Newsroom Special Inquiry
Cow-beating footage thrown out in court
Hidden camera footage showing cows being beaten with a steel pipe was deemed unlawful in court partially on the grounds it would encourage undercover filming in the future
A Northland contract milker caught on hidden camera beating cows with a steel pipe has had five charges against him dropped after a judge ruled the footage was obtained unlawfully.
While it was agreed the footage - first exposed in a Newsroom story in 2018 - showed the mistreatment of animals, the fact animal advocates trespassed in order to obtain it led to the judge excluding the evidence.
Michael Ian Luke appeared in the Whangārei District Court Monday facing one representative charge under the Animal Welfare Act related to failing to handle dairy cows in a way that minimised the likelihood of unnecessary pain or distress. This related to hitting a cow around the legs with an alkathene pipe and a metal bar.
The maximum penalty for the charge is 12 months' imprisonment, and/or $50,000. He received a fine of $3000 plus $130 in court costs.
Judge Deidre Orchard ruled that allowing the hidden camera footage captured by animal advocacy group Farmwatch could encourage deliberate flouting of the law. She said it was "reasonable to infer that, if encouraged, they will continue to gather evidence by these methods”.
The charge Luke was convicted on relied on evidence not supplied by Farmwatch.
Luke hit one cow in particular around the legs with a steel pipe so severely both legs were swollen and she struggled to walk.
Case summary documents show his explanation for the treatment was there were three cows in his herd that were "grumpy bitches" and he was sick to death of them kicking "the shit" out of him or other cows. He said he faced two options: send them to slaughter or "educate" them.
While the use of the steel pipe was drastic, nothing else had worked and the cows were still alive and were not sent to the works.
"The defendant accepted that he did not meet the minimum standard, but somehow he had to educate the cows and that's how the animal kingdom works, 'cows are bullies'."
Judge Orchard described his attitude as callous during sentencing. She did not prohibit him from engaging in farming for any period, and noted this was not sought by the Ministry For Primary Industries (MPI).
Farmwatch spokesperson Debbie Matthews said the "limp sentence" was outrageous "... if this does not warrant him being banned from working with animals, what does? We think the public will be disgusted with this outcome".
Judge Orchard said she took into consideration the fact only one animal was hurt and the injuries sustained by the cow were ones it would recover from. She also noted Luke had been farming for 40 years without coming before the court.
Failed attempts to raise the alarm over mistreatment
Luke had previously been the subject of an animal abuse complaint to MPI made by a former worker at the farm; however, investigations by MPI found no issues.
When Luke started using a steel pipe to hit the cows, MPI was contacted again but the worker said MPI told them the case was closed and nothing more could be done without proof.
When Newsroom reported on the story in 2018, the farm worker said they felt as if they had hit a brick wall: “We went through the right channels. We went to the owner first, nothing was done. We went to MPI, nothing was done. We didn’t want to leave it.”
The worker contacted Farmwatch about the situation and the organisation placed hidden cameras in the milking shed. These captured a month of footage which the group then supplied to MPI on June 21. MPI searched the property June 28, the same day Newsroom published a story.
Footage captured by Farmwatch, and Luke's reaction to allegations put to him by Newsroom's Melanie Reid can be seen in the video below.
Why the hidden camera footage wasn’t allowed
Luke objected to the admissibility of the video evidence captured.
In assessing whether it was admissible, Judge Orchard noted it was not the first time Farmwatch had trespassed to obtain footage: “...it is reasonable to infer that, if encouraged, they will continue to gather evidence by these methods … there is at least an element of vigilantism here".
She said while any right-minded person would be sympathetic to the cause of stopping mistreatment of animals, there were “real dangers in individuals or organisations operating without authority of oversight and using methods which are unlawful”.
Based on her ruling, the footage, which she called “cogent evidence", was obtained unlawfully, and five charges against Luke were dropped.
These included three charges of ill-treating a dairy cow by striking it on the hind legs with a "metal object” and one charge of ill-treating two cows by striking - including on the face. All four charges were based on video evidence caught on hidden cameras.
The footage was viewed by Professor Richard Lavern, who concluded it revealed mistreatment of animals.
Farmwatch's Matthews said while it wasn’t allowed in the case, the video footage was still important.
In her ruling on the video evidence, Judge Orchard noted that theoretically Luke could bring civil proceedings against the two Farmwatch members who entered the property.
Matthews said she would have preferred MPI to have undertaken the work the group did, and that the group receives frequent messages from farm workers witnessing animal abuse.
“It takes a lot for a worker to speak out. If they do contact MPI, it's at great personal risk, with the potential for them to lose not only their job and their home (often based on the farm) but also future employment.”
The role of MPI
MPI director of compliance Gary Orr said people who were in charge of animals had a duty of care toward them, and that MPI investigates reports of animal mistreatment and takes appropriate action against offenders.
"The law is clear on these matters and anyone would agree this does not meet our high standards for the care of animals."
Newsroom asked if the judge's decision to exclude Farmwatch's video evidence was appealed and was told MPI accepted the judge's decision that the footage was inadmissible. It also did not seek to prohibit Luke from farming.
"... the courts can use their discretion to consider banning someone from working with animals."
A press release published today urges the public to get in touch with the Ministry when animals are being ill-treated.
Farmwatch's Matthews is critical of how the situation has been handled.
“Multiple complaints had been made about Mike Luke, but MPI only began a real investigation after our video evidence had emerged. Initially, they didn't bring a vet, they didn't talk to the farmworkers (or previous employees), they didn't properly inspect the animals or even plan a follow-up visit.
“A brief chat was all it took to dismiss serious complaints of animal abuse.”
She said relying on a complaints system is an ambulance at the bottom of the cliff approach.
“We expect more from an industry with so many animals at its mercy. The bare minimum is independent and proactive monitoring, by a highly-skilled resourced animal welfare team … We want to see more transparency about farm monitoring & outcomes of complaints and we want to know what MPI has put in place to show that this wouldn't happen again.”
SAFE is similarly unhappy with the outcome, and with MPI’s performance. CEO Debra Ashton said she's angry and shocked Luke received "a slap on the wrist" for beating cows.
"The system was flawed right from the start. Witness complaints to MPI were not acted on, so those witnesses turned to Farmwatch. Video footage obtained by Farmwatch was then determined by the judge to be inadmissible. This man was caught on camera repeatedly hitting cows with various weapons including a steel pipe."
She said if MPI had done its job correctly, attempts to stop animal abuse wouldn’t fall to volunteers.
“As the ministry responsible for growing New Zealand’s agricultural interests, MPI has an inherent conflict of interest when it comes to investigating and prosecuting cases of animal abuse.
“It is clear that animals need a separate Crown entity with the sole priority of ensuring New Zealand’s animal welfare laws are adhered to. This entity should be fully resourced and have regulatory and enforcement powers to put a real focus on the welfare of animals.”
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