any significant injury or disease) as well as providing for specific offences against animals.
The Balfours were charged with (a) failing to ensure the physical, health, and behavioural needs of no more than 87 dogs; (b) failing to ensure the physical, health, and behavioural needs of no more than 161 cats; (c) ill-treating no more than 87 dogs; and (d) ill-treating no more than 161 cats.
Before the start of their trial the Balfours were largely successful in a challenge to the validity of the search. Judge Garland on the District Court found that the search warrant was invalid due to delay in acting in information and inappropriate features of the warrant application. The District Court also found that the AWA, which empowers animal welfare inspectors, did not authorise the TVNZ cameraman to be present. The District Court found that the Balfours’ right under s 21 of the New Zealand Bill of Rights Act 1990 to be free from unreasonable search and seizure had been breached as a result. As a remedy, the Balfours obtained orders excluding from their trial all the TVNZ footage and all observations relating to their home. However, the District Court took into account the fact that the SPCA inspectors could have invoked an alternative search power under the AWA and that the Bafours had a lesser privacy interest in other areas of their property. Because of this, the remainder of the evidence obtained during the search, in particular the photographs and observations of the SPCA officers concerning the state of the property (other than the Balfours’ home) and the animals, was ruled admissible. The Balfours’ attempt to appeal to the Court of Appeal to exclude the remainder of the evidence was unsuccessful.
After a 30-day judge-alone trial conducted by Judge Fraser in the District Court over six months in 2011 the Balfours were convicted on three of the four charges on the basis of evidence given by the SPCA inspectors and four veterinary surgeons which was accepted in favour of the evidence of the Balfours and witnesses called by them. The charge of ill-treating no more than 87 dogs was found not proven and the Balfours were found to have failed to meet only the dogs’ need to be protected from significant injury or disease.
The District Court did not accept the Balfours’ contention they had taken adequate care of the cats and dogs and that the SPCA inspectors had altered scenes they found for the purpose of taking incriminating photographs and had also planted “ring-in” animals. The District Court sentenced the Balfours to fines totalling $12,500 each, to be paid to the SPCA, disqualified them from owning animals (other than their own pets) for a period of 20 years, and ordered that they pay costs totalling $27,818.08. The Balfours’ application to be discharged without conviction was declined.
The charges on which the Balfours were convicted are “strict liability” offences. This means that, unlike most criminal offences, it was not necessary for the prosecution to show that the Balfours intended to harm the cats or dogs.
The Balfours appealed against their convictions and sentences in the District Court to the Court of Appeal. The Balfours advanced a number of arguments:
That the District Court’s exclusion of evidence was mistaken, either on the basis that all the search evidence should have been excluded, or that in the alternative the TVNZ footage should not have been excluded, because it showed that the admissible evidence was not accurate. The Court of appeal found there was no reason to depart from the decision of the District Count.
That the trial involved a number of legal errors. The Court of Appeal found that the trial approach was largely correct and did not result in any error in the Balfours’ case.
That the Balfours’ rights to a fair trial were breached because they were not given adequate time to respond to trial developments and that the expert evidence of two veterinarians called by the Crown at their trial should have been excluded because one was so biased against them that her evidence was of no assistance to the Court and that the other was in breach of his disclosure obligations. The Court of Appeal found that these contentions were not supported by the evidence.
That the sentences to pay fines of $12,500 each, disqualifications from owning animals for 20 years and the decision not to discharge them without conviction were excessive. The Court of Appeal did not find that the trial Judge had made any error in declining to discharge the Balfours or imposing the fines and disqualification period. However, the Court of Appeal was not satisfied that the order that the Balfours pay the $27,818.08 in costs was “just and reasonable” in the circumstances of the case for a number of reasons, including the absence of any suggestion that the Balfours would have any ability to pay the costs and the period of disqualification (which prevented the Balfours’ partnership from continuing to operate). The Balfours’ appeal was therefore allowed in this respect and the District Court costs orders were set aside.
The result is that the Balfours’ appeals are dismissed in all respects, except that the costs orders made against them are set aside.