Brighton v Will

Supreme Court of NSW|2020-04-03|Before: Rothman J

House v The King (1936) 55 CLR 499; [1936] HCA 40 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315 Krishna v Director of Public Prosecutions (NSW) (2007) 178 A Crim R 220; [2007] NSWCCA 318 L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474 L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 Milhelic v R [2019] NSWCCA 2 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) ALR 286; [1956] HCA 80 Ormwave Pty Ltd v Smith [2007] NSWCA 210 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Einfeld [2009] NSWSC 119 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Scott v Cawsey (1907) 5 CLR 132; [1907] HCA 80 Tuck & Sons v Priester (1887) 19 QBD 629 The King v Adams (1935) 53 CLR 563; [1935] HCA 62 Texts Cited: Arthur Delbridge, Macquarie Dictionary (3rd ed, 1997) Glanville Williams, Salmond on Jurisprudence (11th ed, 1947, Sweet and Maxwell) Category: Principal judgment Parties: Daniel Brighton (Plaintiff) Natalie Will (RSPCA Inspector) (Defendant) Representation: Counsel: S Odgers SC & M Sahade (Plaintiff) L Hutchinson (Defendant)

Solicitors: Gibson Howlin Lawyers (Plaintiff) RSPCA NSW (Defendant) File Number(s): 2019/195511 Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Common Law Date of Decision: 19 June 2019 Before: McAnulty LCM File Number(s): 2018/96298

Judgment

HIS HONOUR: By Amended Summons, the plaintiff, Daniel Brighton, seeks to appeal his conviction in the Local Court by his Honour McAnulty LCM at Campbelltown Local Court. The plaintiff was convicted of two counts of serious cruelty to a dog, in contravention of s 530(1) of the Crimes Act 1900 (NSW) (hereinafter "the Act") and was sentenced to an aggregate term of 3 years and 4 months' imprisonment, including a non-parole period of 2 years and 2 months.
As stated, the plaintiff appeals against the conviction on grounds that are alleged to involve a question of law alone, and the appeal is taken pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 (NSW). The plaintiff also seeks leave to appeal against sentence pursuant to the terms of s 53(1) of the Crimes (Appeal and Review) Act on the ground that the sentence imposed was manifestly excessive.
The facts are not in dispute. The plaintiff accepts all of the facts found by the Magistrate and relies on those facts for the purpose of the appeal.
Before dealing with the facts, it is necessary to set out the terms of s 530(1) of the Act, which give rise to the convictions and the sentence now sought to be appealed. Section 530(1) of the Act is in the following terms and the Court also recites the provisions of ss 530(2) and 530(3) as they existed at the time of the offence. "530 Serious animal cruelty (1) A person who, with the intention of inflicting severe pain: (a) tortures, beats or commits any other serious act of cruelty on an animal, and (b) kills or seriously injures or causes prolonged suffering to the animal, is guilty of an offence. Maximum penalty: Imprisonment for 5 years. (2) A person is not criminally responsible for an offence against this section if: (a) the conduct occurred in accordance with an authority conferred by or under the Animal Research Act 1985 or any other Act or law, or (b) the conduct occurred in the course of or for the purposes of routine agricultural or animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice. (3) In this section: animal means a mammal (other than a human being), a bird or a reptile."

Grounds of Appeal

The plaintiff (hereinafter "the appellant") relies on five grounds of appeal, being grounds that relate to the appeal against conviction and the application for leave to appeal and appeal against sentence. Those grounds are: 1. Ground 1: The learned trial Magistrate erred in holding that the deceased dog was not a "pest animal" as that term is used in s 530(2)(b) of the Act; 2. Ground 2: The learned trial Magistrate erred in failing to provide reasons, or any proper reasons, as to why the deceased dog was not a "pest animal" as that term is used in s 530(2)(a) of the Act; 3. Ground 3: The learned trial Magistrate erred in holding that the killing of the deceased dog was not an "extermination" as that term is used in s 530(2)(b) of the Act; and 4. Ground 4: The learned trial Magistrate erred in holding that an extermination within the meaning of s 530(2)(b) of the Act requires reporting of the incident and/or conformity with management plans or other legislative instruments. 5. Ground 5: The only ground for the application for leave to appeal against the sentence, and if leave be granted the appeal against the sentence, pursuant to s 53(1) of the Crimes (Appeal and Review) Act, is, as stated, that the sentence was manifestly excessive. The defendant/prosecutor/respondent (hereinafter "the respondent") does not dispute that leave to appeal against the sentence should be granted.

Procedural History

As is clear from the foregoing, the appellant in these proceedings was the defendant to a charge for a criminal prosecution in the Local Court at Campbelltown. He was, as stated, charged with two counts of serious cruelty to an animal, in contravention of s 530(1) of the Act. The prosecution was brought by an inspector of the RSPCA, the respondent in these proceedings.
The appellant entered a plea of not guilty and submitted that he was not criminally responsible for the acts of cruelty, because of the operation of s 530(2)(b) of the Act. It was the appellant's submission before the Magistrate that his impugned conduct occurred in the course of the extermination of a pest animal.
As earlier stated, the appellant was sentenced after the conviction for each of the charges to an aggregate term of imprisonment of 3 years and 4 months, which included a non-parole period of 2 years and 2 months, commencing 27 June 2019 and concluding, in relation to the non-parole period on 26 August 2021, and in the case of the head sentence on 26 October 2022. The appellant would, on that sentence, be first eligible for parole on 26 August 2021. The appellant is currently on bail pending the outcome of this appeal.
The Court should note at this stage that the learned Magistrate fixed indicative sentences for each of the charges, being 20 months' imprisonment for sequence 1 and 22 months' imprisonment for sequence 2. The maximum sentence for each offence was 5 years' imprisonment.
The Local Court, as a result of its jurisdictional limits, necessarily could impose no sentence greater than 2 years for each offence and a maximum of 5 years' imprisonment for both offences. [1] No such limits apply to this Court.

Facts

As earlier indicated, for the purposes of this appeal, the facts are not in dispute. The facts, as found by the learned Magistrate, can be set out briefly.
The appellant owns a mobile petting zoo and, for that purpose, owns various animals, including a camel, named "Alice." At about 3 AM on 16 January 2016, two dogs entered the property where the camel was located, in its pen, and attacked the camel, causing it significant injuries to its legs, throat and face. [2]
A witness, Ms Doel, was very concerned that the camel might die. Ms Doel was told by the appellant that "two dogs had jumped up, and they were hanging off her neck, and that they wouldn't let her go, and he had to beat them off with a pole." [3]
The appellant captured one of the dogs, a mature, Bull Terrier type breed and tied it to a tree. Ms Doel's evidence was that the dog was "fairly submissive" at this time. [4]
The first charged act of cruelty occurred some 20 minutes after the attack on the camel, when the appellant stabbed the dog at least six times with a pitchfork. At this stage, the dog, as indicated above, was sitting, subdued and tied to a tree. The appellant then started to drive to a vet to obtain pain medication for the camel, leaving the pitchfork in the dog.
The second charged act of cruelty occurred, after the appellant returned to the premises from the veterinary surgery, when the appellant realised that the dog was still alive. The appellant suspended the dog from a tree and beat it across the head between 6 and 8 times, with a mallet. During this second charged act of cruelty, the appellant said, according to Ms Doel, "I will make sure it's dead." [5]
The dog died and was buried on Crown land adjacent to the farm. The appellant instructed Ms Doel not to speak of the events of that morning and that she should never tell anyone that she had seen dogs.
The dog that was injured and killed had a collar and microchip and, therefore, according to the Magistrate, was "at one stage" a domestic animal. Nevertheless, there was no evidence of current ownership at the time of the proceedings or at the time of the conduct that gave rise to the charges.
Dr Tong, a registered veterinarian and forensic diagnostic pathologist, conducted a necropsy on the exhumed remains. Dr Tong opined that the injuries to the animal were likely to cause prolonged suffering [6] and the infliction of blows in that manner was not consistent with the humane "extinction" of a dog. [7]

Question of Law

As already stated, the appeal against conviction is sought to be taken as of right, pursuant to s 52 of the Crimes (Appeal and Review) Act. That provision allows a person who has been convicted or sentenced by the Local Court, relevantly, to appeal to the Supreme Court against the conviction or sentence "but only on a ground that involves a question of law alone".
There are many statutes that provide for remedies associated with legal issues, expressed in various ways. Terms used include "with respect to a question of law"; "with respect to a matter of law"; "a question with respect to a matter of law"; "errors of law"; or "raising questions of law".
The foregoing is not intended to deal comprehensively with the subject matter for an appeal on a question of law. The Criminal Appeal Act 1912 (NSW), which allows appeals from indictable offences, provides for an appeal as of right "on any ground which involves a question of law alone" and, otherwise, by leave of the Court of Criminal Appeal. A number of cases have dealt with the circumstances that, in the context of the Criminal Appeal Act, amounted to a "ground which involves a question of law alone." [8]
The Court, as presently constituted, dealt with a range of judgments expressing the right of appeal on a legal issue in its judgment in Kostas v HIA Insurance Services Pty Ltd. [9] The appeal in Kostas was an appeal from the Consumer, Trader and Tenancy Tribunal (as it then existed), which allowed an appeal, by virtue of s 67 of the then Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) in circumstances where the Tribunal "decides a question with respect to a matter of law", in which case a dissatisfied party could appeal to the Court.
In the course of that judgment, I set out the classic definitions of a question of law as against the question of fact or mixed questions by reference to the reasons for judgment of Sir Frederick Jordan CJ in Australian Gas Light Co v Valuer-General, [10] in which Jordan CJ said: "In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact, not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v Pemsel. (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact. (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (Citations omitted.)
While the foregoing extract is of long standing, and there are many refinements and modern adaptations of the analysis of Sir Frederick Jordan, the fundamental propositions remain the same: see Ormwave Pty Ltd v Smith; [11] Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd; [12] and Collector of Customs v AGFA-Gevaert Ltd. [13] The High Court in AGFA-Gevaert cited, with approval, the judgment of the Full Court of the Federal Court of Australia in Collector of Customs v Pozzolanic Enterprises Pty Ltd [14] and, in doing so, identified five general propositions: "(1) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law; (2) The ordinary meaning of a word or its non-legal technical meaning is a question of fact; (3) The meaning of a technical legal term is a question of law; (4) The effect or construction of a term whose meaning or interpretation is established is a question of law; (5) The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." (References omitted.)
The Reasons for Judgment in AGFA-Gevaert are not the last comments of the High Court on this issue. Thus, the High Court confirmed that the application or non-application of the common understanding of an expression used in the statute to facts that have been found is itself a question of fact: Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd. [15] Similarly, the meaning of the term "associated with", as an ordinary English expression, even though used in a regulatory context, is a question of fact: Deal v Father Pius Kodakkathanath, [16] see also Director of Public Prosecutions (Cth) v JM. [17]
In JM, the High Court dealt with the distinction drawn between the legal signification and ordinary English or non-technical meaning in the proceedings before it. It made the comment that the distinction was drawn from the reasons of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation, [18] in which his Honour confirmed that if the terms there used were used in their ordinary meaning, the common understanding of the words had to be determined and that was a question of fact. Whereas, if they were used in any other sense, and whether they were used other than in their ordinary sense, were questions of law.
In JM, the High Court was determining whether it was permissible for a question to be reserved for the Court of Appeal in Victoria and said at [39]: "[39] No doubt, it is important to recognise that s 302(2) of the CP Act permits reservation of only questions of law for determination by the Court of Appeal. As cases like Blue‑Metal Quarries, Federal Commissioner of Taxation v Broken Hill South Ltd and Collector of Customs v Agfa‑Gevaert Ltd all show, it may therefore be necessary to distinguish between questions of law and questions of fact. And drawing that distinction may not be easy. As this Court said in Agfa‑Gevaert, "no satisfactory test of universal application has yet been formulated" for doing so. But the majority in the Court of Appeal did not direct the reformulation of the original questions reserved in this case to ensure that the question reserved was one of law and not one of fact. At no point in this matter (whether before Weinberg JA, in the Court of Appeal, or in argument in this Court) has it been suggested that any of the original questions was only a question of fact and not a question of law. Rather, the question was reformulated to divorce it from any disputed question of fact. In that context, drawing a distinction between questions of law and questions of fact was not useful and served only to distract attention from the imperatives of identifying whether a question of law had arisen before trial and, if it had, what was that question." (Reference omitted.)
Fundamentally, the distinctions above, and the qualifications, drawn by Sir Frederick Jordan and by later judges, even if easily understood, are less easily applied.
It is sufficient, for present purposes, to reiterate that the proper construction of the provisions of s 530 of the Act is a question of law. The meaning to be given to particular ordinary English words within that section, if those words are to bear their ordinary meaning, is a question of fact. Whether the words are, or are not, to be given their ordinary meaning is a question of law.
In this case, the respondent disputes that at least Ground One, raised by the appellant on appeal, is a ground that relates to a question of law and submits that leave to appeal is required. Whether or not an agreement on such an issue is reached, as commendable as that may be, it does not relieve the Court of the requirement on it to determine, for itself, the jurisdiction that it is exercising.
To return to the judgment in AGFA-Gevaert, the fifth proposition summarised from the judgment of the Full Court of the Federal Court in Pozzolanic is that where the question is whether facts, fully found, fit within the provision of a statutory enactment properly construed, then the question is generally a question of law. In this case, the facts have been fully found and the question before the Court is whether those facts fall within the provisions of s 530 of the Act. Further, whether the words in the statute are to be given their ordinary meaning, or some technical meaning, is a question of law. [19]
However, as the High Court pointed out in AGFA-Gevaert, at 395 of the CLR, the Full Court in Pozzolanic stated that the fifth proposition must be qualified in circumstances where a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, because, then, the question becomes one of fact. (As the comment extracted from JM, supra, expresses, these general expositions of the law are helpful, but lose a degree of utility when the phrase or term to be construed is complex or the enquiry on which the primary decision maker embarked is not clear.)
In this case, the issue that is said to be a question of law alone is whether the facts found by the learned Magistrate fall within the provisions of s 530 of the Act, as properly construed. While this depends, to some extent on the meaning of certain ordinary English words used in s 530, ultimately the ground upon which the appellant relies is that the statutory enactment has not been properly construed and the decision that denied to the dog that was injured and then killed the capacity to be covered by s 530(2) of the Act, as it then existed, was not a construction or meaning that was reasonably open.
There is often thought to be a tension between the aspect numbered (2) in the analysis of Jordan CJ and the last aspect in the numbered criteria in Pozzolanic, cited with approval in AGFA-Gevaert. In truth, no real tension arises. The difference between the aspects relates to that between findings of fact and an evaluative judgment.
This matter was the subject of a lengthy discussion by the Court, as presently constituted, in L&B Linings Pty Ltd v WorkCover Authority of New South Wales, [20] in which I remarked: "[78] From the foregoing, it is clear that whether there is any evidence of a particular fact is a question of law, as is whether a particular inference may be drawn from facts found or agreed: see also Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390. On the other hand, once there is evidence upon which a fact can be found, that finding of fact cannot be disturbed as an error of law: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; and see also Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 481 and 483; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 151, per Kirby P, and at 155-156, per Glass JA; Haider v JP Morgan Holdings Aust Ltd Trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158 at [33], per Basten JA. [79] The determination of whether the particular set of facts that is before WorkCover, or the material before WorkCover, brings a contractor within the terms of Clause 2 of the Schedule is a question of fact, not a question of law, as is the meaning of the ordinary English words or phrases used in the statute: see Australian Gas Light Co, supra, recited above. It is only when the facts as found, or the material relied upon, are incapable of bringing a contractor within the meaning of Clause 2 of the Schedule that a decision contrary to that proposition would be an error of law. Where either result is open on the material before WorkCover, there has been no error of law and the decision of WorkCover involves only a question of fact."
The foregoing extract is part of a lengthy discussion on whether and in what circumstances there may be an error of law and the criteria in evaluating whether a worker was a person whose wages were to be covered by workers compensation premiums of the principal that engaged the worker.
On appeal, the Court of Appeal [21] said: "[34] Four points of caution should be made. First, this passage indicates that the 'no evidence' ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term 'no evidence', as an administrative decision-maker is usually entitled to take into account material which would not count as 'evidence' in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a 'no evidence' ground of review. [35] The appellant faced a further difficulty which it did not squarely face up to in the course of its submissions. The disputed wages were said to relate to some 47 contractors, identified in a letter from the Authority to the appellant's accountants, dated 30 October 2009. Not all contractors received payments in each of the three relevant years, but it may be that the circumstances of individual contractors were the same in each year in which they received payments (although it was part of the appellant's case that the amount of particular payments was itself significant). Nevertheless, there were, in effect, at least 47 separate assessments made by the Authority, being one in respect of each contractor. In order to establish that there was 'no evidence' to support the findings of the Authority, it was necessary to demonstrate an absence of such evidence in respect of each individual about whom a finding was made. The appellant did not assay that task. All of the relevant information was contained on a compact disc, provided by the Authority to the appellant. However, very limited material was put before this Court in respect of the contents of the disc. Rather, the appellant sought to establish its case by reference to one particular contractor, which, it may be assumed, was its strongest case." [22]
The fourth aspect, identified by Basten JA at [34] of the above extract, is apposite to the determination by evaluation of a number of criteria, on which, depending upon the weight and/or evaluation required, reasonable tribunals may differ.
In my view, for reasons that are explained later in these Reasons for Judgment, this ground raised on the conviction is one that allows an appeal as of right. If I were incorrect in that regard, I would allow, and would have allowed, an amendment to the Summons and granted leave to appeal on what is, in that situation, undoubtedly, a mixed question of law and fact or a question of fact of some importance, and governed by s 53 of the Crimes (Appeal and Review) Act.
One further matter needs to be noted in this respect. The appellant pursued the appeal on the basis that it was for the appellant to prove, on the balance of probabilities, that the provisions of s 530(2) of the Act apply to render the appellant not criminally responsible for the conduct, which, without conceding same, might otherwise fall within the provisions of s 530(1) of the Act.
This is how the proceedings were conducted before the Court, as presently constituted. The appellant did so because it considered itself bound so to do because of the conduct of the proceedings before the Magistrate and the nature of the appeal that had been filed.
The Court makes no comment on whether the appellant was so bound and accepts the parties' concurrence as to the manner in which the Summons and the issues raised therein should be determined. The Court makes no comment on whether the proper construction of s 530(2) of the Act is, in the sense just noted, a defence to the criminal offence created by the provisions of s 530(1) of the Act or, if the matter had been raised, it was for the prosecutor below to prove, beyond reasonable doubt, that the person charged is criminally responsible under s 530(1) of the Act, by negativing the provisions of s 530(2) of the Act.

Ground 1 - Error in holding that the deceased was not a pest animal

The appellant's submissions on this ground commence with the fact that there is no definition in the Act of the term "pest animal".
The appellant points to definitions in the Australian Oxford Dictionary and elsewhere and, in particular, relies upon the definition in the Australian Oxford Dictionary that the term "pest" means "1. A troublesome or annoying person or thing; a nuisance. 2. A destructive animal, especially an insect which attacks crops, livestock etc." and submits that this ordinary meaning is apposite and appropriate and would, on that analysis, include the dog that was killed.
Further, the appellant submits that no court, applying the ordinary and proper meaning of the term "pest animal", could reasonably find that the dog was not a pest animal and that such a submission raises a question of law.
Essentially, the appellant submitted that the classification of an animal as a pest animal was determined by the conduct of the animal and the fact that it posed a threat of destruction to livestock. The appellant concedes that a "pest animal" needs to be more than a mere annoyance.
Before the Local Court, the appellant relied on a series of documents relating to wild dogs and their classification as pest animals and their extermination. [23] Reliance was placed upon the Local Land Services (Wild Dogs) Pest Control Order 2015 (NSW), which imposed a "general destruction obligation" on certain occupiers of land and defined a "wild dog" to mean "any dog, including dingo, that is or has become wild, but excludes any dog kept in accordance with the Companion Animals Act 1998 (NSW), the Exhibited Animals Protection Act 1986 (NSW) or the Animal Research Act 1985 (NSW)".
The appellant submits that the Magistrate wrongly used a two-stage test and imposed upon himself a precondition to the classification of the dog as a "pest animal", being that he needed first to declare that it was a "wild dog", from which he could then determine that it was a pest animal. [24] The learned Magistrate remarked "I am not satisfied it is a wild animal. I am not satisfied therefore that it is a pest animal." [25] The appellant relies, particularly, on the use of the word "therefore".
The appellant relies on the fact, in particular, in order to classify the deceased dog as a pest animal, that it trespassed on the rural property and savagely attacked a camel that was in its pen, in circumstances where the dog was not under any apparent ownership and there was no evidence that any owner had come forward.
The appellant accepts that his subjective belief as to whether it was a wild or pest animal is irrelevant to the question to be determined of what constitutes a pest animal, which must be an objective test. Further, the appellant submitted that the dog did not cease to be a pest animal, simply because the attack on the camel had been stopped, or the dog was, at that particular time, relatively subdued, before it was killed.
The respondent submits that the Court should construe the Magistrate's determination to mean that he had declined to find that the animal was a pest animal, because "there is evidence that it had a collar and it had a chip." [26] It was further submitted that there was no evidence that could make out the statutory defence on the balance of probabilities. [27]
Further again, the question of whether the animal was a pest animal, within the meaning of the section is, according to the submission, a matter of fact and not law. The conclusion of the learned Magistrate was open and therefore on the basis of the judgment in Pozzolanic, supra and Azzopardi v Tasman UEB Industries Limited, [28] the ground is not one that is a ground on a question of law alone.
The respondent's submission was that the Magistrate did not undertake a two-stage test. Nor did his Honour require that, as a precondition to the finding of it being a pest animal, the dog was a wild dog. Alternatively, the respondent submits that the term "wild" should be interpreted as having a synonymous or interchangeable meaning as the term "pest".
Further, the respondent submitted that it was, at least, questionable whether the camel could be considered livestock and the definition utilised by the appellant does not distinguish between a companion animal which attacks another animal as distinct from a wild or non-companion animal.
Further again, the respondent submits that the animal was not a pest animal, because the dog: was wearing a collar; appeared to be a Pitbull type dog; was micro-chipped; was subdued and submissive upon restraint; and there had been no previous encounters with it on the appellant's land. Moreover, the appellant's cover-up suggests, according to the respondent, an ex post facto appreciation of the illegality of his actions.
The respondent submitted that the Court was entitled to take into account the fact that there was no evidence of complaints having been made, either to Council or neighbours, that the dog was roaming. Nor was there expert evidence about whether the breed of dog was a documented pest animal.
The respondent submitted also that, even if it were accepted that the dog was domestic, but had become wild, such as to enliven the statutory defence, the legal right to exterminate, under s 530(2) of the Act, would only persist for so long as the dog was wild. Given that the dog had been subdued and was relatively docile, the dog no longer posed a threat to the camel (nor anyone or anything else) because it was tied up and subdued.
The respondent further submitted that the hypothetical utilised by the appellant of a dingo that was killing sheep was not an analogy that withstood scrutiny. The dingo, the respondent submitted, constitutes a wild dog by virtue of its species; not because it has become wild. The difficulty with such a submission is that there are dingoes that are "domesticated" and living with humans in remote communities. If the respondent is correct, even a domesticated dingo could be killed or tortured with impunity.
Lastly, the respondent relied upon the conduct of the appellant. In that submission, the respondent put the proposition that the statutory defence would not likely extend to any hypothetical farmer if she or he "exterminated" the captured dingo by dealing with it in the way the appellant dealt with this dog. This is a submission that would, if accepted, effectively, render s 530(2) of the Act otiose, whenever "torture" was involved as the conduct creating liability.
The respondent submits that the Magistrate adopted a correct approach in having regard to the manner of killing, when determining whether or not the conduct causing death amounted to an extermination. Further, the respondent submits that if the appellant had adduced evidence of his belief that the animal was a pest animal, then, from the Magistrate's Reasons for Conviction, the Magistrate would have considered it a factor on the question of whether the animal was a pest.
On the other hand, and as earlier stated, the appellant submits that whether the animal was a pest animal is an objective fact to be determined by the Court. The respondent submitted that the Act "necessarily imported" certain formal requirements for a pest animal.

Ground 2: Failure to provide reasons as to why the deceased dog was not a pest animal

Shortly stated, the appellant refers to the Magistrate's Judgment on Conviction on this issue which can be found at Tcpt, 19 June 2019, p 12, l 12-20 and 28-39. This aspect of the Magistrate's Judgment is reproduced in the appellant's written submissions at [26].
Briefly, the appellant argues that there is no reasoning, express or otherwise, on why the conduct of the dog in its attack on the camel did not make the dog a "pest animal".
The respondent took the Court to various authorities on that which amounts to reasons, or adequate reasons, and submitted that the Magistrate adequately considered all relevant factors, including a consideration of the evidence and extrinsic material as presented by the appellant; the legislation referenced in those materials; and the Second Reading Speech.

Ground 3: The killing of the deceased dog was not an extermination

The appellant submits that the learned Magistrate found that the appellant intended to kill the dog, but he found that the manner of doing so precluded the killing from being an extermination of the animal. The Magistrate took this view as a result of his conclusion on the term "extermination" in other legislative instruments.
The respondent argues that the term "extermination", used in s 530(2) of the Act, has a subtly different meaning to the term "exterminated", which is the term for which the definition was provided by the appellant. "Extermination", according to the respondent, conveys notions of a course of conduct aimed at a pest animal of a particular class, species or group rather than a situation where it is at the discretion of the individual to determine, subjectively, whether the animal is a pest. The latter, the respondent submits, is the effect of the submission on this ground by the appellant.
Each party accepts that the statutory defence, so-called, must apply to circumstances, which would otherwise constitute torture or serious animal cruelty. It also applies to the innocent killing of a victim animal that is not the subject of the intended extermination, e.g. the killing of a domestic animal in circumstances where bait is used for the killing of a pest animal.
The respondent submits that the term in s 530(2) of the Act is "extermination"; not "killing", which is the way in which the appellant seeks to utilise the term. As a consequence, the learned Magistrate was correct to conclude [29] that the available legislation that governs the extermination of pest animals, which is highly regulated, means that a person cannot "just go out and shoot it because you believe it is a pest. It is heavily regulated and heavily controlled".

Ground 4: Error in finding that extermination would require the reporting of the incident and/or conformity with management plans or other legislative instruments

The issues to which this ground relates are dealt with in the Reasons for Conviction of the Magistrate. [30] In the course of those Reasons the Magistrate found that the appellant intended to kill the dog but that his manner of doing so did not amount to an extermination. In many respects Ground 3 and Ground 4 are similar, if not identical.
The term "extermination", like the term "pest animal", is not defined in the Act and the appellant submits, first, that the term "extermination" should be given its ordinary meaning, which, it submits, the Magistrate did not; and that it should not be construed in conformity with other legislative instruments, which was an error by the learned Magistrate.
The appellant relies upon the definition from the Australian Oxford Dictionary of "exterminate" meaning to "destroy utterly (especially something living)" or "get rid of, eliminate (a pest, disease, etc.)". Each of the major definitions, according to the appellant, describes the actions of the appellant in killing the dog.
Further, the appellant submits that, on a proper reading of the entire provision in s 530 of the Act, it is clear that the legislative intention, objectively determined, is to include circumstances that would otherwise amount to torture or serious cruelty to animals. To hold otherwise, would negate the operation of the defence in circumstances where the conduct of the alleged offender amounted to torture or serious cruelty to an animal.
The respondent relies on the submissions made in relation to Ground 3 and also submits that the Magistrate did not, on a proper construction of the Reasons for Conviction, make a finding that the reporting of the incident and/or conformity with management plans or other legislative instruments was a requirement that pre-conditioned the classification of a killing as an extermination for the purposes of s 530(2) of the Act and points, expressly, to the Reasons for Conviction. [31]
The reference to the legislative requirements in other statutes was a reference to requirements to which the learned Magistrate was referred by Counsel appearing for the appellant below and those "volunteered" by the Magistrate. Nevertheless, the respondent submits that evidence of compliance with the reporting obligations and approved methods of extermination would have weighed in favour of a finding that the appellant was exterminating a pest animal for the purpose of s 530(2) of the Act.

Sentencing Submissions

Ground 5 of the appeal relates to sentence. This is a ground with which the Court would only need to deal, if the appellant was unsuccessful in the appeal on conviction. This Ground of appeal requires leave, to the granting of which the respondent does not object. In the submission of the respondent, it would be contrary to the interests of justice to remit this matter for redetermination in the Local Court or a rehearing in the District Court. I agree with that opinion.
Further, given that there is a right of appeal from this judgment to the Court of Appeal, it is appropriate, whether or not the Court, as presently constituted, upholds the appeal on conviction, to deal with that which the Court would do, were the appeal against conviction dismissed.
In its submissions on the sentence appeal, the appellant relies upon the following findings of the sentencing Judge: 1. this was not a case of gratuitous cruelty to an animal, [32] although the reasons for the offences remain "inexplicable"; [33] 2. the appellant had a "passion for looking after animals"; [34] 3. the appellant was aged 30 when sentenced; had no prior convictions and was of unblemished character; [35] 4. the offending was "completely out of character"; [36] 5. the convictions will mean that the appellant's business is "almost doomed"; [37] 6. imprisonment will cause hardship to the foster children in the appellant's care; [38] 7. the appellant had not demonstrated contrition; [39] and 8. the objective seriousness of the offending was "certainly well above the mid-range of objective seriousness for these type of offences". [40]
In the submission of the appellant, the objective seriousness of the offence was below the mid-range, given that this was not a case of gratuitous cruelty. The offences in question were not committed for no reason, notwithstanding the finding of the learned Magistrate.
In other words, the injuries to the dog, and the dog's death, were motivated by the dog's attack on the camel and not by some perverse enjoyment or desire to witness the suffering of the dog.
Further, the appellant submits that his unblemished character was not given its full weight and was discounted inappropriately by the learned Magistrate by analogy to cases of commercial fraud and the case of a Judge that was dealt with on a traffic matter. [41] The analogies used by the learned Magistrate were not appropriate, because the significant consideration in respect of commercial fraud cases is that the offending involves repeated criminality over an extended period and, as a consequence, could not be understood as out of character. Nor is it comparable to the situation of a judge, where the person has taken advantage of the position of trust or authority, arising from his or her good character, to commit the offence.
On one view, at least, cases such as fraud (where there is a relationship between the offender and the victim) and the situation of the judicial officer are offences committed for which the previous good character is almost a necessary component. Further, in relation to the judicial officer on the "traffic matter", an obvious reference to R v Einfeld, [42] while it was not explained, the judicial officer's significant punishment related not to a traffic matter; but to perversion of the course of justice and/or perjury.
Further again, the appellant submits that the Magistrate should have taken into account the loss of employment as an extra curial punishment and an appropriate mitigating factor. So too, the hardship to the appellant's foster children was a matter, in which, even assuming exceptional circumstances were required, should have been taken into account as injury to third parties that would mitigate the sentence that would otherwise be imposed.
Lastly, in terms of the particulars of manifest excess, the appellant submits that the overall effective sentence does not reflect the appropriate application of the totality principle and the high degree of accumulation of the two sentences was not explained, at all or appropriately. The appellant submits that any aggregate sentence should include a high level of concurrency on the basis that the second offence was a continuation of the conduct in the first offence; the offences were committed within a short time of each other; and the offences had common features, including the identity of the victim.
The submission of the appellant is that a custodial sentence was not the only appropriate sentence [43] and that a monetary fine or a Community Corrections Order would each have been an appropriate punishment and/or sentence. In this regard, a Community Corrections Order is not a custodial sentence [44] but an Intensive Corrections Order is a custodial sentence. [45]
In response to the sentencing submissions of the appellant, the submissions on behalf of the respondent were essentially in support of the finding of objective seriousness determined by the learned Magistrate. In so doing, the respondent emphasised that: the threat posed by the dog to the camel (Alice) was completely neutralised at the time of the offending; there was expert evidence that the pain and the asphyxiation would have caused prolonged suffering to the animal; the offender sought to conceal the commission of the offences; the offender is a mature adult and an experienced commercial animal owner; the offender left the pitchfork protruding from the animal for 30 minutes; exterminating the dog by beating it with a mallet was a method that was inconsistent with humane extinction; and the offender's demeanour when he realised the dog was still alive was unperturbed and seemingly amused.
On the question of the extra curial hardship suffered by the appellant's family and foster children, the submissions in response draw attention to the fact that neither factor was put to the Magistrate as one warranting the amelioration of any sentence. Further, there is no evidence, before the Court or that was before the learned Magistrate, concerning the impact of the conviction on the appellant's businesses.
Lastly, the respondent defends the accumulation of the sentences as appropriate on the basis that the offending was not a single course of conduct, interrupted by approximately half an hour; the appellant, it is submitted, used different implements to injure the dog; the injuries were different; and the consequence of the injuries was that the dog died over a lengthy period of time.

Consideration

In many respects the four grounds of appeal against conviction are particulars of the one ground, namely, that the learned Magistrate misapplied and/or misconstrued the provisions of s 530(2) of the Act. The foregoing is not said by way of criticism either of the parties or the learned Magistrate.
On one view of the manner in which the learned Magistrate approached the provisions of s 530(2)(b), he construed the provisions as using technical terms for "extermination" and "pest animal", rather than allowing them to be used in their ordinary meaning. If that were to amount to error, in the sense that the ordinary meaning should be used and would result in a different conclusion, then, of itself, that would be an error of law.
One of the difficulties, associated with utilising technical or superimposed classifications of the principles of construction of the statutes, is that, in the modern approach to statutory construction, it may be a recipe for artificiality.
The early approach, still adopted by many, was that penal provisions would be construed strictly in favour of an accused and if there were a reasonable interpretation which avoided penalty, that construction should be adopted. [46] This approach was endorsed in 1944 by Jordan CJ. [47] In comparison, see the approach of Isaacs J in Scott v Cawsey. [48]
In the High Court in The King v Adams [49] , the plurality (Rich, Dixon, Evatt and McTiernan JJ) said: "Thus liability to the penal sanctions imposed by the sections is expressly made to depend upon the status of bankruptcy. If another provision of the statute is to be interpreted as extending the operation of the sections to persons who do not possess that status, its intention to do so must he clearly expressed. " The law of England does not allow of offences by construction, and no case shall be holden to be reached by penal laws, but such as are within both the spirit and the letter of such laws " (Blackstone's Commentaries, vol. i., Hargrave's ed., p. 88, n. 37), a principle which remains part of the law (cf., per Brett J., Dickenson v. Fletcher (1)) notwithstanding the modification in the ancient strict ness of its application which has occurred in the course of the modern search after the true nature of some actual legislative intention. No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of inter pretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category." [50]
This passage was applied recently in Director General, Department of Land and Water Conservation v Bailey. [51]
As earlier implied, the modern approach to interpretation tends to prefer the ordinary rules of construction for criminal or penal statutes or provisions, which, necessarily, includes the purposive approach to the construction of statutes. Of course, if the modern approach results in an ambiguity or some doubt, it may still be valid either to refuse to extend a category of criminal offences or to give a more strict construction to the statute.
In construing any statute, primarily, the ordinary and grammatical meaning of the provision will be given. Usually, that ordinary and grammatical meaning will correspond with the legislative intention and will be the meaning adopted in the construction of the statute and the statutory provision. [52]
Further, it is well-established that a statute must be construed as a whole and so as to provide that each of its terms are intended to give effect to harmonious goals. Each of its terms must be construed on a basis that achieves that result that will best give effect to the purpose and language of the provision being construed, while maintaining its unity with the other provisions of the statute. [53]
Further, judicial authority makes it clear that a definition "is no more than an aid to the construction of the statute." [54] The meaning of a definition turns on the context in which it appears, considered as a whole. [55]
The High Court explained the process in the following words: "The function of a definition is not to enact substantive law. It is to provide aid in construing the statute. … to construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as the meaning of the substantive enactment. …the true purpose of any interpretational definition clause [is that it] shortens, but is part of, the text of the substantive enactment to which it applies." [56]
Fundamentally, the primary purpose of all rules of statutory construction is the ascertainment of the intention of the legislature in promulgating the provision in question. That purpose is achieved by ascertaining the objective intention of the legislature; not the subjective intention of those that may have sponsored or promulgated it. [57]
Earlier in these reasons I referred to the concurrence of the parties as to the manner in which the issues should be determined, with particular reference to whether the provisions of s 530(2) of the Act provide a "defence", in the strict sense, or an aspect of the offence that it is necessary for the Crown or the prosecutor to negative, beyond reasonable doubt.
I do not resile from the earlier statements I have made. Nor do I seek to go behind the parties' approach. Nevertheless, in construing the provisions of s 530 of the Act, it is necessary to look at the section as a whole and to implement the legislative intention as derived from the whole of the provision.
In that sense, it matters not whether s 530(2) of the Act is a defence or an exclusion from the reach of s 530(1) of the Act. Nor does it matter which party bears the onus and at what standard.
The terms of s 530 of the Act, which are recited earlier in these reasons for judgment, have altered since the offence in question. As at January 2016, the terms of the provision are as set out herein.
The amendment introduced to s 530(1A) deals with recklessness as a state of mind, in the alternative to that which is dealt with (and was as at the date of this offence dealt with) by s 530(1) of the Act. Further definitions were also added in 2017, dealing, it seems, with some issues associated with greyhound racing. The foregoing recitation of the effect of the alteration has no impact on the interpretation of the provision as it existed at the time of the offence.
There are some unusual features of the provision. First, the provisions of s 530(1) of the Act require a subjective intention of "inflicting severe pain". Thus, the fact, if it be the fact, that a person tortures, beats or commits a serious act of cruelty on an animal, or kills or seriously injures or causes prolonged suffering to the animal, is not, of itself, sufficient to give rise to an offence. Those acts of torture, serious acts of cruelty and causing prolonged suffering must be done with the intention of inflicting severe pain, which must, as a consequence, refer to the subjective intention of the alleged offender.
Ordinarily, one can infer a subjective intention in a person who engages in conduct if the result of the conduct is the obvious and inevitable consequence of the person's act and the act is deliberately performed. But the legislative distinction here drawn between "torture", for example, and an intention to inflict severe pain raises some concerns as to whether the legislative intention was to be able to infer the subjective mind in that way or to use "intention" in that way.
It is difficult to imagine a circumstance where a person tortured an animal, but did not have the intention of inflicting severe pain. Yet, the legislature draws a distinction, or, more accurately, requires both the subjective intention and the conduct.
The very nature of the term "torture" connotes the inflicting of severe or excruciating pain motivated by cruelty, hatred, revenge and the like. [58]
To add to the inconsistency or seeming inconsistency in the provisions is that the terms of s 530(1) of the Act do not render criminally responsible, relevantly, acts done for the purpose of routine agricultural or animal husbandry activities, recognised religious practices or the extermination of pest animals or veterinary practice. Obviously, those words have work to do and would significantly qualify the act of killing an animal.
But it is, at least, difficult, if not impossible, to imagine a "recognised religious practice" that was performed "with the intention of inflicting severe pain" or to imagine any routine agricultural or animal husbandry practice or activity that likewise was done "with the intention of inflicting severe pain". There may be practices or activities, respectively, that would have the consequence of inflicting severe pain, but that is a different concept to the killing of an animal "with the intention of inflicting severe pain".
One of the difficulties is the combination of the two seemingly conflicting concepts. If the offence were confined to the act of killing or seriously injuring, no tension would seem to exist. But the offence is not so confined.
The foregoing necessarily makes clear that, notwithstanding the tension, the words have work to do and are not otiose, except they may be difficult to apply to conduct that goes beyond the simple act of killing or seriously injuring. One merely has to pose the question, how can there be a "serious act of cruelty" without an intention of inflicting severe pain.
One can understand the exemption for recognised religious activities, which, I assume, relates to the slaughter of halal and kosher meat. However, neither process of killing is done with an intention of inflicting severe pain.
The whole process, which involves slicing the carotid artery, in one motion, with a sharp knife, along more than half of its length, is designed (albeit at a time when modern slaughtering techniques had not been invented) to avoid inflicting severe pain. The Court is unaware of any other recognised religious practice that would fall within s 530(1) of the Act. Perhaps, there are still religions that engage in animal sacrifice, but even that practice, albeit ancient, utilises dead animals, not live ones.
During the course of the hearing, discussion occurred, albeit by comparison, on the cruel practice of pulling wings off butterflies. But such a practice would not be caught by the section, since the definition of animal excludes butterflies.
There can be no doubt that the intention of the legislature is to prevent unjustified animal cruelty and it has defined "unjustified" by the terms of s 530(2) of the Act. However, the implementation of that purpose is not easy to reconcile with the words that are used in the section.
I have referred above to the definition of the term "animal" as it was found in the provision at the time of the offence to mean "a mammal (other than a human being), a bird or a reptile." The legislature has, in this section, where it intended to use a word in other than its ordinary meaning, defined the word. Thus, animal is given a defined meaning, which excludes some animals, humans and others.
A mammal is, generally, a warm-blooded vertebrate with hair and mammary glands, which are used to suckle young. It would include platypus, all marsupials and most land animals with which people are familiar, all of which are warm blooded. It includes rats and mice.
Most fish, which are animals, are not mammals. There are exceptions. If the whale is a fish, it is an exception. So too are dolphins.
Similarly, insects are not covered by the definition of animal. Frogs are neither mammal nor reptile and are not covered by the definition of animal in s 530(3) of the Act. For present purposes, I make clear that an animal includes a dog and a camel, each of which are mammals and warm-blooded.
Nevertheless, the definition of animal is informative. The definition excludes amphibians, such as a frog, but includes reptiles, such as a snake, a lizard or a crocodile. On the view expressed by the respondent in these proceedings, taken to its natural conclusion, a person who saw a snake or a lizard or a crocodile and beat it with a shovel or killed it would be guilty of an offence under s 530(1) of the Act.
Of course the person would only be guilty of an offence if the person had "the intention of inflicting severe pain". But, if the intention is to be inferred from the obvious and inevitable consequence of the act, then the person would only be exempted by s 530(2) of the Act if the animal were a pest and were exterminated, on the respondent's submission, other than cruelly.
While a person beating off a crocodile does not seem likely to occur, as a matter of practice, the same cannot be said of a snake or a lizard, which are included within the definition of "animal" because they are reptiles. Of course, more unlikely would be the decision to prosecute, but that cannot affect the proper interpretation of the provision.
It seems, on the face of the legislation, that the purpose of the legislature is achieved and the provision is given a sensible and harmonious operation, if the expression "with the intention of inflicting severe pain" was construed in a way that required the conduct described in paragraph (a) and (b) of s 530(1) of the Act to be done "for the purpose of inflicting severe pain." In the words of Glanville Williams: "Intention is the purpose or design with which an act is done. It is the foreknowledge of the act, coupled with the desire of it, such foreknowledge and desire being the cause of the act, inasmuch as they fulfil themselves through the operation of the will. An act is intentional if, insofar as, it exists in idea before it exists in fact, the idea realising itself in the fact because of the desire by which it is accompanied" [59]
Such a construction would overcome some of the difficulties that seem to emerge from a literal application of the section. However, such an interpretation creates its own problems. If "intention of inflicting severe pain" was construed to mean with the purpose of inflicting severe pain, then a number of the exemptions from criminal responsibility contained in s 530(2)(b) of the Act would be rendered otiose.
The issue associated with the unusual use of the term "with the intention of inflicting severe pain" accompanying conduct such as torture was raised with the parties in the course of the proceedings. Neither party dealt with the issue in the generality with which it is referred to above. Rather, the parties concentrated on the exemptions described in s 530(2) of the Act. So too will I.
The facts, as I have set them out, disclose, in my view, that the intention (however that term is used) of the appellant was to kill the dog. The reaction to the realisation that the dog had not been killed by the attack with the pitchfork is consistent only with the belief that the attack with the pitchfork would have killed the dog and did kill the dog, until it was realised it had not. The later attack of beating the dog was done with the intention of 'finishing off' that which the appellant had initially intended as a result of his conduct.
It is for that reason that, on sentencing, the submission of the respondent that an "aggravating feature" was that the pitchfork was left in the dog, cannot be accepted. The pitchfork was left in the dog, because the appellant had thought the dog was dead.
This method of seeking to kill the dog, and of eventually killing the dog, was particularly abhorrent and, ultimately, cruel. There is no evidence before the Court as to whether, at the time of these events, the appellant had any other method available to him of killing the dog. There is no evidence that the appellant possessed a weapon, such as a gun, or possessed bait, of some description.
If the purpose of the legislation is to render the person criminally liable for cruelty to an animal, then, one would suspect this conduct would be such as to be rendered the subject of criminal liability. Obviously, since the animal was subdued at the time of the two attacks and it was necessary for the appellant to take the camel to the vet, it would have been, or may have been, feasible for the appellant to convey the dog (presumably once a muzzle had been fitted) to the vet and have it "put down" humanely. That was not done. That it was not done is reprehensible. But is it conduct for which the appellant is criminally liable?
Given the promulgation of s 530(2) of the Act, the purpose of the legislation cannot be as broad as that expressed in the foregoing paragraph. Rather, the existence of s 530(2) of the Act discloses that the intention of the legislature is to render persons criminally liable for unjustified cruelty to some animals.
On its face, there seems to be no reason to give the term "pest animal" any special or restricted meaning. I have some doubt that one can construe the term "pest animal" by defining the word "pest" and defining the word "animal". It seems to me that the term "pest animal" is a composite expression.
Nevertheless, the term "animal" is defined. Given that the term "animal" is defined to include lizards, it would seem that an act that killed a lizard (assuming for present purposes that one can infer the requisite intention) would be one for which a person would be criminally liable, unless the lizard were a "pest animal". Yet, the submission of the respondent would have the effect that, unless there were a number of lizard's causing havoc or there were an organised, routine extermination process applicable to lizards (or applicable to another animal and collaterally caused the killing of lizards), there would be no exemption.
I take the view that the term "pest", when used to describe an animal, means a noxious, destructive or troublesome animal; a nuisance animal. That is giving the term "pest animal" its ordinary meaning, which, on the view I take of the judgment of the learned Magistrate, was not the approach taken by his Honour.
Next, I also accept that the term "exterminate" should be given its ordinary meaning and not some special meaning. In my view, the learned Magistrate misconstrued the provision by giving it a special or restricted meaning. By giving the term "exterminate" a restricted meaning, the learned Magistrate was giving the provision establishing criminal liability an extended meaning. The ordinary meaning of the term "exterminate" is "to get rid of by destroying; to destroy totally, to remove utterly or to do away with".
The respondent's submission that the term "extermination" is subtly different from "exterminate" has difficulties. First, it is not so described in most dictionaries. Secondly, s 7 of the Interpretation Act 1987 (NSW) provides, albeit subject to context, that cognate words will have the same meaning, at least if the word is defined in the statute.
Thirdly, and most importantly, "exterminate" does mean something different from "kill" - it means "to destroy utterly, to get rid of or to eliminate". To kill something may fall within that definition, but some "killings" may not. For example, assuming feral pigs were pest animals, a farmer that allowed "sport shooting" (if that is not an oxymoron) on the farm property, but not for the purpose of ridding the farm of the feral pigs, would not be exterminating them. Further, some activities that do not cause death would still fit within the definition of exterminate e.g. chemical castration of cane toads or deer (cane toads being amphibians and not "animals", as defined).
Further again, if the legislature were to have used "killing", rather than "extermination", as the respondent suggested would satisfy the construction expressed by the appellant, it would have altered the effect of s 530(2)(b) of the Act. If the word "killing" were to have been utilised, the criminal act would have been required to have been committed in the "act of killing". In other words, if, using the hypothetical discussed during argument, bait were used to exterminate dingoes, and killed possums, the accused would have to prove that dingoes were killed in order for the "defence" to operate.
Much attention was given, during the course of submissions, on whether the dog in question was "wild". As is clear from the recitation of facts, summarised above, the dog attacked the camel in the middle of the night and would not desist until it was beaten. It did so in the company of another dog. Its original attack ceased and re-commenced and the dog then attacked the appellant, at least on the appellant's uncontroverted version.
The camel was on rural or semirural property and was part of a petting zoo operated by the appellant. As such, the camel was livestock, i.e. a useful animal kept on a farm. The term "livestock" derives from the term "stock" that is living, being animals that are kept on hand as part of a business for the provision of goods or services to customers. The appellant was the occupier of the premises on which the camel, and other animals, were kept.
The business of the appellant was to provide access to the camel (and other animals). In my view, to the extent that it is relevant, the camel was the appellant's livestock, or part thereof.
Lastly, on the material before the Court and before the Local Court, the attack by the dog on the camel allows and, in the circumstances of hunting in a pair at night and the attack on a vulnerable docile animal, necessarily requires, the inference that the dog was wild. The existence of a collar and chip on and in the dog does not negate that inference. The existence of kangaroo meat in the dog's stomach corroborates the inference that would otherwise be drawn that the dog, once domesticated, had "become wild". [60]
The use of the term "become wild" necessitates the conclusion that such an animal was once "not wild" and negates the effect of the existence of the collar and chip. Further, as a "pit-bull type dog", the Companion Animals Act required it to have a muzzle and be on a lead, the absence of either resulting in the conclusion that the dog was not "kept in accordance with" that Act. The net effect of those factors may require that the dog be destroyed [61] or exterminated.
Returning to the meaning of exterminate pest animal in s 530(2) of the Act, there seems to be no warrant for treating the definition of pest animal as confined to an animal that, at the time that it is tortured, killed et cetera, is acting as a pest. There may be a number of situations that would give rise to the classification of an animal as a pest animal.
First, it could be the abundance of the animal on particular property or in a particular area, in circumstances where the area is not its natural habitat. Secondly, it could be an animal that destroys valuable items, including property or livestock. Excluded from such a definition would be an animal in its natural habitat that, as part of its ordinary activity, acted in a way that might be destructive, for example, a wombat that digs holes; or a cockatoo that damages the branch of a tree et cetera.
Utilising that ordinary definition, there can be no reasonable possibility that the dog, at least at the time that it attacked and severely injured the camel, was not a pest animal. The dog did not cease to be a pest animal, because it had desisted from the attack as a result of the intervention of the appellant beating it with a pole. The fact, as is clear from the summary above, that the dog was subdued, at the time of the conduct that gave rise to the first and second offences, does not exclude the dog from being a "pest animal". Indeed, on the natural consequence of the respondent's submission, the beating of the dog, at the time it was attacking the camel, was, itself, a contravention of s 530 of the Act.
To the extent that it is relevant, the mere fact that the dog had a collar and a chip was not enough to exclude the inference available, from the conduct of the dog in the middle of the night and its attack on a relatively harmless animal, that it was "wild". Whether it is wild, does not seem to be particularly relevant to the determination of the issue in this appeal.
It is necessary to deal in more detail with certain submissions and the grounds of appeal. First, the respondent submits that the threat of injury to the camel does not render the victim animal a "pest animal". To do so, the respondent submits, would allow a companion animal to be a pest, if it were to attack another, presumably companion, animal.
There are a number of reasons why the analogy does not apply. First, there is no suggestion on the evidence that the victim animal was a "companion animal". Secondly, the deceased dog was, as has been stated, attacking the livestock in the middle of the night; the livestock (being the camel) was docile; there was no evidence that the deceased dog was currently owned (i.e. leaving aside evidence of the historical ownership, being the collar [62] and microchip); it was attacking in the company of another dog about which there is no evidence of even historical ownership; and the attack occurred on the property of the appellant.
It is unnecessary to decide the question, but a companion animal that attacked in those circumstances may well be a "pest animal". If the analogy were intended to refer to an attack, for example by one pet dog on another in the street, the analogy does not assist the respondent. In the latter circumstance, there would be evidence of current ownership; the attack is not perpetrated while a "trespass" was occurring; the attack was not in the middle of the night; and there would be, presumably, "territorial" reasons for the attack.
Further, a dog is a companion animal [63] and a "dog" includes a dingo. [64] By the respondent's own submission, during oral submissions about whether dingoes were "wild", a dingo was suggested to be a "wild breed" and prima facie a "pest animal".
The reliance in the respondent's submissions on s 27 of the Companion Animals Act is misplaced. The provision deals with liability in damages of the owner of a dog. The provisions of s 22, particularly s 22(5), of the same Act are far more apposite. The appellant farmed (i.e. cared for or reared) animals and, if the appellant reasonably believed the dog would "molest, attack or cause injury" to the camel (or any other reared animal), he was entitled lawfully to destroy or to injure the animal. [65]
Given the recent attack on the camel and the seemingly uncontrolled wandering of the dog, the belief, if there were one, that the dog would "molest, attack or cause injury" to the camel or another kept pet animal would seem reasonable, if not irrefragable.
Further, the respondent submits [66] that the dog was not a pest because: there were no complaints from neighbours or the like that the dog was roaming or being a pest; and, there was no expert evidence that the dog, because of its breed, type or nature was a known pest animal. It is not absolutely clear what expert evidence could be adduced about the "nature" of the dog, which would be different from its breed.
The dog was a nuisance dog. [67] It was, on the evidence before the Local Court, a "dangerous dog". [68] It was menacing. And, on the evidence (see above), it was wild. It fits, given the nature and circumstance of the attack, the ordinary meaning of the term "pest" or "pest animal". [69]
The foregoing is not utilising the definitions of "nuisance", "dangerous" or "wild" to define "pest". Rather, the reference is inconsistent with any suggestion that the mere fact that a victim animal was a companion animal necessitates an inference that the animal was, or is, not a pest.
The respondent also submits that the two stage process adopted by the Magistrate, if there were a two-stage process (which the respondent denies), was the result of being led into that process by the appellant. [70] The two-stage process refers to the appellant's submission that the learned Magistrate required the pre-condition that the dog was wild, in the absence of which the dog could not be a pest.
It is not absolutely clear that the two-stage process, of which complaint is made, was adopted below. The learned Magistrate was, on his reasons, not persuaded that the dog was "wild". Was that conclusion a necessary aspect of his Honour's reasoning on the classification of "pest animal"? There are some indications to that effect. I will deal with the terms of the Judgment on Conviction later in these reasons. Ultimately, as will be discussed later in these reasons, the learned Magistrate erred in the way he approached the definition of "pest animal".
The respondent, in oral submissions [71] , submitted that the dog was not, like a hypothetical leopard, a pest animal because its appearance was one that would classify it as a domestic animal. I have already dealt with the appearance of the two dogs and the circumstances of the attack on the camel. If the submission were intended to classify all dogs as appearing domestic and not as a pest, the submission says nothing about whether, in these circumstances, the dog was a "pest animal".
If, in the alternative, the submission was intended to address the appearance of this dog in these circumstances, it can only be relying on the existence of a collar on this dog, in circumstances where the microchip would not be visible and there is no evidence that the other dog had a collar. As already noted, there was a collar, but no tag. Further, the attack on the camel, being, on the uncontradicted statement of the appellant in evidence, two attacks, would give the appearance of a "pest" in the ordinary meaning of that term.
Next, the respondent submits [72] that the reaction and conduct of the appellant, at least on realising the dog was alive, showed that the process in which the appellant was engaged was not one of "extermination". The appellant remarked, when the dog stood up after the first attack, that it "won't die, it's alive" and the appellant was "laughing and joking" and this disclosed an attitude that, on the respondent's submission, was inconsistent with a process of extermination. I reject that proposition.
The comment, as earlier remarked, was more consistent with the not-unreasonable belief that the dog was already dead. The jocularity, if that is what it was, is equally consistent with dismay and incredulity at the survival of the dog and the appellant's inability to effect death, as was his intention.
The respondent also submits [73] that the use of the plural, "pest animals", in s 530(2) of the Act, precludes one animal alone being in that category and refers, instead, to a systematic process conducted humanely, embracing concepts of relative "humanity or ethics". First, if extermination were so confined, it would be otiose, because the elements in s 530(1) of the Act would not exist. Those elements include an "intention of inflicting severe pain" and acts that result in one of the following: "torture"; "serious acts of cruelty"; "killing", "seriously injuring"; or causing "prolonged suffering" of or to the animal.
Secondly, to the extent that it uses the plural, it imports the singular, [74] unless the context otherwise indicates. The context provides no reason not to import the singular. Further comment on this issue is to be made later in these reasons.
Thirdly, the animal that was killed was one of two dogs which attacked the camel. If "pest animals" cannot include the singular, it is factually irrelevant. The two marauding dogs were "pest animals"; one of them was caught and killed.
The respondent further submitted [75] that animals could be "pest animals" because they were in "pest proportions". There can be no doubt that some animals may be pest animals because of their numbers or because of their kind. There are many examples of the former: feral cats; feral pigs; deer in some areas; rabbits. The best examples of the latter, "pest by kind", might be the cane toad or the fox (leaving aside for present purposes that the cane toad is not an animal, in the defined sense).
But the fact that animals may be pests because of those factors does not limit the term "pest animal" to animals that are pests for those reasons. Ultimately, the Local Court was required, for this prosecution, to determine whether this dog was a "pest animal" and whether the appellant was "exterminating" it.
This brings the Court to the reasons below. The learned Magistrate reserved on 17 June 2019 and delivered judgment orally on 19 June 2019. Understandably, the references to the evidence were general and in summary form. The transcript was available, but not for all of the proceedings.
The learned Magistrate dealt first with the evidence. There is little need to deal with that aspect of his Honour's reasons. I will, however, comment on two aspects, neither of which affects the appeal.
First, the mere fact that the learned Magistrate did not permit cross-examination of the appellant, because his evidence was aborted, does not mean that the evidence that was adduced was not sworn, or on oath. The respondent did not have the opportunity to test the evidence, but that is not the same issue.
Secondly, the learned Magistrate referred to his preference for evidence of Ms Doel, but her evidence did not contradict the appellant in a number of respects, including the use of the whip. Further, the learned Magistrate kept referring to "Browne v Dunn" points or questions.
A criminal prosecution is an accusatorial process. [76] The function and responsibility of the prosecutor to call all relevant evidence and the promulgation of s 38 of the Evidence Act 1999 (NSW), together with the accusatorial process, means that rarely, if ever, will the failure to call evidence or not suggest a different version of events to a witness give rise to any inference against the accused or defendant, or disentitle the accused or defendant from raising reasonable doubt about the allegation or the credit of a 'witness'.
In Milhelic [77] , the Court of Criminal Appeal (Rothman J, with whom Hoeben CJ at CL and Price J agreed) said of the rule in Browne v Dunn (1893) 6 R 67: "[73] Ordinarily, even where the rules of evidence do not apply, it is an essential rule of fairness that, if it is to be said that a witness is not telling the truth or is mistaken as to a fact, that proposition should be the subject of cross-examination. [74] The foregoing is not a rule of evidence. It is a rule of fairness, which has been held to be applicable to courts and/or tribunals, notwithstanding the existence of an exemption from the rules of evidence: see Marelic v Comcare (1993) 47 FCR 437 at 442; [1993] FCA 790, per Beazley J (as her Honour then was); Haberfield v Department of Veterans' Affairs as Delegate for Comcare (2002) 121 FCR 233; (2002) 72 ALD 333 at 345; [2002] FCA 1579, per Sackville J (as his Honour then was); Re Noeleen Fairlie Dolan v the Australian and Overseas Telecommunications Corporations (1993) 42 FCR 206; (1993) 31 ALD 510 at 512, 513 and 515; [1993] FCA 202, per Spender J; Re John Charles Clifford Hoskins v Repatriation Commission (1991) 32 FCR 443, at 446; [1991] FCA 559, per Pincus J; NRMA Insurance Limited v Ainsworth [2011] NSWSC 344 at [41] and following. [75] The High Court has expressed the view that the rule in Browne v Dunn (1893) 6 R 67 (extracts of which are reiterated in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1) does not apply to the accused in criminal prosecutions: RPS v R (2000) 199 CLR 620; [2000] HCA 3, which reasons, while dealing with the inference in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 is applicable to the reasoning in relation to Browne v Dunn. It is not for the applicant or the accused to disprove inferences, but for the Crown to prove the elements and essential facts beyond reasonable doubt. [76] However, the circumstance that the inference in Jones v Dunkel or the rule in Browne v Dunn cannot be used against the accused says nothing about whether it can or should be used against the Crown. The Crown is required to call all relevant evidence and, if unfavourable, or otherwise within the terms of s 38 of the Evidence Act, may cross-examine on the evidence."
An accused may not know the facts or circumstances of the offending either because he or she was not present when the conduct occurred or because he or she has no memory of the events as a result of the effect of time, alcohol, drugs or traumatic or other brain injury. To refer to an accused having Browne v Dunn points is prone to lead to error and diminish the significance of a reasonable possibility raised.
None of the foregoing is relevant to any ground of appeal, but there are aspects of the treatment of the evidence and/or statements of the appellant that may have been problematic in the foregoing respects.
The learned Magistrate discloses a familiarity with significant legislation covering "pest animals". [78] That legislation included statutes not forming part of the material handed to the Local Court, such as the Local and Services (Wild Dogs) Pest Control Order, which, according to the learned Magistrate, excludes any dog kept in accordance with the Companion Animals Act and other statutes.
The learned Magistrate then refers to the necessity for a court to declare a dog as a "wild dog" on controlled land. His Honour also refers to the requirements of those statutes and the processes involved. The circumstance that, pursuant to legislation other than the Crimes Act, there was a procedure to have one or more animals declared "wild" and "put down" is relevant, only if s 530 of the Act is to be construed as limited to that process.
The Judgment on Conviction then refers to the effect of those schemes [79] and says: "So those Acts and those pieces of extrinsic material that have been handed up by counsel in their entirety - and I have read them all carefully - recognise 1) That there are animals within New South Wales, particularly rural New South Wales. Some of those animals are predators, common sense dictates. That is, animals kill and prey on other animals for food. Nothing startling about that. The pieces of Legislation that were handed up the other day also indicate that there are apex predators in relation to it. And that size has no bearing on whether an animal is a predator. Those pieces of extrinsic material that go to the statutory defence also indicate that there are wild dogs. Wild dogs can be declared as such a wild dog. And that some wild dogs in some circumstances and in certain areas have been declared pests. Those documents also state - as a whole and I do not intend to go through every paragraph - that there are other animals that are also pests and that there are birds that are also pests. Those documents also indicate that because of the breed that is not determinative of the pest, that comes from the Greater Sydney Regional Strategic Pest Animal Plan. Pest animals are not defined by species. Any species other than a native species that presents a biosecurity threat does not define, nobody seek to define in any of these documents what is a pest in relation to it. It also recognises that the type of animal may make it a pest and the sheer numbers of animals may make them a pest. The upshot of those plans also the evidence that is contained in them indicate that together with various regulatory bodies and farmers, people who work on the land there is a plan or a series of plans in places in various rural and regional areas of New South Wales and for that matter in Sydney, to work in harmony with the regulators, the farmers to maintain agriculture in an appropriate fashion. In other words, nobody wants something to come onto their land and wipe out their crop. They seek to manage, control and/or eradicate. There are three parts to it, managing, controlling and eradicate. And I notice that one of the documents that was handed up to me talked about the Wild Dog Destruction Act and the maintaining on certain people of fences in certain areas to make sure that certain dogs who are declared wild dogs do not get to certain areas. But there again as I said, the upshot of all of that material is that if an animal is to be eradicated or exterminated it has (sic) still has to be done in accordance with what various pieces of Legislation and/or agreements have been struck. That is, there is reporting obligations and it has to be done - and this comes directly from one of the documents - 'Extermination has to be in accordance with approved methods.' That is, a summary of all of those documents that were handed up. And as I said, whilst they are exhibits, they are probably more in the line of extrinsic aids to what I have to find if I get to the statutory defence in the matter. That was the close of the defendant's case. That is - as I said - a summary of the evidence as I understood it. There are matters that I probably have not referred to. At the end of the day it does not mean I have not considered them."
The issue of credit is then addressed and the learned Magistrate accepts the evidence of Ms Doel. In part, he did so because he observed her distress at the treatment of the dog. However, that distress could have arisen as a result of the conduct described in the Agreed Facts that was before the Court. The findings of fact as to the treatment of the dog are not challenged in this appeal. The elements of s 530(1) of the Act were found proved, although there is no separate discussion on the intention and the drawing of that inference.
In determining the "defence" under s 530(2) of the Act, his Honour says: [80] "I am taken to firstly pest animal, extermination of a pest animal. There is evidence that it had a collar and it had a chip. It was at one stage what is suggested to be a domestic animal well maintained under the Companion Animals Act. Whilst counsel says that I can just draw from the four factors, that is it was roaming, it was in certain areas and the four factors that counsel pointed me to suggest that it had become a wild dog over a period of time in relation to it. And then I have to get to the point that having declared it a wild dog - if I have the power to make that declaration - I then have to get from wild dog to a pest animal. And for the reasons I have indicated when I was talking about the extrinsic aide and bearing in mind there is no definition of 'pest animal' in the Crimes Act. I do note in relation to the second reading speech that what Ms Norrie attempted to do was to make a more serious offence for the more aggravated forms of cruelty to animals so that there would still be prosecution under the other acts as they currently existed, but this was (sic) seemed to be a further for the more extreme series of violence in relation to it. She says there would still be prosecutions under those Acts. Given that there is no definition in the Crimes Act I then go back to the other Acts which I am obliged to do by the second reading speech and there again there is no definition of 'pest animal' in relation to it. But what she does talk about is that when there is a defence where the person is acting under routine agriculture, animal husbandry, veterinary practice and pest extermination. It leads back into those offences that even if it were a pest - and I am not so satisfied it is a pest on all of the material before me - I am not satisfied it was a wild dog on the material before me, even on the balance of probabilities because simply it was roaming in relation to it, it had kangaroo meat in its stomach in relation to it. I am not satisfied it is a wild animal. I am not satisfied therefore that it is a pest animal. But even if I am wrong on those points, the Legislation which governs the extermination of pest animals is also regulated that you cannot just go out and shoot it because you believe it is a pest. It is heavily regulated and heavily controlled in relation to it for the reasons I said earlier. And as I said, the only evidence - only evidence - that the accused believed it to be a pest and he was exterminating a pest comes from that comment by Ms Doel 'It won't fucking die.' Because there is nothing in the accused's evidence that he gave to date to indicate that he was attempting to eradicate a pest or exterminate a pest. As I said earlier, he was trying to get it off himself, trying to protect himself from the snarling and growling and protect Rick at that stage and ultimately protect Alice. That does not amount to extermination, especially when it is taken to a tree and subdued, tied up and then the further acts that have perpetuated on it when it is taken from that tree and hung over another tree and hit with a mallet on a number of occasions could hardly in any stretch of the imagination be in accordance with what the Legislature said was an acceptable practice of extermination at the end of the day" (Emphasis on word "therefore" has been added.)
The foregoing lengthy extract makes clear that his Honour defined "pest animal" by reference to the statutes to which his Honour had earlier referred. In other words, he gave the term "pest animal" a technical meaning, narrowing the "defence" by reference to statutes and provisions other than s 530 of the Act. As the learned Magistrate explains, in the absence of a definition in s 530 of the Act, he "then go[es] back to the other Acts".
Also, the use of the term "therefore" [81] can have no other implication than his Honour's conclusion that, because he could not, or did not, declare the dog a "wild dog", it is not a "pest animal". His Honour's analysis of other statutes for the foregoing purpose, and in order to determine whether the appellant was involved in an "extermination", has no regard to the provisions of s 22(5) of the Companion Animals Act to which reference has already been made.
Those provisions are inconsistent with an interpretation of s 530(2) of the Act that prevented a landowner or occupier, in this case the appellant, destroying a dog that has "approached" an animal being farmed, in this case the camel, if the landowner or occupier reasonably believes the dog will "molest, attack or cause injury" to the camel or other animal in the petting zoo the appellant conducted.
The foregoing reference to s 22(5) of the Companion Animals Act is not for the purpose of construing s 530 of the Act in accordance with definitions or processes in the other statute. Rather, it is, in discerning the legislative intention in s 530 of the Act, to understand that it would be inconsistent with the achievement of harmonious goals to render conduct criminal, when another statute expressly permits the conduct in question.
It also discloses that the learned Magistrate did not give the words "pest animal" and "extermination" their ordinary meaning. There is no warrant for that approach. The Magistrate's approach renders criminal, conduct that is expressly permitted by s 22(5) of the Companion Animals Act. Further, the learned Magistrate takes into account the absence of evidence, from the appellant, and gives the term pest animals a subjective meaning. The test is objective.
The conduct of the deceased dog rendered it, objectively, a pest animal and the conduct of the appellant was, objectively, open to only one reasonable possibility, namely, that his intention was to rid himself of (or utterly destroy) this pest.
As a consequence, error of law has been disclosed. The ordinary meaning of the words "pest animal" includes a mammal that is a nuisance or that is destructive of livestock of other property and the ordinary meaning of "extermination" includes the act or process of utterly destroying or eliminating a pest animal.
On the facts found by the learned Magistrate, the appellant engaged in the conduct to which s 530(1) of the Act attaches "in the course of or for the purpose of… the extermination of pest animals" [82] and the appellant is not "criminally responsible" [83] . No other reasonable conclusion is available, once the objective nature of the test is given and the words are given their ordinary meaning and not a technical one.
As a consequence of the foregoing analysis, Grounds 1 and 3 of the Appeal are made out and involve questions of law alone. Given that conclusion, it is unnecessary to deal with Grounds 2 and 4 of the Appeal.
However, it seems to me that Ground 2 is not made out. A distinction must be drawn between a failure to provide sufficient reasons and a ground that argues that the reasons provided are wrong. As to Ground 4, the learned Magistrate relied on the absence of reporting and management, but it is not clear that he considered the presence of them a "requirement", as distinct from a factor to be considered in his determination, based, as it was, on the other statutory or regulatory regimes.
As a consequence of the foregoing, the learned Magistrate misconstrued the provisions of s 530 of the Act and an error of law has been disclosed. Orders will be made giving effect to that finding, my conclusions and dismissing the charges.

Sentence

Formally, it is unnecessary for the Court to embark upon an examination of the sentence and whether it was manifestly excessive. Nevertheless, because the matter has the capacity to proceed elsewhere, the Court will indicate, briefly, its view on those issues.
As earlier stated, the subjective features of the appellant are that he has never before been convicted of a criminal offence; he has an impeccable record; he has not before come to the attention of Police or law enforcement agencies. Further, and most relevantly to the current charges, apart from the references that were provided, he has an impeccable record in terms of his treatment of animals, which is his livelihood.
The fact that the appellant has an exemplary record in relation to the treatment of animals is a factor which informs not only the sentence to be passed if he were guilty, but also whether it is likely he formed the intention required under s 530(1) of the Act.
Little or no attention has been paid by the learned Magistrate to the provisions of s 5 of the Crimes (Sentencing Procedure) Act and whether a full-time custodial sentence was the only appropriate sentence. Given the lack of a need for specific deterrence, the leniency that is required to be shown to a first-time offender and the lack of utility in a full-time prison sentence, the Court, as presently constituted, does not consider that a custodial sentence is the only appropriate remedy and, even if a custodial sentence were warranted, a full-time custodial sentence is not. For the subjective reasons upon which senior counsel for the appellant relied, I would have, were I not otherwise making orders quashing the conviction, imposed, at the highest, a Community Corrections Order or an Intensive Corrections Order, which latter result would also implement general deterrence, which is a significant factor in these types of offences.
As is or may be obvious from the foregoing, were I not in this appeal making orders for the dismissal of the charges, I would make orders giving effect to errors in the sentencing process. Notwithstanding my reference to s 5 of the Crimes (Sentencing Procedure) Act, I would be most reluctant to imply in an experienced judicial officer failure to take the provisions into account and I do not.
Further, I do not consider the imposition of a full-time custodial sentence as one that was unavailable. I do consider this sentence, in the circumstances as I have found them, outside the range for this offence and this offender.
The only ground of appeal is "manifest excess" requiring the Court to find that the sentence was "plainly unjust" or "unreasonable". [84] This is a conclusion that refers to error of the kind described in House [85] , even though the error cannot be identified. It seems, although one cannot be certain, that the error here is in the misapplication of the totality principle, or, more accurately, treating each offence separately and without adequately accounting for the one course of conduct and the need for greater concurrence. Manifest excess has been established.
It would seem, if the appellant were guilty, that general deterrence would remain a significant issue and it is for that reason, alone, that a form of custodial sentence would be warranted. It is unnecessary to determine the length of that sentence, but I would impose an aggregate sentence, bearing in mind that I take the view that both offences arise out of the one course of conduct, all done with the intention of killing the dog, and the subjective factors to which I have referred.
The elements of the offence may include cruelty, but gratuitous cruelty is, in this case, an aggravating feature, being cruelty beyond that necessary to achieve the result of killing the dog. On the other hand, as stated, I consider each offence part of the one course of action to kill the dog, and consequently would sentence with significant concurrence and limited accumulation.
I would set indicative sentences of 20 months for each offence, applying all of the factors to which reference has already been made and also making some allowance for the facilitation of the administration of justice in not contesting some of the factual allegations and providing Agreed Facts, albeit not comprehensive. I would then have imposed an aggregate sentence of 24 months (2 years) for the two offences. Such a sentence would leave open an Intensive Corrections Order.
In order to impose an Intensive Corrections Order (hereinafter "ICO") [86] or a Community Corrections Order (hereinafter "CCO"), [87] the Court would need to have an assessment, but, assuming the appellant was suitable, this Court would impose an ICO with an additional condition of a requirement to attend a suitable course on animal cruelty as recommended by authorities. For that reason, apart from the hypothetical nature of the task in sentencing, I have not indicated a non-parole period either at the indicative or final stage.
There are two other matters that need comment. First, the respondent relied on the "cover up" by the appellant to show his subjective belief of guilt. This is a consciousness of guilt submission but the respondent does not address the requirements necessary to use the conduct in this way. The "cover up" may have indicated embarrassment at the manner in which the dog was killed, rather than a subjective view of the appellant's guilt of this offence. It cannot be held, beyond reasonable doubt, against the appellant on sentence.
Secondly, reference was made to analogies with commercial fraud and the traffic offence of a judge, to which earlier reference has been made, to diminish the effect of "good character". No proper analogy arises. In the case of fraud (like some sexual assaults), the good character and position of trust is a necessary or important factor in the capacity to perpetrate the offence and the criminal conduct can occur over an extended period for that reason. In the case of the judicial officer, the conduct punished was not the traffic offence, it was the perjury, obstruction of justice and contempt, again, in circumstances where the judicial officer's position and "good character" was being used to give verisimilitude or "authority" and "believability" to the deliberate falsehood. The analogies fail.
For the foregoing reasons, the Court makes the following orders: 1. To the extent necessary, leave to appeal is granted. 2. The appeal against the conviction is allowed. 3. The conviction is quashed. 4. The charges preferred against Daniel Brighton of two Counts of serious cruelty to a dog in contravention of s 530(1) of the Crimes Act 1900 (NSW) are dismissed. 5. No order as to costs. 6. Either party may apply for a different order as to costs within seven (7) days of the date of judgment. Any party affected by such an application may respond within seven (7) days of the receipt of the application. Any such application and response shall be filed by email to the Associate of Justice Rothman and such application shall be dealt with on the papers.

Endnotes

Section 53B of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Tcpt, 29 March 2019, p 25.
Tcpt, 28 March 2019, p 26, l 14-15.
Tcpt, 28 March 2019, p 35, l 43-46.
Tcpt, 28 March 2019, p 53.
Tcpt, 29 March 2019, p 43, l 25.
Tcpt, 29 March 2019, p 43, l 37.
See Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322; Krishna v Director of Public Prosecutions (NSW) (2007) 178 A Crim R 220; [2007] NSWCCA 318 and the authorities cited in each of those judgments.
[2007] NSWSC 315 at [144] and following.
(1940) SR (NSW) 126.
[2007] NSWCA 210 at [12].
[2007] NSWCA 158.
(1996) 186 CLR 389; [1996] HCA 36.
(1993) 43 FCR 280; [1993] FCA 322.
(2020) 94 ALJR 182; [2020] HCA 2.
(2016) 258 CLR 281; [2016] HCA 31 at [29].
(2013) 250 CLR 135; [2013] HCA 30.
(1956) ALR 286; [1956] HCA 80.
Agfa-Gevaert, Supra, at CLR 395, citing Pozzolanic, supra, at 287, numbered item (1) and the cases cited thereat.
[2011] NSWSC 474.
L&B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15.
Ibid, per Basten JA, with whom McColl and Whealy JJA agreed at [34], [35].
Appellant's Written Submissions at [14]-[17].
Judgment on Conviction, Tcpt, 19 June 2019, p 12, l 13-20.
Judgment on Conviction, Tcpt, 19 June 2019, p 12, l 38.
Judgment on Conviction, Tcpt, 19 June 2019, p 12, l 12-13.
Judgment on Conviction, Tcpt, 19 June 2019, p 13, l 9.
(1985) 4 NSWLR 139.
Judgment on Conviction, Tcpt, 19 June 2019, p 12, l 40.
Judgment on Conviction, Tcpt, 19 June 2019, p 12, l 38 - p 13, l 5.
Judgment on Conviction, Tcpt, 19 June 2019, p 8.
Sentencing Judgment, Tcpt, 27 June 2019, p 8, l 19.
Sentencing Judgment, Tcpt, 27 June 2019, p 10, l 2.
Sentencing Judgment, Tcpt, 27 June 2019, p 7, l 42.
Sentencing Judgment, Tcpt, 27 June 2019, p 9, l 28.
Sentencing Judgment, Tcpt, 27 June 2019, p 7, l 35.
Sentencing Judgment, Tcpt, 27 June 2019, p 8, l 9.
Sentencing Judgment, Tcpt, 27 June 2019, p 8, l 5.
Sentencing Judgment, Tcpt, 27 June 2019, p 10, l 10.
Sentencing Judgment, Tcpt, 27 June 2019, p 10, l 4.
Sentencing Judgment, Tcpt, 27 June 2019, p 9, l 30.
[2009] NSWSC 119.
Section 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Section 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW). See R v Foster [2001] NSWCCA 215 as to the order of severity, which included the now repealed option of a suspended sentence.
Ex parte Purcell (1907) 7 SR (NSW) 432; Tuck & Sons v Priester (1887) 19 QBD 629.
Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360.
Scott v Cawsey (1907) 5 CLR 132, p 154; [1907] HCA 80.
The King v Adams (1935) 53 CLR 563; [1935] HCA 62.
Ibid, at CLR 567-8; [6].
[2003] NSWCCA 361 at [24].
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78], per McHugh, Gummow, Kirby and Hayne JJ.
Ibid, at [70]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408; [1997] HCA 2, per Brennan CJ, Dawson, Toohey and Gummow JJ.
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628, at 635; [1966] HCA 74.
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [39] and the cases there cited.
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103] per McHugh J.
Project Blue Sky Inc, supra, at [78].
Arthur Delbridge, Macquarie Dictionary (3rd ed, 1997).
Glanville Williams, Salmond on Jurisprudence (11th ed, 1947, Sweet and Maxwell), c 18 at 410.
Local Land Services (Wild Dogs) Pest Control Order 2015 (NSW).
Ibid; Clause 7, definition of controlled land in Clause 3 and Schedule 1 of the said Order.
It should be noted that the dog had a collar but there is no evidence of a tag. See s 12 of the Companion Animals Act.
Section 5 of the Companion Animals Act, definition of "Companion Animal".
Ibid, definition of a "dog".
See also s 22(5) of the Companion Animals Act.
Respondent's Written Submissions at [121].
Section 32A(1)(e) of the Companion Animals Act.
Section 33(1)(a) of the Companion Animals Act.
Ibid, ss 33A(1)(a) and (b).
Respondent's Written Submissions at [132].
Tcpt, 3 April 2020, p 25, l 20-24.
Tcpt, 3 April 2020, p 26, l 26-37.
Tcpt, 3 April 2020, p 27, l 5-12.
Interpretation Act 1987 (NSW), s 8(c).
Tcpt, 3 April 2020, p 28, l 20-23.
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [22].
Milhelic v R [2019] NSWCCA 2 at [73]-[77]. See also Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45.
Judgment on Conviction, Tcpt, 19 June 2019, p 7, l 40.
Judgment on Conviction, Tcpt, 19 June 2019, p 8, l 6 and following.
Judgment on Conviction, Tcpt, 19 June 2019, p 12, l 12 and following.
Extract above, where emphasis has been added.
Section 530(2) of the Act.
Ibid.
House v The King (1936) 55 CLR 499; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].
House v The King (1936) 55 CLR 499; [1936] HCA 40.
Section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Section 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Amendments 21 July 2020 - [32] "same" replaced with "some"; [97] "result and" replaced with "result that"; [199] "totally" replaced with "totality". 24 July 2020 - [25] "meeting" replaced with "meaning". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2020

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

Evidence Act 1999(NSW)

(NSW), the Exhibited Animals Protection Act 1986(NSW)

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Judgment (16 paragraphs)

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Legislation Cited (10)

Cases Cited (62)

Cited By (6)