LAROBINA, Adriano v R

Crimes Act 1900 LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986

Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 CASES CITED: Director of Public Prosecutions v Emanuel [2009] NSWCA 42 Ex Parte Burnett; Re Wicks [1968] 2 NSWR 119 Ex Part Lovell; Re Buckley (1938) 38 SR (NSW) 153; (1938) 55 WN (NSW) 63 Knaggs v The Director of Public Prosecutions & Anor [2007] NSWCA 83; (2007) 170 A Crim R 366 Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

PARTIES: Adriano Larobina (Appellant) The Crown (Respondent)

SOLICITORS: Director of Public Prosecutions (Respondent) Herring & Associates (Appellant)

1 Adriano Larobina appeals from the conviction he suffered in the Local Court, Queanbeyan on 27 October 2008 for an offence said to be contrary to s 530(1)(a) of the Crimes Act 1900, expressed in the court attendance notice in the following terms: Commit serious act of animal cruelty with intent severe pain [sic] between 6.00am and 11.59pm on 07/05/2007 at Jerrabomberra did inject a ferret with an unknown substance.

2 The prosecution case was that the appellant was one of a group of men who injected an unknown substance into a ferret belonging to a man named Bell. Thomas Sorahan was prosecuted with this appellant and also appealed from his conviction, however the Crown informed me that his prosecution was abandoned and I made orders setting aside his conviction.

3 The hearing commenced on Monday 30 March 2009. Counsel for the appellant consented to the tender of the Crown documents and provided written submissions to which he spoke. I adjourned the appeal for judgment on Friday 3 April 2009.

The Omission Of Essential Ingredients Of The Offence

4 Upon my review of the material, I came to the view that there was a flaw in the prosecution of the matter in the Local Court. In my opinion, the charge omitted an essential ingredient, without which the conduct described did not amount to an offence.

5 In the Local Court, the lawyers representing the appellant and Sorahan did not challenge the court attendance notice but contested admissibility of evidence for reasons that did not include any reference to the omitted ingredient. Their submissions were to exclude evidence upon which the prosecution wished to rely to prove that the accused were participants in the conduct upon which the prosecution was brought.

6 There was no application by the prosecution to amend the charge to properly express the offence. Regardless of the terms of the charge, the Magistrate hearing the matter found the offence proved against both accused upon the text of the provision creating the offence and with reference to all of the ingredients there specified.

7 In the appeal, the attack upon the admissibility of evidence included submissions that it was irrelevant to the matters alleged in the charge.

8 On Thursday 2 April 2009 the appellant's solicitor was at court for another purpose, and in the presence of the Crown I prevailed upon him to hear my concerns about the deficiency in the charge and the questions I had about the further conduct of the matter so that he might inform counsel from whom I wished to have assistance with further submissions addressing those matters.

9 On Friday 3 April 2009 counsel appeared and acknowledged that the points that I had raised were of significance and added to his submissions. He argued that as a consequence of the failure of the prosecution to charge the appellant with a known offence there should have been no conviction, and that consequently the conviction was a nullity and should simply be set aside. Counsel submitted that this court had no jurisdiction to exercise any other functions or powers beyond the setting aside of the conviction.

10 This appeal is pursuant to the Crimes (Appeal and Review) Act 2001 wherein the nature of the appeal and the powers of the court are specified. The powers of the court are more circumscribed than they were prior to this legislation, when such appeals were in the nature of a hearings de novo, whereas appeals pursuant to this Act are re-hearings upon the certified transcripts of the proceedings in the Local Court. The powers provided in s 28 of the Act are more limited and do not extend to provide this court with express power to allow the Crown to now amend the charge to properly express the offence alleged.

11 The provision creating this offence is in the following terms: 530 Serious animal cruelty (1) A person who, with the intention of inflicting severe pain: (a) tortures, beats or commits any other serious act of cruelty on an animal, and (b) kills or seriously injures or causes prolonged suffering to the animal, is guilty of an offence.

12 The wording used to express the charge in the court attendance notice is to say the least inelegant, and in my opinion does not adequately address the elements of the charge to be proved by the prosecution beyond reasonable doubt before the appellant could be found guilty of the offence. It is a reasonable inference that whoever drafted the form adopted for the charge did not appreciate that upon its face the provision required more than a serious act of animal cruelty with intent to cause severe pain. It may be that the word "and" joining par (a) and par (b) has been read as disjunctive and the provision therefore as creating a series of offences committed when a person with intention of inflicting severe pain either tortures, beats or commits any other serious acts of cruelty on an animal, or with that intention, kills or seriously injures or causes prolonged suffering to an animal.

13 The reference to s 530(1)(a) as the provision supporting the offence supports this inference, as does the structure of the charge as it appears in the court attendance notice. This ignores what in my opinion is the proper construction of the provision requiring that in addition to the allegation made drawing upon one or other of the matters specified in par (a), there must also be established one or other of the matters specified in par (b).

14 I am of the opinion that properly construed the word "and" between paragraphs (a) and (b) is to be read as conjunctive. This is made clear in my view by the use of the phrase "... on an animal," used in par (a) and the phrase "...to the animal," used in par (b).

15 Accordingly, I am of the opinion that properly charged the offence must express the intention to inflict severe pain, with one or more of the actions provided in par (a), and one or more of the outcomes in par (b), and that the prosecution must fail if the evidence does not satisfy the tribunal of fact beyond reasonable doubt of each of those ingredients.

16 That this was the intention of Parliament is apparent from the Explanatory note of the Crimes Amendment (Animal Cruelty) Bill by which this provision was introduced to the Crimes Act, wherein one of the objects of the proposed legislation is said to be: ... to amend the Crimes Act 1900 to create a new serious animal cruelty offence, with a maximum penalty of five years imprisonment, where the offender intends to inflict severe pain on an animal and kills or causes serious injury or prolonged suffering to the animal.

17 With reference to Schedule 1 of the Bill the Explanatory note includes (emphasis added): The new serious animal cruelty offence contained in proposed s 530 is directed to acts of cruelty where the offender intends to inflict severe pain ... Proposed s 530 makes it an offence, with the intention of inflicting severe pain on an animal: (a) to torture, beat or commit any other act of serious cruelty on THE animal, AND (b) to kill, seriously injure or cause prolonged suffering to THE animal".

18 The Second Reading Speech in the Legislative Assembly upon the introduction of the bill by the Minister for Tourism, Sport and Recreation on behalf of the Attorney General, recorded in Hansard on 9 November 2005, included the following remarks: It was proposed that this new offence deal with the worst examples of animal cruelty, that is, cases where offences are committed with the intention of inflicting pain on the animal in circumstances that amount to serious instances of animal cruelty, such as torture, and where the animal is killed, seriously injured or experiences prolonged suffering... Proposed s 530 makes it an offence, with the intention of inflicting severe pain on an animal, to torture, beat or commit any other act of serious cruelty on the animal, and to kill, seriously injure or cause prolonged suffering to the animal.

19 The further speeches in the Legislative Assembly on 15 November 2005 supported the passing of the Bill without detracting from the remarks made by the Minister.

20 It is therefore my opinion that properly expressed, assuming that the prosecution was relying upon the injection of the animal to satisfy the element provided in s 530(1)(a), the charge should have alleged that at the time and the place specified the appellant with the intention of inflicting severe pain committed an act of serious cruelty, namely, that by means of a hypodermic syringe he injected the ferret with an unknown substance, and thereby killed, or seriously injured or caused prolonged suffering to the animal. The charge should have been brought pursuant to s 530(1) of the Act, without limiting it to par (a) of that sub-section.

21 Notwithstanding this omission, the Magistrate ultimately found the offence to be proved with reference to all of the elements of the offence provided in s 530(1) of the Act.

22 At page 58 of the transcript of 16 September 2008 and at line 19, his Honour said: In this matter Thomas Sorahan and Adriano Larobina have been charged under s 530 subs (1) para (a) of the Crimes Act, a person who with the intention of inflicting severe pain, tortures, beats or commits another serious act of cruelty on an animal, and kill [sic] or injures - or seriously injures or causes prolonged suffering to the animal - is guilty of an offence.

23 His Honour's reference to s 530(1)(a) was incorrect, for he was drawing upon both paragraphs (a) and (b) of s 530(1) when he spoke to the provision creating the offence.

24 At page 59 of the transcript of 16 September 2008 at line 34 his honour said: In the matter of Adrian Larobina and Thomas Sorahan, both persons are charged on a s 530 subs (1) para (a). I do not need to re-read it, I read it upon finding a prima facie case, but certainly a person with the intention of inflicting severe pain, tortures, beats, commits any other serious act of cruelty on an animal, and kills seriously injures or cases [sic] prolonged suffering to the animal, is guilty of an offence.

25 Once again, his Honour drew upon both paragraphs (a) and (b) of the sub-section notwithstanding his reference to par (a) only.

26 At page 62 of the transcript at line 31 his Honour said: The court is satisfied that the evidence, as presented, bring [sic] the acts done on the ferrets within s 530 subs (1) para (a) of the Crimes Act. The court is satisfied that the video recording, and the photographs are sufficient, albeit circumstantial but sufficient evidence that the ferrets, and particularly the white ferret, had severe pain inflicted upon it, that serious acts of cruelty were perpetrated on the animal, and that it underwent prolonged suffering.

27 As before, his Honour has drawn from paragraphs (a) and (b) of the sub-section, notwithstanding his reference to par (a).

28 Finally at page 62 line 48 his Honour said: I am satisfied, beyond reasonable doubt, that Mr Larobina was part of a group of people, with the intention of inflicting severe pain, and did commit a serious act of cruelty on the animal and caused it prolonged suffering.

29 There was no challenge to the formulation of the charge in the court attendance notice at any stage, according to the transcript. The statement of the police officer in charge was admitted by consent, subject to the challenge to be mounted against the paragraph dealing with the production of a compact disc containing photographs and a video recording, and the tender of that item.

30 Evidence was called from the owner of the ferret, Andrew Robert Bell, who described the circumstances in which he left the animal, the circumstances he found when he next returned to the house, and his discovery of the camera and his examination of the images recorded on it, which he said he caused to be transferred to the compact disc by another person. He viewed the disc in court and confirmed that it contained the images he saw on the camera and he gave evidence about what was depicted and what was to be heard.

31 There were challenges to this evidence, but not with regard to its relevance to the ingredients specified in the charge as it appeared in the court attendance notice or to the ingredient omitted from the charge.

32 This offence may be committed in a number of ways. The first requirement is that there be the intention to inflict severe pain. Section 530(1)(a) requires that the accused be shown to have tortured, beaten, or committed any other serious act of cruelty on an animal, and s 530(1)(b) requires that the accused be shown to have thereby killed or seriously injured or caused prolonged suffering to the animal.

33 Although there might be significant overlap between these concepts, it remains that an animal might be tortured in ways other than by beating, and that there might be serious acts of cruelty that are not aptly described as torture or beating. Additionally, although the death of the animal might be the consequence of serious injury or prolonged suffering, it will not necessarily be so. The combinations of conduct and outcomes are multiple.

34 The court and the accused were entitled to know with some precision the offence that was alleged against them. To achieve this, the charge ought to have been expressed so that it included all of the essential ingredients that the prosecution is required to prove beyond reasonable doubt and the provision creating the offence charged should have been accurately described. The charge is defective for it omits an essential ingredient that the prosecution must prove beyond reasonable doubt and the reference to s 530(1)(a) of the Crimes Act misrepresents the provision by which the offence was created.

35 As expressed, using the short description adopted before the specification of the time and date of the offence, and without the ingredients required by s 530(1)(b), one might be left with the impression that the offence to be established by the prosecution required no more than proof of an intent to cause severe pain and the commission of a serious act of animal cruelty, namely the injection of the ferret with an unknown substance. The charge does not specify the additional requirement that the prosecution must also prove one or more of the outcomes specified in s 530(1)(b).

36 The Criminal Procedure Act 1986 provides for the conduct of criminal prosecutions for summary offences, indictable offences that may be dealt with summarily in the Local Court, and indictable offences that may only be prosecuted in the District Court or the Supreme Court.

37 Chapter 2 of the Act contains general provisions of application to all criminal proceedings. Part 1 of Chapter 2 where sections 5 through to 14 appear deals with offences generally. Section 5 provides: (1) An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily. (2) An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment.

38 Section 6(2) provides: An offence may be dealt with summarily if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment.

39 The offence created by s 530(1) of the Crimes Act is an indictable offence that is included in Pt 2A of Table 2 in Schedule 1 of the Criminal Procedure Act and is therefore to be dealt with summarily unless the prosecution elects otherwise: s 260(2), Criminal Procedure Act. There was no such election in this case.

40 Section 11 provides: The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law.

41 Section 12 provides (emphasis added): (1) For the purposes of this or any other Act, a summary offence , or an indictable offence that may be dealt with summarily , is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms . (2) This section applies to a statement or description of an offence in any court attendance notice, warrant, subpoena, notice, order or other document. (3) ... (4) The rules may prescribe additional matters to be included in court attendance notices.

42 The proceedings were commenced by the court attendance notice filed in the Local Court: s 172, Criminal Procedure Act, and should have complied with s 175(1) and s 175(3)(a) and s 175(3)(b) by describing the offence, and briefly stating the particulars of the offence.

(1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following: (a) describe the offence , (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of he person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. (4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment ".

44 Clause 17 of the Local Courts (Criminal and Applications Procedure) Rule provides that for the purposes of s 175(1) of the Act, a court attendance notice commencing proceedings for a summary offence is to be in the approved form.

45 There is no evidence presented to show that there have been forms gazetted or approved, but there are in the Butterworths' publication, Criminal Law Practice and Procedure New South Wales, generic forms of court attendance notices with which the court is familiar, said to be approved, in each of which in the box providing for the details of the offence appear the following prompts reflecting the requirements of s 175 of the Criminal Procedure Act: Description of Offence: Time and Date of Offence: Place of Offence: Short Particulars: Statutory Provision Describing Offence: Law Part Code:

46 The requirement of s 175(3)(a) is not accompanied by provisions for the consequences of failure to comply with it, and there are no provisions stating that failure to comply will result in nullity or invalidity. Accordingly, it is only if that outcome is the necessary implication arising from the legislation or general principles that it will follow: Knaggs v The Director of Public Prosecutions & Anor (2007) 170 A Crim R 366 at [39].

47 The court attendance notice used to commence this prosecution does not have the prompts for the details of the offence in the box, but only the words quoted earlier, namely:

Commit serious act of animal cruelty with intent severe pain [sic] between 6.00am and 11.59pm on 07/05/2007 at Jerrabomberra did inject a ferret with an unknown substance.

48 In my opinion the court attendance notice does not meet the specification permitted by s 12 of the Criminal Procedure Act, for the offence was not sufficiently stated or described by the use of the short expression employed, without including one or more of the ingredients from s 530(1)(b) of the Crimes Act, and with the specification of s 530(1)(a) of the Crimes Act as the provision pursuant to which the offence was charged.

49 I am also of the opinion that for the same reasons the court attendance notice did not adequately describe the offence as required by s 175(3)(a) of the Criminal Procedure Act.

50 Part 2 of the Criminal Procedure Act provides for indictments and other matters in sections 15 through 27. The term indictment is defined in this part of the Act to include a court attendance notice or any other process or document by which criminal proceedings are commenced: s 15(2). Section 16(2) provides: No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

51 There was failure to identify which combination of ingredients was the offence of which the appellant was accused. The absence of one or more of those essential ingredients from s 530(1) of the Crimes Act leaves the court attendance notice alleging misconduct that does not amount to an offence, and this cannot be cured by the operation of s 16(2) of the Criminal Procedure Act: Ex Parte Burnett; Re Wicks [1968] 2 NSWR 119; Ex Part Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 173; (1938) 55 WN (NSW) 63.

52 Section 17 of the Criminal Procedure Act provides: (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.

53 Upon a plain reading of the section, it applies to proceedings to be conducted before a jury, upon an application that must be made before the jury is sworn, whereupon amendment may follow and the trial proceed as if there had been no defect. The definition of the term indictment for the purposes of Pt 2 of the Act is inclusive and not exhaustive. The meaning to be attributed to that term therefore will be determined within the section in which it is used. Upon its terms, power to amend given in this provision must be confined to indictments presented in proceedings before a jury.

54 In the Local Court, no objection was taken to the description of the offence in the court attendance notice, but in this court the appellant's initial submissions spoke to the disregard of the description of the offence and the particulars provided in the Local Court proceedings, and the admission of evidence extending beyond the limited scope of what was there charged against the accused. After further argument, after the problem identified was brought to the attention of the parties, the submissions extended to the proposition that the conviction was a nullity for it was upon an offence that was not known to the law, and that there was no power in this court to proceed beyond orders to set the conviction aside.

55 The conviction that was entered in this instance in the Local Court was bad. The charge did not disclose an offence known to the law, and although the evidence led extended to be capable of proof of an offence contrary to s 530(1) of the Crimes Act the conviction entered upon that evidence was for an offence that was beyond the charge upon which the prosecution was pursued. Error would have been avoided had there been an amendment to the description of the offence and the charge read in open court with such orders thereafter to meet any injustice arising from the omission of the essential ingredient from the court attendance notice: Ex parte Lovell; Re Buckley (ibid).

56 However I do not accept the submission that the conviction should be seen as a nullity. In my opinion, the conviction stands until this court in the exercise of its powers sets it aside or the Supreme Court does so upon an application for relief sought at that level.

57 In Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at [10] and following, the court was faced with an argument by an employer responding to a claim for workers' compensation that the non compliance by the worker with a provision in the relevant Act meant that the proceedings were invalid or a nullity. It was said that the use of such terms was not helpful in resolving rights between the parties and failed to take account of the important distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction. It was said at [11]: In the case of the superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal, whereas that is not necessarily true of the latter. Thus, in the majority judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 445 [27], it was decided that, because an order made by an inferior court (in that case the New South Wales District Court) without power to do so was a "nullity", it could not found a proceeding for contempt. This situation was contrasted to that arising where an order was made within power but improperly, in which case, until set aside by a superior court, the order had to be obeyed: (1999) 198 CRL 435 at 445-446 [28].

58 Their Honours went on at [13] to [16] to discuss the freedom of a litigant to invoke jurisdiction to determine a dispute and the steps taken along that process, each of which provides to the other party choices as to whether to take action in response. At [16] the court said: None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff's alleged case by seeking to have a plaintiff's action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court, challenging the right of an inferior court to adjudicate the plaintiff's claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction.

59 In the opinion of the New South Wales Court of Appeal, these remarks applied equally to summary criminal prosecutions: Knaggs v The Director of Public Prosecutions & Anor (ibid) at [35] to [36].

60 In that case the court was concerned with the argument that a court attendance notice did not adequately particularise the nature of the assault alleged to have been committed in an offence of assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act. It was said that there was a failure to comply with s 175(3)(b) of the Criminal Procedure Act with the consequence that the court attendance notice was defective and invalid.

61 The argument failed. When rehearsing the facts of the case from [55] and following, it was noted that the claimant was served with a court attendance notice with a statement of facts describing the offence, and then later with a brief of the evidence to be offered to the court. There had been no complaint made in the courts below, either in the Local Court or the District Court to which the claimant appealed against conviction regarding the adequacy of particulars, and no argument that the conviction was void by reason of the lack of particulars. At [59] the judgment continues: One does not construe legislation by reference to the facts of an individual case. However, the general type of situation that I have just set out concerning the facts of this case - where a person served with a CAN contests on the merits the allegations made against him both before a magistrate, and in the District Court on appeal, loses on both occasions, and then seeks to argue in the Court of Appeal, in proceedings in the nature of ones seeking a prerogative writ, that the entire course of proceedings in both the Local Court and the District Court is a nullity - is one that could readily be predicted to arise, if it were correct that a failure to comply with s 175 subs (3) para (b) made the CAN void. While this is nothing like the most powerful of the arguments concerning construction of s 175 that I have here set out, it seems unlikely that the legislature would have intended to pass a law that operated in this wasteful fashion.

62 There is no question that the Magistrate had jurisdiction to hear and determine the charge of an offence contrary to s 530(1) of the Crimes Act, and that his Honour had power to allow amendment of the charge to include the omitted ingredients upon an application made to correct that omission. The transcript of the proceedings reveals that there was no challenge at all to the form of the court attendance notice, and that the arguments presented were with regard to the admissibility of evidence without reference to the elements of the charge to which the evidence spoke. His Honour, although apparently misled by the reference to s 530(1)(a) of the Act, indicated by his repeated reference to it, was at the time of his judgment at least cognizant of the entire provision that created the offence, and all of the ingredients it required.

63 There is little in the transcript to indicate that the representatives of the parties were cognizant of the omission in the course of the hearing, although one would be entitled to assume that in the preparation of the matter they would have turned their mind to the ingredients of the offence, and the relevance of the evidence to them. There is no explanation for the police prosecutor having overlooked this important consideration.

64 The first challenge upon the grounds of relevance to the ingredients as charged appears in the written submissions in this appeal. The first challenge to the conviction upon the grounds that the offence charged was not known to the law was following the concerns I expressed after having reviewed the documents.

65 In my opinion the correct view of the decision by his Honour to convict the appellant upon the evidence before him, with reference to the terms of the provision creating the offence and all of the essential ingredients which in combination made the conduct an offence against the provision, albeit upon a court attendance notice that omitted an essential ingredient and incorrectly identified the provision creating the offence, was an imperfect exercise of the power his Honour had. I am of the opinion that the conviction stands unless there are reasons shown that require that it should be set aside and until the decision of the District Court to do so in the exercise of its powers or an order of the Supreme Court in the exercise of its powers.

66 In the proceedings presently before this court, the conviction remains unless and until there is an order of the District Court setting aside the conviction pursuant to s 20(1)(a) of the Crimes (Appeal and Review) Act.

67 Upon the finding of guilt in the Local Court on 19 September 2008, and the imposition of sentence on 27 October 2008, pursuant to s 11(1) of the Crimes (Appeal and Review) Act, the appellant filed an appeal against conviction to the District Court of New South Wales on that day upon the grounds that he was not guilty of the offence.

68 The powers of this court under this Act were recently considered in Director of Public Prosecutions v Emanuel [2009] NSWCA 42. There was some difference of opinion regarding the power to remit a matter to the Local Court upon a finding that there was no jurisdiction in the Local Court to hear the matter. The Chief Justice, with whom Tobias JA agreed, proceeded upon the concession that there was no power of remitter and that the District Court was required to determine the appeal in accordance with the terms of the relevant provisions in the Crimes (Appeal and Review) Act. Basten JA wrote that the question of remitter was unresolved. His Honour pointed to the terms of s 20 of the Act and noted that the consequence of an order in those terms would be that the matter could be resurrected in the Local Court, and that there might therefore be implied a power to remit.

69 There was in fact no jurisdiction for the Magistrate to proceed in that matter in light of a pending appeal from a decision not to grant legal aid. In the present matter, the Magistrate was in my opinion acting within jurisdiction.

70 Section 18(1) of the Act provides: An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by s 19.

71 The nature of these appeals was considered in Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39. Mason P, with whom Kirby and Hoeben JJ agreed, wrote of the distinction to be drawn in respect of appeals conducted as hearings de novo, as these appeals were prior to the enactment of the Crimes (Appeal and Review) Act, and referred to the Attorney General's speech upon the second reading of the Bill for the Act. At [12] his Honour referred to the explanation of the policy behind the repeal of the existing legislation and the concern for the time taken in the District Court for the resolution of these matters that were re-contested upon evidence called from the witnesses who had already been examined and cross-examined in the Local Court. The decision was to limit such appeals to a re-hearing on the depositions in the Local Court. The Act also provides for the presentation of fresh evidence with leave of the court in an appropriate case.

72 Section 20(1) of the Act provides: The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under s 12 (1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court.

73 An appeal by leave under s 12(1) of the Act is in respect of convictions in the absence of an accused. In this Act there is no express power to the District Court to remit proceedings to the Local Court other than pursuant to this provision or pursuant to s 16A in respect of an appeal from a decision in the Local Court not to grant annulment of a conviction entered in the accused's absence. The District Court has no supervisory jurisdiction over the proceedings in the Local Court such as that reposed in the Supreme Court: Director of Public Prosecutions v Emanuel ibid.

74 Section 28(2) of the Crimes (Appeal and Review) Act provides: In determining an appeal the District Court may exercise any function that the original Local Court could have exercised in the original Local Court proceedings.

75 Counsel submitted that upon the proper construction of this provision the powers of the District Court are significantly more circumscribed compared to those when hearing appeals brought pursuant to the repealed legislation. The use of the word "function" was said to narrow the scope of the powers available to the court. Counsel did not provide the court with any authority in support of this proposition.

76 The following definitions appear in s 3 of the Act: Exercise a function includes perform a duty. Function includes a power, authority or duty.

77 In my respectful view of counsel's submission, if I have correctly understood it, it is misconceived. It does not bring to account these definitions.

78 The legislation was introduced to facilitate resolution of these appeals without the time consuming and costly exercise of repeating what went before in the Local Court. The powers of the court with regard to the conduct of appeals were therefore re-aligned with that goal. The amendments included the manner in which the appeals were to be determined and provided language to be used when the decision was made: Director of Public Prosecutions v Emanuel ibid.

79 However the powers available to the court, as expressed in s 28(2) of the Act, have not been limited to remove the power of the court to allow amendment to the Court Attendance Notice if an application were to be made upon the hearing of the appeal upon the realisation that there was an omission of an ingredient of the offence. The Magistrate was armed with the power to amend if an application had been made, and in my opinion the same power resides in this court.

80 Section 20 of the Criminal Procedure Act found within Pt 2 of the Act dealing with indictments and other matters provides: (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

81 Section 21 of the Act provides: (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately or any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) ... (4) An order under this section may be made either before trial or at any stage during the trial. (5) ... (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

82 These provisions apply to a court attendance notice: Knaggs v The Director of Public Prosecutions & Anor.

83 I would allow the Crown leave to amend the charge to include the essential ingredients omitted. There is in my assessment no injustice or denial of procedural fairness to the appellant in granting this application. The matter was not raised at any point in these proceedings until now. There was no change in the direction of the prosecution case apart from the need to ensure precision with the wording of the charge, and the Magistrate reached his decision upon the application of the relevant provision turning his mind to all of the essential ingredients of the offence.

Was There Variance Between The Charge Preferred And The Evidence

84 As noted earlier, the charge in the court attendance notice did not include an essential ingredient to be drawn from s 530(1)(b) of the Crimes Act. The particulars of the misconduct that were charged were as appear in the court attendance notice.

85 There were images of the ferret showing it in various states in a video recording in which the ferret is seen to be injected, and in five still images showing the animal in a poorer state, with what appears to be blood, a deflected rear limb, and matted fur.

86 It is apparent from the passage of his Honour's reasons on p 62 line 31 quoted above that he found the appellant to have committed this offence with reference to the condition of the animal exhibited in the still images, as well as the images on the video film in which the animal was injected, and proceeded upon the basis that there were acts of the appellant and those engaged jointly with him in addition to the injection of the animal which satisfied what was required by the provision creating the offence.

87 This is also indicated at p 62 line 18 where his Honour said: From what I have observed from the photographs and the video recording, it is quite clear that whilst one cannot be satisfied, beyond reasonable doubt, as to what exactly they were doing with them, the court can infer from the circumstances, as it saw in the video, and the pictures, that there was an intention of inflicting severe pain, that the injection of a ferret, in the circumstances, where it is held down and injected by a person or persons very drunk, that the court - it is an inescapable conclusion to this court that it was a serious act of cruelty, and true it is again, I accept Mr Herring's submission that there is no proof that it is killed, but the position of its leg, and the way it is just sitting motionless between the beer bottles, again makes the court come to the inescapable conclusion that the white ferret was seriously injured, and was undergoing prolonged suffering.

88 It is apparent that his Honour has relied upon the injuries he saw, or perceived more correctly on the images, in addition to the injection of the animal particularised in the charge, and it appears that he relied upon conduct causing those injuries as part of the actus for the offence in addition to the conduct in which the animal was injected. Whether that is what his Honour intended, or whether his remarks are an expression of his finding that the evidence of the injuries established some part of the factual matrix from which to infer the commission of the offence by means of the injection, it remains that there is scope for argument that there is some measure of variance between the charge as preferred and the evidence adduced.

89 Section 40 of the Criminal Procedure Act provides for adjournments generally, and thereby the means to allow a party faced with a charge defective in substance or form, or with variance between the evidence adduced and the offence charged, the opportunity to deal with the embarrassment arising thereby.

90 There is in my assessment no embarrassment to the appellant from the manner in which these proceedings unfolded and the variance, if any, between the particulars charged and the evidence led. Throughout the hearing the prosecutor and lawyers acting for each of the accused made extensive submissions regarding challenges to the admissibility and reliability of the evidence adduced by the prosecution. The focus was upon the rejection of the evidence, whereupon the prosecution would then have failed.

91 On the other hand, I see nothing improper in the court bringing to account evidence of injuries to the animal in addition to what was inflicted when it was injected as evidence of circumstances from which one may infer that the injection to the animal was a serious act of cruelty with the intention of inflicting severe pain, which resulted in the death, serious injury or prolonged suffering of the animal.

92 The appellant did not give evidence in the Local Court. Notwithstanding the observations made regarding the conduct of the prosecution in the Local Court, and although it is my opinion that there has been no injustice or procedural unfairness in the manner in which the proceedings were conducted, it remains that the Crown must identify the specific ingredients upon which it relies to establish the offence and the evidence relevant to those ingredients.

93 The prosecution case is circumstantial and the court will be required to consider the inferences to be drawn, and whether they are valid, and whether they lead to the conclusion of guilt of the appellant beyond reasonable doubt. The assessment of hypotheses consistent with innocence will be required of the court. The decision of the appellant whether to give or not give evidence will be a consideration when assessing whether those hypotheses are rational or reasonable, if the facts to which he might speak are peculiarly within his knowledge: Azzopardi v The Queen (2001) 205 CLR 50 at [64]; Weissensteiner v The Queen (1993) 178 CLR 217 at [227]. It is reasonable to assume that he will need advice upon these questions before giving his instructions, and he should be given the opportunity to take that advice. Indeed it is reasonable to assume that he would desire the opportunity to take advice from his representatives after I have given my decision at this point of this appeal.

94 Accordingly, at this point there are two steps to be taken.

95 First the Crown is to consider whether it wishes to make an application to amend the court attendance notice to include the omitted ingredients in the description of the offence. My inclination is to allow that course, subject to any further arguments that the appellant might wish to advance.

96 Assuming that I grant that application, the appellant may then wish to take advice and decide upon the course to be taken in the further conduct of the appeal.

97 I will allow the parties the time to consider their respective positions.

28/07/2009 - Formatting correction - Paragraph(s) [41] [42] [53] and [88]

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