From today’s Herald:
Sadists who hacked off an eight-week-old puppy’s ears with a pair of scissors have avoided prosecution because witnesses refused to give evidence in court.
After a lengthy investigation, Mr Blair established where the puppy came from and managed to find out what happened from several residents, but they refused to go on the record with their evidence, despite the SPCA’s numerous attempts to persuade them to.
As we have previously discussed, the bulk of the enforcement work under the Animal Welfare Act 1999 falls squarely (and heavily) on the SPCA’s unfunded shoulders. In Auckland, the SPCA has the benefit of pro bono legal assistance.
In Tauranga, it does not. And it needs it. Or, rather, if it is to keep fulfilling a law enforcement role, it needs to be treated like a law enforcement agent – meaning it needs to be funded to engage the firms holding Crown warrants (that is, Crown prosecutors) at the Crown rates.
71 Eligibility and compellability generally
(1) In a civil or criminal proceeding,-
(a) any person is eligible to give evidence; and
(b) a person who is eligible to give evidence is compellable to give that evidence.
That is section 71 of the Evidence Act 2006. Any person (except the defendant/accused – s 73) is eligible to give evidence, and, if you are eligible to give evidence, you may be compelled to give evidence. What does compelled mean?
It means that a person may be summonsed to give evidence. If you don’t? The Crimes Act 1961 kicks in:
352 Refusal of witness to give evidence
(1) If any witness, without offering any just excuse, refuses to give evidence when required, or refuses to be sworn, or having been sworn refuses to answer such questions concerning the charge as are put to him, the Court may order that, unless he sooner consents to give evidence or to be sworn or to answer the questions put to him, as the case may be, he be detained in custody for any period not exceeding 7 days, and may issue a warrant for his arrest and detention in accordance with the order.
(2) If the person so detained, on being brought up again at the trial, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him, the Court, if it thinks fit, may again direct that the witness be detained in custody for the like period, and so again from time to time until he consents to give evidence or to be sworn or to answer as aforesaid.
(3) Nothing in this section limits or affects any power or authority of the Court to punish any witness for contempt of Court.
Unless you have just excuse, if you refuse to give evidence, you may be jailed for a bit, then asked to give evidence. If you refuse again, you can be jailed again, and the Court can damn well keep on jailing you until you change your mind. And you’re in contempt of Court too.
And if you don’t refuse to give evidence, but just don’t turn up? Section 351 allows a $500 fine and:
If any witness who has been summoned to give evidence at any trial … fails to attend at the time and place appointed, the Court may issue a warrant to arrest him and bring him before the Court, and may adjourn the trial.
Of course, if they don’t won’t to talk, they might not be very helpful in Court. They’ll clam up. But that’s okay for the prosecutor, because she can hit them with section 94 of the Evidence Act 2006:
94 Cross-examination by party of own witness
In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge.
For non-lawyers, let me explain what cross examination means. It means that instead of asking you open questions, the lawyer can put closed statements to you, for you to say “yes” or “no” to. Not “What did you see?” but “You saw him hacking off that puppy’s ears, didn’t you?”
And if you lie on the stand, that’s perjury. If you say something different from what you said in a prior (“off the record”) conversation with the SPCA inspector – that’s a prior inconsistent statement, and, well, yes, the prosecutor can most probably adduce it as evidence.
Of course, none of this would help the SPCA in their initial investigation. There’s no point in getting someone on the stand if you don’t know what they saw, heard, or did. But they’ve already told the SPCA:
“They spoke to me but they were quite clear in their minds that they wanted to remain anonymous because of fear of the people that were involved,” he told NZPA.
“It’s frustrating knowing who’s responsible but not being able to take that extra step to follow through, which is a common problem that the SPCA has because the animals don’t talk so we do rely on either a confession or witness statements.”
So why can’t the SPCA convict the puppy mutilators again?
Because they don’t have good legal advice.
And why don’t they have good legal advice?
Because they can’t afford it.
And why can’t they afford it?
Because they’re fulfilling the state’s law-enforcement function without any government funding and without the legal assistance offered to the formal law-enforcement branches of the state.
That is: They’re doing the government’s job, but the government isn’t paying (or helping).