RSPCA NSW (Inspector Milton) v Elliott

The facts 4The relevant facts were that the greyhounds the subject of the charges were not owned by Ms Elliott. Ten were owned by her friend, Ms Julie Ryan and five by a Mrs Janet Flan. They were housed in a kennel located at a property at Riverstone, owned by a Mr Ronald Ansteed. During the relevant period Ms Elliott had volunteered to provide assistance to Ms Ryan, by cleaning the kennels and feeding the dogs.

The Prevention of Cruelty to Animals Act 1979 5The charges under s 5(3)(c) of the Act related to an alleged failure to provide certain of the dogs with veterinary treatment and the charges under s 8(1) to an alleged failure to provide the dogs with proper and sufficient food. The sections provide: "5 Cruelty to animals (1) A person shall not commit an act of cruelty upon an animal. (2) A person in charge of an animal shall not authorise the commission of an act of cruelty upon the animal. (3) A person in charge of an animal shall not fail at any time: (a) to exercise reasonable care, control or supervision of an animal to prevent the commission of an act of cruelty upon the animal, (b) where pain is being inflicted upon the animal, to take such reasonable steps as are necessary to alleviate the pain, or (c) where it is necessary for the animal to be provided with veterinary treatment, whether or not over a period of time, to provide it with that treatment. Maximum penalty: 250 penalty units in the case of a corporation and 50 penalty units or imprisonment for 6 months, or both, in the case of an individual. 8 Animals to be provided with food, drink or shelter (1) A person in charge of an animal shall not fail to provide the animal with food, drink or shelter, or any of them, which, in each case, is proper and sufficient and which it is reasonably practicable in the circumstances for the person to provide. Maximum penalty: 250 penalty units in the case of a corporation and 50 penalty units or imprisonment for 6 months, or both, in the case of an individual. (2) In any proceedings for an offence against subsection (1), evidence that an animal was not provided with clean water during a period of 24 hours is evidence that the person accused of the offence has failed to provide the animal with proper and sufficient drink during that period. (3) In any proceedings for an offence against subsection (1), evidence that an animal was not provided with food or shelter during a period of 24 hours (or, in the case of an animal of a class prescribed by the regulations, during the period prescribed for that class of animal) is evidence that the person accused of the offence has failed to provide the animal with proper and sufficient food or shelter during that period. (4) Before commencing proceedings for an offence against subsection (1) in respect of a stock animal depastured on rateable land (within the meaning of the Rural Lands Protection Act 1998), the prosecution must obtain advice from a livestock health and pest authority and the Department about the state of the animal (if practicable) and the appropriate care for it. (5) The prosecution may, with leave of the court granted in such circumstances as the court considers just, commence or continue proceedings for an offence against subsection (1), despite having failed to comply with subsection (4)." 6The objects of the Act are specified in s 3: "3 Objects of Act The objects of this Act are: (a) to prevent cruelty to animals, and (b) to promote the welfare of animals by requiring a person in charge of an animal: (i) to provide care for the animal, and (ii) to treat the animal in a humane manner, and (iii) to ensure the welfare of the animal." 7The term 'a person in charge' is defined in s 4: "person in charge, in relation to an animal, includes: (a) the owner of the animal, (b) a person who has the animal in the person's possession or custody, or under the person's care, control or supervision, (c) where a person referred to in paragraph (b) is bound to comply with the directions, in respect of the animal, of any servant or agent of the owner of the animal, that servant or agent, as the case may be, and (d) where the animal, being a stock animal, is confined in a sale-yard: (i) the owner of the sale-yard, or (ii) where the sale-yard is the subject of a lease, the lessee of the sale-yard."

8This case was concerned with a prosecution brought under Regulation 5(1)(b) of the Prevention of Cruelty to Animals (General) Regulation 1996, which dealt with 'a person in charge of a large stock animal' authorising the carriage or conveyance of the animal in a cage or vehicle. Dr Song was a veterinary officer of the Commonwealth employed under the Public Service Act 1999 (Cth) and an authorised officer under s 20 of the Export Control Act 1982 (Cth), who had issued an export permit in respect of the consignment of live goats and had signed a Certificate of Health to accompany the animals. 9The offence with which Dr Song was charged had been found proven, because, amongst other things it was held that given his inspection of the goats as a veterinarian, he had the goats under his supervision and was therefore a person in charge of them, within paragraph (b) of the statutory definition. 10Greg James J concluded that the appeal before him raised a question of law: "48 The question of law may be stated this way. If, on the facts as agreed or found, the magistrate could not have found the plaintiff's conduct to have fallen within the proper construction of the offence as expressed in the Regulation, then the magistrate, by finding that the Regulation did apply, will have erred in law. This is a question of law (Australian Gas Light Co. v. Valuer General (1940) 40 SR(NSW) 126; Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321) to which s.104(1)(a) and (c) of the Justices Act 1902 applies." 11His Honour observed at [50]: "Much of the submissions made to me both in writing and orally treated the concepts of "in charge" and "authorise the carriage or conveyance" as though the finding of one might overlap with or supply the full content of the other. The Regulation is not, in my view, to be so construed. If that were the position it would make liable any person who authorised the carriage or conveyance of the goats in such a way, and there would be no need to refer to "person in charge". Even having regard to what the magistrate referred to as the purpose of the legislation, it is apparent to me that the legislature restricted the ambit of the Regulation to those persons to whom the concept of person in charge was applicable, having regard, in particular, to the definition being an inclusive definition which specifically amplified the ordinary meaning of the term "person in charge" by including within that concept "(b) a person who has the animal in the person's possession or custody, or under the person's care, control or supervision;". The magistrate rightly, in my view, concluded that both elements needed to be satisfied and therefore turned to consider what functions Dr. Song had performed in order to see whether the statutory definition applied to him." 12His Honour turned to consider the position of Dr Song, finally observing at [58] - [60]: "58 Dr. Song was both an authorised officer of the AQIS and a veterinarian. He gave the certificate of health and issued the export permit. It is common ground that it is on those acts he did in those capacities that the prosecutor relied for the contention that he could be held to be a "person in charge" of the goats and a person who "authorise(d) the carriage or conveyance" of the goats. 59 It is apparent that all categories of persons included in the statutory definition even as extended are persons who had a general authority or command over the immediate disposition of the animals in question. 60 It was not suggested that Dr. Song owned the goats. It could not be said that he was in possession of the goats or had them under his direct physical control (see DPP v. Brooks [1974] AC 862; Regina v. He Kaw Teh (1985) 157 CLR 523; Regina v. Dib (1991) 52 A. Crim. R. 64; Moors v. Burke (1919) 26 CLR 265). But the magistrate held that by reason of those functions Dr. Song performed, the goats were under his supervision and thus his actions brought him within the definition." 13His Honour then dealt with Dr Song's functions, observing: "64 I accept the plaintiff's submission that the magistrate had found that the goats were under Dr. Song's supervision in that he had concluded that Dr. Song had inspected them and had exercised a degree of oversight over them notwithstanding that these were only effected to the extent necessary for his functions under the Commonwealth law and that the only connection the plaintiff had to the goats was that he was empowered to exercise a limited particular Governmental function in relation to what was being done with the goats by others, namely, their export. His function was merely to review, inspect and grant certificates. It was not to the point that the certificates might have enabled another to undertake a course of action with which the plaintiff was not otherwise involved. The granting of the certificates might have avoided such action as those owning the goats might have been minded to undertake being unlawful, but it had no greater role than that. In that sense, Dr. Song's relationship with the goats involved no such notion of general responsibility or authority over the goats as is reflected in such language as the Regulation employed when defining a person in charge. Shortly, I consider it was not open to the magistrate to conclude that the goats were under Dr. Song's supervision by dint of his mere exercise of the limited Governmental function with which he was entrusted." 14Greg James J then turned to the statutory definition, observing: "Essential features of a "person in charge" 65 In my view, before a person might be held to be in charge for the purpose of the Act and the Regulation it is necessary for that person to have some responsibility or authority of an immediate kind for the physical control of an animal rather than merely having some legal responsibility to undertake a limited function in connection with the animal even if that function involves a visual looking over of the animal. 66 The concept of person in charge, in my view, in the Regulation particularly refers to a person's ability and authority take positive steps to effect the immediate physical circumstances of the animal so that persons' authority might be employed to ensure care, treatment in a humane manner and the welfare of the animal. The s.4 definition particularly refers to a physical relationship in which the person is able to exercise some degree of ultimate responsibility or authority over an animal in its physical environment. I do not understand that the definition, by reference to the concept of supervision or by the use of the word "has" includes some concept of passive permitting or detached observation as seems to have been included in the concept of interested oversight as amounting to supervision as referred to by the magistrate. In my view, in order for the person to be able to be held to be a person in charge of the goats, it is not enough that the person perform since ancillary legal function in relation to the goats but it is necessary that the person, whether on their own or in combination with others, have that degree of authority and responsibility as would enable the person to engage in the physical disposition of the goats. The functions Dr. Song performed were simply not within that concept." 15In the result Greg James J concluded that Dr Song was not a person in charge of the goats and upheld the appeal.

The judgment under appeal 16Bartley LCM gave his reserved judgment on 9 September 2011. His Honour identified the following matters as requiring his consideration: "1 Condition of the fifteen dogs 2 Roles and actions of Ms Elliott 3 Mrs Flan's dogs 4 Whether Ms Elliott was a person in charge of the dogs 5 The decision of the Supreme Court in Song v Coddington 6 Authority of Song v Coddington 7 Conclusions" 17He concluded as to the condition of the dogs that: "As to each of the sequences alleging a failure to provide proper and sufficient food, I find that such element of the charge has been proved beyond reasonable doubt in respect of the periods of time alleged in the sequences. As to each of the sequences alleging failure to provide veterinary treatment, I find that such element of the charge has been proved beyond reasonable doubt in respect of the periods alleged in the sequences." 18As to the role and actions of Ms Elliott, after referring to a statement made by Constable Milton, in which she recounted a conversation which she had had with Ms Elliott, Ms Ryan and a Ms Fitzgerald, as to who owned and looked after the dogs, his Honour observed: "The counsel for the prosecutor submitted that the statements made by Ms Ryan in the presence of Ms Elliott should be attributed to Ms Elliott and be taken as adopted by her. She was present and did not contradict them. That submission was not challenged. I accept the submission. In fact Ms Ryan's statement that Ms Elliott "cleans and feeds" was a subject of much emphasis by counsel for the accused." 19His Honour found in relation to Mrs Flan's dogs that: "It is evident from all of the foregoing evidence outlined in this judgment that the position of the five dogs owned by Mrs Flan was no different to the position of the dogs owned by Ms Ryan. Whether owned by Ms Ryan or Mrs Flan, they were subject to the same, possession, custody, care, control and supervision." 20Who had possession, custody, care, control, and supervision of the dogs, was not, however, specified. 21Under the heading 'Whether Ms Elliott was a person in charge of the dogs' his Honour found: "Ms Elliott did not own any of the dogs. Ms Elliott was "just a volunteer that cleans and feeds here." She "helped" Ms Ryan by cleaning the kennels and feeding the dogs: Exhibit 1. I find beyond reasonable doubt that Ms Elliott so cleaned and fed both during the periods alleged in all sequences and also for a long time beforehand. The Act should not be strictly construed as it penalises conduct in order to achieve a beneficial purpose. The appropriate approach to interpretation of the Act is that of the High Court of Australia in Waugh v Kippen [1986] 160CLR 156 at 164-165: RTA of NSW v Baldock [2007] NSWCCA 35[23]-[24]. Adopting and adapting, mutatis mutandis, Waugh v Kippen [1986] 160CLR 156 at 164.8, "it should be remembered that, as the Act is a remedial measure passed for the protection of animals, its penal provisions should not be construed so strictly as to deprive animals of the protection which parliament intended that they should have." One of the meanings of "care" in the Macquarie Dictionary (3rd edition) is "to look after; make provision for,". That is what Ms Elliott did by cleaning the dogs' kennels and feeding the dogs. She cared for them. Such a conclusion interprets the legislation so as to promote the Act's beneficial and remedial purpose, as required by s 33 of the Interpretation Act and as enunciated by the High Court in Waugh v Kippen. However, such a conclusion appears to a be inconsistent with the decision of Justice Greg James of the New South Wales Supreme Court in Song v Coddington [2003] NSWSC 1196, which will now be considered." 22His Honour then turned to consider the decision in Song, referring to Greg James J's observations at [59], [65] and [66] earlier quoted. 23His Honour then turned to consider the dictionary definition of the word 'disposition', concluding that Greg James J had used the word to mean 'power to dispose of a thing: control'. His Honour observed: "The definitions of "disposition" in the Macquarie Dictionary (3rd edition) include both, "physical inclination or tendency" and "power to dispose of a thing; control". It would appear, albeit arguably incorrect for the reasons advanced in this judgment, from paras 59, 65 and 66 read as a whole that his Honour had in mind the second of those two meanings of "disposition". His Honour's restrictive interpretation is expressed to apply to "all categories" in the extended statutory definition of "person in charge". That is so even though an issue of "care" did not arise in Song v Coddington. There are ways in which his Honour's reasonings and ultimate construction of "person in charge" might be distinguished, or confined possibly by having regard to inconsistent words and phrases in those three paragraphs. However, overall, his Honour's meaning is evident from the progressing of subheadings in his Honours judgment. "The Ambit of "persons in charge" is followed, after three subheadings, by "Essential Features of a 'person in charge'". Under the latter subheadings are paras 65 and 66. His Honour's meaning, whether correct or incorrect, is also evident from paras 59, 65 and 66, fairly read as a whole. Thus the ability to engage in the physical disposition of an animal would appear to be stipulated by his Honour as an "essential feature of a "person in charge". However Ms Elliott did not have that ability. With the greatest of respect, in my opinion, the interpretation of "person in charge" in Song v Coddington unduly restricts and perhaps totally negates the "under the persons' care" alternative within definition of (b)." 24His Honour then turned to consider the 'Authority of Song'. He concluded that: "Even if those general components of Justice Greg James' construction of definition (b) of "person in charge" that apply to the "under the person's care" alternative are correctly to be characterised as obiter dicta, such reasoning is still "entitled to great weight and respect" as persuasive authority: Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 218D. In my respectful opinion, either the decision in Song v Coddington in its full breadth is per incurian or its reasoning is "much wider than was necessary for the decision: (Scruttons v Midland Silicones [1962] 1 All ER1-12G). However, if the reasoning in Song v Coddington can be so characterised only the Supreme Court or a higher appellant Court can depart from it on those bases. The Local Court remains obliged to follow the decision of a Supreme Court: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177. Consequently, I conclude that I am constrained to follow and apply the decision of the Supreme Court of NSW in Song v Coddington."

25By s 56 of the Crimes (Appeal and Review) Act, this appeal is confined to 'a ground that involves a question of law alone'. Neither questions of fact nor mixed questions of fact and law may be determined under s 59 of the Crimes (Appeal and Review) Act . Ms Elliott's case was that the summons raised no question of law alone and should be dismissed (see David Morse (Office of State Revenue) v Chan [2010] NSWSC 1290). 26The submission may not be accepted. The summons could not doubt have been better drafted, indicating as it did that the appeal was against the whole of the decision below. As discussed in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390, what error of law alone is raised on appeal ought to be clearly identified in the pleadings. The summons also identified that the error of law pursued to be the conclusion that the first defendant was not a person in charge of the greyhounds the subject of the charges. 27The summons raised no issue, however, as to the facts found below, but rather pursued the question of the proper construction of the defined term 'person in charge' used in s 5 and s 8 of the Prevention of Cruelty to Animals Act, and its application to those findings. An error of law is said to have resulted from his Honour's misunderstanding of the decision in Song, as to the proper construction of that term. 28That does not involve a mixed question of fact or law. Whether a statutory provision, properly construed, applies to facts found is a question of law, as Mason J discussed in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at [10]: "10. Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J. in Hayes v. Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47, at p 51 , where his Honour quoted the comment of Lord Parker of Waddington in Farmer v. Cotton's Trustees (1915) AC 922, at p 932 , which was adopted by Latham C.J. in Commissioner of Taxation v. Miller [1946] HCA 23; (1946) 73 CLR 93, at p 97 , that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J. then said (1956) 96 CLR, at p 51 : ". . . this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred to by Lord Parker . . . are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." (at p7)"

Error established 29It is evident that his Honour erred in his understanding of what was decided in Song. There Greg James J was concerned with an appeal in respect of a particular offence under the Regulations. Like the case here in question in relation to Ms Elliott, the appeal raised the proper construction of paragraph (b) of the statutory definition of 'person in charge' and whether the acts relied on brought Dr Song within the definition. 30Contrary to the view which his Honour reached, Greg James J did not construe the words used in paragraph (b) of the definition, 'a person who has the animal in the person's possession or custody, or under the person's care, control or supervision' as meaning a person who has the 'ability to engage in the physical disposition of the animal'. 31His Honour erred in looking to the dictionary definition of the word 'disposition' to give meaning to what was decided in Song. Even in concluding that Greg James J had in mind a particular dictionary meaning of that word, when concluding that a person in charge had to have the ability to engage in the physical disposition of an animal, his Honour overlooked an important aspect of the definition to which he had referred, namely the element of 'control', despite having observed the word was defined to include both 'physical inclination or tendency and the 'power to dispose of a thing; control'. In so approaching what was decided in Song, his Honour fell into obvious error, albeit, to be fair to his Honour, his approach had regard to the parties' debate before him as to the meaning of the word 'disposition'. 32No doubt his Honour was bound by Greg James J's approach to the construction of paragraph (b) of the definition. What was not required to be undertaken, was a further process akin to statutory construction in relation to Greg James J's use of the word 'disposition'. Even if it were, what could not be overlooked was that care must be taken in the use made of the dictionary definition of words, when a statutory phrase is being interpreted. As discussed in Residual Assco Group v Spalvins [2000] HCA 33; (2000) 202 CLR 629: "[27] ... In construing a statutory provision, we should always keep in mind what Learned Hand J said in Cabell v Markham [148 F 2d 737 (1945) at 739]: "Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." 33A careful reading of Greg James J's observations reveals that this was not something which had been overlooked, consistently with the approach to statutory construction discussed by McHugh J in Marshall v Director-General Department of Transport [2001] HCA 37; (2001) 205 CLR 603, where his Honour said: "The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation." 34As Greg James J discussed, paragraph (b) of the defined term has two parts, capturing those persons who have 'possession or custody' of the animals in question, as well as those who have the 'care, control or supervision' of those animals. Thus Greg James J's reference at [59] to all categories of persons included in the statutory definition to be: "... persons who had a general authority or command over the immediate disposition of the animals in question." 35This was an important consideration in Song, because the prosecutor had relied on Dr Song's acts of giving the goats in question a certificate of health and issuing an export certificate in respect of them, as establishing that he had supervision of the goats and thus fell within paragraph (b) of the definition. It was not there the prosecutor's case that the goats were in Dr Song's possession, or under his direct physical control, only that they were under his supervision. Greg James J concluded that the acts relied on, the issuing of two certificates, did not bring Dr Song within paragraph (b) of the definition. 36Thus it was that Greg James J observed at [65] that before a person might be held to be 'in charge', that the person must: "... have some responsibility or authority of an immediate kind for the physical control of an animal rather than merely having some legal responsibility to undertake a limited function in connection with the animal." 37His Honour overlooked Greg James J's critical observation as to how the construction of paragraph (b) of the definition is to be approached. At [66] Greg James J said that the concept of a person in charge: "... refers to a person's ability and authority to take positive steps to effect the immediate physical circumstances of the animal so that persons' authority might be employed to ensure care, treatment in a humane manner and the welfare of the animal." 38Greg James J also said that the definition: "... particularly refers to a physical relationship in which the person is able to exercise some degree of ultimate responsibility or authority over an animal in its physical environment." 39He continued that the concept of supervision did not involve 'passive permitting or detached observation' and that: "... it is not enough that the person perform since(sic) ancillary legal function in relation to the goats but it is necessary that the person, whether on their own or in combination with others, have that degree of authority and responsibility as would enable the person to engage in the physical disposition of the goats." 40When proper account is taken of this explanation, it is apparent that Greg James J did not construe paragraph (b) of the definition of a 'person in charge' as being limited in the way that Bartlett LCM understood, that is, that it is essential that such a person have the ability to engage in the physical disposition of the animal. This was an observation directed only to the concept of supervision. 41Had Greg James J reached the conclusion which his Honour understood, he would have fallen into obvious error. The word disposition is not used in paragraph (b) of the statutory definition. All of the words which are used must be given their ordinary and natural meaning, which is not confined in the way his Honour viewed them to be. As his Honour himself discussed, confining the wide terms of the statutory definition to those persons having power in relation to the physical disposition of the animal in question, would be to fail to give the words used in the definition their proper meaning and would be to approach the definition inconsistently with the statutory objects specified in s 3, to which Greg James J expressly referred. 42It is by the words possession and custody, care, control and supervision, by which the term is defined. These are ordinary, everyday words, whose meaning is to be approached, as Greg James J discussed in the context of the meaning to be given to the word 'supervision', on the basis that a 'person in charge' will have: "... the ability, responsibility and authority to take positive steps to affect the animal's immediate physical circumstances; its physical environment; and the employment of that authority to ensure its care, its treatment in a humane manner and its welfare." 43That approach gives proper effect to the objects of the Act specified in s 3 and has regard to the natural and ordinary meaning of the words used in the definition. 44It is in this context that his Honour had to resolve the question of whether the acts or functions on which the prosecutor relied to establish that Ms Elliott was a person in charge, established either that she was in 'possession or custody' of the dogs, or that they were under her 'care, control or supervision', or both. That could not be determined simply by considering whether Ms Elliott had the ability to engage in the physical disposition of the dogs, although that was one relevant consideration. 45Other relevant considerations included whether Ms Elliott had the ability, responsibility and authority to take positive steps to affect the dogs' immediate physical circumstances and their physical environment; whether she had the authority to ensure their care, treatment in a humane manner and their welfare; whether there was a physical relationship in which Ms Elliott was able to exercise some degree of ultimate responsibility or authority over the dogs in their physical environment; and whether on her own, or in combination with others, she had that degree of authority and responsibility as would have enabled her to engage in the physical disposition of the dogs. 46In the result, it must be concluded that his Honour erred in his determination of whether the material facts which he found were such as to bring the case brought against Ms Elliott within the provisions of s 5 and s 8 of the Act, given the proper construction of the term 'person in charge' in s 4. It follows that the appeal must be upheld. 47The usual order as to costs is that they follow the event. Unless the parties wish to be heard on costs, in which event they should approach within 7 days, the Court's order as to costs will be that the first defendant must bear the plaintiff's costs, as agreed or assessed.

Orders 48For the reasons given, I make the following orders:

1. The appeal is upheld.
2. Bartley LCM's decision is set aside.
3. The matter is remitted to the Local Court to be determined according to law.
4. Unless the parties approach within 7 days, the Court's order as to costs is that the first defendant must bear the plaintiff's costs, as agreed or assessed.

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