Fleet v District Court of NSW & Ors

C: In person COUNSEL : 1O: Submitting 2O: P Rowe (30.4.99), D Jordan (26.8.99) 3O: D Jordan C: N/A SOLICITORS : 1O: Submitting 2O: Smythe & Mallam, St Marys 3O: Smythe & Mallam, St Marys CATCHWORDS : ANIMALS - Cruelty to animals - Diseased dog removed from premises in absence of owner - Dog euthanased pursuant to Prevention of Cruelty to Animals Act 1979 s26A - Elements of offence under s6(1) of this Act (aggravated cruelty) - Elements of offence under s27A (failure to provide name and address); POLICE POWERS - Arrest - Whether arrest appropriate in circumstances where service of a summons would have sufficed; PROCEDURE - Refusal of judge to state a case - Whether denial of procedural fairness in judge's refusal to entertain application to state a case; EVIDENCE - Rule in Browne v Dunn (1893) 6 R 67 - Whether basis of rejecting relevant evidence ACTS CITED : Prevention of Cruelty to Animals Act 1979 Crimes Act 1900 Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557 Browne v Dunn (1893) 6 R 67 Crosthwaite v City of Elizabeth (1989) 51 SASR 105 at 111 Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556 CASES CITED: Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297 at 202 Ridgeway v The Queen (1995) 184 CLR 19 at 41 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134 Donaldson v Broomby (1982) 60 FLR 124 at 126 Bell v Gunter, Supreme Court, Dowd J, 24 October 1997, unreported DECISION : Appeal upheld

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40877/98 DC 97/22/0796 MASON P PRIESTLEY JA HANDLEY JA

Friday, 8 October 1999 Robert William FLEET v DISTRICT COURT OF NSW & Ors HEADNOTE

In March 1997, the claimant resided in Seven Hills and owned an aged German Shepherd dog, "Jason" which he kept at the premises. On 5 March 1997 the dog was removed in a sick and emaciated condition from the premises by three police officers. The claimant was not present at the time and the police officers along with some photographers from the media had let themselves into the premises. The dog was removed to a veterinary clinic at Blacktown. Later that day, a special constable (the third opponent) employed by the RSPCA collected the dog and took it to the RSPCA shelter at Yagoona. An RSPCA veterinarian examined the dog and certified that due to numerous debilitating diseases and severe discomfort which he had observed, the only humane treatment was euthanasia. The dog was put down during the following morning, 6 March, pursuant to s26A of the Prevention of Cruelty to Animals Act 1979. When enquiring about the dog later that day, a solicitor for the claimant was told that the dog had been euthanased.

On 30 May 1997, the third opponent returned to the claimant's premises and spoke to him about the transportation and euthanasing of the dog. The claimant declined to be interviewed.

The third opponent returned to the claimant's premises on 17 July 1997 in the company of another RSPCA inspector who, when the claimant asked him to stop harassing him, demanded that the claimant inform them of his full name and address. The claimant slammed the door. (It was obvious that the officer knew the answer to the questions.)

On 6 August 1997 the claimant was arrested by these two officers because he had failed to provide his name and address when required contrary to s27A of the Act. He was handcuffed, removed to the police station and then also charged with having committed an act of aggravated cruelty to an animal under s6(1) of the Act.

The charges were heard in the Local Court at Blacktown by Magistrate Milovanovich. No conviction was entered on the charge of aggravated cruelty, however the facts were found proven and a recognisance imposed in accordance with s556A of the Crimes Act 1900. On the charge of failing to inform an officer of his full name and address, the claimant was convicted and fined $500 with costs of $51.

The claimant brought an all grounds appeal, which came before her Honour Judge Karpin. The depositions were tendered and additional evidence called by both sides. Her Honour heard addresses and reserved judgment. In the process of hearing evidence, her Honour had made it clear that she considered certain evidence from the claimant about his observations and beliefs about the extent of the dog's suffering to be inadmissible. This led to an application, on the day judgment was to be given, that she state a case in relation to the rejection of evidence on various matters. Her Honour disputed the submission that such evidence had been rejected. Proceedings were then punctuated by adjournments and an application that her Honour disqualify herself. When the matter finally returned before her Honour on 16 October 1998, the claimant began a request that her Honour state a case to the Court of Criminal Appeal. However, the judge stopped him and proceeded to deliver judgment. Her Honour found each of the offences proved, confirmed the sentences imposed by the Local Court and refused to state a case pursuant to s5B of the Criminal Appeal Act 1912.

The claimant commenced proceedings in the Court of Appeal, seeking to quash the orders made by Karpin DCJ. An adjournment was granted, following which certain consent orders were proposed by the RSPCA. The claimant refused to consent to the disposal of the matter on these terms.

HELD: (quashing the orders made by Karpin DCJ, remitting the proceedings relating to the s6(1) charge to the District Court and staying the proceedings relating to the s27A charge):

The relief proposed by the consent orders of the RSPCA to the claimant fell significantly short of that to which the claimant was entitled and the principles of open justice made it essential that the reasons for giving more favourable relief should be stated. Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557 (applied).

The judge's findings on both charges bore no direct relationship to the elements of each offence as disclosed in the statute. Her Honour constructively failed to exercise her jurisdiction.

Counsel for the second and third opponents properly conceded that there had been a denial of procedural fairness in the judge's refusal to entertain the claimant's submissions outlining his grounds for requesting her Honour to state a case and also a denial of procedural fairness in the circumstances in which her Honour shut out the claimant from leading evidence in his defence. Browne v Dunn (1893) 6 R 67 (discussed); Crosthwaite v City of Elizabeth (1989) 51 SASR 105 at 111, Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556, Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297 at 202 (applied).

The prosecution case misconceived the matters required to be proved in relation to the offence under s27A of the Prevention of Cruelty to Animals Act 1979. The elements of the offence were discussed. There was insufficient evidence to sustain the s27A charge. Allowing proceedings to continue would be an abuse of process, because the charge was doomed to fail. Ridgeway v The Queen (1995) 184 CLR 19 at 41, Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134 (applied).

Discussion of appropriateness of resort to the power of arrest when the issue and service of a summons would have sufficed. Donaldson v Broomby (1982) 60 FLR 124 at 126 (discussed).

The proceedings in relation to s6(1) of the Act were remitted to the District Court, differently constituted, so that they could be heard and determined according to law.

Discussion of the elements of s6(1) of the Prevention of Cruelty to Animals Act 1979 (aggravated cruelty). Bell v Gunter, Supreme Court, Dowd J, 24 October 1997, unreported (approved)

ORDERS: 1 Bring up the record of the District Court relating to the appeal of Robert Fleet, being District Court (Criminal Jurisdiction) Proceedings 97/22/0796.

2 Order that the orders made by her Honour Judge Karpin by which she: (a) found the offences under s6(1) and s27A of the Prevention of Cruelty to Animals Act 1979 proved; (b) confirmed the sentences imposed by the Local Court on 2 October 1997, namely a recognizance pursuant to s556A of the Crimes Act 1900 and a fine of $500.00, with court costs of $51.00, and (c) refused to state a case pursuant to s5B of the Criminal Appeal Act 1912 ,

3 Order that the proceedings relating to the said charge under s6(1) be remitted to the District Court, differently constituted, to hear and determine the appeal to that Court by Robert Fleet according to law.

4 Stay any further proceedings on the said charge under s27A except any further proceedings relevant to the costs of those proceedings.

5 Order the second and third opponents to pay the costs of the claimant and the first opponent in this Court, the first opponent's costs being payable as to a submitting party.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40877/98 DC 97/22/0796 MASON P PRIESTLEY JA HANDLEY JA

Friday, 8 October 1999 Robert William FLEET v DISTRICT COURT OF NSW & Ors

1 THE COURT: The claimant seeks to quash orders made by Karpin DCJ on 16 October 1998. Her Honour was hearing an all grounds appeal in relation to criminal proceedings previously brought in the Local Court at Blacktown. 2 The first opponent has submitted to the orders of this Court. 3 The second opponent is the RSPCA (NSW). It is the employer of the third opponent who is a special constable and who was the informant in the criminal proceedings. 4 Although the informant was at all times the third opponent, the case in this Court was conducted until 26 August 1999 on the basis that the prosecutor was the RSPCA. It was considered appropriate to amend the record in this Court by adding the name of the informant as the third opponent.

The facts in outline 5 In March 1997, the claimant resided at 6 Sixth Avenue, Seven Hills. He owned an aged German Shepherd dog, "Jason", and kept it at the premises. 6 On 5 March 1997 the dog was removed from the premises by three police officers. The claimant was not present at the time. However, the officers let themselves into his premises and observed signs of recent occupation (eg a wet towel and a used railway ticket for the preceding day). They also observed cheques in the claimant's name, Robert William Fleet. The visit to the claimant's home was attended by photographers from the media, although the evidence does not disclose who had arranged for them to be present. 7 The dog was removed to a veterinary clinic at Blacktown. Later that day, the third opponent collected the dog and took it to the RSPCA shelter at Yagoona. 8 Dr Godfrey, an RSPCA veterinarian, examined the dog. In an "expert certificate" (cf Evidence Act 1995, s177) he certified that: … The dog was emaciated and was unable to stand. It had hair loss over the entire caudal half of the body, tail with thickened skin indicative of chronic flea allergy dermatitis or similar severe chronic skin disease. There was a hard well circumscribed tumour approximately 10cm in diameter on the abdomen, and a 3cm tumour on the medial side of the right hock. The dog was unable to stand or sit up. There was crepitus in both hips. I was unable to extend the hips and it was difficult, and painful for the dog to flex the hips. There was severe muscle wasting in the hind quarters. Other clinical findings included increased lung sounds on auscultation, worn and broken teeth and the dog was a monorchid. The dog was sedated and x-rays were taken. The x-rays showed severe spondylosis of the vertebrae of the whole spine, worse in the lumbar, sacral and cervicothoracic junction. There was advanced and severe arthritis in both hips. The heart was increased in size, and there were lung changes indicative of congestive heart failure. Due to the severe discomfort from the spondylosis and arthritis it was decided that the only humane treatment was euthanasia. Post mortem examination showed nodular tumours on the spleen, as well as froth in the lungs. Based wholly, or substantially on my specialised knowledge, I am of the opinion that the dog was in severe discomfort from the spondylosis and arthritis in the hips. These conditions were preventing the dog from moving normally and so affected its ability to feed, water and toilet itself. The other abnormalities including the heart size, lung changes and tumours were secondary in importance but added to the discomfort being experienced by the dog. For this reason I feel that the dog should have been euthanased long before reaching this stage of disease.

9 The dog was put down during the following morning, 6 March, pursuant to s26A of the Prevention of Cruelty to Animals Act 1979 ("the Act"). 10 At approximately 12 noon on 6 March a solicitor representing the claimant spoke to the third opponent enquiring about the dog, and asking for its return. He was told that the dog had been euthanased. 11 On 30 May 1997 the third opponent returned to the claimant's premises. She spoke to the claimant. She recorded in her notebook: 6 Sixth Street, Seven Hills - spoke to Robert Fleet re shep transported on 5/5 [sic], euthanased on 6/5 [sic], gave my number to contact to interview.

12 The claimant subsequently exercised his right to decline to be interviewed. 13 The third opponent returned to the claimant's premises at about 8:00 pm on 17 July 1997 in the company of another special constable employed as an inspector by the RSPCA, Mr Dymond. Mr Dymond said in evidence that the claimant fitted the description of a photograph in the Daily Telegraph shown to him by the third opponent. 14 The conversation at the front door of the dwelling as recorded in the third opponent's statement (and corroborated by Mr Dymond) was as follows: Ms Parker: I am Officer Parker and this is Officer Dymond. We are from the RSPCA, I would like to ask you some questions about the German Shepherd seized from your premises by Seven Hills police? Claimant: Stop harassing me. Mr Dymond: I have reasonable grounds to suspect that you have committed an offence against the Prevention of Cruelty to Animals Act . I now require you to inform me forthwith of your full name and residential address. Failure to do so will cause you to commit an offence under section 27(a) [sic] under the Prevention of Cruelty to Animals Act . Do you understand?

The claimant then slammed the door. 15 On 6 August 1997 the claimant was arrested. He was walking down his street when apprehended by Mr Dymond and the third opponent. They had, in the third opponent's words, "positioned [themselves] in Sixth Avenue Seven Hills adjacent to the defendant's premises". Mr Dymond arrested the claimant for failure to provide his name and residential address on 17 July 1997 and informed him that he would be charged with that and other identified offences. He was not even permitted to place his shopping inside his home, but was detained in the street until police officers arrived. When they arrived, the claimant protested. He was handcuffed and removed to the police station. (We shall later address the inappropriateness of this high-handed arrest in circumstances where a summons would clearly have been appropriate.) 16 The claimant was charged with having committed an act of aggravated cruelty to an animal (s6(1)) and with failure to comply with an officer's requirement to provide his name and address (s27A). The charge referable to s27A bore only passing resemblance to the offence prescribed in that section. When the proceedings were heard in the Local Court, the charge was amended, over objection, into its current form. It will be seen that there remain very serious deficiencies in its form.

Proceedings in the Local Court 17 The charges were heard in the Local Court at Blacktown by Magistrate Milovanovich. A police sergeant prosecuted for the informant. The claimant was represented by counsel. 18 The facts as outlined above were proved. 19 In addition, the third opponent and Dr Godfrey gave evidence of their observations about the condition of the animal on 5 and 6 March. Each expressed opinions about the pain and discomfort being suffered by the animal. They were cross-examined on this evidence. 20 The third opponent said she observed an aged male German Shepherd which had a lot of hair loss to the lower body and a large tumour, about the size of a golf ball, on its abdomen. It yelped as if in pain when removed from its cage. It could not stand or walk. 21 Dr Godfrey elaborated on his expert certificate. He confirmed that the dog was in a serious condition, although able to eat. He expressed the opinion that the arthritic condition of the dog's hips would probably have been developing for two to three months. In his view, the dog should have been put down when it lost the ability to walk, particularly because it would have been in a lot of pain, especially from the arthritis. He estimated the dog's age to be over ten and stated that the life span of a German Shepherd was usually between ten and fifteen years. 22 Under cross-examination, he accepted that the dog could have been fourteen years old and he agreed that the symptoms he observed were common in German Shepherds of that age. He saw no evidence that the dog had not been properly fed. Nor was it dehydrated. The distress he observed could have been the consequence of the transportation itself. The reason why he formed the view that the dog should be put down was that the diseases observed were ultimately untreatable. 23 This material showed that there was a live issue as to the condition of the animal when it was removed from the claimant's care. It was obviously very old and sick. But proof of much more is required to make good a charge of aggravated cruelty. 24 As to the claimant's failure to provide his name and address on 17 July 1997, additional evidence was adduced by way of cross-examination of the third opponent in the Local Court: Q: Taking you to the evidence that you've given about the incident on 17 July, you had gone to 6 Sixth Avenue, Seven Hills that day believing that to be the address of Dr Fleet?

Q: And believing that Dr Fleet was the owner of the dog in question.

A: I have reasonable grounds to believe that but I have no evidence.

Q: And I suggest to you that you knocked on the front door and Mr Fleet, Dr Fleet opened the door, what do you say about that?

Q: And you then said to him 'Mr Fleet?' as a question?

A: No I'd already met Dr Fleet by that stage already, I recognised him from my previous meeting on 30 May.

25 This evidence showed incontrovertibly that, when (in the presence of the third opponent) Mr Dymond demanded that the claimant provide his name and address on 17 July 1997, the third opponent was fully aware of this information. This fact would also have been quite apparent to the claimant. 26 The claimant did not give evidence in the Local Court. 27 On the charge of aggravated cruelty, no conviction was entered. However, the facts were found proven and a recognisance imposed in accordance with s556A of the Crimes Act 1900. It was a condition of the bond that the claimant pay Dr Godfrey's witnesses expenses in the sum of $250. 28 On the charge of failing to inform an officer of his full name and address, the claimant was convicted and fined $500 with costs of $51.

The offences charged and the charges 29 It is appropriate to look at the elements of the offences with which the claimant was charged. 30 Section 6(1) of the Act provides: A person shall not commit an act of aggravated cruelty upon an animal.

Relevant definitions are to be found in s4(2) and (3) which provide: (2) For the purposes of this Act, a reference to an act of cruelty committed upon an animal includes a reference to any act or omission as a consequence of which the animal is unreasonably, unnecessarily or unjustifiably: (a) beaten, kicked, killed, wounded, pinioned, mutilated, maimed, abused, tormented, tortured, terrified or infuriated, (b) over-loaded, over-worked, over-driven, over-ridden or over-used, (c) exposed to excessive heat or excessive cold, or (d) inflicted with pain. (3) For the purposes of this Act, a person commits an act of aggravated cruelty upon an animal if he commits an act of cruelty upon the animal or (being the person in charge of the animal) contravenes section 5(3) in a way which results in: (a) the death, deformity or serious disablement of the animal, or (b) the animal being so severely injured, so diseased or in such a physical condition that it is cruel to keep it alive.

Section 5(3), contravention of which is one of the ways in which a person may commit an act of aggravated cruelty, provides: A person in charge of an animal shall not fail at any time: (a) to exercise reasonable care, control or supervision of an animal to prevent the commission of an act of cruelty upon the animal, (b) where pain is being inflicted upon the animal, to take such reasonable steps as are necessary to alleviate the pain, or (c) where it is necessary for the animal to be provided with veterinary treatment, whether or not over a period of time, to provide it with that treatment. 31 The claimant was charged in the following terms: That Robert William FLEET between the 5th day of February 1997, and the 5th day of March 1997, at SEVEN HILLS in the State of New South Wales, did commit an act of aggravated cruelty upon an animal, to wit, a dog, that of a male German Shepherd.

32 The charge followed the terms of s6(1) and it may not have been formally duplicitous. However, it contained latent ambiguities which required to be grappled with before a court could find the offence proved, because of the extended and alternative ways in which the offence could be established having regard to s4(2) and (3) and s5(3). There is little to suggest that those prosecuting on behalf of the second opponent have given much thought to what parts (if any) of s4 are said to be engaged in the context of an offence said to span a period of one month. This is a case where particulars ought to have been ordered if sought (cf Johnson v Miller (1937) 59 CLR 467; Gorman & McLaurin v Fitzpatrick & Barrett (1985) 4 NSWLR 286). 33 Section 27A provides: (1) An officer who finds a person: (a) who is committing an offence against this Act or the regulations, or (b) whom the officer suspects, on reasonable grounds, of having committed or attempted to commit such an offence, may require that person to inform the officer forthwith of that person's full name and residential address. (2) A person shall not fail to comply with a requirement made by an officer under subsection (1). (3) A person is not guilty of an offence under this section unless the officer: (a) warned the person that failure to comply with the requirement is an offence; and (b) identified himself or herself to the person as an officer.

34 It will be seen that the offence requires proof of a number of matters including: ¨ A requirement made by an officer "to inform the [ie that] officer forthwith" of a person's full name and residential address. ¨ The officer making the requirement must be a person who: finds a person: (a) who is committing an offence …, or (b) whom the officer suspects, on reasonable grounds, of having committed or attempted to commit such an offence …." ¨ The officer must have warned the person that failure to comply with the requirement is an offence. ¨ The officer must have identified himself or herself to the person as an officer. 35 Added to these requirements is one that is clearly implicit, namely that the request was valid in the circumstances. Thus, a request which did not permit a reasonable time for response would be invalid (see Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252; New South Wales Grains Board v Davis 17 July 1997, NSWCCA, unreported at p5 per Gleeson CJ and cases cited). Reasonableness is not limited to the time for compliance. A deaf person who did not hear an oral requirement would not commit an offence under this section. Nor would there be a valid requirement if, to take an extreme case, an officer made the identical demand twenty times in quick succession to a defendant who nineteen times gave his or her full name and residential address and on the twentieth occasion used a well known Australian expletive designed to convey lack of further co-operation. 36 In its amended form, the charge purportedly laid in accordance with s27A against the claimant was: That Robert William FLEET on the 17th day of July 1997, at SEVEN HILLS in the State of New South Wales, having been suspected on reasonable grounds of having committed an offence, to wit, aggravated cruelty to an animal, did fail to forthwith inform the informant of his name and residential address when requested.

37 This charge implied, but did not aver, that the informant (ie the second opponent) had the requisite suspicion.

The appeal to the District Court 38 The claimant's appeal came before her Honour Judge Karpin on 2 July 1998. The solicitor representing the third opponent informed her Honour that the parties had agreed that the depositions, statements, photographs and exhibits tendered before the Local Court would be tendered in the appeal subject to the presentation for cross-examination of the two RSPCA inspectors (the third opponent and Mr Dymond) and Dr Godfrey. 39 The three witnesses gave some additional evidence about the condition of the dog as they had observed it. Each witness was cross-examined by counsel then appearing for the claimant. 40 The claimant was then called. He gave evidence that "Jason" was in its fourteenth year. Questions were put to him as to the condition of the dog on 5 March 1997. He told of the treatment he had been giving to the dog, including massaging its hips. However, a number of his counsel's questions were disallowed on the basis that they covered areas that had not been put in cross-examination to Dr Godfrey in his evidence in the District Court (see transcript 2 July 1998, pp20, 22-3, 25, 26). For example, a question as to whether the dog could walk on 5 March 1997 was disallowed (p20). 41 Her Honour also made it very clear that she considered evidence from the claimant about his observation and beliefs about the extent of the dog's suffering to be inadmissible. For example, in immediate response to the claimant's evidence that the dog had been checked by him and was definitely not in pain, her Honour said (at p27): It's reaching a point where I'm simply going to have to disregard evidence which is not admissible just so that we can move on.

Even some questions put in cross-examination to the claimant were disallowed on this basis (see pp30-31). 42 These questions lay at the heart of the claimant's defence to the charge of aggravated cruelty, especially if (as we suspect) the charge intended to incorporate the elements of s5(3)(b). Some of the questions were disallowed on the basis that Dr Godfrey had not been confronted with the relevant proposition in his cross-examination in the District Court. The fact that these matters may have been challenged in the Local Court was apparently overlooked. So too was the fact that the claimant's evidence necessarily related to an earlier period of time than that at which the veterinary surgeon examined the animal. The evidence was also relevant to the issue of unreasonableness of the claimant's treatment of the animal in its final weeks. (The charge covered a period of one month.) Some of the disallowed questions (eg as to the claimant's observance of pain) were identical to questions which had been put to the prosecution witnesses in the Local Court and the District Court. Some of the claimant's disallowed evidence was also relevant to the issue of honest and reasonable belief in facts which, if they existed, would have made the claimant's acts innocent. 43 The claimant then called an experienced veterinary surgeon, Dr Porges, and elicited evidence about the impact of severe arthritis and hip problems upon a dog's capacity to walk for a short distance. Other witnesses were called about the dog's condition and the appropriate treatment for a dog in similar condition. 44 Her Honour heard addresses and reserved judgment, standing the matter over for judgment on 8 July 1998. On that day Mr Solomon represented the claimant. He asked for a case to be stated in relation to the rejection of evidence on various matters. Her Honour disputed the submission that such evidence had been rejected. It was arranged that the transcript would be taken out to clarify the matter. 45 The proceedings came back before Judge Karpin on 10 September 1998. At that stage the claimant was unrepresented. He made an unsuccessful application that her Honour disqualify herself. The proceedings were then adjourned to 12 October 1998. There were further adjournments, some due to the judge's absence. 46 Ultimately, the matter returned before Judge Karpin on 16 October 1998. The claimant asked her Honour to state a case to the Court of Criminal Appeal. He said that he had a number of grounds. He started to outline the first ground, which was based upon a miscarriage of justice due to the incompetence of his former legal representatives. At that stage he was directed to take his seat and her Honour proceeded to deliver judgment. He was not permitted to put the remaining grounds. It is obvious that they were going to include reference to the rejected evidence of the claimant in the District Court. 47 In her judgment, her Honour stated that, having seen the transcript, she was satisfied that Mr Solomon had been in error when he sought to have a case stated on the basis of rejection of evidence. However, there was no finding that the application was frivolous (cf Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160). The judge naturally did not address any of the specific arguments in aid of a stated case which the claimant would have advanced had he been permitted to do so. 48 Addressing the charge of aggravated cruelty, her Honour summarised the evidence of the officers who attended the claimant's premises on 5 March 1997. She indicated acceptance of the opinion of Dr Godfrey and concluded that the evidence established beyond reasonable doubt "that the animal was in such an appalling physical condition that it was cruel to keep it alive. The only humane option was exercised accordingly". Her Honour referred briefly to the evidence in the claimant's case. She observed that the claimant did not submit that the dog should not have been put out of its misery. Rather, he had relied upon the second principle enunciated in He Kaw Teh v The Queen (1985) 157 CLR 523 that an honest and reasonable belief in a state of facts which, if they existed, would make the appellant's acts innocent, afforded an excuse for doing what would otherwise be an offence. Her Honour continued: The issue then, is whether the appellant has satisfied the Court that he had an honest and reasonable belief in his mode of treatment of the dog, that I could accept that he had no intention to do anything wrong, and no knowledge he was doing anything wrong.

(Before this Court the claimant chanced his arm and contended that the prosecution had to prove mens rea in the sense of a positive state of mind such as intent, knowledge or recklessness. There is no merit in this submission (see Bell v Gunter , Supreme Court, Dowd J, 24 October 1997, unreported).) 49 Her Honour referred to the claimant's evidence about his love for the dog and his treatment of it and his personal and philosophical reasons for having been opposed to putting the dog down. She held that the evidence did not establish that the claimant had the relevant honest and reasonable belief. 50 The problem with these findings on the aggravated cruelty charge is that they bear no direct relationship to the elements of the offence as disclosed in the statute. There was no finding of a specific act or omission, no finding of contravention of any identifiable part of s5(3), and no finding of the causal factor referred to in s4(3). These absences may in large part have been due to the latently ambiguous form of the charge and the lack of assistance given to her Honour by the prosecution. However, the absence of findings on critical aspects of the complicated offence means that the learned judge constructively failed to exercise her jurisdiction (Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; Re Wakim; Ex parte McNally (1999) 73 ALJR 839 at [102]). 51 Turning to the offence under s27A, her Honour said: The failure to supply a name and address is, in short compass, that attempts had been made to reach the appellant and have him respond. Some response had come from other sources, from which it was apparent that the appellant was aware that officers of the RSPCA wished to speak to him. When officers attended at his premises, he declined to provide the information which was sought, and, in those circumstances it is clearly intentional conduct, it was a quite deliberate act. In the circumstances, I am satisfied that the finding by the learned Magistrate made on 2 October 1997 was a finding clearly open to him.

52 Once again, it must be observed that these findings overlook the necessary elements of the complex statutory offence. There were no findings (and in some cases no evidence) on the critical matters, which should have included ¨ the holding of the relevant suspicion by the third opponent; ¨ the making of the requirement by the third opponent (in fact it was Mr Dymond who did so); and ¨ the giving of a warning by the third opponent (in fact it was Mr Dymond who gave the warning). 53 Judge Karpin found each of the offences proved. She indicated her intention to make orders similar to those made in the Local Court. However, the solicitor for the informant sought an order for costs in the sum of $5,500. Her Honour said that, in the light of a complaint to the Judicial Commission that had been made by the claimant, she had decided to take no further part in the matter other than to give the judgment which would have been given when the matter first came back before her on 8 July when it was listed for judgment. The question of penalty was adjourned for hearing before another judge. That hearing has not yet taken place because of this application.

Proceedings in the Court of Appeal 54 The claimant commenced proceedings in this Court. They were initially listed for hearing on 30 April 1999. On that day, the Court as presently constituted indicated to counsel then appearing for the RSPCA that it was troubled on a number of bases. These bases were outlined in detail and are recorded in the transcript of that day. 55 The RSPCA sought and was granted an adjournment. 56 On 28 July 1999 the solicitor for the RSPCA wrote to the claimant indicating that the RSPCA had given instructions to consent to the following orders: 1 Bring up the record of the District Court relating to the appeal of Robert Fleet, being District Court (Criminal Jurisdiction) Proceedings 97/22/0794. [sic, the number is wrong] 2 Order that the orders made by her Honour Judge Karpin by which she: (a) found the offences under ss6(1) and 27 A of the Prevention of Cruelty to Animals Act 1979 proved; (b) confirmed the sentences imposed by the Local Court on 2 October 1997, namely a recognizance pursuant to s556A of the Crimes Act 1900 and a fine of $500.00, with court costs of $51.00, and (c) refused to state a case pursuant to s5B of the Criminal Appeal Act 1912, be quashed. 3 Order that the proceedings be remitted to the District Court, differently constituted, to hear and determine the appeal to that Court by Robert Fleet according to law.

57 The letter suggested that these orders were essentially what the claimant was seeking in his summons. The claimant was informed that he would be at risk as to costs if consent were not forthcoming. 58 The claimant promptly indicated that he would not accept disposal of the matter on these terms. In our view, he was justified in adopting this stance because the orders proposed by the RSPCA fell short of those claimed in his summons. More importantly, they fell significantly short of the relief to which in our view the claimant is entitled for the reasons which follow. 59 There is a further reason why these proceedings could not properly be disposed of by making consent orders. The relief sought is in the nature of prerogative relief. The claimant seeks to quash orders and a conviction which (save as to penalty and costs) brought a criminal prosecution to its culmination. The principles of open justice make it essential that the reasons for giving such relief should be stated, especially since the proceedings have to return to the District Court for disposal according to law and in accordance with the reasons of this Court (see Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557). The judicial officers in the courts below are entitled to know why their orders are set aside and this cannot be inferred from the form of the orders proposed by the opponents. 60 This said, we are not required to address each and every one of the matters raised by the claimant. Some are quite groundless; some concern persons who are not parties; others are unnecessary having regard to the relief which will be given and the reasons for it. 61 In wave after wave of affidavits and written submissions, the claimant has raised an array of issues. Some are based upon a misconception as to the nature of the present proceedings, which are not proceedings by way of appeal. 62 The issues raised by the claimant include submissions as to: ¨ denial of procedural fairness in a number of respects; ¨ ostensible bias; ¨ wrongful failure to state a case; ¨ miscarriage due to the incompetence of the claimant's legal representative in the early stage of the proceedings in the District Court; ¨ allegations that police and RSPCA officers failed to comply with subpoenas; ¨ error of law on the face of the record. 63 Counsel who appeared for the second and third opponents on 26 August 1999 conceded that there had been a denial of procedural fairness in the primary judge's refusal to entertain the claimant's submissions outlining his grounds for requesting her Honour to state a case (par 46 above). This concession was properly made. 64 Counsel also accepted that there was denial of procedural fairness in the circumstances in which her Honour shut out the claimant from leading evidence in his defence (par 42 above). Again, this was a proper and inevitable concession. The claimant was prevented from advancing important evidence, in circumstances giving rise to a justifiable sense of grievance based upon the way that the prosecution had been permitted to run its case in the District Court. Quite apart from the confrontation of the prosecution witnesses that had occurred in the Local Court, it was a misunderstanding of the principle in Browne v Dunn (1893) 6 R 67 to treat that case as authority for the absolute proposition that evidence may not be called in contradiction of an opponent's case unless that opponent's witnesses were relevantly cross-examined. See Crosthwaite v City of Elizabeth (1989) 51 SASR 105 at 111; Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556; Archer v Richard Crookes Constructions Pty Ltd (1997) 15 NSWCCR 297 at 202. 65 These matters require the setting aside of the orders made by Karpin DCJ and the staying of further proceedings in the District Court consequent upon those orders. It becomes unnecessary to consider whether relief in that nature could be justified on further bases. 66 The consent orders proposed on the second and third opponents' behalf in the solicitor's letter involve remittal to the District Court, differently constituted, of the proceedings so that they may be heard and determined according to law. 67 It is appropriate that another judge should hear any further proceedings, if only because her Honour expressed a similar view. 68 Remittal is appropriate as regards the charge of aggravated cruelty, although the second opponent would be well advised to consider whether the evidence at hand supports continuation of the prosecution. We have already indicated that the prosecution should, if requested, provide particulars as to the way in which it proposes to establish the portmanteau offence, bearing in mind that the charge spans a period of one month and having regard to the many options offered by s4(2) and (3) and s5(3) of the Act. Many of those provisions have no conceivable relationship to the facts presently established in the evidence. 69 Remittal would serve a further purpose. Whether or not the aggravated cruelty charge is pressed, the District Court can make appropriate dispositive orders covering the aggravated cruelty charge and costs generally. 70 However, remittal of the s27A charge would involve placing this Court's imprimatur upon a travesty. Out of fairness to the second opponent/informant, we decline making a finding that the laying of the charge involved an abuse of process in the sense discussed in Williams v Spautz (1992) 174 CLR 509. (The possibility of characterising the laying of the charge in this way was only raised, by the Court, very late in the second day of the hearing in this Court.) But the charge was doomed to fail on the evidence and this is enough to make the continuation of proceedings an abuse of process of a nature that attracts this Court's supervisory power to stay further proceedings on the charge (cf Ridgeway v The Queen (1995) 184 CLR 19 at 41, 43, Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134). 71 It is clear that there is no evidence to sustain the charge in its present formulation, nor any prospect that it could be reformulated in an appropriate manner. It is sufficient to point out three fundamental deficiencies (cf par 33 above). It was not the informant who made the critical requirement of the claimant that he provide his full name and residential address. Nor did the informant give the warning required by s27A(3)(a). Furthermore, the making of the requirement to a person whose name and residential address were well known to the two RSPCA officers was so patently unreasonable and oppressive that it should be concluded that the requirement had no validity in any system of law outside those considered in Kafka's novel The Trial. 72 Despite the claimant's submissions, it is inappropriate to express any view as to the lawfulness of the claimant's arrest. The issue was not before Karpin DCJ and the necessary parties are not before this Court. While the evidence in those proceedings suggests that the expressed basis of the arrest (by Mr Dymond) was the s27A offence, the question of reasonable cause for the relevant suspicion (cf Crimes Act, s352(2)(a)) has not been explored in these proceedings. 73 Lawfulness of arrest is one thing, appropriateness is another. Nevertheless, it is difficult to understand how it could have been thought appropriate to exercise any available power of arrest in the present circumstances, where Mr Dymond and the third opponent knew the claimant's name and residential address and where there was nothing to suggest that the claimant was at risk of departing. Deane J pointed out in Donaldson v Broomby (1982) 60 FLR 124 at 126 that: Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.

74 There have been many judicial statements about the inappropriateness of resort to the power of arrest (by warrant or otherwise) when the issue and service of a summons would suffice adequately (O'Brien v Brabner (1885) 49 JP 227, R v Thompson [1909] 2 KB 614 at 617, Dumbrell v Roberts [1944] 1 All ER 326 at 332, Chung v Elder (1991) 31 FCR 43). Some are in a legal context that differs from the present. (Section 352 of the Crimes Act 1900 is different in some respects from the legal regime in the Australian Capital Territory considered in Donaldson.) Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve. 75 The following orders should be made:

1 Bring up the record of the District Court relating to the appeal of Robert Fleet, being District Court (Criminal Jurisdiction) Proceedings 97/22/0796.

2 Order that the orders made by her Honour Judge Karpin by which she: (a) found the offences under s6(1) and s27A of the Prevention of Cruelty to Animals Act 1979 proved; (b) confirmed the sentences imposed by the Local Court on 2 October 1997, namely a recognizance pursuant to s556A of the Crimes Act 1900 and a fine of $500.00, with court costs of $51.00, and (c) refused to state a case pursuant to s5B of the Criminal Appeal Act 1912 ,

3 Order that the proceedings relating to the said charge under s6(1) be remitted to the District Court, differently constituted, to hear and determine the appeal to that Court by Robert Fleet according to law.

4 Stay any further proceedings on the said charge under s27A except any further proceedings relevant to the costs of those proceedings.

5 Order the second and third opponents to pay the costs of the claimant and the first opponent in this Court, the first opponent's costs being payable as to a submitting party. * * * * * * * *

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.