Jack SMITH (NSW Department of Agriculture) v Kathleen DAY [2003] NSWCCA 159 | Case summary

Summary of Facts 4 The case stated to this Court contained the following summary of facts: "It is common ground that at all material times the Appellant and her husband were the occupiers of a rural property in the Kyogle District of New South Wales on which together they ran cattle for sale. There is no dispute that on 2nd February 2000, six cattle were moved by motor vehicle from the property to Casino Saleyards, by the Appellant's husband. One of those head of cattle was heavily infected with cattle tick. Cattle tick is a disease within the meaning of the Act and there is no dispute that the movement of the stock in question is the movement of 'infected' stock within the meaning of the Act. There is no dispute that upon discovering the infected stock at the saleyards, inspectors of the NSW Department of Agriculture quarantined the stock and went to the property the next day. On 3rd February 2000, the inspectors discovered further tick infected cattle on the property. At the time an interview took place on the property. Initially the questions asked by the Inspector were addressed to Mr Day. However, he became ill and left the room. The Appellant, who was present throughout, then consented to the interview continuing. She first confirmed that the answers given by her husband were correct. The following questions and answers then took place: 'Q Who transports your stock? A Ourselves. Q Did you muster the stock for yarding prior to transporting them? A Yes, my husband and I. Q Did you draft the stock? A Yes we did. Q Did you actually put tail tags on the stock prior to transporting? A Yes we did. Q On what date and at what time did you draft and tail tag the stock? A 1.2.2000 approx 5.00pm. Q Who was the carrier who transported the stock? A My husband. Q Did you or anyone present examine the stock for cattle tick? A No we didn't.'" 5 Ducker DCJ noted that he accepted the submission on the part of the Respondent that the Appellant did not move the cattle, nor did she take an active part in the movement. Her husband did and, accordingly, she could not be said to have "caused" them to be moved. 6 His Honour outlined his reasons for his findings as follows: "It is my view that the Appellant did not 'cause' the cattle to be moved. She did not move the cattle herself. There is no evidence that it was because of any exercise of persuasion or exertion of authority by her that the cattle were moved. The evidence is insufficient to permit the drawing of a reasonable inference that she 'caused' (within the meaning as defined in O'Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220) the cattle to be moved. It was my view that the fact that the case was one of strict liability did not relieve the Informant from having to prove mens rea on the part of the Appellant. I formed the view that 'cause' should be given a commonsense meaning. I found that she did not, in the ordinary sense of the word, cause the cattle to be moved. It was my view that the evidence is incapable of proving that she had any part in moving the cattle. I found that conduct that proves a person an accessory to a crime actually committed by another person does not always amount to proof of causation. Liability and causation are two different concepts. I regarded the issue as not the cause of the cattle being infected but the cause of them being moved. I found that cause means cause, not permit or suffer, cause in its common sense meaning. I found that it was not open to find the Appellant had 'caused' the cattle to be moved. Any evidence that she 'caused' the cattle to be moved would have to be based on no more than impermissible speculation. No reasonable inference could be drawn that the Appellant caused the movement of the cattle. I upheld the appeal and dismissed the Information." 7 His Honour then submitted two questions to this Court: "1 Was I wrong in law for not having found that the Appellant 'caused' the movement of cattle onto the land in question? 2. Did I fail to give proper consideration to the meaning of 'cause' as it applied in the circumstances of the offence under consideration?" 8 Section 20C of the Act relevantly provides: "A person must not move any infected stock or cause or permit any infected stock to be moved ... (c) to, on or across any land ... except on or across land owned or occupied by the owner of the stock." 9 The facts before the local court were in a narrow compass. They established that the Respondent was the part owner of the stock operating as a co-owner with her husband. However, it was her husband who actually transported the stock. 10 The Appellant submitted that she could be found guilty of "causing" the stock "to be moved to land" by reason of the combined effect of the co-ownership and the admissions she made that she had taken steps which were preparatory to the movement of the stock involving mustering, drafting, (i.e. separating) and tail tagging the stock. 11 The Appellant conceded that the prosecution did not establish that the Respondent "directed her husband to move the stock". It did say, however, that the act of "causing" had been established on the combined basis of her joint ownership, the operation of what appears to be a partnership between them, and her participation in preparing the stock for transport. 12 In the present case the Respondent was not charged with an accessorial offence to her husband's act of moving the stock. Nor was she charged with "permitting" the movement of the stock. She was charged with "causing" the movement of the stock. 13 The basic Australian authority on the meaning of the word "cause" in a regulatory offence is O'Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220. I will refer to the relevant passages later. 14 The Appellant sought to distinguish O'Sullivan on the basis that the offence in the present case was one of causing infected stock to be moved, not causing a person to move the stock. It was said that O'Sullivan was concerned with a statute where one person caused another person to do an act. In that case it was causing another "to offer for sale" a publication. 15 Secondly, the Appellant directed attention to that part of the passage in O'Sullivan's case where it refers to whether or not the act was "done" on the actual authority, express or implied, of a person. It submitted that the relevant authority in the present case can be implied from the Appellant's status as co-owner of the stock and as partner in the business. 16 The Appellant submitted that the Respondent had impliedly authorised her husband to move the stock. This implication arose both from the facts of ownership and from her assistance in mustering, drafting and tail tagging the stock. The Respondent had also answered "ourselves" in response to a general question - "Who transports your stock?" 17 The Respondent's submissions, both before Ducker DCJ and in this Court, were to the effect that it was necessary for the Appellant to demonstrate that the Respondent had exercised such a degree of control over her husband, who actually moved the cattle, as to "cause" him to act in the manner constituting the offence, i.e. "moving infected stock to land". The Respondent emphasised his Honour's finding as follows: "The evidence is incapable of proving that she had any part in the moving of the cattle." 18 The Respondent's submissions accepted that the cattle were the joint property of the Appellant and her husband and that they together mustered, drafted and tail tagged the stock. The Respondent submitted that, whilst this might be sufficient to satisfy some kind of accessorial offence, it cannot accurately be described as conduct that "caused" the cattle to be moved from the land. 19 The Respondent submitted that the action of the Respondent's husband in transporting the stock could not be described as having been done on the authority of the Respondent. The Respondent submitted that the ordinary meaning of "cause" connoted an ability to control. 20 There are numerous decisions on the construction of the word "cause" appearing in regulatory statutes. The basic authority in Australia remains O'Sullivan v Truth and Sportsman Limited. Much turns on the statutory text. The word "cause" is not, in my opinion, a term of art. It takes its colour from its context. (Contra Bob's Place Sales Pty Ltd v Barrington (1976) 12 SASR 566 at 571.3 per Wells J and compare Miller v Hilton (1937) 57 CLR 401 at 416.5 per McTiernan J.) In the present case the Respondent relied on O'Sullivan v Truth and Sportsman Limited. The most frequently cited passage in that case is from the joint judgment at p228: "... when it is made an offence by or under statute for one man to 'cause' the doing of a prohibited act by another the provision is not to be understood as referring to any description of antecedent event or condition produced by the first man which contributed to the determination of the will of the second man to do the prohibited act. Nor is it enough that in producing the antecedent event or condition the first man was actuated by the desire that the second should be led to do the prohibited act. The provision should be understood as opening up a less indefinite inquiry into the sequence of anterior events to which the forbidden result may be ascribed. It should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue. What amounts to a causing within this view by no means coincides with the definition of an accessory before the fact." 21 In O'Sullivan the issue was whether or not a newspaper had caused a newsagent to offer for sale its publication. The Court concluded, at p229: "On the evidence the newsagents sold or offered the paper in the uncontrolled exercise of their own free will. They did not deal with the papers under the authority of the respondent company or in response to its control or influence. They dealt simply as retail traders might with goods they had acquired to resell. The truth is that the newsagents and the newspaper company acted as co-operators in the production and distribution of the newspaper, each performing his or its distinct function." 22 I pause to note that there is nothing of that nature in the present case. The husband and the wife did not perform distinct functions in the acts preparatory to the transport. They did them jointly. The only "distinct function" was the driving of the truck which, unlike O'Sullivan, moved jointly owned property. 23 Turning to O'Sullivan's case, Kitto J said, at p230: "But to see successive acts of several persons as a chain of events, in the sense that each is done in order to provide a point of commencement for the next and to contribute to an end which is common to them all, is not the same thing as discerning in them a chain of causation - using 'causation' in any sense which can reasonably be extracted from the word 'cause' in such a context as we are here considering. Even though it be true that each act in the chain is done for no other purpose than that the effect of the ultimate act may be obtained, if there is nothing more in the case the statement is not justified that a person who does all the acts except the last 'causes' the last. It is important to recognise that what is here being considered is the 'causing' of an act which involves an intention to do it on the part of the person who does it. The inquiry may well be different in the case of an event independent of such an intention." 24 His Honour went on to give examples distinguishing these two kinds of cases. He also said, at p231: "Certainly encouraging the doing of an act is not the same thing as causing it; and this the Police Offences Act itself recognises in s. 12(1)(d). The truth is, I think, that one person cannot be said to cause another's act unless not only does the former express it as his will that the act shall be done by the latter but the latter's decision to do it is a submission to the former's will, that is to say a decision to make himself the instrument of the former for the effectuation of his will." 25 His Honour went on to note that it was not necessary that there be a position of dominance and control by the person said to have caused the other person who conducted the physical act constituting the offence. His Honour concluded that it could not be said that the newsagent in that case submitted to the will of the newspaper publisher. 26 The Respondent also relied on the judgments of the Supreme Court of South Australia (at first instance and as approved on appeal) in Samuels v Centofanti [1967] SASR 251. At first instance Bright J said, in observations expressly approved on appeal by Bray CJ at p266, in a context in which the offence was expressed in terms of a person "authorises, causes or suffers" a sheep to be branded: "Whether one makes the connecting link one of 'causing', 'authorising' or 'suffering' one must at least presuppose some degree of knowledge or means of knowledge by the one person of the act of the other person. The three words are in a descending scale. The greatest degree of control or domination is connoted by the word 'cause'. I do not wish to add another to the innumerable decisions on the meaning of 'cause' but in its present context I think it must be related to an 'order' by a person having power to order and having knowledge of what he is ordering." 27 In that case a husband in a rural partnership, who was unaware that his wife and son had branded someone else's sheep, was found not to have committed the offence of "causing" the sheep to be branded. 28 However, the level of control implicit in the statutory formulation, "authorises, causes or suffers", is not the same as that necessarily suggested by the statutory formulation in the present case where the formulation is "causes or permits". In the present case there is no distinction between "causes" and "authorises" so as to identify a stricter approach to the word "cause". 29 There is another case in which the legislation regulated certain roads identified as "controlled routes". (Miller v Hilton (1937) 57 CLR 401.) The relevant offence was that no person shall "cause to be driven" a vehicle on a "controlled route". In that case a father was found not to have caused his son to drive the vehicle on a controlled route, when he did not know or intend that his son would drive the vehicle on the road even though it was for purposes of his business. 30 In that case Rich J said, at p413: "When it is expressly made an offence for one man to 'cause' another to commit what is forbidden as a crime we ought not to give any wide or general application to the word 'cause'. In this subsection I take it to mean to procure or bring about . It refers to some intentional or conscious production of the effect. Consequences are infinite and I think that the present section meant to forbid only doing an act knowing or intending that it should produce the consequence that a vehicle is driven upon a road for the purpose of carrying persons or goods for hire if it turns out that the road is a controlled route." [Emphasis added.] 31 To similar effect are the observations of Dixon J at p415: "... the sub-section is not content to leave to the general law the question of defining and penalizing the acts which make an accessory or other person inciting or otherwise contributing to the commission of an offence criminally liable. It specifically deals with such a case and provides that no person shall cause the forbidden act. In such a connection I think the word 'cause' does not extend beyond acts or omissions of a person who does or makes them either for the purpose of bringing about the doing of the things which amount to the principal offence, or at least contemplating or foreseeing that they will or may have that result ... I think there must be some intention that a vehicle shall be driven on a route for the purpose of carrying passengers or goods for hire, or that this shall be contemplated or foreseen as a result of the act in fact causing it." 32 On the facts of the present case, it could not be said that the husband's act of moving the cattle was done merely as an instrument of the Respondent in the sense that it was an "effectuation of (the Respondent's) will" to use the formulation of Kitto J in O'Sullivan v Truth and Sportsman at p231. However, it can be said that the Respondent, jointly with her husband, did "procure or bring about" the movement of the cattle, to use the terminology of Rich J in Miller v Hilton at p413. 33 As I have indicated above, in my opinion the word "caused" is not a term of art and takes its colour from its surroundings. In O'Sullivan v Truth and Sportsman Limited the statutory formulation was, relevantly, two-fold, that is, "offer for sale or cause to be offered for sale." In that case the word "cause" was identified with the carrying out of the will of the person said to be doing the causing. 34 In Samuels v Centofanti the expression was four-fold, as I have indicated, namely, the act of branding or authorising, causing or suffering the act to be done. Again, in that case, the distinction between authorising and causing indicates a narrower approach to the word "causing". 35 In the present case the formulation is concerned with movement of stock and it uses a three-fold test of movement and also causing or permitting their movement. The expansion to "permit" indicates that a wider range of conduct is to be considered than would be the case if the O'Sullivan v Truth and Sportsman Limited formulation were in place. It is at least as wide as the four-fold formulation considered in Samuels v Centofanti. However, the fact that there is no distinction between causing and authorising in this case, indicates that the word "caused" extends to, in my opinion, a broader range of activity than may have been the case in the statutory formulation under consideration in each of O'Sullivan v Truth and Sportsman Limited and Samuels v Centofanti. 36 In the present context, in my opinion, the word is used in the sense of procure or bring about, to use the words of Rich J in Miller v Hilton. It does not require the degree of dominance or control over the act of movement so that the person who does the movement itself can be seen in some way as an instrument of the other. 37 In my opinion it is sufficient if there be simply a procuring or bringing about. 38 The Respondent, together with her husband, conducted all of the steps preparatory to the movement of the cattle and did so for the purpose of moving their own cattle. I am unaware of any factual situation of this character in any of the case law. None has been drawn to the attention of the Court. However, the evidence establishes that the act of movement was done by one of two co-venturers. It was determined by the co-venturers in that they themselves controlled, by their joint actions, all of the steps leading up to the act of movement itself. 39 The word "cause", in my opinion, does not mean "sole cause". It is at least sufficient, for purposes of the offence here under consideration, that the movement of cattle came about as a direct result of the joint activities of the two persons. The fact that one of those persons conducted the act of movement is not itself relevant. Each of the persons who procured or brought about the movement can be said to have "caused" the movement. 40 The evidence in the present case was such that the Respondent participated in all of the steps required to be done for the purpose of preparing the cattle for transportation and did so for the purpose of movement of the cattle. Accordingly, in my opinion, there was evidence that constituted the offence of which she was convicted in the local court. 41 I would answer the questions posed in the stated case: 1. Yes.

Jack SMITH (NSW Department of Agriculture) v Kathleen DAY

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