[Note: This is a cross-post from my personal site]
On 31 October 2010 Auckland Council inherited a policy from the legacy Auckland City Council that prohibited rodeo events on council land in the former Auckland City area. The ban was not a bylaw, it was a resolution of the whole Council led by John Banks. Because it was not a bylaw, it was unclear if and how it would be carried over into the new Auckland Council. Continue reading
First, the Ministry for Primary Industries has confirmed that attempting to surf on the carcass of a shark is not a crime:
The Ministry for Primary Industries says it has found no breach of the Animal Welfare Act after complaints over a shark `surfing’ incident.
A spokesperson for MPI said the matter would not be investigated any further.
“We’ve determined that there has been no breach of the Animal Welfare Act as the shark had been dead for around 30 hours before video footage was recorded.”
Three men from the Bay of Plenty caused outrage when footage emerged of one man “surfing” behind a boat on the carcass of the thresher shark which was being towed by its tail.
Bay of Plenty Times, via the NZ Herald.
This is ridiculous on every possible level. First, if you read the full story, you will see that two fishermen accidentally killed a shark, then decided to tow the carcass back out to sea to dump it. And, because they’re fun loving, wacky, kiwi blokes they decided to…surf it…out…to sea. I’m not entirely sure how anyone could come up with that. Second, the whole Herald story is about how surfing a deceased shark is not a breach of the Animal Welfare Act 1999.
Here’s a hint, guys: The Animal Welfare Act 1999 applies to living animals.
And, third, slipped in there without fanfare is the renaming of the Ministry responsible for animal welfare. The Ministry for Agriculture and Forestry, merged with Fisheries etc is now the Ministry for Primary Industries. Would it be possible to make the ridiculous conflict of interest at the heart of New Zealand’s animal welfare regime more obvious? The Ministry responsible for promoting primary industries (like, say, industrial farming) is responsible for prosecuting breaches of animal welfare (like, say, much industrial farming).
Wired magazine presents even more shark-related madness though: “Scientists” (hint: they’re not scientists) have mounted a laser on a shark:
Relax, Dr Evil. Your inspired request for “sharks with frickin’ laser beams attached” has finally been fulfilled in the real world.
Marine biologist-cum-TV personality Luke Tipple attached a 50-milliwatt green laser to a lemon shark off the coast of the Bahamas in late April. The escapade was sponsored by Wicked Lasers, a consumer-focused laser manufacturer based in Hong Kong that produces some of the most brilliant — and potentially dangerous — handheld lasers in the world.
“This was definitely a world first,” Tipple told Wired. “Initially, I told them no. I thought it was a frivolous stunt. But then I considered that it would give us an opportunity to test our clips and attachments, and whatever is attached to that clip, I really don’t care. It was a low-powered laser that couldn’t be dangerous to anyone, and there’s actually useful application of having a laser attached to the animal.”
Tipple said the experiment was instructive in a number of ways. For starters, he was able to further test his clamping apparatus, which is typically used for traditional data-aquistion equipment.
That’s right. Clamping a laser to a shark was great scientific research. Because it helped test the clamp. Well, that addresses all my animal welfare concerns right there.
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).
A report in the Dominion Post this week about a particularly nasty case of criminal neglect of sheep in the Manawatu highlights much of what is wrong with the enforcement and prosecution of animal welfare offences on farms in New Zealand:
75 sheep were found dead and another 25 had to be put down [immediately] because of alleged ill-treatment. SPCA officials raided the farm in August after being tipped off about the sheep. The 66-hectare farm is now under strict monitoring by vets and four SPCA inspectors. It is still being run by the farmer and has several hundred sheep.
Although full details have not yet been divulged by prosecutors, pending the laying of charges, it appears that the sheep were emaciated from starvation and severe neglect. The file is about to be sent to Crown Law for prosecution.
For reasons that will become clear, it is important to note that this was a raid carried out by the SPCA (Society for the Prevention of Cruelty to Animals). Under the Animal Welfare Act 1999, three bodies are statutorily-empowered to investigate and prosecute animal welfare cases; the Police, the Ministry of Agriculture and Forestry (MAF) and the SPCA. Only the Police and MAF are fully state-funded, the SPCA relies for 98% of its income on private donations. Continue reading
The Minister for Agriculture, David Carter, has confirmed that the new Pig Welfare Code will phase out the use of sow crates in New Zealand within the next five years. The ban will come into full effect in early 2016.
Many readers will remember that SoLVe (the University of Auckland Law Faculty student group that was the genesis of this blog) hosted a seminar given by Peter Sankoff (to a packed lecture theatre) on this issue on May 27th 2009.
A ban on sow stalls included in the draft welfare code was leaked to SAFE (Save Animals From Exploitation) in February this year.
The draft code, developed by the National Animal Welfare Advisory Committee (NAWAC), was to be released for public notification in December 2009 but was delayed following legal threats from the New Zealand Pork Industry Board. NAWAC preferred a ban by December 2017, a full two years later than the deadline that has been decided.
Sow stalls have already been banned in the United Kingdom and Sweden and will be soon phased out in Finland, Switzerland, the Netherlands and Denmark. Continue reading
With much fanfare, the government launched an animal welfare amendment bill earlier this year. You may remember our scepticism. Now, with much less fanfare, Sue Kedgley MP’s clumsily-titled private members bill, the Animal Welfare Amendment (Treatment of Animals) Bill has been balloted to receive its first reading in September.
So, what does she hope to do? Continue reading
The two men charged with the dog killings in Wellsford have now appeared in court. It was pretty much a standard appearance to enter a plea, and they won’t be back in court for a few more weeks, when a pre-commital hearing will take place. The surprising piece of information coming out from this appearance was that the two defendants have elected a trial by jury. Had anyone asked beforehand, I would have bet heavily that they would have gone for trial by judge alone. Seems to me that their only chance of success in this case is showing that the dogs didn’t suffer sufficiently during the killing spree, and were killed quickly. As hard as that sounds to believe, it would have a better chance of success before a judge, who would have a strong understanding of the prosecution’s burden of proof, and would be less likely to be swayed by the emotions of the situation. I struggle to believe a jury will care about technicalities in light of the number of dead dogs, the “massacre-like” nature of the killings, and the sheer craziness of it all.
The defence’s most likely strategy is to put the dog owner on trial, suggesting that he had too many dogs, that their own dog was killed by his, and that he consented to the killing and is the real person to blame. They may well be able to weaken his credibility as a witness, and perhaps sway a few jury members who worry about dangerous dogs. As I’ve indicated in prior posts, Mr. Hargreaves is no choir boy, and has a lot to answer for himself – but I still don’t see how attacking him buys an acquittal.
This case should be won or lost on the basis of the scientific evidence, and the SPCA’s ability to show that the dogs suffered. Regardless of the reasons for the killing, it was done in a manner that the SPCA should be able to show was detestable, and the owner’s actions will not be enough to legally absolve the defendants of responsibilty for what happened. Still, with a jury involved, it should be a rousing trial, and an interesting one to follow.
California State Senator Dean Florez has proposed creating an ‘abuser registry’ for serious crimes involving animal cruelty. If it becomes law, this bill would place animal abusers on par with sex offenders and require the publication of abusers’ names, photographs, addresses, and other information. A draft copy of the proposed bill can be found here.
With surprisingly little fanfare or attention, the new Animal Welfare Act Amendment Bill has been introduced into Parliament. You can download a copy of the Bill and read the government’s statement behind it here.
As promised, it’s got more than just an increase in penalty for wilful ill-treatment.
Watch this space to read my review of the Bill in a few days time…
Interesting comment from David Carter, Minister of Agriculture – and responsible for the Animal Welfare Act 1999. Not surprisingly, Parliament is fast-tracking Simon Bridges’ Bill to up the penalty on wilful ill-treatment, but Carter indicated in this article that he would consider ‘whether [the Bill] should be widened to make the Animal Welfare Act work better’. Wow! Could be significant. Stay tuned…