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

2. The allegations were intended to reflect the terms of s 8(2)(a) and (d) of the Animal Welfare Act 1992(the Act). Those provisions are:

"A person in charge of an animal shall not, without reasonable excuse-

(a) fail to provide it with ... adequate, food ... or

(b) neglect the animal so as to cause it pain;"

3. By s 4, of the Act "animal" means "any live member of a vertebrate species ... but does not include a human being". It includes "a mammal".

4. "Cattle" is not defined. Its ordinary meaning, however, clearly encompasses animals of the bovine genus.

5. The word "pain" is defined, though only inclusively, as "suffering and distress".

6. The maximum penalty prescribed for an offence against s 8 of the Act is one hundred penalty units or one year's imprisonment (or both).

7. The section is concerned with the protection, so far as that is reasonably practicable, of animals from suffering caused by humans. For example, s 8(1) of the Act prohibits (without reasonable excuse) a person from "deliberately" causing "unnecessary pain". In what circumstances the causing of pain will be deemed "unnecessary" is not defined. It is recognised that it may be not "unnecessary" at times to cause pain to an animal. Even to deliberately cause "unnecessary" pain may be excused if it was, nevertheless, "reasonable" to have done so.

8. In the case of s 8(2)(a) and (d) of the Act, there is, clearly enough, an assumption that the person "in charge of" the relevant animal is under a duty to care for and feed the animal. Absent such a duty, there could be no relevant "neglect" or "failure to provide".

9. The use of the words "neglect" and "fail" implies that there has been a failure to observe a standard of reasonable care entailed by that duty. That standard would, I apprehend, be judged against that of a reasonable custodian of such an animal or animals.

10. Only if such a breach has occurred in the relevant respect, does an issue arise as to whether, assuming the breach has caused the prescribed detriment, there was, or may have been, "reasonable excuse".

11. It was assumed both before the Magistrates Court and before me that the informations could validly allege neglect or failure to feed in respect of a group of animals rather than a specific animal. That is by no means self-evident but, as neither party addressed the issue, I refrain from comment upon it, as, in the final result of this matter, it is not essential to address it.

12. A senior veterinary officer, Phillip Leslie Andrew, gave evidence that on 22 April 1998, he had received a report that there were "sick and weak cattle" on a property in the Territory licensed to the appellants for the purpose of agisting cattle. The property in question is known as "Long Flat." It adjoins Namagi National Park.

13. As a result Dr Andrew attended Long Flat and inspected some cattle. Two days later, Dr Andrew contacted one or other of the appellants (he was not sure which of them it was) by telephone. He said that his purpose was:

"...to make him aware that I'd looked at some of his cattle and what I'd found and I was concerned that [sic-"there"] was a potential animal welfare complaint occurring and to ask him could he take action to basically remove some of the stock or feed them."

14. The appellant to whom Dr Andrew spoke said that he would need two or three weeks to take necessary action. Dr Andrew urged that action be taken within a week.

15. Dr Andrew described the observations he had made in the following terms:

"We'd seen weak cattle in poor condition. We'd seen a lack of feed on the property. We'd seen evidence that the animals had been eating poor quality feed because they had no good feed there. We didn't see evidence of a lot of hand feeding. In fact on that occasion I don't think we'd seen any..."

16. Dr Andrew carried out further inspections subsequently, taking still photographs and video film.

"On the earlier occasions there was poor conditions [sic], ribs showing, vertebrae showing, basically a lack of feed, loss of body weight and just deprived of feed, starvation."

18. He described a system of categorization of cattle known as "body score". It went from 1 to 6, the latter being top sale condition for beef production and the former being the minimum score, that is, poor body condition.

19. The details of observations made on 22 April 1998, he described as follows:

"...for the cows they had a body score of 20 per cent at approximately score 1, 20 per cent at approximately score two and 60 per cent at approximately score three. There was [sic] no mortalities and we looked [sic-"at"] over 150 head of cattle. Some of the calves, there was 20 per cent stunted and the 80 per cent were fair to acceptable."

20. That situation he put down to poor lactation from the cows.

21. The cows were "predominantly Herefords". Cattle scoring 3 to 4.5, he said, would be "optimum for market purposes". "Fair to acceptable" would, he said, indicate animals in less than "top condition" but "they are surviving and not doing it tough".

22. The next inspection was 17 June 1998. On this occasion, Dr Andrew noted:

"Cows 70 per cent had score one, 30 per cent score two. There was no mortalities noted on the property and we looked at approximately 100 head of cattle and the calves were fair to acceptable, with stunted calves still present."

"...a lack of substantial feed, cattle in a declining state of nutrition, evidence of feeding them poor, unpalatable feed type such as Russian [sic-"rush and "?] tussocks, indicative of hunger and deprived feeding."

24. There was no evidence of hand feeding that he could see.

25. On 1 May 1998, Dr Andrew had spoken by telephone to one of the appellants (later he said it was Mr Thomas Brayshaw). That appellant told Dr Andrew that bales of hay had been provided and stock was gradually being removed. Twenty had gone; up to 80 would go. Dr Andrew advised that numbers should be reduced to 103 head.

26. There was a further conversation on 8 May 1998. Dr Andrew said that Thomas Brayshaw advised him on that occasion that hay would be taken up the following weekend, though the latter conceded that the number of cattle Dr Andrew had advised should be removed had not yet been removed. Dr Andrew urged that something be done by 15 May 1998 on pain of action being taken to terminate the grazing licence for the land.

27. Dr Andrew was, shortly thereafter, advised by a ranger that a further 40 head had been removed.

28. On his inspection on 17 June 1998 Dr Andrew did find some evidence of "straw" but considered that it was not "consistent" or "heavy". He also found evidence that there had been a "lick block" (ie. a feeding supplement) on site. He accepted that these signs constituted evidence supporting some efforts at least at hand feeding.

29. The next visit was 9 July 1998. On that date, Dr Andrew reported:

"...cows had a 70 per cent score 1, 30 per cent score 1.5 and there was [sic] no mortalities and we saw approximately 65 head, but there were others noted up in the timber ... calves acceptable."

30. Photographs were taken. They depict two beasts, a cow and a bull. They are clearly quite thin. They display no brand or other indication that they belonged to or had been taken in charge by the appellants. This becomes significant in view of the possible admixture of strays from the national park within the herd from time to time.

31. There was, in Dr Andrew's opinion, evidence of "malnutrition". By that he meant, he said, not an acute condition but a chronic situation, over a couple of months:

"Just a lack of substantial feed in both quality and quantity ... the animal ... its utilised body tissues which can to a point break down the whole of the body tissue ... ultimately it can lead to death if it goes too far."

32. If the animals became too weak they might, he said, be unable to free themselves from a bog or fall prey to foxes.

33. The next occasion Dr Andrew visited the property was 14 August 1998. The result was:

"For cows it's 60 per cent score 1, 40 per cent score 1.5, calves acceptable, 6 head found died and inspected approximately 80 head."

34. The comparative situation he commented on in the following terms:

"The surprising thing was we're now starting to get mortalities even though the body score hadn't - you can't go much lower than what we'd found anyway but what was happening now we're starting to get mortalities building. ... The conditions were deteriorating."

35. A video was taken of the inspections and of post-mortem examination of at least one animal on this occasion. It was shown to the court.

36. I note that the video taken on 14 August 1998 contains verbal observations both from the informant and Dr Andrew, not merely as to the scene being recorded but also expressing opinions, many of them couched in emotive terms, concerning the condition of cattle observed, cause of death of the deceased cattle and the like. Such epithets as "shocking", "starving" etc, are used. These out of court statements should not have been admitted into evidence. I do not place any reliance on them save insofar as they explain objectively what is being observed.

37. Dr Andrew was asked about a deceased calf observed on the video. It was heavily infested with body lice. That, Dr Andrew said:

"...is sometimes associated with just poor husbandry and sometimes you get more of them when they are in poor condition."

38. All that meant, however, was that the calf had not been sprayed or drenched. It was, he conceded, "a minor problem".

39. Of more concern was the infestation of liver fluke found in the calf. The effect of such infestation is eventually to prevent the liver functioning, leading to death. It can be treated with an internal drench. The Long Flat property was a heavily infested liver fluke area. The infestation also affects, and can be spread by, kangaroos.

40. In Dr Andrew's opinion cattle in the area should have been drenched for liver fluke at least twice a year.

41. An indication of infestation was, he said, that:

"...They get a bottle jaw, a bit of a fluid swelling in under the jaw. The loss of the body condition."

42. However, "bottle jaw", he cautioned, could also be related merely to malnutrition or some other parasitic infestation. It would take two to three months of infestation to get to such a stage.

43. Once the infestation had reached the stage where the liver had ceased to function, the affected animal "would be in some pain," he said.

44. Over the period Dr Andrew had seen the herd of cattle, he said:

"the decline in body condition associated with malnutrition ... consistent with the shortage of feed available on the ground both in quality and quantity ... there was this parasitic burden as well which contributed to some of those problems."

"There was supplementary feed given. It certainly wasn't given in a quantity large enough to actually avert the problems."

"the property had been "overstocked" in the drought period of the 1997 and 1998 summer with resultant poor natural pasture recovery. There was insufficient supplementary feeding, stock reduction and scrutiny."

45. He conceded that Mr Thomas Brayshaw had taken steps before 14 August 1998 to reduce stock numbers on the property to more appropriate levels. He considered, however, that inspections by the appellants of the property should have been weekly or bi-weekly. However, it should be noted that Dr Andrew had no first-hand knowledge of when or how frequently the appellants had attended the property.

46. Dr Andrew found that the calf he examined at post-mortem had sand in the gut. That he said:

" . . . just indicated that the animals have been grazing extremely low and have been taking up a fair quantity of soil with the feed that they've been basically grazing."

47. Dr Andrew did not fully adopt the prosecutor's invitation to agree that his finding indicated a lack of adequate supplementary feed. He responded:

"I don't think you can say that just on that evidence alone for just the amount of soil there in the gut, but it would be an indicator that they're grazing extremely low and I think that's all you can say."

48. Not content with that answer, the prosecutor further cross-examined his witness:

"Yes, but I'm sorry, taking into account a combination of factors; first, the sand in the gut and conditions of the animals overall, would that be an indicator to you that they were not being provided with adequate food?

Yes, that would be an indicator that they've got insufficient food."

49. It may be noted that this answer did not explain the fact that the calves generally, even at 14 August 1998, had already been assessed by Dr Andrew as being in a satisfactory condition. It left open the standard by which or the purpose for which adequacy was to be assessed. Was it to bring them up to prime sale condition or merely to prevent them starving to death (or, at least, suffering "pain")?

50. In cross-examination Dr Andrew conceded that whilst farmers elsewhere received drought relief to assist with buying supplementary feed, that was not available in the Territory. In the result, nothing turned on this fact. The Long Flat property was, he also agreed, adjacent to Namadgi National Park. He further agreed that he had seen about 120 sheep trespassing from a neighbouring property. The areas of the property adjacent to the national park constituted, he further conceded, "a problem".

51. He also accepted that cattle from other properties, or even long-term strays, might well have entered the property from the national park. He could not say that the same cattle were seen by him on each occasion that he inspected the property. Nor was more than a sample seen and assessed so as to give rise to the proportions he had mentioned of relative "body scores".

52. He agreed that, if drenching for liver fluke had occurred as at 1 April 1998 some cattle present on 14 August 1998 might not have been drenched either because they were not then born or because they were subsequent strays from outside of the property.

53. The condition of an animal infested with liver fluke would, he said, deteriorate rapidly. It would be normal to drench in Autumn and Spring. Feeding an infested animal would not lead to improvement or even maintenance of its previous condition. There would need to be treatment as well as good nutrition once heavy infestation was detected in an animal. The signs would not quickly disappear, six weeks would be required (usually) for the animal to recover.

54. On 14 August 1998, Dr Andrew had observed a dead cow in a bog. In his opinion, it had been trapped for twenty-four to forty-eight hours. The animal had not, apparently, attempted to struggle out. Dr Andrew concluded that it had been too weak to have done so. He did not observe any brand or tag.

55. It followed that there was nothing to indicate whether that cow had been one of the Brayshaw herd or a stray. It was clear that it would not indicate neglect to fail to inspect the property every day or so to ensure cattle had not become bogged in mud sinks, even if they were cattle for which the appellants had responsibility. Dr Andrew's opinion was that, whilst bi-weekly inspections would be preferable, weekly inspections would be acceptable practice.

56. Ms Judith Liosatos, Senior *RSPCA Inspector, had accompanied Dr Andrew on the inspection on 14 August 1998. The cattle were formally "seized" on that occasion. That is, the RSPCA assumed responsibility for their welfare, though they were not physically moved.

57. Ms Liosatos conducted a taped interview with Mr Thomas Brayshaw on 26 August 1998 and Mr David Brayshaw on 2 September 1998.

* RSPCA - Royal Society for the Prevention of Cruelty to Animals.

58. Mr Thomas Brayshaw, in his interview, made the point that the "stocking rate" had been hard to monitor:

"...because [sic-"of"] the poor state of the fence adjoining the park cattle have been coming and going and [sic "we"] haven't been able to get a decent muster in more than 12 months."

59. He had, he conceded, observed that the number of cattle on the property had got up to approximately 200 (including calves). Cattle had never required supplementary feed until the past two years. There had been drought conditions over that latter period. He said:

"...we did take some hay up there and feed out but the cattle - well, that was after April but there wasn't very many cattle that would come to the feed because, you know, they'd disappeared into the park. Some had gone across the river into the next door neighbour's and really there was not a lot of cattle that would really come to the feed."

60. The wooded areas made the higher reaches of the property, he said, "pretty inaccessible". He did distribute feed around "the cow patches," but he conceded:

"We were sought of - ran out of money as well as food. I had hay here and I took that up."

61. There were 200 bales taken up in April (small bales) and 10 round (very large) bales after April.

62. The first appellant said that he would attend to muster and drench cattle three or four times a year. On the last occasion when he attended, shortly after 14 August 1998, he considered the condition of the cattle was:

"...light but the cattle ran and they didn't appear to be too bad, you know, and I thought that pasture was starting to come."

63. He said that drenching occurred twice per year "and we try to drench the calves about three times per year". They were last drenched he said, in March 1998. (In fact it seems it was early April but no point was taken against the appellants on that account). One hundred and thirty-two head of cattle had been mustered for that purpose.

"I discovered that there was some other cattle had come in from the park that had missed out on the drench. Then we - my brother took some fellows up from down where he lives and they went up to muster and drench about the time of the rain, but all they mustered was about 60 head..."

65. He agreed that cattle afflicted with liver fluke could come in from the park and mingle with the cattle that had been drenched. He had himself taken about 40 head which appeared to him to have been in the "poorest" condition either for sale or removal to his New South Wales property.

66. Mr David Brayshaw, the second appellant, stated to Ms Liosatos in his interview that the cattle on the property were given supplementary feed once per week as from July 1998. He had been unable to attend the property personally since late July 1998 because of fractured ribs. It appears that his understanding as to feed had been a result of what the first appellant had told him.

67. The property had also been visited from time to time by Mr Simon Katz, an ACT Parks Ranger. Although Mr Katz was of the view that the cattle he observed on Long Flat were in "very poor condition" he did not attempt any real analysis of their condition. However, he corroborated the appellants' assertion that they had removed stock and kept a constant supply of supplementary feed available for such cattle as chose to access it. He took photographs on 25 June and 9 July 1998.

68. It also appeared from a departmental file (ACT Parks and Conservation Service) that, on 8 July 1998, the Service's manager wrote to Mr Thomas Brayshaw, complaining that the licensed property had become overstocked. "Animal Welfare Concerns" were expressed. It was stated that cattle had been reported by "The Government Veterinarian", presumably Dr Andrew, to be receiving "inadequate food". It may be observed that, although Dr Andrew expressed concern about some of the animals observed it was not merely, as the author of the letter to Mr Thomas Brayshaw seems to have assumed, because of "body score". The letter acknowledged the provision of supplementary feed but requested that it be increased.

69. Why this letter was admitted into evidence is unclear. It could only have gone to the appellants' knowledge of the allegation of inadequate feeding as at the date of delivery of the letter. That had not been disputed by the appellants, however. It otherwise raised irrelevant and possibly prejudicial matters concerning arrears of licence fees.

70. The departmental file went on to record that, at least purportedly, the Service terminated the appellants' grazing licence as from 19 August 1998, declared the property "a pound" and purported to claim costs and expenses which, as at 2 December 1998, allegedly totalled $9,369.03. That evidence was not even arguably relevant to the issues before her Worship.

71. The discussion before her Worship concerning the use to be made of the departmental file was confusing. There was no clear statement as to the purpose of its tender. However, it could only have been relevant to show notice of possible animal welfare issues that the appellants ought to have given consideration to.

72. Mr Bevan, for the appellants called each of the appellants as witnesses.

73. Thomas Brayshaw, the first appellant, deposed that Long Flat had been originally licensed to, and cattle on it owned by, his late brother William. William Brayshaw had had about 130 stock. The cattle, when he first mustered them, had included "a lot of mickey bulls". Those, he explained, were unbranded feral animals. All the cattle "officially" there were branded and tagged.

74. By early April 1998, the summer having been bad, the condition of the cattle there was:

"...pretty light and we had a mass of fluke infection which really stripped the condition off them."

75. A muster was then done. One hundred and thirty-two head were located and drenched. However, whilst Mr Brayshaw believed all cattle had been drenched:

"...I went up a fortnight later to check and then there was an influx of cattle that had come in."

76. The next time he went to the property, however, "those" cattle had disappeared.

77. After Dr Andrew had called him, he said two loads of cattle, those appearing to be in the worst condition, were removed.

78. On the issue of supplementary feeding, he said:

"I purchased some hay from a produce place in Goulburn. I did have a couple of hundred bales of - small bales, I took them up initially and then I got some bigger round bales off the produce fellow and I took two of them up each week ... plus I did sprinkle a bit of oats through the hay as well to give it a bit of a boost."

79. He acknowledged that, even so, the condition of all cattle in the region as far away as Goulburn and Cooma was universally pretty poor. It was common for stock losses to occur. Some cattle missed out on inoculations and drenching. It was his view that once the green grass came the cattle would "bounce back" to a body score of about 3.

80. As to the cattle, described on video as being in "shocking" condition, Mr Brayshaw said:

"...those cattle that were on the video I'd say they must have come in out of the park because when I was up there a few days before I didn't see them. That last one that was dead in the bog it had only - well according to Mr Andrew - it had only been dead for 24 hours at the time so, you know, there was no way we could see it. The bull that was on top of the hill it had died some time before. It - we found it with its back down the hill against the fence and I've drug [sic] it up there..."

81. The "wild" cattle could be distinguished from his, he said, only by reference to the brand and earmark.

82. In cross-examination, Mr Brayshaw agreed that his activities were profit driven and that it cost money to provide care and feed beyond the usual. Further, he conceded, as was obvious, that he could have taken cattle off the property or had them put down, if their condition had warranted it.

83. From May 1998, he said, he had visited the property weekly. He was asked if he had noticed a decline in the condition of the cattle he saw there.

"Well, not really. The condition was fairly stable. The main cattle that were low in condition were the ones that came in out of the park."

85. He conceded that he had not, as would have been more sensible, banded the tails of cattle already drenched so that non-drenched cattle could more readily be identified.

"Well the one thing we did was mark the calves. The calves were unearmarked and unbranded and we did mark and brand the calves..."

87. The evidence did not suggest that the calf found dead on 14 August 1998 by Dr Andrew was branded or earmarked. Thus, if Mr Brayshaw's evidence was not rejected, it must be assumed that it was a feral calf which was so found. At least the contrary hypothesis cannot be regarded as proved beyond reasonable doubt.

88. The first appellant agreed that he should, as a farmer, treat sick and infested cattle but made the point that they had to be "brought in" first. It was not practicable to fence off the whole area. He maintained that his stock had had sufficient feed for survival, albeit that it was not then "adequate" to maintain optimum condition. Nevertheless, he maintained it was:

"...not unusual for cattle to get down to the fairly low condition in a drought."

89. Mr David Brayshaw, the second appellant, said he had visited the property monthly. He had not been there at the drenching in April 1998. His impression of the cattle he saw was that:

"They were in light condition, but they were strong."

90. He was aware that his brother put feed out. So did he. He put out some clover hay and salt licks.

91. He agreed with Mr Todd, for the informant, that it was impossible to guarantee a full muster for drenching. He agreed, as his brother had, that tagging or dye-marking stock already drenched would have been a better practice.

92. As to adequacy of feed, he said that the hay provided was:

"...nearly enough to keep them from deteriorating too badly.

There was enough perhaps to keep them alive do you reckon? --- I think so."

93. He agreed that the dead calf examined on 14 August 1998, infested as it was with liver fluke, would have been suffering pain before it died.

94. Thomas Brayshaw's son, Wayne, also gave evidence. He had taken part in the muster for drenching in April 1998. Otherwise, his evidence did not advance the matter much further.

95. Two further witnesses were called. The first was Gregory James Darmody, a stock and station agent. He deposed that he had sold, on behalf of the appellants, the cattle taken off their property. He described those animals as in light but strong condition. They were in better condition, he said, than a lot of stock offered for sale at that time, that is, April and May 1998. The appellants' cattle were he said, kept for breeding rather than meat, hence they were not usually more, even aside from the drought conditions, than a body score of 3. They were, he said, "mountain cattle."

96. He considered the animals shown in the photographs tendered in evidence to be in "poor" condition. However the June photographs, he considered, showed cattle which nevertheless looked "quite strong", and "reasonably bright". Some of the older beasts, he felt, were "a little bit weary looking".

97. He was shown the third series of photographs taken in July 1998 which show the bull and cow. In Mr Darmody's opinion they looked to be in the same condition as animals shown in the April photographs. He had seen cattle on the property on 12 October 1998. Despite his knowledge that they had been allegedly in a parlous state in August 1998, requiring RSPCA intervention, he considered the cattle "very strong".

98. He was asked by Mr Todd about protruding bones as a sign of malnourishment:

"...[That] would be an indication to you, would it not, that those stock aren't being adequately fed?

--- It means that they're not getting enough feed, they're starting to slip away in condition.

That's right and if they don't have good feed eventually, you would agree, that the stock would die? --- It depends how far you let the fat reserves in their body run down."

99. He regarded the cattle depicted in the photographs as "acceptable" though he agreed that they should not be allowed to get any worse. He did make the point that, in the absence of natural feed, hand-feeding would not improve the condition of the cattle.

100. Only two of the animals depicted in the photograph, in his opinion, "were getting into a dangerous state." Of those animals, he said:

"If they were old animals you could see them being weak whereas the other cattle to me didn't appear to be weak."

101. So far as exposure to liver fluke was concerned, Mr Darmody made the point that the only effective control was drenching. Cattle could not be isolated from infested watercourses.

102. Dr Ian Hayes, a veterinary surgeon in private practice in Goulburn was also called. His expertise and experience were not challenged.

103. He was of the opinion, that, if Long Flat was a high liver fluke area, drenching should have been undertaken three months after the first drenching, if that was April 1998. He agreed with the view that, if cattle were infested, even otherwise adequate feeding would not prevent their condition deteriorating. They would not eat supplementary feed.

104. The 1997-1998 drought, he said, had adversely affected the condition of cattle in the region generally. The test, in his view, for deciding whether to put cattle down or to try to maintain their survival was:

"...it depends on how bad a condition it is in. If it was extremely poor and there wasn't an immediate prospect of it coming through the season, then it probably should be destroyed, but there was a lot of cattle in score one or two condition that were obviously going to make it until the next flush of growth. So those cattle shouldn't have been destroyed..."

"When an animal becomes emaciated, do you accept that the animal would be in pain then?

--- It's not necessarily so, no.

--- Would you accept that a period before their death that they would suffer pain? --- Yes."

106. Dr Hayes also was of the opinion that the statistics recorded by Dr Andrew of stock inspections between April 1998 and August 1998 indicated there had been, in general, improvement in the condition of the herd rather than the contrary.

107. Her Worship reserved her decision until 12 July 1999. She commenced with the assertion that:

"Now, the defendants admit that they were the owners of cattle agisted ... on a property called Long Flat."

108. Whilst literally true, it should have been noted that the appellants had disputed ownership, custody or control of feral cattle which came into the property from the park. It would have been more accurate to say, that they admitted ownership of most of the cattle from time to time present on the property.

109. Her Worship, correctly, noted that Dr Andrew had formed the view that a number of the cattle he observed on the property should have been removed or more effectively hand fed. He had thought it was urgent. His opinion of the cattle her Worship characterised as:

"...weak cattle in poor condition, lack of feed, no evidence of hand-feeding".

110. The poor condition of the cattle was caused, her Worship concluded, by lack of nutrition. She attributed to Dr Andrew an opinion that:

"...an animal suffering from malnutrition is also suffering pain, because malnutrition involves the process of breakdown of body tissues and ultimately leads to death."

111. That was, in fact, a misconstruction of the effect of Dr Andrew's evidence. His evidence was consistent with that of Dr Hayes. 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. If that stage is reached, the affected animal is at risk of attack by foxes, of being too weak to feed or of being unable to get out of mud sinks.

112. Her Worship referred to the dead calf found on 14 August 1998. It had liver fluke and was malnourished. There was body lice infestation. Dr Andrew saw no evidence of sufficient supplementary feeding.

113. He, of course, was not present on the property otherwise than on the four occasions mentioned by him up to and including 14 August 1998. His finding of lack of evidence of hand-feeding (and he did on the later inspection find some evidence of it) could not support a finding that there was no supplementary feeding unless the appellants' evidence to the contrary was to have been rejected. If feed was provided and eaten, it is obvious that only remnants, such as he found, would remain.

114. The destruction of an animal on 18 August 1998, referred to by her Worship was irrelevant. The need to do so only arose after the RSPCA had assumed control of the cattle on Long Flat.

115. Mr Katz had also given evidence of observing both signs and supplies of supplementary feed, albeit he still had concerns for the welfare of the cattle on the property.

116. Dealing with the evidence of and for the appellants, her Worship also misconstrued the evidence of Dr Hayes as being:

"He said in his evidence that he didn't know if weight loss could cause pain but agreed that liver fluke would cause pain in the period before death."

Dr Hayes in fact had said that weight loss would "not necessarily" cause pain.

117. The defence as put was characterised, in my respectful view incorrectly, as being, in the context of general drought (not a fact disputed by the prosecution) that:

"...the cattle were slight but strong, supplementary feeding is an expensive exercise, the area is a heavy fluke area because of the kangaroos."

118. In her Worship's view what the appellants had to do was:

"...to either sell or to feed or to destock or to drench or all of the above."

119. Thus as they had presumably failed to do those things sufficiently the offences were found proved.

120. Those reasons, of course, make no reference to the evidence of the appellants, not disputed, 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.

121. Nor did her Worship indicate the standard by which adequacy of feed was to be judged or what it was, if not the same thing (thus duplicitous), which constituted neglect leading to pain. In the latter respect, the prosecution had put its case on neglect as a failure to drench. Again, to make that case, the appellants' evidence to the contrary would have had to have been rejected.

122. On this appeal s 214(2) of the Magistrates Court Act 1930 (MCA) obliges me to:

"...have regard to the evidence given in the proceedings..."

123. I am given also the power to draw inferences of fact.

124. To support the same conclusion as that appealed from, it is necessary to go further than simply to find that the conclusion so reached was open on the facts as found. It is necessary to be satisfied that the conclusions reached by her Worship are not erroneous.

125. If error is perceived, then, as Miles CJ noted in Sharrett v Gill [1993] ACTSC 147; (1993) 65 A Crim R 44, 45-46,

"In accordance with s 214(2) ... this court must act to correct the error."

126. Even where a Magistrate has expressly rested his or her decision on the credibility or otherwise of a witness, an appellate court must, having paid due deference to the advantage the Magistrate had in seeing and hearing the witness, examine the correctness or otherwise of the conclusion, even as to credit (see State Rail Authority of New South Wales v Earthline Constructions P/L (in liquidation) [1999] HCA 3; (1999) 160 ALR 588). Of course, in an appeal stricto sensu it would be unusual, if the result depended only on the credit of a witness, for an appellate court to conclude that the assessment of the credit of that witness was wrong.

127. When the appeal is by way of rehearing, not only will the appeal court be obliged to intervene if the primary decision appears tainted by error of fact or law, but also when, having allowed for any advantage the Magistrate had seeing and hearing the witnesses and giving due respect to his or her conclusions and reasons, the appeal court is of the view that the decision arrived at is wrong.

128. That was recently emphasised in ACT v Badcock [2000] FCA 142 (18 February 2000). It is not enough to come to a view that a conclusion was "open" to a trial judge; the appeal court, on a rehearing, must find itself in agreement with it.

129. In the present case, the prosecution had assumed that the appellants had not disputed "ownership" of the cattle on Long Flat. That was not correct. Their acknowledgment of ownership was ambiguous. It is clear on a fair reading of the submissions and their evidence that the appellants were asserting clearly and consistently that cattle "from the park", cows, bulls and calves as well, were, from time to time, mixed in with those they did own. Their admission was that they did own cattle on Long Flat. They accepted responsibility for those cattle.

130. That admission did not mean that the appellants accepted responsibility for feeding and drenching feral cattle. 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.

131. It is necessary, the issue having emerged more clearly on the hearing of this appeal, to give effect to the lack of any evidence that any particular beast found deceased or seriously distressed had belonged to the appellants as opposed to having been a stray which they had not taken into possession.

132. During the hearing of the appeal, on 14 February 2000, I pointed out to the parties that the prosecution and her Worship had proceeded on a false premise. It had been contributed to by the ambiguity of the defence concession as to "ownership".

133. I therefore granted the parties leave to call further evidence and adjourned the further hearing to a date to be fixed.

134. For reasons not explained to me, the matter was not re-listed until 6 November 2000.

135. The prosecution then tendered supplementary statements from Ms Liosatos, Mr Simon Katz and Dr Phillip Andrew. Their tender was consented to.

136. Ms Liosatos' statement set out the precise terms of the conversations in which Mr Thomas Brayshaw and Mr David Brayshaw had conceded they owned the cattle on the agisted properties.

137. As had already been stated in her sworn evidence and confirmed in her supplementary statement, Ms Liosatos conceded that Mr Thomas Brayshaw had expressly drawn attention to the fact that strays had come into and out of the park (Namadgi).

138. It does not assist to somehow fix the appellants with ownership of such strays that when cattle were drenched by the RSPCA on 12 October 1998, Mr Thomas Brayshaw, though present, did not volunteer that any of the cattle drenched or removed were not cattle owned by the appellants.

139. Nor does it assist to resolve that issue that Ms Liosatos spoke with Mr Thomas Brayshaw about selling the seized cattle and that the proceeds were claimed by the appellants' solicitor as monies to be held in trust for the appellants.

140. By then, of course, the cattle seized had been taken, drenched and, if not branded, at least constructively, taken into possession by the RSPCA in trust for the Brayshaws.

141. That did not resolve any factual issue as to the identity or ownership of any cattle previously adversely noticed and, in particular, those present on 14 August 1998. It was not even established that all cattle on the property were included in the RSPCA supervised muster. Indeed the contrary appeared to be the case.

142. Even as late as 23 July 1999, following a request from the RSPCA to the appellants to "have the cattle removed from Longflat [sic] by the end of August 1999," Mr Thomas Brayshaw phoned Ms Liosatos and told her that:

" . . .he'd got a couple of truckload, but the stragglers were wilder and would be a problem."

143. Some of the sold cattle were tagged as belonging to the appellants. Others were tagged as if they belonged to the RSPCA.

144. That, if anything, confirms the hypothesis Mr Thomas Brayshaw advanced. That is, that some of the cattle on the property on and prior to 14 August 1998 were strays.

145. Mr Simon Katz had been, until February 2000, a Ranger employed with ACT Parks and Conservation Service.

146. It was his statement that he had "from 24 April 1998" had numerous meetings and telephone conversations with the appellants and a Mr Graham Oldfield concerning the welfare of cattle on Long Flat. Mr Oldfield was not otherwise identified. Generally, the conversations were about stock straying onto the "Onoral area of Namadgi." He said:

"There was never any suggestion from either Tom or Dave Brayshaw, that these cattle did not belong to the Brayshaw's (sic), or that they were the responsibility of someone else."

147. That statement is, of course, of no evidentiary value. It is not known whether Mr Katz directly asked the appellants or either of them whether particular cattle, as opposed to the stock from time to time on Long Flat generally, were or included cattle belonging to them. He offered no observation as to whether any particular animal or group of animals were tagged or earmarked at all, let alone with the brand or earmark registered to the appellants.

148. The hypothesis advanced by Mr Thomas Brayshaw in his evidence as to the presence of feral strays is supported rather than contradicted by Mr Katz' assertion that no other cattle on Long Flat were apparently branded or earmarked with the mark of any other identifiable owners. If any animal was unbranded it could not be suggested that it had not, as Mr Thomas Brayshaw asserted might have happened, strayed in from the park. Mr Katz does not suggest that there were no unbranded cattle.

149. Dr Andrew commented in his statement on various issues. Most had already been addressed in his evidence before the learned Magistrate.

150. He did however, offer an additional opinion on the nutritional requirement for a "maintenance ration" for cattle such as those on Long Flat.

151. The effect of this was he said that, assuming 166 cattle on the property at the time of his inspections after July 1998, the nutritional requirement was 5670kg of feed per week. He further calculated that the appellants had provided up to 7500kg of additional feed over the period up until 14 August 1998, when the cattle were seized.

152. The basis for this opinion was a table annexed to Dr Andrew's statement. The provenance and authority of that table was not explained. Nor is it clear why the figure of 166 was chosen. The highest number of cattle observed by Dr Andrew had been "over 150" head on 22 April 1998. The number observed on 14 August 1998 was only "approximately 80."

153. However, even if the table was regarded as authoritative and correctly applied, the conclusion to be drawn that inadequate feed was provided is open only if no other feed was available on the property. That assumption was not made good. There clearly was some natural feed albeit not in abundance.

154. There were cattle, as Dr Andrew had already observed, whose condition had deteriorated to body score 1. There were cattle affected by liver fluke. Dr Andrew's opinion was that this, together with the deaths of the two beasts he referred to on his evidence, indicated failure to provide adequate feed and "poor husbandry and neglect". That conclusion is not an expert opinion. It is an assumption. It can be supported only if it is accepted, contrary to Mr Thomas Brayshaw's evidence, that no strays had entered the property between the April drenching and the August seizure of cattle. It had further to be assumed that the seriously malnourished cattle were not only cattle for which the appellants were responsible but had not strayed away from the areas of the property where both feed and drenching were available into areas from which they could not be mustered. It was not disputed that parts of the property were inaccessible.

155. The allegation against the appellants is that the animals generally (approximately 170 head) were neglected (so as to become infested with liver fluke) and not adequately fed (so as to become dangerously malnourished). If some of those animals were not neglected (ie had been drenched) and some animals were adequately fed then, unless the numbers of those in the less fortunate class is so great as to exclude the possibility that they were feral cattle, it cannot be taken to be proved, beyond reasonable doubt, that any of the appellants' animals had been neglected or inadequately fed. Further, if some of the appellants' animals had not been neglected or inadequately fed but others had been, it is by no means clear that the charges are correctly framed. However, no point was taken as to the form of the changes and, in the end result, nothing turns on it.

156. It was common ground that in the years 1997 and 1998 there had been conditions of severe drought affecting the entire region. Thus its consequences could not be avoided by merely shifting cattle from one property to another.

157. Although her Worship accepted Dr Andrew's opinions concerning the state of the animals seen by him on the occasions of his visits, she ignored the opinions expressed by Dr Hayes. The two witnesses were not, in fact, in conflict. Dr Hayes provided some insights Dr Andrew did not have. In particular, his observation that mountain cattle are invariably leaner than cattle bred for beef and that it is not unusual, particularly during the colder months of winter, to permit cattle to use their body fat pending spring growth of natural feed.

158. It appears that her Worship adopted a standard for "adequate" feeding, as did Dr Andrew, of maintaining optimum body weight. That may well be appropriate for some classes of animal but I consider it to be an incorrect standard in relation to animals kept for stock as these animals were. Indeed Dr Andrew did qualify his earlier view somewhat in his later statement by referring to "maintenance rations." It seemed to be DrAndrew's view that to have ensured the provision of "maintenance rations" was "adequate" in the circumstances. The evidence did not rule out the possibility that the "rations" provided by the appellants fell within Dr Andrew's concept of "maintenance rations."

159. The purpose of s 8(2) of the Act is not to ensure that animals are kept in prime condition. It is to protect them from unnecessary pain and suffering, so far as their owners or custodians are aware of the need and have reasonable means available to them to do so. "Adequacy" of feeding, therefore, must be judged against that standard.

160. It was evident that from April 1998 until August 1998 that there was a shortage of natural feed on Long Flat. It was also apparent that, unless supplementary feed was provided, all the cattle on Long Flat were at risk of either starving to death or becoming so weak they would fall prey to foxes or bogs.

161. The appellants thus had a duty, in my view, to take reasonable steps to provide supplementary feed.

162. Each of the appellants gave sworn and unchallenged evidence that they provided supplementary feed, at least from May 1998. Dr Andrew was not asked about the adequacy, at least in theory, of the quantities of feed provided by the appellants for their cattle, so far as they knew the number of such cattle to be. It could not be concluded, therefore, that the feed they provided was insufficient in theory to tide their cattle over until spring. I have already noted the fallacy in Dr Andrew's subsequent statement even if it provides an acceptable standard and relates to a number of head of cattle which were in fact to be fed by the appellants.

163. It was Dr Hayes' view that supplementary feeding could do no better than to tide the cattle over until spring. It is apparent from the photographs, the video tape and the evidence of Dr Andrew and of Mr Katz that the bulk of the animals seen on Long Flat had, indeed, maintained their strength at least above the point where they could be regarded as being in pain or at risk of death or injury from the effects of malnutrition.

164. The provision of supplementary feed, of course, had some practical weaknesses. The number of animals accessing the feed was not confined to those belonging to the appellants. Some of the feral strays no doubt accessed it. That it was all consumed is apparent from Dr Andrew's observations after April 1998 although he unfairly drew, as did her Worship, the adverse inference that the remnants of such feed that he saw implied that only inadequate amounts had been provided. There was also the possibility, of course, that kangaroos, also starved of sufficient natural feed, had accessed some of the supplementary feed.

165. Further, cattle did not, and could not be expected uniformly to, access the feed provided. There was undisputed evidence that some animals would simply ignore supplementary feed. There was also the distinct possibility that some of the appellants' animals could have wandered into the mountains and become cut off from access to the supplementary feed.

166. It follows that a case of inadequate feeding could only have been established, if it could be shown either that the appellants' evidence as to supplementary feeding was false or that, even if true, the amount of feed (and its type) as provided was inadequate to preserve the appellants' cattle from suffering and death ie. that they would not survive the winter save in such a state as they would need to be put down to end their suffering.

167. The evidence does not enable that conclusion to be drawn. Certainly it is not established to the requisite criminal standard.

168. In so concluding, it by no means follows that the appellants did provide adequate feed. It also does not follow that the RSPCA was not entitled to be concerned, not only for the welfare of the appellants' cattle, but also for the welfare of the feral beasts from elsewhere.

169. The issue as to neglect so as to cause pain, revolves around the steps taken to protect the cattle from liver fluke infestation.

170. Before her Worship there was some faint attempt by Mr Todd to suggest that the cattle could be fenced off from the areas of infestation. That would also have fenced the cattle off from the natural feed and water that the property did have. It would not have protected the cattle from liver fluke in any event as kangaroos were also a source of infestation. That suggestion was not adopted by her Worship. I do not consider that it was in any event, a practicable option.

171. There were some beasts suffering liver fluke infestation present on the property. It was known that liver fluke parasites were on the property and inevitably would infest most, if not all, cattle which grazed there.

172. Liver fluke infestation would result in a lack of desire for such feed as was available. In any event, even adequate feed would not improve the condition of the infested animal. There would, in early stages, be signs of "bottle jaw" from increasing fluid build up. As the liver lost function there would be suffering and eventually death.

173. The calf examined post-mortem by Dr Andrew was heavily infested with liver fluke. There was, of course, no evidence that it was one of the beasts of which the appellants were "in charge". Nevertheless, it was clear that the appellants were aware of the general likelihood of infestation and the need to take steps to avoid it causing suffering to their animals.

174. Again, it was undisputed that they had drenched all cattle that they could find on 1 April 1998. There was a supplementary drenching a week or so later. It is obvious that more cattle were drenched than the appellants owned (at least so far as their books recorded such cattle). It was, no doubt, impracticable to separate out feral cattle and drench only those branded and tagged as theirs. In any event, it would have assisted to reduce infestation generally to drench all animals likely to carry the liver fluke parasite.

175. The only issue in those circumstances is whether, before 14 August 1998 and after April 1998, a need for a further general drenching for liver fluke had arisen that the appellants culpably ignored.

176. There was some evidence to support the view that such a need had arisen. Dr Hayes expressed the opinion that the drenching in April 1998 would have been effective for only three months or so. Thus, a further drenching would be required to control liver fluke in the herd during July 1998 or, at the latest, early August 1998.

177. That view was not one held by all relevantly qualified witnesses. Dr Andrew agreed that two general drenchings of cattle per annum would suffice. So also did the appellants. All witnesses agreed that calves should be drenched in their first year.

178. However, even as at 14 August 1998 the condition of all living calves seen was regarded as "acceptable" by Dr Andrew. That opinion no doubt, included an assessment of their infestation or not with liver fluke. There was no evidence that any of the appellants' cattle, or indeed any that were then living and on the property, whether the appellants' cattle or not, were infested with liver fluke. Certainly none were "suffering" from it.

179. It could not, therefore, have been concluded on the evidence that a failure to drench again after April 1998 and before 14 August 1998 was so imprudent as to constitute neglect. Nor that any such delay had caused the appellants' animals or any of them any "pain."

180. The drenching was criticised before her Worship on another basis, however. The appellants conceded that it would have been better, given the fluctuating membership of the herd, to have marked those beasts which had been drenched so that those who had escaped drenching in April 1998 could be identified if they appeared amongst the herd later.

181. There is, in my view, considerable merit in that criticism. As from April 1998, the appellants could only have identified uninoculated animals from the fact that they appeared to be liver fluke infested. That would show itself in loss of body condition, worse than other beasts, and fluid build-up or "bottle-jaw".

182. If those symptoms appeared, the evidence was that treatment of those particular beasts might reverse their condition, though it would take some months for recovery to be manifest. Otherwise, the beast could be put down if the condition was irreversible.

183. There was no evidence to indicate whether any beast belonging to the appellants had any adverse effect from liver fluke.

184. Thus, whilst the drenching in April 1998 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 appellants.

185. It was, of course, quite possible, despite the large number of cattle drenched by the appellants, that some cattle belonging to them escaped drenching and became infested with liver fluke. It is possible that some of the cattle removed before August 1998 by the appellants, on the grounds that they appeared to be in poor condition, had been infested. However, those cattle were not present on 14 August 1998 so as to be part of the "170 head of cattle" the subject of the charges. In any event, their condition at that time, given their removal, could not be said either to be due to neglect. Nor is there any evidence that those beasts were in "pain." Indeed, insofar as those sold by Mr Darmody are concerned, the evidence is to the contrary.

186. In any event, the absence of any evidence that such a consequence did occur in any cattle belonging to the appellants on 14 August 1998 and present on the property as opposed to feral cattle so present, renders the convictions of the appellants on those charges unsustainable as well.

187. Further, despite the failure better to target general drenching, the appellants individually, one nearly weekly, the other, subject to his injury, monthly, inspected the property including any accessible cattle. Mr Thomas Brayshaw removed a large number (some of them possibly feral cattle) which appeared the worst affected (whether by liver fluke or malnutrition). They were either treated by him on his New South Wales property or sold at Oaks Estate sale yards. Mr Darmody did not find those sold to be in an unacceptable state.

188. Again, it was not possible to reject the appellants' evidence as to removal of cattle. Both Mr Katz and Mr Darmody gave evidence consistent with the truth of it.

189. That is not to say that the appellants were as diligent as they might have been in the management of the liver fluke problem. Nor was it any sort of "reasonable excuse" that they were of advanced years, in poor health or in stressful financial circumstances. It may be conceded, however, that, if neglect had occurred, it would be a "reasonable excuse" if a person, on the way to remedying or avoiding it, was unavoidably prevented (eg by injury) from attending to the relevant animals personally or by some duly appointed agent. The concept of neglect involves a conscious failure to take reasonable steps to avoid the consequence referred to in s 8(2)(d) of the Act.

190. The present case is not one in which there is a "reasonable excuse." If the appellants had found themselves unable to afford to feed or treat their animals so as to avoid them suffering pain or starvation then they could have moved or sold them. It might be a good excuse that cattle not fed or treated could not be fed or treated because they were inaccessible but that would deny neglect, rather than being a reasonable excuse for it.

191. Again, it is apparent that the RSPCA was entirely justified in drenching for liver fluke all animals found on the property. The RSPCA assumes, however, a wider duty of care to animals than that cast on the appellants. The latter had a duty only to their own cattle not to strays.

192. Each conviction and sentence must be set aside. In lieu thereof, given that all available evidence has now been presented, the informations are dismissed. I will hear the parties as to costs.

I certify that the preceding one hundred and ninety two (192) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Solicitor for the Respondent: ACT Director of Public Prosecutions