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Chapter 13 - Animals and Criminal Law

05 Oct 2017 - 12:27 | Version 1 |

Due to the fact that animals are classified as property, humans can be liable for crimes, such as theft, committed against animals. The crime however is committed against the owner of the animal, rather than the animal itself (see R v Buttle).

At the same time, humans can also be criminally liable for acts of cruelty perpetrated against animals, which is unlike most forms of property. This aspect of the criminal law is overwhelmingly established on the animal welfare paradigm. Yet, welfare laws do not apply in a consistent manner across the spectrum of animals. Hence the notion of 'cruelty' depends on the type of animal and the way he or she is treated. Accordingly, treatment that is consistent with industry codes of conduct may be carried out on animals used in food production, notwithstanding that the same treatment would be deemed an act of cruelty if carried out on a different animal. This is what commentators describe as a type of 'speciesism'.

Within criminal sentencing law, penalties for cruelty to animals are generally lenient This reflects a judicial perception that cruelty to animals is not as serious as other crimes. The cases of Richardson v RSPCA, Turner v Cole and Wood v Chute illustrate the range of punitive sanctions issued by courts.

13.1 Charlton v Crafter [1943] SAStRp 40; [1943] SASR 158

Prepared by Michael Croft

Court

Supreme Court of South Australia

Facts

Section 116 of the Criminal Law Consolidation Act 1935(SA) ('the Act') provided that:

any person who unlawfully and maliciously ... places poison in such a position as to be easily partaken of by any ... animal ... ordinarily kept ... for any domestic purpose shall be guilty of an offence punishable summarily.

Morgan, a pastry cook and caterer, encouraged the presence of cats near his property to provide protection against rats and mice. Charlton, the appellant, was the owner of the adjacent delicatessen and considered the cats a nuisance. He therefore put down strychnine baits where they were likely to be found by the cats. Charlton was convicted in the Court of summary jurisdiction and appealed to the Supreme Court of South Australia. He argued that the cats were not within the protection of the section, and that the poison had been laid in good faith for the protection of his property.

Issues
  • Whether the cats were protected by s 116 of the Act
  • Whether the conduct was unlawful and malicious
Decision and Reasons for the Decision

The Court found that the cats were protected by s 116 and that Charlton could not successfully argue that he was protecting his property as laying baits was not necessary in the circumstances.

Applicability of s 116

Napier CJ held that, as cats are "ordinarily kept...for [a] domestic purpose," they fell within the protection conferred by the section. While the cats were "less domesticated than...many of the species," the Court held that there was sufficient evidence to underpin a finding that they were owned and kept to serve one of the species' original purposes. The Court indicated that it would be adequate to "show that the poison was laid where it was likely to be taken by any domestic animal", and as such, the provision applied.

Unlawfulness and malice

Just as the destruction of another's property was "prima facie" unlawful, the laying of poisoned baits was similarly unlawful. However, to secure a conviction under s 116 of the Act, the prosecutor was required to establish the requisite mens rea; s 116 of the Act required the offence to have been committed maliciously, that is it must have been a "wrongful act, done intentionally, without just cause or excuse". Napier CJ cited authority to the effect that every property owner is entitled to use reasonable means of protecting their property against trespass. Accordingly, an individual would have "just cause" or "excuse" if they possessed an honest belief that what he or she did was necessary to protect his or her property. Further, a reasonable person would not consider the course of action to be necessary if he or she must have known that less drastic measures were available. The Court highlighted the distinction between an impulsive act, designed to fend off a trespasser, and the deliberate "act of laying a bait, for the very purpose of luring the animal on to [his or her] destruction". It was also relevant that the use of strychnine could not be considered "either swift or merciful," and that the s 116 was designed to prevent animal cruelty. Napier CJ noted that Charlton had alternative measures open to him, such as complaining to Morgan and concluded that Carlton could not successfully plead the defence. The appeal was accordingly dismissed.

Significance of the Case

This case provides an example of circumstances in which a proprietary interest in an animal took priority over a competing proprietary interest. In stating "[i]t is, prima facie, wrongful and 'unlawful' to destroy the property of another, and... the laying of poisoned baits is likewise wrongful', the Court indicated that the mischief s 116 sought to abate was the improper destruction of property. Notwithstanding this, a defence based upon an interest in the protection of one's property was unavailable as there were alternative courses of action which did not involve animal cruelty.

13.2 R v Buttle (1960) 60 SR (NSW) 320

Prepared by Vuu-Cindy Dang

Court

New South Wales Court of Criminal Appeal

Facts

Buttle, the defendant, was guiding his sheep along a highway when he became aware that a number of crossbred lambs had joined his flock. Despite knowing that these crossbred lambs were not his property, he drove all the sheep into his paddock. Later that day, Buttle killed and skinned two of the crossbred lambs. He was convicted of larceny and found to have trespassed. Buttle appealed.

Issues
  • Whether there was sufficient evidence to support the conviction of larceny
  • Whether the defendant had committed trespass in relation to the lambs
Decision and Reasons for the Decision

The findings pertaining to trespass and larceny were upheld.

Larceny

The Court rejected Buttle's argument that he had kept the lambs in his paddock to prevent them from straying.

Trespass

The driving of lambs who did not belong to Buttle into his paddock constituted a wrongful acquisition of possession of the lambs. The act was therefore a trespass against the true owner. Although the animals were in the physical presence of another flock, they nonetheless remained in the true owner's possession until Buttle acquired possession of the animals and appropriated them for his use. At this point in time, Buttle committed a trespass against the true owner and committed the offence of larceny. The Court held that the evidence relating to Buttle's conduct provided a sufficient basis upon which to conclude that he had intended to steal the sheep.

Significance of the Case

This case illustrates the law's longstanding characterisation of animals as property. Buttle's wrongful acquisition and destruction of the lambs was criminal because it amounted to an offence against property, rather than for any reason relating to animal welfare.

13.3 R v Menard (1979) 43 CCC(2d) 458 (Que CA)

Prepared by Michael Croft

Court

Quebec Court of Appeal

Facts

Menard operated an animal shelter, which had a policy of killing stray animals who were not claimed within three days. Such animals were placed in a small metallic chamber, which was then filled with carbon monoxide from a car engine. Although the animals normally died within two minutes, they would usually remain conscious for the first thirty seconds. The evidence indicated that the animals experienced pain, suffering and burns during this time. Further, it was possible to modify this process to eliminate such suffering without significant cost or difficulty. Menard was convicted of wilfully causing unnecessary pain and suffering to animals contrary to s 402(1)(a) of the Canadian Criminal Code ('the Code'). However, his conviction was overturned on appeal ('first appellate Court'), where it was held that the Crown had failed to establish proof of substantial suffering. The Crown appealed to the Quebec Court of Appeal.

Issues
  • Whether the first appellate Court misinterpreted the concept of "pain and suffering" as found in s 402 of the Code
  • Whether the first appellate Court was incorrect to conclude that s 402 of the Code required the "pain and suffering" to be substantial
  • Whether the first appellate Court had misinterpreted the concept of necessity as a defence
  • Whether Menard's conduct breached s 402 of the Code
Decision and Reasons for the Decision

The Court found that the pain and suffering caused by Mr Menard was unnecessary within the meaning of s 402 of the Code.

"Pain and suffering"

The primary judgement was handed down by Lamer JA, with whom Lajoie and Belanger JJA agreed. Lamer JA found that the Code's characterisation of cruelty aligned with Hawkins J's definition of the concept in Ford v Wiley (1889) 23 QBD 203. In that case, Hawkins J found that "To support a conviction then, two things must be proved -- first, that pain or suffering has been inflicted in fact. Secondly, that it was inflicted cruelly, that is, without necessity, or, in other words, without good reason."

The requirement that pain and suffering be substantial

Lamer JA inferred that the legislative intent was not to criminalise actions that caused "the least physical discomfort" to animals; however, the Court held that it was "to this extent, but no more, that one may speak of quantification". It was held that "the amount of pain is of no importance in itself from the moment it is inflicted wilfully... if it was done without necessity...and without justification, legal excuse or colour of right".

Necessity

Lamer JA reasoned that, in some circumstances, it may be necessary to subject an animal to suffering, either for the benefit of humans or the animal his or herself. For example, testing medicinal remedies, although involving significant pain for animals, is ultimately necessary. Lamer JA expressed that "[t]he animal is subordinate to nature and to man" and that "[i]t will often be in the interests of man to kill and mutilate wild or domestic animals, to subjugate them and, to this end, to tame them with all the painful consequences this may entail for them."

However, his honour also recognised that, as humans claim to be rational, the treatment of animals must "reflect... those virtues we seek to promote in our relations among humans." Accordingly, he interpreted the element of necessity as prohibiting the infliction of pain, suffering or injury which was not inevitable in the context of the purposes and circumstances of inflicting the pain. Relevant considerations were held to include "the social priorities, the means available and their accessibility."In expounding this principle, Lamer JA emphasised "the privileged position which man occupies in nature," and asserted that eating meat is justified by this privilege.

Breach of s 402 of The Code

Lamer JA considered that euthanising stray dogs may be necessary in some circumstances.Accordingly, that act could not be denounced in itself. However, in the present case, the pain and suffering experienced during the initial thirty seconds could have been avoided easily and without significant cost. Accordingly, it could not be considered inevitable, and Menard was therefore guilty of the offence. Lamer JA allowed the appeal, and restored the conviction.

Significance of the Case

This case is significant in the sense that the conclusion as to necessity was supported by a philosophical analysis concerning the relative superiority of humans to animals. The Court emphasised the way in which there were limits upon the way in which humans could treat animals, and that excessive cruelty would be unacceptable. Nonetheless, the reasoning in the case entrenches the subordination of animal interests to valid human purposes; where the purpose for exploiting or harming animals is legitimate, the suffering inflicted may be deemed legitimate as well. In this case, the conduct was not unlawful by virtue of the inviolability of animals; rather it was unlawful as it was unnecessary.

13.4 Wood v Chute [1993] NTSC 7; (1993) 111 FLR 420

Prepared by Matthew Jones

Court

Supreme Court of the Northern Territory of Australia

Facts

On 4 August 1992, Wood, the appellant, committed an act of bestiality on a female dog by having sexual intercourse with her. The offender was in a communal area and in full view of a number of flats. The activity lasted several minutes until a bystander observed the conduct and called the police. Wood was then arrested.

The Alice Springs Court of Summary Jurisdiction found the offender guilty of having carnal knowledge with an animal under s 138 of the Criminal Code (NT) and sentenced him to fourteen days imprisonment. Wood appealed the decision.

Issues
  • Whether the sentence wasmanifestly excessive in light of the general and special deterrent principles of sentencing
  • Whether the Magistrate failed to sufficiently consider whether the offence called for imprisonment
Decision and Reasons for the Decision

The appeal was dismissed.

Whether the sentence was manifestly excessive

Wood argued that since he was a chronic alcoholic he should be judged independently from the general community, such that the need for the sentence imposed to have a general deterrent effect was not relevant. The Court rejected this proposition, highlighting its awareness that "a very substantial proportion of offences dealt with by the court are committed by persons under the influence of intoxicating liquor often in combination with medication or other drugs." The Court also adverted to the way in which many members of the general community become intoxicated and do not commit offences. However, the Court did agree that general deterrence was not a significant factor in determining an appropriate sentence since the offence was not a prevalent one. Rather, the Court observed that the Magistrate had "placed particular emphasis on the fact that the act was committed in an open area, near a block of flats, in broad daylight and... [was] observed by a number of children..."

Wood's counsel also argued that because of Wood's alcoholism, instead of imposing a period of imprisonment, the Magistrate should have made attempts to pursue rehabilitation options available in Alice Springs. The Court held that the Magistrate did not err in failing to consider the alternative option of rehabilitation. The Court noted that this avenue was not raised by Wood's counsel in the Court of Summary Jurisdiction. On the contrary, Wood's counsel had stated that rehabilitation was not required in Wood's circumstances, arguing that his criminal record did not suggest that he was likely to re-commit this offence.

Assessment of the severity of the offence

On the second ground of appeal, Wood claimed that the Magistrate failed adequately to explain why he found the act so offensive. Wood's counsel referred to cases involving sexual offences on young girls, in which the offenders were give wholly suspended sentences. It was argued for Wood that the community would find the offences in these cases to be more repugnant than the one involved in the present case.

However, the context of this case invalidated this argument; the female who witnessed the act immediately called the police. Assuming the witness to be a reasonable community member, the Court was satisfied that her views could be taken to encompass the views of the community at large, such that the act was one capable of evoking significant public outrage. The Court considered the overall circumstances of the case, including the social, cultural and environmental factors and other means of punishment and held that the Magistrate's sentence was an appropriate penalty to deter Wood from committing the offence again.

Significance of the Case

This case deals with conduct which is rarely brought before the courts. Significantly, the Court rejected Wood's submission that the sexual assault of a female by a male was necessarily more repugnant and outrageous to the community than the act of sexual intercourse with a dog, and that therefore, a custodial sentence for the latter was inappropriate. Although the Court did suggest that the authorities dealing with sexual assault relied upon by Wood in making this argument were "not necessarily indictors of the sentences given generally for such offences", the judgment reflects a shift away from the assumption that the mistreatment of animals is inherently and inevitably less severe than the mistreatment of humans. However, it should be noted that the circumstances in which the conduct occurred, namely in public and in the presence of children, were influential upon the decision of the Magistrate.

13.5 Mason v Tritton and Another (1994) 34 NSWLR 572

Prepared by Alysha Byrne

Court

New South Wales Court of Appeal

Facts

On 9 October 1991, Mason, the defendant, who was a member of the Aboriginal community, was charged under the Fisheries and Oyster Farms (General) Regulation 1989 (NSW) ('the Regulation') for the possession of 92 abalone. This number exceeded the permitted quantity under s 34(1)(c) of the Regulation. The Regulation provided that it was "an offence for a person to shuck abalone adjacent to ocean water, and, without a permit or licence, to have more than ten abalone in possession."The Regulation sought to prohibit any person from selling abalone to a commercial market without a permit.

The case was initially heard by a Magistrate in the Local Court, Mason unsuccessfully arguing that he had a native title right to take the abalone from waters on the South Coast of New South Wales. Mason's argument failed because he did not adduce evidence that demonstrated how his activities fell within the scope of a native title right.

Mason then appealed to the Supreme Court of New South Wales where Young J rejected his arguments. Young J determined that an Aboriginal's right to fish was not considered a land right, and thus Mabo v State of Queensland (No 2) (1992) 175 CLR 1 ('Mabo')was of no relevant application. Furthermore, his Honour found that there was insufficient evidence for Mason to establish his biological descent from the Aboriginal Australians who had a customary right to fish in the specific waters.

Issues
  • Whether the right to fish could constitute a native title right
  • Whether Mason established that he conducted the fishing activities in accordance with a native title right
  • Whether The Regulation operated to extinguish any native title right
Decision and Reasons for the Decision

Gleeson CJ, Kirby P and Priestley JA determined that Mason's appeal should be dismissed.

The right to fish as a native title right

Gleeson CJ stated that to establish that he was not bound by the Regulation, Mason was required to prove that he was a member "of a class who [had] exercised some form of right pursuant to a system of rules recognised by the common law". To achieve this, it was first necessary for Mason to "give content to those rules". Gleeson CJ held that Mason failed to do this.

Priestley JA recognised that s 223 of the Native Title Act 1993 (Cth) "put beyond doubt the inclusion of hunting, gathering or fishing rights and interests within the meaning of native title". However, Priestley JA held that there was nothing in the evidence to demonstrate that Mason "was biologically descended from any Aboriginal group dating back to just before the establishment of the common law which observed a system of rules relating to either fishing generally or to abalone in particular on any specific part of the New South Wales South Coast."

Kirby P recognised that under the common law there may a customary right of Aboriginal Australians to fish. To establish such a right, Kirby P referred to the reasoning of Brennan J in Mabo, which affirmed that a native title right would only exist when a group of indigenous peoples have "a connexion with the land." Kirby P determined that such a connexion with the land is a question of fact, and thus it is incumbent on the appellant to prove such a relationship.

To dispel Young J's belief that the right to fish was not a land right, Kirby P characterised it as a usufructuary right, entitling Aboriginal Australians to use and take the benefit of land belonging to another without any proprietary interest in that land. Brennan J noted in Mabo that such a usufructuary right, which is not proprietary in nature, is no impediment to the recognition of native title. Therefore, Kirby P accepted the Mason's argument that fishing rights fell within the meaning of "connexion with" the land.

To prove a "connexion with" the land, Kirby P drew upon the decision of Brennan J in Mabo.At common law, a person claiming the native title right must bring evidence that he/she is a biological descendant of the indigenous clan that has continuously fished in the particular lands. It was held that Mason successfully proved that he was of Aboriginal descent, and that his clan traditionally fished abalone as a source of food, which had been maintained over a substantial period of time.

Mason's conduct as an exercise of that right

Gleeson CJ stated that in addition to giving "content to those rules" Mason claimed comprised his native title right, he was required to "bring himself and his activities within their scope". According to Gleeson CJ, Mason had failed to satisfy this requirement. His Honour drew attention to the fact that Mason had failed to establish that any native title right extended to the fishing of a commercial quantity of abalone.

Similarly Priestley JA found that Mason had not established that he had engaged in the fishing activities in accordance with the claimed native title right. His Honour identified a "complete absence of evidence... that in diving for abalone... [Mason] was doing so either in the assertion of or pursuant to a system of rules which he recognised and adhered to".

Kirby P found that Mason failed to provide sufficient evidence that at the time he caught the abalone, he was exercising his native title right to fish, rather than fishing for a commercial purpose. Kirby P further noted that had Mason provided such evidence he would have been entitled to relief.

Extinguishment of any right

As obiter, Kirby P addressed the third issue and stated that native title might only be extinguished by a regulation when it expressly excludes a use that comprises the native title claim. As the regulation in question did not reveal a "clear and plain intention"to extinguish the native title right to fish, according to Kirby P, Mason would have been successful if he could have shown that he was exercising a native title right.

Significance of the Case

This case acknowledged that in certain circumstances, a native title right to fish may be invoked to circumvent regulations prohibiting fishing. However, in order to establish such a right, a person must provide evidence of their Aboriginal descent and a system of customary rules involving a continuous use of the land to fish. In addition, a claimant must prove that the fishing activities were engaged in pursuant to that customary right. See also the later decision of Yanner v Eaton (1999) 201 CLR 351 set out in this book.

13.6 Sutton v Derschaw & Ors (1995) 82 A Crim R 318

Prepared by Antonia Quinlivan

Court

Supreme Court of Western Australia

Facts

Derschaw, Murphy and Clifton, the respondents, were each charged with being in possession of fish caught in contravention of s 12(1)(d) of the Fisheries Act 1905 (WA) ('the Act'). Under s 9(1) of the Act, a notice had been issued which prohibited all unspecified persons from fishing in an area known as Six Mile Creek located near Port Hedland in the Pilbara Region of Western Australia. Section 56(1) of the Act permitted people of Aboriginal descent to take fish for personal purposes, subject to s 9 and other sections.

At first instance, the Magistrate dismissed the charges on the basis that Derschaw, Murphy and Clifton were acting in pursuit of a native title right to fish in the area which had not been extinguished by The Act and that accordingly, the notice did not apply to them.

The Crown appealed.

Issues
  • Whether Derschaw, Murphy and Clifton held a native title right to fish in the area
  • Whether the fishing was conducted in the exercise of any such right or as an activity lacking the support of such a right
  • Whether Derschaw, Murphy and Clifton discharged their evidential burden upon them to raise a doubt about their guilt
Decision and Reasons for the Decision

Hennan J upheld the appeal.

In upholding the appeal, his Honour found that the evidence adduced by the respondents did not support the existence of a native title right to fish.

The presence of a native title right to fish

Heenan J approved of comments made by Gleeson CJ in Mason v Tritton (1994)34 NSWLR 572 ('Mason'):

Fishing is an activity which is so natural... that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.

His Honour also adopted the view expressed by Kirby P in Mason that a 'right to fish' based upon traditional laws and customs could be a recognisable form of native title defended by the common law of Australia where the principles established in Mabo & Ors v Queensland (No 2) (1992) 175 CLR 1 were satisfied. Heenan J also referred to Kirby P's statement of the requirements of a native title claim as expressed in Mason, indicating that before an individual may claim a native title right to fish the claimant must adduce evidence that:
  • "Traditional laws and customs, including the right to fish, were enjoyed by an Aboriginal community over the area in question immediately before the Crown claimed sovereignty;
  • The claimant was a biological descendant of the original Aboriginal community;
  • The claimant and his or her intermediate descendants had continued to observe the relevant laws and customs; and
  • The claimant's activity in fishing for the fish in question was an exercise of those traditional laws and customs"
While the evidence demonstrated that certain Aboriginal communities in the Port Hedland area probably had a right to fish in the waters of Six Mile Creek and that Derschaw, Clifton and Murphy were likely to be descendants of those communities, the evidence did not "show the extent of the right". The evidence also failed to establish who could exercise the right, whether it was restricted by season, time or frequency, how it came to be established, whether it was subject to rules.

The conduct as an exercise of any native title right

Heenan J rejected the claim that the fishing was an exercise of a native title right, holding that "the evidence does not show that the netting of mullet... on the afternoon in question was an exercise of traditional laws and customs bearing upon the right." It was observed that Derschaw, Murphy and Clifton "were not fishing for, or as members of, any particular original Aboriginal community... They were fishing for a multitude of people, many of whom did not live in the area."

Discharging the evidential burden

Heenan J concluded that "there was no evidence... to raise a reasonable doubt as to whether the notice applied to" Derschaw, Murphy and Clifton. As such, they had failed to discharge the evidential onus on them to raise a doubt as to their guilt for contravening the notice.

Significance of the Case

Although regulations prohibiting fishing in a particular region could not be circumvented by a claim to native title fishing rights in this case, it nonetheless contemplated that there may be scope for the invocation of such native title rights for this purpose. It entertained the notion that native title rights can provide a defence to criminal breaches of State fishing laws. It is important to note that s 211 of the Native Title Act 1993 (Cth) now provides a level of exemption for non-commercial fishing pursuant to native title rights.

13.7 Holland v Crisafulli [1999] 2 Qd R 249

Prepared by Matthew Jones

Court

Supreme Court of Queensland

Facts

On 2 July 1997, a dog entered a residence, turned over a cage and attacked and killed a guinea pig who was inside the cage. Brisbane City Council ('The Council') declared the dog "dangerous" pursuant to s 33(i)(b) of the Dog Registration and Control Ordinance 1984 (Qld) ('the Ordinance').

Holland, the applicant, took the issue to court on the basis that there was "no evidence to justify the making of the decision" (Judicial Review Act 1991 (Qld) s 20(2)(h)).

Issues
  • Whether there was evidence upon which The Council could declare the dog dangerous
Decision and Reasons for the Decision

The Court held that the classification of the dog as "dangerous" was appropriately made.

The Ordinance classified dogs according to three groups:
  • General Dogs;
  • Prescribed Dogs - whose entire breed are deemed dangerous (for example greyhounds); and
  • Dangerous Dogs - who are determined to be dangerous on a case by case basis by the relevant council.
The Court noted that "the description of a dog as 'dangerous' or 'ferocious' relates to its nature or disposition".

Holland argued on the basis of the English decision of Sansom v Chief Constable of Kent [1981] Crim LR 617,with respect to the propensities of dogs to chase other animals. In that case, a dog was found not to be dangerous even though he or she entered a neighbour's premises, opened a rabbit cage and killed two tame rabbits. In that case, the Court held "that it was in the nature of dogs to chase, wound and kill other little animals; that wild rabbits were game; that it was lot to ask a dog to distinguish a tame from a wild rabbit or to distinguish [his or her] colour". Holland further argued that rabbits were similar to guinea pigs and that her dog was only exhibiting natural, rather than dangerous, behaviour when he or she wounded and killed the smaller animal.

The Court, did not accept any "logical distinction between a dog's propensity to pursue animals such as sheep and its propensity to pursue other animals such as guinea pigs". The Court held that the size of the prey is irrelevant in determining whether a dog is dangerous or whether the species of animal is of a type normally pursued by a dog. Further, the Ordinance imposed an obligation upon an owner of a dangerous dog to keep the dog under proper control by ensuring that, when in public, he or she was fitted with a muzzle so as to prevent him or her from biting "any person or animal". The definition of "animal" was deemed "inclusive"; despite the exclusion of undomesticated birds from the class of animals upon which The Ordinance sought to confer protection, the Court identified "no reason to distinguish between four-legged animals according to whether they are of a type which dogs normally pursue or whether they are wild or tame."

The Court therefore held that there was sufficient evidence to satisfy the Council officers orders that the dog be classified as "dangerous".

Significance of decision

This case supports the view that dogs are dangerous if they have the tendency to wound, attack, harm or kill either another animal or a human, regardless of whether the animal attacked is small, tame or even wild, and regardless of whether the dog has a higher tendency to pursue these smaller animals. Significantly, this is one decision in which the Court eschewed an approach to animal protection on the basis of species; the size of guinea pigs was irrelevant to the consequence of their destruction for the purposes of characterising the dog as dangerous.

13.8 Yanner v Eaton (1999) 201 CLR 351

Prepared by Thuy Hoai Anh Nguyen

Court

High Court of Australia

Facts

Between 31 October and 1 December 1994, Yanner, the appellant, a member of the Gunmulla clan of the Gangalidda tribe, killed two juvenile estuarine crocodiles, using a traditional harpoon, ate a portion of the kill, froze the rest of the meat and the skins of the crocodiles and kept them at his home.

Section 54(1)(a) of the Fauna Conservation Act 1974(Qld) ('The Fauna Act') stipulated:

A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act.

Yanner did not hold a licence, permit, certificate or other authority granted and issued under the Fauna Act. He was charged in the Magistrates Court of Queensland with one count of taking fauna in breach of the Fauna Act.

Yanner argued that s 211 of the Native Title Act 1993(Cth) (Native Title Act) applied, which permitted native title holders to engage in fishing activities (which would otherwise be prohibited), where they do so in order to satisfy their personal, domestic or non-commercial communal needs and exercise or enjoy their native title rights and interests.

The Magistrate found that Yanner's clan had a connection with the area in which the crocodiles were taken. This connection was found to have existed prior to the introduction of the common law in Queensland and to have continued after this time. The Magistrate further found that it was a traditional custom of the clan to hunt juvenile crocodiles.

This argument was accepted by the Magistrate, but subsequently overturned by the Queensland Court of Appeal. Following a grant of special leave, the appellant appealed to the High Court.

Issues
  • Whether Yanner held a native title right
  • Whether The Fauna Act conferred full beneficial ownership of the crocodiles in the Crown
  • Whether The Fauna Act extinguished any native title right
Decision and Reasons for the Decision

A majority of the High Court, Gleeson CJ, Gaudron, Kirby and Hayne JJ, as well as Gummow J in a separate opinion, allowed the appeal.

The exercise of a native title right

According to Gleeson CJ, Gaudron, Kirby and Hayne JJ "The hunting and fishing rights and interests upon which the appellant relied...were rights and interests "possessed under the traditional laws acknowledged, and the traditional customs observed", by the clan and tribe of which the appellant was a member". As such, those "rights and interests were recognised by the common law of Australia".

Gummow J held that the killing of estuarine crocodiles was a "class of activity" within the meaning of s 211 of the Native Title Act and that the rights were recognized by the common law.

Full beneficial ownership

Gleeson CJ, Gaudron, Kirby and Hayne JJ identified that "[b]ecause 'property' is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter." However, Their Honours rejected the argument that The Fauna Act conferred the Crown with full beneficial ownership over the animals for four reasons: first, it was difficult to identify which fauna is owned by the Crown; second, The Act vested limited rights in the Crown in respect of the animals, who were "to remain outside the possession of, and beyond disposition by, humans"; third, The Act itself suggested that the property rights it conferred could not be equated with the property individuals have in domestic animals and; fourth, it was possible that The Act conferred such rights "as a necessary step in creating a royalty system".

In His Honour's judgment, Gummow J made some observations about the common law's treatment of animals as the object of property rights:

The common law divides animals into two categories, harmless or domestic (mansuetae naturae) and those which are dangerous or wild by nature (ferae naturae). The distinction is significant. Ferae naturae, such as estuarine crocodiles which are dangerous and wild by nature, are reduced to property at common law when killed or for so long as they have been taken or tamed by the person claiming title... Further, the owner of a fee simple, who has not licensed the right to hunt, take or kill ferae naturae, has a qualified property ratione soli in them for the time being while they are on that owner's land. In contrast, mansuetae naturae found on a fee simple are owned by the landowner.

Gummow J held that the "the legal relations, described in s 7 as the 'vesting' of 'property', arise only if a person 'takes' or 'keeps' 'fauna'", that is, that the Crown would only come to own the animal when a person took or kept him or her. His Honour held that such rights were "limited to those which may have arisen, ... first by way of royalty and, secondly, by penalty exacted from a person who contravened the statutory proscriptions supporting the royalty regime", these being the relevant statutory interests.

McHugh J found that nothing in the Fauna Act indicated that the Crown should take a more limited form of property than that which the concept ordinarily denotes. Accordingly, his Honour found that "The section gives to the Crown every right, power, privilege and benefit that does or will exist in respect of fauna together with the right, subject to the Act, to exclude every other person from enjoying those rights, powers, privileges and benefits. That is the ordinary meaning of property..."

Callinan J held that the scheme of the Fauna Act evinced an intention that the legislature should have "absolute property" in all fauna to whom the legislation applied.

Extinguishment

Gleeson CJ, Gaudron, Kirby and Hayne JJ held that the Fauna Act did not extinguish Yanner's native title interest. It was observed that "regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence." Their Honours found this conclusion supported by s 211 of the Native Title Act, which "necessarily" assumed that this kind of prohibition did "not affect the existence of the native title rights and interests in relation to which the activity is pursued." Accordingly, by virtue of s 211(2) of the Native Title Act and s 109 of the Constitution, Yanner could continue hunting or fishing for crocodiles for "the purpose of satisfying personal, domestic or non-commercial communal needs" notwithstanding the restriction.

Gummow J held that the regulation of hunting inhering in the Fauna Act's requirement that Indigenous persons obtain licenses in order to hunt "did not abrogate the native title right." On the contrary, the regulation was consistent with the continuity of that right.

McHugh J held that the legislation precluded Yanner's reliance on a native title act to hunt the crocodiles;

By declaring that the property in fauna in Queensland is vested in the Crown and then in subsequent sections defining the circumstances in which others may take that property, the Act proclaimed upon its commencement that henceforth no one, land owner, Aboriginal or holder of a grant from the Crown, had any right to kill, take or appropriate fauna as defined.

Callinan J held that, owing to a "direct collision between the custom or right claimed here, of taking and eating crocodiles, and the ownership of them by the State of Queensland", the former had been extinguished by the Fauna Act.

Significance of the Case

This case illustrates the common conflict between human cultural or spiritual interests in exploiting animals and environmental or welfare based animal protection interests. Where the former are recognised by Commonwealth legislation and the latter by State legislation, by virtue of s 109 of the Constitution, the former will prevail.

The case also highlights the difference between proprietary interests in domestic and wild animals. The former can be subject to absolute ownership whilst the latter, are only capable of qualified ownership and limited property rights.

13.9 Brayshaw v Liosatos and Brayshaw v Liosatos [2001] ACTSC 2

Prepared by Christopher McGrath

Court

Supreme Court of the ACT

Facts

Thomas and David Brayshaw, the appellants, owned a property in an area that had been experiencing drought conditions for several years. Over one hundred head of cattle lived on the property, although the exact number fluctuated from time to time as cattle from the adjacent national park would often wander onto the property and other cattle would leave the property, venturing into the national park.

After receiving a report that the cattle were "weak and sick in nature,"a senior veterinary officer attended the property. After several visits, the veterinary officer gave an account of the welfare of the cattle, which included percentages of Body Score Condition (BSC), as well as references to visible signs of disease and the poor health of the calves. During his visits, the senior veterinary officer advised the Brayshaws that they should provide supplementary food and drench the cattle or otherwise remove the cattle from the land. On a return visit in August 1998, the senior veterinary officer found a dead calf who had suffered liver fluke infestation, which could have contributed to his or her death.

The RSPCA attended the property and upon inspection of the cattle, assumed responsibility for their welfare, although they were not removed. The Brayshaws were then charged pursuant to s 8 of the Animal Welfare Act 1992 (ACT) ('The Act') for being persons in charge of the cattle who had both neglected them in a way that caused them pain and failed to provide them with adequate food.

As a defence to these charges, the Brayshaws gave evidence suggesting that the cattle were in "light condition ... but strong"and that they had provided supplementary feed to the cattle in the form of hay bales containing oats. They also argued that the 132 head of cattle were drenched in April 1998 but that an influx of feral cattle made it impossible to determine which animals had been drenched.

At first instance, the magistrate found that the defendants' failure to take sufficient steps to feed or drench the cattle, or to remove them from the land, resulted in their poor condition. The Brayshaws were therefore guilty of both charges. They appealed.

Issues
  • Whether the Magistrate had failed to take into account certain evidence
  • Whether the Brayshaws had disputed ownership of the cattle
  • Whether the charge of failing to provide adequate feed had been made out
  • Whether the charge of neglect had been made out
Decision and Reasons for the Decision

On appeal, Higgins J found that the magistrate had made several errors.

Evidence

Higgins J held that the Magistrate had incorrectly interpreted the evidence of Dr Andrews. That evidence suggested that "Malnutrition will cause breakdown of body tissues but it is only if that process is prolonged beyond the use of available reserves of body fat that the condition becomes terminal and hence causes suffering to the affected animal".

Similarly, Higgins J found that the Magistrate had misconstrued the evidence given by Dr Hayes; on a proper construction, this suggested that the weight loss would not necessarily have caused the cattle any pain.

Further, the Magistrate's findings failed to make any reference to the Brayshaws' evidence:

that all available cattle had been drenched in April, that cattle had been provided with supplementary feed since May and that there was no evidence that the few cattle found to have been in a terminal or dangerously weak state, as opposed to merely being under nourished, were animals of which the appellants had ever been in charge.

Ownership

Higgins J found that her Worship had erroneously assumed that because the Brayshaws were the owners of the property, they had assumed responsibility for any feral cattle that grazed on it and were therefore "persons in charge" of the feral cattle. The Court observed:

Insofar as feral cattle were incidentally drenched and fed that did not necessarily involve an assumption of control. Only if the appellants took possession of such cattle, for example by removing them to another property, by removing them for sale or branding or marking them as theirs, would they thereafter be responsible for their welfare. In other words, it would only be if they took possession of such cattle so as to treat them as their own that the appellants could be said relevantly to have become the owners of such cattle.

Higgins J referred to evidence that some of the cattle had been drenched and some had been adequately fed. It was therefore concluded that unless the proportion of cattle that was neglected or inadequately fed was so great as to exclude the possibility that the neglected cattle were stray cattle for whom the Brayshaws were not in charge, it could not be proven beyond a reasonable doubt that the Brayshaws' cattle had been neglected or inadequately fed.

Failure to provide adequate feed

Higgins J was satisfied that the Brayshaws had a responsibility to provide supplementary feed to the cattle, but only to an "adequate" not "optimum" standard. It was also held that Brayshaws had a duty to take reasonable steps to provide supplementary feed. However, there were "practical weaknesses" to this; the stray cattle not belonging to the Brayshaws likely accessed it and some of the Brayshaws cattle simply ignored it. Higgins J found that inadequate feeding could only have been established if the Brayshaws' evidence that they provided supplementary feed was false, or if the amount of feed was so insufficient that the Brayshaws' cattle "would not survive the winter save in such a state as they would need to be put down to end their suffering". The Court found that such a conclusion was not available.

Neglect

Higgins J identified that it was undisputed that the animals had been drenched. As such, the fact that the animals suffered live fluke infestation could only have been attributed to the Brayshaws' neglect of the animals if a need arose for a further drenching. Higgins J noted that the expert evidence indicated that after the first drenching the condition of the calves was "acceptable" and that no animals were suffering from liver fluke. As such, it could not be concluded that a failure to subsequently drench was "so imprudent as to constitute neglect". While the lack of method involved in the drenching process may have been that some cattle escaped the drenching and became infested with liver fluke, there was nothing in the evidence to demonstrate that any animal belonging to the Brayshaws had an adverse effect from liver fluke. Therefore, although the drenching "was not done as methodically as it might have been, there was no evidence that any such failure caused 'pain' from liver fluke infestation in any animal belonging to the [Brayshaws]". Higgins J emphasized that this was not a case involving reasonable excuse as a defence to neglect, as neglect had not been made out.

Significance of the Case

Higgins J reinforced that the purpose of the Act is to impose a minimum standard that animal owners must comply with, rather than an obligation to keep animals in an ideal condition.

In addition, the case suggests that even though landowners are aware that stray animals enter their land and mingle with their own livestock, that they will not, without something more, be treated as "persons in charge" of those animals. Indeed, the RSPCA was justified in drenching all animals for liver fluke; however, it assumes a "wider duty of care to animals".

13.10 Joyce v Visser [2001] TASSC 116

Prepared by Alysha Byrne

Court

Supreme Court of Tasmania

Facts

On 12July 1999, Constables Williams, Tyson and Lucas entered the property of Joyce, the appellant, at Evandale with an RSPCA officer. Joyce was not present. On the property they located four dogs who were all chained by the neck. One of the dogs appeared to be dead. Constable Williams noted that there was no evidence of food or water for the dogs and that the area where they were kept was in a very poor condition.

A veterinary pathologist and a veterinary surgeon examined the four dogs. The pathologist found that the deceased dog was emaciated. The dog's stomach was empty with evidence only of bile, mucus and pieces of grass. The pathologist concluded that the likely cause of death was emaciation; it would have taken weeks for the dog to reach this condition. The surgeon examined the remaining three dogs concluding that they were also emaciated and suffering from a moderate to heavy flea burden. It would have taken at least one month for the dogs to reach such a state.

Joyce was consequently charged under ss 7, 8 and 9 of the Animal Welfare Act 1993 (Tas), with eight charges relating to the animals under his care. Under s 7, Joyce was charged with having the care of animals and using a method of management, which likely resulted in unreasonable and unjustifiable pain and suffering. Under s 8, he was charged with omitting to do a duty, which caused unreasonable and unjustifiable pain and suffering to the animals. Under s 9, he was charged with omitting to do a duty, which resulted in the death of the animal.

The case was initially heard in a Court of Petty Sessions, and the Magistrate found all eight charges proved against the Joyce. He was sentenced to three months' imprisonment, and prohibited for a period of 10 years from having the care or charge of any domestic animals. Joyce appealed.

Issues
  • Whether the Magistrate provided sufficient reasons for his Worship's decision
  • Whether the Magistrate's finding was unsafe and unsatisfactory, given Joyce's psychiatric condition
  • Whether the penalty imposed was excessive
Decision and Reasons for the Decision

Crawford J set aside the judgment, and decided to re-sentence Joyce after review of the case.

Adequacy of reasons for decision

Crawford J dismissed Joyce's claim that the Magistrate did not provide sufficient reasons for his decision. The Magistrate noted that the evidence against Joyce was overwhelming, and did not support Joyce's defence that he did not have the care, possession or custody of the dogs.

Crawford J referred to the evidence put forward by Constable Williams. Constable Williams recalled Joyce arriving at the property, whereby he claimed that the dogs belonged to him, that he had allegedly run out of dog food and that he had been feeding the dogs food scraps. In relation to the deceased dog, Joyce indicated that he knew the dog had died "a day or two or three before."In addition, the landlord of the property gave evidence that he was unaware of anyone, other than Joyce, caring for the dogs. Joyce's wife also told the Court that she had previously asked the appellant to put the dogs in a home, but he declined to do so, claiming that he wanted to keep the dogs. Accordingly, both Crawford J and the magistrate found that Joyce was in the care and charge of the animals.

Satisfactoriness of the decision

Crawford J also dismissed Joyce's submission that the Magistrate's finding was unsafe and unsatisfactory. Counsel for Joyce argued that before the Magistrate convicted Joyce, Joyce should have been psychiatrically assessed. However, Joyce did not make such a submission prior to the complaint being proved on the evidence. Thus, Crawford J concluded that the Magistrate was justified in his findings.

Penalty

Joyce also argued that the penalty imposed by the Magistrate was manifestly excessive. Joyce's counsel put forward that Joyce was 52 years of age and had his nine-year son living with him. He was on the pension, had no prior convictions and had received limited schooling. The Magistrate found that despite these mitigating factors, the case deserved the application of a deterrent penalty, to demonstrate the law's intolerance of cruelty to animals. Crawford J agreed that the treatment of the animals was serious, observing that Joyce's "neglect of them was extremely cruel and uncaring". Notwithstanding this, his Honour determined that the penalty imposed was too severe in the circumstances. He stated that the Magistrate should have taken into account the absence of prior convictions and lack of substantial education. Crawford J adjourned the case to re-sentence Joyce, suggesting that "[a] short period of imprisonment, up to one month in all, would not have offended principle but I think three months did so". The subsequent sentencing decision does not appear to be reported.

Significance of the Case

This case demonstrates the breadth of the concept "care, possession or control" of an animal by a person. It also examined the reasonableness of convictions, and the need to take into account mitigating factors. However, in finding the original penalty too severe, it calls into question whether penalties in animal cruelty cases are too lenient. Notably, Crawford J identified that although this was one of the "worst cases of animal cruelty" to have come before the Magistrate, "it is not difficult to imagine worse cases involving deliberate acts of cruelty to animals, such as deliberate and extreme violence or torture". This factor, amongst others, impelled Crawford J to recommend that three months was an excessive penalty, suggesting that the law's conceptualisation of the severity of animal cruelty is contextualised according to the worst kinds of mistreatment, rather than to the suffering experienced by the animal in question.

13.11 Pearson v Janlin Circuses Pty Ltd [2002] NSWSC 1118

Antonia Quinlivan

Court

Supreme Court of New South Wales

Facts

Animal Liberation, the appellant, took action against Stardust Circus, the respondent, in relation to the treatment of one of their elephants. The elephant had been deprived of contact with other elephants for several years.In 2000, the circus authorised three elephants to be kept in close proximity to the elephant in question for a number of hours. The three elephants were then removed.It was argued that as a result of this act, the elephant was unreasonably, unnecessarily or unjustifiably abused, tormented, infuriated or inflicted with pain in contravention of s 5(2) of the Prevention of Cruelty to Animals Act 1979(NSW) ('the Act').

At first instance, the trial judge found that Stardust Circus required intent and knowledge that an act would be cruel for it to be recognised as such under The Act; no act of cruelty was established due to a lack of mens rea.On appeal to the Supreme Court of New South Wales, it was determined that mens rea was not an element of a cruelty offence under the Act.

Issues
  • Whether the offence in s 5(2) of the Act was one of strict liability
Decision and Reasons for the Decision

Windeyer J allowed the appeal, setting aside the decision of the Magistrate and remitting the matter to the Magistrate to be reheard according to law.

Windeyer J relied on the Supreme Court decision of Dowd J in Bell v Gunter (Unreported, Supreme Court of NSW, Dowd J, 24 October 1997)('Bell') involving a prosecution for aggravated cruelty under s 6(1) of the Act. Bell was decided under s 6(1) of the Act, however, the reasoning was also applicable to offences under ss 5(1) and 5(2).

According to s 5(2) of the Act, "[a] person in charge of an animal shall not authorise the commission of an act of cruelty upon the animal."

Dowd J in Bell v Gunter relied on the second category of offences enumerated by Gibbs CJ in the High Court case of He Kaw The v The Queen [1985] HCA 43; (1985) 157 CLR 523. This category included offences which were not absolute, though were such that the legislative intention clearly excluded a requirement of mens rea to prove the offence. The doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. Dowd J ruled that a charge of aggravated cruelty falls into the second category of offences, and as such is one of strict liability. His Honour held,

The offences created, in my view, are created with the purposeful legislative intention of protecting animals, in most cases totally unable to protect themselves from a range of activities which contemplate certain circumstances in which the court would have to evaluate whether reasonable steps have been taken...the offences are such that the legislative intention seems clearly not to require a component of mens rea in the proof of the offence

Stardust Circus's notice of contention also failed. It claimed that as any infliction of pain occurred on the taking away of the elephants, which it did not authorise. However, the Court held that Stardust Circus authorised the entry of the entity which removed the elephants, and by extension, the authority to leave the property. Thus, the original authority given to the removing entity implied permission for the subsequent action, or assumed that it would take place.

Significance of the Case

This case clearly establishes that cruelty is an offence of strict liability. As such, mens rea, including intention or recklessness, is not a requirement of the offence.

13.12 Song v Coddington & The Attorney General for the Commonwealth Intervening [2003] NSWSC 1196

Prepared by Alexandra Jackson

Court

Supreme Court of New South Wales

Facts

On 25 April 2011, a consignment of 1,137 live goats was due to depart Sydney International Airport on a cargo flight bound for Abu Dhabi in the United Arab Emirates. The transport of live goats internationally from Australia required an export permit which could be granted by an authorised officer. Song, the plaintiff, was a veterinary officer employed by the Australian Quarantine Inspection Service and was an authorised officer for the purposes of granting export permits. Song examined the goats at Sydney International Airport after they had been loaded into eight, three-tiered wooden crates for air transport. He then issued the relevant export permit and signed a Certificate of Health for the goats.

Once the crates had been loaded onto the aircraft, RSPCA officers, including Coddington, the defendant, conducted an inspection of the goats, which revealed that they were overcrowded and that many of the animals could not stand upright in the crates without their horns or bodies touching the top of the crate.

Various persons associated with the proposed export were prosecuted for offences under the Prevention of Cruelty to Animals (General) Regulation 1996 (NSW) ('The Regulation'). Song was convicted of some eight offences, each under clause 5(1) of the Regulation which provides:

A person must not:
a) carry or convey a large stock animal in a cage or vehicle, or
b) being a person in charge of a large stock animal, authorise the carriage or conveyance of the animal in a cage or vehicle,

unless the cage or vehicle is of a height that allows the animal to stand upright without any part of the animal coming into contact with the roof, ceiling or cover of the cage or vehicle.

In this clause, a reference to a large stock animal is a reference to an animal that belongs to the class of animals comprising cattle, horses, sheep, goats, pigs and deer.

Song appealed against his conviction on the grounds that clause 5(1) did not apply because he was neither a "person in charge" of the goats, nor had he "authorised" the carriage or conveyance of the goats.

The State and Federal Attorneys-General decided to intervene because of the possible constitutional implications of the case.

Issues
  • Whether Song was a "person in charge" of the goats for the purposes of the Regulation
Decision and Reasons for the Decision

James J allowed the appeal and found that Song was not a "person in charge" of the goats for the purposes of the Regulation and thus had not contravened clause 5.

Coddington submitted that Song's power to grant an export permit also included a power to refuse one, and that because of this power the Song's actions went beyond merely exercising a function to issue permits. It was alleged that he had acted as a "person in charge" of the goats who had control over what happened to them. It was further alleged that the combination of this power and the fact that Song visually inspected the goats in his role as veterinarian constituted "supervision". The concept of "supervision" was important as s 4 of the Prevention of Cruelty to Animals Act 1979 (NSW) expanded the concept of a "person in charge" to include "a person who has the animal in the person's possession or custody, or under the person's care, control or supervision."

James J rejected this argument and instead considered the dictionary definitions of "supervise" and "control." He found that a proper construction of the term "a person in charge" necessitated the person having the ability to "do something by way of control over what was occurring at the time, well exceeding what Dr Song was doing in the performance of his functions."For these reasons, James J held that a "person in charge" refers to "a person's ability and authority to take positive steps to effect the immediate physical circumstances of the animal."His honour contrasted this with "passive permitting or detached observation",which is what he believed characterised the relationship between Song and the animals.

Following the Court's determination that the regulation did not apply to Song, James J found it unnecessary to consider whether he authorised the carriage or conveyance of the goats, as both elements were required to make out a contravention of cl 5.

Significance of the Case

This case exemplifies a narrow interpretation of what constitutes a "person in charge of an animal". This approach significantly limits the class of people who can be prosecuted for animal related offences.

13.13 Turner v Cole [2005] TASSC 72

Prepared by Marta Nottidge

Court

Supreme Court of Tasmania

Facts

Turner, the applicant, kept a number of horses on his property at Garden Island Creek. On 12 May 2003, an RSPCA Inspector visited the property while Turner was absent. After seeing two thin horses, the RSPCA Inspector made a video of the horse in the worst condition and left a card prompting Turner to contact him. On 15 May 2003, the RSPCA Inspector spoke with Turner about the state of the horses and advised that they required veterinary attention. Turner responded by indicating that he was competent to care for the horses.

On 19 May 2003, the RSPCA Inspector visited Turner's property again, collecting footage and photographs of the poor condition of the horses. Two days later he returned with another RSPCA Inspector and two police officers. During this visit, Turner was informed that the RSPCA intended to seize the animals. Turner asserted that he had been giving the same care to the horses that a veterinarian would. Turner asked the group to leave the property and chased the horses away. Despite this, the weaker horse was caught; the animal collapsed and was unable to get back on his or her feet. After receiving veterinary advice over the phone, the RSPCA Inspectors shot the horse. The body was taken away immediately for an autopsy.

The results of the autopsy revealed that the animal was in a poor condition, had faeces caked down both hind legs as a result of severe diarrhoea that would have lasted over six to eight weeks. The autopsy report also indicated that horse should have received veterinary treatment to determine the cause of the diarrhoea and that the horse should have been treated.

On 3 May 2005, a Magistrate convicted Turner of omitting to do a duty which resulted in serious disablement of an animal under s 9 of the Animal Welfare Act 1993 (Tas). Turner was fined $4,000 plus costs and precluded from possessing more than 20 horses for five years.

Turner appealed.

Issues
  • Whether Turner was denied procedural fairness
  • Whether the illegally obtained evidence was incorrectly admitted and used
  • Whether Dr Pyecroft was qualified to give expert evidence about horses
  • Whether the prosecution evidence as to the horse's disablement should have been excluded
  • Whether the penalties were manifestly excessive
Decision and Reasons for the Decision

The appeal was dismissed.

Procedural fairness

Turner argued that he was denied procedural fairness as he was not provided with the witness statements, autopsy report and photographs prior to the hearing, and he had the opportunity to view the footage only once. Blow J rejected this claim, finding that the Magistrate afforded Turner sufficient opportunity to view the relevant documents and Turner was not required to cross-examine expert witnesses until weeks after the first day of the hearing. That Turner saw the footage only once did not amount to a breach of procedural fairness as defendants in the Magistrates Court are usually not provided with transcripts and are given one opportunity to hear the evidence.

Admissibility of evidence obtained by the RSPCA

Blow J identified that RSPCA officers have a number of statutory powers authorising their engagement in activities that would be otherwise unlawful without permission. These powers include: entering and searching premises without a warrant if the inspector holds a belief that an offence against an animal has been or is being committed; entering premises to inspect an animal; taking photographs and making videos if such a belief exists; euthanising an animal if the animal is suffering; asking for the opinion of a veterinary surgeon about the extent of an animal's suffering; and, disposing of the carcass of an animal that has been killed.

As the prosecution did not adduce evidence to establish that the inspector had been statutorily appointed as a police officer, Turner claimed that the evidence had been procured through unlawful trespass. Blow J held that notwithstanding the inspectors' "non-appointment", there was no basis for concluding that the evidence was unlawfully obtained (given the statutory powers).

Expertise of Dr Pyecroft

With respect to Dr Pyecroft's qualifications Blow J held that "[b]ecause of his training, study and experience, he was undoubtedly entitled to give expert evidence as to the condition of the horse".

Evidence of the horse's disablement

The RSPCA provided evidence to the effect that they believed the horse required attention, that they made reasonable attempts to capture the horse, that the horse collapsed after being captured and that they had no choice but to shoot the animal. Blow J found that it was open to the Magistrate to accept this evidence.

Turner claimed that the prosecution's evidence concerned a period of time to which the charge was not related. Blow J found that the Magistrate was entitled to "infer from the prosecution evidence that [Turner] had omitted to do his duty in respect of the horse during the period to which the charge related". The prosecution's evidence was not lacking in probative value such that it would cause the Magistrate to hold a reasonable doubt.

Appropriateness of penalties

Blow J found that the fine was not excessive given that Turner had previously been convicted of cruelty to animals and had the ability to pay the fine. The order preventing him from the possession or care of more than 20 horses for five years was deemed appropriate considering this was a "serious case of neglect".

Significance of the Case

This case highlights the statutory powers vested in the RSPCA to enable it to intervene in situations involving neglect of animals. It also exemplifies the relevance of evidence law as it applies to unlawfully obtained evidence to animal protection.

13.14 Richardson v RSPCA [2008] NSWDC 342

Prepared by Marta Nottidge

Court

New South Wales District Court

Facts

Richardson, the appellant, was a woman in her sixties who lived alone on a 150 acre property in Bolivia, 30 km south of Tenterfield, northern NSW. She had a number of chronic health problems and her only income was her disability pension. Richardson had approximately 50 head of cattle on her property, consisting of cows, calves and a bull.

RSPCA Inspectors had visited the property several times and had noticed that some of the animals were in poor condition. On 21 June 2006, RSPCA officers provided Richardson with a management plan and made a number of recommendations in relation to the cattle, including that they should be fed protein, energy and roughage and that the number of animals should be reduced. On 26 October 2006, the Inspectors visited the property again and observed that the cows were still in poor to average condition, had very little natural feed and were not being hand fed.

On 7 November 2006 two inspectors attended the property and spoke with Richardson about the deteriorating condition of the cattle. Richardson indicated that she had had been in hospital as a result of chronic illnesses and the person she had left in charge had failed to take care of the cattle. She also disagreed that the cattle were not sufficiently fed.

On 22 November 2006, two RSPCA Inspectors, an RSPCA investigator and two veterinarians attended the property and removed 21 animals who were in an emaciated condition. Richardson was charged under s 8(1) of the Prevention of Cruelty to Animals Act 1979 (NSW) ('the Act') with 17 counts of failing to provide an animal with proper and sufficient food and under s 5(3) for failing to provide veterinary treatment to cattle who were infested with cattle lice.

Ms Richardson was found guilty of the charges at Local Court. A fine of $9000, costs and a good behaviour bond were awarded against Richardson.

Issues
  • Whether Richardson breached s 5(3) of the Act through a failure to provide veterinary treatment to the animals
  • Whether Richardson breached s 8(1) of the Act through a failure to supply sufficient feed to the animals
  • Whether the penalty awarded was appropriate
  • How costs should be awarded
Decision and Reasons for the Decision

The Court allowed the appeal with respect to the finding of guilt pursuant to s 5(3) of the Act. However Ms Richardson's appeal regarding the 17 matters pursuant to s 8(1) of the Act was dismissed. The Court also awarded costs to the RSPCA for the Local Court proceedings in the sum of $12,681.

Breach of s 5(3)

Norrish QC DCJ found that it could not be established that Richardson's failure to treat the animals for lice was a breach of s 5(3) of the Act as "whether in fact the need for treatment at the points of time pleaded was 'necessary' would be a matter of complete speculation on the part of a tribunal of fact if no relevant opinion had been expressed by someone qualified to do so." Further, Richardson provided evidence to the effect that she was to have the cattle treated for lice the following week. As such, while the prosecution had established the factual matter pertaining to the lice infestation, it "failed to establish beyond reasonable doubt the relevant need required under the section and... a failure to meet that need by" Richardson.

Breach of s 8(1)

Norrish QC DCJ held that there was sufficient evidence to suggest that Richardson was responsible for the state of the cattle, that the condition of the cattle was consistent with a lack of access to sufficient and proper feed and that no other person contributed to their condition. Further, there was no basis for finding that it was not reasonably practicable for such feed to be provided. The prosecution established that there was no honest and reasonable mistake of facts that would exculpate Richardson. As such, the counts pertaining to s 8(1) stood.

Appropriateness of penalty

Considering Richardson's personal characteristics, Norrish QC DCJ held that it was appropriate to affirm the good behaviour bond. The fine was not appropriate given that Richardson's "capacity to pay fines is extremely limited if not non-existent". Further, Norrish QC DCJ varied the limitation placed by the Magistrate on the number of cattle Richardson could own, basing the revised figure on expert evidence.

Costs

Norris QC DCJ varied the costs order, guided by the principle that costs awards should be "just and reasonable". This was a total of $12,681.

Significance of the Case

This case exemplifies the prevalence of neglect as a form of cruelty. It demonstrates that ill health or lack of financial means is not a defence to an animal cruelty offence. It also confirms that the legal test of what amounts to cruelty is an objective one to be determined by the Court. Although Norrish QC DCJ recognised that "the presence of lice is not good for... animals", this did not, in the Court's opinion, amount to an ailment necessarily requiring treatment.

13.15 Morris v Department of Environment and Climate Change [2008] NSWLEC 309

Prepared by Tiffany Lasschuit

Court

Land and Environment Court of New South Wales

Facts

Morris, the applicant, a commercial kangaroo shooter, was charged with the killing of 128 eastern grey kangaroos. Morris only held a licence to kill red kangaroos. Moreover, he was not permitted to shoot grey kangaroos in the zone in which he was operating.When confronted by National Park and Wildlife Service ('NPWS') officers in August 2007, he admitted to the elements of the offences.

The case was first heard by the Local Court Magistrate at Lightning Ridge on 12 December 2007. Morris was found guilty of two charges, namely the killing of protected fauna and contravening the restrictions of his licence.The Magistrate fined him a total of $10,640 including costs. Morris appealed against the severity of fines imposed upon him at the Local Court. He sought special consideration based on his age, limited literacy skills, dependence on a pension, and various major health issues, which restricted his work and earning capacity. Morris expressed that he felt pressured to cull the kangaroo population in compliance with the requests of the farmers who retained him. He claimed that these demands frequently conflicted with the conditions of his licence. Morris was also very critical of the way NPWS supervised the culling of kangaroos and stated that the offences were universally regarded as almost impossible to detect.

Issues
  • Whether the fine imposed was excessive
Decision and Reasons for the Decision

Sheahan J ordered the appeal be dismissed.

Sheahan J discussed how the entire system of NPWS regulation depended on compliance with the licensing regime, and how sustainability of the species was a key objective of public policy.In addition, he pointed out that courts must have regard to the "strong terms" in which Parliament expresses its intention.

Sheahan J also noted that Mr Morris had killed approximately 1700-2000 kangaroos in one year and that the volume of illegal killing was substantial, leading to considerable environmental harm. His Honour stated that the Magistrate had followed appropriate processes in sentencing an offender of low financial means.Although Sheahan J acknowledged that the fine would impact on Mr Morris' family budget, Sheahan J stated that the payment of fines "cannot be viewed as an optional domestic expense, nor as a normal cost of running a business".

Significance of the Case

The case identifies the way in which commercial shooters may be pressured by landholders to shoot species of kangaroos that are not authorised by their licence.

It also acknowledges the importance of licence conditions to the maintenance of kangaroo population levels. The case characterises such a goal as a matter of "public policy". In addition, Sheahan J acknowledged that culling offences are almost impossible to detect and that the system of regulation depends entirely on compliance with the licensing regime.

13.16 Dart v Singer [2010] QCA 75

Prepared by Vuu-Cindy Dang

Court

Queensland Court of Appeal

Facts

On 31 July 2008, RSPCA inspectors seized 113 dogs, one cat, 488 rats, 73 mice, 12 guinea pigs and 11 birds from Dart and Hajridin, the applicants. The animals were kept in unsanitary and inappropriate living conditions.

The applicants were charged with breaching their duty of care to the animals under s 17 of the Animal Care and Protection Act 2001 (Qld) ('the Act') and in late 2008 the applicants pleaded guilty. The Magistrate did not record a conviction and both applicants were fined $12,500 and were ordered to pay a costs order of $57,161.30. The Magistrate placed Dart and Hajridin on probation for two years, made a disposal order and made an order than the applicants not purchase or otherwise acquire or take possession of a dog or rat for trade or commerce for a period of two years.

Dart and Hajridin appealed and this was heard by the District Court on 11 June 2009. Judgment was handed down on 11 December 2009. The costs and fines were reduced; however, the appeal was otherwise dismissed.

The application to this Court concerned the presence of any legal requirement preventing the RSPCA dealing with the animals the subject of the disposal order. Dart and Hajridin sought a stay in proceedings to prevent the RSPCA from engaging in such conduct.

Issues
  • Whether the RSPCA could deal with the animals the subject of the disposal order
  • Whether the penalty awarded was inappropriate
Decision and Reasons for the Decision

The appeal was dismissed.

RSPCA power

Section 182 of the Act conferred upon the Magistrate the power to make the disposal order. The Court held that absent provisions placing restrictions upon how an animal should be dealt with after the transfer in custody, "the effect of the order was that the property in the animals immediately vested pursuant to the orders".

In requesting the stay in proceedings, the Court noted that Dart and Hajridin made no reference to the statutory source of the Court's power to make such an award. However, in considering whether a stay or other relief would be available, the Court turned to make an assessment of their prospects of success on appeal.

Dart and Hajridin argued that the powers of the RSPCA were limited by the agreement between the RSPCA and the State of Queensland stating that the latter would assume responsibility for commercial livestock. Dart and Hajridin argued that they kept the animals for a business, and that they were therefore commercial animals.

The Court held that the agreement did not have such an effect. It was not an instrument of appointment of an inspector or a regulation. It was not signed by the chief executive or given to the inspectors, nor did it evince an intention to limit the powers of the inspector under The Act. The Court identified that a purpose of the agreement was "to enable the RSPCA to maintain a role in the enforcement of animal welfare legislation". Further, it was held that the agreement was more concerned with the geographic regions in which the RSPCA, on the one hand, and the State Government, on the other, would act; thus, the provisions of the agreement dealt "not with limitations on the power of inspectors, but with identifying the relative roles of the organisations". That one entity was to have "primary responsibility" for one class of animals did not suggest a limitation on the powers of the other entity; this would offend the purpose of the agreement.

Due to the absence of any limitation on the powers of the inspectors, it was held that Dart and Hajridin had no real prospects of success.

The Court rejected any argument that the RSPCA inspectors acted fraudulently; it could not be established that it knew of the existence of the agreement and that they believed it to have the effect contended for by Dart and Hajridin.

The stay on this basis was refused.

The penalty

Dart and Hajridin adduced no evidence of significant financial hardship which would flow from compliance with the orders.

Dart and Hajridin claimed that the animals were valuable. However, the Court held that there was nothing to suggest that, in the event that they were successful, monetary compensation would be inadequate.

The RSPCA argued that its ability to place the dogs into voluntary care reduced its expenses.

A stay on this basis was similarly refused.

Significance of the Case

This case exemplifies complexities resulting from responsibility being shared between the RSPCA and government. Interestingly, the law's recognition that animals have a market value advanced their interests; such a principle enabled the RSPCA to deal with the animals as necessary, as Dart and Hajridin could receive monetary compensation if on appeal, it was held that the RSPCA acted without power.

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