The SPCA bungled its biggest animal neglect case by allowing TVNZ to film a search of the accused couple's property, a judge has ruled.
The cameraman's presence breached the Bill of Rights Act and made much of the evidence obtained, including five hours of TV footage, inadmissible.
Dog breeder and former show judge David Balfour and his wife, Daryl, face four animal cruelty charges in relation to the alleged mistreatment at their Woodville property of 87 dogs and 161 cats between August 2006 and March 2007.
Evidence of what is the biggest case of alleged animal neglect brought by the SPCA was suppressed by JPs at a depositions hearing in 2007. The Balfours are due to appear next month for a callover in Palmerston North District Court.
The couple challenged the admissibility of evidence, claiming the search, conducted under a warrant on March 5, 2007, was unlawful.
In a landmark decision, Judge Alistair Garland has ruled that the SPCA made "a very serious" breach of the Animal Welfare Act while conducting the search. By allowing the cameraman to attend, the society also breached the Bill of Rights Act, which protects a person's right to be free from unreasonable search and seizure, the judge ruled.
He found that the cameraman's major purpose had been for the commercial programming of TVNZ and publicity for the SPCA – neither of which is permitted under the Animal Welfare Act.
The judge also found several flaws in the search warrant application, which he described as "sloppy and careless", and said allowing the cameraman on the property "aggravated the nature of the impropriety".
He ruled that footage taken by the cameraman was inadmissible. All evidence obtained from the Balfours' home would also be inadmissible, but remaining evidence from a search of the nine-hectare property could be used in court. That evidence could have been obtained under the Animal Welfare Act without a warrant.
The Balfours' property was visited by police on September 27, 2006, but the SPCA search warrant was not issued until March 1, 2007. The Crown said this was because of a lack of resources. The judge considered the excuse "unjustifiable". If the SPCA inspector was so concerned, he should have acted sooner.
TVNZ was contacted by SPCA inspector Jim Boyd and asked to film evidence that could be used in court. TVNZ would retain ownership of the footage and could use it after the matter was prosecuted.
TVNZ could not be reached for comment yesterday.
SPCA chief executive Robyn Kippenberger said the decision to allow the cameraman on the search had been due to "naivety" and the society had not been seeking publicity. TVNZ had carried a story on the Balfours before the search and was familiar with the case. "We could have put a different camera person in there and that is regrettable. It is certainly not a mistake we will make again."
It was unfortunate the evidence could not be used, but the society was confident it still had a strong case, she said.
In 2006 David Balfour had a complaint upheld by the Broadcasting Standards Authority after a TVNZ 20/20 reporter entered his property without permission. He would not comment yesterday.
'ONLY CASE LAW WE HAVE'
The court ruling against the SPCA will make it difficult for media to accompany animal welfare organisations on similar raids, a media law expert says.
Canterbury University law lecturer Ursula Cheer said the ruling was only at district court level and was not binding on any other courts, so could be appealed against or overturned. "But in the meantime, it stands as the only case law we have.
"From a general point of view, media that take part in such raids with the ultimate aim of obtaining useful commercial footage will be on thin ice and any evidence they obtain will be open to challenge."
In the past, television cameras have taken part in workplace raids with Immigration officials on TVNZ's Borderline series.
Footage of Kiwi comedian Mike King taken during a night raid on a Horowhenua piggery last year was also broadcast on TVNZ.
- © Fairfax NZ News