The Tribunal declares that it has jurisdiction to determine proceeding B181/2011.

LEGISLATIVE REGIME UNDER THE WILDLIFE ACT

The Wildlife Act - Purposes

1. Section 1A of the Wildlife Act provides that the purposes of the Act are:

(i) the protection and conservation of wildlife; and

(ii) the prevention of taxa of wildlife from becoming extinct; and

(iii) the sustainable use of and access to wildlife; and

(b) to prohibit and regulate the conduct of persons engaged in activities concerning or related to wildlife.

1. The Secretary may refuse to grant or renew a licence on certain grounds including, if the Secretary is satisfied that:

...the applicant is not a fit and proper person to hold the licence applied for;[10]

1. The Secretary may suspend a licence for a period not exceeding 90 days, if the Secretary is satisfied on reasonable grounds that:

(a) the holder of the licence has been found guilty of an offence against this Act; or

(a) the holder of the licence has breached a condition of the licence.[11]

1. The Secretary may suspend an authorisation for a period not exceeding 90 days if satisfied that there are reasonable grounds to do so.[12]

1. The Secretary may cancel a licence, if the Secretary is satisfied, on reasonable grounds, that:

(a) the holder of the licence has been found guilty of an offence against this Act; or

(b) the holder of the licence has breached a condition of the licence.[13]

1. The Secretary may cancel an authorisation if satisfied that there are reasonable grounds to do so.[14]
2. The holder of the licence or authorisation must be afforded the opportunity to make a submission on the suspension and cancellation[15] and the Secretary must have regard to those submissions.[16]
3. The power to suspend and cancel a licence or authorisation is discretionary. Just because an offence has been committed under the Wildlife Act or there has been a breach of the conditions of a licence or authorisation does not mean that the Respondent must suspend or cancel the licence or authorisation.

1. Section 86C(1)(c) of the Wildlife Act provides that an application may be made to the Tribunal for review of a decision of the Secretary to suspend or cancel a licence, authorisation or permit granted under the Wildlife Act. Section 86C(2)(b) provides that such an application may be made by the holder of the licence, authorisation or permit which was the subject of the decision.[17]
2. On 23 August 2011, Her Honour Vice President Judge Morrish, ordered that the decision of the Respondent of 16 August 2011, suspending the Applicant's licences and authorisations be stayed pending final determination of the review process, subject to a number of conditions restraining the Applicant from dealing with elapid snakes at public demonstrations.[18]
3. By consent, both the suspension decisions and cancellation decisions, were ordered to be heard and determined at the same time.[19]
4. In exercising its review jurisdiction in respect of a decision the Tribunal has all the functions of the original decision-maker.[20]
5. The Tribunal can affirm the decision under review; vary the decision; set aside the decision and make another decision in substitution for it; or remit the matter for reconsideration by the original decision-maker in accordance with any directions or recommendations.[21]
6. The Tribunal must reach a conclusion by asking, of the available options, which is the correct or preferable one.[22]
7. The Tribunal has no formal burden or onus of proof in the curial sense involving the exercise of its review jurisdiction. However, it has been noted in a number of decisions that whilst there is no legal onus of proof in an application for review, a party who fails to produce evidence in support of an application runs the risk of failure should it not do so.[23] In Campbell v Port Phillip[24] the Tribunal noted that a person seeking approval of a planning development should bear the responsibility of placing before the Tribunal, opinion on which it relies.[25]

1. Respondent's Counsel submits that the application should be refused and the original decisions made by the Respondent to cancel the Applicant's subject Licence, Authorisation and Approval, be affirmed. The Respondent principally relies upon:
   • (a) The Applicant having been convicted of offences under the Wildlife Act; and
   • (b) The further breach of Licence conditions depicted in a demonstration at the Melton Shopping Centre on 7 July 2011.
2. Respondent's Counsel further submits to the effect that the Applicant has demonstrated a contemptuous disregard for Licence conditions over an extended period of time; has conducted his demonstrations with more regard for entertainment than education; and has placed his viewing public at unreasonable risk.
3. The Respondent relied principally upon:[26]
   • (a) The expert opinion of Dr McCracken, Senior Veterinarian at the Melbourne Zoo;
   • (b) The evidence of Ronald Waters, former Manager, Wildlife Management for the Respondent;
   • (c) Photos and video footage of demonstrations conducted by the Applicant; and
   • (d) The Applicant's continuing pattern of behaviour subsequent to earlier Tribunal and Court appearances.
4. Certain words which appear throughout these Reasons are defined as follows:
   • (a) The term 'elapid' snakes:

An elapid snake is a snake that belongs to the family elapidae, which is one of the families of snakes and that includes the majority of venomous snakes we have here in Australia, ... there are elapids elsewhere in the world.[27]

(b) 'De-venomised' snakes or 'venomoids' refers to elapid snakes whose venom glands have been surgically removed.

1. By way of background, in 2007 the Prevention of Cruelty To Animals Act 1986 was amended to include a definition of 'prohibited procedure' which includes:

(f) the procedure of removing the venom sacs of a reptile, unless the procedure is done by a veterinary practitioner for the purpose of having a therapeutic effect on the reptile; or

1. It is appropriate to set out the history of the Applicant's appearances before the Tribunal and the Courts before dealing with the evidence of witnesses in detail.

1. Under cross-examination the Applicant gave evidence that prior to 2004, reptile demonstrations were conducted using venomous snakes. The Applicant then de-venomised his snakes and advertised his demonstrations as the only risk free demonstration of elapid snakes.
2. After 2006, he was directed by the Respondent not to permit the public to handle venomous or dangerous reptiles. He says that he immediately complied.

1. Mr Ronald Waters gave evidence that once it became illegal to surgically remove venom glands from snakes in 2007, the Respondent required all de-venomised snakes to be microchipped, as a way to ensure that no more snakes were being operated upon.[28] The Applicant confirmed that under protest he complied with the direction for microchipping.
2. On 25 January 2007, the Respondent directed the Applicant to have a registered Veterinary Practitioner microchip all wildlife reptiles in his possession, upon which he had performed surgery to remove their venom glands.
3. On 9 March 2007, Dr Robin Zelesco, Veterinary Surgeon, certified that a total of 48 snakes[29] held by the Applicant under his Commercial Wildlife (Wildlife Demonstrator) Licence were all microchipped.[30]

Revised Conditions to Wildlife Demonstrator Licences

1. The conditions attaching to all Wildlife Demonstrator Licences [including the Applicant's] were revised with effect from 30 June 2007. Those revised conditions included the following:

Condition 11 states: Possession and demonstration of wildlife under this licence must be conducted in a manner and proximity which minimises the risk of wildlife escaping or being stolen, stressed or injured in any way.

Condition 12: venomous snakes (whether or not the individual specimen is capable of a venomous bite) must not under any circumstances be handled or touched by any person other than the holder of this licence or their licensed assistant without prior written approval of the secretary.

Condition 13: possession and demonstration of wildlife under this licence must be conducted in a manner and proximity which minimises the risk of any injury to any person. Where venomous snakes (elapids) are involved, the demonstration must not be conducted closer than 3 m to the audience, except where the licence holder is working in a pit which ensure that members of the public cannot approach, touch or handle the snakes.

Condition 14: where venomous snakes (elapids) are involved, only one venomous snake may be demonstrated at a time and all other venomous snakes (elapids) not being demonstrated must be confined to secure enclosures constructed to prevent escape, injury to the public and access by unauthorised persons, except where the licence holder is working in a pit which ensures that members of the public cannot approach, touch or handle the snakes.

1. Under cross-examination the Applicant agreed he has been very familiar with these conditions since their imposition. However, he objected to them, resulting in his application to the Respondent for authorisation to vary the Licence conditions; and ultimately to appeal to the Tribunal.

1. On 31 January 2008, the Applicant applied to the Director of the Respondent for authorisation under s 28A of the Wildlife Act to vary the Licence conditions, [specifically conditions 12, 13 and 14] as follows:

(a) Permission to hold more than one snake at a time of any taxa when demonstrating provided that neither the handler nor the public is placed at undue risk;

(b) Permission to approach the public closer than three metres when demonstrating venomous species of snake, provided that neither the handler nor the public is placed at undue risk; and

(c) Permission to hand non-venomous reptiles to the public to be handled, including those that have been de-venomised permanently (venomoid) and are therefore also non-venomous and certified by a veterinary surgeon as same, provided that the handler or public is not placed at undue risk.[31]

The 2008 Tribunal Decision - Application to Vary Refused

1. The Applicant's request for Authorisation was refused, following which the Applicant applied to the Tribunal for review of the decision not to grant the authorisations sought [the '2008 Tribunal Hearing']. On 30 September 2011, Deputy President Coghlan affirmed the decision of the Respondent on each request for authorisation.[32]
2. At the core of the Applicant's case was the assertion that the elapid snakes he was demonstrating were no longer capable of inflicting venomous bites by reason that he had surgically removed their venom glands. The Applicant submitted that if the snakes were not capable of venomous bites then they were safe and the conditions he sought were reasonable.[33]
3. In his evidence, the Applicant said that at the 2008 Tribunal Hearing, he produced a video of himself being bitten 3 times by de-venomised snakes to demonstrate that they were safe and that the venom glands had not and could not regenerate.
4. In her detailed Reasons, Deputy President Coghlan:
   • (a) noted that the Applicant had removed the glands himself; was not a veterinary surgeon or registered practitioner; and has no qualifications;[34]
   • (b) after viewing the DVD's of his demonstrations, likened them to:

... a 'side show'... 'tricks'... 'it is entertainment'...It is clearly not aimed at educating the public; but may be imparting some information in an entertaining way...;[35]

(c) was not satisfied that his venomoids are or will continue to be 100% unable to inject venom in a bite.[36]

1. As a consequence of the 2008 Tribunal Decision, the Applicant was allowed to conduct wildlife demonstrations, but only within the limitations imposed by the conditions, including conditions 12, 13 and 14.
2. Under cross-examination the Applicant confirmed that he understood the effect of the 2008 Tribunal Decision and contended that he abided by the Licence conditions, although he did not agree with them.

1. On or about 24 May 2010, the Applicant was charged with 13 charges pursuant to s 22(6) of the Wildlife Act, which related to breaches of the Applicant's Wildlife Demonstrator Licence,[37] in particular: breaches of Conditions 11, 13 and 14 in demonstrations at Traralgon, Wonthaggi, Endeavour Hills and Warrnambool.[38]
2. Section 22(6) of the Wildlife Act states:

A person who holds a licence who contravenes subsection 5 or any condition, limitation or restriction of the licence is guilty of an offence and liable to a penalty not exceeding 100 penalty units.

1. The Applicant gave evidence that in about 2007 the Respondent directed him, in writing, to use a pit. The Applicant was also directed by the Respondent to acquire retractable barriers called 'superguard'. The Applicant maintained that these barriers were also being used by competitors and he believed they complied with his Licence conditions. The use of these barriers severely interfered with the way in which he conducted his demonstrations. Despite written requests, the Applicant said that he had been unable to obtain precise instructions from the Respondent as to what was meant by a barrier or pit and says that he is still confused in this regard.
2. On the occasions which gave rise to the charges, the Applicant said that no reptiles were in fact stolen; and staff and helpers were surveying the crowd. He says that he has a perfect safety record and although he and his staff are occasionally bitten, the result is only a pinprick and there has been no hospital attendance.

1. The alleged breaches comprised demonstrating more than one elapid snake at a time and doing so within 3 metres of the audience, with inadequate barriers or pits.[39] The alleged breaches related to demonstrations conducted at the following places:
   • (a) Traralgon on 29 November 2008;[40]
   • (b) Wonthaggi on 10 January 2009;[41]
   • (c) Endeavour Hills on 22 January 2009;[42] and
   • (d) Warrnambool on 8 July 2009.[43]
2. The Respondent relied upon the conduct of the Applicant in demonstrations which all took place subsequent to the 2008 Tribunal Decision. However, the alleged breaches were in essence the same kind of conduct for which the Applicant sought and was refused approval by the 2008 Tribunal Decision.
3. On 16 February 2011, at the Ringwood Magistrates' Court,[44] the Applicant was found guilty of all 13 charges and convicted and sentenced to pay an aggregate fine of $8,000.00 and ordered to pay legal costs of $21,081.95. Respondent's Counsel submitted[45] that Magistrate McNamara noted the public safety concerns with the demonstrations being conducted by the Applicant with elapid snakes.
4. On 7 July 2011, the Applicant conducted a wildlife demonstration at Melton Shopping Centre where he caused two elapid snakes to bite his 12-year-old daughter. This event is described in more detail below. In his evidence, Simon Smith confirmed that this matter is currently under investigation.
5. On 4 August 2011, the Applicant appealed to the County Court against both conviction and sentence, where he ultimately pleaded guilty to 9 breaches after the Respondent withdrew four charges. Her Honour Judge Campton convicted and fined the Applicant $4,000 and ordered him to pay legal costs of $8,000.00. Respondent's Counsel submitted[46] that Her Honour also noted the public health and safety concerns.[47]
6. The Applicant gave evidence that he was motivated to plead guilty to the charges on the basis of the cost of contesting them. He understood that the proceeding in the Magistrates' Court centred upon the danger of barriers and there was no real evidence about the risk of theft. Whereas, in the County Court, he was told that the risk of theft arose by the mere fact that people had been permitted to hold snakes. He believed that the Respondent was aware of this practice and was satisfied with it until he was charged.

1. Under cross-examination the Applicant contended that he has in fact complied with Licence conditions notwithstanding the above convictions. In my view, the Applicant displayed no meaningful understanding of Licence conditions 11, 12, 13 and 14, all of which are clearly breached in the tendered photos and video footage.
2. In relation to the requirements for an appropriate barrier and minimum distance from the audience, the Applicant simply responded that he had erected barriers as directed and approved by the Respondent. In my view, the barriers depicted in the tendered photos self-evidently do not comply. In relation to the alternative requirement for an effective pit, the Applicant simply contended that he complied with industry standards; and that no pit can keep a snake in or a determined member of the public out. In my view, the Applicant wilfully failed or refused to demonstrate any genuine understanding of his obligations in this respect.
3. The Applicant was referred to photos[48] relied upon in the prosecution of the charges and confirmed that:
   • (a) The barriers used are those he was directed to purchase by the Respondent; the barriers create a pit, and comply with industry standards;[49]
   • (b) There were Snakebusters staff not in uniform, who would observe the audience to guard against potential theft;[50]
   • (c) His dog is shown in the background of one photo, while he was demonstrating, which he contended was perfectly okay;
   • (d) A number of photos show him handling multiple snakes, which is a technique he uses to maintain audience attention and interest; and to enable people to see the snake's head;
   • (e) A number of photos show multiple snakes on a table, where one or more are partly off the table - which he permits to maintain audience attention and interest;[51]
   • (f) A number of photos show the audience less than 3 metres from the Applicant;
   • (g) The area where the demonstration is conducted is not surrounded by a continuous barrier; and
   • (h) Plastic containers with clipped but not locked lids, containing elapid snakes, were located outside the demonstration area and within access of the audience; and in one photo a child is touching a container of snakes.
4. The Applicant further confirmed that:
   • (a) He was under control of his snakes at all times; and the only risk is to the handler being bitten;
   • (b) In his view his demonstrations were not sensational, but were designed to be entertaining and educational;
   • (c) The use and positioning of plastic containers, as depicted in the photos, is appropriate; and is industry standard;
   • (d) The Crowd appears to be under control; and
   • (e) Everything accords with Licence conditions and Tribunal directions.

1. On 7 July 2011, the Applicant performed a public demonstration at the Melton Shopping Centre using his elapid snakes. The audience largely comprised schoolchildren. A video of part of that demonstration[52] depicts the Applicant intentionally causing two snakes, a death adder and an inland taipan, to bite his 12-year-old daughter. In total, approximately seven bites were inflicted by the two snakes, sufficient to draw blood. The commentary given by the Applicant accompanying this demonstration included the following:

What I am going to do now...Everyone wants to see what would happen if the snake man got bitten. When we do a show like this what would be the worst thing is if a kid got bitten. If a kid got bitten at one of our shows holy moly, however we are the only guaranteed snake show in the country. Going to do the worse case situation. Which is a snake bite. Do you want to be a volunteer.? Got a yes there - where is the mother.? Anyway I am actually the father here . Going to bring up my wonderful daughter Adelyn- she has never actually been bitten by a snake in her life......she has seen me get bitten a few times........ she does handle them a lot every day of the week except on Sundays when she goes to church. (Aside - you are not allowed to do that type of show young man - you need a DSE permit - a lot of red tape)

If you get bitten by these you are dead in 20 minutes and if you get bitten by one of these you're dead pretty quick. Where is Luigi Get a video of this arm - we have a permit for this by the way. You die real quick. The reason we're doing this is just to show we are safe. The reason is a rival operator who is trying to undermine us is saying that our snakes have regenerated venom. Which is not possible. These guys have had key hole surgery and their venom has been removed. ...Now of course if I get to ...and then they bite her.....................Make the snakes bite her.........she should be dead in about 2 minutes. If she is still standing at the end of this show. We know that they have not re-generated

This guy here bites cause he always bites every time. You will see some blood. Couple of spots of blood here. Ready set go. Ready set go. Couple of spots of blood In theory she should be passing out in about 10-15 seconds get your stop watches out the worse thing that could happen is if you killed your own kid during a snake show. Obviously you would not want to do that. Do not try that at home kids. [to the kids] What is the date today - 7 of July what year - at the count of three I want you to say today's date. I want you to say 7 July 2011- where are we? - Melton. You can see how she is bleeding - there is something. You see when you are bitten by a venomous reptile of any sort is swelling. No venom no swelling but she is bleeding. She can go to school next week and say she got bitten by the world's deadliest snake.

Only with snake busters at the count of three - a de-venomised snake is always de-venomised.

1. The Applicant gave evidence that prior to the Melton Demonstration he had never videoed anyone being bitten by a de-venomised snake. However, after what he claims were false claims, he took photos of his children and friends' children handling de-venomised snakes.
2. The Applicant claimed that his daughter had been subjected to trauma and torment at school in relation to what had been said about him. She then offered to take a bite from the de-venomised snakes so the photos could be placed on U Tube. She wanted to be videoed taking bites from all the snakes but he only videoed bites from two snakes. The video was produced in the context of the County Court appeal. He agreed that his daughter did sustain bites but was not required to attend hospital.
3. Stephen Smith Director Biodiversity Programs within the Respondent confirmed that there is a current investigation taking place into the Melton Demonstration.
4. Mr Smith also confirmed that within the previous 12 months, Customer Services registered 3 telephone complaints; and Wildlife Officers have received about 20 complaints about demonstrations, which have not been formally recorded.
5. The Applicant rejected the criticism of his treatment of animals and children contained in an e-mail from Terry Irwin dated 10 August 2011, asserting that Ms Irwin was not a respected person in animal rights.[53]

1. On 10 August 2011, various media outlets[54] ran a story about the Melton Demonstration showing various excerpts from it.
2. The Applicant and his daughter were both interviewed for the Channel 9 program A Current Affair and the following exchange was broadcast:

'This is my daughter Adelyn. She has never been bitten by a snake in her life before.'

'They didn't want to bite her. I had to grab the snakes by the neck, squeeze them and make them bite her.'

'She was more than happy to take a bite for the purposes of shattering the lies.'

'These snakes are the only ones in this country which have been surgically de-venomized. What that basically means is that [sic] have had their venom glands removed.'

'We have been victimised because we are successful its that simple.'

'We did the worse case scenario we lined up a child to be bitten by a de-venomized snake. As you can see from the video nothing happened.'

'I said I would do it so that he could have proof that if it happened to a child then they wouldn't get bitten.'

'For the video we wanted to make sure there were puncture marks and showed some blood. They didn't just bite her once I made them bite her a few times just to make sure.'

'She would take a bite for you again. Do you want to video again and get her bitten again?'

[Would you let one of your snakes bite another child?]

1. The Applicant and his daughter were both interviewed for the Channel 10 News and the following exchange was broadcast:

'I trusted my Dad - it was just like sort of human nature to feel scared.'

'There is no pain or suffering - it was worse for the snake than my daughter.'

'She is sick to death of having DSE putting out media releases saying that her father has put other kids at risk when she knows that her father would never do anything of the sort.'

1. Under cross-examination, the Applicant defended his actions at the Melton Demonstration as follows:
   • (a) He forced the snakes to bite his daughter to prove a point and to demonstrate that the snakes had been safely de-venomised;
   • (b) He agreed that the inland taipan and death adder, which he used to bite his daughter, are both highly deadly;
   • (c) He asserted that the Respondent was at fault in claiming that the snakes could be venomous;
   • (d) He admitted that he said he would do it again;
   • (e) He said that both of his daughters handle snakes every day and have been bitten many times by non-venomous new born snakes, which he described as 'nothing, a pin prick';
   • (f) After the initial court hearing, he was discussing how to demonstrate that the snakes were harmless and in that context he says that his 12-year-old daughter offered to come on stage and to have the snakes bite her;
   • (g) He did not know how many times his daughter was bitten. He was intending to make sure she was bitten enough to make puncture marks and to draw blood;
   • (h) His daughter wanted to go on TV and the TV coverage did not show a lot of what she said;
   • (i) He admitted that after the 'A Current Affair' program he offered to have his daughter bitten again for the television cameras then present;
   • (j) He would have his child bitten again if need be;
   • (k) He denied that having his daughter bitten was unsafe and reckless, but gave an undertaking to the Respondent that he would not do so again;
   • (l) He asserted that causing his daughter to be bitten fell within the Licence conditions; and
   • (m) He denied that the demonstration in which his daughter was bitten had no educational value; the demonstration lasted over 1 hour and not every part can be specifically educational; the video was produced to shatter a myth perpetrated by the Respondent and to show that his snakes were permanently de-venomised and therefore that was educational.

1. As detailed above, Simon Smith, in his capacity as delegate of the Secretary to the Respondent, decided to suspend the licences and authorisations held by the Applicant. In making this decision, Mr Smith was satisfied:[55]
   • (a) That the Applicant had been found guilty of an offence against the Wildlife Act, by reference to County Court proceedings; and
   • (b) That on reasonable grounds, the Applicant had breached his Licence conditions, in relation to the Melton Demonstration and subsequent comments to the media.

1. In addition to the Melton Demonstration, the Respondent points to the observations of Mr Waters and Mr Vincent at certain demonstrations. Although the circumstances of these demonstrations have not been the subject of further charges, the evidence raises very serious concerns as to likelihood of a continuous pattern of behaviour by the Applicant to breach Licence conditions and latterly Tribunal orders.
2. Mr Waters gave evidence that he attended a demonstration by the Applicant at the Mildura Show Grounds in about October 2010 [while on holidays] when he observed the following apparent breaches of the Licence conditions: the Applicant was very close to the audience; a scissor type barrier was used; and more than one snake was in the enclosure.
3. In his affidavit, Mr Vincent states in part, that he received an e-mail from the Applicant dated 21 October 2011 which in turn states in part:

... That snake busters is the only legal venomous snake show in Victoria with all locally occurring deadly species and world's top five deadliest - guaranteed safe with vet certified and micro-chipped surgically de-venomised snakes. It went on to state that his venomous snake show is alone in Victoria in that it complies with s32 of the OH and S Act 2004 and that the session is run by Australia's snake man Raymond Hoser, author of nine major books, hundreds of definitive scientific papers and the man who has discovered and named more species of snake than any other person in Australia this century, making him the experts expert.

1. On 7 November 2011, Mr Vincent attended a demonstration conducted by the Applicant at the regional office of the Respondent at Echuca. Mr Vincent described the demonstration, in part, as follows:

At the beginning Raymond Hoser threw a fake plastic snake towards the crowd, in which I was not happy about...During the show Raymond Hoser presented and handled a number of native venomous snakes...a tiger snake, brown snake, death adder, taipans and a red bellied black snake in which Raymond described the individual species characteristics ..[his] key messages throughout the show were: not to attempt to pick up or handle snakes; always call a licensed controller... And described the need to keep house and work surrounds clear of debris to deter snakes from living in and around the premises. During the presentation Raymond Hoser explained that the venomous snakes have adapted to being handled and would then demonstrate their non-aggressive nature by placing them in his mouth and taping them on his forehead. Towards the end of the presentation Raymond Hoser then stated that all his venomous snakes have had their venom glands surgically removed by the vet... In concluding the presentation Raymond Hoser then brought out a number of pythons, lizards, a freshwater crocodile and a long necked tortoise... Located in large plastic storage containers and invited staff to come up and handle them.[56]

1. Mr Vincent further notes that he attended a similar demonstration conducted by the Applicant on 5 December 2011, at the Respondent's Bendigo office.[57]
2. Respondent's Counsel advised the Tribunal that there is a current investigation into whether the Applicant has breached the conditions imposed by the orders of Her Honour Judge Morrish[58] for demonstrating elapid snakes as outlined in the affidavit of Mr Vincent.[59]

1. The Applicant gave evidence in which he described himself as a herpetologist**.** He runs the company Snakebusters, whose main business is to run wild life shows. He confirmed the contents of his three affidavits[60] in support of his application.

1. He commenced, but did not complete, a Science Degree at University and has no other formal tertiary qualifications. He has been working with reptiles all his life and has published extensively, although he did not provide any details of such publications.[61] He says that he is widely cited, including articles concerning the performance of his surgery. Again, there were no details provided in support of these claims. No one else in Australia has performed similar surgery to his knowledge.

1. The Applicant has been operating Death Adder Services since 1982; and Snakebusters since 2000. Snakebusters was registered as a trademark in 2002 and as a business in 2007.
2. He used to supply snake venom for scientific purposes; and still retrieves reptiles for the public.[62] Between 1996 and 2003 his dominant income was from the sale of books. His demonstrations commenced in 2003.
3. His core activities are now education and public demonstrations at schools, universities, agricultural shows and shopping malls, as well as publishing. He employs 10 staff [including 8 part time staff], who also conduct demonstrations. He does not know how much his staff is paid as his wife controls all the finances. He estimated the turnover from demonstrations at about $250,000 per annum, although this figure is not reflected in the tendered accounts.
4. I note that unaudited accounts for his operating company, for the year ended 30 June 2010, indicate that the gross profit from trading is $162,736; total salaries and wages is $51,000[63] and net profit after income tax is $18,258.[64]

1. The Applicant said he had performed venomoid surgery since 2003 on about 40 live snakes after first practising on dead snakes. He ceased performing such surgeries in 2006 after being instructed to do so by a wildlife officer. About 10 of these snakes have since died. He could not recall precisely how many venomoid snakes he currently uses in his demonstrations.
2. He described his surgical technique in detail. In summary:
   • (a) The snake is 'knocked out' by Cold Torpor [lowering its body temperature], with the advantage of there being little or no bleeding; and no pain to the snake;
   • (b) Venom glands are removed as a complete organ without any incision into the gland. The duct between the fang and gland is severed and the gland is removed after the skin holding it in place is cut, thus allowing the gland to fall free, after cutting it away from the muscle.
3. The Applicant asserted that regeneration of the venom gland is impossible.
4. Following surgery, he tests the snakes by a number of techniques, none of which have produced any venom to date:
   • (a) He causes the snake to bite a beaker, which in venomous snakes will cause venom to be released;
   • (b) He causes the snake to bite live prey, such as a rodent;
   • (c) Ultrasound;
   • (d) Autopsy upon dead de-venomised snakes, which has not revealed any regenerated gland; and
   • (e) Microscopic examination: venom is quite different to saliva;
5. The Applicant and his staff have been bitten by venomoid snakes without ever being hospitalised.
6. The Applicant says that dry bites occur when no venom is released. While this may occur rarely he believes that most reported dry bites are mistaken for harmless non venomous snakes.
7. The Applicant asserts that public safety is critical to his operation and in order to ensure complete safety he will only use de-venomised snakes.

1. The Applicant referred to the various copy photos annexed to his affidavit, which he asserted demonstrated that, at the Melbourne and Healesville Zoos, highly venomous snakes were being demonstrated behind an open wire and non-continuous barrier; that non-venomous snakes were being permitted to be handled at the Melbourne Zoo; and that venomous snakes were being demonstrated within close proximity to the public and without barriers or behind non-continuous barriers.[65]
2. In my view, this evidence is wholly unsatisfactory, largely irrelevant and otherwise unsubstantiated. As mentioned during the course of the Hearing, many of the photos referred to are either unclear or lacking in any perspective. Furthermore, the Applicant's claims, as to current practices at the Zoo, were contradicted by the evidence of Dr McCracken, whose evidence is clearly preferable.[66]

In relation to advertising and signage at Demonstrations

1. The Applicant was referred to Exhibit 5 which shows a photo of a sign which was displayed at the front of the demonstration at Wonthaggi on 10 January 2009. The sign gives instruction about handling reptiles and includes the following warnings:

No wild reptiles should be handled except by experts...They may be venomous... sometimes experts are killed by venomous wildlife!

1. The Applicant responded that this warning did not relate to his de-venomised snakes and he does not use venomous snakes.
2. In my view, the sign is misleading in two significant respects:
   • (a) First the microchipping of snakes cannot, and was never intended to provide any protection per se. Its purpose was only to make readily identifiable those snakes which had been subject to de-venomising surgery prior to the change to the law prohibiting such surgery; and
   • (b) Secondly, it is confusing and contradictory to the claims otherwise made by the Applicant in relation to his elapid snakes.
3. I refer also to Exhibit 1which contains extracts from the Snakebusters website depicting multiple pictures of multiple snakes draped around the necks of various individuals, including young children and a toddler in a pram. In my view, it is inappropriate for any child, who is clearly unable to give informed consent, to be used in this manner. The photos also convey the reptiles in a sensational manner, potentially conveying mis-information about the appropriate manner in which to handle reptiles and their potential dangers. The text which appears on page 5 refers to the de-venomising of all show snakes and in the next sentence states that:

In Victoria, Snakebusters reptile displays are the only company who allows everyone to hold the reptiles.

1. This statement, in context, carries the implication that the audience at Snakebuster shows will have the opportunity to handle the elapid snakes, which is clearly contrary to the Licence conditions.

1. The Applicant made a number of assertions which were not substantiated and/or were directly contradicted by the testimony or affidavit of others. In particular:
   • (a) Mr Mirtschin gave evidence for the Respondent at the 2008 Tribunal Hearing.[67] The Applicant claimed that Mr Mirtschin subsequently retracted his evidence by e-mail to him. However, the Applicant did not produce the subject e-mail;
   • (b) The Applicant claimed that Mr Mirtschin referred him to Dr Wolfgang Flashenberger, retired academic, from Adelaide University, whom the Applicant said was an expert in organ regeneration Dr Flashenberger allegedly advised the Applicant by telephone that venom glands in snakes could never be regenerated. However, no evidence to this effect was produced from Dr Flashenberger;
   • (c) The Applicant claimed that Ron Waters told him, in a taped conversation on 30 January 2009, that the scissor barriers were permitted. However, the Applicant did not produce any evidence of such taped conversation and Mr Waters gave evidence that this assertion is a complete fabrication;
   • (d) The Applicant claimed that competitors were contravening licence conditions and were not being prosecuted by the Respondent. However, the Applicant provided no particulars of such alleged contraventions;
   • (e) The Applicant claimed that Dr Zelesco had tested his elapid snakes and certified them as de-venomised and safe. Furthermore, in his affidavit of 29 May 2008, used in the 2008 Tribunal Hearing, the Applicant refers to:[68]

...the certification from a vet surgeon (Rob Zelesco) to the effect that our snakes are de venomised...

(f) In his Witness Statement,[69] Dr Zelesco states in paragraph 3:

I have never advised Mr Hoser in writing or verbally that his de venomised snakes are completely safe.

I have never advised Mr Hoser in writing or verbally that the removed venom gland tissue will not regenerate under any circumstances.

I have never advised Mr Hoser in writing or verbally that there is no risk to Mr Hoser, his assistants or the general public (including children) associated with potential bites from the 'devenomised' snakes

I have never certified, signed off or approved Mr Hoser's 'devenomised' snakes as safe.

With respect to the form which details the microchip numbers of numerous snakes, the circumstances are as follows. I was contacted by Mr Hoser who requested me to organise scanning of his snakes. When I asked whether he wanted me to insert the microchips, he said that that would not be necessary as he could get it done elsewhere. He simply needed me to scan his 11 micro-chipped snakes, verify the barcode against the corresponding snake, and sign the documentation he provided to me to confirm same. On 9 March 2007 my nurse... Under my supervision, scanned all 11 snakes and confirmed that all was in order.

I believed I was signing this form to simply verify that his snakes had been micro-chipped and I thought this was part of responsible pet ownership. But I did not sign it with the intent to verify that the then glands had actually been removed, nor was my opinion on this matter sought by Mr Hoser.

(g) Dr Zelesco's statement directly contradicts the assertion made by the Applicant as to the content and effect of his certification. I also note that Dr Zelesco refers only to 11 microchipped snakes;

(h) In response, the Applicant asserted that the statements made by Dr Zelesco are false; the Witness Statement was drafted by Ron Waters and signed by Dr Zelesco. This evidence was categorically denied by Mr Waters;

(i) The Applicant claimed that Ron Waters told him since 2006 that he was complying with the law; that a rope and pole was an adequate barrier; and Waters had asked the Applicant in 2004/2005 to de-venomise his own snakes. In his evidence, Waters said that all of these claims were a complete fabrication; and

(j) The Applicant claimed that Ron Waters allowed his mother to be photographed with an elapid snake, which is totally contrary to the evidence given by Mr Waters and the account which he gave on behalf of his mother;[70] and

(k) The Applicant made the following false or misleading statements in an e-mail to Mr Vincent dated 21 October 2011, concerning his elapid snakes:

That Snakebusters is the only legal venomous snake show in Victoria with all locally occurring deadly species and world's top five deadliest - guaranteed safe with vet certified and micro-chipped surgically de-venomised snakes.

...his venomous snake show is alone in Victoria in that it complies with s32 of the OH and S Act 2004.

1. I further note that the Applicant's criminal history includes:
   • (a) a conviction in the County Court on 4 October 1995 for perjury, for which he was sentenced to 6 months imprisonment with two months suspended; and
   • (b) a conviction in the Supreme Court on 6 December 2001 for contempt of court for which he was fined $3000.
2. The above matters all reflect adversely upon the credibility and reliability of the Applicant's testimony.

1. The Applicant stated that he initially approached Dr Funk to counter expert evidence given previously in the 2008 Tribunal Hearing, as there were no suitable experts in Australia. He gave instructions to Dr Funk by e-mail with an attached file in the form of a draft report. The Applicant asked Dr Funk to review this draft, make any appropriate corrections and then submit it as his own report. The resulting Certificate of Expert Evidence was signed by Dr Funk and dated 25 January 2011.[71] The Applicant agreed that nearly the entirety of this report had been written by him. Specifically:
   • (a) Paragraphs 1, 2, 3, and 13 [last sentence] were drafted by Dr Funk;
   • (b) Paragraphs 32, 33, 34 were untouched from his original draft; and
   • (c) The remaining paragraphs were either from his original draft or contained the same meaning.
2. The Applicant also confirmed that:
   • (a) Dr Funk had:

(i) never witnessed any of his surgeries either personally or by video [or indeed seen any of his snakes prior to writing his reports];

(ii) never witnessed any of his post-operative procedures or testing; and

(iii) based his opinion entirely upon the photos appearing in the Applicant's website or demonstrations by the Applicant which appeared on U Tube;

(b) Dr Funk was not told by the Applicant that he had no veterinary or other surgical qualifications;

(c) He first met Dr Funk briefly in 1993 at a conference in Florida, of which he had no recollection; communicated briefly by e-mail in 2007 and then again in 2011 seeking a report; and

(d) He did not have anything to do with Dr Funk's second report and did not give any instructions for it.[72]

1. The above circumstances reflect adversely upon the propriety of the purported expert opinion of Dr Funk. In particular, while Dr Funk may be able to give an expert opinion in relation to his own surgical experience with elapid snakes, in my view, he had no proper basis for giving an expert opinion in relation to any surgery performed by the Applicant.

1. The Applicant purported to give expert evidence on his own behalf. Under cross-examination he said that he provided material to his solicitors who prepared a report for these proceedings which purported to be an expert report.[73] He then adopted the report as his own but he conceded that it is not his words. He presumed that Dr Funk did not have a copy of this report.
2. A witness may only give an expert opinion if he or she is suitably qualified as an expert.[74] Such expertise may be acquired by relevant academic training and/or experience. For the purpose of this case, the Applicant purported to have expertise in performing surgery to remove venom glands in reptiles; and the consequences of such surgery.
3. The evidence relevant to the Applicant's alleged expertise includes the following:
   • (a) He did 2 years of a 3 year science degree;
   • (b) He has no formal qualifications or training as a surgeon;
   • (c) He was not taught by a trained or qualified person;
   • (d) The operations he performed were done without the supervision of a qualified veterinarian being present;
   • (e) He practiced his venom gland surgery on dead snakes;
   • (f) He is unsure as to how many times he performed the operation and when it was last performed; and
   • (g) He is aware that the operation is now banned.[75]
4. In addition, the Applicant claims to be the author of nine books and hundreds of definitive reptile papers. However, no detail was given about the content of such books or papers; and no material, by way of peer review of any such publications, was presented to the Tribunal.
5. Respondent's Counsel submitted that to give evidence about a surgical procedure, the witness must have received surgical qualifications and training at a tertiary level as well as having requisite work experience. Unlike Dr McCracken [and indeed Dr Funk], the Applicant has no such training or experience and as such no weight should attach to his report. I agree.
6. Respondent's Counsel submitted, and I accept, that the Applicant:
   • (a) does not possess the qualifications or training to give expert evidence about the surgery he has performed on elapid snakes; and
   • (b) is not suitably qualified to give expert evidence about whether the surgery that has been performed has, in fact, rendered the snakes incapable of delivering a venomous bite.
7. In my view, the evidence of both Dr McCracken and Dr Funk as to an appropriate surgical technique for the removal of venom glands, differs markedly from that described by the Applicant. Of particular concern was his use of the Cold Torpor technique, which was rejected by both expert veterinary surgeons. In Dr McCracken's opinion, Cold Torpor does not constitute an anaesthetic; and the snake is likely to feel pain.
8. Dr Funk gave consistent evidence to Dr McCracken and confirmed that he does not use the Cold Torpor method which carries with it more risks; and is cruel to the animal.
9. In my view, the opinions expressed by the Applicant in relation to de-venomised surgery were wholly unsatisfactory and were contrary to the expert opinions of both Dr McCracken and Dr Funk. In particular, the Applicant:
   • (a) denied that there is any contention about his surgical technique; and denied that there was any debate in the community about de-venomised snakes;
   • (b) agreed that partial dissection of a venom gland could deliver a venomous bite but otherwise rejected the evidence of Dr McCracken[76] that:

(i) the surgery must be performed by a trained veterinarian; and

(ii) the snake needs to be fully anesthetised as a preferred method.

(c) agreed that post-operation a small bubble of venom may still survive in the snake's mouth; and

(d) agreed that a de-venomised snake should be treated as venomous but only until proven otherwise and he has proven that his snakes are no longer venomous.

1. In relation to further testing of these 'venomoid' snakes, the Applicant agreed that initial testing post surgery was necessary but once he is satisfied no venom is produced, he is confident that regeneration cannot occur and further testing is unnecessary and may arguably be cruel.
2. When demonstrating at a secondary college, he administered 137 bites to himself from elapid snakes, making sure that blood was drawn. He considers that this activity is within his Licence conditions as he does not see any exclusions. He conceded that he has to make the snakes bite. He would not describe this as cruel as there are a number of things which have to be done for their health and safety.
3. He has not tested his 'venemoid' snakes [in terms of live baiting or milking] since about 2008.
4. In my view, Dr Funk gave somewhat equivocal evidence about the need or desirability for ongoing testing of venomoid snakes.[77] He states that he is confident in his capability to surgically remove venom glands but sometimes suggested to his clients to perform annual live bait testing. Furthermore, given regulatory concerns he conceded that it would be appropriate to undertake appropriate testing every three months. Dr McCracken gave evidence that where de-venomised surgery is legal in the USA, snakes are still treated as if they are venomous.
5. In relation to the remaining number of 'venomoid' snakes the Applicant said that the records of Snakebusters' operations and the age of snakes is contained in data contained in a computer taken by the Respondent. He therefore cannot now say how many snakes he has which are de-venomised. The original number of de-venomised and microchipped snakes was 39.
6. In the 2008 VCAT Tribunal Decision, Deputy President Coghlan refers to the Applicant's records then showing that he held 36 snakes which had undergone the de-venomisation surgery.[78] The Applicant conceded that he could not be sure of the current number, he thinks about 30.[79]
7. In my view, this evidence was wholly unsatisfactory. It is barely credible that the Applicant does not know either how many elapid snakes are currently in his possession or how many of such snakes have undergone de-venomised surgery at his hands. I consider the Applicant to be evasive on this question.

1. Dr Funk holds degrees in Zoology, Herpetology and Veterinary Science and has worked in private practice since 1985. He has also lectured and published in relation to reptile medicine. He knew of the Applicant from his books and first met him in Florida in about 1993. Over the years he would see articles by him and occasionally kept in touch via e-mails.
2. Dr Funk provided two written opinions to the Applicant upon which he relies:
   • (a) the first is dated 25 January 2011, and entitled: Certificate of Expert Evidence ['the Certificate'];[80] and
   • (b) the second is dated 29 October 2011, and entitled: Statement Of Expert Evidence ['the Statement'].[81]

1. Dr Funk said that prior to signing the Certificate, the Applicant telephoned him a few times, initially to talk about venomoid surgery and his technique. Subsequently, he was asked to write a statement for him in support of the utility of doing those surgeries and how successful they are. Dr Funk was also asked if he would come to Australia to give evidence on behalf of the Applicant.
2. The Certificate then came about after they had talked about a number of things. The Applicant suggested he could outline things in a rough draft, which would also be in a format suitable for an Australian court.
3. Under cross-examination he confirmed that:
   • (a) He did not otherwise receive any written instructions;
   • (b) He understood that the case was about whether the venomoid surgery was properly performed;
   • (c) He was unclear as to the nature of both Court and Tribunal proceedings for which the Applicant proposed to use his evidence; and he was unaware that the Certificate would be used in the context of a prosecution;
   • (d) He conceded that the majority of the Certificate contents and corresponding paragraphs in the Statement were not written by him but were consistent with their telephone discussions; [82]
   • (e) He agreed that he did not know the parties being referred to in paragraph 36 of the Certificate;
   • (f) In giving his opinion, he relied entirely upon the Applicant's account of his surgery [which he presumed was performed legally] and the still photos which appear on his website;
   • (g) Prior to signing the Certificate and the Statement, he had not seen any of the Applicant's elapid snakes;
   • (h) He had never seen the Applicant perform surgery or administer after surgery care; he was unaware whether the Applicant was assisted by anyone with surgical qualifications; and he had never seen the Applicant test the venomoid snakes for venom;
   • (i) He accepted that the Applicant, in fact, performed the surgery as depicted on his website;
   • (j) He did not know how many times the Applicant had performed the de-enomising surgery prior to making the written statement:

I have no doubt that those snakes have been made permanently non-venomous.[83]

(k) He has not seen the Applicant demonstrate his elapid snakes;

(l) He had not seen any photographs of the Applicant's demonstrations which were the subject of the criminal proceedings;

(m) He had not seen the DVD of the Melton Demonstration;

(n) Upon arriving in Australia, for the purpose of giving evidence in this case, he examined 19 or 20 of the Applicant's elapid snakes that are alleged to have had the venom gland surgery:

(ii) by watching the Applicant force 3 elapid snakes to bite his arm;

(o) He is not aware of the number of elapid snakes held by the Applicant;

(p) He was not aware that the Applicant had been convicted and sentenced to a term of imprisonment for perjury;

(q) He has had very limited experience in performing the operation on Australian elapid snakes; and

(r) He was unaware that, in Victoria, it is now illegal to perform de-venomising surgery, except in limited circumstances by veterinarians.

1. The Statement was prepared by him after he had spoken to a lawyer to clarify a few things. It was drafted by himself and by the Applicant, perhaps 50/50.

1. He first performed venomoid surgery in 1983/1984 in veterinary school, which comprised duct ligation. This led to facial swelling, so another technique was developed to remove glands altogether and replace them with a silicone prosthesis to maintain head shape. Dr Funk has now performed over 200 such operations.
2. Dr Funk knew about the Applicant's surgery from discussions with him and descriptions and pictures on his website. Dr Funk described their approach to surgery as very similar. However, he detailed a number of differences in their technique:
   • (a) The Applicant does not insert a prosthesis in place of the gland;
   • (b) The Applicant uses a disinfectant whereas Dr Funk uses as autoclave for sterilising equipment; and
   • (c) The Applicant uses Cold Torpor [which Dr Funk has never used]; whereas Dr Funk uses gas anaesthesia which renders the reptile completely still and requires the application of artificial breathing; and
   • (d) Dr Funk uses dissolvable sutures.
3. Dr Funk says that the full removal of the venom glands is a relatively simple procedure and he had no doubt that the Applicant could perform the operation competently.
4. In relation to re regeneration of venom glands, he has never seen a failure of the surgery. The gland tissue is a different colour and texture to surrounding structures and is very easy to remove. He has never seen any cellular residue being left. He has only performed an autopsy on one injured snake and no glands remained.
5. In the USA, venomoid snakes are tested using live prey or by milking. However, in his view, testing need only be repeated once or twice after surgery.
6. He has examined and handled about 20 of the Applicant's venomoid snakes, including examining their mouth.
7. He has had no experience with regeneration of eye tissue and does not consider that this is possible.
8. All Australian venomous snakes are elapids which have small fangs and shallow bites, which would be no worse than non-venomous snake bites.
9. In the Statement Dr Funk states:

Devenomized snakes pose no venomous bite risk to handler, staff or otherwise. . .A devenomized snake is effectively a non-venomous snake.[84]

1. However, Dr Funk also concedes that a bite from a de-venomised snake could still draw blood causing superficial wounds; and there is a potential risk for injury or infection, but no greater than a bite from a non-venomous snake.[85] He also agreed that he includes the following disclaimer in a chapter in his book:

legally must consider them a venomous species although, functionally not venomous.

1. Dr Funk concurred with Dr McCracken's opinion that:
   • (a) Following surgery to remove venom glands, it is possible that an elapid snake may still deliver a venomous bite because the venom glands and venom ducts were not completely removed;
   • (b) Venom gland removal should be undertaken by a properly qualified veterinarian with specialised instrumentation and experience in reptile medicine, noting that the Applicant has none;
   • (c) The snake must be fully anaesthetised, as opposed to using the Cold Torpor technique practised by the Applicant;
   • (d) If the operator is not properly qualified and the snake not properly anaesthetised there is an increased risk that the gland will not be completely removed;
   • (e) The use of Cold Torpor [used by the Applicant] was outdated, and potentially painful and cruel to the animal; he added that it was frowned upon in the USA;
   • (f) Dry bites do occur from time to time by venomous snakes, perhaps as a defensive mechanism;
   • (g) You cannot tell from an external examination whether an elapid snake has had its venom glands removed;
   • (h) The preferred way to handle venomoid elapid snakes is as if they could still inflict a venomous bite and he agreed that is also the practice employed in zoos in the USA;[86] and
   • (i) It may be possible - remotely possible - for venom gland tissue to regenerate following surgery if a cellular remnant of the gland remains at the site.
2. In relation to photos contained in Exhibit 12, Dr Funk:
   • (a) agreed there is no way of knowing whether the elapid snakes were venomoid;
   • (b) would only ever handle one venomoid snake at a time, which he said was most appropriate; and
   • (c) could not tell how secure were the plastic containers holding snakes, and would 'hate to see kids that close.'
3. When shown the video of the Melton Demonstration, Dr Funk said that he had not seen the video and was not aware that these proceedings were, in part, concerned with this video. He also agreed that:

1. Forcing a snake to bite an individual, and particularly a child, is inappropriate and dangerous and was not an appropriate way to test whether the snake was capable of inflicting a venomous bite;[87] and

• (b) There has not been a peer reviewed, and accepted scientific study into the ability of Australian elapid snakes to produce a venomous bite after surgery.

Dr Helen McCracken Senior Veterinarian Melbourne Zoo.

1. I have chosen to include some lengthy extracts from Dr McCracken's written report and oral evidence, which, in my view, contain concise, relevant and highly credible expert opinions.
2. Dr McCracken holds a Masters Degree in Veterinary Science and is the Senior Veterinarian at the Melbourne Zoo where she has worked for 23 years. She is the manager of the veterinary team [including three other vets] and also has a mentorial role to the veterinary teams at the Healesville Sanctuary and Werribee Zoo. As well as acting as a manager, 75% of her time is spent as a practising clinical veterinarian, responsible for diagnosing and treating disease in the Zoo's animal collection, which includes a range of animals: mammals, birds, reptiles and amphibians.[88] Dr McCracken has also written two chapters in a textbook on zoo animal medicine, concerning reptile medicine; and has given lectures to the postgraduate committee in Veterinary Science at the University of Sydney.
3. In her written report, Dr McCracken specifically addresses the efficacy of surgically removing venom glands of elapid snakes:[89]

Following the surgery to remove the venom glands, it is possible that an elapid snake may still deliver a venomous bite. There are two reasons why this may be the case.

Firstly, if the venom glands were not completely removed, the gland may still be functional and hence the snakes bite may still be venomous. The procedure of the venom gland removal from an elapid snake should only be performed by a trained veterinarian with specialised instrumentation and experience in reptile medicine and surgery. Furthermore, the snake must be fully anaesthetised, both to prevent pain and to achieve relaxation of the oral tissues, facilitating removal of the venom gland. It is my opinion that if the operator is not appropriately qualified and equipped, and if the snake is not anaesthetised, there is an increased probability that the gland will not be completely removed.

Secondly, it may be possible that the venom gland tissue can regenerate following surgery if a cellular remnant of the gland remains at the surgery site. While this has not been proven to occur for then glands, tissue regeneration is a well recognised feature of reptiles and has been reported to occur with a range of other tissues.

Hence it cannot be concluded with confidence that an elapid snake that has had its venom glands surgically removed is rendered permanently incapable of delivering a venomous bite.

Elapid snakes are venomous. The effect of their bite will depend on a range of factors including the snake's species and the amount of venom injected. Venoms of different elapid species have a range of effects including coagulopathy, tissue necrosis and neurotoxicity, in some cases causing death.

1. When asked about the effects of an elapid snake bite on children and the elderly she noted that it would be 'more severe.'
2. Dr McCracken further noted that it would not be possible to ascertain by external examination whether the venom glands had been removed from an elapid snake.[90]
3. Under cross-examination Dr McCracken confirmed that:
   • (a) She had not performed any kind of venomoid surgery; and had not examined the Applicant's elapid [de-venomised] snakes. However, in my view, these circumstances have no bearing upon her expertise in giving the above opinions;
   • (b) Her hypothesis in relation to the possibility of regeneration of venom glands relies upon the scientific evidence of other reptile tissues regenerating. However, while venom gland tissue is different, those tissues in reptiles that have been shown to regenerate are themselves different from each other. Accordingly, there was no organic reason why regeneration of the venom gland could not occur; and
   • (c) The reference in her report to a reported case of serious human envenomation from a bite from a de-venomised elapid snake was taken from an article Q&A[91] which is non-professional literature, but otherwise expresses need for caution. Dr McCracken does not know the author of the article, but has seen other anecdotal reports.
4. In relation to the Applicant's use of Cold Torpor for surgery, Dr McCracken said that this created a state of hypothermia and immobility in the snake but was not sedation.[92] Cold Torpor is not considered an appropriate way to prepare reptiles for surgery and reptiles will still experience pain.
5. In relation to the handling of the de-venomised snakes, Dr McCracken said that prudence dictated that they should be handled as if they were still venomous. Zoos she has spoken to in the United States, where venomoid surgery is still legal, adopt such a practice.
6. Dr McCracken described the technique used to safely handle venomous snakes as follows, which stands in marked contrast to the manner in which the Applicant is shown to demonstrate his elapid snakes:

...our practice when we handle venomous snakes is always to have two people present who are experienced in the handling of venomous snakes, so if they're being handled for a veterinary examination by myself there will always be two experienced handlers. The equipment that we use is what's called a snake tube, so it's a clear Perspex tube ... the snake will come to our surgery in some kind of transport box, ...The snake will be allowed to just emerge on its own from that box when it's tipped over, or we'll use a hook to hook it out from the body, not tongs but just a hook that lifts underneath the body and then puts the snake down onto the ground. And then we place this open clear Perspex tube that's not much bigger than the diameter of the snake in front of the snake's face. The snake is then gently guided just by occasional touches with the hook to guide its head into the tube. There's no way you can force it to do it, it's really all about utter patience and just waiting for it to do it on its own, with very, very gentle guidance ... It can take sometimes, ... five or 10 minutes to actually get the snake to go into the tube ... Once the snake has got itself into the tube, about a quarter of the length of it, we can then take a handful if you like of half tube and half snake, so the snake is now restrained, its head's safely within the Perspex tube and then we can examine it. ... it is a very gentle way for the snakes and very safe for us.[93]

1. In relation to dry bites by venomous snakes, Dr McCracken explained that this refers to no venom being injected into a victim following a bite by a venomous snake. There had certainly been numerous reported cases -including two at the Zoo in the last 20 years. She conceded that the reporting of dry bites can be mistaken for bites by non-venomous snakes. However, although not common, evidence suggests dry bites do occur.
2. In relation to the photos,[94] Dr McCracken made the following comments concerning the handling of elapid snakes generally, and the educational aspect of demonstrations:
   • (a) Any education about snakes should be positive and emphasise their importance to bio diversity;
   • (b) However, a demonstration must also focus upon their danger: images can be far more powerful than words;
   • (c) Reptiles should be handled with respect and in a way which ensures they cannot come to harm;
   • (d) It is best, in terms of safety and education, to handle snakes one at a time;
   • (e) Handling a number of snakes together increases the chance of snakes escaping or the handler losing control over them; [95]
   • (f) If an elapid snake escapes, it will create a danger that it will bite a member of the public, and even with a dry bite, the bacteria could cause infection which can require high powered antibiotics. Snake teeth can also be left behind in a person's skin;[96]
   • (g) Plastic containers can be an appropriate way to contain elapid snakes if properly secured. However, the photo shows containers which are not locked and children which do not appear to be under observation;[97]
   • (h) Other photos show plastic containers of snakes which are not properly secured or supervised;[98]
   • (i) Photos also show children breaching the barrier; bundles of snakes, unrestrained on a table with the Applicant facing away from them;[99] children within 3 metres of the snakes; inadequate barriers; and a risk of escaping snakes moving quickly along the ground;
   • (j) Active snakes can move quickly and strike if frightened or stepped on;
   • (k) The road type barriers[100] create an even greater risk of not keeping children out; and
   • (l) The presence of a dog[101] may make snakes' behaviour more erratic, particularly if either snakes or dog are unfamiliar with each other. Furthermore, the safety of the dog is compromised and there is an increased risk of escape by snakes.
3. Dr McCracken agreed that she has not witnessed any of the Applicant's demonstrations and cannot say whether any snakes in fact fell off the table or escaped. In my view, these circumstances do not detract from the observations and opinions expressed by Dr McCracken in relation to the photos.
4. The video of the Melton Demonstration was played to Dr McCracken who then commented:

From a public safety point of view... there will be children who maybe aren't listening very well to the dialogue by Mr Hoser and they're seeing a venomous snake bite the little girl and the little girl seems fine. And if they're not really listening very well to the message which has been obviously very clear but nevertheless they might not be listening because they might think it's boring, they might think well gee that's OK to get bitten by a snake. ... my personal view is that that's a reckless demonstration and is not giving a safe message.[102]

1. In relation to its potential educational value, Dr McCracken said:

...I don't think it's appropriate. Clearly the demonstration though wasn't done in the interests of education. It was done in the interests of demonstrating that the snakes were safe in the view of the demonstrator. So I don't think he was trying to be educational at the time and indeed I don't think it was.[103]

1. Dr McCracken was shown a screen dump from the Applicant's web page[104] which contains multiple photos of young people, including a very young child, with snakes draped around their neck. Dr McCracken commented as follows:

...these appear to be photo opportunities that are offered to people as part of the package offered by Mr Hoser's company. ...So if they're offered as photo opportunities then I don't believe they necessarily have an educational value, they have a sensationalist type value. ... ... if animals are handled respectfully regardless of whether they're reptiles or mammals or whatever, being handled one at a time is the best way to handle them respectfully and make sure that they're not going to come to any harm and that they don't actually hurt anyone in the process. So clearly we're not actually handling just one animal at a time, we are handling more than one animal, so I think it's putting the animals at some risk of getting injured and potentially putting some people at a risk of at least a bite, if not a venomous bite.[105]

Ronald Waters former Manager Wildlife Management for the Respondent

1. Mr Waters was responsible for game and wildlife licensing and wildlife policy and regulation while working for the Respondent. He currently works as compliance manager for Parks Victoria and prior to November 2007, was compliance manager for Port Phillip.
2. He holds an Honours Degree in Biological Science majoring in Zoology; a Diploma in Education; and a Masters Degree in Science. While completing his Masters Degree at Monash University, he was also involved in teaching on venoms and venomous snakes. He has kept and handled venomous snakes both in a professional and private context for over 40 years, including for research under research permits at Monash University.
3. Mr Waters was referred to the Exhibit 12 photos, originally annexed to his affidavit. Mr Waters commented upon certain photos in detail. In summary, in his opinion:
   • (a) The road type of barrier does not provide any protection to the public at all and would not constitute a pit;
   • (b) Neither barriers shown would prevent snakes from escaping;
   • (c) The conditions clearly specify that a demonstration must be conducted more than 3 metres from the public; and only one snake may be handled at any one time - both aspects of which are contravened in the photos;
   • (d) The barriers depicted in the photos do not comply with generally accepted industry standards;
   • (e) The handling of multiple elapid snakes which are not adequately restrained, either to prevent biting or escape;
   • (f) Where multiple snakes are shown on the table, they are at risk of falling off and escaping, and where the applicant has his back to the table:

...there's no level of control over those animals at all...

...they tend to wrap around one another for safety, and particularly if it's a slippery table the other snakes are probably their only point of purchase.[106]

(g) The bites of the elapid snakes which he identified contain reasonably potent venom, whose bites are far more serious and potentially lethal for children;

(h) Even if the elapid snakes were de-venomised, it is inappropriate not to handle such snakes as if they are still venomous;

(i) The snake handling demonstrated is an inappropriate way to be conducting an educational display of venomous snakes:

It seems to indicate that you can be pretty cavalier with these animals and that there are no consequences. .. So if there was any chance of a bite delivering venom, that's not a particularly safe way of handling snakes. [107]

(j) There was no educational value in displaying multiple snakes on a table;

(k) Holding a number of snakes gives the handler less control; Mr Waters identified a number of ways in which one snake can be safely and appropriately handled;

(l) The free handling of venomous snakes sends a mixed message to children; is potentially dangerous, and contrary to Licence conditions; and

(m) The plastic containers of snakes were in close proximity to the audience, and in some cases appeared to be easily capable of being opened.

1. I note that all of the above observations are consistent with the evidence of Dr McCracken.

1. Mr Waters rejected a number of assertions made by the Applicant. In particular:
   • (a) The Applicant said that Mr Waters told him sometime after the 2008 Tribunal Decision, that the road barrier was adequate and within his Licence conditions:

No, absolutely not. I've had a number of discussions with Mr Hoser by phone and in person and I've said to Mr Hoser broadly what a snake pit is, describing broadly the types of materials that constitute a pit, and I was not willing to describe it too closely because different demonstrators, fauna parks, have different types of arrangements, so it's not something you need to define too closely. But I did say that these barriers neither prevented animals escaping, nor children getting through them, that they were not safe and they were not compliant with his licence.[108]

(b) The Applicant said that Mr Waters told him after the 2008 Tribunal Decision, in a taped conversation on 30 January 2009, that the scissor type barrier was adequate and within his Licence conditions:

...that's absolutely untrue. In fact, there is one conversation that I had - I guess via a proxy with Mr Hoser, because two wildlife officers were at one of his demonstrations and they asked about the conditions of his licence and described the barrier. I clearly said that no, that did not conform to the licence conditions and I've been told that those sentiments were passed on to Mr Hoser on the day. But I certainly haven't said that those constitute, you know, compliance with the licence.

(c) The Applicant said that that Mr Waters told him during a discussion that a rope and a pole was an okay barrier for snake demonstrations:

There's no way known I said that that conforms to the definition of a pit for the terms of his licence. A rope or barrier beyond three metres, as he's permitted to do, might be an appropriate way of delineating the audience from the show, but not with regard to the requirement for him when he's closer than three metres to demonstrate the animal is in a pit.[109]

(d) The Applicant said that Mr Waters asked him to de-venomise his own snakes because of his son's birth:

That is totally untrue. I reject it absolutely. There is no way known I would have asked Mr Hoser to do it, and first of all I don't agree with the operation. It's an unnecessary operation. But beyond that if I was going to get something like that done you'd have to have it done by a qualified veterinary practitioner because to do so otherwise would be illegal.[110]

(e) The Applicant said that Mr Waters approached Dr Zelesco to have the Applicant shut down - which Mr Waters denied;

(f) The Applicant said that Mr Waters wrote the statement for Dr Zelesco - which Mr Waters denied, clarifying that he may have provided a pro forma template, as he did for other witnesses, and the Respondent's solicitor may have drafted an affidavit on the instructions of Dr Zelesco. Mr Waters also confirmed, that Dr Zelesco's certification only extended to those snakes which were presented to him by the Applicant for verification by microchipping, not whether they had been de-venomised; and they have no way of knowing whether this is a complete list; and

(g) The Applicant said that Mr Waters allowed his mother-in-law to hold an elapid snake, as depicted in the tendered photo.[111] Mr Waters denied this allegation.

1. Mr Waters explained the circumstances of the photo of his mother-in-law as follows. Mr Waters mother-in-law attended the Science Teachers Association of Victoria Convention where the Applicant was also present. She approached the Applicant and said:

'My son-in-law is interested in snakes,' to which Mr Hoser has replied, 'Who's that?' My mother-in-law said, 'His name is Ron Waters.' And Mr Hoser then said, 'He's a friend of mine, how about we put these snakes around your neck and we can take a photo and we'll send it to him for a bit of fun.' [112]

So when I saw the photo I explained to ... my mother-in-law that [they] were actually a species of snake that are venomous, Collett's snakes and she was appalled and I spoke to her as recently as last night and she said she in no way endorses that photograph as being in any way representative of an endorsement of that practice and I certainly didn't know about it until after the conference some time later when she described it to me.[113]

1. Mr Waters confirmed that his mother-in-law was available to give evidence of what he had outlined. The Applicant did not require her attendance for cross-examination.
2. In relation to the Applicant's display of de-venomised snakes generally, Mr Waters said:

...we know Mr Hoser has no veterinary qualifications, no surgery qualifications, that there have been no controlled scientific trials to prove beyond doubt that you can permanently de-venomise elapid snakes, and therefore we've got to take the view in setting up permit conditions that public safety is paramount, and so these animals - the permit conditions were set up so that these snakes basically had to be treated as if they were venomous so that the safety of the public was assured.[114]

1. Mr Walters also confirmed, consistent with the evidence of Dr McCracken, that there is no way of verifying that an elapid snake has been de-venomised by simple visual examination.
2. In relation to whether the demonstration provided a test to prove whether or not a taipan or death adder is capable of inflicting a venomous bite Mr Waters said:

Technically it doesn't say anything. What it says from a scientific point of view that on that day those particular bites didn't cause any impact on his daughter. But we know a couple of things about snake bites. One of them is that they can produce dry bites, they don't always inject venom. That's the first thing. The second thing is that what's the purpose of the demonstration? Does it mean that those same snakes are not poisonous today, next year, the year after. It says nothing other than that specific incident about what happened on that day.[115]

1. In relation to the Melton Demonstration, Mr Waters stated that it did not comply with Licence conditions. In particular, there is no permit for such a demonstration; and

The purpose of a reptile - or a wildlife demonstrator's licence is to deliver educational shows with relation to wildlife... I don't know what the purpose of making the snake bite his daughter is, and it certainly doesn't fit within what you'd call the normal educational profile. There is nothing specific in the permit that allows you to do it.[116]

1. In relation to his response to the Melton Demonstration generally, Mr Waters said:

Well, from a personal perspective I'm aghast. I mean, I just think it's incredibly inappropriate to have a snake bite your children, whether they're carpet snakes or taipans that have had their venom glands removed or what. It's just an appalling thing from my perspective personally. I don't think it demonstrates anything and it's not really the aim of a demonstrator's licence. I mean, I don't know what the purpose of that whole show was....to me it was more like a circus than an educational display about the ecology and biology of native wildlife.[117]

1. Mr Waters agreed that:
   • (a) he did not attend any demonstrations which related to prosecutions, but has attended others; and
   • (b) he could not confirm the number of staff present or whether the Applicant in fact lost control.
2. Most recently he attended a demonstration by the Applicant at the Mildura Show Grounds in about October 2010 [while on holidays] when he observed breaches of the Licence conditions: the Applicant was very close to the audience; a scissor type barrier was used; and more than one snake was in the enclosure. A video which he took on this occasion, has been made available to the Respondent.
3. Mr Waters stated that they had received a number of complaints following earlier shows that venomous snakes were being handled. At the time the Applicant claimed that the snakes had been de-venomised following which there was a campaign by people within the herpetological community who were concerned about the surgery. Dr McCracken approached the RSPCA to investigate, which led to change in the law prohibiting surgery on animals other than by a qualified veterinary surgeon.
4. In 2007, discussions were held with the Applicant about the use of venomoids and the appropriateness of his shows. Mr Waters was aware that animals had been stolen from his shows.
5. Mr Waters could also recall discussions with wildlife officers and others who expressed a lot of disquiet about the way shows were being conducted. Mr Waters and wildlife officers had a large number of conversations with the Applicant who appeared to be subverting Licence conditions. Mr Waters believes that staff conducted themselves professionally at all times.
6. In relation to barriers and pits, Mr Waters confirmed that:
   • (a) The Applicant sought written clarification from the Respondent in relation to barriers;
   • (b) He had numerous conversations with the Applicant about acceptable barriers/pits and he believed that the Applicant knows what constitutes a pit;
   • (c) There is no one definition of what complies as there are many kinds of barriers or pits which may be suitable;
   • (d) He emphasised to the Applicant the importance of complying with the spirit of the condition;
   • (e) There was a general understanding in the herpetilogal community as to what complies;
   • (f) What the Applicant has used does not come close to complying either with a suitable barrier or pit; and
   • (g) He never had a discussion with the Applicant about the appropriateness of a rope and pole barrier.
7. Mr Waters said that the purpose of a pit is that if there are a number of snakes they cannot get out and the audience cannot get in. It became traditional for snakes to be demonstrated in this way. Some pits are permanent and some mobile, such as a big swimming pool arrangement.
8. Mr Waters agreed that the Applicant has brought situations to the attention of the Respondent where a pit has allegedly not been used. These have been investigated but he was unaware whether any prosecutions have resulted.
9. In relation to regeneration in snakes, Mr Waters was aware of two reports: one concerning regeneration of eye tissue; and another where US wildlife officers seized venomoid cobras and venom was subsequently produced. Mr Waters referred to references on the internet and video on UTube.
10. Mr Waters is also aware that glandular tissue is regularly regenerated, such as tonsils in humans.
11. Mr Waters agreed that he had not inspected any of the Applicant's venomoid snakes but suggested that this would be a pointless exercise as the Respondent would not classify these snakes as permanently safe. There has been no scientifically accepted trial which would permit this to be done.
12. Mr Waters was unaware that the Applicant performed surgery on some 36 elapid snakes but said this would be a very small sample size. He agreed that he was not aware of any venomous bites resulting.

1. The Applicant concedes that he pleaded guilty to certain breaches of Licence conditions on appeal to the County Court. However, Counsel contends that there are a number of mitigating factors which should influence the Tribunal in the exercise of its discretion. In particular:
   • (a) The Applicant had no prior history of similar offending;
   • (b) The penalty imposed by the County Court was at the lower end of the scale;[118]
   • (c) The Applicant believed there was ongoing confusion in relation to what is an acceptable barrier and pit;
   • (d) The Applicant believed in the safety of his snakes;
   • (e) The Applicant has already received a sufficient penalty for the breaches and should not be subject to further sanction which will have the effect of destroying his livelihood;
   • (f) The Applicant accepts that he must not hand out venomoid snakes now; and he accepts that he must handle one snake at a time; and
   • (g) There is no evidence:

(i) that snakes can regenerate glands where removed in the manner surgically performed by the Applicant;

(ii) of injury caused during the demonstrations, the subject of the charges;

(iii) that the welfare of the wildlife was compromised and there was no theft of any animals; or

(iv) that the Applicant allowed any member of his audience to handle venomoid snakes at any time since the Tribunal proceedings in 2008.

1. In relation to the demonstration performed at the Melton Shopping Centre on 7 July 2011, Counsel contended that:
   • (a) The demonstration occurred in a particular context where the Applicant sought to demonstrate that his de-venomised snakes were completely safe;
   • (b) The Applicant had no intention of placing his daughter or any member of the public at risk;
   • (c) The Applicant believed that family members of licence holders are permitted to handle reptiles; and
   • (d) No charges have been laid against the Applicant in relation to the demonstration.
2. In relation to the question of an acceptable barrier or 'pit', the Applicant maintains to the effect that he believes he always complied with the requirements of the Respondent and industry standards. Furthermore, the breaches of conditions 11, 13 and 14 could have been avoided if the Applicant had been given information as to what constituted an acceptable 'pit'. The Applicant contends that there is continuing confusion over what is an appropriate pit or impermeable barrier; and that Mr Waters introduced a new description [impermeable barrier] during evidence.
3. The Applicant further relies upon his considerable experience handling his snakes; his expertise in performing surgical removal of venom glands; and the expert opinion of Dr Funk to the effect that his snakes are safe and pose no risk to the public, his staff or himself.
4. Counsel submitted that it is a significant circumstance that the Applicant has been involved in the snake handling business for over 40 years and his business has a perfect safety record. He has complied with the Respondent's requirements to have each of his de-venomised snakes microchipped. He employs 10 staff in that business. He provides valuable education to various groups across Victoria.
5. The Applicant further contends to the effect that he has been singled out for harsh and unequal treatment by the Respondent where competitors and others conduct snake handling using similar methods, techniques and barriers as those for which the Applicant is now held to be in breach of licence conditions. Furthermore, he is the only snake handler to use de-venomised snakes.
6. Counsel submitted to the effect that the above circumstances are sufficient to justify a restoration of the Applicant's Licence, Authorisation and Approval, and accordingly, the ability to pursue his livelihood.
7. The Applicant seeks a determination that the Respondent's decisions in each case be set aside, with the result that the Applicant will retain his Licence, Authorisation and Approval, subject only to the conditions attaching when they were each issued.
8. Alternatively, the Applicant seeks a determination to set aside the Respondent's decisions and remit the matter to the Respondent for re-consideration with recommendations relating to the existing Licence and Authorisation conditions to deal with:
   • (a) The clarification of what is an appropriate barrier; and
   • (b) An appropriate testing regime for de-venomised snakes.

1. The Applicant was a difficult witness. Despite the valiant efforts of his experienced Counsel to keep him within the bounds of relevancy, he would frequently digress into irrelevant material and often quite scandalous allegations aimed at his competitors and staff of the Respondent. I note the comments of Deputy President Coghlan in the 2008 Tribunal Decision, which are equally applicable to the Applicant in the current hearing:

His evidence was a mixture of evidence and submissions. He covered a wide range of matters. Much of it was repetitive and not to the point. I got the impression that he thought the more often he said something, the more he thought it would satisfy me that what he pressed was relevant or would prove the many assertions he made.[119]

1. In presenting his case the Applicant in large part:
   • (a) attempted to revisit his application before the Tribunal for variation of his Licence conditions in 2008;
   • (b) defended his demonstrations on the basis that they were not in breach of Licence conditions, even where he had ultimately pleaded guilty to criminal charges under the Wildlife Act; and
   • (c) defended his demonstrations on the basis that his surgical de-venomising of his elapid snakes rendered them completely safe.
2. In my view, the Applicant was an unreliable witness who displayed little regard for the truth. Throughout the course of the hearing he made quite scandalous allegations, as detailed above, none of which were objectively verified. Furthermore, he demonstrated a tenuous understanding of his responsibilities under the Wildlife Demonstrators Licence, either in terms of an acceptable practical physical set up for his demonstrations; public safety; or appropriate education.
3. That is not to say that his demonstrations were completely devoid of important information about reptiles generally and venomous snakes in particular. However, overall, there is overwhelming evidence, adopting the final submission of Respondent's Counsel, that the Applicant, through his demeanour and evidence, displayed a contempt and reckless disregard for the Licence conditions. He has conducted his demonstrations in a manner which seriously compromises the welfare of the snakes he is displaying and the safety and wellbeing of audience members, including children, and on one occasion, his own daughter. He also demonstrated no real insight into the nature of his prior offending, claiming that he pleaded guilty only because of the expense of contesting the charges.
4. I also agree with Respondent Counsel's submission to the effect that the Applicant remained defiant during the course of his evidence:
   • (a) suggesting on a number of occasions that the earlier criminal proceedings were a result of unlawful investigations by the Respondent, or unscrupulous competitors who wished to discredit him;
   • (b) insisting that he had acted within his Licence conditions at all times;
   • (c) claiming that his use of a barrier or pit was in accordance with the directions and approval of the Respondent;
   • (d) contending that the Licence permitted his actions in forcing elapid snakes to bite himself and his daughter;
   • (e) contending to the effect that the process of microchipping somehow amounted to a certification that his elapid snakes were safe, in the sense of being effectively non-venomous;[120] and
   • (f) claiming that the affidavit of Dr Zelesco, admitted during the course of the 2008 Tribunal Hearing, was wrong and had been written by Ron Waters.
5. In my view, the two types of barriers depicted in the tendered photos manifestly do not comply with Licence conditions. In particular, the circumstances in which such barriers are shown to be used by the Applicant could not possibly be represented as creating a pit; and do not otherwise create a 3 metre barrier between the viewing audience and the snakes being displayed. In addition, there are many other features which create an unreasonable risk to members of the public and children in particular:
   • (a) The risk of members of the viewing audience and small children in particular, breaching the barrier and coming within very close proximity of the reptiles, particularly where the barrier is not continuous;
   • (b) The risk of snakes escaping from the table, where multiple snakes were placed and extending beyond the table;
   • (c) The risk of the Applicant losing control of multiple snakes;
   • (d) The risk of an unleashed dog; and
   • (e) The risk of the plastic containers of snakes being accessible and opened.
6. In relation to the Melton Demonstration, I concur with the comments made by Dr McCracken and Mr Waters. In my view, the content of the video is abhorrent. It displays an appalling arrogance and insensitivity on the Applicant's part to use a child in this way for his own commercial purposes. Causing a snake to bite a human being can never be an acceptable test for ascertaining the presence of snake venom. In so doing, he has subjected the elapid snakes to unnecessary trauma, but most alarmingly, he has subjected a child to:
   • (a) psychological victimisation and potential trauma;
   • (b) the risk, however remote, of a potentially venomous bite from an elapid snake, with all the likely adverse and possibly lethal consequences; and
   • (c) the attendant risks normally associated with bites of non-venomous snakes.
7. In addition, the elapid snakes were handled in a totally unacceptable manner, for the purpose of a public demonstration, thus sending misinformation to the public. The demonstration conveyed no educational content and, indeed, conveyed false or misleading information at least in the following statements made by the Applicant:

'we are the only guaranteed snake show in the country'

'If you get bitten by these you are dead in 20 minutes and if you get bitten by one of these you're dead pretty quick.'

'These guys have had key hole surgery and their venom has been removed'

'The reason we're doing this is just to show we are safe'

'The reason is a rival operator who is trying to undermine us is saying that our snakes have regenerated venom. Which is not possible.'

'She can go to school next week and say she got bitten by the world's deadliest snake.'

'Only with Snakebusters ...a de-venomised snake is always de-venomised'

1. The Applicant's entreaty to the audience, who mainly comprised children, to chant the words: 'a de-venomised snake is always de-venomised', is a reprehensible manipulation of the audience for a purpose which they could not possibly have understood.
2. In the subsequent media coverage of the Melton Demonstration, the Applicant made the following statements:

'They didn't want to bite her. I had to grab the snakes by the neck, squeeze them and make them bite her.'

'She was more than happy to take a bite for the purposes of shattering the lies.'

'We have been victimised because we are successful its that simple.'

'She would take a bite for you again. Do you want to video again and get her bitten again?'

1. These and other comments made on television, together with his assertions in evidence, that causing his daughter to be bitten fell within the Licence conditions, was educational and not unsafe or reckless, in my view, demonstrates a total lack of insight into the potential harm which he could have, and may have caused his daughter; the unnecessary trauma which he caused to the snakes, and the misinformation which he imparted to his audience.
2. I am also satisfied that there was no credible evidence:
   • (a) That the Applicant was being unfairly targeted by the Respondent, who was in turn ignoring the breaches of other demonstrators;
   • (b) As to the Applicant's good character and reputation. I cannot give any weight to the testimonials annexed to the Applicant's affidavit, where none of these parties have been called; and
   • (c) As to the extent to which the Applicant derives his livelihood from demonstrations. Indeed, more questions were raised than were answered by the Applicant's evidence. In particular, the Applicant:

(i) is uncertain about the number of staff that he employs;

(ii) is unsure of the salary the two full time staff receive; does not know what his part time staff receive, and is also unclear about how many part time staff work for him;

(iii) said his wife handled the accounts, but she was not called to give evidence;

(iv) produced a document headed Kotabi Pty Ltd Trading Profit and Loss Statement for the Year ended 30 June 2010. However, no evidence was given as to who prepared this document; or who are the Directors and shareholders; and

(v) said that the wages and salaries figure of $59,100 for the financial year 2010 'probably' related to 2 full time staff and 8 part time staff.

1. It is also significant that the Applicant did not call any evidence:
   • (a) from any member of his staff;

(i) as to the manner in which he has conducted demonstrations since the County Court Appeal; or

(ii) as to the alleged practice of using staff who do not display the Snakebusters logo, for the purpose of unobtrusively observing the audience to guard against theft; or

(b) from members of the industry, as to what constitutes industry standards in relation to barriers and pits; and the use of plastic containers.

1. I will now deal briefly with each of the witnesses in the order in which they gave evidence.

1. In my view, Dr McCracken's qualifications and extensive experience are particularly relevant in the context of this case and she was a most impressive witness.
2. I accept that Dr McCracken has relevant expertise in surgical techniques applicable to reptiles, including Australian elapid snakes; and their appropriate maintenance and treatment.
3. I accept that Dr McCracken was a truthful and reliable witness who gave her answers in an informed, considered and comprehensive manner without embellishment or exaggeration. In particular, I accept her evidence without reservation or qualification in relation to:
   • (a) Her description of proper surgical techniques upon reptiles;
   • (b) The risks implicit in 'venomoid' surgery not being performed by a suitably qualified person, and a person using an inappropriate surgical technique;
   • (c) The possibility that 'venomoid' snakes may still regenerate gland tissue and produce venom;
   • (d) The proper approach to handling of snakes and the manner in which venomous snakes should be safely handled; and
   • (e) Her description of the photos,[121] the Melton Demonstration, and the Applicant's website photos.
4. In my view, the critical circumstances, as attested to by both Dr McCracken and Mr Waters, are that:
   • (a) There has been no scientific trial to examine the efficacy of de-venomising surgery; and even a remote possibility that such surgery could be ineffective poses an unreasonable risk to the public; and
   • (b) Prudence dictates that all venomoid snakes should be handled as if they were venomous - a practice also endorsed by both veterinary experts and Mr Waters; and adopted in Zoos in the USA.

1. I accept that Dr Funk has relevant qualifications and extensive experience for the purpose of giving expert evidence in relation to reptiles generally and elapid snakes in particular. However, for the reasons detailed above, the circumstances which led to Dr Funk providing an initial and subsequent written opinions reflect adversely upon:
   • (a) the accuracy and reliability of information provided to him by the Applicant; and
   • (b) the independence and objectivity of Dr Funk in providing his opinions.
2. Consequently, I cannot afford any weight to his evidence given in this case, to the extent that it is in conflict or not consistent with evidence given on behalf of the Respondent.
3. I also note that the surgical technique employed by Dr Funk differs in significant respects from the technique which the Applicant claims to have used.
4. Otherwise Dr Funk's opinion, in substantial respects, as detailed above, accords with the evidence given by Dr McCracken.

1. In my view, Mr Waters' qualifications and extensive experience are particularly relevant in the context of this case and he was a most impressive witness.
2. I accept Mr Waters as an expert in reptiles generally and Australian snakes in particular. I also accept his expertise as a snake handler and his relevant experience as an educationalist.
3. I accept that Mr Waters was a truthful and reliable witness who gave his answers in an informed, considered and comprehensive manner without embellishment or exaggeration. In particular, I accept and agree with his opinions, to the effect, that the way in which the Applicant demonstrates snakes:
   • (a) is of little or no educational benefit;
   • (b) sends an incorrect message to the general public; and
   • (c) could be likened to a 'circus'.
4. I also accept Mr Waters' evidence that:
   • (a) He had discussions with the Applicant about what would be an appropriate 'pit' in respect to the Wildlife Demonstrator Licence conditions;
   • (b) The definition of what constituted an acceptable 'pit' was well understood within the snake demonstrating industry;
   • (c) He had never advised the Applicant that the road barrier or red and white scissor barrier[122] complied with his Licence conditions or were appropriate in any way;
   • (d) At various times he had adequately explained to the Applicant his obligations under the Licence conditions in relation to an appropriate barrier or pit; and
   • (e) He had observed a demonstration given by the Applicant in 2010 [in Mildura] where the Applicant was demonstrating in a way which breached his Licence conditions.

1. For the reasons given, I am satisfied that:
   • (a) The Applicant has committed offences under the Wildlife Act; and
   • (b) The Applicant has committed further breaches of his Licence conditions.
2. In addition to the criteria satisfied pursuant to s 25D of the Wildlife Act, I am satisfied that the Applicant is not a fit and proper person to hold or retain the subject Licence, Authorisation and Approval and there are additional reasonable grounds justifying the cancelling of the Applicant's current Licence, Authorisation and Approval by reason of the Applicant's:
   • (a) Apparent continuing failure or refusal to comply with Licence conditions;
   • (b) Failure or refusal to follow the reasonable directions or instructions of responsible staff of the Respondent in relation to compliance with Licence conditions;
   • (c) Apparent contemptuous attitude towards his obligations under his Licence; and a reckless disregard for the consequences;
   • (d) Persistent failure to handle de-venomised elapid snakes as if they were still venomous;
   • (e) False and/or misleading public statements via the media and internet;
   • (f) Conducting demonstrations in a manner which:

(i) Places the general public, particularly children, at unreasonable risk of harm and potentially life threatening consequences;

(ii) Places the reptiles at unreasonable risk of harm, or loss [by escape or theft];

(iii) Mishandles elapid snakes in particular;

(iv) Fails to properly and safely secure elapid snakes;

• (i) Conveys misinformation about the proper handling of elapid snakes in particular; and
• (ii) The primary objective is to deliver entertainment, often in a sensational manner, with minimal educational content or value.

1. Accordingly, I propose to:
   • (a) dismiss the Application to review the Respondent's decisions; and
   • (b) affirm the decisions of the Respondent to cancel the Applicant's Licence Authorisation and Approval.
2. I will hear the parties on the question of costs.

[3] This Licence allowed the Applicant to conduct reptile shows.

[4] Pursuant to s 25B of the Wildlife Act 1975.

[5] Appointed pursuant to s 11(2) of the Conservation Forests and Lands Act 1987 (Vic).

1. [8] Notice of Cancellation of Wildlife Demonstrator Licence and Authorisations Issued under the Wildlife Act: page 337 of the Tribunal Book.

[9] The power of delegation is conferred by s 11(2) of the Conservation Forests and Lands Act 1987 (Vic).

[10] Section 23(1)(a) of the Wildlife Act 1975.

[11] Section 25B.

[12] Section 28D.

[13] Section 25D.

[14] Section 28F.

[15] Sections 25C(1) and 25D(2)(b); ss 28E(1) and 28F(2)(b).

[16] Sections 25C and 25D; and ss 28E and 25F.

[17] A corresponding enabling provision is found in s 48 of the VCAT Act.

[19] Order 1 of Deputy President Aird's orders of 11 October 2011 Tab 7 of the Tribunal Book.

[21] Section 51(2) of the Wildlife Act.

[22] Re Brian Lalor Automotive Pty Ltd v Collector of Customs (1978) 1 ALD 167, 177 per Brennan J.

[23] The Ashley Hotel Pty Ltd v Banyule CC (1999) VCAT 26. Justice Morris noted in PJR v Secretary of the Department of Justice [2006] VCAT 2455 at 17 that it would be inappropriate to characterise the matter as subject to proof on the balance of probabilities or by reference to the principles in Briginshaw v Briginshaw, or any other similar test used in civil proceedings.

[24] [1999] VCAT 128.

[25] Refer also the comments by Kyrou J in LKQ v Secretary of the Department of Justice [2011] VSC 227 at 56 in the context of a review under the Working with Children Act 2005.

[26] Stephen Smith, Director Biodiversity Programs within the Respondent also gave evidence.

[27] Dr McCracken Transcript 9/2/2012 p 4.

[29] Including 8 eastern brown snakes; 8 copperhead snakes; 2 inland taipans; 1 coastal taipan; 9 tiger snakes; 4 common death adders; 1 northern death adder; 3 Collett's snakes; 3 red bellied black snakes; and 9 pythons.

[30] Tribunal Book Tab 4, 36 para 7: affidavit of Simon Smith. However, I note that the Witness Statement of Dr Zelesco [Exhibit 3] refers only to 11 snakes.

[31] Permission was also sought in relation to handling venomous species with venom in certain circumstances: refer para 7 of the 2008 Tribunal Decision.

[32] Hoser v Department of Sustainability and Environment (Occupational and Business Regulation) 2008 VCAT 2035, the '2008 Tribunal Decision'. This application was heard by the Tribunal over 5 days from 1st to 5th September 2011.

[33] Refer para 20 of the 2008 Tribunal Decision.

[37] See pages 274-279 of the Tribunal Book.

[38] On 29 November 2008; 10 January 2009; 22 January 2009; and 8 July 2009. Tribunal Book Tab 4, 37 para 8: affidavit of Simon Smith.

[39] See photographs in Tribunal Book of the particular demonstrations.

1 29 November 2008 breach condition 13 of wildlife demonstrator licence.

4 10 January 2009 breach condition 13 of wildlife demonstrator licence.

7 Breach regulation 42, (Wildlife Regulations 2002) - minimise risk of escape.

8 Breach regulation 42 - minimise risk of injury to any person.

9 22 January 2009 breach condition 13 of wildlife demonstrator licence.

11 8 July 2009 condition 13 of wildlife demonstrator licence.

[40] Alleged breach of conditions 11, 13 and 14.

[41] Alleged breach of conditions 11, 13 and 14.

[43] Alleged breach of conditions 11 and 14.

[44] Following a five day contested hearing; Tribunal Book Tab 4, 37 para 9: affidavit of Simon Smith.

[45] Without objection from the Applicant.

[46] Without objection from the Applicant.

[47] See page 43 and 44 of the Tribunal Book; Tribunal Book Tab 4, 37 para 10: affidavit of Simon Smith.

[48] Ex 12; originally annexed to affidavit of Ron Waters labelled 60a-z.

[49] Cf evidence of Ron Waters to the effect that he has never told the Applicant that the red and white scissor barrier is appropriate; and has said on a number of occasions that they are not appropriate.

[50] He admitted that on 20 March 2011 a crocodile was stolen and the thief was identified.

[51] Dr McCracken gave evidence that there is an increased risk that one snake can cause other snakes to fall off a table.

[54] ATV10: 7pm Project, News. GTV9: A Current Affair. HSV7: Today Tonight, News.

[55] Tribunal Book Tab 4, 40 para 21: affidavit of Simon Smith.

[57] See page 155 and 156 of the Tribunal Book. In his evidence the Applicant confirmed that he performed two demonstrations at the request of Mr Vincent for staff of the Respondent.

[60] 31 October 2011 (two) and 6 Jan 2012; Tribunal Book Tabs 9, 10 & 21.

[61] In evidence, he referred to published articles concerning the Rio virus in 2002.

[62] His company provides a 24 hour service to anyone who reports a likely snake in their backyard. He estimates that this generates about $7,000 per annum.

[63] Which the Applicant said included himself and all employees.

[65] Tribunal Book 194, 200, 201, 202, 203, 204.

[66] For instance Dr McCracken said that zoo staff demonstrate non-venomous snakes only.

[67] Para 37 2008 Tribunal Decision re venom gland surgery and experience with the regeneration of eye tissue in a snake.

[69] Exhibit 3, tendered at the 2008 Tribunal Hearing.

[70] Who was available to give evidence, but not required by the Applicant for cross-examination.

[74] Clark v Ryan (1960) 103 CLR 483.

[75] Following an amendment in 2007 to the Prevention of Cruelty to Animals Act 1986 (Vic).

[78] Paragraph 20, 2008 Tribunal Decision.

[79] This estimate was based on the number he recently caused to bite himself, to check whether they would give a venomous bite.

[82] The Applicant conceded that the vast majority of the first report was written by himself, namely paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 (aside from the last sentence: "however, in the United States these surgeries must be performed by licenced veterinarian") 14, 15, 16, 17 (aside from the opening sentence: "while I would not necessarily regard being bitten by a venomoid snake as a sensible test to see if the operation worked...") 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 unclear, 42 through to the end of the document.

[83] At paragraph 25 (Tribunal Book page 66).

[84] Tribunal Book 66, paragraphs 34 and 35.

[85] Tribunal Book 66, paragraphs 35-36.

[86] Dr Funk had also heard anecdotally that venomoid snakes could still deliver a venomous bite, but said there was no definitive proof.

1. [87] He agreed that techniques to determine whether a snake that has had its venom glands removed is capable of a venomous bite include live prey baiting or milking.

[89] Tribunal Book Tab 5 paragraphs 5, 6, 7, 9 & 11.

[92] Dr McCracken disagreed with Dr Funk's description of cold torpor as a method of sedation: Tribunal book Tab 8, 66 paragraph 27.

[118] The maximum penalty for such offences is $110,000; the Applicant received a fine of $4,000.

[119] Hoser v Department of Sustainability & Environment (Occupational and Business Regulation) [2008] VCAT 2035 paragraph 18.

[120] It is quite clear from the evidence of Ron Waters and the affidavit of Dr Zelesco that this was never the intention or effect of microchipping.

[122] As seen in the photographs at page 60a to 60z of the Tribunal Book.