Hunting is a widely criticised and debated sport, with both sides presenting strong, passionate arguments. Legally, there are a number of Acts, most notably the Animal Welfare Act 1999, within New Zealand that aim to educate and regulate hunting practices. But what happens when, legally, the line between ‘acceptable’ hunting practices and the ill-treatment of wild animals blurs? Nicky Wynne, BVA’s lead prosecutor of the SPCA portfolio, shares her experience of prosecuting a case in which the defendants argued their conduct amounted to acceptable hunting practices and therefore could not commit offences under the Animal Welfare Act 1999.

Case Recap: McKee & Manukau
NICKY WYNNE

In May this year, I, spoke at the New Zealand Animal Law Association event on prosecuting animal cruelty and abuse. My presentation was about a particular case that BVA | The Practice prosecuted and took to trial in Gisborne last year, regarding the ill-treatment of goats by the defendants during two separate hunting trips. The case was interesting and involved a novel legal issue of whether the defendants’ actions, depicted in video clips posted by them to Facebook of their dogs attacking wild goats, amounted to “acceptable hunting practices” in New Zealand and therefore could not commit offences under the Animal Welfare Act 1999. However, Judge Down considered the actions of the defendants as those of overzealous hunters being carried away in the moment and going too far and, therefore, they could not be shielded by the exception under s 175.

This was a factually and legally complex, and highly emotive case. The SPCA consider these convictions to be of great success and reflects the growing concern for animal welfare in NZ. It is a very interesting time for animal welfare prosecutions because we live in an age now where we highly value the welfare of our animals, which is evident in the culture we live in now where as a society, we are becoming more conscious about the lives our food lived before it reaches our plate.

Since this case, there have been amendments to the Animal Welfare Act 1999. Section 175 has been repealed and effectively replaced by s 30A which provides a person commits an offence if the person wilfully ill-treats a wild animal in a wild state. However, subsection (3) states a defendant has a defence if the defendant’s conduct is part of a generally accepted practice in NZ for the hunting or killing of wild animals. Therefore, what is considered ‘accepted hunting practices’ is still open for interpretation. The McKee & Manukau case has at least set an extremely helpful precedent to assist in further cases, and demonstrates a person does not have the freedom to do anything, or use any method, in relation to wild animals.

For a full recount of the case, read below:

The SPCA prosecuted two defendants for the wilful ill-treatment of two goats, (pursuant to s 28 of the Animal Welfare Act 1999) last year in the Gisborne District Court.

The SPCA became aware of the offending after a member of the public alerted the SPCA to some videos posted on one of the defendant’s Facebook page. After further investigation and the execution of two search warrants at the defendants’ addresses, the SPCA were in possession of 5 video clips filmed by the defendants of the killing of two goats. The videos were of two separate events, one concerning a white goat, and the other, a brown goat.

The video involving the white goat showed one of the defendants straddling the goat and grasping its horns, while two pitbull type dogs attacked its face and lips. One of the defendants and an unknown person holding the camera, were encouraging the dogs to attack the goat by shaking the goat by the horns and using words of praise such as “good boy” and “get him”. The video runs for just over five minutes. Towards the end of the clip, the dogs are taken off the goat, which is by this time covered in its own blood. One of the defendants then proceeds to saw at the goat’s throat for just over 20 seconds with a knife, indicating that the knife if blunt, until it bleeds out and drops dead to the ground.

The second event involving the brown goats starts with the filming of one of the defendant’s dogs catching the goat at the bottom of a gully. The goat’s high pitched screams are heard during the event. One of the defendants then grabs the goat’s right hind leg, which is now broken at the femur and bleeding, and drags it up the bank, first by its horns, and then by its broken leg. Once up the bank, the defendant drags the goat further to a clearing before setting three pitbull type dogs on it. Again, there is much encouragement in the form of verbal cues by both the defendants for the dogs to attack the goat by biting and shaking the goat, mostly in the face area.

At trial, the veterinarian who viewed the videos gave evidence about the pain and suffering of the goats at length. Her opinion was that the brown goat would have been in extreme pain due to its fractured leg, and the prolonged attach by the dogs. The vet gave evidence that the goat’s pitch and scream sounded like severe distress. Goats are prey animals and tend to be very stoic. Therefore, goats don’t generally show signs of pain, even in research study when they undergo surgery. The veterinarian said in evidence that the only signs of pain they generally show are teeth grinding, and confirmed the brown goat would have been suffering from a high level of pain and distress.

The vet commented also on the dogs biting at the goats’ face and mouth area, noting that the face and lips are one of the most highly innervated and sensitive part of a goat’s body. Their lips are prehensile, meaning they use them to grasp at food and explore their environment. She confirmed the goats would have been in excruciating pain.

Initially both defendants pleaded guilty to the charges. However, before sentencing, the defendants claimed they had a clear defence of ‘hunting’ and made applications to vacate their guilty pleas, which was granted by the court.
The defendants relied on s 175 of the Animal Welfare Act 1999 (now repealed), arguing their conduct amounted to acceptable hunting practices and therefore could not commit offences under the Act.

Section 175 Animal Welfare Act 1999 states:

Hunting or killing

Subject to sections 176 to 178 and Part 6, nothing in this Act makes it unlawful to hunt or kill— (a) Any animal in a wild state; or (b) Any wild animal or pest in accordance with the provisions of— (i) The Wildlife Act 1953; or (ii) The Wild Animal Control Act 1977; or (iii) The Conservation Act 1987; or (iv) The Biosecurity Act 1993; or (v) Any other Act; or (c) Any wild animal or pest; or (d) Any fish caught from a constructed pond

The interpretation section dealing with ‘hunting’ provides: Hunt or kill, in relation to animals, includes— (a) Hunting, fishing, or searching for any animal and killing, taking, catching, trapping, capturing, tranquilising, or immobilising any animal by any means: (b) Pursuing or disturbing any animal;— and hunting or killing has a corresponding meaning

This is clearly a broad definition and open to interpretation. From the SPCA’s point of view, the events captured in the videos were highly disturbing and should not be considered as acceptable hunting practices.

The SPCA submitted that the evidence was sufficient to establish an intentional course of conduct which amounts to gratuitous cruelty, and at the very least, the defendants went too far than what the statutory exception under s 175 allowed.

To support the prosecution’s submission, the SPCA engaged two experts to view the footage and provide their opinion on the issue at trial. One of the experts, Garry Ottmann (Game Animal Council) encapsulated the essence of the issue by providing a ‘timeline’ of when the act of hunting begins and ends:

The act of hunting starts with the planning of a trip, organisation, preparation and then the activity itself involves searching for, locating, identifying and either killing of capturing and killing the animal, and then the processing of it for personal or commercial consumption.

…when you’re hunting you don’t need to capture the animal if you’re hunting without dogs. But a dog is often used to either identify and locate, to bail the animal or to capture an animal. And the dog, once it has captured that animal, then the hunter kills the animal as quickly as possible.

Well then once an animal is captured the obligation of the hunter is to kill it. If that obligation is not taken up, then the animal is a captured animal. The hunting part of it, in my view, is over.

It was accepted by the prosecution that in these kind of cases, there will always be an inevitable degree of suffering on the part of the animal.

Particularly where hunting dogs are concerned, because properly trained dogs will locate the beast and ‘hold’ or ‘bail’ the animal until the hunter has the opportunity to catch up and ‘stick’ or kill the beast. Depending on the beast, the dogs may stand their ground and bark at it until the hunter reaches it. In some cases the dogs will actually latch on to the beast to prevent its escape, until the hunter reaches it. However, properly trained hunting dogs are trained to hold the animal with their mouths, rather than continuously biting and shaking the animal, because the end purpose of hunting is usually for consumption of the meat.

The primary submissions for the defence was that the defendants’ actions amounted to hunting. It was conceded the defendants’ were not skilled hunters, but they were trying to train their dogs.

His Honour Judge Down did not agree with the prosecution’s highest submission that what the defendants did amounted to gratuitous violence towards the animal for the sake of it, rather, His Honour thought it was more perhaps overzealous hunters being carried away in the moment. However Judge Down considered the defendants went too far and therefore could not be shielded by the exception under s 175.

This case demonstrates the strong response by the SPCA to the ill-treatment of animals in any state, whether domestic or in the wild. BVA | The Practice is proud to support the SPCA in their endeavors to advance animal welfare, and to play a part in the legal clarification of animal welfare issues; such as what is deemed acceptable hunting practices or the ill-treatment of wild animals.

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