Camera never lies, but can be set aside

Cat MacLennan argues there's scanty evidence for a decision to rule footage of a sharemilker beating cows with a metal pole inadmissible on the grounds it would encourage more undercover filming

The judge in the cow cruelty case of Ministry for Primary Industries v Luke ruled that hidden camera film footage of cruelty to the animals could not be used as evidence in the trial of the defendant sharemilker.

The video was obtained by animal activists from Farmwatch, who placed concealed cameras in the farm’s milking shed. That action followed a complaint by the partner of Michael Luke’s co-worker to the Ministry for Primary Industries about his treatment of cows. She alleged the defendant hit the animals with an alkathene pipe, rammed them with a quad bike, and used dogs on them.

MPI animal welfare inspectors visited the property and carried out an inspection, but could find no visible injuries on a specific cow identified as one of the focuses of the complaint. The milking herd was found to be in good health and the inspectors did not identify any welfare issues.

The ministry accordingly took no further action.

The partner of the defendant’s co-worker then contacted Farmwatch and two of the organisation’s members entered the milking shed one evening and placed three hidden cameras there. The pair returned to the farm a week later and removed the cameras, copied the footage onto a hard drive and then reinstalled two of the three cameras.

They returned twice more, removing the cameras for the last time on their fourth visit. The footage was then provided to MPI in its entirety. The defendant did not take issue with the integrity of the film.

MPI examined the video and also referred it to Professor Richard Laven, a Professor of Production Animal Health and Welfare at Massey University’s School of Veterinary Science. He advised that his opinion was the footage revealed mistreatment of the animals.

The defendant was charged with six offences under the Animal Welfare Act 1999. The charges comprised four counts of ill-treatment of a dairy cow by striking her on the hind legs with a metal pipe, and two representative counts relating to hitting cows and failing to handle them so as to minimise unreasonable or unnecessary pain or distress. One charge alleged the defendant hit two cows in the face.

The primary evidence in support of all the charges was the hidden camera footage shot by Farmwatch. The defendant sought exclusion of the evidence. The prosecution accordingly applied to the court under section 78 of the Criminal Procedure Act 2011 and section 30 of the Evidence Act 2006.

The rules relating to improperly-obtained evidence are largely designed to protect people against the power of the state, and in particular the police. However, in this case there was no powerful organisation that acted improperly to obtain evidence.

Section 78 of the Criminal Procedure Act provides that if a prosecutor or defendant in a judge-alone trial believes that the admissibility of evidence might be challenged, a pre-trial application can be made seeking an order to admit the material.

Section 30 of the Evidence Act sets out the rules for determining whether improperly-obtained evidence should be admissible. Essentially, judges must apply a two-stage test. The first question is whether the evidence was improperly obtained. If it was, the judge must decide whether exclusion of the evidence is proportionate to the impropriety. This involves a balancing process weighing the impropriety against the need for an effective and credible system of justice.

Judge Deidre Orchard released her decision as to the admissibility of the footage in January 2020. She said the case was unusual because the evidence had been obtained by persons unconnected with the prosecuting authority and without any encouragement from the prosecuting authority. Most cases relating to the admissibility of evidence involve scrutinising police actions.

Judge Orchard said the case was accordingly analogous to Dabous v R and MPI v Cleaver and Down Cow Ltd.

In Dabous v R, property owners became concerned that their tenant was manufacturing drugs in his flat. They twice entered the premises without authorisation and took photographs. These were given to the police, who used the information to obtain warrants.

The defendant objected to the evidence acquired under the warrants on the basis that the warrants had been improperly obtained as they resulted from the owners’ unauthorised entry to the flat. The District Court judge rejected that argument and said that, in any event, he would admit the evidence on the proportionality test.

The defendant appealed to the Court of Appeal, which held that the conduct of the owners was pivotal to whether the evidence had been unfairly obtained. The court said there were health and safety issues for the owners, but they could also be liable for criminal charges if they knew there was a drug operation being conducted in their property and did nothing to stop it.

The court concluded that the information and photographs provided to the police were not improperly obtained.

In MPI v Cleaver and Down Cow Ltd, Farmwatch also used hidden cameras to capture mistreatment of cows. Farmwatch members entered an enclosed kill chain and yards. However, Judge Phil Connell concluded the footage was not unfairly obtained because Farmwatch’s initial entry was lawful because of implied licence. The privacy expectation in Down Cow Ltd’s kill chain and yards was low.

The judge said the footage was real evidence showing the ill-treatment of calves. The offending was significant and involved “gross mistreatment”. Farmwatch’s actions were motivated by health concerns, similar to those of the owners in Dabous v R.

In the Luke case, Judge Orchard reached the opposite conclusion to that in MPI v Cleaver and Down Cow Ltd. She relied on four factors in concluding that the evidence was obtained unlawfully. The judge said Luke would have had an expectation of privacy in the milking shed and would not have expected to be filmed.

Secondly, the Farmwatch activists at no stage had an implied licence to enter the property or the milking shed. Entering onto a property without permission and under cover of darkness was a serious invasion of privacy and of property rights. Thirdly, unlike in Dabous v R, where owners entered their own property, the Farmwatch activists had no connection to the property or responsibilities relating to it.

Finally, the judge said that this was not the first time Farmwatch had done undercover filming and it was “reasonable to infer that, if encouraged, they will continue to gather evidence by these methods”.

“[T]here is at least an element of vigilantism about their actions. One of the characteristics of vigilantism is that often, as is the case here, the cause is sympathetic. Any right-minded person would be sympathetic to the cause of stopping the mistreatment of animals. But there are real dangers in individuals or organisations operating without authority or oversight and using methods which are unlawful.”

The judge then went on to consider whether exclusion of the evidence was a proportionate response to the impropriety. She concluded that it was. Judge Orchard said Farmwatch had trespassed, with the breach of rights being significant because the workers had a reasonable expectation of privacy in their workplace. She said the activists knew they were not welcome on the property and their breach was deliberate.

“Reasonable to infer” appears to be a scanty basis for concluding that the activists would continue filming in future, and for using this conclusion as a basis for decision-making in a criminal case.

She accepted that the evidence was of good quality and without it the prosecution had “no chance of proving any of these charges”. That factor weighed quite heavily against exclusion. Ill-treatment of animals was obviously a serious matter but, while no means trivial, the allegations involved in this case were not at the higher level of seriousness.

The judge said she was satisfied that, at least to the co-worker’s partner and probably to Farmwatch, there did not appear to be any legitimate investigatory techniques available. That factor favoured admission of the evidence.

Judge Orchard then considered whether there were alternative remedies to exclusion of the evidence that could provide adequate redress to the defendant. She said that, theoretically, the defendant could bring civil proceedings against the activists, but there was no evidence as to their means. Civil litigation was notoriously expensive and the amount of damages that might be recovered was uncertain.

Accordingly, the judge said that exclusion of the evidence was realistically the only adequate redress that could be provided to the defendant. Forbidding production of the footage was proportionate to the impropriety, with the deciding factor being it was “very likely” that Farmwatch would continue to gather evidence in this manner so long as the courts continued to admit it.

“The Court therefore is in the difficult position of having to choose between admitting cogent evidence or making it clear that deliberately flouting the law to achieve a particular object, worthy or not, is not acceptable and the Courts will not condone it.”

The application for exclusion of the evidence was accordingly granted.

The judges in the MPI v Cleaver and Down Cow Ltd and the MPI v Luke cases therefore reached the opposite conclusions in relation to the admission of undercover footage of repeated animal cruelty.

How is that possible?

University of Auckland Associate Professor of Law, Scott Optican, in a 2012 article about section 30 of the Evidence Act explained that the section codified the judicial power in a criminal trial to admit or exclude improperly-obtained evidence. He examined Hamed v R, the first case decided by the Supreme Court on the proportionality balancing test for exclusion.

Optican said that the judgment in Hamed v R effectively did away with the analytical scheme for section 30 determinations set out by the Court of Appeal in R v Williams. He strongly criticised the Supreme Court’s approach, stating that its decision offered little rational or coherent structure to direct lower courts on how to apply the section 30 tests.

Optican concluded that the Supreme Court had abandoned section 30 determinations to the largely-unguided discretion of trial and appellate judges.

“Accordingly, instead of ironing out certain problematic aspects of Williams and its progeny – or offering its own fully realised approach to proportionality-balancing and the considerations codified in s 30(3) – the unfortunate result of Hamed will be to regress judicial decision-making under s 30 back to a period of inconsistency, unpredictability and confusion.”

Optican concluded that exclusionary rule judgments would accordingly have little precedential value for one another, and patterns of section 30 decision-making would be difficult to discern.

The filming was done by people with no coercive powers they could overstep, and with no motivation other than the altruistic one of protecting animals from abuse.

“[T]he lack of guidance provided by Hamed regarding when the circumstances of a particular case should point towards or away from exclusion will permit judges of various ideological stripes to engage their sympathies and predilections on proportionality-balancing as they see fit.”

This lack of consistency in decisions about admission or exclusion of evidence is demonstrated by a comparison of the decision-making in MPI v Luke with that in MPI v Cleaver and Down Cow Ltd.

In the former case, as discussed above, Judge Orchard referred to four factors in concluding that the hidden camera footage was unlawfully obtained. She did not mention or consider animal cruelty at all. Her reasoning related solely to privacy and trespass and she said that it was “reasonable to infer” that the activists would continue filming undercover if their evidence was admitted by the courts.

“Reasonable to infer” appears to be a scanty basis for concluding that the activists would continue filming in future, and for using this conclusion as a basis for decision-making in a criminal case.

The judge’s description of the activists’ actions as “vigilantism” is also wide of the mark. Vigilantism is used to describe law enforcement without legal authority, often involving extreme violence. In the Luke case, the activists sought to gather evidence after the failure of the regulatory agency to do so and in a situation in which it was accepted that evidence could not be obtained lawfully.

The footage was then provided to the regulatory agency so that it could enforce the law. The activists did not seek to enforce the law themselves.

In relation to the decision as to whether exclusion of the evidence was a proportionate response to the impropriety, Judge Orchard said that she regarded the activists’ trespass as significant. It was not until page eight of her nine-page judgment that she referred to the ill-treatment of animals: only two sentences of the whole decision considered animal cruelty.

She then concluded that “while by no means trivial I do not regard the allegations involved in this case as being at the higher level of seriousness”. That is a startling and concerning statement. The footage showed cows being repeatedly beaten with a metal bar, including being struck in the face.

It is very worrying that the judge does not regard this as a serious matter. Cows are entirely at the mercy of those who own and handle them. It is extremely rare for details of how cows are treated to come to public attention, as events occur on farms which are remote from the public gaze.

The prosecutions in recent years for cow cruelty represent only a fraction of the total mistreatment that occurs.

In MPI v Cleaver and Down Cow Ltd, the judge said that the cruelty was “gross mistreatment” of the calves and the offending was significant. The judge also said that Farmwatch was motivated by health concerns, similar to those of the property owners in Dabous v R.

However, Judge Orchard did not make such an acknowledgement, instead focusing on the activists’ unlawful entry to the property. This was despite the fact she accepted there was no other means to obtaining the evidence to stop the repeated ill-treatment of the animals.

A comparison of the decision in Dabous v R underlines the status given to protection of humans. It can be argued that there is a much higher expectation of privacy in one’s home than in a milking shed, so the actions of the property owners in Dabous v R can be viewed as being more serious than those of the animal activists. Despite that, the Dabous v R evidence was ruled admissible.

The judge in the Dabous case was prepared to admit the material to protect the property owners from health and safety concerns and the possibility of prosecution. However, in the Luke case, the judge referred only in passing to animal cruelty and was not prepared to admit evidence to prevent future ill-treatment of animals.

Section 30 sets out eight factors the court may have regard to in deciding whether or not evidence should be excluded. Judge Orchard could have applied the factors in section 3(g) and (h) – whether the impropriety was necessary to avoid apprehended physical danger to the police or others; and whether there was any urgency in obtaining the improperly-obtained evidence.

The judge applied neither of these factors. The defendant’s repeated actions clearly constituted “apprehended physical danger” to the animals he worked with at the time and any he works with in future. It could also be argued that there was urgency to obtain the evidence to prevent the defendant from carrying out further cruelty to cows, both at the farm to which the events related and in future situations.

Another consideration is that the rules relating to improperly-obtained evidence are largely designed to protect people against the power of the state, and in particular the police. However, in this case there was no powerful organisation that acted improperly to obtain evidence.

Rather, the filming was done by people with no coercive powers they could overstep, and with no motivation other than the altruistic one of protecting animals from abuse.

The judge also gave insufficient weight to the section 30(2) factor of the need for an effective and credible system of justice. Following the decision to exclude the hidden camera footage, the defendant pleaded guilty to one charge. Five other charges were withdrawn.

It was only in 2015 that the law in Aotearoa accepted that animals were living beings, with the insertion of a Declaration of Sentience into the Animal Welfare Act. Decisions such as that in Luke illustrate that there is a long way to go in providing any proper legal protections to animals.

Cat MacLennan is a convenor of Animal Agenda Aotearoa

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