ANDERSON -v- MOORE [2007] WASC 135 (22 June 2007)

"1. His Honour Magistrate Fisher made an error of law in that he used the wrong test in determining whether the charges had been proved - specifically, he relied on the Defendant's 'uncaring attitude' towards the relevant animals, notwithstanding that this is not an element of the offence, and is not sufficient to find the Defendant guilty of the offence.

1. His Honour Magistrate Fisher made an error of fact and law in that he failed to consider whether the Defendant had taken 'reasonable steps' to alleviate harm to the animals pursuant to Section 19(3)(h) of the Animal Welfare Act 2002 - specifically, by failing to consider whether the Defendant's adherence to the advice of Dr Brighton constituted 'reasonable steps'.
2. His Honour Magistrate Fisher made an error of fact and law in failing to consider the defence of 'veterinary care' pursuant to Section 21 of the Animal Welfare Act 2002."

5 On 29 June 2006 the appellant appeared before the Magistrate, having previously indicated pleas of not guilty, and a trial ensued. The trial was heard over three non-consecutive days.

1. Mr Andrew James Norris, a ranger with the Busselton Shire who inspected the appellant's sheep whilst they were on the property of a Mr Christiansen;
2. Ms Linda Jane Weissenberger, a general inspector with the RSPCA who inspected the appellant's sheep which were then on his own property on 1 July 2004; and
3. Dr Kamahl Campbell, a veterinarian who accompanied Ms Weissenberger to the appellant's property and inspected his sheep.

7 The appellant made an unsuccessful submission that there was no case to answer. He then gave evidence and called:

1. Dr Peter Glen Brighton, a veterinarian who inspected the appellant's sheep at the appellant's request in March 2004 when they were on Mr Christiansen's property;
2. Mr Norman Thomas Wells, the appellant's employee who assisted him to feed the sheep; and
3. Mr Noel Desmond Holsworth, the appellant's neighbour who assisted him to feed the sheep.

8 The factual background, which is now substantially not in dispute, is that in January 2004 the appellant acquired a number of sheep in partnership with a second man. The co-owner died shortly thereafter leaving the appellant as the sole owner of approximately 400 sheep.

9 The appellant owns a 300 acre property at Bridgetown on which he was living at the relevant time. He also owned a business in Bridgetown which involved him working five days a week and Saturday mornings. On his property he usually ran cattle and managed them with the assistance of his employees from his town business or Mr Wells.

10 The appellant relocated the sheep to Mr Christiansen's property in Catterick. On 23 January 2004 the appellant arranged for the sheep to be shorn. He said that the sheep were drenched at the same time.

11 On 29 March 2004 Mr Norris, who was an inspector under the Act, received a complaint relating to the condition of the appellant's sheep. That afternoon he attended Mr Christiansen's property and inspected the sheep. He estimated that there were about 300 sheep and lambs. Mr Norris found two sheep which were emaciated, barely breathing, had nasal discharges and were unable to stand. He destroyed both of them. He also noted some sheep carcasses. Mr Norris returned to Bridgetown and purchased three bags of oats. He returned to the property and fed the sheep. The sheep rushed to where the oats had been trailed out onto the ground. Three sheep fell as they ran to get the oats and were unable to get up without assistance.

12 On 30 March 2004 Mr Norris went to the appellant's business and spoke to him. The appellant stated that the sheep were in a better condition now than when they had come into his possession. Mr Norris gave the appellant verbal directions that he was to feed the sheep at least six bags of oats per day whilst they were agisted on Mr Christiansen's property.

13 On 31 March Mr Norris re-attended Mr Christiansen's property. He checked the sheep and picked up a lamb which had collapsed. He took the animal to the appellant and noted that he did not appear perturbed by the condition of it. On leaving the appellant, Mr Norris hand fed the lamb and this appeared to give it some strength as it was able to stand again within about 30 minutes.

14 On 1 April after receiving advice from the RSPCA and a vet, Mr Norris spoke to the appellant about having the sheep examined by a vet. The appellant agreed but requested that the inspection be carried out by Dr Brighton, his friend and the vet he usually consulted about his livestock.

15 On 2 April Mr Norris again inspected the sheep in company with a police officer. He observed that if the sheep were moved or forced to run some were so weak that they fell and were unable to get up without assistance. It was agreed that no further action be taken until after the veterinary inspection.

16 On 6 April 2004 Mr Norris and the appellant were present when Dr Brighton carried out an inspection of the sheep. There are some inconsistencies between the witnesses as to what occurred during the inspection. Mr Norris said that Dr Brighton looked at the animals from about 20 metres away. However, Dr Brighton testified that he physically inspected a number of sheep. It is possible that this occurred when Mr Norris went to look at some sheep or carcasses which were in another spot on the property.

17 According to Mr Norris, Dr Brighton asked the appellant when the sheep had last been drenched and the appellant told him that they had been done before he acquired them. Mr Norris recalled Dr Brighton saying that the sheep were not in "great condition", that they needed to be fed six bags of oats per day as a minimum and that mineral blocks containing trace elements should be placed under the trees where they could find them. He did not recall Dr Brighton saying that the sheep should not be moved.

18 Dr Brighton gave evidence that on 6 April he walked through the sheep and he had a good look at them. He estimated that there were about 400 sheep. He said that the sheep were what are known as "cull" sheep because they were sheep which were usually sold because they were a problem. He estimated that the sheep were of a very poor type and about 30 per cent of the ewes and lambs in the mob were in poor condition, but were still on their feet and grazing. This meant that using the body scoring system for sheep they scored three out of 10. He said that he examined several ewes and several lambs in the tail of the mob. His conclusion was that in all cases they had healing lung lesions and encrusted puss on the nose. This indicated to him that they were recovering from pneumonia. Dr Brighton took dung specimens for the purpose of doing a worm count. The results were, in respect to two combined samples, 150 and 200 eggs per gram, respectively.

19 Dr Brighton's opinion was that the sheep were getting over a bout of pneumonia. He did not believe that they were heavily worm-infested. He said that he advised the appellant to feed the sheep four bags of oats or more per two days, to provide them with trace mineral blocks of salt and not to move the sheep. Dr Brighton also advised the appellant not to drench the sheep until their condition had picked up. He said that the aim was to drench them again in June to August when their condition had improved and they could safely be moved.

20 The following day the appellant told Mr Norris that he was feeding the sheep at least every second day. Mr Norris asked the appellant to place the sheep's feed in troughs or on sheets of iron. Mr Norris said the appellant became aggressive and essentially refused to do so. He complained that he did not have the time and that he had to feed his cattle on his own property by hand as his bobcat had broken down. The appellant testified that at this stage he did not believe that there was "a problem to be really concerned about".

21 On 7 April 2004 Mr Christiansen rang Mr Norris and informed him that he had counted 23 or 24 sheep carcasses in or near Hester Brook that ran through his property and that he was concerned due to the potential for pollution and disease.

22 The appellant testified that after Dr Brighton's visit he and Mr Wells fed the sheep with oats and lupins at intervals that were no more than three days apart.

23 On 10 April 2004 some neighbours, apparently upset at the condition of the sheep, drove the sheep to the appellant's property. The appellant testified that the first he knew about that was when he looked out his kitchen window and saw the sheep in his paddocks.

24 Once the sheep were on the appellant's property he fed them with hay he had previously cut. He said, initially, there was no rain and all the sheep were getting to eat was what he fed them in the afternoon. Often he fed them in the dark. He later said that he fed the sheep oats a few times a week during the day. He said he was "getting sick" of going out in the day to do this. He acknowledged that once the sheep arrived at his property he put them on, what he described as, a "maintenance diet". The implication being that he fed them less after they arrived at his property. The appellant said that approximately one month after the sheep arrived at his property he drenched them with a white drench, the name of which he had forgotten. He said that the sheep were sometimes harassed and mauled by a neighbour's dog. Consequently, he and Mr Wells had to kill a few injured sheep that could not walk.

25 The appellant also testified that the sheep were in "fair condition" when they arrived at his property but did not gain weight afterwards. When asked his opinion as to why they did not, he said that the sheep were on a "maintenance ration" not a "fattening ration". He testified that this was what you put sheep on when "you want to maintain their body condition. He further explained that the purpose of a maintenance ration "is to keep them going till the grass comes". The appellant said that the grass did not start growing until well into June. He believed that a maintenance ration was consistent with what Dr Brighton had directed.

26 After the sheep arrived at his property the appellant did not arrange for Dr Brighton to examine the sheep although the appellant testified that he asked Dr Brighton about the sheep "now and again". Dr Brighton did not say that he was asked to or gave the appellant any advice about the sheep after they were moved to the appellant's property. The Magistrate found that the appellant did not ask Dr Brighton to examine the sheep after they arrived at his property. This finding is not challenged on appeal.

27 On 28 June 2004 Ms Linda Weissenberger, then an inspector with the RSPCA, received a complaint about the poor condition of the sheep.

28 On 1 July 2004 Ms Weissenberger visited the appellant's property. She saw six fresh sheep carcasses on the property. She also saw six sheep which either were too weak to get up or fell whilst she was inspecting the mob and then were too weak to get up. She took photographs of the six sheep that were unable to walk. These six sheep are the subject of these charges. Ms Weissenberger also took photographs of the fresh sheep carcasses and took a video of the sheep. The photographs and video were in evidence. As it is not in dispute that the six sheep the subject of the charges were suffering harm at the time Ms Weissenberger saw them, it is unnecessary for me to go into detail of Ms Weissenberger's evidence about that issue. It is sufficient for me to say that Ms Weissenberger noted that the sheep were in poor condition. Some had a discharge from their noses, their gums were pale and they were scouring. One of the sheep appeared to have a prolapse under its tail. She noted that some of the sheep which were unable to get up had dug up the ground underneath their legs indicating to her that they had been struggling to get up for some time. She noted that other sheep in the mob were visibly weak.

29 Ms Weissenberger then contacted Dr Campbell, a local veterinarian. He attended at the appellant's premises. He inspected the sheep. The six sheep were euthanized on the advice of Dr Campbell.

30 As Ms Weissenberger and Dr Campbell were looking at the sheep, the appellant arrived at the scene. He became agitated at the presence of Ms Weissenberger and Dr Campbell and their comments to him about the condition of the sheep and a horse which was also on his property.

31 The following day Ms Weissenberger met the appellant and they had a conversation. Relevantly, Ms Weissenberger said that the appellant told her that when he came into possession of the mob of sheep they were in poor body condition. He said that they were all shorn and worm drenched when he bought them and that they had not been drenched since then although he planned to drench them during the coming weekend. When asked how long the sheep had been dying, the appellant told her that it was over the last few days. She asked the appellant what the sheep were being fed and the appellant told her that the sheep had not been fed for the last three weeks as there was enough ground feed. He said that he had been feeding the sheep two big rolls of hay per day and 200 grams of oats or lupins every second day although the sheep had had no oats for five to six weeks.

32 The appellant told Ms Weissenberger that the sheep had begun to pick up at Mr Christiansen's property. He said that after the sheep were moved to his property they did not pick up although none had died. The appellant told Ms Weissenberger that the last time he had checked the sheep was the previous Tuesday after he had heard that the ranger had been out and that he normally checked the sheep every Saturday afternoon. When Ms Weissenberger asked the appellant what he believed the sheep were dying of the appellant said that it was Barbers Pole Worms.

33 Dr Campbell gave evidence, consistent with Ms Weissenberger's evidence. He also gave evidence as to the autopsy findings in respect to one of the sheep which was euthanized.

34 In respect of the six sheep the subject of the charges Dr Campbell said that the sheep were exhibiting signs of profound weakness, ranging from an inability to walk (though able to stand) to an effectively comatose state. All were in an extremely poor body condition. Three of the sheep had evidence of recent diarrhoea and one had a rectal prolapse. All of the animals had pale mucus membranes. Analysis of faecal samples taken from three of the animals showed considerably high worm egg counts and coccidian oocytes counts. Coccidiosis, is another parasite which can infect a sheep's intestine with sometimes a serious effect on its health.

35 Dr Campbell said that the sheep which was autopsied was in extremely poor body condition with virtually no body fat. The gastro-intestinal tract contained very little solid food material.

"Taken as a whole, the clinical appearance of the animals and laboratory and post-mortem findings were indicative of chronic energy deficiency, most likely due to inadequate food intake, exacerbated by an internal parasite burden. All of the animals affected have clearly had their welfare avoidably compromised and, in my opinion, have suffered preventable harm. Most of the animals examined had reached a stage of physiological damage such that, even with appropriate treatment, they would have died anyway."

37 Dr Campbell said that none of the six sheep he examined showed signs suggestive of pneumonia.

38 In cross-examination, Dr Brighton was asked to comment on the photographs and video taken by Ms Weissenberger. It is not possible to accurately determine from the transcript what part of the photographs or video the vet is referring to when he makes various comments. In general, Dr Brighton said that there were some sheep he saw in the video which were in good condition and some which were in very poor condition. After he had seen a portion of the video which was described to him as having some carcasses, two sheep which were alive but peddling their feet and another sheep that had gone over a log and obviously collapsed, he was asked whether this was the same condition as the sheep he saw when he examined the sheep in April. His reply was that he never saw any sheep like that in April.

39 Dr Brighton thought that the level of coccidian oocytes was very relevant and indicated that the sheep may well have been severely infested with coccidiosis. A condition which he regarded as difficult to diagnose and treat.

40 The appellant gave evidence disputing the alleged conversation with Ms Weissenberger. He denied having seen the six carcasses or the six euthanized sheep at any stage or being told about them. The appellant testified that he had drenched the sheep in June.

19. Cruelty to animals

(1) A person must not be cruel to an animal.

...

(3) Without limiting subsection (1) a person in charge of an animal is cruel to an animal if the animal -

...

(h) suffers harm which could be alleviated by the taking of reasonable steps;

..."

42 The first ground of appeal alleges that the Magistrate found the offences proven because the appellant had an uncaring attitude towards the sheep, rather than because he found the elements of the offence had been proven. The appellant relies upon the Magistrate's comments where he said:

" ... In my view, he was simply going through the motions. In my respectful view, and I've had the benefit here of hearing all the evidence, this accused took an uncaring position in respect of these animals."

"It would suggest to me in all the circumstances that this uncaring attitude, in all the circumstances, compromised these animals. I find as a fact that the animals were suffering harm which in all the circumstances, could have been alleviated by the taking of reasonable steps. Those steps were not taken."

44 The parties agree that there is no subjective element of the offence. Thus, the appellant says that the Magistrate's finding that the appellant was "simply going through the motions" is irrelevant. The appellant says that the Magistrate was obliged to make findings as to whether those motions amounted to "reasonable steps". Further, he submits that the finding of an "uncaring attitude" was an irrelevant factor and the Magistrate thus made an error of law which has resulted in a substantial miscarriage of justice.

45 The respondent submits that after finding that the appellant was in charge of the sheep and that in the relevant period the sheep the subject of the charges suffered harm (findings not challenged on appeal) the Magistrate correctly identified the remaining issue as being:

"Whether or nigh in the circumstances as presented to this [appellant], he took such steps as would be necessary to alleviate the harm that was self-evidently being suffered by these animals."

46 Apart from the use of the word "necessary" as opposed to the word "reasonable", I agree with the respondent that the Magistrate correctly identified the objective test for his determination. The use of the word "necessary" is not an appellable error as, if anything, it was an error in the appellant's favour.

47 I am further of the view that the Magistrate made sufficient findings, in the paragraph I have previously quoted and elsewhere, which show that his Honour found that the appellant had not taken reasonable steps to alleviate the harm that the sheep, the subject of the charges, were suffering. In particular the Magistrate found that:

" ... there was nothing to suggest that he could not have brought more attention, and if need be - and I would have thought the requirement was patently there, with the animals not improving - in all the circumstances, further consultation with certainly his veterinarian in Dr Peter Brighton. It was not undertaken; it was not requested, albeit Dr Brighton acknowledged that should he be required, he was happy to re-attend. There was no request made of him."

The Magistrate's additional findings in respect to the appellant's attitude to the sheep do not negate the essential findings in the Magistrate's reasoning.

49 The appellant's case at trial and on appeal was that he had sought and adhered to the veterinary advice given by Dr Brighton. The Magistrate found that the appellant may have complied with Dr Brighton's advice. Thus, the appellant says that he took reasonable steps to alleviate the harm being suffered by the sheep and he should not have been found guilty of the offences.

50 The respondent submits that the statutory test is not whether or not the appellant took reasonable steps to alleviate the suffering of the sheep. Rather, the test is whether or not the sheep suffered harm which could have been alleviated by the taking of other reasonable steps.

51 If the test the appellant asserts was correct, an accused could not be convicted of an offence if he or she had taken some reasonable steps to alleviate an animal's harm. Whereas, in the test asserted by the respondent, with which I agree, the issue is whether the evidence discloses that there were reasonable steps which could have been, but were not, taken to alleviate the harm suffered by an animal. Thus, evidence that an accused took some reasonable steps may be relevant but such evidence does not mean that a finding of not guilty is inevitable. If the evidence discloses that further reasonable steps or a reasonable step that could have been taken to alleviate the harm suffered by an animal, an accused will not avoid liability.

52 Thus, for an offence particularised as being committed against s 19(3)(h) the elements of the offence are:

1. The accused was in charge of the relevant animal;
2. The animal suffered harm; and
3. The harm suffered could have been alleviated by the taking of reasonable steps.

53 The Magistrate did not err by failing to determine whether the appellant had taken reasonable steps to alleviate the harm suffered by the sheep. Rather, he was obliged to determine what were the reasonable steps that could have been taken to alleviate the harm suffered by the sheep. It was only if the appellant had taken all these reasonable steps that he would be found not guilty. Taking some, but not all, reasonable steps, does not avoid liability.

54 The Magistrate was of the view that the appellant had not taken all reasonable steps. That is, he was, "patently aware" that there were obligations to the sheep which he was not meeting; in particular the obligation to further consult with Dr Brighton when the sheep did not improve whilst on his property.

56 A defence to a charge under s 19(1) is provided in the Act, s 21 which states:

It is a defence to a charge under section 19(1) (other than an offence committed in circumstances described in section 19(3)(g)) for a person to prove that the person was a veterinary surgeon, or was acting on the instructions of a veterinary surgeon, and was providing the animal with veterinary care in accordance with generally accepted veterinary practices."

57 It is patent from the words of the section that the onus of proving this defence lies on an accused. The standard of proof is on the balance of probabilities. This is in accordance with principles generally applicable to proof of defences, where the legal burden of proof is on an accused: Heydon, J G Cross on Evidence 7th Australian ed Butterworths, Australia, 2004 page 300.

58 The appellant submits that the defence was a live issue in the trial in that the evidence led by the appellant went not only to the issue of reasonable steps but also to proof of this defence. He submits that the Magistrate should have been aware that s 21 was an issue because the defence was expressly raised by his counsel when he addressed the court. The appellant submits that the Magistrate erred in failing to consider the defence at all.

59 I agree that the defence was a live issue in the trial and should have been considered by the Magistrate in his final reasons. Whilst a Magistrate does not need to refer to every issue or piece of evidence in his or her reasons, the important issues should be expressly considered. The defence under s 21 was one of the important issues in this case.

60 The Magistrate did not mention the defence in his reasons for decision. The respondent says that it is implicit in the Magistrate's reasons that he did consider the defence but found it not proven.

61 With due respect to the very experienced Magistrate, I cannot discern from his reasons that he considered the defence under the Act, s 21.

62 However, there is no doubt in my mind that had the Magistrate considered the defence he would have rejected it. This is because he found that the reasonable step the appellant failed to take was to obtain veterinarian advice and care for the relevant animals. It would be contrary to this finding for the Magistrate to then find that the appellant had proven on the balance of probabilities that he was, at the relevant time, acting on the instructions of a veterinarian surgeon and was providing the animal with veterinary care in accordance with generally accepted veterinary practices.

63 Further, on my analysis of the requirements of the defence and the evidence I conclude that the appellant clearly failed to prove the defence. I am able to determine this even though I did not see or hear the witnesses because the Magistrate did not make his decision on the basis of credibility findings and his findings of fact are not challenged on appeal. In essence the Magistrate accepted the appellant's evidence. I am also able to determine this issue on a view of the facts which is most favourable to the appellant.

64 The first requirement of s 21 is that the accused acts on the instructions of a veterinary surgeon. The relevant time for the purposes of each charge laid against the accused was between 28 April 2004 and 1 July 2004, that being the period from two weeks after the sheep arrived at the appellant's property to the date Ms Weissenberger inspected the sheep.

65 In order to determine whether the accused was complying with Dr Brighton's instructions a comparison must be made between the instructions and the evidence of what the appellant was doing at the relevant time.

1. Feed the sheep "four bags of oats or more per two days trailed out near the mob to keep an eye on the situation";
2. Put out "trace mineral blocks of salt - urea with trace minerals, cobalt, copper and selenium, for the mob to covert the dry feed better";
3. Not move or subject the sheep to stress including not to drench the sheep; and
4. Reappraise the sheep after they had picked up condition.

67 The only reasonable inference to draw from the appellant's evidence is that he reduced and changed the sheep's feed after they arrived at his property. Secondly, he was not putting out blocks for the sheep whilst they were at his property. Thirdly, he drenched the sheep with an unknown drench in June. Fourthly, in the space of nearly three months he did not have the sheep reappraised by a veterinary surgeon.

68 Consequently, the evidence did not establish on the balance of probabilities that at the relevant time the appellant was acting on the instructions of a veterinary surgeon.

69 The second matter that needed to be proven was that the appellant was providing veterinarian care to the sheep in accordance with generally accepted veterinary practices. It is not sufficient to prove that the appellant was providing care in accordance with veterinary practices which applied at a different time and a different place. As a matter of commonsense the care must accord with generally accepted veterinary practices for the relevant animals at the relevant time and place

70 The evidence on this issue fails to prove that the accused was providing veterinary care in accordance with generally accepted veterinary practices.

71 Dr Campbell gave evidence that when he saw the sheep in July, they needed to be drenched with a number of different chemicals, as determined by a vet or the Department of Agriculture, to remove their worm and parasite burden. The drenching programme needed to be monitored by frequent faecal worm and parasite counts. He was also of the view that the feeding programme needed to be increased to take into account the sheep's inability to absorb nutrients from their food due to their worm and/or parasite burden. Further, his view was that by the time he saw the six sheep the subject of the charges, most were going to die and all needed to be euthanized to alleviate their suffering.

72 Dr Brighton did not see the sheep at the relevant time. However, he gave evidence that the six sheep he saw in the video taken by Ms Weissenberger needed to be euthanized. He agreed that the sheep had needed to be drenched with a couple of drenches and then something further needed to be done if the sheep did not respond. He said that after the sheep were driven to the appellant's property they needed to be watched and fed, without any decrease from his previous feeding directions. The recommended veterinary regime would also depend on how far the sheep had to travel for water. He said that he could not judge from the video whether the condition of the sheep reflected a reasonable programme of attendance on the sheep.

73 The appellant did not drench the sheep with more than one chemical or with chemicals based on the advice of a vet or the Department of Agriculture. The appellant did not organise for faecal egg counts to be taken when the sheep failed to respond to the drench. Neither did he maintain the sheep on the feeding regime prescribed by Dr Brighton. Rather, he put the sheep on a "maintenance ration". Lastly, the appellant did not euthanize the sheep when they had suffered so much harm that the only reasonable step left to alleviate that harm was to kill them.

74 It is apparent from the appellant's evidence that he did not provide the sheep with veterinary care in accordance with what Dr Campbell and Dr Brighton would have recommended. Theirs was the only evidence as to what was generally accepted veterinary practice in respect to the sheep at the relevant time. Thus, if, as was the case, the appellant failed to prove on the balance of probabilities that he was complying with what they would have directed, the appellant failed to make out the second leg of the defence in s 21.

75 Consequently, the appellant failed to prove either leg of the defence in s 21. Even accepting that the Magistrate erred in not giving reasons for rejecting the defence under s 21, no miscarriage of justice thereby occurred. I dismiss this ground of appeal.