HRNG ADELAIDE, 27 January 1993 #DATE 17:2:1993 Counsel for appellant: Mr L Tremaine Solicitors for appellant: Murray and Cudmore Counsel for respondent: Mr E N McGee Solicitors for respondent: McGee and Associates

JUDGE1 COX J Appeal against the dismissal of a charge under the Prevention of Cruelty to Animals Act. 2. The defendant respondent was charged on a complaint in the Adelaide Magistrates Court with having on 27 April 1992 at Adelaide ill-treated a female German Shepherd dog in that being the owner of such animal he failed to take reasonable steps to alleviate any pain suffered by such animal by reason of illness: contrary to s.13(1) of the Prevention of Cruelty to Animals Act 1985. He pleaded not guilty and the complainant Society called its witnesses. The defendant submitted that there was no case for him to answer. The learned Magistrate upheld that submission and dismissed the complaint. The Society appeals against that dismissal. 3. Section 13 of the Prevention of Cruelty to Animals Act begins in the following way - (1) A person who ill treats an animal shall be guilty of an offence. Penalty: Ten thousand dollars or imprisonment for twelve months. (2) Without limiting the generality of subsection (1), a person ill treats an animal if that person - (a) deliberately or unreasonably causes the animal unnecessary pain; (b) being the owner of the animal - (i) fails to provide it with appropriate, and adequate, food, water, shelter or exercise; (ii) fails to take reasonable steps to alleviate any pain suffered by the animal (whether by reason of age, illness or

injury); (iii) abandons the animal; or (iv) neglects the animal so as to cause it pain;... " 4. Then follow paragraphs (c) to (l) each of which specifies some particular way of treating or dealing with an animal. In this case a charge under s.13 was laid, as it had to be, under sub-s.(1) and the particulars selected were those specified in par.(b)(ii) of sub-s.(2). The paragraph refers to the "owner" of an animal. By s.3 of the Act, unless the contrary intention appears, the word "owner" includes, in relation to an animal, "a person who has the custody and control of the animal". 5. The case for the prosecution was that the defendant was employed as a dog handler by a firm called P.D. Security which had its headquarters at Nairne and provided guard dogs for the security of its customers' premises. One such customer was Palm World of North Terrace, Adelaide. Palm World had two dogs guarding its premises last April. They were kennelled or caged at the back of the premises during the day but had the run of the premises outside business hours. It seems to have been the dog handler's job to release them in the evening and then call again to put them back into their cages before the start of business the following morning. When the manager of Palm World went to his office on the morning of 27 April 1992 he was told that one of the dogs was sick in its kennel. He saw that it was convulsing and foaming at the mouth. He rang P.D. Security and reported the matter. He said that he thought that the dog had eaten snail bait and was very ill. He asked that someone be sent as soon as possible. The telephonist told him that she would get onto the matter straight away. This was just after 9 a.m. She immediately telephoned the defendant at his house at North Brighton. She explained the problem and asked him to go to Palm World as soon as possible. He said "O.K." However, at 10.20 a.m. the Palm World manager rang the telephonist again to say that the dog handler had not arrived and to express his concern. The telephonist rang the defendant again. He asked what he should do with the dog and he was told to bring it up to Nairne. Somehow the R.S.P.C.A. was notified and two inspectors went to the premises at Palm World about 11.40 a.m. They saw the defendant leading a male German Shepherd into the back of his van. He said that he had just been paged and that he had not been rung at 9 o'clock. The inspectors saw the other German Shepherd in its kennel. It was lying on its side, apparently convulsing, with its legs thrashing and paddling and its eyes glazed. It appeared to have vomited. The defendant had arrived at Palm World just before the inspectors. When he was interviewed later he said that he was contacted about the dog about 9.30, 9.45, and that he got to Palm World about 11.35. His delay in getting there was caused by his having to have a shower and get ready and then wait for his sister and take her to a medical appointment. He elaborated on that. He said that the dogs had been put into the kennel about 6.25 on the morning of April 27 and they were then behaving normally. He denied that he had been told by the telephonist that Palm World thought that one of the dogs had taken snail bait and was lying in the cage frothing at the mouth - simply that the dog was sick at Palm World. 6. This was the prosecution case. It emerged from the evidence of the Palm World manager, the telephonist, and an R.S.P.C.A. inspector. The complainant also called a veterinary surgeon to whom the sick dog was taken on April 27. He confirmed that when he saw it about midday it was obviously very distressed and in quite a degree of pain. The most likely cause was snail bait poisoning. The learned Magistrate found on two grounds that there was no case to answer. The defendant did not learn of the dog's condition before, at the earliest, 9.10 a.m. By that time he had gone off duty and was at home asleep. He was not the owner of the dog and could not be said then to have the custody and control of it : "At the time when the defendant was alleged to have ill-treated the dog, the animal concerned was in premises of his employer's customer and the defendant was in his residence or in his vehicle travelling to his employer's customer. In my view, the defendant would not be in control of the dog until such time as he was in the premises where the dog was situated, because until that time he had no control of what the dog did or did not do. For instance, he could not lock the dog in its kennel, lock it

in its cage or, for that matter, tell the dog to deter an intruder from the premises. As I have said, there is evidence

that the defendant was not the actual owner of the dog, but his employer company was. Therefore my conclusion is that the

defendant, at the time when he is alleged to have ill-treated the animal, was not in control of the dog because there was no complaint about the defendant's actions once he, in fact, was in the dog's presence. As to who had the custody of the dog, I am not sure and I am rather glad I don't have to decide that. I doubt, in any event, it was the defendant. It might have been the customer, it might have been owner, but to my mind, it doesn't matter because the defendant was not, in my view, the actual owner, nor, in my view, was he in control of the dog." 7. Secondly, the prosecution had failed to prove that the dog was suffering pain by reason of illness. He relied upon the following passage from the veterinary surgeon's cross-examination

"Q.  There were no apparent injuries?
A.  No.
Q.  I think you have said your conclusion and probably based in
part

on the history and the symptoms that were there, was that it had ingested a bait of some kind. A. Yes. Q. It didn't appear to you that it was suffering an illness in the sense of an invasion of its body, viral invasion of the body? A. No. Q. Your professional assessment would be that the dog was poisoned? A. Yes. Q. That, in medical parlance, would not be described as an illness but rather a poisoning? A. Poisoning, yes." 8. While one could say that the dog was ill, it was not suffering from an illness. So this was a second ground for finding that no case had been made out against the defendant. His Honour also dealt with the effect of an evidentiary provision that I shall mention later. 9. The matter of the word "illness" can be disposed of quite briefly. The paragraph speaks of "any pain suffered by the animal (whether by reason of age, illness or injury)." As the learned Magistrate appreciated, it is a question what Parliament intended by its use of the word "illness", not what the veterinary surgeon or anyone else might understand it to mean. The evidence was that the dog was ill, or sick, and I think one could say correctly that the cause of the dog's distress was "illness", one of the meanings of which is "bad or unhealthy condition of the body...; the condition of being ill...; disease, ailment, sickness" (SOED. See also Macquarie Dictionary - "1. a state of bad health; sickness. 2. an attack of sickness.") I see no reason to limit the word's meaning to the effects of a virus rather than a poison. If it matters the section speaks merely of "illness", not "an illness", but I do not think it does matter. It is pretty clear that the draftsman's purpose in adding the words in parentheses was to be comprehensive - to make it plain that the paragraph is referring to pain arising from any cause. Pain caused to a dog by snail poisoning is as much in need of alleviation as pain caused by anything else. There seems to be every good reason for giving the word "illness" a liberal rather than a restricted meaning. In my opinion, the learned Magistrate was in error in holding that there was no evidence that the pain suffered by this dog was suffered by reason of illness. 10. That brings me to the issue whether there was evidence before the Magistrate that the defendant was a person who had the custody and control of the dog at the relevant time. Strictly speaking that question did not call for any decision at the close of the prosecution case because the complainant made it clear that it was relying upon s.42 of the Act which provides that an allegation in a complaint that at a specified time a person was the owner of a specified animal shall, in the absence of proof to the contrary, be proof of the matter so alleged. It has not been suggested that s.42 did not apply in this case. The effect of the evidentiary provision was to throw onto the defendant the burden of proving on the balance of probabilities that he did not have the custody and control of the dog as alleged. Considine v. Lemmer (1971) SASR 39; Crawford Earthmovers Pty Ltd v. Fitzsimmons (1972) 4 SASR 116. It necessarily followed that there was evidence, or rather the equivalent of evidence, before the Court upon which that issue could be found against the defendant. Whether it should be so found would depend upon a qualitative decision - appraising all the evidence on the subject in the light of s.42 - that the Magistrate could not appropriately make at that stage. It was therefore inconsistent with the purpose of s.42 for the Magistrate to hear the defendant's no case submission without first putting him to an election. It is no answer to say that there was some evidence on the subject from the prosecution witnesses. This was not one of those cases in which the prosecution could be taken to have chosen to rely upon its witnesses rather than the evidentiary section, and Mr McGee, for the defendant, did not suggest as much. If the defendant wanted a ruling from the Magistrate on the ownership question at the close of the prosecution case, he should have indicated first that he would not be going into evidence. Evidently he did not do this - I presume he was not required to - and the result was seriously prejudicial to the Society. In my opinion, the proceedings miscarried. 11. However, there is more to this case than a matter of procedure. It is desirable to say something about the meaning of the expression "custody and control" in the statutory reference to the "owner" of an animal. 12. The learned Magistrate treated the expression "custody and control" as commensurate with immediate physical possession or power. I think this was too narrow a view. Both "custody" and "control" are words of variable meaning. (Cf. Dixon J. on the word "control" - "an unfortunate word of ... wide and ambiguous import...":Bank of New South Wales v. Commonwealth [1948] HCA 7; (1948) 76 CLR 1, 385.) Precisely what meaning should be given to either word in an Act of Parliament will depend upon subject matter and context and purpose. The different shades of meaning that one or other of the words has in the law relating to family relations and arrest and discovery of documents respectively testify to that. 13. One of the dictionary meanings of "custody" is "charge, care, guardianship" (SOED). It does not necessarily connote actual physical possession or continuous physical presence. The word "control" is more elusive. Its meanings include "the fact of controlling, or of checking and directing action; domination, command, sway" (SOED); "the act or power of controlling" (Macquarie Dictionary). I think the notion of having the care of an animal, with the power of controlling it, though not necessarily immediately, underlies the composite expression "custody and control" in the Prevention of Cruelty to Animals Act. 14. The purpose of sub-s.(1) s.13 of the Act is to create a potential criminal liability in any person who ill-treats an animal. Most of the forms of ill-treatment that are specified in sub-s.(2) require a positive act on the part of the person responsible, so there was no need for the draftsman to spell out any particular legal or physical relationship between the animal and the person concerned. Paragraph (b) of sub-s.(2), however, is different. It specifies certain culpable omissions or acts of neglect and implies that there will or at least may be a person or persons in any given situation who had the duty of doing something about it. In the Prevention of Cruelty to Animals Act 1936, the passive offence of neglecting to exercise a dog could be committed by "the owner or person in charge", with a complicated procedure (s.12) by which the owner was deemed to be liable in the first instance but could escape conviction if he brought the person actually in charge of the animal to the court and proved that the latter was to blame and that he was not. There was another provision (s.15) which extended the meaning of the word "owner" for the purpose of three sections of the Act to include a great number of stipulated persons - hirer, borrower, manager, and so on. The draftsman of the 1985 Act has evidently sought to simplify the legislation in this respect by casting the criminal responsibility for culpable inaction upon any person who answers the general description of owner or a person having the custody and control of the animal. I would conclude that the effective operation of the two Acts in this respect was intended to be much the same. 15. The need for a reasonably liberal interpretation of "custody and control" may readily be illustrated. Take the case of an absentee farm owner who leaves everything, including his dog, in the charge of a resident manager. The manager quite reasonably goes off to the market leaving the farm unattended and the dog in good health. During the day he learns that the dog has been seriously injured and is in pain and needs treatment. It would not be difficult for him to get back to the farm or, at the least, to arrange by telephone for the dog to be treated, but he does nothing. On a physical proximity test of "custody and control" the manager has no possible responsibility under the Act - he ensures that by staying away - and neither has anyone else. There is nothing very unusual about this example. It could be repeated in the case of a pound-keeper, for instance, or a horse trainer or stock agistor or boarding kennel proprietor. It is noteworthy that the postulated proximity restriction cannot possibly, without more, assist the owner of the animal. His only answer to a prosecution under s.13(2)(b)(ii) (apart from any possible argument along knowledge lines) is confined to the issue whether he failed to take reasonable steps to relieve the animal's pain. I see no difficulty in an interpretation of "custody and control" which would produce that same result for a person who is for practical purposes in charge of an animal although not necessarily on the spot when it falls sick. If he was not aware of the animal's condition and could not reasonably have been expected to foresee it, or if there was nothing that he could reasonably do about it, he will not be convicted, but if he had the general custody and control of the animal he may need to do more than show that he happened to be absent at the relevant time. 16. I do not attempt an exhaustive definition of the expression "custody and control" in s.3. It is enough to say, regardless of s.42, that there was evidence before the Magistrate upon which he could find that the defendant had custody and control of this particular dog. If the state of mind or particular actions or responses of the defendant or the precise terms of his employment are relevant to that question - whether, for instance, the defendant only had custody and control of the dog when he was actually on duty or otherwise assuming responsibility - there is the evidence that the telephonist explained the problem to him and asked him to go to the dog as soon as possible and he said "O.K.". 17. Whether the dog's owner has been identified, or whether some other person also had custody and control of it, is not to the point. However, as I have explained, s.42 relieved the learned Magistrate from any need to consider these questions before the defendant had made the usual election. 18. For the reasons I have given the appeal must be allowed. The order of dismissal and consequent orders are set aside and the matter remitted to the learned Magistrate so that the hearing of the complaint may continue.