Review of investigation
into Oxbow Dairies Limited
and related matters
13 December 2022
Michael Heron KC
Erin McGill
1
Contents
Executive Summary .................................................................................................................................. 3
Introduction ................................................................................................................................................. 4
Terms of Reference .................................................................................................................................. 7
Review process .......................................................................................................................................... 7
Issue 1: the adequacy of MPI’s investigation ................................................................................... 9
Factual background ................................................................................................................................................... 9
Investigation process ............................................................................................................................................. 11
Evidential sufficiency .............................................................................................................................................. 13
Public interest factors ............................................................................................................................................. 14
Additional complaints ............................................................................................................................................. 18
Conclusion .................................................................................................................................................................. 24
Issue 2: MPI’s response to Mrs Kuriger’s complaint .................................................................. 24
Additional complaints ............................................................................................................................................. 25
Overal Fairness ......................................................................................................................................................... 27
Issue 3: MPI’s handling of correspondence with Mrs Kuriger and Tony ............................ 28
Appendix 1 – Terms of Reference .................................................................................................... 29
2
Executive Summary
A.
Following the prosecution of Tony Kuriger and Oxbow by MPI, Mrs Barbara Kuriger
complained to MPI about the conduct of the investigation and prosecution including why
other persons were not prosecuted alongside Tony and Oxbow.
B.
MPI considered these complaints and, after receiving external legal advice, determined
that no further investigation was necessary.
C.
We have been asked to review:
• MPI’s investigation in 2017 of Oxbow and others in relation to alleged offending against
the Animal Welfare Act 1999;
• MPI’s response to Mrs Kuriger’s al egations in 2020 of offending by others; and
• MPI’s handling of correspondence with Mrs Kuriger and Tony since 2018.
D.
Having considered these matters, we have determined that:
• the MPI investigation was adequate, was conducted in accordance with the MPI
Prosecution Policy and Solicitor-General’s Prosecution Guidelines, and was not
motivated by any improper purpose.
• Mrs Kuriger’s complaints about the investigation are not made out and, in any event, did
not impact on the adequacy of the investigation.
• MPI’s response to Mrs Kuriger’s June 2020 complaint that no further investigation was
required was appropriate.
• MPI’s correspondence with the Kurigers fol owing the June 2020 complaint was
handled appropriately and respectfully.
E.
Despite our findings above, we acknowledge the situation Tony faced was complex and
seemingly intractable. We can understand the sentiment of unfairness, expressed to us in
the course of this review, and the feeling that Tony was not getting support from those
who could be expected to assist. These matters are outside the Terms of Reference and
do not affect our overall views about the adequacy of the MPI investigation but we
acknowledge (as did the sentencing Judge) how difficult this period was for Tony and the
apparent unfairness of broader farm problems being vested upon him as manager.
Ultimately, these matters were considered by MPI and the Crown Solicitor but prosecution
was stil determined to be in the public interest. We see no error in that approach.
3
Introduction
1.
In 2017, MPI undertook an investigation into animal welfare issues affecting dairy cows on
an Eketahuna dairy farm (the farm). The cows were owned by Oxbow Dairies Limited
(Oxbow) and the farm was managed by Mr Tony Kuriger (Tony).
2.
The investigation resulted in the filing of 11 identical charges against Oxbow and its three
directors, Tony, Louis Kuriger and Lloyd Harris under the Animal Welfare Act 1999 (AWA).
The alleged offending spanned the period October 2016 – April 2017.
3.
In summary, the charges alleged:
a. 1 x failing to provide for an animal’s physical, health and behavioural needs by failing to
protect 74 cows from, and rapidly diagnose, lameness – ss 12(a) & 25 AWA;
b. 2 x il -treatment of cows by failing to provide appropriate and timely health
interventions (cow numbers #235 and #629) - ss 29(a) & 37 AWA;
c. 1 x reckless il -treatment of 54 cows suffering from chronic and severe lameness,
resulting in serious injury or impairment – ss 28A(1)(d) & 28A(3)(a) AWA;
d. 1 x reckless il -treatment of 25 cows suffering from chronic and severe lameness,
resulting in the cows being euthanised to end their suffering – ss 28A(1)(c) & 28A(3)(a)
AWA;
e. 5 x wilful il -treatment of a cow by failing to remove its surgical bandage, resulting in
serious injury or impairment (cow numbers #526, #303, #577, #484, #799) – ss 28(1)(d)
& 28(3)(a) AWA; and
f. 1 x wilful il -treatment of cow number #55 by failing to remove its surgical bandage,
resulting in the cow being euthanised to end its suffering – ss 28(1)(c) & 28(3)(a) AWA.
4.
The charges against Mr Harris were dismissed prior to trial.
5.
Tony, Louis Kuriger and Oxbow defended the charges and the trial commenced in the
Palmerston North District Court on 27 January 2020 before his Honour Judge Rowe.
Following the calling of two Crown veterinarian witnesses, the defendants’ lawyer
approached the Crown and the parties agreed to resolve the matter on the basis that guilty
pleas were entered to the following charges:
a. Tony:
• 6 x wilful il -treatment by failing to remove surgical bandages (the charges noted in
paragraphs 3(e) and (f) above);
• 1 x il -treatment of 22 dairy cows presenting with chronicity;
4
b. Oxbow:
• 1 x wilful il -treatment of 6 dairy cows by failing to remove surgical bandages (a
representative charge covering the charges noted in paragraphs 3(e) and (f) above);
• 1 x il -treatment of 22 dairy cows presenting with chronicity.
6.
All of the charges against Louis Kuriger were withdrawn as part of the plea arrangement, as
were the remaining charges against Tony and Oxbow.
7.
Both Oxbow and Tony were sentenced on 12 June 2020 by his Honour Judge Rowe.
Oxbow was fined $30,000. Tony was convicted and ordered to pay veterinary costs of
$3,600 and expert witness report fees of $460.
8.
On 25 June 2020, a complaint was made to MPI by the mother of Tony and wife of Louis
Kuriger, Mrs Barbara Kuriger (the June 2020 complaint). The complaint stated as follows:
a. I write to make a formal complaint under section 12(a) of the AWA against [the farm
owners] for failing to provide infrastructure suitable for farming dairy animals as
defined by the Dairy Cattle Code of Welfare, resulting in lameness for the herds of
successive sharemilkers for a period of 16 years.
b. I write to make a formal complaint under section 29 of the AWA against [the farm
consultant] for aiding and abetting [the farm owners] to refrain from attending to race
surfaces causing animals to suffer unnecessary pain and distress over a period of 14
years.
c. I write to make a formal complaint under sections 12 and 28 of the AWA against [the]
Veterinarian for leaving treatment of 7 dairy cows for a period of 14 days, after a
diagnosis of chronic lameness, requiring amputation “due to the time of year” (i.e.
Christmas and New Year) and repeatedly failing to treat animals presented for
veterinary care.
d. I write to make a formal complaint under sections 12 and 29 of the AWA against [the
Animal Welfare Inspector] for citing and documenting the cause of lameness and
failing to exercise his powers as an Animal Welfare Inspector to remedy the cause,
resulting in dairy cows continuing to go lame.
9.
MPI made a decision not to investigate the al egations raised by Mrs Kuriger. It then
requested that the office of the Wel ington Crown Solicitor review that decision.
10. The office of the Wellington Crown Solicitor gave written advice to MPI on 16 December
2020. Following receipt of that advice, MPI confirmed its decision not to investigate.
11. After further correspondence, on 20 December 2021, MPI referred Mrs Kuriger’s
5
complaint to the Chief Ombudsman and requested that he undertake an investigation into
the matters which form the Terms of Reference for this review.
12. On 28 February 2022, the Chief Ombudsman declined to self-initiate such an investigation
and suggested that MPI consider engaging an independent person to review MPI’s
processes.
13. On 6 July 2022, the Hon Mr Finlayson KC requested that MPI appoint an independent
reviewer.
14. On 26 August 2022, I was asked to independently review the investigation by MPI into
Oxbow and Tony and the matters raised by Mrs Kuriger in relation to that investigation and
prosecution.
15. I have conducted this review with assistance from Erin McGill, Barrister. Where practicable,
we have used descriptive titles rather than names to protect the privacy of those not
central to this review.
6
Terms of Reference
16. The Terms of Reference (TOR) for this review are included at Appendix 1.
17. The purpose of the review is to provide an independent view on the matters raised by Mrs
Kuriger, in particular whether the MPI investigation in relation to Oxbow and others was
adequate and whether it was affected by improper motivation.1
18. The scope of review, in broad terms, is to consider the fol owing matters:2
a. MPI’s investigation in 2017 of Oxbow and others in relation to al eged offending
against the AWA;
b. MPI’s response to Mrs Kuriger’s al egations in 2020 of offending by others; and
c. MPI’s handling of correspondence with Mrs Kuriger and Tony since 2018.
Review process
19. The documents considered in this review are those provided by MPI, being:
a. Summary chronology;
b. MPI’s investigation file;
c. Legal advice from the Palmerston North Crown Solicitor about proposed charges
against Tony and others (1 September 2017);
d. Agreed Summary of Facts used for sentencing of Oxbow and Tony;
e. Notes of Judge Rowe on sentencing (12 June 2020);
f. Legal advice from the Wellington Crown Solicitor in review of the recommendation not
to investigate Mrs Kuriger’s al egations (16 December 2020);
g. Letter to the Chief Ombudsman (20 December 2021);
h. Reply from the Chief Ombudsman (28 February 2022);
i.
Letter from Hon Christopher Finlayson KC (6 July 2022);
j.
MPI’s Organisational Policy – Prosecutions and Infringements, published 14 December
2016 (MPI Prosecution Policy);3
1
TOR paragraph 10.
2
TOR paragraph 9. We have referred to these matters in this report as Issue 1, 2 and 3.
3
https://www.mpi.govt.nz/legal/paying-your-fine/prosecutions-and-infringements/
7
k. The Notes of Evidence from trial;
l.
Reporting letter from the Palmerston North Crown Solicitor after trial (5 February
2020);
m. Letter from the Chairperson, Federated Farmers Sharemilker Section (8 May 2020);
n. Complaint from Mrs Kuriger on 15 June 2020 and acknowledgment from MPI;
o. Internal MPI memorandum relating to Mrs Kuriger’s complaint (23 June 2020);
p. Email from the Palmerston North Crown Solicitor to the Napier Crown Solicitor
referring Mrs Kuriger’s complaint for independent review (23 November 2020);
q. Referral letter from MPI to the Wel ington Crown Solicitor (30 November 2020);
r. An email folder of MPI’s correspondence between MPI and the Kurigers from 4 June
2018 to 12 August 2022.
20. On 27 September 2022, we met with Mrs Kuriger, Tony and their lawyer, the Hon
Christopher Finlayson KC. At the meeting Mrs Kuriger explained her complaint in detail and
Tony was also given an opportunity to explain his grievances.
21. Mrs Kuriger provided us with three Eastlight folders of material4 and a complete copy of
information that she had sent to the Ombudsman on 11 January 2022. We have reviewed
all of the material provided by Mrs Kuriger.
22. During the meeting Mrs Kuriger outlined a number of complaints in addition to those
formally made to MPI in the June 2020 complaint. Those complaints were also reflected in
the folders of material she asked us to consider.
23. Most of these complaints have been considered as part of the three categories outlined in
paragraph 18 above and are addressed below. In broad terms, the Kurigers’ complaint can
be summarised as wanting to be assured that they and others have been treated fairly,
justly and without any irrelevant matters influencing the decisions made (specifically the
status of Mrs Kuriger as a sitting MP). In addition, there was a strong sense of unfairness in
that Tony was singled out for prosecution rather than given assistance and support.
24. Further complaints/allegations that were made by Mrs Kuriger but which fal outside the
scope of review and therefore have not been considered by us are:
a. the farm consultant failed to provide Mrs Kuriger with copies of his notes/reports;
4 Mrs Kuriger had previously provided these to MPI and they had been considered by the Wel ington Crown Solicitor when
they gave their advice on 16 December 2020.
8
b. inappropriate internal email correspondence and comments from Fonterra
employees. We note that this has been addressed by Fonterra commissioning its own
independent review; and
c. the alteration of the Fonterra Area Manager’s summary of the 8 November 2017
meeting between the farm worker and the Animal Welfare Inspector. There is no
evidence that MPI was involved in the alleged alteration of this email.
25. A draft of this report was circulated to MPI and the Kurigers for comment on 19 October.
26. Mr Heron KC met with the Animal Welfare Inspector on 27 October and sought his
response to the complaints made by Mrs Kuriger about the conduct of his investigation
and his comments on the draft report. The Animal Welfare Inspector sent a summary email
setting out his views the same day.
27. We received letters commenting on the draft report from Mr Finlayson KC on 4 and 15
November5 and from MPI on 1 December. We also sought further documents from the
Kurigers that related to their feedback.
28. We have considered the comments from al parties and where appropriate they are
reflected in this final report.
Issue 1: the adequacy of MPI’s investigation
Factual background
29. The ownership/management structure on the farm was as follows:
a. The farm owners owned the farm.
b. On 23 November 2013, the farm owners entered into a five-year sharemilking
agreement with Oxbow to commence on 1 June 2014.6
c. Oxbow was to provide the cattle and operate the farm. The farm owners and Oxbow
were to share the profits in a 50:50 proportion.
d. At the relevant time (2016/2017), Oxbow had three directors – Tony, Louis Kuriger and
Lloyd Harris.
5
We have considered Mr Finlayson KC’s letter of 15 November 2022 which refers to internal MPI emails from May -
August 2022. We do not consider the matters in those emails are relevant to the Terms of Reference and therefore
we make no further comment on those matters.
6
The parties terminated the agreement on 31 May 2017- two years before the contracted end date.
9
e. Oxbow made a supplementary agreement with the Coirebhrecain Trust for Tony to be
the variable/lower order sharemilker of the farm. The Coirebhrecain Trust is Tony’s
family trust of which he is a trustee.
f. Under this agreement Oxbow subcontracted the day-to-day running of the farm to
Tony, who in turn was to receive 25% of the milk income (or 50% of Oxbow’s share).
g. Tony was the farm manager in 2016 and 2017.
30. Between October 2016 and April 2017, a serious lameness issue arose in respect of the
dairy cows on the farm.7
31. During this period, a number of veterinarians were involved in treating the lame cows. As a
result of their attendances, the veterinarians treated 74 cows for lameness; 54 of which
were classified as severe or chronical y lame.
32. Of the 54 cows treated for chronic or severe lameness, 22 were so advanced in severity
and chronicity that euthanasia was recommended to end the animals’ suffering. Tony
accepted the veterinary advice as to the euthanasia of these animals.
33. On 6 January 2017, veterinarians attended the farm to conduct claw amputations on six
cows that had severe lameness.
34. On 12 January 2017, veterinarians conducted a final bandage change on the cattle and the
attending veterinarian advised Tony that he needed to remove the bandages in three to
four days’ time. On at least two occasions Tony was advised to remove the bandages
including on 16 February 2017, when a veterinarian attended the property to discuss
lameness issues. Whilst viewing the herd, the veterinarian noticed that the cows that had
previously received claw amputations, stil had their bandages on. The veterinarian advised
Tony that the bandages needed to be removed immediately as they should have been
removed a week after surgery, approximately a month and half earlier.
35. On 24 February 2017, the same veterinarian attended the farm. Again she saw that the
amputee cows stil had their bandages on.
36. The cows were subject to prolonged pain and suffering as a result of the bandages, which
were self-tightening, having not been removed.
37. One of the cows, tag number 55, had a severe infection and maggot infestation in its foot.
The cause of this was determined to be the surgery bandage cutting into the remaining
claw after it had been left on too long. This cow was euthanised as a result.
7
The facts outlined in paragraphs 30 - 37 of this report have been taken from the Agreed Summary of Facts used for
sentencing of Oxbow and Tony.
10
Investigation process
38. We have reviewed the MPI investigation file with a view to considering whether the
investigation was adequate and whether it was affected by any improper motivation.
39. All MPI investigations and any subsequent prosecutions are governed by the MPI
Prosecution Policy.
40. The MPI Prosecution Policy states that it is subject to and should be read in conjunction
with the Solicitor-General’s Prosecution Guidelines (S-G’s Guidelines), as amended or
replaced from time to time.8 It also states that if any inconsistency arises between the MPI
Prosecution Policy and the S-G’s Guidelines, the S-G’s Guidelines prevail.9
41. The MPI Prosecution Policy applies to all MPI staff dealing with potential prosecutions,
making prosecution decisions and conducting prosecutions.10
42. The MPI investigator that commenced and managed the investigation into Oxbow and
Tony was an Animal Welfare Inspector. He was therefore required to follow the MPI
Prosecution Policy.
43. We have reviewed MPI’s investigation file against the MPI Prosecution Policy.
44. At page 4 of the MPI Prosecution Policy is the section headed “Prosecution Decision
Making”. It states there that a prosecution decision must be made in every case where a
breach of any Act, regulation, or other legislative instrument has been investigated and there
is an offence provision available. If an investigation has been initiated by a warranted officer
outside the Compliance Services directorate, the investigation file must be forwarded to
Compliance Services and the prosecution decision made by an authorised manager within
the Compliance Services directorate (unless the offence is an infringement offence).
45. The Animal Welfare Inspector was part of MPI’s Compliance Services directorate. Once he
had completed his investigation, he forwarded the file to an authorised manager in his
directorate to make the prosecution decision in accordance with MPI Prosecution Policy.
This occurred on 6 June 2017 by way of an internal report addressed from the Animal
Welfare Inspector to the Team Manager.
46. At the end of that report, the Animal Welfare Inspector included the fol owing note:
“NB: It is recommended that this file be progressed through the Crown from the legal
opinion stage to ensure a completely independent review.
8
http://www.crownlaw.govt.nz/assets/Uploads/Prosecution-Guidelines/ProsecutionGuidelines2013.pdf
9
MPI Prosecution Policy, above n 3, page 1.
10
At page 2.
11
This should avoid any perception of political pressure/interference due to Barbara
Kuriger’s (National MP, mother of Tony and wife of Louis) family and shareholder
connection. The matter has also attracted considerable interest from a number of
quarters making independent advice/oversight advisable.”
47. On 9 August 2017, the Team Manager instructed the office of the Palmerston North Crown
Solicitor, BVA The Practice (BVA), to advise MPI whether, in accordance with the S-G’s
Guidelines, there was sufficient evidence and it was in the public interest to prosecute
Tony, Oxbow and its directors for alleged breaches of the AWA.
48. The Team Manager stated in her cover letter to BVA:
“The matter is being referred to you in accordance with MPI's prosecution policy and
referral criteria, because it involves fairly serious animal welfare offending and
particularly given the timing and the fact that the proposed defendant is the son of a
sitting MP.
We would appreciate your review of the file and advice on whether charges should be
laid, in accordance with the Solicitor-General's Prosecution Guidelines. Potential
offending is discussed in the enclosed report of our Officer in Charge of the file […]
with further questions about the potential liability of other parties than Mr Kuriger
detailed in the memorandum of today's date in the file.”
49. The MPI Prosecution Policy requires all preliminary recommendations concerning a
prosecution decision to be independently reviewed by an experienced solicitor. Advice
may also be sought from Crown Solicitors with the prior consent of the Manager
Prosecutions or the Chief Legal Adviser.11
50. The Team Manager’s referral to BVA satisfied this requirement. The MPI Prosecution Policy
states that the referral is to include copies of (or a full description of) the evidence available,
including exonerating evidence, and clearly identify any issues that may go toward weight
(including credibility) or admissibility. The file should also include all relevant information as
to matters going to the public interest assessment. The Team Manager’s referral included a
detailed memorandum by the Animal Welfare Inspector covering these matters.
51. The MPI Prosecution Policy states that no prosecution may be commenced unless it
meets the two part test set out in the S-G’s Guidelines:
a. Evidential sufficiency: there is available and admissible evidence sufficient to provide a
reasonable prospect of conviction; and
11
At page 4.
12
b. Public interest: Prosecution is required in the public interest.12
52. It is ultimately the MPI prosecution decision-maker’s role to decide whether it is in the
public interest to take a prosecution after having received advice on those factors by a
prosecutor.13
53. It is the responsibility of the prosecutor to determine what charges are appropriate. The
relevant Crown Solicitor should be consulted in particularly complex or serious cases likely
to result in Crown prosecutions.14
54. BVA was consulted on both the decision to prosecute and the charges to be filed. The
terms of reference preclude us from including any privileged material. We simply note that
it is exceptional for a prosecution to be commenced against Crown Solicitor advice and
were that to occur, it would have led us to make more detailed inquiry on this point.
55. We have reviewed the file for any evidence of improper motivation in the investigation
and/or prosecution as a result of Mrs Kuriger’s position. We have found no evidence that
her position influenced any decision-making at any stage. The Animal Welfare Inspector
and the Team Manager were aware of Mrs Kuriger’s profile during the investigation but
there is no suggestion that it impacted their decision-making. As noted above, one of the
reasons the file was referred for independent advice from BVA was because of Mrs
Kuriger’s position.
56. There is no evidence that Mrs Kuriger’s position influenced or impacted the advice
provided by BVA either.
Evidential sufficiency
57. The MPI Prosecution Policy states the following in relation to evidential sufficiency (or what
is otherwise referred to as “the Evidential Test”):
It is the responsibility of the Prosecutor reviewing the file to determine whether there
is evidential sufficiency for the proposed charges selected or alternatives having
regard to the evidence available and the evidential test detailed in the Solicitor-
General’s Guidelines.15
58. The S-G’s Guidelines provide that the Evidential Test is whether there is available and
admissible evidence sufficient to provide a reasonable prospect of conviction.
12
At page 5.
13
At page 6.
14
At page 7.
15
At page 6.
13
They further state that:
A reasonable prospect of conviction exists if, in relation to an identifiable person
(whether natural or legal), there is credible evidence which the prosecution can
adduce before a court and upon which evidence an impartial jury (or Judge), properly
directed in accordance with the law, could reasonably be expected to be satisfied
beyond reasonable doubt that the individual who is prosecuted has committed a
criminal offence.16
59. We have reviewed the evidence for the charges on the MPI file and the conclusions
reached in relation to evidential sufficiency by both MPI and BVA. We are satisfied that for
each of the charges filed against Oxbow, Louis Kuriger and Tony that there was credible
evidence that MPI could have adduced to satisfy a court beyond reasonable doubt that
those persons had committed the offences for which they were charged.
60. Tony was liable for the offending as farm manager and therefore as a “person in charge of
the animals”. Oxbow was liable as the owner of the cows and for the acts/omissions of its
agent, Tony. The Oxbow directors were personally liable as they were aware (or should
have been aware) of the issues yet failed to take reasonable steps to prevent them. While
there appears to be a reasonable basis for also charging Lloyd Harris in his role as an
Oxbow director, the evidence against him was more limited and it appears this was
recognised by the court later dismissing the charges against him.17
61. We also note that Oxbow and Tony ultimately entered guilty pleas to some offending
(which included the most serious of the alleged offending) which demonstrates they
accepted that at least some of the charges were appropriate and able to be proven against
them. They were represented by senior counsel at the time and had her legal advice in
respect of their decisions to enter pleas.
Public interest factors
62. Having been satisfied that the Evidential Test was met, the second consideration for MPI
was whether prosecution was in the public interest.
63. The MPI Prosecution Policy provides that all of the public interest factors set out in the
SG’s Guidelines wil be taken into consideration, as applicable in any given case, as well as
any other relevant public interest factors. Some further MPI-specific public interest factors
that must be taken into account are then listed at page 5.
64. In the Animal Welfare Inspector’s memorandum attached to the Team Manager’s referral
was a summary by him of the factors that he considered were engaged in this case. He
16
S-G’s Guidelines, above n 8, clause 5.3.
17
We have not been provided with a copy of the court’s decision.
14
identified that the following public interest factors in favour of prosecution were engaged:
a. Severity – there was prolonged pain and suffering caused to the animals. This was so
severe that 24 cows needed to be euthanised.
b. Scale – the veterinarians had to provide considerable and repeated treatment to 74
cows. 54 of these had suffered chronic and severe lesions resulting from a lack of
early diagnosis and treatment by the farmer.
c. There were aggravating factors of wilful and reckless conduct.
d. Tony failed to comply fully with veterinary instructions when issued and the s 130
notice issued by MPI;18
e. The Animal Welfare Inspector’s view was that there was an ongoing risk to the animals
on this farm and a medium/high risk that similar circumstances could unfold again
when Tony is in charge of any large dairy operation.
65. In relation to this last factor, we question this assessment when there was no evidence of any
previous significant lameness issues on farms managed by Tony. Further, at the time of the
offending he was also managing a second farm in Woodvil e that did not have any of these
issues. We note that Judge Rowe declined to make an order at sentencing disqualifying Tony
from owning or caring for cows or other animals in the future on the basis that what occurred
on this farm was down to “extreme circumstances [that Tony found himself] in at the time”. His
Honour commented that he doubted such a situation would occur again.19
66. When BVA reviewed the file, they noted that the fol owing public interest factors in favour
of prosecution were engaged:
a. Where the offence is likely to be continued or repeated;
b. Where the offence is prevalent;
c. Where the offender has created a serious risk of harm;
d. Where the offender was in a position of authority or trust and the offence is an abuse
of that position – both in terms of the trust from, and authority over, the cattle, but also
the trust imposed by the other Directors of Oxbow;
e. Commerciality – the cows continued to be milked despite their severe injuries and
veterinary direction to rest them and dry them off;
18
A section 130 notice is an instruction given by MPI pursuant to section 130 AWA requiring certain action to be taken
in order to prevent or mitigate the suffering of animals.
19
His Honour’s sentencing notes at [49].
15
f. Scale of offending – the offending concerned 74 cows, with a significant number
requiring euthanasia;
g. Reputation – preservation of the New Zealand dairy farming industry’s international
reputation is relevant; and
h. Lack of remorse – one of the veterinarians stated that ordinarily when situations of
lameness arise farmers are typically upset and angry with themselves, however, Tony
did not appear to display any remorse.
67. They also noted the following public interest factors against prosecution:
a. The defendants had no previous convictions;
b. Where the defendant was at the time of the offence or trial suffering from significant
mental or physical ill-health;
c. Where the offender is elderly (Lloyd Harris).
68. BVA gave MPI advice on the balancing of the public interest factors.
69. The crux of Mrs Kuriger’s complaint as we understand it is that Tony asked for help from
Fonterra’s Early Response Service and instead of being helped, he was prosecuted by MPI.
This in the context of previous sharemilkers on the farm having also experienced lameness
issues as a result of inadequate races and further issues occurring on the farm currently.
Her view is that the only obvious inference to Tony being targeted is that the prosecution
was political y motivated.
70. We are satisfied that the identification and balancing of the relevant public interest factors
by MPI (after advice from BVA) that resulted in the decision to prosecute was a judgment
call that was reasonable. We cannot comment on any other investigations or decisions that
may have been made in relation to potential AWA offending on the farm during other time
periods (pre or post Oxbow’s contract). It may also have been the case that another
prosecutor would weigh up the factors differently in this case and come to a different view
on the decision to prosecute or on the charges to be filed. However, as it is a prosecutorial
discretion, all we can do is assess whether the decisions made were within the bounds of
reason which is the conclusion we have reached.
71. While it is clear that MPI and the Crown solicitors were aware of Mrs Kuriger’s position at
the time of the investigation and prosecution (and that has been noted in various emails),
there is no evidence in our view that the prosecutors took that into account to Tony or
Oxbow’s detriment. In fact, on several occasions it was internal y mentioned that the file
should be treated in the same way as any other matter. We are conscious that it is unlikely
that such considerations would be expressly documented, but in our view, there is nothing
16
in the overall process which points to Mrs Kuriger’s position being a relevant factor in the
prosecution decision making.
72. Mr Finlayson KC points to five documents which he says show examples of the Animal
Welfare Inspector being motivated by an improper purpose.20 We have considered each of
these documents and, in our view, they do not demonstrate any improper purpose (either
individually or collectively).
73. The first example, which was a chat stream from 27 March 2017, was between Fonterra
employees and did not therefore originate from MPI. The other examples show that MPI
was conscious of Mrs Kuriger’s position but do not show any influence or improper
motivation as a result of her position. In fact, the second document appears to be an
example of MPI ensuring those within the Ministry are aware of Mrs Kuriger’s relationship
to the file for sensitivity purposes.21 The third email notes that MPI had instructed the
Crown solicitor for legal review due to the seriousness of the offending and timing (close to
a General Election, with one of the proposed defendants being the son of a sitting MP).22
To us, this demonstrates a desire for independence in the prosecutorial decision-making
and negates the idea of any improper purpose.
74. The fourth email relates to the profiles that were created of the Kurigers during the
investigation process.23 This is dealt with below in paragraph 82. It does not show any
improper motivation. We note that on the same email chain, the comment is made
“Obviously approach the matter the same as any other job and your recommendation etc”.
This suggests MPI was carrying out its investigation in the same manner as any other.
Finally, the fifth document was part of an email between MPI employees discussing a
change of manager.24 The comment by the writer that they would have been keen for the
former manager to still be there when the Kuriger file was pulled together due to the
potential problems/risks raised and particularly if Mrs Kuriger was drawn into it as a
defendant were likely comments on the challenges that may be posed by the investigation.
They do not, in our view, show any improper motivation to prosecute Tony.
75. In response to Mrs Kuriger’s view that the only obvious inference to Tony being targeted is
that the prosecution was political y motivated, we note that when MPI first became
involved in this matter, there were serious animal welfare issues on the farm. Having
determined that Tony and Oxbow were the persons in charge of the animals and that there
had been failures to deal with the lameness issues, it is not surprising that a prosecution
20
Letter from Mr Finlayson KC dated 4 November 2022, paragraph 8.
21
Email between two Deputy Directors-General, dated 8 March 2017.
22
Draft summary by the Team Manager, dated 24 May 2021.
23
MPI internal emails of 7 March 2017.
24
MPI internal emails of 19 April 2017.
17
resulted. To say that the only reason they were prosecuted was because of Mrs Kuriger’s
position is to ignore the fact that there had been multiple occasions of wilful il -treatment
with respect to the cows that Tony and Oxbow were responsible for.
Additional complaints
76. We now address the additional complaints by Mrs Kuriger that relate to the MPI
investigation.
The inappropriateness of informal communications between Fonterra and MPI before 6 March
2017 and the fact that these were not disclosed by MPI as part of the prosecution
77. This complaint relates to the fact that the Animal Welfare Inspector’s witness statement
filed in the prosecution states that he was forwarded an animal welfare job in relation to the
farm by his manager on 6 March 2017 and that he responded to that by calling Fonterra
(the complainant) to establish some perspective and background. The inference here,
according to Mrs Kuriger, is that the Animal Welfare Inspector’s statement suggests that 6
March 2017 was the first time MPI became aware of the matter when there are emails that
show Fonterra advising the Animal Welfare Inspector of this matter in an informal manner
on 16 February 2017.
78. The email from Fonterra to the Animal Welfare Inspector of 16 February 2017 states at the
end “Before I call any oil? Beers.” There is then reference in emails on 23 March 2017 to
having some discussions over “a few beers” at the Celtic Inn. Mrs Kuriger also has an issue
with the case being dealt with in such an informal manner (over beers at the pub).
79. We can understand the concern here in that the wording of the statement may infer to the
reader that 6 March 2017 was the Animal Welfare Inspector’s first interaction with
Fonterra. However, it was our inference, now confirmed by the Animal Welfare Inspector,
that he was intending to refer in his statement to the first formal referral of the file to him.
80. In any event, nothing turns on this in terms of the framing of the charges and the
subsequent guilty pleas. The nature of the relationship and discussions between the
Animal Welfare Inspector and Fonterra again, while informal, do not appear to have had any
impact on the adequacy of the investigation or the charges filed.
The investigative conduct of the Animal Welfare Inspector
81. Mrs Kuriger makes several complaints about the Animal Welfare Inspector’s investigative
conduct.
82. Her first complaint is that the Animal Welfare Inspector had a personal profile created of
her as part of the investigation. This has been dealt with by the MPI Director General. He
issued an apology for its creation and advised Mrs Kuriger he was taking appropriate steps
18
to review the matter. We consider this was the appropriate response and that the matter
has therefore been dealt with.
83. Her second complaint is that the Animal Welfare Inspector appeared to make light of
Tony’s health in emails. One example of this is Fonterra forwarding the Animal Welfare
Inspector an article written by Tony for Farmers Weekly on 9 September 2016 where he
discussed his challenges and the Animal Welfare Inspector responding “…makes for
interesting reading doesn’t it!!!”. There is at least one other similar example.
84. Related to this is her third complaint that the Animal Welfare Inspector made light of Tony
with references to “his” vets in emails which infer that Tony thought they were his vets
when in fact they were MPI’s vets.25
85. We acknowledge that the Animal Welfare Inspector could have framed his wording better
in these emails as one interpretation is that his words were disrespectful to Tony. However,
our view is that comments such as these did not go so far so as to impact on the overall
adequacy of the investigation.
86. Mrs Kuriger makes a fourth complaint about the Animal Welfare Inspector engaging in
separately paying Oxbow’s vets for reports without Oxbow’s/Tony’s knowledge. We note
that in paragraph [5] of Ms Hughes KC’s sentencing submissions she stated that MPI were
unaware that there were different vet reports and that Tony was not receiving the reports
that the vets were sending MPI.
87. We requested comment on this from MPI. They advise that the last report the vets provided to
the Animal Welfare Inspector on lameness covered their attendance on 4 May 2017. The vets
reported to the Animal Welfare Inspector in paral el with their reporting to Oxbow/Tony. The
vets completed their work for Oxbow on lameness on 12 May 2017 and made a further visit for
pregnancy testing on 19 May.26 The Animal Welfare Inspector then asked the vets to work on
evidence for the investigation from 18 May – 8 June 2017, after the vet’s lameness work for
Oxbow had ceased. MPI advise that they paid the vets separately for the reports received from
18 May and they were not double-charged to Oxbow.
88. As this is a desktop review, we have not sought an explanation from the vets but we do
note there was cross-examination on this point at trial and the veterinarian who was cross-
examined denied that a number of reports were not sent to Oxbow. We have considered
whether this might have impacted on the independence of the veterinarian(s) concerned
or the quality of the evidence they offered. We consider that is unlikely. It also appears
25
An example is the email from the Animal Welfare Inspector to the Team Manager dated 26 May 2017: “Might give you
an insight into the ongoing saga and frustration “his” vets had in trying to deal with the lameness problem at
Kurigers.”
26
Email from the veterinarian to the Animal Welfare Inspector, dated 4 July 2017.
19
from Ms Hughes KC’s submissions that it is accepted that MPI did not attempt to conceal
information from Tony in this regard.
89. Fifthly, Mrs Kuriger al eges that the Animal Welfare Inspector bul ied two witnesses, namely
the farm worker and the Woodvil e farm manager.
90. Mrs Kuriger has provided a (unsigned) statement from the Woodvil e farm manager, dated
12 October 2017 which states that he was visited by the Animal Welfare Inspector on 13
March 2017 and the Animal Welfare Inspector seemed agitated that there weren’t many
lame cows on the property as compared to the Eketahuna farm.
91. The Woodvil e farm manager states that the Animal Welfare Inspector said his job was to
make sure Tony paid for the treatment of stock on the [Eketahuna farm]. Among other
things, he states that he felt the Animal Welfare Inspector had a very negative attitude and
an intention to persecute Tony.
92. Mrs Kuriger has also provided a signed statement from the farm worker dated 18
December 2018. This statement complains about the Animal Welfare Inspector’s
harassment of him. He states that the Animal Welfare Inspector said “when this case has
finished in court, Tony will probably relieve you from your job!”. The farm worker states he
felt this comment was bullying him into taking the Animal Welfare Inspector’s side on the
case. He also said he felt pressured to sign his statement and was not given sufficient time
to read it or have it looked over by a lawyer or peer. He referred to the Animal Welfare
Inspector refusing to talk to him properly about the case previously because the farm
worker had a support person present and that he felt that this visit was an attempt to catch
him without a support person.
93. Further to this, there is also an email on Mrs Kuriger’s file from the Fonterra Area Manager,
dated 9 November 2017 where a meeting between the Animal Welfare Inspector and the
farm worker is referred to. That email states the Fonterra Area Manager’s perspective that
the Animal Welfare Inspector was taken back by his presence at the meeting. The
allegations here are that the Animal Welfare Inspector refused to allow the farm worker to
have the Fonterra Area Manager present at his interview as a support person and that the
farm worker was offered the option of being questioned alone or not questioned at all. We
note here that the farm worker was first interviewed by the Animal Welfare Inspector on 22
March 2017 so this must have been a second request to interview him.
94. We have sought the Animal Welfare Inspector’s response to these al egations and they
are denied. This is the first time the Animal Welfare Inspector has heard this complaint.27
His recollection and notes of the conversations mentioned above differ from that set
out by those witnesses.
27
MPI advises that these al egations have not been raised with the Palmerston North Crown Solicitor previously either.
20
95. Given there is a factual dispute as to the al egations and our review has been completed on
a desktop basis, we cannot find the allegations established.
96. We note that Oxbow and Tony pleaded guilty after the cal ing of two Crown vet witnesses
and prior to the farm worker or Woodvil e farm manager having the opportunity to give
evidence at trial. The defendants could have opted to cross-examine the farm worker if he
was to be cal ed as a Crown witness and/or cal ed the farm worker and the Woodvil e farm
manager as defence witnesses. They chose not to do this by entering guilty pleas.
Therefore, ultimately this evidence that was allegedly unfairly obtained was not heard by
the court, was not taken into account at sentencing, and did not impact the outcome for
the defendants.
97. Finally, Mrs Kuriger complains about the Animal Welfare Inspector’s approach to
interviewing Tony and his refusal to provide information and a written list of questions in
writing to Tony’s lawyer so that Tony could provide a written response to the questions.
The Animal Welfare Inspector’s response to this suggestion was that the proposed course
seemed unusual, was not amenable to MPI, and would not be amenable to any other
prosecuting agency.
98. We can understand the Animal Welfare Inspector’s desire to interview Tony in person and
without prepared questions and answers so that his spontaneous answers to the
questions could be assessed. That is orthodox investigative process. However, assuming
Tony was unwil ing at attend such an interview in that manner (which he clearly was) then
we cannot see any reason why the Animal Welfare Inspector could not have stil sought
Tony’s responses to his questions in writing (noting such a method would lack the benefit
of candid responses). He could also have provided his own written statement at any stage.
Ultimately, the prosecution proceeded without a statement from Tony and he did not elect
to give evidence at trial (instead pleading guilty) as was his right.
The incorrect reference in the 16 June 2017 internal MPI email about the numbers of lame cows
on the property as of “yesterday”, the fact that this wasn’t dealt with properly and was detrimental
to Tony.
99. On 16 June 2017, an email was sent internal y within MPI which included the fol owing:
“It is looking likely we will be heading for multiple charges under the act.
A vet treated 74 animals out of a herd of 500 yesterday, 54 of which had chronic severe
lameness and 24 of these needed euthanasing. The vet described this as “very unusual
for this amount of severe lameness and suffering”.
It is likely there will be charges against Tony Kuriger and also the Directors of the
company.”
21
100. The issue Mrs Kuriger has with this email is that it was incorrect that there were lame cows
on the farm on 15 June 2017 as all Oxbow’s cattle had been removed by then. She
complained to MPI about this email once she had seen it and after some backwards and
forwards and investigation, on 27 November 2018, MPI’s Chief Legal Adviser confirmed in
writing to Mrs Kuriger that the reference to “yesterday” in the email was incorrect. He
confirmed that the vets attended the herd over 23 December 2016 to 20 April 2017 and
treated 74 cows for lameness. He advised that he had not been able to work out why the
email referred to “yesterday” but it appears that had resulted from a miscommunication.
He apologised for not identifying the error earlier.
101. We are satisfied that the incorrect nature of this email has now been identified and dealt
with appropriately with a written acknowledgment and apology. We do not consider that
this error has caused any detriment to Tony. The al eged offending in the charges spanned
the dates October 2016 – April 2017. The error in this email did not influence the charges.
Further, Tony subsequently pleaded guilty to charges that related to 22 dairy cows
presenting with chronicity.
Mrs Kuriger’s family members’ information was given to the media after she had requested it not be
102. When we distributed this report in draft to Mrs Kuriger, we advised that we did not have
sufficient detail on this complaint to reach any conclusion. We requested further
information on this complaint if it was to be pursued. We have not received any information
in support of this complaint and therefore treat it as not pursued.
Additional complaints raised by way of letter dated 4 November 2022
103. Mr Finlayson KC posed three questions in his letter of 4 November that he requested be
asked of the Animal Welfare Inspector, namely:28
a.
Why is it that Tony reported the long-term lameness on the farm and requested a
visit by MPI to fix the issue?
b.
Why did the Animal Welfare Inspector ignore the history on the farm?
c.
Why did the Animal Welfare Inspector fail to find a sustainable solution for the
animals on the farm?
104. MPI has responded to these questions and we address them below.
105. MPI advises (and this is consistent with our understanding) that Tony contacted the
Fonterra Early Response Service in February 2017 asking for help with farm races and
lameness issues. Fonterra then involved MPI. As we understand it, Tony did not request a
28
Letter dated 4 November 2022, paragraph 9.
22
visit by MPI to fix the issue. In addition, the farm worker’s evidence was that it was he that
first contacted the vet, not Tony.
106. It does not appear as though the Animal Welfare Inspector ignored the history of the farm.
He spoke to those previously involved with the property (e.g. Fonterra and the farm
consultant) and attempted to contact the previous farm worker/manager. The focus of the
MPI investigation however was on the actions (or inactions) taken by Tony and Oxbow
once the lameness arose. The history of the farm was therefore only peripherally relevant.
107. We are not sure what is meant by the last question regarding why MPI failed to find a
sustainable solution for the animals on the farm. MPI was involved in a regulatory capacity.
MPI was not in charge of the farm. However, MPI did take steps to mitigate/remedy the
situation in that they issued a s 130 AWA notice and received updates from the vets about
the animals’ progress. It was not MPI’s role to find a sustainable solution for the animals on
the farm.
108. Mr Finlayson KC also questioned why the problem on the farm continues to this day. We
are advised that MPI have made visits to the farm since the Kurigers left it and have found
that no compliance action needed to be taken. It is beyond our scope to make an
assessment of that issue. The state of the farm at present is outside the Terms of
Reference for this review.
109. Another concern that has been raised by the Kurigers is summarised as follows:
…the Animal Welfare Inspector went out of his way to “stalk” Tony’s address and used
surveil ance within MPI to follow Tony’s wife’s social media. All of this was during the period
for which Production Orders were sought and Tony’s wife was pregnant and unwell. Their
baby was then born early and both Tony’s wife and their baby were hospitalised for
periods. This was a very worrying and stressful time for the family….
110. The stalking allegation is denied by the Animal Welfare Inspector and so we sought
supporting evidence of this from Mr Finlayson KC. In response we were provided with
the report from the Private Investigator who was engaged by the Crown Solicitor to serve
the Production Order dated 19 December 2017. It outlines the steps that were taken to
locate Tony to enable service. These steps included visiting two addresses and a
Facebook search which identified the recent birth of Tony’s baby. Ultimately, the document
was served.
111. As a first point we note that the Private Investigator was not engaged by MPI. The file was
in the conduct of the Crown Solicitor by this stage and so any allegations relating to the
Private Investigator cannot be attributed to the Animal Welfare Inspector or MPI.
Secondly, based on the evidence we have received, it is an overstatement to say the
Private Investigator was “stalking” the address. It is common for Private Investigators to
use a variety of investigatory methods to locate persons. Presumably Tony’s wife’s
23
Facebook account also had an open profile which allowed the Private Investigator to view
it. There does not appear to be anything sinister in the method employed.
Conclusion
112. In conclusion, it is our view that the investigation and subsequent prosecution carried out
by MPI was adequate, was conducted in accordance with the MPI Prosecution Policy and
S-G’s Guidelines, and was not motivated by any improper purpose.
113. Further, Mrs Kuriger’s complaints are not made out as far as we can determine, nor did
they have any impact on the adequacy of the investigation.
Issue 2: MPI’s response to Mrs Kuriger’s complaint
114. The second aspect we have been asked to review is MPI’s response to Mrs Kuriger’s
complaint in 2020 of offending by others (the June 2020 complaint). As detailed above, her
complaint was as follows:
a. under s 12(a) AWA against the farm owners for failing to provide infrastructure suitable
for farming dairy animals as defined by the Dairy Cattle Code of Welfare, resulting in
lameness for the herds of successive sharemilkers for a period of 16 years;
b. under s 29 AWA against the farm consultant for aiding and abetting the farm owners to
refrain from attending to race surfaces causing animals to suffer unnecessary pain
and distress over a period of 14 years;
c. under ss 12 and 28 AWA against the Veterinarian for leaving treatment of 7 dairy cows
for a period of 14 days, after a diagnosis of chronic lameness, requiring amputation
“due to the time of year” i.e. Christmas and New Year and repeatedly failing to treat
animals presented for veterinary care; and
d. under ss 12 and 29 AWA against the Animal Welfare Inspector for citing and
documenting the cause of lameness and failing to exercise his powers as an Animal
Welfare Inspector to remedy the cause, resulting in dairy cows continuing to go lame.
115. Having received and reviewed this complaint, MPI determined that no further investigation
was required. MPI also sought the independent opinion of the Wellington Crown Solicitor
and then confirmed its decision not to investigate.
116. Our view on these complaints is as fol ows:
a. The farm owners were the owners of the land. Oxbow was the owner of the cattle.
Section 12 AWA sets out offences for those persons who are owners of, or persons in
charge of, animals. The farm owners could not be held liable under s 12 as owners as
24
they did not own or control the cattle. The sharemilking agreement also made it clear
that the persons in charge of the cattle was Oxbow, not the farm owners.
b. The farm consultant cannot be held liable under section 29 of the AWA for aiding and
abetting the farm owners in committing an offence under s 12. In order to be liable for
aiding and abetting a principal offender, the principal must be capable of being held
liable. As we have found that the farm owners cannot be held liable under s 12, the
farm consultant cannot be held liable under s 29 for aiding and abetting them.
c. While it may be possible to al ege that a vet who has been tasked with treating an
animal is “in charge of it” during that period, we have not seen any evidence to support
the al egation that the veterinarian il -treated the cattle or failed in any way in delaying
amputation over the Christmas – New Year period. Her evidence was that she
prescribed the cows pain relief and anti-biotics to carry them through this period29 and
there was no evidence from either the veterinarian or a defence vet witness to support
the al egation that the choice to treat in this way was a failure on her part. In our view,
there is no evidential basis to this al egation.
d. With respect to the complaint about the Animal Welfare Inspector having committed
an offence against the AWA, our view is that he was not a person in charge of an
animal. The Animal Welfare Inspector’s involvement with the animals was in his role as
an MPI investigator. It would take an exceptional set of facts to charge an investigator
for failing to appropriately remedy already lame cows. Further, s 158 of the AWA limits
liability for acts or omissions carried out by inspectors in good faith. We have seen no
evidence of bad faith on the part of the Animal Welfare Inspector.
117. As a result, we agree with MPI’s conclusion that no further investigation of the June 2020
complaint was required. MPI’s response to that complaint was therefore appropriate.
Additional complaints
118. Mrs Kuriger complains that there was a lack of independence in the investigations of this
matter carried out by senior MPI managers. Our understanding of this al egation is that the
investigations were not independent because these managers corresponded with other
MPI employees who had previous involvement in this matter.
119. We presume that some correspondence with those previously involved, at the least to get
the facts and their position on matters, was required as part of the independent review. It is
not clear to us the extent to which it is alleged that these previously involved employees
influenced the outcomes of the independent review. We stated in our draft report that we
would need more information to make a finding on this. We have not been provided any
29
Notes of Evidence, pages 106 – 107.
25
further information to assist us to understand this complaint. MPI has explained the
investigation undertaken by the first manager and there is nothing in that to suggest a lack
of independence (obviously, it was an internal investigation so could never be truly
independent). MPI advise that the second manager was not tasked to undertake an
investigation. He met with the Kurigers on several occasions in 2021, noted the matters
and initiated the approach to the Ombudsman. We do not identify any concerns with the
explanation MPI has provided so consider that this complaint has not been made out.
120. Mrs Kuriger complains that MPI was incorrect to assert that it had no power to direct
owners of farms to repair races. She states that MPI’s Vet Pack resource shows it can
direct owners. She also refers to the case of MPI v Castlerock Dairies Limited30 which she
says demonstrates that MPI can and has prosecuted farm owners under the AWA for
inadequate races causing lameness.
121. We cannot recal seeing any correspondence whereby MPI advised the Kurigers that it had
no power to direct owners to fix races. It may be that this was an oral statement. Whether
or not MPI had the power to direct owners however, falls outside the scope of this review.
What is clear is that the owners were not liable for AWA offending which was the subject of
the MPI investigation.
122. We have reviewed the Castlerock Dairies case. In that case, the company appears to have
been both the owner of the land and the cattle. Therefore they were liable for omitting to
repair the races which ultimately led to the suffering of the animals they owned. The
ownership structure in that case was therefore different to the current case and does not
support the Kurigers’ position that MPI has the power to direct owners to repair races.
123. Mrs Kuriger complains about the informal communications referred upwards within MPI
but not recorded in writing because this creates a lack of transparency. In support of this,
she provides an internal MPI email dated 12 July 2019 which refers to the upcoming
Oxbow trial, states that it wil likely attract media attention and then states “Perhaps we
discuss how best we might inform up on this rather than in a formal report?”.
124. MPI has commented on this email and advise that this comment recognised the potential
sensitivity of the prosecution and sought guidance on what sort of reporting was
appropriate. The prosecution was in the conduct of the Crown by this stage. MPI was no
longer the prosecuting agency. There was therefore no risk of the formality of reporting
having any influence on the conduct of the prosecution.
125. We agree with MPI’s comments on this and note that as this occurred subsequent to the
MPI investigation, it fal s outside of the Terms of Reference.
30
MPI v Castlerock Dairies Limited & Ors [2017] NZDC 18237.
26
Overall Fairness
126. We acknowledge the Kurigers’ complaint around the feeling that the prosecution was an
unfair response to Tony seeking help. He was in a difficult position at the time with many
challenges. We can understand that a prosecution felt unfair when he considered he was
not getting support from those around him who could be expected to assist. We note this
is outside the Terms of Reference and does not affect our overall views about the
adequacy of the investigation and prosecution but we acknowledge how difficult this
period must have been for Tony and the apparent unfairness of some of the problems with
the farm races being vested upon him as manager. Ultimately, al these matters were
considered by MPI and the Crown Solicitor’s office but prosecution was stil determined to
be in the public interest. We see no error in that approach.
127. When we met, Mrs Kuriger described the situation Tony was in at the time as a “perfect
storm”. Tony’s lawyer, Ms Susan Hughes KC, stated the same in paragraph 43.3 of her
sentencing submissions:
…the lameness occurred in circumstances of a “perfect storm” – an unknown but
extensive history of lameness on the property, with a consistent identification of poor
tracks as a cause for such lameness, refusal of owners to address the state of the
tracks, exceptional y wet winter, senior staff leaving the farm because of the stresses
of lameness thereby leaving the farm undermanned, problem overwhelming remaining
staff, vets only being prepared to see 10 cows at a time, actively seeking assistance
from vets, ERS [Early Response Service], Fonterra and MPI, following instructions
given in writing, failure of marriage, difficulties with access to children,…health
problems.
128. Mrs Kuriger also referred at the meeting to other matters such as the fact that instructions
given by vets were not relayed to Tony by his workers, the farm consultant not identifying
or assisting with the issue enough, and Fonterra having informal meetings at bars with the
MPI investigator instead of assisting Tony.
129. While we are unable to make any factual findings about these matters and they are outside
the scope of our review, we do acknowledge the difficult situation existing on the farm and
with Tony at the time of the investigation.
27
Issue 3: MPI’s handling of correspondence with Mrs Kuriger
and Tony
130. We have reviewed the email folder provided by MPI which contains correspondence
between MPI and the Kurigers from 4 June 2018 to 12 August 2022.
131. Our view of that correspondence is that it MPI handled that correspondence appropriately
and respectfully.
132. We note that paragraph 11 of the Terms of Reference states as fol ows:
In the course of considering issues raised by Mrs Kuriger, MPI has identified two
emails that were not consistent with MPI’s Code of Conduct and addressed them
with the staff member who authored them. That matter has therefore been resolved
and is out of scope.
133. These emails fall outside the scope of this review so are not matters for us to consider.
However, when we met with the Kurigers they noted that they had not been told about
these emails or that they were investigated by MPI. The Kurigers requested to be advised
of the outcome of the MPI investigation into these emails.
134. MPI's response to this is that they have told Mrs Kuriger all that they can in respect of this
investigation (as far as confidentiality allows), and that is as follows:
a. The emails were included in a response to a Privacy Act request by Tony in February
2022 (which was how MPI noticed the emails);
b. MPI advised by email of 4 April 2022 that an investigation was underway;
c. MPI advised oral y that some matters had been identified which had been dealt with in
accordance with MPI policies;
d. The particular emails were sent to Mr Finlayson KC on 1 September 2022, in response
to a request that was prompted by the Terms of Reference. Some contact details were
redacted, but the author, recipients and text of the emails were not redacted.
135. MPI advise that the disciplinary process that is referred to in Mr Finlayson KC’s letter of 15
November as never having been disclosed to the Kurigers, is in fact the same disciplinary
process as that mentioned above.
28
Appendix 1 – Terms of Reference
Terms of Reference
Review of Investigation into Oxbow Dairies and related matters
To: Michael Heron QC
1.
I request you to undertake a desktop review into some matters that have been raised with
me by Barbara Kuriger, regarding an investigation by MPI and prosecution of her family
company (Oxbow Dairies Limited), her son Tony Kuriger and others.
Background
2.
From March to September 2017 MPI undertook an investigation into animal welfare issues
affecting dairy cows owned by Oxbow, on a farm managed by Tony Kuriger.
3.
Following a review of MPI’s investigation file by the office of the Palmerston North Crown
Solicitor, MPI commenced a prosecution. This became a Crown prosecution when the
defendants elected trial by jury (although they later sought a Judge-alone trial instead).
Oxbow and Mr Kuriger ultimately pleaded guilty to several charges, and were sentenced in
June 2020.
4.
In June 2020 Mr Kuriger made a complaint to MPI against several people who were not
prosecuted, including owners of the farm. MPI decided not to undertake an investigation of
those complaints; and submitted that decision for review by the office of the Wellington
Crown Solicitor.
5.
Mrs Kuriger and Tony Kuriger have raised a number of issues with MPI since 2018. Central
concerns include that Mr Kuriger and Oxbow were not responsible for lameness in their
dairy herd; that MPI should have investigated the owner of the farm where the cows were
and/or the vets who advised Tony Kuriger; and that the investigation and prosecution were
politically motivated.
6.
MPI earlier referred this matter to the Chief Ombudsman for investigation. The Chief
Ombudsman declined to investigate and suggested that MPI instead consider appointing
an independent reviewer.
Purpose of review
7.
MPI seeks to maintain the highest professional standards in its investigations and
prosecutions, including both effective enforcement of the legislation that it administers
and fairness to people who are affected by its investigations and prosecutions.
29
8.
I wish to obtain an independent view on the matters raised by Mrs Kuriger, especially
whether the investigation in relation to Oxbow and others was adequate, and whether it
was affected by any improper motivation.
Scope of review
9. In broad terms, I request you to consider the following matters:
• MPI’s investigation in 2017 of Oxbow Dairies Limited and others in relation to offending
against the Animal Welfare Act 1999;
• MPI’s response to Mrs Kuriger’s complaint in 2020 of offending by others;
• MPI’s handing of correspondence with Mrs Kuriger and her son Tony since 2018.
10. The focus of the review should nevertheless be on whether the investigation in relation to
Oxbow and others was adequate, and whether it was affected by any improper motivation.
11. In the course of considering issues raised by Mrs Kuriger, MPI has identified two emails
that were not consistent with MPI’s Code of Conduct and addressed them with the staff
member who authored them. That matter has therefore been resolved and is out of scope.
12. This is not an employment investigation. You should avoid any conclusions on the ability of
any individuals to perform their roles.
13. Information gathered through this review may be subsequently used by MPI to assess the
performance of any of its employees. If appropriate, any such assessment or process
would occur after this review has been completed. MPI wil provide a statement to any MPI
employees involved in the review to this effect.
Process
14. Deputy Solicitor-General Aaron Martin wil provide you with an initial set of documents.
After you have considered those documents, we wil provide such other information as you
consider necessary for the review.
15. The initial set of documents is:
• Summary chronology;
• MPI’s investigation file;
• Advice from the Palmerston North Crown Solicitor about proposed charges against
Tony Kuriger and others (1 September 2017);
• Agreed summary of facts used for sentencing of Oxbow Dairies and Tony Kuriger;
• Note of Judge Rowe on sentencing (12 June 2020);
30
• Review by the Wellington Crown Solicitor of the recommendation not to investigate
Mrs Kuriger’s al egations (16 December 2020);
• Letter to the Chief Ombudsman (20 December 2021);
• Reply from the Chief Ombudsman (28 February 2022);
• Letter from the Hon Christopher Finlayson QC (6 July 2022).
16. You should also request a meeting with Mrs Kuriger and her counsel, Christopher Finlayson
QC, so she can outline her concerns to you directly. If you think it necessary to confirm Mrs
Kuriger’s concerns with her in writing, through her counsel, please do that.
17. Apart from meeting with Mrs Kuriger and Mr Finlayson, it is intended that this wil be a
desktop review. MPI staff wil however be available to assist you if you consider that would
be useful.
Report
18. You are requested to provide a draft report to Mr Martin for legal review before submitting
the final report. A draft report is requested by Friday 30 September 2022.
19. In making your report:
a. you should assume that the report itself may be made public;
b. all legal advice provided is released to you solely for the purpose of undertaking your
report, in order to provide me with your advice. However, the legal privilege applying to
all the legal advice must be protected and therefore you are to complete your report in
a way that does not quote or summarise the legal advice or refer to it in a way that
might be inconsistent with the privilege attaching to the legal advice.
19. Should you wish to provide privileged legal advice based on any material provided to you,
in relation to any matter covered by your report, this should be dealt with in a separate
letter which is subject to legal professional privilege.
20. Mr Martin is available to assist with access to documentation, or otherwise as required.
Dated at Wel ington this 26th day of August 2022
Ray Smith
Director-General
Ministry of Primary Industries
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