Supreme Court of the ACT|2015-10-28|Before: Refshauge ACJ

Preston v Carnall [2015] ACTSC 325 (28 October 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The sealed order of the Magistrates Court in respect of charge CC 2013/40640 be varied by deleting the order for payment of professional costs and the order for payment of the levy under the Victims of Crime (Financial Assistance) Act 1983 (ACT).
The appeal be otherwise dismissed.
The Good Behaviour Order made on 14 February 2014 end on 28 August 2016.

APPEAL - Jurisdiction, practice and procedure - appeal from the Magistrates Court - causing an animal unnecessary pain - taking a native animal - appeal by way of rehearing - seeking to adduce further evidence

CRIMINAL LAW - Judgment and punishment - sentencing - seeking the opinion of a lay informant - Barbaro v The Queen

APPEAL - Jurisdiction, practice and procedure - appeal against conviction - guilty plea - seeking withdrawal of guilty plea - that a plea is not entered personally is an irregularity and not a nullity - charge bargaining process

Animal Welfare Act 1992 (ACT), ss7, 8(2)(a), 8(2)(b), 81, Pt 7

Crimes (Sentencing) Act 2005 (ACT), ss 17, 34(1)(e) and (f)

Nature Conservation Act 1980 (ACT), ss 17, 34, 45, 45(1), 45(1)(b), 46, 46(1)(b), 130, 130(2), Dictionary

Nature Conservation Declaration of Protected and Exempt Flora and Fauna 2002 (No 2) (ACT) , Sch 2

Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372

Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (1989) 73 LGRA 218

Licciardello v McPherson [2012] ACTSC 31

Mayen v Ryan (No 2) (2014) 282 FLR 435

Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132

Peverill v Crampton [2010] ACTSC 79

R v Tamawiwy (No 3) [2015] ACTSC 303

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1

ACT Magistrates Court, Practice Direction No 1 of 2009, 'Case Management Hearings and Committal Hearings'

1. This matter has generated more paper than it would appear to deserve. No doubt it is of importance to the parties but a sense of proportion is required, especially as the amount of paper will by no means necessarily improve the consideration of the matter nor strengthen the case for or against one of the parties.

2. Nevertheless, the appellant, Nora Preston, has appealed against her conviction, on 14 February 2014, in the Magistrates Court, of two offences contrary to s 8(2)(a) of the Animal Welfare Act 1992 (ACT) and of two offences contrary to s 45(1) of the Nature Conservation Act 1980 (ACT).

3. This Court has jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT). An appeal against a conviction for a summary offence may be brought to this Court under s 208(1)(b) of that Act and Div 3.10.2 regulates the conduct of the appeal.

4. An appeal under this provision is a rehearing on the evidence before the Magistrate with any other evidence that this Court permits to be adduced: Lukatela v Birch [2008] ACTSC 99; (2008) 164 ACTR 24 at 28-9; [17]- [24].

5. I summarised the position in Peverill v Crampton [2010] ACTSC 79 at [24] where I said:

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:

The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

6. Further, under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the execution or the enforcement of the order or decision that is the subject of the appeal. That may, in appropriate cases, need to be considered in the disposition of the appeal.

7. The Statement of Facts read, without objection, to the Magistrates Court when Ms Preston was convicted shows as follows.

8. A feature in The Canberra Times about Ms Preston described her activities relating to native animals. As a result, a Licensing Officer of the Territory and Municipal Services Directorate checked the Directorate's Licensing Database and determined that Ms Preston was not licensed to take or keep native animals.

9. She had been licensed on behalf of an unincorporated group, known as the Wildlife Carers Group, to keep injured native animals for the purposes of rehabilitation from August 2003 to June 2008. In July 2008, Ms Preston applied for a renewal of the licence and was requested to provide some further information. She did not do so and, as a result, the licence was not reissued.

10. Ms Preston and the Manager of the Licensing Unit in the Directorate had various communications over the following months about that issue and, on each occasion, Ms Preston was reminded that she was not currently licensed to keep or care for sick or injured native wildlife.

11. On 16 March 2010, Ms Preston was advised by letter from the Chief Executive Officer of the Directorate that, without a licence, she was unable, legally, to care for native wildlife and that keeping and caring for native wildlife for any period in excess of 48 hours would be unlawful.

12. As a result of inquiries, conservation officers of the Department attended at the residence of Ms Preston's neighbour, Mr Robert Brice, and, with his permission, entered his backyard and, from there, viewed Ms Preston's backyard in which they saw a number of cages. They took some photographs of birds in the cages in the backyard.

13. They returned eight days later and, again with Mr Brice's permission, entered his backyard, inspected from there Ms Preston's backyard and took some further photographs of birds in the cages in the backyard.

14. On 10 August 2012, two conservation officers went to Ms Preston's residence and attempted to contact her by ringing the doorbell but it was not answered. They were unable to get around the back as it was fenced off and a gate in the fence was padlocked.

15. As a result, they went next door to the residence of another neighbour, Mr Michael McCormack, who gave the officers consent to enter his backyard. The backyard fence between his and Ms Preston's backyard was in a very poor condition with palings missing and large spaces where no fence existed at all.

16. The officers used the gaps in the fence to access Ms Preston's backyard. The two officers, accompanied by a senior investigator and five staff members of the RSPCA ACT, namely two wildlife officers, two compliance inspectors and a veterinary surgeon, entered Ms Preston's backyard. Three officers of the Australian Federal Police and a Domestic Animal Services Ranger also attended but remained in the neighbour's backyard.

17. The RSPCA staff members conducted preliminary checks of four cages and found a pigeon, an Eastern Rosella and a Maned Wood Duck in the cages they inspected. The access to the cages was obstructed by weed and grass that had grown through the cage doors, which the officers considered meant they had not been opened for a long time. The grass and weeds had to be pulled away to gain access to the door of the cages.

18. The Eastern Rosella and the Maned Wood Duck birds were visually inspected by the veterinary surgeon and then taken and placed in mobile cages for transport. The cages in which they had been located were in unsanitary conditions in both the water and feeding areas.

19. The cage in which the Eastern Rosella was found was uncleaned, covered in seed husk and faeces and with little water which was itself polluted with faeces and dirt.

20. The Maned Wood Duck was dirty with matted feathers and walking around in faeces. There was little water in the cage. The duck had an injured leg and was having difficulty in walking in the cage. There was clearly not enough water in the cage with which the duck could wash itself and its legs and feet were covered with dried faeces.

21. The pigeon, which is not a native animal under the Native Conservation Act and which was found to be in good health, was left behind, though the cage did not appear to have been cleaned for a long time.

22. While this activity proceeded, Ms Preston entered her backyard and said that she had a licence to keep the birds but, despite a request, declined to produce it. She also declined to answer questions as to how the birds came to be in her possession.

23. She was handed a letter inviting her to participate in an interview with conservation inspectors, but, although opening and apparently reading the letter, did not accept the invitation. She was later telephoned and offered the opportunity to take part in an interview but made no appointment to do so.

24. The birds were examined by an RSPCA veterinary surgeon, Dr Jacqueline Reed who reported:

In my opinion as a Veterinary Surgeon the condition of each cage was unsatisfactory, with regard to hygiene and disease control and in some cases protection from the elements ... All birds under human care need access to clean fresh water to drink and bath in. The condition of the water in these cages did not meet the appropriate standard.

25. ACT Government veterinarian, Dr Will Andrew, provided a report in which he stated:

Pain and antibiotic animal medicines should not be given to any animal unless seen by a qualified vet as the correct medication is administered in accordance with the prevailing condition of the animal. Its strengths and quantities will also vary from animal to animal. The issuing of unsupervised medications to animals by unqualified and untrained persons presents a significant health and welfare risk to the animal which can result in ineffective pain relief and continued suffering of the animal or overmedication causing death or contribute to problems such as antibiotic resistance which also has implications for human medicine.

26. With her original application for a licence, Ms Preston had listed eight veterinary practices that she and the Wildlife Carers Group would use. Each practice was contacted and all advised that neither Ms Preston nor the Group had been a customer at the practice during the prior twelve months nor had any been presented with animals for care in that time by either Ms Preston or by identified members of the Group.

27. On, 2 April 2013, the respondent, Rodney Carnall, Investigator of the Territory and Municipal Services Directorate, swore nineteen informations for offences alleged to have been committed by Ms Preston, being seven alleged offences under s 8(2)(a) of the Animal Welfare Act, three alleged offences under s 8(2)(b) of the Animal Welfare Act, seven alleged offences under s 45(1)(b) of the Nature Conservation Act and two alleged offences under s 46(1)(b) of the Nature Conservation Act.

28. Summonses to Ms Preston were issued on each information. Between 4 and 28 April 2013, eleven attempts were made to serve Ms Preston with the summonses but each attempt was unsuccessful.

29. Accordingly, on 27 May 2013, a warrant was issued for Ms Preston's arrest and, on 6 June 2013, she was arrested. She appeared in the Magistrates Court later that day and was granted bail to appear on 27 June 2013 where she appeared represented by a lawyer. She entered pleas of not guilty to each charge and the proceedings were then adjourned. They were subsequently further adjourned. Ms Preston was represented on each subsequent occasion by the same lawyer and at the Case Management Hearing (see ACT Magistrates Court, Practice Direction No 1 of 2009, 'Case Management Hearings and Committal Hearings", since revoked on 16 December 2014), held on 26 September 2013, the matters were listed for hearing on 14 February 2014. It appears Ms Preston was present in court on 26 September 2013.

30. On 14 February 2014, Ms Preston was represented by a different lawyer. The lawyer told the Court that she had only received instructions the previous evening. She said that she understood that the proceedings were listed for Case Management Hearing and not for hearing of the charges themselves.

31. While there was, apparently, a notation somewhere in the Court to that effect - which the learned Magistrate noted - her Honour had also presided over the Case Management Hearing on 26 September 2013 and recalled that Ms Preston was present and represented by her former lawyer and that the proceedings had then clearly been listed for hearing.

32. Ms Preston's solicitor referred to a letter received by Ms Preston from the Director of Public Prosecutions, which referred to the proceedings on 14 February 2014 as being for Case Management Hearing.

33. Ms Preston's solicitor sought an adjournment of the hearing, but it was refused.

34. While that letter clearly gave erroneous information, it appears that there had been other communications, apparently by email, in which the correct position was made clear. Ms Preston was also aware that witnesses were coming from Melbourne for the hearing as she had inquired as to which witnesses were attending.

35. The learned Magistrate made it clear that an adjournment to another day was not appropriate, but gave Ms Preston's lawyer a short adjournment to discuss the matter with the prosecution and obtain instructions.

36. After about half an hour, the lawyers returned and reported to the learned Magistrate that the opportunity had permitted them to have "some meaningful discussions" and some further time would likely permit them to "come to a reasonable resolution". Her Honour agreed and the proceedings were further stood down for those further discussions.

37. Finally, it was reported to the learned Magistrate that Ms Preston would plead guilty to four of the charges and the remaining charges would be dismissed; it was said that there were fourteen remaining charges but there were, in fact, fifteen and all fifteen were then dismissed.

38. Ms Preston pleaded guilty to two offences in respect of the Eastern Rosella and two offences in respect of the Maned Wood Duck.

39. In the case of each bird, an offence was laid under s 8(2)(a) of the Animal Welfare Act, which provides:

A person in charge of an animal commits an offence if the person -

(a) fails to provide it with appropriate, and adequate, food, water, shelter or exercise; or

(b) fails to take reasonable steps (including, if appropriate, seeking veterinary treatment) to alleviate any pain suffered by the animal; or

(c) abandons the animal; or

(d) neglects the animal in a way that causes it pain; or

(e) kills the animal in a way that causes it unnecessary pain.

Maximum penalty: 100 penalty units, imprisonment for 1 year or both.

40. The other offence for each bird was laid under s 45(1) of the Nature Conservation Act, which provides:

45 Taking native animals

(1) A person shall not, except in accordance with a licence, take a native animal, whether dead or alive.

Maximum penalty:

(a) If the animal has special protection status - 100 penalty units, imprisonment for 1 year or both; or

(b) In any other case - 50 penalty units, imprisonment for 6 months or both.

(2) This section does not apply to the taking of an animal that is suffering from a disease, illness or injury for the purpose of treating it or giving it to a conservation officer.

41. The charges were identified and the prosecutor announced the number of each charge to which a plea of guilty was to be entered and that Ms Preston "is pleading guilty". He also announced that no evidence was to be offered on the remaining charges and that he wished her Honour to dismiss them, which she did.

42. At the end of this recitation, the transcript records her Honour speaking to Ms Preston's lawyer as follows:

HER HONOUR: Yes. That's as you have discussed with your client?

[MS PRESTON'S LAWYER]: Yes, that's right.

HER HONOUR: So pleas have been entered to those charges, then: 40640, 40641, 40649 and 40652. You need to sort out the statement of facts in relation to that?

[MS PRESTON'S LAWYER]: I don't think that will take long. I've only got two or three changes, I can probably even do it here at the bar table if your Honour minded [sic].

43. A Statement of Facts, which was redacted as foreshadowed, was then read onto the record by the Informant. Photographs were also tendered. They showed the sad state of the Eastern Rosella and the Maned Wood Duck.

44. Mr Carnall also gave some further evidence that the Eastern Rosella and the Maned Wood Duck were euthanased on the recommendation of Dr Reed because of the pain they were suffering. Mr Carnall was not cross-examined.

45. One prior matter was noted on Ms Preston's criminal record. It was an offence of contravening a Protection Order in December 1995 for which a non-conviction order was imposed, with a recognizance to be of good behaviour for twelve months.

46. A copy of the article in The Canberra Times referred to above (at [8]), was tendered. It attested to the voluntary work Ms Preston did as President of the Wildlife Carers Group, a voluntary organisation. Copies of the submissions of the Animal Justice Party, of which Ms Preston is a member, had made to the Chief Minister opposing the Government's cull of kangaroos, were also handed up.

47. It was submitted that the injuries to the birds had not been caused by Ms Preston and that she had been proposing to take them to a veterinary surgeon, though the veterinary surgeon was not identified.

48. Ms Preston's solicitor referred to the disputes that Ms Preston had been having with the government. She expressly said that "[w]e don't submit that she had a licence", but noted that "no-one takes any action against her in relation to that issue from 2008 to 2013". She referred to Ms Preston's "understanding that the veterinary surgeons had been told that they could not treat her animals".

49. Submissions were made to the learned Magistrate which seemed to traverse the plea. For example, it was submitted that Ms Preston only had the birds for 24 hours. Her Honour expressly asked on two occasions whether Ms Preston was traversing the plea of guilty and was told that she was not.

50. A number of matters were put to the learned Magistrate in the submissions of Ms Preston's lawyer, about which her Honour expressed concern, for they were not the subject of sworn evidence, either from cross-examination of the informant, who did give evidence, or from Ms Preston, who did not. Indeed, the prosecutor offered to recall the informant for that purpose, but the offer was not taken up. The prosecutor also challenged some evidence adduced in the submissions of Ms Preston's lawyer.

51. Finally, the submissions on behalf of Ms Preston were that she was a passionate carer of wildlife, that she had been left alone by the directorate for five years, even though they knew she had no licence, that Ms Preston did intend to seek veterinary help for the animals, but her fear that they would be destroyed made her hesitant to go to the authorities. Her lawyer further submitted that Ms Preston had received the birds in the condition that they were in when seized by the RSPCA.

52. Submissions were made that a prison sentence was an inappropriate penalty and that Ms Preston, as a pensioner, would have difficulty in paying a fine.

53. The prosecutor made no further submissions on sentence.

54. The learned Magistrate expressed some unfavourable views of Ms Preston in her remarks on sentence.

55. An odd situation then developed. The learned Magistrate sought submissions from the prosecutor. The prosecutor, however, said that he had agreed that, unless an application was made by Ms Preston for a non-conviction bond, he would make no further submissions on sentence.

56. The prosecutor had provided the facts involved, had provided the criminal record (such as it was) of Ms Preston and had made proper objection to matters of fact asserted by Ms Preston's lawyer that were either not proved in evidence or were challenged.

57. No objection was taken to the submissions made by Ms Preston's lawyer about the appropriate disposition - a term of imprisonment was not within range and her impecuniosity made a substantial fine inappropriate. The prosecutor's silence amounted to an indication that those submissions were not contested.

58. Neither lawyer referred to comparable cases. That is not surprising, as there may be no such cases; that seems likely.

59. The prosecutor did indicate that, had a submission been made by Ms Preston's lawyer that a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) was an appropriate penalty, that would have been opposed.

60. It seems to me that the prosecutor discharged his duties in accordance with the approach approved in Barbaro v The Queen [2014] HCA 2; (2014) 88 ALJR 372, which, ironically, was handed down the same day as this sentence was imposed. Indeed, what her Honour later said shows that the assistance she sought would have breached these duties.

61. The learned Sentencing Magistrate then proceeded to attack the conduct of Ms Preston in the proceedings. There is no doubt that Ms Preston had been somewhat disorganised, but the comments of the learned Sentencing Magistrate came very close to suggesting that her Honour was biased against Ms Preston or, at the very least, that her Honour was taking into account matters which, had they resulted in a more severe penalty, would have breached s 34(1)(e) and (f) of the Crimes (Sentencing) Act. As, however, there is, in this appeal, no challenge to the sentence, I do not need to consider that further.

62. Most extraordinarily, the learned Sentencing Magistrate sought from the prosecution witnesses, that is the conservation officers, "these people who have the responsibility for caring for the wildlife ... what they think is an appropriate penalty". I am not aware of any entitlement to such information; indeed, that would seem to be a fundamental breach of sentencing law as explained in Barbaro v The Queen where even the opinion of a prosecutor was held to be irrelevant to a sentencing consideration. The opinion of a lay informant must be even more irrelevant.

63. Her Honour then attacked Ms Preston again for her conduct of the proceedings and for wasting the Court's time. It is also clear that Ms Preston has no idea how courts operate and, like many litigants, thinks that a barrage of communication is a good way to proceed; none of her communications were relevant to the sentence to be imposed. It has long been held that a sentence may not be increased because the sentencer perceives that a defendant has wasted time in the conduct of his or her defence. See, for example, R v Gray [1977] VicRp 27; [1977] VR 225 at 231; Yam (1991) 55 A Crim R 116 at 117. This approach was approved by the High Court in Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at 667; [34].

64. Her Honour then pointed out that Ms Preston was neither charged with an offence of nor was responsible for causing the injuries to the birds and that the offences were towards the lower end of seriousness of the offences. Her Honour accepted that Ms Preston was passionate about caring for native animals but pointed out that she had to act lawfully and that she knew she was not complying with the relevant legal requirements.

65. Her Honour took into account Ms Preston's plea of guilty, that she was a pensioner and that a term of imprisonment was inappropriate.

66. Her Honour then proceeded to convict Ms Preston of each offence and also made a Good Behaviour Order for twelve months on each of the offences. As required, she ordered that Ms Preston pay court costs of $71 with three months to pay but exempted her, under s 69 of the Victims of Crimes (Financial Assistance) Act 1983 (ACT), from payment of the victim levy for criminal injuries compensation otherwise payable under s 68 of that Act and exempted her, under s 26 of the Victims of Crimes Act 1994 (ACT), from payment of the victims of crime levy payable under s 24 of that Act.

67. Despite this, the written Form of Order in the court documents transmitted to this Court on the appeal shows that Ms Preston was ordered to pay professional costs of $30 and the criminal injuries compensation levy of $50 as well as the court costs. This is not in accordance with the pronounced order and I will address that when making orders disposing of the appeal.

68. Ms Preston did not appeal immediately. An appeal is required to be instituted within twenty-eight days after sentence or such further time as the Supreme Court may allow: s 209 of the Magistrates Court Act.

69. Ms Preston did apply for an extension of time and was initially represented by a lawyer on the hearing of that application, but he withdrew. Ms Preston was granted an extension of time within which to appeal on 15 April 2014.

70. She prepared a number of Notices of Appeal. They were prepared by Ms Preston herself and were not properly pleaded. They contained a mixture of evidence, submissions and grounds.

71. The grounds of the appeal, however, were set out, in what I understand to be the last of the various amended Notices of Appeal, as follows:

Justice;

Miscarriage of Justice;

Failed to properly exercise her discretion;

Conflict of Interest;

Contempt;

Breach of my Human Rights;

Professional Misconduct;

Breach and abuse of Professional duty towards me;

Prejudice;

Bias;

Procedural unfairness;

Discrimination;

No evidence;

Case compromised;

Phishing;

Corruption;

No case to answer;

Perjury.

72. Ms Preston also sought to adduce further evidence.

73. It became clear that Ms Preston was seeking to appeal against conviction, notwithstanding that she had pleaded guilty. As I pointed out in Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1 at 9; [38], after reviewing the authorities, a person can, notwithstanding the entry of a plea of guilty, nevertheless appeal against conviction under certain conditions.

74. I summarised those conditions in Licciardello v McPherson [2012] ACTSC 31 at [7]- [8], as follows:

[7] The courts have followed what Avory J said in R v Forde [1923] 2 KB 400 at 403, where his Lordship said:

A plea of Guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.

[8] In R v Coffey [2003] VSCA 155; (2003) 6 VR 543 at 545-6, the Victorian Court of Appeal added to that:

Those alternatives have not, in this State, been regarded as exhaustive. The Court of Appeal retains a duty to intervene if there has been a miscarriage of justice. ... There is a strong public interest in restricting appeals against a conviction following a deliberate plea of guilty.

75. I shall first address the issue of the further evidence.

76. Under certain conditions, an appellant may be permitted on the appeal to adduce further evidence under s 214 of the Magistrates Court Act. I have set out the procedure, conditions and consequences in Grooms v Toohey (2012) 7 ACTLR 1 at 9-10; [37] and 12; [52]. I do not need to set them out but apply them in these proceedings.

77. Ms Preston sought to adduce a number of matters. I shall refer to them and deal with each.

78. Ms Preston submitted that she in fact did hold a licence that would be a complete answer to the charges under the Nature Conservation Act.

79. Ms Preston sought to have her most recent licence and other documents admitted, which she said showed that she was, in fact, licensed. She referred to condition 28 of the licence which required certain details of members and animals received to be maintained and submitted each year to the Directorate. In error, the condition referred to the Wildlife Foundation, not to the group of which Ms Preston was president and for whom the licence was issued, namely the Wildlife Carers Group.

80. Ms Preston submitted that this error meant that the licence continued to have effect, notwithstanding its express expiry on 30 June 2008.

81. Ms Preston could not explain how the claimed error extended the term of a licence where it expressly expired well before these offences were committed. I am not aware of any provision in the relevant legislation or other principle of law which would mean that the error had that effect and Ms Preston pointed to none. She could not explain how the validity of the licence had been extended. I rejected the tender as nothing in it suggested, much less proved, that Ms Preston was licensed at the relevant time, namely 10 August 2012.

82. Ms Preston submitted that correspondence she had with the RSPCA should be admitted for, she submitted, its officers had trespassed on her property on 10 August 2012.

83. Ms Preston obviously had some dispute with the RSPCA. She submitted that the organisation had tried to prevent her obtaining a licence to keep native animals and that it had told its members that they could not be members of her group. In summary, she submitted that there was bias on the part of the RSPCA.

84. There did seem to be some uncertainty about the involvement of the RSPCA in these proceedings. Mr Carnall, the informant, however, described himself as "of the Australian Capital Territory Government" and so the proceedings were not brought by the RSPCA. If, as was suggested by counsel for the respondent at one stage, some conservation officers of the Directorate were also investigators for the RSPCA, it did not seem to me to be relevant to the appeal and Ms Preston could not explain any relevance.

85. Whether that applies to Mr Carnall or not, he brought the proceedings in his own name as informant and said only that he was acting as an officer of the ACT Government.

86. In essence, Ms Preston appeared to be submitting that the investigation of the offences had been motivated by the RSPCA, which was antagonistic towards her and with whom she had a serious dispute. The difficulty with this submission is that the motivation for the investigation will very rarely be relevant if the investigation shows that an offence or offences have been committed.

87. There may be circumstances where the laying of charges is an abuse of process in the light of prior conduct; whether that is so or not, I do not need to determine.

88. In this case, the offences were not only reasonably laid, but Ms Preston pleaded guilty to them at a time when she must have been aware of the history that the documents sought to be admitted showed.

89. I rejected the tender. They could not undermine the conviction.

90. Ms Preston sought to tender documents that showed her experience as a wildlife carer and that she was fully trained.

91. These documents were not relevant to the conduct of the investigation or the conditions actually found by the investigators on the day.

92. The learned sentencing Magistrate accepted Ms Preston's passion for caring for wildlife and did not suggest that her experience or training was not credit worthy.

93. Indeed, her Honour had the article from The Canberra Times which referred to that.

94. The documents, however, were not relevant to the conviction appeal and it was not in the interests of justice that they should be tendered. The tender was rejected.

(d) Documents suggesting that the police had a conflict of interest

95. Apparently, and, given the history of this matter, it is not entirely unsurprising, Ms Preston has had some problems with her neighbours which have, it appears, been reported to the police.

96. She stated that she had reported some incidents to the police but, instead of taking them seriously, the police instead accused her of being mentally ill. She denied that and said that a psychiatrist had opined that she was not mentally ill.

97. There was no evidence to suggest that any of the police involved in those matters were also involved in the investigation of these charges against Ms Preston. The most that she submitted was that all the relevant police, to whom she reported the incident to and who were involved in the investigation of these offences, come from the Tuggeranong Police Station. She said matters got "very personal".

98. There was no conflict of interest shown and, even if there were, that was hardly relevant to these charges.

99. The documents were not relevant and I rejected the tender.

(e) Emails between the various investigators, police, RSPCA officers and others

100. Ms Preston sought to tender copies of emails between various people involved in investigating the offences. She submitted that they showed that "they were trying to set [her] up".

101. The emails seemed merely to set out some procedural and organisational issues. They seemed to be discussing what the appropriate charge might be and whether the evidence would support some of the charges. The emails suggested that some charges could not be made out.

102. Ms Preston was also concerned that some of the emails had been sent to her neighbour. That is perhaps unsurprising given his involvement in the investigation.

103. None of this material was relevant to the charges as decided and the tender was rejected.

104. Schedule 2 of the Nature Conservation Declaration of Protected and Exempt Flora and Fauna 2002 (No 2) (ACT) sets out the animals that are exempt for the purpose of the Act. While that did not affect the proceedings, I was prepared to look at it. Although the Eastern Rosella is an exempt bird, that is not relevant to the prosecutions, as the terms of the charges set out above (at [39]-[40]) show.

105. The Declaration was made on 9 December 2002 under s 17 of the Nature Conservation Act, as it stood in and prior to 2002, but it is not clear to me what effect it had. It seems only to apply to matters under s 34 of the Act, which is not relevant to this prosecution.

106. The tender was not opposed and I received the list but I cannot see how it might suggest that Ms Preston was not guilty of any of the offences charged. Neither offence was stated not to apply to an exempt animal.

107. As it was part of the Declaration, a disallowable instrument, I did not consider I needed to mark it as an exhibit.

108. Ms Preston submitted that the Report of Veterinary Surgeon, Dr Jacqueline Reed, showed that the birds taken had been euthanased. This included other birds also taken by Mr Carnall and the other officers not the subject of the charges to which Ms Preston pleaded guilty.

109. Ms Preston was obviously distressed that injured wildlife should be killed, but that is not a matter that impacts on the offences with which she was charged or whether she was guilty of them. She submitted that these actions "give you an insight on what sort of person they're dealing with".

110. It does not seem to me that it does anything of the kind. There may be very valid reasons for euthanasing the birds. It was not part of my function on the appeal to determine that. Even if, contrary to my inclinations and contrary to any evidence sought to be tendered, it showed that the officers were uncaring or inhumane, that had no bearing on the convictions recorded against Ms Preston.

112. Ms Preston sought to have the conviction set aside on various grounds. The list is set out above (at [71]). They were not so clearly expressed or explained in her submissions either written or oral. I shall do my best to understand and address them.

113. As is clear from what I have said above (at [74]), Ms Preston needed to satisfy me that the convictions should be set aside and she be permitted to withdraw the pleas of guilty. The test for this has been set out authoritatively in R v Gomez (2007) 1 ACTLR 145 at 152-3; [38], when the Court said:

In our opinion, the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn or rejected by the trial judge. In Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157, Dawson J said:

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud. (References omitted.)

114. The material before the learned Magistrate satisfies me that, on the facts as given, Ms Preston was, in law, guilty of the offences.

115. Thus, to succeed in the appeal, she had to satisfy me that she did not understand the nature of the charges or that she did not intend to admit she was guilty.

116. The first matter raised was that Ms Preston did not enter the pleas herself. In Mayen v Ryan (No 2) (2014) 282 FLR 435 at 450; [107], I held that a defendant should enter a plea personally himself or herself, if present in court, and not through a solicitor. I based my conclusion on the terms of the legislation and on authority.

117. That decision, however, was delivered after Ms Preston had been sentenced and so the learned Magistrate cannot be criticised for following a practice that apparently prevailed in the Magistrates Court prior to that decision.

118. This case shows the very practical value of what I held was the required practice. Ms Preston suggested that she had not, in fact, pleaded guilty but that her lawyer had bullied her. She implied that, had she been required to answer the charges personally, she would not have pleaded guilty.

119. There could then have been an argument before the learned Magistrate about her pleas, were Ms Preston to have had to enter the pleas herself in accordance with Mayen v Ryan (No 2), and had she pleaded inconsistently with the apparent agreement.

120. I held, however, in Mayen v Ryan (No 2), that the failure to have the defendant personally enter the plea to be an irregularity and not to constitute a nullity. Thus, the failure, despite preventing the issue of whether Ms Preston was actually pleading guilty not becoming evident, that did not mean that the proceedings must necessarily be set aside.

121. Ms Preston, however, acknowledged that she heard her lawyer enter the pleas for her and it was in her presence. Her conduct before me satisfies me that she would not have sat by if her lawyer was entering a plea contrary to instructions. Ms Preston also acknowledged that she had given instructions to plead guilty, though she said that this was the result of bullying. She said, "The only way they [her lawyers] could get a case is by bullying me into pleading guilty when I wasn't guilty". She admitted, however, that she provided written instructions by signing instructions that her solicitor had written but again, said she was bullied into doing so.

122. It seems to me, subject to the issue of bullying, that the failure to have Ms Preston personally enter the pleas of guilty was an irregularity that did not entitle Ms Preston to have the convictions set aside. She acknowledged that she agreed to plead guilty and signed written instructions to her lawyer to that effect. There is no basis for holding that the irregularity led to a miscarriage of justice.

123. As to the bullying, the circumstances need to be made clear. Ms Preston was present in court on 26 September 2013 when the matter was dealt with at a Case Management Hearing. The proceedings were then listed for hearing on 14 February 2014. Ms Preston did not deny that she knew that.

124. I accept that the Director of Public Prosecutions did err as to the nature of the proceedings on 14 February 2014 when writing to Ms Preston on 31 January 2014 providing her personally with a further copy of the Brief of Evidence. The covering letter suggested, however, that it was in the interests of Ms Preston to obtain further legal advice.

125. Ms Preston did not get legal assistance until 13 February 2014, the day before the hearing. No explanation was given as to why she delayed. Whether the matter was for hearing or Case Management Hearing, her lawyer would have needed plenty of time to become familiar with the proceedings. A Case Management Hearing is, from the Practice Direction, not a mere mention but an occasion when the real issues in the proceedings are to be explored and the witnesses required to be brought by the prosecution identified. This cannot be done without a full appreciation of the brief, especially in a case such as this where the brief, initially for 19 charges with numerous witnesses, would have been quite substantial.

126. In any event, the prosecutor pointed out, without challenge, that emails with Ms Preston made it clear that she was fully aware that the matter was listed for hearing. She had written that she would be seeking an adjournment and was told that this would be opposed and that witnesses were being brought from Melbourne for the hearing.

127. Ms Preston did have a lawyer until at least 26 September 2013. There was no explanation as to why he was no longer acting for her or when his retainer ended. It can be surmised that it was sometime prior to 31 January 2014, as that was when the Brief from the prosecution was sent to Ms Preston personally.

128. I do not accept, however, that this was when Ms Preston first had access to the Brief. It is clear from the Practice Direction that it would have been served prior to the Case Management Hearing. I draw that inference because the Case Management Hearing would not have proceeded unless that had happened and the date for a hearing would not have been set without that. That the Brief was subsequently sent directly to Ms Preston is also consistent with what the prosecutor said, namely that he had spoken to Ms Preston's former solicitor who told him "that he was having difficulty in obtaining instructions from her" and that Ms Preston had rung the prosecutor and told him that her former lawyer was no longer acting.

129. The learned Magistrate was unwilling to grant an adjournment. That is not unreasonable, given the circumstances. The offences were alleged to have been committed on 10 August 2012. There had been a number of adjournments and a Case Management Hearing at which Ms Preston was present and legally represented. Witnesses had been brought from Melbourne.

130. The circumstances where refusal of an adjournment may vitiate proceedings has been considered in Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at 552-5; [38]- [48]. The circumstances that justified appellate intervention there were quite different from the situation here. There was no denial of natural justice involved here as Ms Preston had, at all times, the opportunity to present her case properly.

131. She had plenty of notice of the hearing and had had legal representation which she knew was important for her.

132. There was specific prejudice to the prosecution in such an adjournment and it would have had an adverse effect on listings and other litigants.

133. It is unsurprising, then, that Ms Preston felt pressured, but that was of her own making. She had failed to ensure she was adequately represented and that her legal representative was fully briefed and instructed.

134. It is also relevant to note that the proceedings were adjourned for nearly two hours to give Ms Preston's lawyer time to consider the Brief and to receive instructions. This was not a case where the hearing proceeded immediately.

135. Ms Preston had, during this period, legal advice from her lawyer of choice. She did not complain of the nature of the advice available to her nor that she was unable to understand it.

136. What is perhaps particularly significant is that there were clearly discussions between Ms Preston's lawyer and the prosecutor, for fifteen charges did not proceed and there were significant amendments to the Statement of Facts on which the prosecution relied.

137. As a result, Ms Preston gained a very substantial benefit as she no longer faced nineteen charges but only four. There is no doubt that charge bargaining is a perfectly proper way to manage prosecutions. See, for example, R v Brown (1989) 17 NSWLR 472 at 480.

138. The result of such charge bargaining is an agreement which is binding. Certainly, the prosecution will be held to its bargain and departure is likely to be an abuse of process and probably unconscionable: Trainor (1991) 56 A Crim R 102.

139. It is quite another thing to hold a defendant to his or her bargain, but not to do so may create prejudice for the prosecution especially where, as here, the discontinuance of other charges cannot be reinstituted. The offences under the Nature Conservation Act were offences which had to be commenced within one year from the alleged date of commission: s 192(2) of the Legislation Act 2001 (ACT).

140. The result of a charge bargaining process cannot permit a miscarriage of justice to be perpetrated, but the result of the process and its consequences for both prosecution and defence can, in my view, be a relevant consideration in determining whether a miscarriage of justice has occurred.

141. As Dawson J, pointed out in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 157, a plea of guilty does not necessarily require a defendant to believe in his or her guilt.

142. What must be shown before she can withdraw her guilty plea is that Ms Preston did not understand the nature of the charge or did not intend to admit she was guilty of it.

143. I am not satisfied of either of those matters. Indeed, Ms Preston made it perfectly clear in her submissions that she did understand the nature of the charges. She also admitted that she did intend to plead guilty, though she says it was under duress.

144. Her explanation of bullying which constituted the duress was simply that, had she not accepted the charge bargain, her lawyer would have sought leave to withdraw.

145. Given Ms Preston's failure to instruct lawyers in a timely fashion and give them proper instructions, that is unsurprising. To that extent, she brought the consequences upon herself.

146. That this meant she was under pressure is not in doubt. I do not regard the pressure she described as bullying. It was no doubt emotional for her. As the Court said in R v Gomez at 154; [47]:

It is frequently the case that decisions as to how to plead are made in emotional circumstances and when the accused may feel that he or she is under pressure. However, there was no rush, no excessively forceful advice from counsel, no misunderstanding as to the nature of the charge, no inability of the respondent to comprehend and consider his options.

147. The Court here had put no time limit on the discussions between counsel and Ms Preston and permitted them to proceed. There was no submission by Ms Preston, other than of the consequences of a failure to accept the bargain, that there was "forceful advice".

148. In order to assess whether the bargain did really leave her with a genuine defence to the charges which might amount to miscarriage of justice, I need to consider what she says is her answer to the charges.

149. Much of Ms Preston's challenges were assertions without evidence or a legal basis to support them. A number were irrelevant. A number depended on a wrong and misleading quoting of transcript.

150. The question to be answered was whether there was a miscarriage of justice. That, however, is not to be measured simply by Ms Preston asserting frequently and emphatically, as she did that she was not guilty and had broken no law.

151. I shall endeavour to address the issues that she raised that may go to the question to be answered such as to determine whether she should be permitted to withdraw her plea.

152. Ms Preston submitted that the evidence showed that the birds had adequate shelter and food. For example, she refers to Mr Carnall taking a "seed bell" from one of the cages. This is not clear, but the section of the Animal Welfare Act, however, also refers to water and exercise. Ms Preston did address some of those issues. Indeed, she seemed to admit that she was not providing them with exercise because "if they're going to be getting surgery, they can't have the exercise". She also admitted that the water was dirty, justifying that on the basis that the birds "splashed around in it and got it dirty". Her task, however, was to ensure that the birds did have enough clean water. Her statement here is consistent with the Statement of Facts before the learned Magistrate. Later she admitted she was removing the food and water, apparently in anticipation of surgery.

153. Thus, while I accept that Ms Preston may have been able to convince the Court at a hearing that the charges were not made out, there were, on her own evidence, breaches of the law on which the Court was entitled to rely. It was open on the evidence to have convicted her.

154. Ms Preston submitted that the conservation officers had no right to enter her property. She relied on what she said was ss 6A and 7 of the Animal Welfare Act which, she said, prohibited conservation officers trespassing on her property. I could find nothing in those sections that provided that. Indeed, there was no s 6A or 6(a) in that Act. I could see that, under s 81 in Pt 7 of that Act, there were powers of entry and search but they were limited and would probably not have justified the entry in this case.

Preston v Carnall [2015] ACTSC 325

At a glance

Court

Decision date

Before

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Catchwords

Judgment (244 paragraphs)

Preston v Carnall [2015] ACTSC 325 (28 October 2015)

Parties

Legislation Cited (16)

Cases Cited (8)