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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Animals as Objects under the Crimes Act 1961
Heidi Bates
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of
Laws (Honours) at Te Whare Wānanga o Otāgo – the University of Otago
7 October 2022
Acknowledgments
I would like to sincerely thank:
My supervisor, Marcelo Rodriguez Ferrere. You have provided me with invaluable advice, guidance, encouragement, and wisdom, and you truly inspired me in researching this important topic. I am so grateful to have had such a fantastic supervisor. I also thank my second marker Margaret Briggs for your great advice and your engagement at my seminar.
My family. To my wonderful parents, I love you and appreciate all you have done for me. Your unwavering support and consideration for your annoying vegan daughter does not go unnoticed. My siblings, Kezia, George and precious Harry. I am lucky to have such a warm and impassioned family.
My friends, particularly Poppy and Ellesha for your detailed comments before my seminar, Marianne for meticulously reading over my draft and all your support, and Katelin for your friendship throughout this year and the last five while at law school.
Mark. My awesome partner and my best buddy. Thank you for your interaction with my work, your thoughtful comments, your patience, kindness and love.
And finally to Dansey, the inspiration for this dissertation. Not an object, but a sentient being.
TABLE OF CONTENTS
INTRODUCTION
Nonhuman animals are sentient beings: they are conscious and autonomous with the capacity to feel pleasure and pain. 1 This common-sense understanding is recognised by New Zealand legislation: the Animal Welfare Act 1999 (AWA) long title states that one of the purposes of the Act is to “recognise that animals are sentient.”2 However, generally, animals are classified as “property” under the law, and many statutes do not acknowledge their sentience and interests. In particular, when considering the Crimes Act 1961, animals are not acknowledged as sentient beings but only as “property” capable of being the object of property offences.3 This means that while the AWA and Crimes Act both govern offending involving animals, they are at odds with how they view animals. This inconsistency and the problems that result are the focus of this dissertation.
I was first made aware of this inconsistency when the case of New Zealand Police v Walter progressed through the Dunedin District Court in 2021.4 The case involved the defendant shooting and killing “Dansey” the deer, a companion animal who resided within the bounds of the owner’s property.5 The defendant proceeded to gut Dansey, taking the meat he wanted and leaving her dismembered body behind.6 The owner was distraught, having had a meaningful and loving connection with Dansey since she was just a few days old.7 The defendant was not charged under the AWA because that Act does not criminalise the killing of animals in the absence of “pain or distress.”8 Instead, the defendant was charged with unlawful hunting under the Wild Animal Control Act 1977 (WACA), the mischief of this offence focusing on the defendant’s trespass on neighbouring land rather than the killing of Dansey per se.9 Like the Crimes Act, the WACA views animals only as property and not as sentient beings.10
This case gave me pause: why was the killing of Dansey not seen as the core aspect of the offending? Even if prosecutors had more appropriately characterised Dansey as a domestic companion animal rather than a wild animal, the defendant would likely have faced a charge of intentional damage of property under the Crimes Act, and this offence also ignores the impact on
1 “Nonhuman animals” will hereafter be referred to as “animals” as defined by the Animal Welfare Act 1999, s 2.
2 Animal Welfare Act, long title.
3 See Crimes Act 1961, ss 218(3)-(6), 220A and 221.
4 New Zealand Police v Walter [2022] NZDC 13369 [30 May 2022].
5 At [3].
6 At [3].
7 At [2]-[4].
8 Animal Welfare Act, s 12(c).
9 New Zealand Police v Walter, above n 4, at [1]; Wild Animal Control Act 1977, s 8(2).
10 Wild Animal Control Act 1977, s 9(1).
the animal.11 The case of Dansey highlights issues in the criminal law for animals, and I have assessed the root cause of these issues lies with the law’s classification of animals as property. Dansey’s property status meant the mischief of the offence was either trespass or property damage, thereby erasing the impact of the offending on Dansey herself. The aim of this dissertation is to critically analyse the problems that stem from the property status of animals both in the law generally and the Crimes Act specifically, and to propose solutions to these problems. It has four chapters.
In Chapter I, I examine the classification of animals as objects of property under the law generally. I discuss the concept of “property” as a bundle of rights, the binary of persons versus objects that this concept of property creates, and, finally, how animals are classified as part of the object side of the binary.
In Chapter II, I start to analyse why the legal classification of animals as property is a problem. I argue that this property status is problematic for three reasons: the classification is incoherent, morally unjust, and adverse to community attitudes toward animals.
In Chapter III, I narrow my argument to centre on the problems resulting from animals’ property status under the Crimes Act specifically. I focus on the property offences of theft and intentional damage as they currently apply to animals and argue the Crimes Act’s objectification of animals under these offences creates an abundance of issues. In particular, these offences unjustifiably ignore animal sentience and their interests in not being stolen or killed, erase animal victimhood when taken or killed, and contribute to the ignorance of the link between animal violence and family violence. These issues are pernicious when taken individually, but also collectively contribute to the broader underlying inconsistency between the Crimes Act and AWA and how each view animals.
In Chapter IV, I offer two solutions to the problems created and perpetuated by animals’ property status. The first is to shift animals from property status to personhood status. While theoretically desirable, I will conclude this solution is not workable in today’s society. My second solution is to shift all property offending involving animals from the Crimes Act to the AWA. This solution is more achievable and directly addresses the specific issues discussed in Chapter III. This shift would mean all offences involving animals acknowledge their sentience and relevant interests, thereby
11 Crimes Act, s 269. I will discuss this offence further in Chapters II and III.
aligning with moral attitudes toward animals in society and providing a more consistent and coherent code of animal offending.
Overall, a shift of animal offending from the Crimes Act to the AWA is necessary to provide consistency in the law and properly acknowledge the sentience of animals.
CHAPTER I: THE LEGAL STATUS OF ANIMALS AS PROPERTY
In this first chapter I will analyse animals’ current legal classification and status as objects of property. I will start by exploring the concept of property generally and defining what “property” means. Next, I will move on to discuss the exclusive binary property creates: the binary of persons and objects of property. I will then narrow my focus to the current classification of animals as on the object side of the binary and examine the effects of this classification, particularly in the criminal realm.
A. The Concept of Property
Property is fundamental to the working of any legal system. Particularly in Western societies, the idea of property is foundational in establishing a sense of liberty and independence.12 However, the idea is not as straightforward as we might assume. I will spend some time now outlining what “property” means in order to provide clarity about the concept before introducing animals to the discussion.
1. Common understanding: property as a thing
“Property” is commonly understood as referring to an object able to be owned: some “thing” belonging to someone, such as a chair, a rug, or a surfboard. 13 Legislation too often defines property in similar terms. The Property Law Act 2007 defines property as “everything that is capable of being owned, whether it is real or personal property, and whether it is tangible or intangible property.”14 Other New Zealand statutes that define the term “property” use words to a similar effect, all describing property along the lines of a thing one has ownership of.15 However, this characterisation is inaccurate, unhelpfully circular, and too simplistic.16 A more nuanced and useful definition of property would outline the rights and duties that people have when interacting with each other about a “thing.” Below I will discuss such a legal definition of property as a “bundle of rights” and then consider the binary property creates: that of persons/subjects and
12 Lee Reed “What is ‘Property’?” (2004) 41 Am Bus LJ 459 at 464.
13 Reed, above n 12, at 469.
14 Property Law Act 2007, s 4.
15 See Property (Relationships) Act 1976, s 2; Protection of Personal and Property Rights Act 1988, s 2; Crimes Act, s 2.
16 Boudewijn Bouckaert “What Is Property” (1990) 13 Harv J L & Pub Pol’y 775 at 469.
property/objects.17 While our common-sense understanding of property is a “thing” to be owned, legal definitions of property purport that this “thing” is only half the story: a thing belongs on the object side of the binary, while an owner correspondingly sits on the person side of the binary.18
2. Legal understanding: property as a bundle of rights
The most accurate legal characterisation of property is that of a “bundle of rights.”19 While legal scholars once focused on the single blanket right to exclude others as the sole characteristic of property,20 the bundle approach is now generally accepted as more explanatory.21 This bundle of rights theory defines property not as a “thing” in itself but as a bundle of rights a person can hold in relation to a thing.22 This “bundle” is often noted as including the right to exclude as well as others, such as the right to use, transfer, alienate and destroy.23 These property rights are protected interests that owners of objects have in dealing with those objects as they please, and attract the inverse duties all others have in respecting those rights.24 Property as a bundle of rights thus creates a relationship between a rights-holder who possesses the bundle of rights and a duty-bearer who must respect those rights.25 To ensure these rights are enjoyed and duties discharged, property encompasses rules by which rights-holders and duty-bearers must abide.26 An example of such a rule is that in relation to the right of use, rights-holders have the prima facie right to use the thing they own as they please, and inversely duty-bearers have the prima facie duty to respect that right by not using the thing.27
Property is, therefore, not simply an object to be owned but more accurately a bundle of rights a person holds over an object. Property creates a relationship between rights-holders and duty-
17 From here on the terms “person” and “subject” will be used interchangeably with one another as will “property” and “object” when considering the property binary.
18 Wendy A. Adams “Human Subjects and Animal Objects: Animals as Other in law” (2009) 3 J Animal L & Ethics
29 at 32.
19 Reed, above n 12, at 471.
20 Robert Lamb Property (Polity Press, Cambridge (UK), 2021) at 9.
21 Thomas W. Merrill and Henry E. Smith The Oxford Introductions to U.S. Law: Property (Oxford University Press, New York, 2010) at 5.
22 Merrill and Smith, above n 21, at 9.
23 Reed, above n 12, at 472.
24 Jesse Wall Being and Owning: The Body, Bodily Material, and the Law (Oxford University Press, Oxford (UK) 2015) at 115.
25 Wall, above n 24, at 115 and 173.
26 Frank Snare “The Concept of Property” (1972) 9 American Philosophy Quarterly 200 at 202-204; Reed, above n
12, at 469.
27 Snare, above n 26, at 202.
bearers in relation to objects. Key to note is that only persons can hold rights or bear duties in relation to objects;28 the term “person” in legal contexts refers directly to an entity or being capable of holding rights and bearing duties.29 This definition of property therefore creates a binary: (1) persons, who can hold rights and bear duties, and (2) objects of property, that cannot hold rights or bear duties and are the “things” persons hold rights and bear duties in relation to.30 Next, I will discuss more about each of these branches of the binary and how entities are classified into each branch.
B. The Property Binary: Persons versus Objects of Property
The property binary consists of persons or subjects on the one hand, and property or objects on the other.31 This binary is absolute: everything fits into either the person or property category. Personhood is about capabilities to hold rights and bear duties whereas “thinghood” is about lack thereof, so practically, the binary categorises everything that has the capabilities necessary for personhood as persons and all else falling short of these capabilities as property. Below I will discuss persons in more detail to clarify how and which entities meet the standards of this classification.
1. The person classification
As with the concept of property, the concept of personhood is not as simple as we may assume. The term “person” is commonly understood as interchangeable with the term “human.” This understanding is influenced by philosophical ideologies of what it means to be a “person” correlating to common descriptors of what it means to be human. For example, Locke defined the person as a rational and intelligent entity;32 Kant’s definition was of a responsible moral agent;33
28 Merrill and Smith, above n 21, at 3 and 11.
29 Visa A.J. Kurki A Theory of Legal Personhood (Oxford University Press, New York, 2019) at 4.
30 David Gindis “Legal personhood and the firm: avoiding anthropomorphism and equivocation” (2016) 12 Journal
of Institutional Economics 499 at 504.
31 Adams, above n 18, at 32.
32 Bartosz Brożek “The Troublesome ‘Person’” in Visa A.J. Kurki and Tomasz Pietrzykowski Legal Personhood: Animals, Artificial Intelligence and the Unborn (Springer Cham, Cham (Switzerland) 2017) 3 at 5.
33 Brożek, above n 32, at 6.
and Aquinas viewed the person as directly synonymous with the human being, a being with ultimate intrinsic value.34
However, the most accurate legal conception of the person is less attached to moral value and humanity, depending instead on the ability of an entity to exercise rights and bear duties. 35 Applying this legal conception to the property context, personhood status is attributed to those who are able to hold property rights and discharge property duties.36 The philosophical and legal conceptions of personhood do mostly go hand in hand, as often those who are able to hold rights and bear duties are human. However, this is not always the case as some non-human entities are also persons under the law. 37 For example, corporations are persons made clear by the Interpretation Act 1999 defining “person” as including “a corporate sole, a body corporate, and an unincorporated body.”38 Natural environments can also enjoy personhood status, such as Te Urewera and Te Awa Tupua (the Whanganui River).39
The law classifies all entities, human or non-human, that are able to hold rights and bear duties on the person side of the binary, leaving all else to necessarily fall on the property side of the binary. Persons are able to exercise rights and bear duties in relation to objects of property whereas objects have no such power.40 While persons have interests that are legally protected by rights, objects’ interests are irrelevant under the law and so are not protected by rights.41 Legal objects are viewed as having no rights or obligations, no autonomy, no physical integrity, and are typically presumed inanimate.42 Objects are thus generally seen as having far less worth than persons and holding only
34 Monica Short, Karen Dempsey, Janice Ackland, Emma Rush, Eric Heller and Helen Dwyer “What is a Person? Deepening students’ and colleagues’ understanding of person-centredness” (2018) 20 Advances in Social Work and Welfare Education 139 at 141; Visa A.J. Kurki “Animals, Slaves, and Corporations: Analyzing Legal Thinghood” (2017) 18 German LJ 1069 at 1071.
35 Kurki, above n 34, at 1071; Brożek, above n 32, at 8.
36 Rachael Mortiaux “Righting Aotearoa’s coastal marine area: a case for legal personhood to enhance environmental
protection” (2021) 30 Griffith Law Review 413 at 424.
37 David Gindis, above n 30, at 500 and 508; Mortiaux, above n 36, at 423 and 426.
38 Interpetation Act 1999, s 29. See also Companies Act 1993, s 15; Animal Welfare Act, s 2, and Crimes Act, s 2.
39 Te Urewera Act 2014, s 11; Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14. While it may sound odd for a natural environment to enjoy personhood status, these changes was made to recognise the special relationship between iwi and these areas and to provide legal protection for these natural environments from exploitation by acknowledging their agency. See New Zealand Parliament “Innovative bill protects Whanganui River with legal personhood” (28 March 2017) New Zealand Parliament <https://www.parliament.nz/en/get- involved/features/innovative-bill-protects-whanganui-river-with-legal-personhood/>; Ngai Tūhoe “Te Urewera” (accessed 2 October 2022) Ngai Tūhoe <https://www.ngaituhoe.iwi.nz/te-urewera>.
40 Kurki, above n 34, at 1079; Adams, above n 18, at 33-34.
41 Adams, above n 18, at 33; Kurki, above n 34, at 1070; Gary L. Francione “Animal Rights and Animal Welfare”
(1996) 48 Rutgers L Rev 397 at 461.
42 Adams, above n 18, at 32.
economic value. 43 This distinction between persons and objects is demonstrated by cases pertaining to the status of bodies and bodily materials: the general rule is that persons and their body parts cannot be objects of property, but that all else can.44 Some examples of things that would be classified as objects are those I referred to earlier when describing common understandings of the concept of property: a chair, a rug, and a surfboard are all things that cannot hold rights and bear duties, and so would fall short of personhood and be classified on the object side of the binary instead. These objects do not encapsulate the concept of “property” itself, but play the part of the non-rights-holding/non-duty-bearing objects involved on one side of the binary within the property relationship.
Property is a bundle of rights and creates an exclusive binary of persons and objects. The law considers certain entities as having the capabilities to hold rights and bear duties and classifies them as persons, leaving all else to fall on the object side of the binary. Having established a solid description of what property is and how the binary works, I will now move onto explore how animals fit into property and the binary.
C. Animals as Objects of Property
Animals are currently classified under the law as objects of property. Like a chair, a rug, and a surfboard, the law considers animals do not have the rights-holding and duty-bearing capabilities necessary for personhood classification and accordingly they are classified as objects. 45 This classification is made clear by New Zealand case law and legislation. In Hamilton City Council v Fairweather, Baragwanath J discussed how the Dog Control Act 1996 (DCA) objectifies animals, the judge referring to the dog at hand as a “chattel.”46 Justice Palmer reaffirmed the property status of animals in Auckland Council v Hill, noting how the DCA and Animal Welfare Act 1999 (AWA) structure the human-animal relationship as between humans as owners and “animals as property.”47 Judge Coyle has also emphasised that household pets are “family chattels,” as made clear by s 2 of the Property (Relationships) Act 1976, and his judgment emphasised that these
43 James T. Lamiell and Werner Deutsch “In the Light of a Star: An Introduction to William Stern’s Critical Personalism” (2000) 10 Theory and Psychology 715 at 721.
44 Williams v Williams (1882) 20 ch D 659; R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2 All ER 687.
45 Gary L. Francione Animals, Property, and the Law (Temple University Press, Philadelphia, 1995) at 4; Kurki, above 34, at 1070; Steven M. Wise Rattling the Cage: Toward Legal Rights for Animals (Da Capo Press, Philadelphia, 2014) at 24.
46 Hamilton City Council v Fairweather [2001] NZAR 477 (HC) at [36]; Dog Control Act 1996.
47 Auckland Council v Hill [2018] NZHC 3315 at [26].
animals have monetary object-like value.48 Section 57(3) of the Wildlife Act 1953 clarifies that all animals are objects of property, stating that any animal in a wild state is property of the Crown and any animal not in a wild state (any domesticated animal) is the property of their private owner.49
The classification of animals as property is evident under the criminal law as well. Part 10 of the Crimes Act 1961 “Crimes against rights of property” objectifies animals: section 218(3)-(5) speaks clearly of wild confined animals, and thus domestic animals, as capable of being “owned” and the object of property offences under this Part.50 Sections 220A and 221 also expressly classify animals as property, these offences pertaining to theft of animal “property.”51 The charge in Finlinson v Police reinforces the property status of animals; here the defendant shot and killed his ex-partner’s horse and this act was charged as intentional damage of property under s 269 of the Crimes Act.52 In this case, the horse was treated the same as any other object, Nation J going so far as to emphasise that the “property” involved being a sentient being had no bearing on how aggravating the offending was, and stated the horse was “replaceable” just like any other object of property.53 Property offences under Part 10 of the Crimes Act are about acknowledging the property rights of the owners of objects, not about the interests of the objects themselves. As animals fall into the object category, the Crimes Act ignores their interests when harmed by property offending.
There is however a significant exception to this ignorance of animal interests: the AWA. Under the AWA, animals are still classified as property, but their sentience is explicitly recognised in the long title of the Act and their interests are acknowledged through the content of the Act’s offences.54 For example, s 12 criminalises an owner’s failure to comply with obligations in relation to their animals’ basic needs, and ss 28, 28A, and 29 criminalise ill-treatment of animals.55 These offences accept that animals have interests worthy of legislative protection, interests other objects do not have. 56 The Animal Welfare (Care and Procedures) Regulations 2018 also provide mandatory standards animal owners must meet to avoid breaching the AWA, these standards responding to interests that are fundamental to animal welfare but irrelevant to other objects of
48 Sydney v Sydney [2012] NZFC 2685 at [25]- [26] and [30]; O'Brien v Tuer DC Waitakere FP-090-327-03, 9 September
2003.
49 Wildlife Act 1953, s 57(3).
50 Crimes Act, s 218(3)-(6).
51 Sections 220A and 221.
52 Finlinson v Police [2016] NZHC 224; Crimes Act, s 269.
53 At [23]-[25], [36], and [62].
54 Animal Welfare Act, long title.
55 Sections 12(a), 28, 28A, and 29(a).
56 Barbara Newell “Animal Custody Disputes: A Growing crack in the Legal Thinghood of Nonhuman Animals”
(2000) 6 Animal L 179 at 179.
property.57 The Crimes Act and AWA regimes are inconsistent with how they view animals. I will speak more to this inconsistency in Chapters II and III.
Summary
In this chapter I have shown that property is not an object but a bundle of rights, and these rights create a relationship between a rights-holder and duty-bearer in relation to an object of property. This concept of property creates a binary between persons who are rights-holders and duty-bearers versus objects of property. Only entities with the capacity to hold rights and bear duties are classified as persons and all else is classified as property. The law views animals as unable to hold rights and bear duties so classifies them as property, this classification evident under the law generally as well as the criminal law specifically. Within the criminal law, the Crimes Act treats animals the same as other objects of property whereas the AWA differentiates animals from other objects, acknowledging their sentience and interests. In the next two chapters I will discuss the problems that this classification creates. First, I will consider broad problems arising under the law generally, and then I will look to problems arising under the Crimes Act specifically.
57 Animal Welfare (Care and Protection) Regulations 2018.
CHAPTER II: GENERAL PROBLEMS WITH THE LEGAL STATUS OF ANIMALS AS PROPERTY
As outlined in Chapter I, the law in New Zealand classifies animals as objects of property. In this chapter, I analyse why this classification is a problem. I argue that the property status of animals is problematic for three main reasons. First, the classification is descriptively incoherent. This incoherence is made clear when considering theories underlying the institution of property and the existence of animal welfare legislation. The second reason is that this status marginalises animal interests and is morally unjustifiable. Here, I discuss intelligence and human obligations arguments, both centred on the notion that species difference does not justify object status. The last reason is that community attitudes have evolved from the traditional view of animals as chattels, indicating that it is time for a change. I will discuss each of these reasons in more depth and then in the next chapter move on to analyse how this status has resulted in specific criminal law issues.
A. The Classification is Descriptively Incoherent
1. Property theories
Multiple theories have been proposed as justification for the institution of property in society and analysis of these theories highlights the incoherence in classifying animals as objects. Anna Wotherspoon, in her review of the classification of animals as property, scrutinised four property theories and argued that animals do not coherently fit into the property side of the binary within any of these theories. 58 Her approach is convincing and I adopt it accordingly. One theory Wotherspoon considered comes from George Hegel.59 Hegel proposes a theory of individual growth by complete control over property (“Hegel’s control theory”).60 Under this theory, the institution of property is justified as a good for society as it allows the human personality to grow through the “embodiment of the will in property.”61 This “embodiment” happens when the human exercises their rights and control over property by giving it a purpose at their own volition.62 Under Hegel’s control theory, human A achieves personality growth through imposing purpose B over object C. Consider the following scenario as an illustration of this theory:
58 Anna Wotherspoon “Unravelling incoherence: utilising property theory to challenge the classification of animals as
chattels” (2021) 46 Journal of Legal Philosophy 81 at 96-119.
59 Wotherspoon, above n 58, at 99-107.
60 Wotherspoon, above n 58, at 99-101.
61 Wotherspoon, above n 58, at 84; Jeremy Waldron The Right to Private Property (Oxford University Press, 1988) at 352.
62 Wotherspoon, above n 58, at 100.
(1) Harry’s (A) human personality grows when he moves (B) his desk (C) to the corner of his room.
Here, Harry has imposed his control and purpose over the desk by moving it to a place of his choice and so his personality grows.
When applying this theory to animals as objects, Wotherspoon suggests we run into trouble.63 Animals are inherently different to the objects of property Hegel proposes because humans do not have complete control over them.64 If we classify animals as objects, human A is unable to achieve personality growth through imposing purpose B over object C, because C has a purpose of their own that the human cannot control. This problem is clear if we replace the desk with a dog in scenario (1):
(2) Harry’s (A) human personality grows when he moves (B) his dog (C) to the corner of his room.
The trouble is that (2) is a falsity. Unlike the desk, the dog can move on its own volition and is not completely subject to the will of Harry. For example, Harry could try to move the dog, but she may run to the opposite corner of the room, sit down and refuse to move, or even go to the right corner but on her own volition and not on Harry’s. We see here the competing wills of Harry and the dog; the dog could exercise her own will without any control of Harry, or at least without his complete control, making animals an uncomfortable fit in Hegel’s assessment of objects.
It may be argued that we could confine the dog so that she is unable to exercise her will and Harry could regain complete control, perhaps if we put her in a cage:
(3) Harry’s (A) human personality grows when he moves (B) his caged dog (C) to the corner of his room.
However, even in scenario (3) the dog will still have at least some choice over her actions that Harry cannot have; the dog could scratch, bite, lick, growl, or even just blink at Harry, and the fact is that Harry has no control over any of these actions she is making. Wotherspoon asserts, and I
63 Wotherspoon, above n 58, at 104.
64 Wotherspoon, above n 58, at 101-102 and 105.
concur, that “animal purposes are not human purposes because animals engage in behaviours that are not fully referable to the human will and to that extent escape human knowledge, cognition and control.”65 There is a clear distinction between a dog and a desk, or between any animal and any inanimate object of property: animals have their own purposes that are external to human purposes, meaning they cannot be the object of property under Hegel’s control theory.
Kant’s property theory runs on a similar thesis to Hegel’s and similarly discounts the coherence of animals as property. Kant’s idea is that the justification sitting behind the institution of property lies in the development of human individuality resulting from complete control over objects in your environment (“Kant’s control theory”).66 Wotherspoon concludes that similar to Hegel, Kant cannot coherently classify animals as objects as they are unable to be completely controlled by the individual,67 and thus with both of these control theories the classification of animals as objects simply does not work.
A third property theory Wotherspoon considered was Nussbaum’s capabilities theory (“capabilities theory”). 68 Nussbaum purports that property-holding is justified as it dignifies capable individuals by allowing them to exercise their capabilities over incapable objects. 69 Capabilities theory is concerned with capable life forms that “[possess] both abilities and deep needs.”70 When we consider the classification of animals as property, Wotherspoon argues we run into trouble again as animals have their own capabilities they are able to exercise against objects, and so would actually fall into the dignified subject side of this theory.71 Animals have capabilities such as “senses, imagination and thought,” Nussbaum even noting these capabilities and the tension of animals’ placement in her theory throughout her work.72 Similarly to control theories, capabilities theory depends on objects as being inanimate rather than autonomous, and highlights the incoherence in classifying animals as objects.
65 Wotherspoon, above n 58, at 105.
66 Wotherspoon, above n 58, at 107; Gregory Alexander and Eduardo Peñalver An Introduction to Property Theory
(Cambridge University Press, 2012) at 70.
67 Wotherspoon, above n 58, at 107.
68 Nussbaum’s capabilities theory is primarily a theory of dignity/ideal functioning, and one of the ways one achieves dignity is by exercising their capability in property-holding, which is relevant for our purposes. See Wotherspoon, above n 58, at 96-97.
69 Martha Nussbaum Women and Human Development: The Capabilities Approach (Cambridge University Press, 2000).
70 Martha Nussbaum Frontiers of Justice (Harvard University Press, 2006) at 346.
71 Wotherspoon, above n 58, at 98.
72 Nussbaum, above n 70, at 396-397.
The final theory of Wotherspoon’s matrix is the idea that property is justified because it involves maximising resources in society (“maximisation theory”).73 This theory is based on consequences, proposing that the institution of property can be justified when considering the outcomes produced by property’s functioning.74 This is the first theory that looks as though it could perhaps coherently categorise animals as objects because our objectification of animals does maximise the production of a range of animal products or “resources” in society. The various animal product industries make major contributions to New Zealand’s economy,75 and the objectification of at least the animals within these industries could perhaps be sound under maximisation theory. However, it is difficult to quantify and compare the maximisation of animal resources, and it could also be well argued that the use of animals is detrimental to society’s resources. For example the high levels of greenhouse gasses produced by the agricultural sector are a massive contributor to climate change, and the copious amounts of water necessary to keep agricultural businesses running is deteriorating our water supplies.76 Wotherspoon mentions other concerns with modern animal agriculture practices, such as water pollution, waste products, susceptibility to pathogens in animal products, and zoonotic disease.77 It appears that these practices maximise animal products or “property” but also deteriorate other valuable resources which undermines this theory’s objectification criteria, highlighting the potential for unsuitability of animals as objects of property under maximisation theory. When considering background theories for the existence of property in society, I concur with Wotherspoon in concluding that animals cannot comfortably be classified as objects within that institution.78
2. Animal welfare laws
The existence of animal welfare legislation is another indication that the objectification of animals is incoherent. The Animal Welfare Act 1999 (AWA) acknowledges the sentience of animals directly
73 Wotherspoon, above n 58, at 108.
74 Alexander and Peñalver, above n 66, at 17.
75 For example the red meat industry provides $12b to our economy and 92,000 jobs, see Beef and Lamb New Zealand and Meat Industry Association and Beef and Lamb New Zealand “Economic and social contribution of the New Zealand red meat industry” (June 2022) MIA <https://www.mia.co.nz/assets/MIA-Publications/Economic-and- Social-Contribution-of-the-NZ-Red-Meat-Industry-Overview.pdf> at 4.
76 Robert Goodland and Jeff Anhang “Livestock and climate change: what if the key actors in climate change are... cows, pigs, and chickens?” (2009) WorldWatch 10 at 11; Christopher Hyner “A leading cause of everything: one industry that is destroying our planet and our ability to thrive on it” (2015) Georgetown Environmental Law Review; David Pimentel, Bonnie Berger, David Filiberto, Michelle Newton, Benjamin Wolfe, Elizabeth Karabinakis, Steven Clark, Elaine Poon, Elizabeth Abbott and Sudra Nandagopal “Water resources: agricultural and environmental issues” (2004) 54 Bioscience 909 at 911.
77 Wotherspoon, above n 58, at 115-116.
78 Wotherspoon, above n 58, at 118.
in the long title.79 This is an immediate indication that animals are unlike other objects of property. The AWA also acknowledges animal sentience through the criminalisation of their neglect. 80 Nowhere else in the law do we see criminal sanction for neglecting the needs of property for the sake of the property itself, highlighting that something is amiss. Cruelty toward animals is also criminalised under the AWA, affirming the entitlement of animals to avoid unnecessary pain and distress.81 The inclusion of such protections outrightly acknowledges the sentience of animals and their difference from other objects of property; there is no parallel area of law for cruelty against chairs or rugs or surfboards, and rightly so — these are inanimate objects that do not need protection, whereas animals are sentient beings that do.
The penalty of disqualification from owning animals contained within the AWA is another oddity when considering animals as objects.82 This penalty is included to provide protection for animals at risk of abuse, which means it protects “property.” A judge may penalise a drink driver by disqualifying him from owning a vehicle, however this is to protect society and not the vehicle itself. Conversely, someone convicted of ill-treating an animal is banned from owning animals to protect other animals from undergoing the same abuse in the future. Nowhere else do we see a sentencing option aimed solely at protecting an object of property for the sake of that object.
The Dog Control Act 1996 (DCA) also acknowledges the autonomy and difference of dogs to other objects of property. Examples are visible all throughout the Act: the DCA empowers regional councils to label certain dogs as “dangerous” or “menacing,”83 provides for the mandatory destruction of dogs who attack people or other animals,84 and the core purpose of the Act is to “control” dogs.85 Labelling property “dangerous,” holding it accountable for its actions, or needing to provide an entire Act for its “control” are not things that make a lot of sense when comparing to other objects of property.86
Case law involving welfare offences inherently involves discussion of the suffering and sentience of animals, reinforcing again the difference of animals to other objects of property. For example,
79 Animal Welfare Act, long title.
80 Section 12(a).
81 Sections 28, 28A, and 29; s 2 encompassing the interpretation of “ill-treat” as unreasonable or unnecessary pain or
distress.
82 Section 169.
83 Dog Control Act, ss 31 and 33A.
84 Section 57(3).
85 Section 4(1).
86 I will speak more to issues stemming from the DCA in Chapter III.
in Balfour v R, White J for the Court of Appeal noted that cats and dogs have heightened senses which can lead to a great amount of suffering, and that the neglect in this case “does not bear thinking about.”87 In Erickson v Ministry of Primary Industries, Kós P noted the severity of the “trauma, pain and suffering” the calves must have endured whilst being slammed onto concrete from a height of two metres.88 These judges are acknowledging the sentience of animals and a need to avoid suffering that other objects simply do not have. Welfare legislation and case law plainly underline the fact that animals are of a completely different nature to other objects of property, and so their classification as such is descriptively incoherent.
B. The Classification is Morally Unjustified
1. Intelligence arguments
Differences in intelligence between humans and animals do not morally justify the objectification of animals under the law. This is for three reasons. First, the anthropocentricism of our measure of human intelligence undermines it as an appropriate metric. Animals are perhaps not as intelligent as humans when considering scientific research comparing animal and human psychological functioning, 89 as well as common-sense comparisons of animal and human behaviour; an animal cannot drive a car, write an essay, discuss Plato, or solve a complicated maths equation. However, this idea of “intelligence” is highly anthropocentric. Why must we use human psychology and characteristics as the bar for intelligence? Animals have an abundance of abilities and characteristics that humans do not have, such as abilities to fly at heights, run at speeds, and swim at lengths humans could never dream of.90 Using human intelligence as a reason to objectify animals is chauvinistic; it is not reflective of any inherent morality and is only a social construct used to artificially posit humans as superior to others.
Furthermore, even if we do assume that human intelligence is the ultimate bar of intelligence and accept that animals do not meet this bar, the second reason why this difference between humans
87 Balfour v R [2013] NZCA 429 at [33].
88 Erickson v Ministry for Primary Industries [2017] NZCA 271 at [7].
89 For example David Premack “Humans and animal cognition: Continuity and discontinuity” (2007) 104 PNAS 13861 finding that human brains involve intricate neural structures and connections that animal brains do not have leading to better short-term memory, planning and deception among other skills; Robert Sapolsky Why Zebras Don’t Get Ulcers (3rd ed, Henry Holt and Company, New York, 2004) Ch 2 showing that humans have more complex and prolonged brain activation when exposed to stressors compared to most animals, made clear by higher prevalence of stress- related illnesses like high blood pressure and heart disease in humans compared to animals.
90 Steve F. Sapontzis “On Justifying the Exploitation of Animals in Research” (1988) 13 J Medicine & Phil 177 at 187.
and animals does not justify differential legal treatment is that it does not matter. Why should we care so much about intelligence when classifying beings as subject and object? It is arbitrary to posit that animals must fall to the object side of the binary just because they have lesser cognitive abilities. Animals are sentient, just like humans.91 Animals want to live and avoid suffering; their running away when pursued and attempt at escape when captured offers the inference that they have an interest in survival and thus a future sense of self.92 Why should intelligence be the measure used when classifying animals rather than the ability to suffer? Francione purports that there is no reason that human intelligence or uniquely human characteristics should dictate a lesser classification of animals.93 As Bentham and subsequent utilitarians have assessed, a being’s ability to suffer should be our main measure of how we treat and view it in society.94
Finally, even if we accept that human intelligence is an appropriate measure and that it does and should matter for classification purposes, what about the humans who will fail to meet this bar? Following this reasoning would mean categorising ‘unintelligent’ humans as objects, for instance, infants and adults with limited mental capacities.95 We are confronted here with the discomfort in classifying humans as objects and the adjoining fact that it does not make sense to classify animals as property for the same reason. Francione points out that a sentient adult with limited mental capacities has a clear interest in not being treated as property,96 and so too then would a sentient animal with the same level of mental capacity. The only discernible difference between these two beings is species, and when we classify the animal as property and the human as person we are no longer really using intelligence as the differentiator and rather classifying them differently by blatant speciesism.97 This argument highlights that human intelligence is actually a spectrum rather than a singular standard, and that it is ultimately a useless differentiator anyway: the difference between animals and humans is not one of kind, but simply of degree,98 and neither should be classified as property. Overall, intelligence arguments do not justify the classification of animals as objects.
91 Both have a nervous system and ability to suffer, see Temple Grandin “Animals Are Not Things: A View on Animal Welfare Based on Neurological Complexity” (2013) 3 Trans-Scripts 140 at 142.
92 Grandin, above n 91, at 141; Gary L. Francione “Animals – Property or Persons?” (2004) paper 21 Rutgers Law
School 1 at 33.
93 Francione, above n 92, at 37-38.
94 Jeremy Bentham An Introduction to the Principles of Morals and Legislation (Hafner, New York, 1948), at 310–311; Peter Singer Animal Liberation (3rd ed, Ecco, 2002) at 7.
95 Singer, above n 94, at 18.
96 Francione, above n 92, at 39.
97 Speciesism being the act of bias in favouring one’s own species against another species for the pure reason of species
difference: Singer, above n 94, at 6.
98 Adams, above n 18, at 36.
2. Human obligations arguments
In the alternative, if we accept that we can use species difference to justify differential treatment of animals, the strongest possible argument in moral support of our doing so centres on human obligations. Maybe humans have natural obligations to other humans that they do not have to animals, and this justifies our better treatment of humans and worse treatment of animals.99 This argument is speciesist and perhaps even oppressive if compared to other arguments that run similar lines, for instance if we compare it to the sexist argument that men have natural obligations to other men that they do not have to women.100 However, there is perhaps more sense in the case at hand. We see this phenomenon all throughout the animal kingdom where animals tend to their own family units first and foremost. Vincent and colleagues have reported that chimpanzees and orcas have strong group identities and defend their own family groups against others, becoming violent when their peace is disrupted by other communities.101 Psychological research has provided evidence that young children and teenagers are drawn to others who dress and have similar interests to them.102 “In-group favouritism” is commonly observed in naturally occurring groups, and perhaps even a key strategy for survival.103 We also have various obligations in society that go undisputed, for example family obligations (like parents’ obligations to tend to their own children but not others), friendship obligations, and community obligations.104 We cannot be expected to consider every other living being when we make decisions, and perhaps this idea of tending to your own is natural and a justifiable reason to treat other species differently to your own.
However, an obligation to other humans does not erase all obligations to other animals, and definitely does not justify the objectification of other animals. While natural obligations to those in one’s in-group may exist, they do not countermand obligations to anyone outside that group. Just as an obligation to tend to your own children does not negate obligations to respect other children, an obligation to tend to the human species does not negate obligations to respect animal species’ and does not allow us to do with them as we please. This is particularly so given our domestication of many animals: it is hard to reason how we as humans could dismiss the notion
99 Bernard Williams “The Human Prejudice” (2008) Princeton University Press 135 at 139, 146-147, and 152.
100 Could also compare examples of racist and homophobic arguments.
101 Sarah Vincent, Rebecca Ring and Kristin Andrews “Normative Practices of Other Animals” in A Zimmerman, K Jones and M Timmons (eds) The Routledge Handbook of Moral Epistemology (Routledge, New York and London, 2018) 57 at 67-71.
102 Christine A. Fawcett and Lori Markson “Similarity predicts liking in 3-year-old children” (2010) 105 Journal of
Experimental Child Psychology 345 at 346 and 356.
103 Kraus Abbink and Donna Harris “In-group favouritism and out-group discrimination in naturally occurring groups” (2019) 14 PloS one 1 at 1.
104 Sapontzis, above n 90, at 181-182.
that we have obligations to animals given we are the ones who have made them depend on us. It is also rarely the case that obligations to humans and to animals actually come into conflict, and perhaps in cases of true conflict like emergency situations we may be able to fall back on this natural phenomenon of tending to your own.105 But emergencies are the exception and not the rule. At the very least, if we want to favour humans in all situations, even non-emergencies, this still does not give any sound reason as to why we need to marginalise animals to object status. Perhaps one could purport a lesser status than humans, but to class animals in the same category as a chair, a rug, and a surfboard is unnecessary and unjustified. Obligations to humans may exist, but these do not erase our obligations to animals.
C. Community Attitudes are Shifting
The key to functioning law in a democratic society is to keep up with modern community attitudes, and right now the community is becoming increasingly uncomfortable with animals’ classification as objects. While our legal system has classified animals as objects from the outset – the term “cattle” derives from the word “chattel” for instance – this view has evolved and tradition is no good reason to condone the continuation of this incoherent and morally unjustified classification.106 If tradition or ease were enough to justify our objectification of animals, then other oppressive regimes like slavery would still be condoned by the law. But slavery of course is not condoned because society eventually came to accept that there is no reason strong enough to treat humans as property, regardless of the economic benefits.107 Similarly, there is now a growing discomfort in our objectification of animals, as evidenced below.
Most modern communities reject the notion that animals are objects of property, at least in the non-legal sense.108 Geeta Shyam’s 2018 empirical study highlights that property status is at least in part inconsistent with community attitudes towards animals.109 After surveying a portion of the Australian public, Shyam reported that most respondents did not agree with the “status quo” of animals as property, and most did not know the law classifies animals as property in the first
105 And in fact we do allow harm against animals in circumstances of true emergency, see Animal Welfare Act, s 30(2)(b).
106 Oxford English Dictionary “cattle (n.)” OED
<https://www-oed-com.ezproxy.otago.ac.nz/view/Entry/29037?redirectedFrom=Cattle#eid>.
107 Francione, above n 92, at 26.
108 Francione, above n 92, at 8.
109 Geeta Shyam “Is the Classification of Animals As Property Consistent with Modern Community Attitudes?” 41
UNSWLJ 1418 at 1418.
place.110 Out of the respondents who owned companion animals, over 90 percent stated they viewed them as either family members or friends, and only 15 percent of total respondents viewed farm animals as property.111 Shyam concluded that her findings emphasise “the need for greater community education about the legal status of animals,” and called for future research to focus on exploring an alternative status for animals and on gaining public opinion on what that status might look like.112 These findings show a clear dissonance in community attitudes and the state of the law and a need for change.
Judicial opinion is also increasingly emphasising the commonplace view that animals are not merely property. For instance, Baragwanath J in Hamilton City Council v Fairweather stated that “dogs are living creatures of greater significance than mere chattels.”113 Judge Farish in New Zealand Police v Finlinson reinforced the seriousness of animal “property damage” compared to regular property damage due to the fact that animals “feel pain, suffer, and die” and “cannot be replaced.”114 Judge Snell in Ministry of Primary Industries v Brolly considered that neglected calves are not mere property but defenceless “victims” because they can suffer but “they cannot cry out for help or get anybody to come and intervene.”115 Judges view animals as the sentient beings they are and differentiate them from other objects of property.
Attitudes are also changing toward animal owners, with judges acknowledging the special relationship existing between owner and companion animal. 116 Schmidt and Duffield have highlighted a series of cases that involve judges awarding emotional reparation to owners of harmed companion animals.117 Schmidt and Duffield state that these cases emphasise that animals have sentimental and companionship value in addition to any pure economic property value.118 In New Zealand Police v Spittle, for instance, the offender was charged with wilful ill-treatment causing death after having thrown his neighbour’s dog into a tree stump and killing it.119 Judge Flatley awarded emotional reparation to the owner for the loss of the animal noting the “pain [she] must
110 Shyam, above n 109, at 1430-1431.
111 Shyam, above n 109, at 1436 and 1438.
112 Shyam, above n 109, at 1444.
113 Hamilton City Council v Fairweather, above n 46, at [36]-[37].
114 New Zealand Police v Finlinson [2015] NZDC 25054 at [13]. While this is the District Court judgment and not the more recent High Court opinion, Nation J’s approach in the High Court has been highly criticised such as in Karl Schmidt and Danielle Duffield “Harm to Animals” (2019) NZLJ 286 at 288.
115 Ministry of Primary Industries v Brolly [2021] NZDC 4000 at [20].
116 Vincent P. McCarthy “The Changing Concept of Animals as Property” (1982) 3 International Journal for the Study of Animal Problems 295 at 299.
117 Schmidt and Duffield, above n 114, at 289.
118 Schmidt and Duffield, above n 114, at 289.
119 New Zealand Police v Spittle DC Queenstown CRI-2008-059-413, 3 June 2008; Schmidt and Duffield, above n 114, at 289.
be feeling.”120 He also focused particularly on the fact the victim had acquired the dog as a companion after her husband had passed away.121 In Wellington Society for the Prevention of Cruelty to Animals v Dorrian, the judge ordered emotional damages even when the charge was reckless rather than wilful ill-treatment, showing that this approach is justified even when offending is less serious.122 Both of these cases were about ill-treatment of animals yet it is the loss of animal life that the judges are using as justification for ordering emotional reparations. This technically does not make sense: it means judges are awarding damages for something other than the true mischief of the offending, this highlighting that the judiciary are taking loss of animal life seriously despite it not being the criminal aspect of the offending.123 Schmidt and Duffield conclude that cases like these reiterate judges’ acknowledgment that animals have lives worth protection and vindication which significantly differentiates them from other objects of property.124
The recent judgment of New Zealand Police v Walter also emphasises judicial opinion toward animals is more sentimental than toward other objects of property.125 In Walter, the defendant shot and killed “Dansey” the deer, a companion animal that resided within the bounds of the owner’s property, and was charged with unlawful hunting of a wild animal. 126 Judge Rollo ultimately ordered emotional reparations to the owner, this sentence highlighting two things. First, similar to the above cases, the mischief of the offence was not the loss of the animal yet this is what the judge ended up awarding emotional damages for (in fact, the charge had nothing at all to do with harming animals and was about trespassing on neighbouring land while hunting).127 Second, Judge Rollo quickly dismissed the defence’s argument that the animal was only property, stating that regardless of legal classification, the owner had an emotional connection with Dansey and so “obviously, emotional harm [was] appropriate. The law requires a Judge to impose reparation in all appropriate cases, and this [was] certainly such a case.”128 Walter, like Spittle and Dorrian, reflects the growing judicial view that when animals are killed, it is not just property damage but a loss of life worth emotional recompense.
120 New Zealand Police v Spittle, above n 119, Judge Flatley ordering $2,000 for emotional harm.
121 Schmidt and Duffield, above n 114, at 289.
122 Wellington Society for the Prevention of Cruelty to Animals v Dorrian [2017] NZDC 3396, Judge Morris ordering $1,500 for emotional harm.
123 Schmidt and Duffield, above n 114, at 289.
124 Schmidt and Duffield, above n 114, at 289.
125 New Zealand Police v Walter, above n 4.
126 At [2]-[3]; Wild Animal Control Act, s 8(2).
127 The charge was under Wild Animal Control Act, s 8(2). Note however this charge was inappropriate considering Dansey was fenced in the property and so should have legally been considered as a domestic animal rather than wild animal using the criteria under the Wildlife Act, s 57(3) and Crimes Act, s 218(5).
128 New Zealand Police v Walter, above n 4, at [10].
Summary
The arguments I have outlined in this chapter show the classification of animals on the object side of the property binary is incoherent, morally unjustifiable, and at odds with community values. It does not make sense to categorise animals in the same class as inanimate objects of property when we know they are autonomous with their own purposes and capabilities, and when laws exist to protect their interests as sentient beings. There is also no good moral justification in categorising animals as objects and subjecting them to the harms they face when classified as such. Finally, much of the community no longer views animals as objects. Change is necessary in order to address this incoherence and better reflect society’s views. In Chapter III, I will discuss how this problematic classification has caused issues within the criminal law, specifically through the objectification of animals through property offences in Part 10 of the Crimes Act.
CHAPTER III: ANIMALS AS PROPERTY UNDER THE CRIMES ACT 1961
In Chapter II, I established that the property status of animals is incoherent, unjustified, and adverse to community attitudes. In this chapter, I will consider how this inappropriate status has influenced the criminal law specifically. The criminal law framework for offences involving animals is confused to say the least. While animal sentience is accepted under welfare legislation and common law,129 it is ignored by the Crimes Act 1961. This creates a disjointed state of criminal law for animals and represents a cognitive dissonance in how we view and treat animals: half the time as sentient and half the time as inanimate objects. Many issues arise from the coexistence of these systems, but I will centre my discussion on three critical faults resulting from the objectification of animals. First, I will examine the general marginalisation of animals under the Crimes Act by their objectification under property offences such as theft and intentional damage. I will then discuss the issue of victimhood for animals, namely that the Crimes Act fails to acknowledge animals as victims when they are harmed. My final focus will be on the Crimes Act’s ignorance of the link between offending against animals and offending against humans.
A. Animals as Property under the Crimes Act
The key issue with the Crimes Act is that it objectifies animals in a way that completely ignores their sentience and interests. Part 10 of the Act is about “Crimes against rights of property” and animals are currently included as a type of “property” able to be the object involved in these various offences.130 This is made clear by s 218.131 Section 218(1) outlines that an “owner” of property for the purposes of Part 10 is a person who has possession, right to possession, or an interest in the object.132 Section 218 subs (3)-(5) state that when a person possesses a wild animal that person is the owner of that animal.133 Section 218 makes evident that when a wild animal is possessed by a person it becomes domesticated and so becomes their personal property, clarifying that possessed animals are “property” for the purposes of Part 10.134 Two crimes in particular are
129 Animal Welfare Act, long title; Balfour v R, above n 87, at [33]; Erickson v Ministry for Primary Industries, above n 88, at [7].
130 Crimes Act, Part 10: “Crimes against rights of property.”
131 Section 218.
132 Section 218(1).
133 Section 218(3)-(5).
134 Section 218(3)-(5). See also s 218(6) that outlines shellfish are able to be the property of any person for the purposes of Part 10.
problematic in their objectification animals: theft and intentional damage. I will discuss both of these crimes and the abundance of issues the objectification of animals brings to each of them.
1. Theft
Animals are objectified by the crime of theft. Under s 219 of the Crimes Act, the crime of theft involves the movement or taking of a piece of property from location A to location B.135 As outlined above, s 218 makes clear that possessed animals are able to be the object of property offences under Part 10, and this includes under the crime of theft.136 Case law also clarifies that animals in the possession of an owner are property able to be stolen for the purposes of theft. For example, Haitana v Police involved the defendant taking a number of cows from his neighbour resulting in a charge of theft under s 219.137 Collins v R also involved the defendant taking cows from neighbours, and Elsmore v Police involved the taking of lambs; both of these cases involving charges under s 219.138 The penalty section for contravening s 219 encompasses a tariff: a list of fixed penalties that determine the potential penalty for the offence depending on the economic value of the property stolen.139 The sentencing process in each of the above cases involved the judge applying the appropriate tariff band according to the corresponding monetary value of the animal. In Haitana, Mallon J stated that the cows stolen were valued at over $1,000 so the potential penalty was in the highest band of the tariff at up to seven years imprisonment.140 In Collins, Clifford J found the value of the cows stolen was around $40,000, and in Elsmore Keane J asserted the value of the lambs stolen was around $30,000, meaning both of those cases also fell within the highest band.141
Animals’ inclusion within these theft provisions is problematic because it fails to distinguish animals’ difference to other objects of property and in doing so ignores their sentience and interests. The tariff guidelines acknowledge animals only as economic objects, ignoring any sentimental, companionship, or inherent moral value they have. Case law reinforces animals as only economic goods. For instance, in Long v Police, Harrison J referred to the eleven stolen bulls
135 Crimes Act, ss 219 and 220A.
136 Section 218.
137 Haitana v Police [2016] NZHC 1252.
138 Collins v R [2014] NZCA 342; Elsmore v Police [2013] NZHC 1849.
139 Crimes Act, s 223. The bands are: (a) up to seven years imprisonment for theft by person in special relationship;
(b) up to seven years imprisonment for theft over $1,000; (c) up to one year imprisonment for theft between $500-
$1,000; and up to three months imprisonment for theft under $500.
140 Haitana v Police, above n 137, at [24]
141 Collins v R, above n 138, at [10]; Elmore v Police, above n 138, at [1].
only in economic terms, stating they “[ranged] in value from $1,200 to $1,500.”142 Further, in discussing the sentence, Harrison J analogised the theft of these bulls to the theft of a digger in the earlier case of Moule v Police.143 Harrison J said Moule was a “helpful precedent” but that considering the bulls were of a lower value than the digger the sentence should be lesser accordingly.144 This case exemplifies how animals are considered solely as economic objects under s 219 and therefore the sentence for animal theft depends only on the monetary value of the animal stolen, completely ignoring their sentience and interests and any other value they may have.
Crucial to note is that in 2019 the Crimes Act theft provisions were amended to include a specific offence of theft of animals.145 Section 220A separates theft of animals into its own section and heightens the penalty for animal theft to a blanket penalty of up to seven years imprisonment regardless of the economic value of the animal stolen.146 Section 223 was also amended to exclude judges from considering the tariff guidelines when sentencing under section 220A. 147 At first glance, these amendments look positive. We might even presume that the increase in the penalty for animal theft indicates Parliament views such offending as more serious than the theft of inanimate objects because animals are sentient beings. However, once we dig deeper, the naivety of this presumption is clear, and the amendments are even more problematic than the original theft provisions.
There are three major issues with these amendments. The first is highlighted by Connell and Gavaghan, who assessed the way the Bill passed into law.148 These amendments were a late addition to the Crimes Amendment Bill 2019. The Bill originally only included the repeal of three antiquated provisions, and then at the supplementary order stage the fully formed theft sections were quickly added to the Bill without any official public consultation.149 While the Government engaged in targeted private consultation, the groups that were part of this process actually took issue with the Bill yet their concerns were largely ignored.150 This process raised democratic process
142 Long v Police HC New Plymouth CRI-2009-443-8, 6 March 2009 at [3].
143 Long v Police, above n 142, at [12]; Moule v Police HC WHA CIV 2008-488-000035 8 July 2008.
144 Long v Police, above n 142, at [15].
145 Crimes Amendment Bill 2019; Crimes Amendment Act 2019, s 7; Crimes Act, s 220A.
146 Crimes Act, s 220A.
147 Crimes Amendment Act 2019, s 11; Crimes Act, s 223.
148 Simon Connell and Colin Gavaghan “Why We Have A Beef With The New Anti-Rustling Laws, And Perhaps You Should Too (1 of 2)” (15 March 2019) pundit <https://www.pundit.co.nz/content/why-we-have-a-beef-with-the- new-anti-rustling-laws-and-perhaps-you-should-too-1-of-2?rq=colin%20gavaghan>.
149 Connell and Gavaghan, above n 148.
150 Connell and Gavaghan, above n 148; Stuart McGilvray Addressing the theft of livestock Rustling in New Zealand (Ministry of Justice, 24 September 2018) at 2 and 12.
concerns: the public are entitled to adequate consultation when enacting new laws, especially criminal offence provisions.
The second issue is that the amendments have created duplicative theft provisions in the Crimes Act. When adding the new provision, Parliament did not remove the ability of prosecutors to continue laying charges under the original general theft provision. Prosecutors may now lay animal theft charges under either s 219 or s 220A. This means the potential penalty for animal theft will differ depending on what charge is chosen, which creates inconsistency and distribution of justice issues under the criminal law. For example, if A steals a lamb from B and A is charged under s 219, according to the tariff guidelines, A’s potential penalty is up to one year’s imprisonment.151 However, if A is charged under s 220A, A’s potential penalty is up to seven years’ imprisonment.152 The charge laid depends solely on the prosecutor’s preference, leading to inconsistency in charging and unpredictability of the justice system.
Finally, the amendments have implications for animals and their property status. While they appear to reflect a heightened view of inherent animal value, the legislative history of these provisions indicates that in reality, the increase in penalty only occurred to strengthen the interests of those who depend on the economic value of animal property. In 2017, the Sentencing (Livestock Rustling) Amendment Bill 2017 was proposed and sought to add cattle rustling to the list of aggravating factors in the Sentencing Act 2002.153 The 2017 Bill was proposed by National MP Ian McKelvie and the purpose behind the Bill was to heighten the sentence for cattle theft to vindicate the economic loss of owners in having their cattle stolen and to protect rural communities.154 Multiple submissions on the Bill indicated that adding a new aggravating factor would not go far enough and instead proposed adding a new crime of cattle rustling to the Crimes Act.155 The 2017 Bill did not attract enough support to pass, but these submissions heavily influenced those who drafted the 2019 theft amendments. Labour MP Andrew Little’s speech at the third reading of the 2019 Bill evidences the influence of the 2017 Bill, in particular his statement that “I would be remiss if I didn’t mention the contribution of our colleague Ian McKelvie... [because his bill]
151 2022 Trade Me Limited “Home / Marketplace / Business, farming & industry / Farming & forestry / Livestock / Sheep” (accessed 24 August 2022) Trade Me <https://www.trademe.co.nz/a/marketplace/business-farming- industry/farming-forestry/livestock/sheep/search?search_string=Lamb>. Prices ranging from about $60 to $900; Crimes Act, s 223(c)-(d).
152 Crimes Act, s 220A.
153 Sentencing (Livestock Rustling) Amendment Bill 2017; Connell and Gavaghan, above n 148.
154 (31 January 2018) 727 NZPD 1603.
155 Connell and Gavaghan, above n 148; Ministry of Justice Sentencing (Livestock Rustling) Amendment Bill: Departmental Report for the Primary Production Committee (Ministry of Justice, 11 September 2018) at [18] and [25].
alerted all in this House to the problem and, in a real sense, provided the genius to the reforms now contained in the bill before the House.”156 The Ministry of Justice’s advice on the 2019 amendments confirms the rationale behind the 2019 Bill as the same as the rationale behind the 2017 Bill, to help protect rural communities and the interests of those who have their cattle stolen.157 The sentience of animals and their difference to inanimate property does not appear to have arisen as a justification for these amendments; the addition of section 220A functions only to solidify the property status of animals and strengthen the interests of owners over their animal property.
We know that animals’ classification as objects does not make descriptive, normative, or democratic sense, so their inclusion as “property” under theft provisions is problematic as well. The original theft provisions are bad for animals as they incoherently and unjustly incorporate them into the criminal law as objects of property of only economic worth. The 2019 amendments have only worsened this problem by increasing the objectification of animals. These are serious issues that highlight a real need for a change to the Crimes Act to better respect animal sentience and interests.
2. Intentional damage
An offender who kills or injures a domestic animal commits the offence of intentional damage under the Crimes Act.158 Only if the animal suffered unreasonable pain or distress whilst being injured or killed is the conduct also criminalised under the Animal Welfare Act 1999 (AWA).159 Intentional damage is an offence against the human owner’s rights over their animal property and nothing to do with animal harm. 160 Finlinson v Police reinforced that intentional damage is unconcerned with animal harm, Nation J commenting that the fact the property damaged in this case was an animal holds no more gravity than if it were any other object.161
156 (21 February 2019) 736 NZPD 9611.
157 McGilvray, above n 150, at 1 and 7.
158 Crimes Act, s 269.
159 Animal Welfare Act, ss 28, 28A, and 29; Crimes Act, s 269.
160 Note the charge of intentional damage applies differently depending on whether the animal is domestic or wild. Wild animals are not able to be the object of intentional damage because they are not owned by a human owner and thus a human owner’s rights have not been offended against when a wild animal is injured or killed. Rather, if a wild animal is “intentionally damaged” without causing unreasonable pain or distress, the act is lawful hunting. See Animal Welfare Act, ss 30A and 30B.
161 Finlinson v Police, above n 52, at [23]-[25].
As with theft, the objectification of animals under the intentional damage provision is an issue. It categorises animals as if they are inanimate objects of property and overlooks any non-monetary value they possess. The AWA is evidence the law can understand that animals wish to avoid suffering,162 yet the law ignores they also wish to avoid other adverse consequences, such as unjustified death.163 Francione argues for the inherent value of animal life and that death is a harm to animals.164 He argues that animal sentience and behaviour emphasises their interest in survival, so regardless of whether suffering has occurred, loss of animal life should be considered a serious harm.165 This reasoning is compelling and effectively endorsed by the body of case law mentioned in Chapter II(C): Spittle, Dorrian, and Walter all resulted in the judge awarding emotional reparation for the “loss” of companion animals.166 As Schmidt and Duffield note, these types of cases show the judiciary are accepting that animal life is important, so it does not make sense that we are still charging the unjustified intentional killing of an animal as property damage, an offence that does not acknowledge the sentience of animals.167 Regardless of whether suffering occurs during the killing of an animal, unjustified loss of life is a harm to animals and a more appropriate charge for this offending would recognise the sentience of animals rather than ignore it.
The difference in potential sentences for intentional damage under the Crimes Act and ill- treatment offences under the AWA are another cause for concern. If an offender intentionally kills another person’s animal and causes it to suffer unnecessary pain or distress in the process then they have committed wilful ill-treatment under the AWA: the most serious offence in the AWA carrying a potential maximum penalty of five years’ imprisonment.168 If an offender kills another person’s animal, but there is no evidence that they caused it suffering in the process, then they have not committed an offence against the AWA. However, they have committed the offence of intentional damage under the Crimes Act with a maximum penalty of up to seven years’ imprisonment. 169 The differential penalty only makes sense if we accept the legitimacy of prioritising humans’ property interests over the interests of sentient animals. We cannot coherently or morally do this.
162 By criminalising conduct that causes animals unreasonable and unnecessary suffering: Animal Welfare Act, ss 28, 28A, and 29.
163 I am only focusing on unjustified death, not the arguably “justified” death of animals occurring in the agricultural
industry.
164 Gary L. Francione “The Abolition of Animal Exploitation” in GL Francione and R Garner (eds) The Animal Rights
Debate: Abolition or Regulation?” (EBSCO Publishing, Colombia University Press, (2010) 1 at 15.
165 Francione, above n 92, at 32-35.
166 New Zealand Police v Spittle, above n 119; Wellington Society for the Prevention of Cruelty to Animals v Dorrian, above n 122;
New Zealand Police v Walter, above n 4.
167 Schmidt and Duffield, above n 114, at 289.
168 Animal Welfare Act, s 28.
169 Crimes Act, s 269.
We need a more coherent system for offending against animals. Evidence of suffering should not change the applicable regime; a lack of suffering certainly should not justify a more serious offence. Animals’ objectification under intentional damage provisions unjustly overlooks the importance of their lives and their desire to survive; that it attracts a higher potential penalty than wilful ill- treatment is an incoherent insult to injury. The Crimes Act needs to change to solve these issues. Next, I will discuss how these theft and intentional damage provisions under the Crimes Act also function to erase animal victimhood.
B. Lack of Victimhood for Animals
When we ignore the victimhood of animals, we ignore the fact that they are sentient. The Crimes Act’s objectification of animals erases their victimhood. This makes sense when considering that “victim” as defined by the Victims’ Rights Act 2002 means a “person against whom an offence is committed by another person.”170 However, this erasure of animal victimhood simultaneously makes no sense for two main reasons. First, animals are sentient so in reality they are harmed by offences like theft and intentional damage and so should be acknowledged as victims. Second, welfare legislation and common law openly accept the victimhood of animals, so the Crimes Act’s erasure of victimhood perpetuates the inconsistent state of criminal law for animals, highlighting a need for change.
1. Animals are victims of property offending
Animals’ objectification under the Crimes Act solidifies their non-victim status. This makes sense when we consider that property offences involve offending against a property-owner, not against an object of property itself.171 Of course, most objects of property would make rather strange and unnecessary victims. But when considering animals as the property involved in offending, the erasure of their status as a victim becomes an issue, since it erases the trauma they can suffer and the harm caused by the offending.172
170 Victims’ Rights Act 2002, s 4. The same definition is also included in Sentencing Act 2002, s 4.
171 Melanie Flynn and Matthew Hall “The case for a victimology of nonhuman animal harms” (2017) 20 Contemporary
Justice Review 299 at 305.
172 Piers Beirne “The Use and Abuse of Animals In Criminology: A Brief History and Current Review” (1995) 22
Social Justice 5 at 24.
Consider the theft of an animal. Manuck and colleagues found that when macaque monkeys are frequently uprooted from their living arrangements they experience intense psychological stress, so great as to potentially cause atherosclerosis and coronary heart disease. 173 This research highlights the mental and subsequent physical effects that can result from animals being stolen. Price and Thos also found that when goats are separated from their pen-mates they make sufficiently more vocalisations than non-separated goats, even when only separated temporarily and for a short period of time, these vocalisations an indication of distress.174 Cases involving animal theft have also acknowledged the trauma in being stolen. The facts of Haitana v Police for instance stated that the cows stolen by the neighbour were in a “distressed” state, particularly because they were separated from their newborn calves and could be heard calling to them over the fence.175
Consider now the killing of an animal. As discussed in Part A of this chapter, death is a harm because animals are sentient and have an interest in survival.176 Denying an animal’s victimhood denies the harm they have experienced. The difference in animals compared to other objects of property means we should acknowledge their trauma and harm when stolen or killed, and one way we should do this is by acknowledging their victimhood.
2. Welfare laws accept the victimhood of animals
While the AWA, like the Crimes Act, does not explicitly recognise animals as victims, the inclusion of sentience and the case law applying the Act’s provisions means that there is at least implicit recognition. For example, Kós P for the Court of appeal in Erickson v Ministry for Primary Industries referred to the “vulnerability of a victim animal,” and stated that the number of “victim animals” and any weapons used to enlarge fear experienced by “victim animals” may act as aggravating factors in sentencing.177 In Karena v Police, Williams J also discussed animals as victims.178 In this
173 Stephen B. Manuck, Jay R. Kaplan and Thomas B. Clarkson “Behaviourally Induced Heart Rate Reactivity and Atherosclerosis in Cynomolgus Monkeys” (1983) 45 Psychosomatic Medicine 95 at 99.
174 Edward O. Price and J. Thos “Behavioural Responses to Short-Term Social Isolation in Sheep and Goats” (1979)
6 Applied Animal Ethology 331 at 337.
175 Haitana v Police above n 137, at [8].
176 Francione above n 92, at 36.
177 Erickson v Ministry for Primary Industries, above n 88, at [51], [53](d), and [54](a). Many judges since Erickson have accepted and adopted Kós P’s approach and his reference to animals as “victims,” often quoting him in their judgments, See Brotherston v SPCA [2019] NZHC 3423 at [10]; Auckland Royal New Zealand Society for the Prevention of Cruelty to Animals v MacPherson [2019] NZDC 4102 at [16]; and New Zealand Police v Witehira [2017] NZDC 16476 at [10].
178 Karena v Police HC Hamilton CRI-2005-419-118, 13 October 2005.
case, the defendant had killed three cats by setting them on fire.179 Justice Williams stated that a key purpose in sentencing in this instance must be to make the defendant take accountability for the “harm to the victim[s],” and that the vulnerability of the “victim[s]” must be taken into account as an aggravating factor.180 Justice Williams also acknowledged and shared the Probation Officer’s concerns with the offender’s view of the cats he offended against, quoting the Officer’s report that the defendant “failed to demonstrate remorse or empathy for the victims of this offence.”181 In Ministry for Primary Industries v Brolly, Judge Snell recognised 245 neglected calves as victims.182 Judge Snell discussed the issue of victimhood for animals directly, commenting:
In terms of upholding the interests of the victims of offending, it is a strange one to put into terms of animal welfare. But when one looks at these animals, they are defenceless and they are the victims of [the] offending. They cannot cry out for help or get anybody to come and intervene.183
The commentary from these judgments reflects the common-sense understanding of animals as victims, and this understanding is recognised in the AWA. However, the Crimes Act denies that animals are victims, creating ambiguity and inconsistency. For example, in Finlinson v Police where the killing of the horse was charged not under the AWA but under the Crimes Act as intentional damage, Nation J refused to acknowledge the animal as a victim and continued to speak of the human owner as the sole victim.184 The two regimes view animals differently, creating confusion in the criminal law and signalling a need for change.
The Crimes Act’s erasure of animal victimhood is confused further by other statutes implying that animals can be perpetrators. As discussed in Chapter II(A), under the Dog Control Act 1996 a dog who attacks a person or qualified animal will be held accountable by way of presumptively mandatory destruction.185 This is confusing for two reasons. First, it indicates that dogs are both autonomous beings and objects of property; the Act holds dogs accountable for their attacks but also calls for their property-like “destruction” when they attack. Justice Baragwanath in Hamilton City Council v Fairweather articulated this cognitive dissonance when pondering about what to do “when one chattel destroys another chattel?”186 This leads to the second issue: this classification
179 At [5].
180 At [21]-[22].
181 At [12].
182 Ministry for Primary Industries v Brolly, above n 115.
183 At [20].
184 Finlinson v Police, above n 52, at [24]-[25].
185 Dog Control Act, s 57(3). Note there is the exception of “exceptional circumstances” but this is an extremely high
bar.
186 Hamilton City Council v Fairweather, above n 46, at [36].
of dogs as autonomous perpetrators undermines animals’ general objectification and lack of victimhood under the Crimes Act. Offending and victimhood are two sides of the same coin, so to apply one but deny the other is a double standard and does not make sense. Parliament clearly has the ability to give animals a higher-than-property status if they wish but is picking and choosing when to do so. This inconsistency marginalises animals by personalising them when they harm others yet objectifying them when they are harmed.
Animals are not victims under the Crimes Act and this is a serious issue. This lack of victimhood fails to acknowledge the trauma and harm animals experience when they are the object of property offending. It is also at odds with how welfare legislation and common law recognise the victimhood and autonomy of animals. Ultimately, the Crimes Act’s erasure of victimhood perpetuates an inconsistent state of criminal law for animals.
C. Ignorance of the Link Between Animal Abuse and Family Violence
The Crimes Act currently ignores the link between violence against animals and violence against humans. The link between animal abuse and family violence is particularly well established by existing literature.187 As a nation, we are trying to take family violence more seriously and have made substantial changes to the criminal law in the last few decades accordingly. By classifying animals as “property,” the Crimes Act separates animal and human offending and neglects the clear connection between animal abuse and human abuse. If we purport to take family violence seriously, we should not be ignoring this connection. Below I will discuss family violence and this “link” in more depth and why we need to change our view of animals from property in order to better address this link. Even if we decided we did not care for animal sentience or interests, acknowledging this link is important for the sake of humans as well.
Family violence is a significant issue in New Zealand. We have some of the highest rates of family violence amongst the countries within the Organisation for Economic Cooperation and Development (OECD).188 We have the fifth worst rates for child abuse out of all OECD countries, and New Zealand surveys from 2003 and 2019 resulted in almost one third of respondents
187 Clifton P. Flynn “Examining the links between animal abuse and human violence” (2011) 55 Crime Law Soc
Change 453 at 454.
188 Garth den Heyer “New Zealand’s Dirty Secret: Family Violence” in JF Albrecht and G den Heyer (eds) Understanding and Preventing Community Violence: Global Criminological and Sociological Perspectives (Springer, Switzerland, 2022) 235 at 240.
reporting having experienced at least one act of family violence in their lifetime.189 While family violence used to fly under the radar, over the last few decades social perceptions of family violence have evolved and Parliament has initiated substantial legislative and policy reform to try to address family violence.190 One of these changes has been the creation of specific family violence legislation to help guide courts and officials when dealing with family violence cases.191 The purposes of the current Family Violence Act 2018 are to recognise that family violence is unacceptable, prevent perpetrators from inflicting family violence, and keep victims of family violence safe.192 The Act also includes many mechanisms that can be used to help victims of family violence such as Police safety orders, protection orders, interim orders about day to day care of children, property orders and more. 193 The definition of “family violence” has been broadened over the years to acknowledge the many forms that domestic abuse can take, the definition now including physical, sexual, psychological and dowry related violence.194 The definition of “family relationship” has similarly been expanded to recognise the breadth of situations family violence can occur within, the current definition including one’s spouse, partner, family member, household member, and anyone of a close personal relationship.195 The Crimes Act includes multiple offences that are commonly used in family violence cases such as assault on a child or by a male on a female,196 and the Act continues to evolve to reflect the unacceptable nature of family violence.197 Parliament is clearly attempting to address family violence and ensure victims are protected and offenders are held to account.
Family violence is evidently linked to animal abuse and recognition of this link is crucial if we are to properly acknowledge the seriousness of family violence offending. Ascione interviewed victims of intimate partner violence at a women’s refuge shelter in Utah and found that out of those with companion animals, 71 percent reported their violent partner had threatened, abused, or killed
189 den Heyer, above n 188, at 243-244; Janet Fanslow, Ladan Hashemi, Zarintaj Malihi, Pauline Gulliver and McIntosh “Change in prevalence rates of physical and sexual intimate partner violence against women: data from two cross- sectional studies in New Zealand, 2003 and 2019” (2021) 11 BMJ Open 1 at 4-5.
190 den Heyer, above n 188, at 244-247
191 Family Violence Act 2018, s 3(2).
192 Section 3(1).
193 Sections 28-43, 60, 105, and 115.
194 Family Violence Act, s 9.
195 Family Violence Act, s 12.
196 Crimes Act, s 194.
197 For example the Crimes Act 1961 was amended in 2018 to add three new family violence offences to the Crimes Act, these offences were strangulation, assault on person in family relationship, and coerced marriage or civil union. See Family Violence (Amendments) Act 2018 Part 3.
their companion animals.198 Arkow has researched this link extensively and has commented that “animals living in violent households become victims of abuse themselves,” and found that family violence offenders often abuse animals in order to intimidate their partners and children. 199 DeViney and colleagues reported that in almost 90 percent of the families they studied where children were being abused, companion animal abuse was co-occurring.200 In his research on the importance of social services in cases of animal and family abuse, Hutton found that of the families where animal abuse was occurring, 83 percent were also identified by social service agencies as “at risk” for child abuse.201 Closer to home, a combined Women’s Refuge and SPCA New Zealand study on family violence victims found that almost 60 percent of respondents reported their violent partner had threatened, injured, or killed their family companion animals.202 The link is clear: animal abuse is not an isolated incident, but part of a broader pattern of family violence.
When we objectify animals under the Crimes Act we ignore this link and thus fail to take family violence as seriously as we could be. When animals are considered “property” under Crimes Act theft and intentional damage provisions, their sentience is ignored and so too are the wider implications of animal abuse: charging animal abusers under property offences ignores how acts of violence against animals can lead to family violence/actually are family violence. In Finlinson v Police for instance, the offender had killed his ex-partner’s horse to intimidate her, yet the conduct was charged only as intentional damage of property.203 In charging the offending as such, the sentience of the animal was ignored and so too was the fact this conduct was essentially an act of psychological abuse; while Nation J acknowledged the defendant’s conduct was “intended to emotionally hurt” the owner,204 dealing with the case as intentional damage of property rather than abuse against the animal and/or psychological abuse against the owner failed to properly recognise the violence involved in the offending.
198 VM Williams, AR Dale, N Clarke, and NKG Garrett “Animal abuse and family violence: Survey on the recognition of animal abuse by veterinarians in New Zealand and their understanding of the correlation between animal abuse and human violence” (2008) 56 NZ Vet Journal 21 at 21; Frank R. Ascione “Battered women’s reports of their partners’ and their children’s cruelty to animals” (1998) 1 Journal of Emotional Abuse 119 at 125.
199 Phil Arkow “The Evolution of Animal Welfare as a Human Welfare Concern” in FR Ascione and P Arkow (eds)
Child Abuse, Domestic Violence, and Animal Abuse (Purdue University Press, West Lafayette Indiana, 1999) 19 at 21.
200 Williams, Dale, Clarke, and Garrett, above n 198, at 21; Elizabeth DeViney, Jeffrey Dickert and Randall Lockwood “The Care of Pets Within Child Abusing Families” (1983) 4 International Journal for the Study of Animal Problems 321 at 327.
201 Katrina Sharman “Sentencing Under Our Anti-Cruelty Statutes: Why Our Leniency Will Come Back to Bite Us” (2002) 13 Current Issues in Criminal Justice 333 at 334; James S. Hutton “Animal Abuse as a Diagnositc Approach in Social Work: A Pilot Study” in PD Frasch, SS Waisman, BA Wagman and S Beckstead (eds) Animal Law (Carolina Academic Press, 1983) at 697.
202 Women’s Refuge “Pets used as Pawns: The Co-existence of Animal Cruelty and Family Violence” (press release,
27 March 2012).
203 Finlinson v Police, above n 52.
204 At [15].
The sentence in Finlinson highlights this ignorance further. Justice Nation issued a sentence of eight months’ home detention and reparations for the economic value of the horse.205 The lack of imprisonment and rehabilitation included in the sentence sends the signal that animal offending is not serious, and so too undermines the seriousness of family violence offending. The sentence of reparations was also particularly problematic, not only because it undermined the life of the horse for the horse’s sake, but because it downplayed the offender’s actions from a serious act of violence against a sentient being to damage of a replaceable object of property. Of course, in Finlinson, as the charge was intentional damage, Nation J had no option but to view the horse solely in economic terms because that is what the Crimes Act prescribes. But this case certainly highlights the inappropriateness in charging the killing of an animal as intentional damage of property, for the sake of both animals and humans. Ignoring the fact that killing a sentient being is an act of violence is dangerous; it allows animal abusers to be regarded only as property offenders rather than violent offenders, which does not have the same seriousness or stigma attached to it. The objectification of animals undermines the connection between animal abuse and family violence. If we are to take family violence seriously we need to hold animal abusers to account and stop treating cases of violence against animals as property offending.
Summary
The objectification of animals under the Crimes Act results in an inconsistent approach to offending against animals. The AWA acknowledges animals as sentient beings yet the Crimes Act classifies animals only as objects. The Crimes Act’s inclusion of animals as property under theft and intentional damage endorses an incoherent and morally unjustifiable status for animals as well as one that goes against community attitudes. Animal victimhood is erased by the Crimes Act due to their object status, ignoring the trauma and harm animals suffer when stolen or killed. The Crimes Act’s perpetuation of animal property status also ignores the link between animal abuse and family violence, undermining the violence involved in animal offending to the detriment of both animals and humans. These are significant problems. In my final chapter, I will propose solutions that are beneficial for animals, humans, and consistency of the criminal law.
205 At [67].
CHAPTER IV: SOLUTIONS TO THE PROBLEMS PROPERTY STATUS CREATES
The current classification of animals as objects of property is problematic and in need of change. In this final chapter, I propose two solutions to the problems this property status creates. My first proposal is to change animals’ status from property to personhood; to switch animals from one side of the property binary to the other. My alternate proposal is to remove property offending involving animals from Part 10 of the Crimes Act 1961 and shift it over to the Animal Welfare Act 1999 (AWA). I will conclude that this second solution provides the most straightforward and practicable step toward justice for animals and humans harmed under the criminal law; this solution provides the best balance in effecting achievable yet substantial positive legal change.
A. Personhood for Animals
The first solution I propose is to classify animals as persons rather than property. All law applying to natural persons would also apply to animals. This is not an original solution. For example, Steven M. Wise has proposed personhood for certain types of animals, arguing on multiple occasions for the writ of habeas corpus for confined animals, a writ which has hitherto pertained to the unlawful confinement of human persons.206 Wise believes that personhood should extend to nonhuman animals like elephants, chimpanzees and bonobos because their capacities and intelligence allow them to hold rights and bear duties in the sense relevant to personhood.207 Gary Francione’s argument for personhood is broader, arguing for the abolition of property status for all animals.208 To Francione, personhood status does not depend on intelligence but on animal sentience and the corresponding interest in not being treated as property.209 Wendy Adams also scrutinises the property status of animals and argues the law should accommodate the interests of animals as subjects rather than objects.210 Adams contends that an acknowledgment of animals as subjects would change the human-animal relationship so that humans must respect animal interests rather than override them with their own.211
206 Wise, above n 45, at 24-29.
207 Wise, above n 45, at 36-38.
208 Francione, above n 164, at 4.
209 Francione, above n 164, at 15; Francione, above n 92, at 8-12 and 40-44.
210 Adams, above n 18, at 41-42.
211 Adams, above n 18, at 41.
Considering the issues that are created and perpetuated by the classification of animals as property, a shift to personhood is a compelling solution. This change would solve all the general issues property status creates. Attributing personhood to animals would acknowledge the higher-than- property status that animals descriptively have, morally deserve, and that is reflected by community attitudes. Such a solution would also solve the specific problems arising under Part 10 of the Crimes Act. Giving animals personhood status would provide a signal to prosecutors and courts that Part 10 of the Crimes Act would no longer be the appropriate route for charging animal offenders; instead, offences against the “person” would be better suited charges. For example, when animals are taken from their place of residence theft provisions would no longer appropriately apply to animals, rather the crime of kidnapping would apply instead.212 Intentional damage would no longer apply to animals when injured or killed; offences against the person would now apply, such as different types of assault charges and murder or manslaughter.213 Lack of animal victimisation would be resolved as animal victimhood would be observed when considering that the definition of “victim” includes “person” under the Victims’ Rights Act 2018 and Sentencing Act 2002.214 The link between animal violence and family violence would also be acknowledged by this shift in classification. Treating animal abuse as violence against a person would send the signal that animal abuse is serious and by extension would increase acknowledgment of the relationship between offending against animals and offending against other “persons” or humans. Changing animals’ status from property to personhood would solve all the issues I have discussed and, theoretically, is a sound solution.
However, while theoretically sound, the change to personhood is, obviously, practically challenging and would not realistically be accepted by society. Much more work needs to be done if personhood is to ever become a viable solution. Robert Garner has argued that despite the philosophical soundness of personhood for animals, it is an argument that is politically compromised.215 Garner considers the property status of animals is too entrenched and insists instead on creating positive law change for animals while keeping their property status intact.216 Tamie L. Bryant concurs with Garner, noting while personhood might be theoretically optimal it would not be accepted in society because it is at odds with “traditional notions of the boundary
212 Crimes Act, s 209. This is the section that would apply as it encompasses the unlawful taking of a “person” without consent.
213 Crimes Act, Part 8.
214 Victims’ Rights Act, s 4; Sentencing Act, s 4.
215 Robert Garner “Animal Welfare: A Political Defence” (2006) 1 J Animal L & Ethics 161 at 166.
216 Garner, above n 215, at 173.
between humans and animals.217 David Favre argues that a shift to animal personhood equates animals too closely with humans, so a more practicable change would be to classify animals as “living property” to at least differentiate them from inanimate objects.218 While I disagree with parts of these scholars’ arguments that the change to personhood is either undesirable or impossible, I do acknowledge that the road to such a change is difficult and society is not yet agreeable to the idea. Shyam’s research reaffirms this notion: her evidence suggests that much of society considers animals as of a higher-than-property status yet opinions on what that status should be broadly vary depending on the type of animal, and most people do not view animals as of the same status as humans.219 Law should reflect social attitudes, and if personhood for animals is not yet a concept that is societally acceptable, we cannot justify putting it into law.
One contributing factor as to why such a change is so socially and politically unacceptable is the dependence of the New Zealand economy on our animal agriculture sector. The processing and exportation of red meat generates around $12b per annum and contributes 92,000 jobs.220 New Zealand is the eighth largest dairy producer in the world, and the industry contributes around $21b per annum to our economy. 221 Classifying animals as persons would necessarily lead to the cessation of these industries. The economic significance of this change cannot be overstated, which explains a lot about why Parliament and the community are unlikely to welcome a change to animal personhood with open arms.
Personhood is desirable for animals but unlikely acceptable to current society. Regardless, focusing on the abstract person versus property debate might distract from more incremental but still significant changes. In the next part, I focus on smaller but tangible legal changes that would retain the property status of animals while still providing a more consistent and coherent regime of animal offending that better acknowledges animal sentience. While less radical, the practicality of these changes makes them attainable and more likely to make a real impact.
217 Tamie L. Bryant “Sacrificing the sacrifice of animals: legal personhood for animals, the status of animals as
property, and the presumed primacy of humans” (2008) 39 Rutgers LJ 247 at 330.
218 David Favre “Living Property: a New Status for Animals Within the Legal System” (2010) 93 Marq. L Rev. 1021
at 1042; Bryant, above n 217, at 283.
219 Shyam, above n 109, at 1430-1440.
220 Beef and Lamb New Zealand and Meat Industry Association and Beef and Lamb New Zealand, above n 75, at 4.
221 Lynda Granwal “Agriculture industry in New Zealand – statistics & facts” (5 January 2022) Statistica
<https://www.statista.com/topics/5311/agriculture-industry-in-new-zealand/?#dossierKeyfigures>.
B. Shifting offences from the Crimes Act to the AWA
The second solution I propose is to shift all offending involving animals under Part 10 of the Crimes Act to the AWA. This solution targets the specific problems I discussed in Chapter III and would lead to a more harmonious criminal justice system for animals. Below I discuss the content of my proposed amendments and then explore the effects of these amendments and how they would help solve the most pernicious problems the property status of animals perpetuates in the criminal law.
1. Proposed amendments
The aim of my proposals is to remove any reference of animals as property from the Crimes Act and replace the current property crimes of theft and intentional damage with new offences in the AWA. This shift would act as a signal that animals are not to be viewed only as property but also as sentient beings who are harmed by theft and killing, and would also remove the confusion and inconsistency the co-existing Crimes Act and AWA regimes create.
(a) Amendments to the Crimes Act 1961
I propose the repeal of Crimes Act ss 218(3)-(6) and 220A. Section 218 includes possessed animals as property for the purposes of Crimes Act property offences.222 Considering my discussion in Chapter III(A) about the issues that result when objectifying animals under theft and intentional damage provisions, repealing s 218(3)-(6) (the subsections that mention animals as able to be the object of property offending) is desirable. The repeal of s 220A (theft of livestock or other animals) is also necessary considering the duplication and democratic legitimacy issues this section creates as it co-exists with s 219 (general theft), and when considering the incoherency in comparing animals to inanimate and solely economic objects of property when stolen.
(b) Amendments to the Animal Welfare Act 1999
Theft and intentional damage are inappropriate charges when applied to animals therefore I propose the offending be charged instead under two new offences: ss 29A and 29B of the AWA. Charging the acts of taking and killing animals under a regime that acknowledges the sentience of
222 Crimes Act, s 218.
animals makes more sense than charging under a regime that recognises animals only as property. The form of these new offences is set out below:
Section 29A Unlawful taking of animals
(1) A person commits an offence if they take an animal from its place of residence or cause it to be taken from its place of residence without consent of the owner.
(2) For the purposes of subsection (1), to “take” an animal means to move the animal or cause it to be moved from its place of residence.
Compare: Crimes Act 1961 No 43 s 220A
Section 29B Unjustified killing of animals
(1) A person commits an offence if by any act or omission that person wilfully causes the death of any animal and that death was unnecessary or unreasonable.
(2) A person commits an offence if by any act or omission that person recklessly causes the death of any animal and that death was unnecessary or unreasonable.
2. Effects of the amendments
My proposed amendments would solve the issues the current theft provisions perpetuate for animals. Repealing s 220A from the Crimes Act removes the duplication issue as s 220A would no longer be an option for prosecutors to choose when charging animal theft. The democratic legitimacy issues involved in the passing of s 220A would also be made irrelevant if the section no longer existed. Moreover, repealing Crimes Act s 218(3)-(6) and creating the new AWA s 29A would do two things. First, it would direct prosecutors and courts away from Part 10 of the Crimes Act and toward the AWA when dealing with offending involving the taking of animals, as well as would generally distance animals from objectification under the Crimes Act. Second, the change would heighten the status of animals involved in theft offending and better respect their sentience and interests. The AWA expressly acknowledges the sentience of animals involved in offending and so this shift would be an understanding of the distress and discomfort animals undergo when taken from their place of residence as outlined in Chapter III(B). In Haitana v Police for instance, if the charge was laid under s 29A instead of s 219, the sentience of the animals and their trauma in
separation would have been properly acknowledged and taken into account.223 The new section’s strict liability nature would also strengthen the acknowledgment of harm victim animals experience when stolen: the act of taking an animal would be criminalised regardless of the perpetrator’s intentions. All over, my proposals are logical considering the issues with the current theft provisions, but also moral, considering community views about animal interests.
(b) Intentional damage of animals
My proposed repeal of s 218(3)-(6) of the Crimes Act and addition of s 29B to the AWA would create a more consistent and appropriate response to the killing of animals. Currently, if an animal is killed without experiencing unnecessary or unreasonable pain or distress, the action is categorised as intentional damage of property.224 As referred to in Chapter III, this ignores the harm resulting from loss of animal life regardless of whether pain was experienced, is at odds with community and judicial attitudes toward the unjustifiable killing of animals, and prioritises human interests in property over animal interests in survival. The changes I propose would solve these issues. The new s 29B would apply when animals are killed without justification regardless of whether they experienced pain or distress, recognising the importance of animal life. This shift would direct prosecutors to the AWA when animals are killed rather than to Crimes Act property provisions which would affirm the importance of animal interests and better respect their sentience.225 The act of killing your ex-partner’s horse would be charged not as intentional damage of property but as unjustifiable killing of an animal: if this charge existed at the time of Finlinson v Police, Nation J could have taken into account the interests of both the human owner as a victim and the sentient horse as a victim too.226 The act in killing a neighbour’s companion deer would also become unjustified killing: in New Zealand Police v Walter, Judge Rollo could have taken into account the human victim’s loss in her companion deer, but also Dansey’s victimhood and loss of life.227 This new offence would acknowledge that death to animals is a harm in itself and not just damage to property, regardless of whether animals are still classified as objects. These amendments
223 Haitana v Police above n 137.
224 Crimes Act, s 269.
225 Note about Crimes Act, s 221: this section criminalises the killing of any animal that belongs to any other person if they kill the animal with the intention of stealing parts of the dead animal (carcass, skin, plumage, etc). This section would also need to be repealed since the new section 29B of the AWA would render it unnecessary: it would cover all unjustified killing of animals which would include if the killing was for the purposes of stealing parts of the killed animal.
226 Finlinson v Police, above n 52.
227 New Zealand Police v Walter, above n 4.
would better reflect animals’ interest in survival and community attitudes toward loss of animal life.
As well as criminalising the killing of other people’s animals without justification, these amendments would also criminalise the killing of one’s own animal without justification. This change is important because under the status quo, a human owner can kill their animal for any reason so long as it does not cause pain or distress.228 This needs to change to respect animal sentience and the value in animal life. To make the new offence reflective of the scheme of the AWA, it is limited only to “unjustified” killing by using the “unreasonable and unnecessary” test. This test is also used to determine ill-treatment under the AWA, and would mean that owners are still able to kill their animals when reasonable or necessary.229 For example, agricultural industries could still kill animals through their practices as these deaths are reasonable or necessary (as judged by current societal practice).230 The inclusion of this test is important as it allows these industries to continue but also makes sure there needs to be justification for putting proprietary interests above the life of an animal. Overall, my proposals would resolve the issues intentional damage creates and have positive effects for animals and consistency.231
(c) Animal victimhood and the link between animal abuse and family violence
My proposed shift of offences from the Crimes Act to the AWA would better enable the recognition of victimhood for animals stolen or unjustifiably killed, as well as better acknowledge the link between animal abuse and family violence. In terms of victimhood, the Crimes Act erases the victimhood of animals harmed by theft or intentional damage; the Act classifies animals solely as property and acknowledges only the human owner of the animal as the victim. Other pieces of legislation however, including the AWA, implicitly acknowledge animal victimhood, made clear by
228 Animal Welfare Act, s 12(c).
229 Note about the “unreasonable or unnecessary” test: this test for the new unjustified killing crime would correlate directly to the test for ill-treatment so judges would be able to look to cases about how the test is administered in ill- treatment cases to help them in their own judgments for unjustified killing.
230 If we look to cases like Garrick v Silcock [1968] NZLR 595 where McCarthy J asserted that business efficiency can make pain and distress “reasonable” in the context of agricultural practices, it is fair to assume if this new section was inserted judges would assert that business efficiency is a valid reason for continuing the practice of killing animals in the meat and dairy industry.
231 Another solution I considered to improve the issues intentional damage presents is to increase the penalties for ill- treatment offending to improve consistency of animal welfare legislation. As noted under Chapter III(A)(2), the current intentional damage provision allows for higher penalties than the highest ill-treatment offence, meaning the higher charge would be laid against the offender who killed an animal instantly rather than one who intentionally caused it a long and painful death. I consider instant death and prolonged suffering leading to death are both serious harms, but the latter is more severe as it involves multiple harms and this should be reflected in legislation. This solution goes beyond the scope of my dissertation but would be a good focus for research in the future.
numerous judicial comments that animals harmed under the AWA are “victims” regardless of their property status.232 The status quo’s compartmentalised view of animal victimhood is arbitrary given animals could experience harm regardless of whether an offender is charged under the Crimes Act or AWA. Making the various repeals and additions I have proposed to shift away from the Crimes Act and toward the AWA would function to provide consistency to this currently confused regime, and would reinforce the commonly understood notion that animals, no matter their property status, are victims when offended against.
In terms of the link between animal abuse and family violence, my proposed shift away from the Crimes Act and toward the AWA would act as a start in acknowledging this connection. The Crimes Act’s treatment of animals as property ignores the violent nature of offending against animals and thereby overlooks the evident link between animal offending and family violence. Recognition of animal offending as a contributing factor to family violence or as family violence itself is necessary if we are to take the latter seriously, and a shift to the AWA would do this. Treating theft and killing as acts of violence rather than property offending would spark a mindset shift in the community and judiciary that animal abuse is serious and would attach the stigma of violence to these offenders’ actions. This would lead to: more acknowledgment of how these offences contribute to family violence or equate to family violence in and of themselves, more care being taken at sentencing, and could help bring about higher sentences or more rehabilitative options for animal abusers so they are unable to progress their offending from animal abuse to direct domestic abuse in the future. This shift is important for the sake humans as well as animals.
Summary
I have proposed two solutions to problems created by the Crimes Act’s objectification of animals. The first solution of animal personhood is theoretically sound but practically difficult to implement. The second solution of shifting offending against animals from Part 10 of the Crimes Act to the AWA is more narrowed in scope and therefore more achievable whilst still providing meaningful change for animals and humans. Making the changes I have proposed under Part (B) would start to solve the complicated issues that property status creates: transferring theft and intentional damage to the AWA and creating a more complete code of animal offending within that Act would better reflect animals’ sentience, victimhood and the link between animal and family
232 For example Erickson v Ministry for Primary Industries, above n 88, at [51], [53](d), and [54](a); Karena v Police, above n 178, at [21]-[22]; and Ministry for Primary Industries v Brolly, above n 115, at [20].
violence. These solutions are not perfect and do not directly address the problem of animals’ classification on the object side of the binary, but they do provide substantial relief to some of the specific problems property status creates in the criminal law. With radical change like personhood so distant and unrealistic, practical interim solutions are what is needed.
CONCLUSION
The Crimes Act’s treatment of animals as objects of property is problematic. Property as a bundle of rights involves relationships between rights-holders and duty-bearers in regard to objects of property. This definition creates a binary between persons (those with capacity to hold rights and bear duties) and property (objects). Animals’ supposed lack of capacity means they are currently classified on the property side of this binary. This classification is generally problematic for it is incoherent, morally unjustifiable, and adverse to community attitudes. Considering the criminal law specifically, the Crimes Act perpetuates these issues by objectifying animals under the property offences of theft and intentional damage. This objectification creates inconsistency in the law as it clashes with the AWA and ignores animal sentience, victimhood, and the link between animal offending and family violence.
To solve these issues, I have proposed two alternate solutions: animal personhood and shifting all offending against animals from the Crimes Act to the AWA. The former is a radical solution that brings practical difficulties in implementation. The latter is a modest yet substantial attempt to solve the specific issues animals’ property status under the Crimes Act creates. This solution acknowledges animals as sentient beings and victims when taken or killed, recognises animal offending as violence rather than property damage to better respond to the connection between animal abuse and family violence, and provides a consistent code for offending against animals. It is an achievable change and would represent an effective start to recognising the higher-than- property status animals descriptively have, morally deserve, and that is reflected by community attitudes.
BIBLIOGRAPHY
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GOVERNMENT PUBLICATIONS
Ministry of Justice Sentencing (Livestock Rustling) Amendment Bill: Departmental Report for the Primary Production Committee (Ministry of Justice, 11 September 2018).
Stuart McGilvray Addressing the theft of livestock Rustling in New Zealand (Ministry of Justice, 24 September 2018).
REPORTS
Susan McVie Animal Abuse Amongst Young People Aged 13 to 17: Trends, Trajectories and links with other offending (Royal Society for the Prevention of Cruelty to Animals, Horsham, 2007).
Marcelo B. Rodriguez Ferrere, Mike King and Levi Mros Larsen Animal Welfare in New Zealand: Oversight, Compliance and Enforcement (University of Otago, 2019).
Judy Paulin, Elaine Mossman, Nan Wehipeihana, Michele Lennan, Hector Kaiwai, Sue Carswell, Rob Lynn and Emmy Gauper An Evaluation of the Ministry of Justice-funded Domestic Violence Programmes (Artemis Research, November 2018).
Wellington City Council Annual Dog Control Report 2016-2017 (Wellington City Council, 2017).
PRESS RELEASES
Women’s Refuge “Pets as Pawns: The Co-existence of Animal Cruelty and Family Violence” (pressrelease, 27 March 2012).
INTERNET RESOURCES
2022 Trade Me Limited “Home / Marketplace / Business, farming & industry / Farming & forestry / Livestock / Sheep” (accessed 24 August 2022) Trade Me<https://www.trademe.co.nz/a/marketplace/business-farming-industry/farming- forestry/livestock/sheep/search?search_string=Lamb>.
Beef and Lamb New Zealand and Meat Industry Association and Beef and Lamb New Zealand
“Economic and social contribution of the New Zealand red meat industry” (June 2022) MIA
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Simon Connell and Colin Gavaghan “Why We Have A Beef With The New Anti-Rustling Laws,
And Perhaps You Should Too (1 of 2)” (15 March 2019) pundit
<https://www.pundit.co.nz/content/why-we-have-a-beef-with-the-new-anti-rustling-laws-and- perhaps-you-should-too-1-of-2?rq=colin%20gavaghan>.
Simon Connell and Colin Gavaghan “Why We Have A Beef With The New Anti-Rustling Laws,
And Perhaps You Should Too (2 of 2)” (15 March 2019) pundit
<https://www.pundit.co.nz/content/why-we-have-a-beef-with-the-new-anti-rustling-laws-and- perhaps-you-should-too-2-of-2>.
Gia Garrick “Crimes Amendment Bill targets livestock rustling” (5 March 2019) RNZ
<https://www.rnz.co.nz/news/political/384026/crime-amendment-bill-targets-livestock- rustling>.
Lynda Granwal “Agriculture industry in New Zealand – statistics & facts” (5 January 2022) Statistica <https://www.statista.com/topics/5311/agriculture-industry-in-new- zealand/?#dossierKeyfigures>.
New Zealand Parliament “Innovative bill protects Whanganui River with legal personhood” (28 March 2017) New Zealand Parliament <https://www.parliament.nz/en/get- involved/features/innovative-bill-protects-whanganui-river-with-legal-personhood/>.
Ngai Tūhoe “Te Urewera” (accessed 2 October 2022) Ngai Tūhoe
<https://www.ngaituhoe.iwi.nz/te-urewera>.
Oxford English Dictionary “cattle (n.)” OED <https://www-oed- com.ezproxy.otago.ac.nz/view/Entry/29037?redirectedFrom=Cattle#eid>.
DISSERTATIONS AND THESES
Danielle Rebecca Duffield “Instant Fines for Animal Abuse? The Enforcement of Animal Welfare Offences and the Viability of an Infringement Regime as a Strategy for Reform” (LLB(Hons) Dissertation, University of Otago, 2012).Georgiana Jane Fraser “Legal personhood for animals in New Zealand” (LLB(Hons) Dissertation,
University of Otago, 2016).
Oska Rego “Animal Welfare and the Resource Management Act 1991: Considering animal welfare under the Resource Management Act 1991 would improve the holism of resource management in Aotearoa and address shortcomings of the Animal Welfare Act 1999” (LLB(Hons) Dissertation, University of Otago, 2017).
COMMUNICATIONS
Email from Madison Beehre (Court Registrar, Dunedin District Court) to the author regarding access to Judge Rollo’s sentencing notes (New Zealand Police v Walter [2022] NZDC 13369 [30 May 2022]) (20 September 2022).Email from James Collins (Police Prosecutor, Dunedin Police Prosecution Service) to the author regarding cases involving animal and human violence (4 August 2022).
OTHER
Crown Law Solicitor-General’s Prosecution Guidelines (1 July 2013).
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