Fleet v District Court of NSW & 2 ors

Fleet v District Court of NSW & 2 ors - [2002] NSWCA 25 - NSWCA 2002 case summary — Zoe

[19]

Tuesday, 26 February 2002 DR ROBERT FLEET v DISTRICT COURT OF NEW SOUTH WALES & 2 Ors Judgment 1 MEAGHER JA: This is an application for certiorari by a certain Dr Fleet of a judgment and orders made by Nield DCJ on 20 June 2000. The litigation concerned the fate of Dr Fleet's German Shepherd dog "Jason" on 5 March 1997. On that day the dog was seized by the police, at the instigation of the Royal Society for the Prevention of Cruelty to Animals (the second respondent). It was collected, examined and destroyed. Dr Fleet was then charged with two offences under the Prevention of Cruelty to Animals Act 1979, viz. aggravated cruelty to a dog (s.6) and failure to inform an authorized officer of his name and address (s.27A). I might interpolate that the latter charge was ludicrous, since the RSPCA well knew Dr Fleet's name and address. However, on 2 October 1997 he was found guilty of both offences at the Blacktown Local Court. 2 He appealed, unsuccessfully, to the District Court against both findings of guilt. That appeal was heard by Karpin DCJ, and, in fairness to Dr Fleet, it must be recorded that her Honour's conduct of this case left much to be desired. An appeal from Karpin DCJ's decision was determined by this Court (see [1999] NSWCA 363), which was almost entirely in Dr Fleet's favour. It made orders quashing the orders of Karpin DCJ, permanently staying the s.27A proceedings, and remitting the s.6 charge to the District Court for further hearing. Dr Fleet sought leave of the High Court to appeal against the Court of Appeal's decision, but to no avail. 3 The remitted hearing was conducted by Nield DCJ. It proceeded by fits and starts on various days between 20 June 2000 and 20 June 2001. This was largely due, I think, to the understandable distaste which Dr Fleet had for the whole litigation. He had been accused of two offences one of which he did not commit, he genuinely felt that his beloved dog had been destroyed without reason, he had been arrested by the police when he should not have been, the RSPCA had organized publicity to accompany his arrest, his house had been ransacked, and he had failed to be treated with justice by either the Local Court or the District Court. Nonetheless, he hardly seemed co-operative in getting his second trial back on the rails. 4 Eventually, that second trial was due to resume its hearings on 18 June 2001. At this stage, some five days of evidence had been heard. The Judge appeared, so did counsel for the respondents; but Dr Fleet did not. We now know that he did not appear because he was under the impression - a false impression - that one of his interlocutory appeals to this Court was listed on that date. When the mistake was appreciated, Nield DCJ adjourned the proceedings to 20 June, and ordered Dr Fleet be notified. As I understand it, there is no doubt but that he was so notified. Nonetheless, he did not turn up on the 20th June, whereupon the Judge dismissed his appeal. 5 He now complains. His complaint is not contained in any notice of appeal or application for leave to appeal. It is contained in a summons - or, to be more precise, three different summonses. Of these documents, only one sentence of one of them makes any sense - that is a request that, by way of certiorari (or an order in the nature of certiorari) that the decision of Nield DCJ be quashed. 6 I shall now deal with the various matters relied on by Dr Fleet as entitling him to such an order. i. He says that the Judge improperly ordered that the case must be finished within a week. The answer to this allegation is that his Honour did no such thing. He did inform the parties that he had set aside 5 days to hear the case, and when these days passed he ordered the case continue on an adjourned date. We were not referred to any evidence that his Honour at any time used his position to apply undue pressure on Dr Fleet. ii. His Honour, according to Dr Fleet, should not have admitted the evidence of a Dr Godfrey under s.65 of the Evidence Act. No facts were brought to our attention which would indicate that his Honour's discretion - and a discretion was involved - miscarried in this respect. iii. Dr Fleet complained that his Honour wrongfully refused to make orders to recall five witnesses who had already given evidence. Dr Fleet's complaint in this regard is, I am afraid, risible. Each of the five witnesses was called by the respondents, cross-examined by Dr Fleet and then excused from further attendance by his Honour. Dr Fleet applied to have them recalled, so as to continue his cross-examination of them. This is a course, which can in exceptional circumstances, be taken; but his Honour, once more exercising a discretion, declined to do so. If I may say so, his Honour's decision was nearly inevitable, because Dr Fleet refused to disclose to his Honour what further evidence he wished to elicit. iv. Another ground urged on us by Dr Fleet is that Nield DCJ should have stated a case for the Court when requested to do so. Requests in this regard were made on four separate matters. Each request was refused. And so it should have been. To begin with, the refusals were made whilst Dr Fleet was giving evidence in chief, not after the evidence had been completed. Secondly, in three cases the request did not seem to raise a question of law. Thirdly, in the one case when a question of law was involved, that question was whether an offence under s6 of the RSPCA Act involved proxy of mens rea. That question had been answered quite explicitly in the negative by this Court in the appeal from Karpin DCJ. v. Another ground was bias, a regrettably common charge made by appellants against Judges. All that has to be said on this topic is that Dr Fleet did not do more than make the assumption; he hardly attempted to demonstrate that some bias existed, or that at least it could be reasonably perceived to exist. vi. Mr Fleet submitted that his Honour's order dismissing his appeal was, in some way, improper. I simply cannot understand this. It is clear enough that if an appellant fails to appear at the commencement of an appeal, the Court is entitled to dismiss the appeal: Ex Parte Day (1943) 43 SR (NSW) 349. The power to do so is based on the Court's inherent power. I cannot see only why the Court has not the same power if an appellant fails to appear on some day part way through the case. 7 In my view, the summons should be dismissed with costs. 8 SHELLER JA: I have had the benefit of reading in draft the judgments prepared by Meagher JA and Hodgson JA. For the reasons they have given I agree with the orders proposed by Meagher JA. 9 HODGSON JA: On 2nd October 1997, a Magistrate Mr. Milovanovich in the Local Court at Blacktown determined two charges which had been brought against the claimant Robert Fleet under the Prevention of Cruelty to Animals Act 1979, namely a charge of aggravated cruelty under s.6(1) of the Act and a charge of failing to provide the claimant's name and address under s.27A of the Act. The Magistrate found the facts proven in respect of both charges. However, in respect of the first charge no conviction was entered, and a recognisance was imposed under s.556A of the Crimes Act. In relation to the second charge, the claimant was convicted and fined $500.00 with costs of $51.00. 10 On 16th October 1997, an appeal brought by the claimant to the District Court against these findings and orders was disposed of by Karpin DCJ. Her Honour found the offences proved, and indicated an intention to make orders similar to those made in the Local Court. 11 On 8th October 1999, the Court of Appeal quashed the orders made by Karpin DCJ, remitted the proceedings on the s.6(1) charge to the District Court and stayed proceedings on the s.27A charge. 12 The s.6(1) proceedings came before Nield DCJ in the District Court in June, July and August 2000. 13 The present proceedings in this Court were commenced by summons filed on 15th August 2000 seeking relief against the District Court of NSW, the RSPCA, and Louise Mary Parker (the informant in the Local Court proceedings) in respect of certain decisions by Nield DCJ made at that time. Interlocutory relief was refused by Heydon JA on 28th August 2000, and the matter then continued in the District Court. An Amended Summons was filed in these proceedings on 12th February 2001, challenging further decisions by Nield DCJ, as well as the decision of Heydon JA and decisions made by Registrar Irwin in these proceedings. 14 On 20th June 2001, Nield DCJ dismissed the claimant's appeal for the claimant's failure to appear on 18th June 2001 and 20th June 2001 to further prosecute his appeal, confirmed the Magistrate's orders in relation to the s.6(1) charge, and ordered the claimant to pay the costs of the RSPCA amounting to $25,341.00. 15 A Further Amended Summons was filed in these proceedings on 9th July 2001 seeking numerous orders, including orders quashing all orders made by Nield DCJ. 16 On 4th December 2001 Nield DCJ dismissed an application by the claimant under s.133B of the Justices Act for vacation of the order made on 20th June 2001, and ordered the claimant to pay further costs of the RSPCA amounting to $1,000.00. Although no further amendment was made to the summons in these proceedings, it is common ground that, in so far as it may be necessary and in so far as there may be grounds to do so, the claimant seeks to quash those orders as well.

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CIRCUMSTANCES 17 On 5th March 1997, the claimant's dog Jason was removed by police from the claimant's residence at 6 Sixth Avenue, Seven Hills, and it was put down the next day pursuant to s.26A of the Prevention of Cruelty to Animals Act. 18 On 6th August 1997, the claimant was arrested and charged with the offences referred to above. As noted earlier, the offences were found proved by a magistrate in the Local Court, giving rise to the proceedings in the District Court and the Court of Appeal as noted earlier. 19 The claimant applied for special leave to apply to the High Court from some aspects of the Court of Appeal decision, and that application was refused on 16th June 2000. 20 The claimant's appeal on the s.6(1) charge came before Nield DCJ on 29th June 2000, when a hearing date was fixed for 28th August 2000. There was a further appearance before Nield DCJ on 4th August 2000, when his Honour dealt with a motion by the RSPCA to permit tender under s.65 of the Evidence Act 1995 of a statement made by a veterinary Dr. Godfrey and sworn evidence given by him on 2nd October 1997 and 2nd July 1998. In a judgment given on that day, Nield DCJ said he was satisfied by an affidavit by Steven Colvin dated 27th July 2000 that all reasonable steps had been taken to find Dr. Godfrey and that those steps had been unsuccessful, and that the requirements for admission of the statement and evidence had been satisfied; and his Honour ordered accordingly. 21 It appears that this and other decisions at this time gave rise to these proceedings. Heydon JA heard an application for urgent relief on 28th August 2000, and declined such relief. The matter then proceeded before Nield DCJ at 2pm on that day. The RSPCA commenced its case, which was concluded on the following day, 29th August. The claimant's case proceeded on 29th August, 30th August, 31st August and 1st September. The claimant himself gave evidence on 31st August and 1st September, and it appears that his evidence in chief was not then concluded. The case was then set down to resume on 11th December 2000. 22 On 11th September 2000, the claimant wrote to the RSPCA's solicitors notifying them that the claimant required five of the RSPCA's witnesses for further cross-examination on 11th December 2000, pursuant to s.46 of the Evidence Act. 23 There is in evidence an unsigned copy of a letter from Nield DCJ's Associate dated 22nd November 2000 addressed to the claimant stating that, because of Judicial Roster changes, Nield DCJ "will not be able to hear final submissions from Mr. O'Donnell, of Counsel, and you on 11th December 2000", and stating an intention that the appeal be adjourned to either 12th or 19th February 2001, both dates being convenient to Mr. O'Donnell (RSPCA's Counsel). The claimant says he did not receive that letter, and continued to prepare for a hearing on 11th December 2000 and incur expense: there seems no reason to doubt this is so. 24 There was also in evidence an unsigned copy of a further letter from Nield DCJ's Associate dated 7th December 2000 addressed to the claimant, referring to the earlier letter (stated to be annexed), and advising that Mr. O'Donnell was unavailable until 12th March 2001, and stating an intention to fix the appeal for hearing on 12th March 2001. 25 It appears that the claimant responded with a letter to Nield DCJ's Associate dated 8th February 2001, advising that he did not receive the letter of 22nd November 2000, complaining that he did not receive notice within a reasonable time that the matter would not be heard on 11th December 2000, advising that he was not available on 12th or 13th March 2001, advising that he still had substantial evidence to give, attaching a copy of his letter of 11th September 2000 to RSPCA's solicitors, and stating that he wished to re-call and cross-examine a defence witness Mrs. Watson. 26 The matter came before Nield DCJ on 9th March 2001. On that day, the claimant requested that his Honour state a case to the Court of Criminal Appeal on four questions of law: (1) whether Nield DCJ erred by effectively denying the claimant the fundamental right to be heard in some relevant aspects of the District Court appeal; (2) whether Nield DCJ erred by not allowing the claimant to present his all grounds appeal in an adequate and complete manner; (3) whether the prosecution should have to proved beyond reasonable doubt the mens rea essential element of the alleged offence; and (4) whether an abuse of process had occurred in relation to the alleged offences. Nield DCJ declined to state a case, on the basis that none of those questions were questions of law arising within this appeal requiring the statement of a case, and noting that he was already bound by the decision of the Court of Appeal as to the mens rea question. The claimant then applied for orders that the RSPCA re-call its five witnesses referred to in the letter of 11th September 2000, and Nield DCJ declined to make that order. 27 18th June 2001 was appointed as the day on which the case was next to proceed. 28 On 7th June 2001, the claimant wrote to the Registrar of the Court of Appeal complaining that the Registrar had prevented him from going before a single judge of the Court of Appeal on 4th September 2000 and 26th February 2001, and continuing with the following request: "It is imperative that I go before a single judge of the Court of Appeal on Monday morning 18th June 2001 at 9.45am at Queens Square, Sydney". I note that it appears that on 30th April 2001, the proceedings in the Court of Appeal had been stood over by the Registrar to 2nd July 2001, with liberty to restore on five days' notice. 29 It appears that, at about the same time, the claimant received a Court Fine Enforcement Order dated 6th June 2001 from the State Debt Recovery Office seeking payment of the fine imposed in respect of s.27A charge, that is, in respect of the matter which had been stayed by the Court of Appeal. 30 There is in evidence a copy of a letter from the claimant addressed to Nield DCJ dated 14th June 2001, that was apparently delivered to the District Court prior to 9.30am on 18th June 2001. Omitting formal parts, that letter stated as follows: In a polite, courteous and respectful manner, I would like to notify your honour that I am not in a position to proceed and make final submissions in the above case on Monday, 18th June 2001 at 10.00am at the John Maddison Tower, 86-90 Goulburn Street, Sydney.

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(11) I respectfully submit that, it is appropriate that your Honour disqualify yourself immediately from any further participation in the above-mentioned District Court case. REF: (i) LIVESEY V. THE NEW SOUTH WALES BAR ASSOCIATION (1983) 151 C.L.R. 288. (ii) LAW V. CHARTERED INSTITUTE OF PATENT AGENTS [1919] 2 Ch. 276 at 289. (iii) GALEA V. GALEA (1990) NSWLR 263 at 278 (per Kirby A-CJ) 31 On 18th June 2001, the claimant did not appear in the District Court. Nield DCJ adjourned the case to 20th June 2000, and caused letters to be sent to the claimant's home by express post. One such letter is in evidence, being a letter from the Listing Manager of the District Court Criminal Registry. The letter is addressed to the claimant, and continues as follows: Matter of: Dr Robert FLEET Charges: Commit Act of Aggravated Cruelty; Fail to State Name to Officer of RSPCA File number: 97/22/0796 This matter is listed before District Court of New South Wales at: John Maddison Tower - 88 Goulburn Street SYDNEY for: Part Heard All Ground Appeal on: Wednesday 20/06/2001 at: 10.00am. If you do not appear at Court, this matter may be dealt with in your absence. Notes for the Appellant/Accused If you have a solicitor or barrister representing you, please tell them of this date. If you do not appear at court on the listing date, a warrant may be issued for your arrest. Notes for Legal Representatives If you cease to act for the accused you should notify the Registry immediately. Notes for Bail Sureties. You should ensure that the appellant/accused attends Court otherwise you may forfeit the money agreed by you in the bail undertaking. Listing Inquiries. Judges and Court Rooms are generally not allocated to cases until the day before the case is listed. Listing details for cases are: - available on notice boards in the foyer of the Court each morning. 32 The claimant has given no evidence as to when he received this letter, but has submitted that he did not receive reasonable notice of it. 33 On 20th June 2000, the claimant again did not appear in the District Court. Mr. O'Donnell of Counsel for the RSPCA applied to have the appeal dismissed. Nield DCJ gave the following judgment: HIS HONOUR: As to the appeal of Dr Robert Fleet against the RSPCA. It is now nineteen minutes past l0am on 20 June 2001. Dr Fleet has been called outside the Court on three occasions and he has not appeared.

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ISSUES 36 The operative Amended Summons filed on 9th July 2001 seeks 23 orders. Some of these can be disposed of shortly. 37 There are orders sought relating to the s.27A proceedings stayed by the Court of Appeal. On the material before the Court, it seems that the Court Fine Enforcement Order of 6th June 2001 and the reference to the s.27A proceedings in the District Court letter of 18th June 2001 were administrative errors. It is most unfortunate that such errors occurred, and that the claimant may have been caused concern by them, but I do not believe there is any present threat to continue with such matters contrary to the stay of proceedings ordered by the Court of Appeal. I would not grant any relief to the appellant in relation to this matter, but I would be prepared to reserve leave to apply in the future in the event that any further attempt is made to proceed against the claimant in relation to the s.27A proceedings. 38 There are orders sought that orders made by Registrar Irwin be quashed and also that he be disqualified from hearing further matters. There would be no utility in making any such orders, because the present judgment will dispose of the proceedings in the Court of Appeal. In any event, no ground is shown for making any such orders. 39 An order is sought that the opponents not verbally abuse or harass the claimant. There is no evidence justifying any such order. 40 The central question is whether the primary judge's order of 20th June 2001 and/or his order of 4th December 2001 be quashed. If that relief is not given, other orders sought by the claimant such as an order for a stated case, an order requiring the disqualification of the primary judge, and orders relating to the further conduct of the appeal to the District Court, would be futile, as the District Court appeal was concluded by the orders of 20th June 2001 and 4th December 2001. 41 The grounds for setting aside or quashing those orders can be considered under four headings: firstly, the allegation of wrongful failure to state a case; secondly, evidentiary rulings including admission of Dr. Godfrey's evidence and failure to order the re-call of five witnesses and to treat Mrs. Watson as a hostile witness; thirdly, the contention that the claimant did not receive reasonable notice by the 18th June letter of the hearing of 20th June; and finally, a number of grounds concerning alleged procedural fairness, apprehension of bias, and breach of Article 14 of the International Covenant on Civil and Political Rights.

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FAILURE TO STATE A CASE 42 The claimant relied on the principle stated by Jordan CJ in Ex Parte Gavin; Re Berne (1945) 46 SR(NSW) 58 that it was the duty of a Chairman of Quarter Sessions (now a District Court judge), in an appeal from a magistrate, to submit to the Court of Criminal Appeal any question of law which either party to the appeal might raise and ask to be so submitted, unless the question was so obviously frivolous and baseless that its submission would be an abuse of process. The claimant submitted that the primary judge's refusal to state a case on 9th March 2001 constituted a refusal to exercise jurisdiction, a denial of procedural fairness and a denial of natural justice. 43 Looking at the first two of the four questions raised by the claimant, plainly they are not questions of law: they would require findings of fact as to what happened in the course of the hearing before the primary judge. Furthermore, the hearing before the primary judge had not yet finished, so there remained the opportunity for the claimant still to be heard on relevant aspects of his case and to present his appeal, and accordingly it was premature in any event to raise these questions. There was indeed already an appeal pending in the Court of Appeal raising similar questions. The application in relation to these two questions was wholly misconceived. 44 The fourth question, whether an abuse of process had occurred in relation to the alleged offences was likewise not a question of law, and in addition it had nothing to do with the question before the primary judge, namely whether the claimant was shown beyond reasonable doubt to have committed the s.6(1) offence. The application in relation to that question was also wholly misconceived. 45 The third question, concerning mens rea, was one which might, at some stage of the proceedings, have arisen in such a way as to involve a question of law relevant to the appeal. That may have occurred if, at the conclusion of the case, the judge had formed the view that the offence had been proved if one view was taken on mens rea but not if another view was taken. However, the application was at best premature at the stage when it was made: the question was merely hypothetical at that stage and, partly for that reason, was formulated with insufficient precision. 46 The case which the claimant apparently wished to challenge, namely Bell v. Gunter (Dowd, J. 24/10/97), did not say that mens rea was altogether irrelevant to a s.6(1) charge. Dowd J held that the offence under s.6(1) was not an absolute offence, but rather one of strict liability; so that where an issue arose on the evidence as to whether a defendant was honestly and reasonably mistaken as to the existence of facts which (if true) would have made his act innocent, the prosecution would succeed only if it established that such was not the defendant's state of mind. Accordingly, assuming the appellant's evidence suggested that he believed facts which, if true, would have negatived cruelty, the appellant would have been entitled to an acquittal unless the judge was satisfied beyond reasonable doubt that the appellant did not have such a belief or that such a belief was not reasonable. Thus a question of law concerning mens rea would arise only if the judge was satisfied beyond reasonable doubt of this, yet was not satisfied beyond reasonable doubt that the appellant had intention, knowledge or recklessness in relation to the facts of the offence; and plainly that in turn could only be known at the end of the case. 47 The primary judge based his decision not to state a case on this question in part on the view that it had been authoritatively decided in the earlier Court of Appeal decision concerning this matter, namely Fleet v. District Court of NSW [1999] NSWCA 363. However, that opinion expressed in that case was not part of the ratio decidendi and was not based on any significant consideration of the point. I am not persuaded that this in itself would have been sufficient to justify a refusal to state a case. However, for the reasons I have given, it would have been quite wrong for the primary judge to state a case in the circumstances of the claimant's premature application. 48 It could be suggested that ideally the primary judge should have told the claimant, as an unrepresented litigant, that his application for a stated case on a mens rea question could be renewed at the conclusion of the case, at which time it would have been possible to determine whether or not there was a question of law on this aspect that had any relevance to the appeal. However, the absence of that indication does not amount to an appealable error of any kind; and of course the case never reached the stage where this could have happened.

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UNFAIRNESS, BIAS, ARTICLE 14 56 The claimant alleges that he was treated unfairly by the primary judge, that the primary judge was biased against him, and that for these and similar reasons there were breaches of Article 14 of the International Covenant on Civil and Political Rights. He says that he felt humiliated and belittled by the primary judge. 57 It appears that the claimant believes these things, just as apparently he believes, as stated in affidavits filed before us, that he was treated in a very unfair, unjust and unreasonable way by Heydon JA and Registrar Irwin, and that he was denied the opportunity or right to present his case in an adequate or complete manner in the High Court of Australia. However, no material that has been presented to us gives any basis for any of these beliefs, other than the fact that decisions adverse to him were made. 58 Complaint was made about the long delay in hearing and determining the claimant's appeal. Certainly it is most desirable that, once a hearing of a case has commenced, the case be heard to conclusion without adjournment. But that is not always possible, particularly when cases take much longer than originally estimated. That happened here, in part because of delay caused by applications, which had no chance of success, being made by the claimant to the primary judge and to the Court of Appeal. Of course, if those applications had succeeded, the delays would have been much longer. It was unfortunate that the hearing date in December 2000 had to be vacated, but it is inevitable that from time to time judicial rosters have to be changed, by reason of such things as illness of judges and cases exceeding their estimated hearing times. 59 I understand the claimant to suggest also that there was improper collusion between the primary judge and the RSPCA's Counsel in relation to the fixing of a date in early 2001 for the resumption of the case. However, if for any reason a date for the resumption of a case has to be fixed otherwise than at a time when all parties are present in court, and if the date fixed is to take account of the availability of the parties, there must be communication by the Court to the parties to fix the date. In a case where one party is represented and one is unrepresented, it is entirely appropriate for the Court to ascertain some suitable date or dates from the lawyer for the one party, and then notify the unrepresented party of the proposed date or dates and request confirmation of that party's availability. 60 Accordingly, there is no substance in any of these contentions of the claimant.

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CONCLUSION 61 The ultimate result in this case is unfortunate in the extreme. The commencement of criminal proceedings against the claimant suffered defects adverted to in the previous Court of Appeal decision and also in Meagher JA's judgment in this case. From the limited amount of material on the merits of the case which I have seen, it seems to me that, quite apart from the question whether objectively there were acts or omissions amounting to cruelty, there was evidence that the claimant believed that the facts were such that there was no cruelty to Jason, and it seems to me that the RSPCA may well not have been able to prove beyond reasonable doubt either that the claimant did not have such belief or that any such belief was unreasonable. However, the claimant's case was not determined on the merits by the primary judge for the reasons appearing above. 62 Although this was not made a ground of relief by the claimant, except in so far as it may have been obliquely raised by his suggestion of a denial of natural justice, I have carefully considered whether the order made by the primary judge on 20th June 2001 was appropriate, in circumstances where the claimant had appeared and commenced to prosecute his appeal, giving rise to proceedings in which the onus of proof lay squarely on the RSPCA: see The Queen v. Justices of Surrey [1892] 2 QB 719, Sweeney v. Fitzhardinge (1906) 4 CLR 716, Ex parte Morrissey (1911) 11 SR(NSW) 550, Powell v. Streatham Manor Nursing Home [1935] AC 243, Ex Parte Macaness & Avery Pty. Limited (1943) 43 SR(NSW) 239, Ex Parte Day (1943) 43 SR(NSW) 349. 63 Ex Parte Day makes it clear that an appeal such as this may be dismissed for want of prosecution if the appellant does not appear on the hearing of the appeal. None of these cases explicitly deals with the circumstance where an appellant appears, and the hearing commences and proceeds for some days, after which the appellant does not appear. I have not found any case dealing with these circumstances. On one view, there is in these circumstances a failure to prosecute an appeal, justifying dismissal without consideration of the merits. On another view, the non-appearance merely justifies the judge hearing the appeal in disposing of it on its merits in the absence of the appellant. Some statements in the above cases give some support to the latter view, by suggesting that once the appellant has appeared, the case proceeds in the same way in all respects as a case at first instance, with the onus lying on the respondent to prove to the appeal court that the offence had been committed. 64 Mr. O'Donnell for the RSPCA referred the Court to s.127A of the Justice Act (repealed with effect from 1st March 1999), which applied to this appeal. 127A(1) Where: (a) an application for leave to appeal to the District Court is dismissed on the failure of the applicant to appear, and (b ) within 12 months after that dismissal the applicant shows to a Judge sufficient cause for the applicant's failure to appear, the Judge may, where in the Judge's opinion it is in the interests of justice to do so, by order vacate the order dismissing the application and any other order made as a consequence of the failure of the applicant to appear or the dismissal of the application.

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(4) Where an order is made under subsection (2), unless the Judge otherwise orders, any stay of execution of the conviction or order against which the appeal was made effected by section 123 or 125A(9) and in force immediately before the appeal was dismissed shall continue from the time the appeal was dismissed until the appeal is heard and determined, but no action lies against any person for anything done by that person acting bona fide and without notice of the making of an order under subsection (2) to enforce the conviction or order in respect of which the appeal was dismissed. 65 He pointed out that s.127A(1)(a) contemplated that an application for leave to appeal might be dismissed on failure of the applicant to appear, while s.127A(2)(a) contemplated that an appeal might be dismissed on failure of the appellant to appear and prosecute the appeal; and he submitted that this indicated a statutory intention that the power to dismiss without a hearing on the merits arises where an appellant appears but fails to prosecute the appeal to conclusion. 66 Although the matter is not free from doubt, I think this is the better view. The respondent does have the onus of proving the offence in an appeal of this kind, but there is no order overturning the conviction or finding at first instance prior to the conclusion of the case on appeal; and in my opinion the appellant must prosecute the appeal to a conclusion even though the respondent bears the onus of proof. 67 As pointed out by Mr. O'Donnell, it would be an unreasonable result if an appellant from a conviction in a case which required the calling of very many witnesses could simply make a momentary appearance when the hearing of the appeal commenced, and then disappear, and thereby make it necessary for the respondent to call all the witnesses in order to prove its case ex parte before the appeal judge. 68 Similarly in this case, the claimant knew his case was to be heard on 18th June 2001, yet apparently selected that very day as the day on which he requested the Court of Appeal to hear some application in the Court of Appeal, and then failed to appear in the District Court on 18th June 2001 without even confirming with the Court of Appeal that his case was to be heard on that day or notifying either the RSPCA or the judge prior to 18th June that he would not appear. Again, the claimant failed to appear on 20th June, even to convey to the primary judge that he considered he had not had sufficient notice of the hearing on that day. All this indicated unfortunate lack of respect for the Court engaged in hearing his appeal, in no way justified by the claimant's mistaken belief that he was being unfairly treated, and also unfortunate lack of concern for the rights of the opposing party. In my opinion, it must be within the inherent powers of a court to dismiss an appeal for want of prosecution when an appellant conducts himself in that way. 69 So although, as I have said, I think the ultimate result in the case is most unfortunate, it is a result brought about by the claimant's own conduct. I concur in the orders proposed by Meagher JA, save that I would in addition reserve leave for the appellant to apply in the event that there is any further attempt to proceed in relation to the s.27A charge. 70 I would conclude by noting, in relation to costs, that no error has been shown in the primary judge's order for costs, and no sufficient ground has been shown for departing from the usual practice of ordering costs against an unsuccessful claimant. However, I do suggest that the RSPCA give careful consideration as to whether or not to enforce those costs orders. I do not know the claimant's financial circumstances, but it is possible that enforcement of these orders could cause severe financial hardship, and I am not sure that, in all the circumstances of this case, that would be an appropriate outcome.

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