When we're talking with lawyers who call to review files on animal-related cases, critique arguments, or just double-check we've got the arguments and counter-arguments covered in terms of law, interpretations and authorities, there are 3 areas that routinely come up in discussion :

1. The relationships inherent in any issue of animal law, are important.

Issues of animal law are frequently about relationships and therefore have impacts that extend beyond the animal. For example, dog-related issues are not isolated to the dog. The owner's interests are linked to the dog in ways that include, but are not limited to, the legal responsibilities regarding control. The community is also affected by the dog's behaviour ("public interests") but the "public interest" doesn't stop at the local community given that 34% of New Zealand homes have at least one dog. Avoid being marginalised by opposing arguments trying to isolate issues to "this" dog (or "this" animal or "this" group of animals) - we work in a legal system where any precedent established is of relevance to all dogs and all dog owners. Covid has seen nearly a 20% rise in dog ownership in New Zealand and there are currently 543,972 (and counting) dogs on the National Dog Database. That's a lot of dogs and a lot of dog owners who are members of the public. It often helps to consider the bigger "relationships" and impacts when arguing animal cases.

2. Avoid arguments that go along the lines of "they're just like any other property".

Animals are indeed "categorised" and "managed" by law as property and there are parallels in terms of property entitlements but they're not "treated" like any other property. One of the central and crucial distinctions about animal law is the fact that law recognises that animals feel ("sentient", "animate"). To communicate and argue the law as it applies to law's sentient property, the client's case is often strengthened by correlating the animal-owner-community interests with the up-to-date science (e.g. Five Freedoms vs. Five Domains), differing concepts of "good practice" amongst contrasting stakeholders (s10 of AWA 1999), and the core terms of the Animal Welfare Act 1999. That will help in applying the paper law to what the sentient animal property "feels".

3. Be able to fluently address the meaning of "animal welfare" as it's established in legislation.

It currently hinges on four words: P____, D______, Unr_________ and Unn_________. Internationally there is no singularly accepted definition of "animal welfare". The OIE (World Animal Health Organisation) definition is routinely quoted in forums, conferences and the like - but in law, the meaning of animal welfare derived from the wording of the offences is much more precise. For courtroom purposes, the four words are pain, distress, unreasonable and unnecessary. It's a two-tier test where pain and distress must be proved first (and remembering that "stress" is not the same as "dis"-stress). Assuming pain or distress is established (often utilising a statement of a veterinarian which often warrants scrutiny to identify routine issues that are important to an effective cross-examination) then supporting insights and evidence associated with determining, or countering, "necessary", will foreseeably be highly important to each client's position and the eventual outcome.

Let me tell you a quick story. And yes, it’s true (though details have been changed for the purposes of maintaining privacy).

Larry had been farming since he was a boy. He used to work alongside his father doing all the usuals in looking after the cows. As any farmer knows, doing farming well involves knowing much more than just feeding and milking the cows. Larry’s Dad had passed away years ago and now Larry ran the farm and applied all the things he’d learnt about looking after the animals, the land, sorting out the supplementary feed, and timing it all perfectly with the annual farming calendar.

Larry’s neighbour was a family member and as is the case with families sometimes, being related didn’t mean they had to get along. So when a few of Larry’s cows got sick, his cousin rang up the authorities alleging concerns about the animals.

Members of the public, including neighbours and passers-by, are one of the largest sources of alerts to compliance officers about possible animal cruelty. Compliance and enforcement personnel often triage calls that come in but bottom line, they have a duty to check if there is, in fact, an animal suffering. So when compliance officers turned up unannounced on Larry’s farm one morning and wanted to see his cows, Larry was as delighted as most farmers would be when they’ve been up since the early hours of the morning, have lots to do, and hadn’t planned on people with marked cars and uniforms turning up demanding to see his animals and inspect his farm.

And here’s 3 points to learn from what happened with Larry and other people like him:

1. Be polite. Your "manner" may be referenced in court if the matter proceeds to a defended hearing.
2. Limit what you say to politely stating simple and obvious facts rather than providing lengthy explanations to officers – even if you feel it’s irritating and time-consuming that you have to try and educate people who don’t know you, your animals or your farm like you do.
3. Record the moment: If one picture is worth a thousand words then a video is worth a whole chapter. If the officer tells you that you can’t take photos or videos then get out a pen and paper and start taking notes of what’s happening and who said what, verbatim if you can.

The fact is, many prosecution cases are built upon the statements made by the person eventually charged.

There are many people who understandably think that if they helpfully provide a reason for their actions that seems justifiable to them, then the officer will be nice enough to just ‘let them off’ and that will be the end of the matter. Sometimes, just sometimes, the officer may decide that there’s no case, or the explanation fits with a legally available defence. But you don't really want to unnecessarily gamble your money, your animals, or your freedoms on that possibility.

Appointed state officers have a job to do which includes assessing the situation and evidence of possible offending. The conversation with you likely constitutes part of that evidence assessment exercise. If the officer decides there’s enough evidence to constitute good reason to believe that an offence has been committed, their job also requires them to read you your rights. If an officer is reading you your rights, then that means the officer already believes there is enough evidence of possible offending, and the matter is almost certainly not going to simply go away.

But you obviously want to avoid being the person who builds a case against themselves.

So, whether it involves animal welfare, food safety, biosecurity or any other situation where officers are talking with you in their official capacity:

1. Be polite;
2. Limit what you say to politely stating simple and obvious facts rather than lengthy explanations; and
3. Record the moment.

For completeness sake, yes there is a right to silence BUT in a number of pieces of law, you have an obligation to provide the officers with certain details. Usually, those details involve essentials such as, for example, your name and address. There's usually no problem with you providing your basic identification details but be very cautious about providing explanations. Be brief, be polite, and - remembering that the officer's job includes collecting evidence - you might see why its often better to provide explanations via your lawyer

That note suggesting you avoid giving explanations leads to the fourth recommendation.

4. Like most professions, lawyers also recommend that you contact your lawyer SOONER RATHER THAN LATER to avoid the common assumptions, oversights and pitfalls that people on their own commonly make which, at the end of the day, often make things more difficult and expensive to resolve.

Larry? After a lengthy process involving veterinarians, farm experts and lawyers skilfully putting his case to the Judge, he left the courtroom without having to pay a fine this time. And yes, his cousin still lives next door

It's one of the realities that engaging a lawyer usually incurs costs. Is it worth it? That's your call but here are a few considerations and options for you:

Start here:

• Consider what you're protecting and its value.
• Turn your mind not just to the current cost(s) but also the future risks. We recommend that you have a look at the section of this webpage titled "Read this before thinking it's as simple as "just paying the fine and moving on".
• Many people appear to believe that they'll automatically be able to recover costs from the other party. There's often a long legal road, a list of legal factors to consider, and a host of other steps and considerations before getting to the point of an adjudicator making a decision about costs. So, recovery of costs is a subject you'll want to put on the agenda for discussion with your lawyer.

If engaging a private lawyer or legal specialist then the total cost will depend on the matter being dealt with and a list of other relevant factors.

• Guidelines may be viewed on the website of the New Zealand Law Society, and
• The standard recommendation is to discuss costs with the lawyer when making your initial enquiries.
• Remember that there are a number of unpredictable factors which will traditionally affect the final cost. Examples include (a) the gathering and organisation of evidence that may identify further necessary actions and/or legal issues, and (b) the response (e.g. willingness to negotiate) from the opposing party.

In addition to the option of being represented by a lawyer in private practice, there are other options that you might want to consider:

• The Disputes Tribunal can hear cases up to $30,000 and in many cases provides a straightforward option for having a matter heard. There are no lawyers, remember that the adjudicators are used to listening to all kinds of presentation styles (and they'll guide you with their queries), and even if you're not comfortable in speaking up you can write your statement down ahead of time and read it in the Tribunal.
• The Public Defence Services and Community Law Services are designed to provide access to justice for those who may not be able to afford a private lawyer.

Is the animal suffering? That's the line in the sand for the law. Oftentimes enforcement agencies rely on members of the public to be their eyes and ears of suspected cruelty.

WHO CAN YOU CALL?

First things first, because animals are somebody else’s property, it may not always be appropriate to assist or intervene, irrespective of how good your intentions are.

There are 3 organisations who have the authority to intervene and, where necessary, remove someone's property:

• The Police: 105 is the number for Police non-emergencies. 111 is the emergency number for Police, Fire and Ambulance
• The Ministry for Primary Industries: To report an animal welfare concern call MPI on 0800 00 83 33, or fill out their prescribed form
• The SPCA: All cruelty reports should be made by phone to the local SPCA Centre.

If you are not putting yourself or others in danger, you might consider using your mobile phone to take images and videos that may assist officers in triaging calls and evidence collection.

One final comment. Remember that there may be many reasons for an animal looking poorly. For example:

• There may be all sorts of "non-cruel" and lawful reasons why an animal is looking "skinny" including, for example, that it may have a medical condition that's being treated by the local veterinarian,
• Additionally, that "slow and inactive" animal may just be old or unwell, and
• Given that animals and humans get similar conditions (e.g allergies, infections) then they may have all the symptoms of any other sick individual.

The point is, do be attentive, and safely do what you can to get the animal looked at by competent authorities if there are concerns, but it's good advice to avoid making negative judgements about the owner in absence of all the facts.

The central concern is the animal's welfare - then leave the rest up to those who are trained and authorised to help.

Animals are bought and sold every day. A huge range of services involving an equally diverse range of animal service providers is also an everyday occurrence where, in one way or another, there is some form of implicit contractual agreement for the goods or services provided.

You may believe you are safeguarded in these transactions by consumer protection laws (such as the Consumer Guarantees Act and the Fair Trading Act ) but in many cases, the sales and exchanges are a case of ‘buyer beware'.

Start with a strong written agreement

Your risks may be reduced by having an agreement in place – preferably a written agreement, and preferably checked by your lawyer. The written agreement is not only a safeguard but also an opportunity to be comprehensively clear about the detail that frequently causes (costly) problems 'down the track' as a result of oversights, assumptions or simply differences in understanding.

All too often those "googled agreements" fail to meet the required standards of relevant contract law, and vendors and purchasers are left disgruntled and often complaining to whomever they think will listen. 

Guardianz Animal Law can:

• review any legal agreements and documentation you may be contemplating signing
• provide you with the protection of a legally enforceable Sale and Purchase Agreement that meets your needs as a buyer or seller
• guide or represent you in any disputes that may arise from the sale or purchase of an animal  
• draw your attention to additional options for your consideration such as, for example, a prepurchase veterinary check.

Get a pre-service veterinary check 

This is all too often overlooked. The check should be a credible, thorough and detailed examination accompanied by an equally thorough and detailed written report, so you know what you are buying and have the documentation from an independent expert to prove it. 

For example, a seller may not know that arthritis is developing in the horse being sold because the horse may not be showing any symptoms. Looking inside the horse with x-rays, however, would potentially reveal the existence of the arthritis, enabling the buyer to then make an informed decision whether to proceed with the deal, and how much they want to pay. 

The vet check actually protects all parties involved from the risk of future disputes of misrepresentation.

Remember that there's also significant value in having dated (and witnessed) photographs and videos.

Get an Owner’s Statement from the vendor

This is a written statement that as far as the vendor is aware, the animal being sold is fit for the purpose the purchaser has indicated he or she is buying it for. The statement should include full details of the animal’s identity, medical history and current condition – health, medications, accidents, diseases, temperament and anything else the buyer should be aware of in order to make an informed decision on the purchase. And never overlook the value of photos and, better still, videos to record the moment-and-the-condition. 

Get legal advice or representation on dispute resolution

Ideally, of course, everything goes smoothly and the agreement, photos and videos are never needed. However, in the event of any dispute arising from the sale or purchase of an animal, we recommend that you take advantage of Guardianz Animal Law's unique qualifications and insights with a view to maximising the chance that the dispute can be resolved quickly and cost-effectively.

Unfortunately, New Zealand dog owners are regularly before the courts for the alleged misconduct of their dogs. 

Obligations of dog owners are set out in section 5 of the Dog Control Act 1996 and include the statement "The obligations imposed on dog owners by this Act require every owner of a dog to ensure that the dog is kept under control at all times".

As the owner, or person in charge, of a dog you can be criminally liable for the actions of your dog. If your dog attacks a person or animal, you can be convicted and sentenced to a fine of up to $3,000 (for the most common offences). If the attack causes injury, there is the possibility of a fine, community work or even a term of imprisonment.

If your dog is involved in an attack, it is likely that a complaint will be made to your local council. The council’s dog control officers will investigate and determine whether there is evidence supporting the complaint and may decide to file charges against the owner.

In situations where a dog is aggressive or intimidating the Council may take actions which include, for example:

• issuing a warning or infringement notice
• filing a prosecution
• classifying the dog as dangerous or menacing
• uplifting and impounding the dog while a court decision is made.

The council does have discretion in terms of whether or not to file a criminal charge. By engaging constructively with council from the start, you may be able to negotiate an alternative solution for you and your dog. We recommend engaging a lawyer from the outset to provide you with the best prospects of avoiding prosecution. However, if the dog attack resulted in an injury to person or animal then it's likely that a prosecution will occur.

Owners are understandably eager to ensure that their dog is returned if the council has impounded their dog following an alleged attack. Before the council can consider returning a dog to its owner, they must decide whether your dog poses a threat to the safety of people or animals if it were released. If the council are of the view that it is safe to let your animal come home then it's likely that you will be given written notice and have seven days to pay the pound fees and claim your dog.

If the council has concerns about the risks your dog may pose, your dog is likely to remain impounded until the case has been heard. As an owner, you can challenge this decision and try to secure your dog’s release by showing that the council does not have reasonable grounds for its position. We recommend that you get legal assistance from the outset prior to giving statements or undertakings especially since your well-intended actions may inadvertently create more problems than they solve. Legal representation can be of considerable assistance when you are trying to achieve “doggie bail”.

"So many times the well-intended actions of dog owners inadvertently create more problems than they solve. So to give your dog the best chance of coming home we recommend you as soon as your dog has been involved in a biting incident then contact a lawyer who knows the process and how to avoid the usual beginner mistakes, assumptions and oversights. Then follow the recommendations of your lawyer".

If the council decides to prosecute you as owner, you can plead either guilty or not guilty to the charges. If you plead not guilty, the matter will proceed to a trial before a judge at your local District Court. This is not a quick process - it can often take more than a year from the date that charges are filed against you to until a trial date.

Additionally, there are expenses associated with going through the criminal process of attending the first hearing, pleading not guilty, having your lawyer complete a case management memorandum with the prosecuting Council, prepare all witnesses and proceed to a fully defended hearing which would (at minimum) take half a day.

If you plead guilty to a dog attack charge, or you are found guilty following a trial, then the court will sentence you for the offence. While the most likely outcome for an owner is a fine, the court "must" also order the destruction of the dog, unless it is satisfied that the circumstances of the offence were exceptional.

Many dog-owners seem to have little idea of how strict the law is, and are shocked when they arrive at court to find that the judge is going to order their pet to be destroyed.

The exceptional circumstances test has a high threshold. The Court first considers whether the circumstances of the attack were unique, special or substantially unusual. If satisfied that the circumstances meet the exceptional circumstances test then the Court will make an assessment as to the future risk of the dog attacking another person or animal. There are a range of factors that the Courts may consider including, for example, the nature of the attack, whether there was an injury, the history and level of responsibility of the dog owner, past behaviour of the dog, and whether any preventative steps were taken to reduce risk and if so, why these steps failed. It's often the case that if there is a risk of a further attack, any exceptional circumstances will not be enough to prevent a destruction order.

Recent Court decisions have further narrowed the ambit of post-attack considerations that can be taken into account so if you find yourself at the centre of a dog control matter, we recommend you engage legal representation as a matter of priority.

Guardianz Animal Law is very familiar with council and officers, "the process", and factors that are highly relevant to the ultimate decision about what the outcome will be for you and your dog.

Guardianz Animal Law applies a unique combination of practical insights from:

• experience that engages the unique combination of veterinary/legal insights and networks that are invaluable to discussions with Council and Council Officers with a view to identifying pragmatic alternatives to prosecution
• experience litigating dog control cases that also utilises frontline experience as the veterinarian trusted to understand, assess and apply factors such as the breed, health and behavioural issues of the dog
• the pragmatic benefit of "multiple minds" working alongside many lawyers from around the country on issues of dog control.

We frequently help either by:

• providing legal representation to clients; or
• in many instances, we review a dog control file alongside the client's usual lawyer providing insights from the combined veterinary/legal experience with the objective of, wherever possible, adding perspective and strength to the client's case.

"Bottom line", it doesn't matter where you are in New Zealand, one way or another we can help you to put your best case forward with a view to getting your dog safely home.

“Just pay the fine and get on with your life.”

Sometimes that is your only choice. But on a lot of other occasions that likely well-intended but not-so-well considered advice may not really be your best choice, because a guilty plea often comes with consequences that involve much more than just paying a fine.

You might not only lose your money, you might also lose your property, your licenses, even your freedoms.

• For example, under animal welfare law, the Ministry has powers to seize, sell or destroy your animals. Pleading guilty usually attracts a fine, but also risks you being disqualified from having future dealings involving animals - plus there’s the potential stigma of being known as "that person" who has harmed animals.

• For food safety offences, there are financial penalties, and your property may be seized and your premises closed, consequently damaging your business reputation, your relationship with suppliers and affecting your employees.

• The hefty financial penalties associated with biosecurity offences are also accompanied by powers to seize your goods and remove your licenses.

• Similarly, fisheries offences attract fines and trigger MPI’s powers to seize property used in the commission of the offending including, for example, your fishing gear and your boat (no matter what size it is). 

On top of that, for offending in relation to any of these Acts, MPI commonly looks at options available to them under the Criminal Proceeds (Recovery) Act 2009 which allows them to seize your cash and assets that have been obtained directly – or indirectly – from the proceeds of the crime. 

Computers have long memories. As a consequence, so does MPI.

• The reality is, that mistakes on farm, in factory, or as part of doing business, aren't limited to one. Uncertainty, and the unforeseen, are a consequence of working with animals.
• So, if MPI has cause to do a follow-up, or your neighbour calls MPI again, or for whatever reason MPI investigate you, or prosecute you, a second time, then the fact you're a "repeat offender" rather than a first-time offender, often makes the process, and the penalties, a whole lot worse the second time around.
• The point is that you don't want to give away that "first offence" status without careful consideration.

It’s a big net of consequences – and here’s another serious one to be aware of. Having a criminal record can affect your future – it may come up on security clearance checks, affect your job and finance applications, and even limit your overseas travel options. That record doesn’t just go away after you “pay the fine”. 

The reality is that paying the fine is often just one of the consequences rather than the only consequence. And paying the fine without pleading your case the best you can, serves neither you nor justice.