Chapter 1 - Defining an Animal

The notion of what amounts to an “animal” in law is fraught with complexities. Legislation intended to prevent cruelty to animals may exclude certain species, or may otherwise be unclear as to what species are covered. In New South Wales for example, s 4 of the Prevention of Cruelty to Animals Act 1979 (NSW) defines an “animal” to include birds, fish, reptiles, mammals and amphibians; yet only includes crustaceans, such as lobsters, where they are being prepared or offered for retail sale. In essence, the law considers crustaceans as “animals” when they are being kept or prepared as food. This allows authorities to regulate matters such as conditions in holding tanks and preparation techniques, to ensure that crustaceans are humanely killed before cooking.

The two American cases in this Chapter, Knox v Massachusetts Society for the Prevention of Cruelty to Animals and _Lock v Falkenstine,respectively explore whether anti-cruelty legislation targeting “animals” should extend to fish and gamecocks. In the Australian case of Attorney-General (SA) v Bray, the High Court of Australia had to determine whether stray animals could be included within the term, “domestic animal”. This was an important point as precedent already permitted a person to create a valid charitable trust for the care of domestic animals. If stray animals were not included within this term, the trust would not be valid, and stray or homeless animals would effectively be excluded from the benefit of such arrangements.

1.1 Lock v Falkenstine [1963] OK CR 32
380 P.2d 278 (Okla, Ct. Crim. App. 1963)

Prepared by Mansum Margaret Wong

Court

Oklahoma Court of Criminal Appeals

Facts

Lock and others, the appellants, appealed the decision of a lower court to proceed to trial against them for gamecock fighting and sought a stay of proceedings.

Title 21, O.S.A. & 1682 (Oklahoma Statues Annotated) (‘the Act’) stated that “Every person who maliciously, or for any bet, stake, or reward, instigates or encourages any fight between animals, or instigates or encourages any animal to attack, bite, wound or worry another, is guilty of a misdemeanor.” The Attorney-General opposed the appeal, arguing that as gamecocks were animals they were covered by the Act.

Issue

• Whether gamecocks were classified as animals for the purpose of the Act

Decision and Reasons for the Decision

The stay of proceedings was granted.

The Court held:

biologically speaking, every living creature is presumed to be of the animal species… [and]… before the science of Biology was in existence, a distinction was made between living creatures in the Holy Scripture, and often referred to as beast of the field, fish of the sea, and fowls of the air.

The Court observed, however, that the matter depended on an interpretation of the relevant legislation. In State v Stockton (1958) 85 Ariz. 153, 333 P.2d 735, the Supreme Court of Arizona held that birds and fowls came within the definition of “animals” under Arizona law, rendering cockfighting illegal. However in Ernst v Collins (1956) 81 Ariz. 178, 302 P.2d 941, the Court was not able to conclude that the intention of the legislature was to include a gamecock as an animal, or to make it a criminal offence to conduct a cockfight.

In this case, the Court considered it relevant to determine whether a person with “ordinary intelligence” would consider a gamecock an animal. The Court also noted that an ordinary man might not analyse the issue in the same way as a judge or a scientist and that furthermore the person might have difficulty understanding the prohibitions under the Act. The Court held that it was not its role to interpret the law so as to create a list of animals, as the law does not seek to define animals in general, rather it stipulates certain species which come within the ambit of its provisions. The Court refrained from attempting to explain why the Act did not include a definition of “animal”.

Significance of the Case

This case exemplifies the limits of judicial intervention in animal protection. It also highlights the tendency of society’s attitude towards animals to change over time. In both these respects the case may be contrasted with the decision in Knox v Massachusetts Society for the Prevention of Cruelty to Animals (et al) (1981) Appeals Court of Massachusetts Plymouth 1981 12 Mass App Ct 407 425 NE 2D 393 that is discussed below in this chapter. The judge in Lock v Falkenstine was not prepared to find that the purpose of the legislation should give substance to the meaning of statutory terms. In essence, the Court found this to be a policy matter which would be more appropriately addressed by Parliament than the Judiciary. It is telling that in 1982, some two decades after this decision, the Oklahoma legislature added the words “with the exception of dogs” after “between animals” in the Act. This demonstrates that law-makers intended to include all animals, except dogs, within the ambit of the legislation. Significantly, in 2002, the Oklahoma legislature expressly banned cockfighting.

1.2 Attorney-General (SA) v Bray (1964) 111CLR 402

Prepared by Michael Croft

Court

High Court of Australia

Facts

The will of a testatrix directed her trustee (which was a trustee company):

1. To purchase and equip a home for the maintenance and care of, or otherwise for mercifully and kindly dealing with homeless, stray and unwanted animals; and

2. To invest the balance of her estate and apply the income for the permanent upkeep of the home.

The will also empowered the trustee to postpone execution of the trusts for as long as was necessary to accumulate sufficient funds to carry out the wishes of the testatrix. In addition, the will allowed the trustee to postpone realisation of the estate for as long as the trustee thought fit.

The trustee applied to the Supreme Court of South Australia to determine whether the trusts were valid and practicable. A charitable trust is a trust made for a purpose, as opposed to a trust made for nominated beneficiaries. In order for a charitable trust to be valid the court must find that was created for “charitable” purposes. Precedent already existed that permitted a person to create a valid charitable trust for the care of domestic animals. The issue in this case was whether this concept could extend to stray animals. If not, the trust under consideration would not be valid, and stray or homeless animals would effectively be excluded from the benefit of such arrangements. The Attorney-General and Bray, who represented the testatrix’s next of kin, were joined as defendants. Napier CJ ordered an inquiry regarding the trust’s practicability. The result of the investigation was that there were insufficient funds to carry out the trusts. The Court held that although the trusts were valid, they had failed, and ordered that the funds must be distributed according to the rules of intestacy.

The Attorney-General appealed to the Full Court, seeking an order that the funds be applied cy-pres. The doctrine of cy-pres would have allowed the Court to carry out the wishes of the testatrix as near as possible to the intention expressed in the will, even though literal compliance with the will may not have been possible. Bray cross-appealed, seeking a declaration that the trusts were invalid. If the trusts were invalid, the estate would go to the next of kin. The appeal was dismissed, and a further appeal was made to the High Court.

Issues

• Whether the trusts were valid charitable trusts
• Whether the trusts were practicable
• Whether the powers to postpone execution and realisation of the trusts rendered them invalid

Decision and Reasons for the Decision

The High Court held that the trusts were both valid and practicable, and that the powers to postpone execution and realisation did not render them invalid.

Whether the trusts were valid charitable trusts

The Court unanimously interpreted the words “homeless, stray and unwanted” animals as referring to domestic animals, that is, “such animals as are commonly kept and cared for in and about human habitations”. It was noted that English authority dictated that the care and protection of such animals is a valid charitable purpose. Kitto J (with whom Taylor and Menzies JJ agreed) cited the reasoning of Swinfen Eady LJ in In re Wedgwood [1915] 1 Ch 113, which was approved by the House of Lords in National Anti-Vivisection Society v Inland Revenue Commissioners [1947] UKHL 4; [1948] AC 31: “A gift for the benefit and protection of animals tends to promote and encourage kindness towards them, to discourage cruelty, and to ameliorate the condition of the brute creation, and thus to stimulate humane and generous sentiments in man towards the lower animals, and by these means promote feelings of humanity and morality generally, repress brutality, and thus elevate the human race”. Thus, assuming practicability, the trusts were considered valid charitable trusts.

Whether the trusts were practicable

The Court recognised the test of practicability as encompassing a determination of whether, at the time of the testatrix’s death, it was either practicable to carry her intention into effect, or there was any reasonable prospect that it would be practicable to do so at any future time. On application, the Court held that it could not be demonstrated that the trusts were impracticable. Their practicability had been explored insufficiently, and the inquiry was based on erroneous assumptions. Dixon CJ construed the trust as regarding the establishment of the home as essential, therefore precluding the possibility of a cy-pres application without such a home. Kitto J, noting the absence of particularity as to the specifics of the intended home, recognised the force of the argument that the home was merely a potential means for serving the general charitable purpose. However, both he and Windeyer J ultimately considered it unnecessary to determine whether the establishment of a home was essential.

Whether the powers to postpone execution and realisation of the trusts rendered them invalid

The Court unanimously held that as the fund was given to charity immediately, the powers to postpone execution and realisation did not offend the rule against perpetuities. The rule against perpetuities limits a person’s ability to control their property forever after their death. Kitto J stated that the powers expressed in the will did not postpone the allocation of the estate to the charitable purpose; rather the powers were relevant to the acts that the trustee was under a duty to perform. Further, Windeyer J noted that the powers did not impose a condition precedent to the trust taking effect.

Significance of the Case

The significance of this case for animal law purposes lies in its examination of what defines “domestic animals”, and its affirmation that a trust for the care and protection of such animals can be a valid charitable trust. This last point is noteworthy because the general rule is that an express trust must be created either in favour of human beneficiaries, or for recognised charitable purposes. The reasoning of the High Court is also instructive because it reinforces the need for care and detail in drafting trusts involving animals. This is particularly important with respect to trusts intended to be created in favour of a specific animal, as might occur with companion animals. Where it cannot be established that the trust has been created for a purpose, the trust will be declared invalid. See also Attorney General (NSW) v Donnelly [1958] HCA 1; (1958) 98 CLR 538, 579.

1.3 Knox v Massachusetts Society for the Prevention of Cruelty to Animals (et al) (1981) Appeals Court of Massachusetts Plymouth 1981 12 Mass App Ct 407 425 NE 2D 393

Prepared by Brittany Kenaly

Court

Appeals Court of Massachusetts, Plymouth County

Facts

Knox, the appellant, ran a concession booth at a fairground. A “concession booth” is a stand or kiosk. Knox awarded live goldfish in plastic bags containing water as prizes in a game. MSPCA, the respondent, had argued that this conduct was contrary to s 80F of the Crimes Against Chastity, Morality, Decency and Good Order(‘the Order’). That section provided that: “No person shall offer or give away any live animal as a prize or an award in a game, contest or tournament involving skill or chance.” The word “animal” was not defined in the statute; however, it was initially held to include a goldfish, Knox was thus prevented from offering the goldfish as prizes.

Knox sought a court order to temporarily restrain enforcement of the provision against him. He was successful in this, which enabled him to continue to offer the goldfish as prizes. The MSPCA counterclaimed, seeking a declaration that the statute prohibited the offending conduct.

Issues

• Whether goldfish were classified as animals for the purposes of the Order
• Whether Knox was in breach of the Order

Decision and Reasons for the Decision

The appeal was dismissed.

Whether goldfish were classified as animals for the purposes of the Order

The Court found that goldfish were included in the term “animal” as the word commonly referred to “all irrational beings” (Commonwealth v Turner, 145 Mass. 296, 300 (1887)).

Whether Knox was in breach of the Order

With respect to whether or not the actions of Knox breached the legislation, the Court noted that the interpretation of the relevant provision depended on its objective and the mischief the legislators were trying to avert. As the provision was “designed to protect animals subject to possible neglect by prize winners” the Knox’s conduct was found to be a violation of the provision.

The Court held that animal ownership carries responsibilities and that giving an animal as a prize does not take these responsibilities into account, especially when care instructions are not provided. In this case, Knox had no regard to whether the recipients of the goldfish could care for the animals and adequately meet their needs. The Court emphasised that “These statutes are directed against acts which may be thought to have a tendency to dull humanitarian feelings and to corrupt the morals of those who observe or have knowledge of those acts” (Commonwealth v Higgins, 277 Mass. 191, 194 (1931)).

Significance of the Case

The case offers valuable guidance in construing the word “animal”. The Court examined the purpose of the legislation to determine that “animal” can include a goldfish, despite the legislative silence on the definition of this term. In addition, the Court held that “ownership” of an animal imposes obligations to provide appropriate care for that animal.