Ministry for Primary Industries v Luke [2020] NZDC 1306

Published 16 December 2021

Admissibility of evidence — whether evidence obtained unfairly — camera footage — vigilantism — invasion of privacy — animal cruelty — failing to meet health and behaviour needs of animals — striking animals — ill-treatment of animals — Farmwatch — Criminal Procedure Act 2011, s 78 — Evidence Act 2006, s 30 — Animal Welfare Act 1999, ss 4, 10, 12, 25, 29, 37 & 38 — R v Ahamat CA143/00, 19 June 2000 — Fan v R [2012] NZCA 114 — Dabous v R [2014] NZCA 7 — MPI v Cleaver and Down Cow Ltd [2017] NZDC 28882. The defendant faced charges of ill-treating animals, and challenged the admissibility of the evidence against him. The evidence in question was footage from cameras that members of the group Farmwatch had covertly installed in the milking shed where the defendant worked. The partner of one of the defendant's coworkers had contacted Farmwatch after the Ministry of Primary Industries (MPI) had investigated the defendant and chosen to take no action against him. Two members of Farmwatch entered the property at night to place the cameras in the milking shed, and subsequently passed the footage on to MPI. The issue for the Court was whether the evidence had been obtained improperly in terms of s 30 of the Evidence Act. The Court observed that: the defendant had an expectation of privacy while working in the milking shed; that the members of Farmwatch had no right to enter the property and install cameras there; that they also had no connection to the property or responsibility relating to it; and that members of Farmwatch had engaged in this type of behaviour before, and were likely to do so again. The Court concluded that on the balance of probabilities the footage was obtained unlawfully. Further, given the extent of the breach of privacy involved in obtaining the footage, and the risk that Farmwatch would continue to behave in this way if encouraged, the Court also found that the exclusion of the evidence was proportionate to the impropriety (the trespass). The Court granted the defendant's application to exclude the evidence. Judgment Date: 30 January 2020.