Animal Law Interview Series
In this new interview series, we speak with a number of individuals working to create positive change for animals. Please note that the views expressed in these interviews do not necessarily reflect those of NZALA.
Interview with Anita Killeen
Anita Killeen is a well-known Barrister Sole who advocates for the rights of animals in our legal system. Anita started the Pro Bono Panel of Prosecutors for the SPCA Auckland in 2009 and has been involved in various animal law prosecutions. She also contributes to the field of animal law through research, writing, and lobbying.
- How did you become involved in animal law? What drives you to continue to engage with this field?
I have always been an animal lover. My husband and I have a Christmas tradition of going out to the SPCA Village in Mangere and giving a financial donation to the animals in need. One Christmas in particular (Christmas 2008) I noted to my husband that given I was working as a prosecutor at the time, and part of the business of the SPCA is law enforcement and prosecution, that perhaps I could be making a more substantial contribution to the SPCA and to New Zealand’s animals.
In the New Year, I met with the Chairman and the Board of the SPCA Auckland and I was invited to make a presentation to the Board on what I could contribute as a Director, and as part of that I made a proposal to take charge of developing and implementing a strategic initiative that I believed would save the organisation money and further the strategic goals of the organisation. The Board appointed me to join them as a Director in early 2009, and shortly after I joined the Board I implemented the strategy which is now known as the Pro Bono Panel of Prosecutors for the SPCA Auckland.
Sadly, New Zealand has a poor track record when it comes to animal cruelty and research clearly shows that people who are cruel to animals have a greater propensity to later be violent towards people.
One of the SPCA’s primary objectives is for greater deterrence and denunciation for offenders who offend against animals and the organisation is tasked with the law enforcement and prosecution function for offences under the Animal Welfare Act. The government does not provide any money for these offences to be prosecuted in Court by the SPCA. The SPCA’s operating funds come almost exclusively from public donations and the cost of prosecutions is financially challenging. When I joined the Board of the SPCA Auckland, I held the position of Chief Prosecutor of the Serious Fraud Office, and I was horrified to learn that on occasion offenders were not able to be brought to justice as there was no money to fund the prosecution. As a result of learning this information, I established the Pro Bono Panel of Prosecutors to ensure that each case that ought to be brought to justice was able to be brought to Court. I Chair the Panel and manage its prosecutions.
My idea was to see if I could get some of New Zealand’s top lawyers to offer their services at no charge to help the SPCA bring animal offenders to justice. The Pro Bono Panel is a high profile collection of 40 of the nation’s greatest legal minds (Crown Solicitors, Queens Counsel and Law Firm Partners), and their purpose is to help fight the high incidence of abuse against animals in New Zealand. Each Panel member conducts prosecution cases in Court at no charge for the SPCA. Members of the Pro Bono Panel include such senior lawyers as Mr. Michael Heron QC (who was Solicitor General of New Zealand and head of the New Zealand Crown Law Office), Mr. Simon Moore QC (Auckland Crown Solicitor and now High Court Judge) and Natalie Walker (Manukau Crown Solicitor).
It is estimated that this initiative, now in its 8th year of operation, has saved the SPCA Auckland hundreds of thousands of dollars of donor funds by ensuring the legal services are provided for free. Importantly, it has ensured that all cases that ought to be brought to Court have been able to be brought to Court.
The Panel initiative has received accolades nationally and internationally for its leadership, positive animal welfare outcomes, service to the community and innovation in establishing the first fully pro bono model of prosecuting animal welfare cases.
Furthermore, I have also been involved in working for harsher penalties against animal cruelty. I combined my efforts with the National Government, specifically, by lobbying the relevant Government ministers to reform The Animal Welfare Act 1999. In July 2010 the amendment to the Animal Welfare Act was passed into law by unanimous vote, increasing the maximum sentence for wilful ill-treatment of an animal from three to five years’ imprisonment and the maximum fine doubled to $100,000 for an individual and $500,000 for a company. Penalties were also increased for a range of other neglect and ill-treatment offences, and the Act expanded the law relating to forfeiture of animals and disqualification from owning them. The amendment to the Animal Welfare Act also creates a new offence of reckless ill-treatment.
In 2013, I was invited to join the American Bar Association Animal Law Committee as an International Associate Member and I contribute to international animal cruelty cases and submissions. I am also a regularly published author nationally and internationally on animal welfare issues.
I am currently working hard to lobby for changes in the domestic violence area regarding the connection between domestic violence and animal cruelty in New Zealand.
I believe it is very important to give back to the community and to assist the most vulnerable in our community, such as animals, who are not in a position to advocate for themselves. It has been rewarding to be involved with an initiative that is contributing to positive animal welfare outcomes and to the development of animal law in New Zealand. It has also been very rewarding to be able to provide a platform where numerous lawyers, both senior and junior lawyers (including members of the New Zealand Animal Law Association) have been able to do pro bono work to assist the SPCA and to ensure justice is being done in individual cases.
- What do you think are the most important animal law issues at the moment?
An issue that I believe is very important is the connection between domestic violence and animal cruelty in New Zealand (please see my paper “The Mistreatment of Animals in Domestic Violence” 2014 [NZLJ] 71). As I noted earlier, I have been lobbying for legislative changes in this area including having recently made a submission in relation to the Government’s Public Discussion Document: Strengthening New Zealand’s Legislative Response to Family Violence.
In particular, my submission highlighted case law and empirical evidence that demonstrates that animal cruelty needs to be viewed within a broader context of criminal offending. Animal cruelty can be a marker of family violence and companion animal abuse often co-occurs in the context of domestic violence. The desire to protect companion animals may be a significant barrier to victims of family violence leaving their abuser. For the reasons set out in the abovementioned New Zealand Law Journal paper, I have recommended that the Domestic Violence Act 1995 should be amended to expressly allow protection orders to include companion animals and the Veterinarians Act 2005 should be amended to require the mandatory reporting of animal abuse by veterinarians. These amendments are two measures that, in my submission, will contribute in a meaningful way to the reduction of harm in society. I have also submitted that the definition of domestic violence should be extended to explicitly include the abuse of companion animals, where the abuse or threat of abuse is intended to intimidate or harass a family member.
- Do you think New Zealand is generally improving in its approach to animal welfare through the law? E.g. in terms of sentencing for animal welfare offences?
Overall, yes I do believe that New Zealand is improving in its approach to animal welfare.
In 2013 I published a paper titled “Animal Welfare Sentencing: What a Difference a Decade Makes” and I considered the gradual shift in the last decade towards more punitive sentences being delivered in cases of significant cruelty against animals by contrasting the 2003 sentencing decision SPCA v Berryman DC Kaikohe CRI 2001-027-583249, 11 November 2003 with the 2013 High Court decision Ministry of Primary Industries v Erasmus  NZHC 281. The decision in Erasmus shows, in my view, how far we have come from the 2003 view that crimes against animals are not really important and do not deserve punishment in the same way as other crimes do. What is striking about the Erasmus decision is the Appellate Court’s recognition of the sentience of animals; that is, having the ability to feel, perceive, be conscious, or to experience subjectivity. The decision is also notable for its acknowledgment that the resulting pain, distress and suffering experienced by animals is a relevant factor to be taken into account at sentencing. In my view, Justice Priestley’s decision in Erasmus is reflective of the change in societal attitudes over the last decade towards offending against animals. It responds to Parliament’s view that cruelty to animals is abhorrent to society and its clear intention through the unanimous passage of the Animal Welfare Amendment Act 2010 to ensure that animal cruelty is to be treated seriously by the Courts.
- Please tell us about the types of cases you have conducted for the Pro Bono Panel of Prosecutors for SPCA Auckland - what kind of cases have you primarily encountered?
I have been involved with the full spectrum of animal welfare cases – including neglect, cruelty, torture, malnourishment and hoarding cases. In addition to defended hearings and jury trials, our cases also attract appellate activity and we have had appeals to the High Court, Court of Appeal and leave to appeal to the Supreme Court.
- In your view, how difficult is it to prosecute for animal welfare offences in New Zealand and what are the main challenges? You've previously stated that you were "really surprised a charity was tasked with a law enforcement and prosecution function and – quite frankly – horrified to learn that on occasion offenders were not able to be brought to justice as there was no money to fund the prosecution" – do you think there is any chance of this changing in the near future?
From a legal perspective, generally speaking animal welfare offences are not technically difficult to prosecute. The greatest challenge can often be the offenders themselves. Recidivist offenders are typically the most challenging offender that an SPCA inspector will deal with. They typically resist the involvement of an inspector in their affairs, occasionally becoming quite obstructive. They often have delusional views around welfare standards for animals, are in complete denial and in extreme cases will attempt to manipulate other people in order to secure support for their actions. Their refusal to cooperate and the impact they have on animals typically results in complex and lengthy litigation and occasionally this can also impact on the welfare of animals that may be at the core of the situation.
There is also increasing evidence of a psychological and neurological component in animal hoarding and recidivist animal welfare offending behaviour, which might involve dementia, obsessive-compulsive disorder, post-traumatic stress disorder and attention-deficit hyperactivity disorder. Typically, experts recommend a combination of cognitive behavioural therapy and psychopharmacological intervention.
Because of high recidivism rates, many experts maintain that traditional means of punishment (such as fines and imprisonment) are insufficient on their own to combat hoarding. The recidivism rate for animal hoarders is nearly one hundred percent (based on statistics from the Humane Society of the United States), with hoarders beginning to collect more animals almost immediately after being charged with hoarding or having their animals removed by animal control agencies
In order to reduce recidivism, experts advocate that Courts ban convicted hoarders from contact with animals permanently, or for as long as the law will allow. Furthermore, convicted animal hoarders should be sentenced to mandatory psychological evaluation and treatment and that if a permanent ban is not imposed by the Courts that they be restricted to owning a very small number of animals. A lengthy probation period, during which the hoarder must agree to periodic, unannounced visits from animal control and social service agencies to ensure compliance, is vital. Depending on the psychological capacity of the animal hoarder, in cases where animal suffering is extreme, a period of imprisonment is appropriate both as a punitive and deterrent measure and as a way to help hoarders understand the serious nature of their actions.
Lack of resources to bring a prosecution is a significant challenge for many of the other SPCA centers around New Zealand. The SPCA Auckland is very fortunate to have the services of the Pro Bono Panel of Prosecutors to prosecute its cases on a pro-bono basis. I am hopeful that the Government will in the future resource the prosecution of animal welfare offending appropriately so as to ensure that the rule of law is maintained and that all prosecution cases that ought to be brought to Court are able to be brought to Court.