Appeal by brothers in NZ horse neglect case dismissed

Danny B at the time of his seizure from a property on the outskirts of Christchurch,New Zealand by the SPCA. Photos: RNZSPCA
Danny B at the time of his seizure from a property on the outskirts of Christchurch, New Zealand by the SPCA. Photos: RNZSPCA

Two brothers convicted of ill-treating horses they kept on a property near Christchurch, New Zealand, in a case dating back more than five years have had their appeals dismissed by the Court of Appeal.

Douglas John Williamson and John Blackwood Williamson were each jailed for 16 months and banned from owning horses for five years in the case. The pair went to the Court of Appeal to challenge their convictions and sentence, and in a bid to introduce fresh evidence.

Justices Kós, Fogarty and Mallon dismissed all avenues of the appeal in a written decision.

The pair had gone to trial in 2013 before Judge Jane Farish and a jury in the Christchurch District Court on charges in relation to the animals, kept on a 6-hectare property in Quaifes Road, Halswell.

They each faced one count of ill-treatment of a horse and six counts of wilful ill-treatment of horses, all of which they admitted at the end of the Crown case.

They had also faced 11 counts of failing to ensure the physical, health and behavioural needs of horses. They admitted five of these counts and were discharged on the rest.

The Williamsons subsequently sought to withdraw their pleas of guilty, which, if successful, would have resulted in another trial. This was denied by Judge David Saunders following a hearing, and the pair were subsequently sentenced to 16 months’ jail by Judge Farish.

The pair, represented by Tim Fournier, argued in the Court of Appeal that Judge Saunders was wrong in refusing to allow them to vacate their guilty pleas, and had failed to properly assess the relevant issues when considering whether there had been a miscarriage of justice.

They also challenged their jail terms, contending that Judge Farish incorrectly assessed the seriousness of the offending. They argued the judge was wrong to adopt a starting point of imprisonment, and that 16 months was too high in any case.

The case had its origins in a visit by two SPCA inspectors to the Quaifes Road property in October 2009, where horses were found in various states of condition, in paddocks with minimal feed.

The SPCA went through a process, including serving John Williamson with notice under the Animal Welfare Act requiring the horses to have good hay until there was better grazing and also to be treated with a commercial broad spectrum wormer, to be deloused and, for some horses with long cracked hoofs, for them to be tended to.

There were follow-up visits. There was a further visit in early November, another in December. Some improvement was observed in the horses’ skin, but otherwise there was no evidence of compliance with the notice.

Danny B following his recovery in foster care.
Danny B following his recovery in foster care.

Another notice was given to John Williamson on December 15. There was another visit on December 23. Douglas Williamson was there feeding out hay. He was also working on fences. There were 31 horses on the property at this time. There was little change in the body condition of the animals.

A further notice was served on John Williamson on January 17, during which there was some talk about moving the horses.

More hay was provided, but the SPCA was unhappy with the level of compliance. On March 26, two SPCA inspectors and a vet, Dr Hamish Ranken, inspected the horses. They found them in very poor condition.

Officials of the SPCA decided to remove the horses, and a search warrant was obtained on March 27.

During the execution of the search warrant two days later, it was found that some of the horses had been removed.

One of the horses still at the Quaiffes Rd property, a colt, was found down in a back paddock. He was unable to get up and euthanised. An emaciated stallion, Danny B, was found confined in a small, dark stable. There was no feed available, and the stall had no bedding. Danny B’s ribs were visible through his skin, he had patchy hair loss and swollen limbs. He was exhibiting behaviour characteristic of animals subjected to long periods of confinement and boredom.

The horses were removed to another property for care. Further examinations of the horses by veterinarians resulted in another five being euthanised because of their extremely poor condition.

Post mortem results showed that there was such a loss or destruction or absence of muscular structure in the horses that they were basically eating themselves. The normal fat layer under the skin had completely gone.

On March 31, 12 horses that had been removed by the Williamsons from Quaiffes Rd before the search warrants were executed were located on a West Coast Road property and placed in care.

The Crown case was that, by failing to provide sufficient water and feed, adequate housing, and to protect the horses from disease, the appellants had ill-treated Danny B, wilfully ill-treated the six horses that were euthanised, and had failed to comply with their statutory duty to meet the physical, health and behavioural needs of 11 other horses.

The Crown alleged the ill-treatment of the horses that were euthanised had been wilful, as the deterioration in their condition had been evident for some time, and the Williamsons had ignored the SPCA directions specified in the statutory notices for their improved care. The Williamsons, it was alleged, had tried to avoid further examination of their horses by shifting 12 horses off the property.

The case went to trial, with the Williamsons’ defence being that they had maintained an adequate feeding and de-worming regime, and that the deterioration of the horses was caused by an excess of iron in the drinking water – resulting in a condition known as iron toxicosis – rather than malnutrition.

Dr Hamish Ranken and Dr Robert Fairley, a veterinary pathologist, were cross-examined on the issue of iron toxicosis. Dr Ranken said he had never seen iron toxicosis in horses, and as far as he was concerned there was no evidence of that from the results of the post-mortems he conducted. He said that if a horse had iron toxicosis, it would most likely be inappetent (not wanting to eat), and would have quite obvious liver problems.

Dr Fairley was asked about his post-mortem findings in relation to pigmented lesions that he saw on the livers of two horses. He said he had tested those for iron and they had come back negative.

Counsel for the Williamsons, Colin Eason and Keith Owen, did not consider the trial was going very well for their clients. They were particularly influenced by Dr Fairley’s evidence relating to the iron test he conducted, as well as his evidence that the level of worm burden in the horses was “highly unusual”, suggesting “a very high exposure to parasites”.

He also said he had never seen that level of worm burden before in his 30 years of experience. Dr Fairley also found the presence of parasitic infestation in fat around the kidneys which he thought was highly remarkable. Again, it was something he had never seen before. He also found extremely high faecal egg counts in some of the animals.

The Crown case was presented over four days, after which the Williamsons and their counsel examined a possible plea deal with the Crown.

Counsel advised the Williamsons that the Crown’s evidence had diminished their prospects of any success. The brothers instructed their counsel to approach Crown counsel, Ben Vanderkolk, to negotiate a plea agreement. No agreement was immediately forthcoming, but was ultimately reached in further negotiations. The Williamsons then each pleaded guilty to 12 of the charges, and were discharged on the remaining six counts.

The Williamsons subsequently went back to court in a bid to vacate their guilty pleas on the ground that their trial counsel had induced them to plead guilty under the mistaken belief that no tenable defence could be advanced.

The application depended on persuading the court that a miscarriage of justice would result if the conviction was not overturned. A miscarriage would arise if their counsel gave erroneous advice or induced a decision to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.

Judge Saunders declined the application, forming the conclusion there was no tenable defence.

The appeal judges concurred: “The facts proven were wholly against them,” they said in the appeal decision.

“By the end of the Crown case, there was no support in the evidence for the proposition that the defendants were adequately feeding and deworming the horses. The pasture was very poor and the horses full of worms, as several autopsies showed. Their condition did not materially improve after service of the notices.

“In the face of the very prejudicial evidence over four days before the jury … it was appropriate for counsel to discuss with their clients whether to enter plea discussions with the Crown.

“To continue to defend the charges on the basis that the horses had been adequately fed and dewormed would have been hopeless and increased the prospects of an imprisonment sentence if, as appeared to be inevitable, the trial proceeded and guilty verdicts were returned.”

The justices continued: “Ultimately, Mr Fournier’s argument depended upon the proposition that there was a reasonable defence of iron toxicosis. Once that is rejected, Mr Fournier’s argument falls away.

“It is impossible, on the evidence before this court, to advance the proposition that the appellants had any serious tenable defence. On the contrary, we think Messrs Eason and Owen acted professionally to minimise, so far as they could, the impact of the law upon their clients’ proven conduct.

“Accordingly, there was good reason for the appellants’ counsel to recommend a settlement plea.

“They pointed out to their clients that the Crown evidence diminished their prospects of success. This advice was reinforced by the remark of the Judge observing the possibility of a term of imprisonment at the end of the Crown case.

“The judge was inviting some plea agreement to bring the proceedings to an end.

“Both the recommendations of counsel and the invitation from the judge confirm that these professionals saw, after four and a half days’ evidence, an overwhelming case against the defendants.

“There was no realistic prospect that they could escape conviction, given the state of the horses and their failure to respond properly to the notices from October 2009 to the end of March 2010.

“We think that Judge Farish was right to encourage a plea. Judge Saunders was right to rule against allowing the Williamson brothers to withdraw their pleas. There was no miscarriage of justice, essentially because no tenable defence has been demonstrated.”

The court traversed fresh evidence from veterinary surgeon Dr Kathleen Parton relating to iron toxicosis, and that the iron content in the water from the farm at Quaifes Road was measured by Hill Laboratories in Hamilton at 0.62 grams/m3 which is over twice the recommended limit of iron in drinking water.

Dr Parton concluded: “Given the amount of time the horses were grazing on this property, this chronic exposure to the iron in the water exceeds any scientific research conditions that have been published in peer reviewed journals, however, given the number of publications on iron toxicity in animals there is a case for supporting iron toxicity.”

The appeal judges noted: “It was not as if iron toxicosis, as a defence, had not been identified.

“It had been. Mr Douglas Williamson had obtained analysis of water samples after the horses were removed. This showed high iron levels. His trial counsel, Mr Eason, then spent some time conferring with the veterinary pathologist from Massey University, Dr McLaughlin, about that.

“He, however, discounted the defence, in part because he considered iron toxicosis would not alter the parasitic worm burden the horses were found to have.”

The justices said it was their view that admitting the evidence would have no effect on the safety of the conviction.

“The Crown witnesses, Dr Ranken and Dr Fairley, were cross-examined on iron toxicosis. Dr Ranken said he had never seen iron toxicosis in horses. Dr Fairley said he had tested brown pigment on the livers of two of the euthanised horses for iron and they had come back negative.

The court said in relation to iron toxicosis: “To breathe life into this possibility as a tenable defence involves disregarding the severe parasitic burden on these horses and the narrative of neglect by the SPCA witnesses following the first inspection on 2 October 2009, through six months, to the end of March 2010.

“In our view, Dr Parton’s evidence is essentially speculative but, more significantly, overwhelmed by the impact of the evidence from the other veterinarians.

“We do not think there is any risk of a miscarriage of justice if the affidavit of Dr Parton is not made the subject of evidence in a retrial.

“In short, it is not credible as a defence in the face of the proven condition of the horses infected by parasites (worms) and the narrative of persistent neglect. The applications to adduce this evidence are declined.”

Danny B at the time of his seizure
Danny B at the time of his seizure.

Their appeals against conviction were dismissed.

Discussing the appeal against sentence, the justices said: “Whether imprisonment is the appropriate starting point does not depend on whether the initial action is (often very brief) violent cruelty or not.

“Rather, it depends on a range of factors including intended or apprehended effect on the animal, the extent of suffering, the number of animals suffering, the period of time of suffering, the ultimate consequence for the animals and the nature of any third party intervention.”

Judge Farish, they noted, went through the narrative of events in some detail.

“She considered as the first aggravating feature, the length of time over which the animals were suffering, which was nearly six months from 2 October 2009 through to their uplift or their demise on 29 March 2010.

“She saw them as not accepting ‘responsibility for why your horses were in such terrible condition’.

“She did not accept that they did not appreciate the state of the six horses euthanised, or Danny B, which was disappointing and an important issue for her in terms of the sentencing exercise.

“These findings of fact by Judge Farish mean that the neglect in this cases was not just carelessness. Rather, it had reached the point of being wilful.

“Overall, she considered that they were arrogant, ignoring SPCA and veterinary advice. For these reasons, she considered that a term of imprisonment was an appropriate starting point.”

Judge Farish said that home detention was generally suitable only for defendants whose remorse was clear.

She commented in sentencing: “You have no remorse, you do not accept responsibility for this offending. The offending is grave.

Judge Farish continued: “This was not the SPCA coming down on you hard, this was the SPCA trying to find a way in which they might be able to assist. If you had not got the finances, if you could not cope with the number of horses, if you were out of your depth in relation to your care of the horses, they were prepared to assist and help but you continued.”

The appeal judges said: “We agree with the Crown that the aggravating features of offending in the present case are the serious mistreatment of a large number of animals, over a long period of time, by persons whose experience with horses meant they ought to have known better.

“Any acceptance of responsibility was not apparent in John Williamson’s case, and came late in the piece in Douglas’s case. It was open in these circumstances to the judge to conclude it was appropriate to imprison them and to, in that regard, adopt an 18-month starting point.

“We think that the judge’s approach to sentencing does not display any error of law. That she has turned her mind to the relevant considerations. Accordingly, there is no basis to intervene on appeal. The appeals against sentence are dismissed.”

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