Animals - Cruelty - Failure to feed and water horses - Whether person who is not the owner may commit the offence of cruelty

Criminal law - Sentencing - No error in sentencing offender

Prevention of Cruelty to Animals Act 1920, s 4(1)(b)

1 PULLIN J: This is an application for leave to appeal against the convictions of the applicant by Mr C Roberts SM in the Midland Court of Petty Sessions on 19 June 2002 on three charges, namely that between 1 October 2001 and 9 January 2002, the applicant:

(a) failed to supply a domestic animal, namely a standard bred stallion, with proper and sufficient water;

(b) failed to supply a domestic animal, namely a standard bred stallion, with proper and sufficient food; and

(c) failed to provide a domestic animal, namely a pony, with proper and sufficient food,

contrary to s 4(1)(b) of the Prevention of Cruelty to Animals Act, 1920.

2 On 1 November 2002, the learned Magistrate sentenced the applicant on two complaints to a term of imprisonment of 3 months and 1 day suspended for a period of 2 years, and on the third complaint a fine of $3,000. The applicant also seeks leave to appeal against those penalties.

3 The application for leave to appeal is made under the provisions of Pt VIII of the Justices Act 1902, and under s 187(1) I am directed to grant leave to appeal unless I consider that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case. There is no suggestion that the proposed appeal is frivolous or vexatious. An arguable case is one which has some prospect of success. It is not one which is merely capable of being argued. Dempster v National Companies & Securities Commission (1993) 9 WAR 215 at 262.

4 I turn first to consider the application for leave to appeal against conviction.

5 The first two proposed grounds of appeal are that:

"(a) The Learned Magistrate erred in finding the complaints proved despite holding that it had not been proved that the Applicant was the owner of the animals. To the extent that the Learned Magistrate found that the Applicant was responsible for feeding and watering the animals, there was no evidence to support such finding.

(b) The Prevention of Cruelty to Animals Act does not impose any obligation upon a person, other than an owner as defined by the Act, to supply food or water to an animal and an offence under section 4(1)(b) of the Act can only be committed by an 'owner'."

6 The two grounds of appeal raise questions of law.

(a) The first is whether the applicant could be convicted of the offences if it had not been proved that he was the "owner" of the animals (see the first sentence in ground (a) above and ground (b)).

(b) The second and alternative question arises if a person who is not the owner can, as a matter of law, be convicted of an offence under s 4(1)(b). The question is whether there was or was not any evidence to support a finding that the applicant was "responsible" for feeding and watering the animals.

Can a Person who is Not the Owner of Animals be Convicted of an Offence under s 4(1)(b)

7 Section 4(1)(b) of the Prevention of Cruelty to Animals Act 1920 provides:

"It shall be an offence against this Act for any person to -

(b) fail to supply any domestic animal or captive animal other than those running at large with proper and sufficient food or water or sufficient protection against inclement weather."

8 Section 4(2) provides that:

"For the purposes of this section, an owner shall be deemed to have permitted cruelty within the meaning of this Act if he shall have failed to exercise reasonable care and supervision in respect of the protection of the animal therefrom, or failed to take reasonable steps to prevent the unnecessary suffering of the animal."

9 "Cruelty" is defined earlier in the Act to mean the acts or omissions listed in s 4.

10 "Owner", when used in reference to an animal, is defined to include:

(i) joint owner, hirer, borrower, or entitled for the time being to the possession or custody of the animal;

(ii) in any express or implied contractual relationship, whether as employee, agent, bailee or otherwise, with the owner in respect of the animal, and with whose orders the driver, conductor or other person, having the immediate care or custody of the animal is required, pursuant to any express or implied contract of or for service, to comply."

11 In my opinion, the applicant's argument that the reference to a "person" in s 4(1) must be equated with, or does not extend beyond, persons who fit the extended definition of owner, is an argument which has no prospect of success. The legislature has used the expression "owner" and "person" in the same section. It has therefore deliberately referred to a "person" rather than to the "owner" in s 4(1). It is easy to conceive of circumstances where a person who is not the owner could commit the acts of cruelty listed in s 4(1). For example, inciting an animal to fight is one such act of cruelty (s 4(1)(d)) and an offence which could be committed by a person who was not the owner.

12 I therefore refuse to grant leave in relation to this point.

No Evidence that the Applicant was responsible for Feeding and Watering the Animals

13 The proposed ground of appeal contained in the second sentence in the first ground of appeal does not expressly raise any issue about who, in law, is "responsible" for feeding and watering domestic animals. Nevertheless, I must discuss the circumstances in which responsibility will arise before I can decide the evidence point.

14 Section 4(1)(b) states that any person who fails to supply a specified animal with food or water, commits an offence. The word "fail" does not mean "does not". If it did, then any person, even a person who did not know of the existence of the animals, could be charged and convicted. That would be an absurd result.

15 The word "fail" in its ordinary meaning means "a neglect to perform or observe" some obligation duty or requirement; a "failure" to do something is, in its ordinary meaning, the "non-performance of something due or required". Macquarie Dictionary. Section 4(1)(b) is unusual because an Act will ordinarily expressly state the precise nature of the duty before stating that it is an offence to fail to observe the duty. Here there is no express statement of any duty. Section 4(1)(b) refers to a failure to feed and water animals, and because of the ordinary meaning of "fail", there must be a "duty" to feed or water the animals before an offence is committed. "Duty" in its ordinary meaning is that which one is "bound to do by moral or legal obligation" (Macquarie Dictionary) or "an obligation assumed ... or imposed by law to conduct oneself in conformance with a certain standard or to act in a particular way" (Merriam-"Webster's Dictionary of Law", 1996).

16 A person may assume an obligation voluntarily. For example, a person entering into a contract will voluntarily assume obligations, and having done so will then be obliged at law to perform the obligations promised. A person who enters into a contract with the owner of an animal, obliging them to feed the animal, will be an "owner" within the extended definition. However, a person who is not the owner but voluntarily assumes a responsibility to feed an animal, will commit an offence if there is a failure to discharge that self-imposed duty or responsibility. In Backhouse v Judd [1925] SASR 16, Napier J dealt with an appeal from a court of summary jurisdiction where the appellant was convicted under the Prevention of Cruelty to Animals Act 1908 (SA) under s 4(1) of that Act, which read: "Any person who ... wantonly or negligently fails to supply any animal with proper and sufficient food, or water" shall be guilty of an offence. Napier J noted that the first question to be decided was whether the appellant was under any duty to supply the horses with food. In that case the appellant was the owner of the horses. Napier J said at pages 19-20:

"Apart from the Statute under consideration, a legal duty to feed or care for an animal might arise in particular cases. Generally speaking, that could only be where it was undertaken by contract, but there is a duty of the kind where cattle are impounded, and there may be other instances. But these are duties of a private character. They are correlative to the proprietary right of the other party to the contract, or of the owner of the animal, as the case may be. As such the duty is not enforceable by anyone but the owner of the right, and it may be waived or released by him.

When a penalty is imposed for failure to supply, it presupposes a public duty to supply. In default of any duty otherwise expressed or defined in the Act itself, and in default of any pre-existing duty to which the intent may reasonably be referred, this imposition of the penalty must be understood to create the duty, leaving the Courts to define it as best they may, and to evolve their own answers to the questions which must necessarily arise-On whom is the duty imposed? when does it arise? and how may it be discharged? Having regard to the scope of the Act, it is impossible to suppose that the subsection is referrable to the pre-existing legal duties which I have mentioned. The only possible meaning is that here, as in other respects, the Statute is intended to give legal force and efficacy to obligations which are already accepted as social duties, and as binding, in conscience, upon civilized people. The Statute presupposes the existence of some such moral duty, and provides for its enforcement."

"In my view, therefore, the scope of the penalty is to be confined to cases of which it can be said that they fall quite clearly within the moral duty, as it is accepted (or, to speak more accurately, as the Courts may think that it must be accepted) by every reasonable member of the community. If this is so, I think that it must be restricted to people who have in some way accepted the responsibility for the care and keeping of the animal. If the duty had been voluntarily undertaken by contract, or in any other case, where it already exists as a legal obligation due to the owner, I see no reason why the section should not apply to punish the omission as a violation of the public right."

18 Then in Page v Martin [1934] SASR 265, Napier J again dealt with a case of a person convicted for negligently failing to supply animals with proper and sufficient food. The defence of the appellant was that she was not the owner of the animals in question, notwithstanding that she told the inspector in that case that the animals were hers and that she acted as if the animals were hers. The Magistrate said in that case:

"'But it is not necessary to prove that the defendant is the owner, merely an obligation to supply proper nourishment is all that is required to be proven'."

19 Napier J said that he saw no misdirection in those words. He then referred to his decision in Backhouse v Judd (supra), and he then said (at page 266):

"I adhere to the principle upon which that case was decided, but it is necessary to point out that the question there was whether the owner, who was not in immediate control of the animals, could be charged with a breach of the duty. In saying that 'the owner of the animal is the person who is primarily charged with the duty of supplying it with proper and sufficient food and water,' I had no intention of limiting the responsibility to the person with the absolute legal ownership. I should say that any person who has possession or control of the animal is prima facie responsible for feeding it, and cannot discharge himself from that responsibility by shewing that he is not the actual owner."

20 In my view, the position is also clear that a person who voluntarily undertakes the responsibility to feed and water a domestic animal will commit an offence, even if that person is not the owner and is not in possession or control of the animal.

21 For example, as the learned Magistrate said, a neighbour who for no consideration or financial reward agreed with an owner who was going on holidays, to put food over a fence to an animal locked in a yard, would commit an offence if he decided that he would cease feeding the animal and left it to starve. The neighbour would not be an owner and would not in those circumstances have possession or control of the animal but would still be responsible for feeding the animal.

22 I now turn to see whether there was any evidence which would support a conclusion that the applicant was responsible for feeding and watering the stallion and feeding the pony.

"(a) Although equivocal in nature the following proposition was put to the defendant by Constable McKercher 'your wife has just told me you are responsible' (for owning and caring for horses out at Stock and Lefroy Roads) to which the defendant replied 'yes'. I accept taken alone - this answer could have more than one meaning (one being an acknowledgement that the police asked his wife a question, the other - an admission) - when combined with other evidence it assists the prosecution case.

(b) At the property the defendant called police over to the boot of his car and said 'look in here. I am feeding them' (referring to lupins).

(c) The defendant when speaking to Inspector Brighton said 'I want you to look at this'. They walked 30m through long grass to where there were a few bales of hay and the defendant then said 'I'm feeding the horses this. This is where I keep the hay'.

(d) On the 15th of January the defendant went to RSPCA headquarters at Malaga with Dr Sid Richardson and stated 'I want to look at my horses'.

(e) At a previous court case on the 8th May 2001 relating to the stallion the defendant said 'any animal spooked, there's no guarantee that it's not going to run into a fence or anything if they panic, so mine are no different' (my emphasis).

(f) The defendant attended with his wife at the WA Turf Club - where the defendant's wife applied (after paying a fee) to transfer the ownership of the stallion from Noel Simpson Enterprises to herself and a naming application. They told Mr Greenly they have purchased a horse at a sale and they wanted to put the horse into the (wife's) name. On the form it was stated the purchase price was $7,500.

The above does not demonstrate ownership on the defendant's behalf but simply the defendant's ongoing involvement in matters concerning the stallion.

(g) The defendant admitted to Inspector Brighton that he was the one responsible for the care of the subject animals (p.142-143) transcript)."

24 The applicant concentrated very much upon the evidence in par (g) above. It was submitted that pages 142-143 of the transcript did not reveal any admission to Inspector Brighton that the applicant was the one responsible for the care of the subject animal. Counsel for the applicant took me to pages 141-143 of the transcript. In fact, evidence was given by Inspector Brighton for many pages of transcript before the pages I was referred to. For example, it was Inspector Brighton to whom the applicant spoke at the RSPCA headquarter on 15 January 2001 and said "I want to look at my horses" (reference is made to this by the learned Magistrate in par (d) above). At pages 141-142 of the transcript, Inspector Brighton was cross-examined by counsel for the applicant. He was asked many questions which, in my view, sought to elicit inadmissible evidence. For example, he was asked whether in certain factual circumstances posed, a person would commit an offence or not. However, at page 142 Inspector Brighton said "I'm just aware that he is the person that normally feeds and waters them" (referring to the horses in question). Then on page 143 of the transcript, he gave evidence in these terms:

"I mean, even on the day that we took the horses he showed me hay. He said he was feeding the horses."

25 That was followed by the following questions and answers:

"Yes. I put it to you that what you've heard from Mr Daniele is that he feeds the horses. That's what he says, isn't it?---Yes. He's --

And he waters the horses?---He has always indicated to me in my dealings with him that he is the one that cares for the animals."

26 I also note that at page 139 of the transcript, Inspector Brighton gave evidence that the applicant had in dealings with Inspector Brighton, admitted that he was "responsible" for the stallion and "responsible for the care" of the pony. In my opinion, the evidence that the applicant said that the horses in question were "my horses", that he was the one that "cares for the animals", and that he was "responsible" for the animals, that he could disclose the location of hay which he claimed he was feeding to the horses, and that he claimed that he was feeding them, provides ample evidence to support the conclusion that the applicant did accept the responsibility for caring for the horses. To "care" for animals is to protect them or have them under charge. Caring for the horses necessarily involved accepting the responsibility to give them adequate food and water, which responsibility the applicant purported to, but did not, discharge. In the face of that evidence, in my opinion, the ground of appeal alleging that there was no evidence to support the finding that the applicant accepted responsibility for feeding and watering the stallion and feeding the pony, has no prospect of success.

27 The applicant also seeks leave to appeal against the sentence imposed.

28 The penalty provision in the Act allows for a fine of $5,000 or 12 months' imprisonment. It is important to note that the applicant has been convicted of cruelty on two previous occasions. One occasion was on 26 June 2001, where he had ill-treated horses by tethering them up with no shelter for long periods of time and by failing to provide water. The applicant appealed against that decision but the appeal was dismissed: See Daniele v Weissenberger [2002] WASCA 289. In his reasons for decision in that case, Parker J stated that the substance of the two complaints which resulted in the convictions on 26 June 2001, and which offences occurred between 28 March and 15 September 2000, involved the defendant ill-treating five horses by failing to exercise reasonable care and supervision and failing to take reasonable steps to prevent the unnecessary suffering of the horses, contrary to s 4(1)(a) of the Act. The applicant in that case was fined $2,000 in relation to one of the offences and $1,000 in relation to the other offence.

29 The applicant had earlier been convicted on 22 March 1996 of two offences, one involving ill treatment of a horse and pony by tying them up with no shelter, and the other of cruelty by failing to provide water. The applicant was fined a global amount of $1,000 and ordered to pay $2,500 in costs for those offences.

"... this [is] your third lot of convictions relating to horses now, and indeed for the stallion a second conviction relating to the very same horse."

31 The Magistrate noted that the fines had not worked in the past, that the applicant was a defiant offender, and correctly noted that deterrent sentences were necessary both at a personal level and at a general level. His Worship noted that "unlike human beings who can to some extent fend for themselves and protect themselves, animals are confined and rely solely upon their well being and the basic necessities of life by their carers". His Worship noted the maximum penalty which could be imposed.

32 In my opinion, the matters which his Worship averted to indicated that he took into account the principles of sentencing set out in s 6 of the Sentencing Act 1995. There is no complaint that he did not consider the provisions of s 39 of the Sentencing Act 1995.

33 The only complaint that the applicant wishes to air on appeal is that the penalties were excessive in the circumstances. In my opinion, such an appeal would have no prospects of success. The applicant cruelly treated both animals by failing to supply them with proper and sufficient food, so that they ended up in an emaciated condition. The stallion was left without sufficient water. The water trough was found to be bone dry. The horse was dehydrated and very stressed. In my opinion, the sentence was in no respect excessive. Indeed, it is my opinion that the applicant was lucky to be treated so leniently. The term of imprisonment of 3 months and 1 day suspended for a period of 2 years was only one-quarter of the sentence which might have been imposed, and this was ameliorated by suspension of the sentence for a period of 2 years. The fine of $3,000 in relation to charge number 573 of 2002 was well under the maximum and was a logical progression from the earlier fine which had been imposed for the offence of ill-treatment imposed on 26 June 2001. There is nothing before me to suggest that his Worship made any error in exercising his discretion. See Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 and House v R [1936] HCA 40; (1936) 55 CLR 499 at 505.

34 The application for leave to appeal is dismissed.