(b) acting under the direct supervision of a competent person.

(a) a body corporate, a fine not exceeding 100 penalty units; and

(b) an individual, a fine not exceeding 50 penalty units.

(2) A person is a competent person in respect of a species of livestock if he or she can provide evidence, to the satisfaction of the Minister, that he or she has the knowledge, skills, attitude and behaviour to transport animals of that species in accordance with these regulations.

(3) In determining whether a person is a competent person in respect of a species of livestock, the Minister may take into account any practical training and experience the person may have in the following areas in respect of that species of livestock:

(c) assessing the health of livestock and their suitability for transportation;

1. Counsel for the applicant asserted that it had never held itself out to be a "competent person" as defined, and had never been investigated or questioned as to whether or not it was a "competent person". Those assertions may well be correct. However reg 6 does not require a person who transports livestock to satisfy the Minister of anything. It requires only that that person be capable of satisfying the Minister of certain things. If the applicant did nothing by way of holding itself out as competent to transport livestock or by way of satisfying the Minister of such competence, it does not follow that it lacked such competence. Further, if it was not a "competent person" for the purpose of reg 6, it does not follow that it was not a "person transporting livestock" when it took the horses on their journey across Bass Strait.
2. Under reg 15 of the regulations, "The driver of a vehicle being used to transport livestock" has various duties, breaches of which are punishable by fines. For example, under reg 15(1)(a), the driver "must ensure that the vehicle ... is suitable for the type of livestock being transported". However the fact that reg 15 applies only to drivers does not tend to suggest that reg 34(6) applies only to drivers.
3. Under reg 34 of the regulations, there are detailed requirements in relation to the transportation of horses as to journey times, minimum times off water, minimum spell durations and so forth. Sub-regulations (1) and (2) apply to journeys generally. Sub-regulations (3) and (4) apply to transportation of horses in vehicles. Sub-regulation (5) creates an exception in relation to a horse float in particular situations. The final sub-regulation is (6), quoted above, which applies to a "person transporting a horse across Bass Strait". There are provisions in regs 25 and 26 that result in contraventions of those sub-regulations amounting to offences. Some of the offence provisions apply to drivers, and others to persons who have care or charge of livestock. However reg 34(6) is a penal provision independent of regs 25 and 26. There is nothing in those two regulations or elsewhere in reg 34 that has any relevance to the interpretation of the critical words in reg 34(6).
4. Counsel for the applicant relied on the fact that reg 34(6) is a penal provision, and on the common law principle that a penal provision should be given an interpretation favourable to the subject and unfavourable to the Crown, citing Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569. However it is clear that there is no ambiguity in the words "a person transporting a horse across Bass Strait". Further, as Gibbs CJ pointed out in Beckwith at 576, the rule referred to in that case is "perhaps one of last resort". As his Honour made clear, the ordinary rules of construction must be applied in determining the meaning of a penal statute before resort may be had to the rule as to the construction of a penal provision.
5. Section 8A(1) of the Acts Interpretation Act 1931 requires an interpretation that promotes the purpose or object of the legislation to be preferred to one that does not promote the purpose or object. The Act and regulations constitute animal welfare legislation. Interpreting the words "person transporting livestock across Bass Strait" in the way contended for by the applicant would clearly not promote the purpose or object of the legislation. There is nothing in the context or purpose of the legislation to warrant giving the words in question a restricted meaning rather than their ordinary meaning. The long title to the Act is, "An Act to prevent neglect of, and cruelty to, animals, to ensure the welfare of animals, to repeal the Cruelty to Animals Prevention Act 1925 and for related purposes". Giving the words of reg 34(6) their ordinary meaning would result in persons other than drivers being obliged to take steps to ensure the individual stalling of horses crossing Bass Strait, and thus promote the Act's purposes and objects relating to the prevention of neglect and cruelty to animals, and the ensuring of the welfare of animals.
6. If, as asserted in the proceedings below, the applicant carried the horses on its vessel on a voyage across Bass Strait, it was a "person transporting horses across Bass Strait" within the meaning of reg 34(6). The learned magistrate was quite right to make a determination that reg 34(6) could apply to the applicant. Ground 1 must fail.

1. Ground 2 of the amended notice of review reads as follows:

"The Magistrate erred in law by failing to find the offence created by r 15(1)(b) of the Land Transport Regulations is not capable in law of applying to the accused."

1. The applicant was not charged with an offence contrary to reg 15(1)(b) of the regulations. That provision creates an offence, punishable by a fine. It requires that, "The driver of a vehicle being used to transport livestock must ensure that the vehicle ... has effective and appropriate airflow for the type of livestock being transported". It is as plain as day that that provision did not apply to the applicant company since it was not the driver of a vehicle but was the operator of a ferry service.
2. Regulation 15(1)(b) is however relevant to count 1 - the charge relating to the applicant's alleged method of management. Count 1 contains particulars in which it is asserted, amongst other things, that the applicant's method of management involved the following:

"(iii) the defendant, either prior to or during the voyage or both, not ensuring that the horses were transported or packed in a manner, position or circumstance that complied with the requirements of the Animal Welfare (Land Transport of Livestock) Regulations 2013."

1. In further and better particulars of that paragraph that were supplied to the applicant, the following assertion was made:

"The animals were not packed in accordance with requirements of the Regulations by reason of:

• using a transport and trailer unit (CE96CK and TA27PF) that did not have effective and appropriate airflow for the horses being transported (r 15(1)(b) Animal Welfare (Land Transport of Livestock) Regulations 2013."

1. In the proceedings below, the respondent has not asserted that reg 15(1)(b) applied to the applicant, but is asserting that the applicant contravened s 7 of the Act by using a method of management that involved the animals being transported in vehicles whose drivers did not comply with a requirement relating to their welfare that is contained in a regulation binding upon drivers of vehicles.
2. The determinations under review related to contentions as to duplicity in count 1 and the inapplicability of reg 34(6). In order to rule upon those issues, it was not necessary for the learned magistrate to determine whether the offence created by reg 15(1)(b) could be committed by the applicant. She did not make a finding as to that point, but was not asked to and did not need to. It follows that she did not err in law as asserted in ground 2, which must fail.

1. Ground 3 of the amended notice of review reads as follows:

"The Magistrate erred in law by failing to find that charge 1 is bad for duplicity in that it alleges multiple offences in one charge."

1. Count 1 alleges a contravention of s 7 of the Act. That section reads as follows:

"A person who has the care or charge of an animal or group of animals must not use a method of management of the animal or group which is reasonably likely to result in unreasonable and unjustifiable pain or suffering to the animal or an animal in the group.

(a) a body corporate, a fine not exceeding 1 000 penalty units; or

(b) a natural person, a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 6 months, or both."

1. Count 1 contains the following particulars of the charge under s 7:

"TT Line Company Pty Ltd, on or about 28 January 2018 at Devonport in Tasmania, was a person who had care or charge of a group of animals, namely 30 horses, and used a method of management, namely the transport of the 30 horses and in particular the transport of 18 horses in a transport and trailer unit registration CE96CK (with trailer unit TA27PF) from Devonport to Melbourne in Victoria (via the vessel Spirit of Tasmania 1), that was reasonably likely to have resulted in resulted in unreasonable and unjustifiable pain or suffering to the animal or animals in the group, namely that the horses, and in particular the 18 horses in the transport and trailer unit referred to, were exposed to the risk of acute heat stress and asphyxiation due to suffocation in the confined space of the transport and trailer unit, and such exposure was not identified or considered as a result of failing to inspect the horses during the voyage CONTRARY TO section 7(1) of the Animal Welfare Act 1993, further particulars of the method of management used being set out below:

(a) The method of management used by the defendant was:

(i) in receiving the horses for transport, not permitting the inspection of the horses during the voyage by passenger(s) accompanying the animals; and

(ii) the defendant, either prior to or during the voyage or both, not adequately inspecting the transport and trailer unit, or the horses contained therein; and

(iii) the defendant, either prior to or during the voyage or both, not ensuring that the horses were transported or packed in a manner, position or circumstance that complied with the requirements of the Animal Welfare (Land Transport of Livestock) Regulations 2013 and as a result, either individually or in combination thereof, that method of management was reasonably likely to have resulted in unreasonable and unjustifiable pain or suffering to the animal or animals in the group as particularised above."

1. Although the further particulars set out above begin with "(a)", the complaint does not contain anything further by way of particulars of count 1. That is to say, it contains only par (a), and no par (b).
2. The applicant contends that the particulars of count 1 set out above contain allegations of four separate offences. In their written outline of submissions, counsel for the applicant asserted that those four alleged offences were "one for each of the three individual particulars, and one for the particulars combined". I will explain shortly why that submission has no merit.
3. As I have said, further and better particulars of count 1 were supplied. Those particulars included assertions that the animals were not "packed" in accordance with the requirements of the regulations in three respects. I have already quoted the assertion relating to reg 15(1)(b) when dealing with ground 2. Item 7 of the further and better particulars, which related to (a)(iii) above, reads in full as follows:

"The animals were not packed in accordance with requirements of the Regulations by reason of:

• 18 horses being packed into a transport and trailer unit CE96CK and TA27PF that could not, in accordance with r34 (6) (b), be used to transport more than 11 horses across Bass Strait.
• being packed, in respect of 16 of the 18 horses being transported using transport and trailer unit CE96CK and TA27PF, 2 per stall. (r 34(6)(b) Animal Welfare (Land Transport of Livestock) Regulations 2013); and
• using a transport and trailer unit (CE96CK and TA27PF) that did not have effective and appropriate airflow for the horses being transported (r 15(1)(b) Animal Welfare (Land Transport of Livestock) Regulations 2013)."

1. The applicant contends that these further and better particulars alleged two breaches of reg 34(6) and one breach of reg 15(1)(b), and made count 1 even more duplicitous.
2. The rule against duplicity was succinctly stated by Kirby J in Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 107 as follows:

"... a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law."

1. That rule is reflected in s 29(1) and (2) of the Justices Act 1959, which read as follows:

"(1) A complaint shall be for one matter only and not for 2 or more matters, except -

(a) in the case of indictable offences, where the matters complained of are such that they may be charged in one indictment;

(b) in other cases, if the matters of complaint are -

(i) substantially of the same act or omission on the part of the defendant, although amounting in law to 2 or more offences or 2 or more matters of complaint; or

(ii) founded on the same facts or are, or form part of, a series of offences or matters of complaint of the same or a similar character; or

(2) Where several matters of complaint are joined in the one complaint pursuant to subsection (1), each matter of complaint shall be set out in a separate numbered paragraph."

1. Ground 3 is based upon a contention that, contrary to s 29(2) and the rule against duplicity, count 1 constitutes a charge of more than one offence.
2. I reject the applicant's submissions as to this ground. They are misconceived. All of the particulars in question are particulars of one alleged "method of management" of the group of animals. The prosecution case is that there were several aspects to that method of management. Particulars (a)(i) and (ii) allege separate aspects of the method of management - not permitting inspections by the passengers accompanying the animals, and the applicant not conducting adequate inspections either. They do not allege separate offences. So far as those particulars are concerned, the situation is similar to one in which a motorist is charged with negligent driving, with particulars asserting a failure to keep a proper lookout and travelling at an excessive speed. There is one charge. There is no duplicity. The particulars contain allegations of various facts that the prosecution will seek to prove when attempting to establish that the charged offence was committed.
3. Particular (a)(iii) does not contain any allegation that is separate from or additional to the allegations contained in item 7 of the further and better particulars. As I have explained when dealing with ground 2, the allegation concerning reg 15(1)(b) is not an assertion that the applicant contravened that provision, but is an assertion that the applicant adopted a method of management that was inconsistent with the requirements imposed by that provision on drivers of vehicles. It follows that that assertion does not create any duplicity.
4. It is true that the assertions as to reg 34(6)(b) in the first two dot points of item 7 of the further and better particulars are assertions that the applicant contravened that provision in two different respects. However those dot points contain allegations as to the applicant's method of management. In substance, the first asserts that 18 horses were transported in a unit that was suitable for only 11 horses, and the second asserts that 16 of those 18 horses were transported in eight stalls with two in each stall when they should have been in individual stalls.
5. Although those dot points allege contraventions of the regulations, they do not make count 1 duplicitous. The situation is similar to one in which a motorist is charged with negligent driving, and one of the particulars asserts a failure to stop at a red light. Failing to stop at a red light may be a separate offence, but it may be relied on as a particular of negligence without creating duplicity.
6. Count 1 and its particulars do not allege multiple breaches of s 7. The allegations in the particulars relate to different alleged aspects of one alleged method of management in respect of one group of animals. Ground 3 must fail.

1. Ground 4 of the amended notice of review reads as follows:

"The Magistrate erred in law by failing to find that charges 2 to 29 are invalid because they do not identify the essential factual elements of the charge."

1. Counts 2-29 inclusive each allege that the applicant failed to ensure that a horse was individually stalled. Each charge relates to a single horse. None of the charges identifies a particular horse. Counts 2-17 inclusive each refer to "a horse in a transport in the control of Mr Andrew Williams". Counts 18-29 inclusive each refer to "a horse in a transport in the control of Mr Thomas Martin".
2. In the further and better particulars that I have referred to, the applicant was supplied with the names of 16 horses to whom counts 2-17 relate, but the document did not specify which horse was the subject of each charge. That document also stated that the horses to which counts 18- 29 relate were "The horses transported 2 per stall in the transport and trailer unit (AM38VY)". However the document did not identify any particular horse as the subject of any particular charge.
3. The applicant contends that each of counts 2-29 is therefore defective; that the learned magistrate should therefore have dismissed or struck out each of those charges; and that she erred in law by failing to do so.
4. There is a very simple answer to those contentions. The learned magistrate was not asked to strike out or dismiss those charges on that basis. She was asked to do so only on the basis that the applicant company was not a "person transporting a horse across Bass Strait".
5. During a discussion as to the management of the case on 7 November 2019, counsel for the applicant made a comment that appears to relate to counts not having been linked to particular horses. According to the transcript, he said this:

"Oh it's a pretty straightforward point, your Honour, I can, it's whether or not it's possible to distinguish between each of the counts by reference to the evidence that given that each count is in substance the same yet there are vastly different horses and there is absolutely no way upon which it can be distinguished on the brief, that's the point and that's what latent ambiguity is about."

1. However counsel at that stage was merely foreshadowing a submission that might be made in the future. When submissions were made about preliminary points on 4 March 2020, the absence of particulars linking individual horses to numbered counts was referred to only in the course of a submission that count 1 was duplicitous. Counsel for the applicant said this:

"... the statute does not make provision for a failure to comply with the regulations simpliciter to constitute a breach of s7, and that's what the pleading in effect does. That's why it's duplicitous. On its face, and this is why it's not a question of evidence, on its face, it alleges a breach of 7 and it alleges a breach of s36(4). It doesn't say so specifically in that, but we've - we've had exchanges, we understand our friends, limit the reference to the Land Transport Regulations to s36 - Regulation 36(4). That being the case, there are two offences alleged in section 1-

And that's the vice. That can't stand. That's why the count is bad for duplicity and also why having regard to the reference to section - reg36(4) in relation to Count 1, and 36(4) in relation to Counts 2 to 29, there's a latent ambiguity, because we don't know which horse each of the Regulation Counts relates to. So we can't say on the face of a document, the charge, whether horses a, b, c and d were individually stalled in one trailer of whether they were individually stalled in another. It doesn't matter what the evidence is. What matters is how it's pleaded. Does - and my learned friends resort to the Justices Act doesn't help him at all because this isn't a conflation. If it was a conflation, that is a pleading of separate offences, he'd have pleaded one regulation count and one count under the Act, and the fact that he's pleaded, in our case, with respect, Mr Nicholson has pleaded, 29, 28 separate charges that must relate to 28 different horses, although as we've noted there's 30 horses apparently. So there's some mis - something doesn't add up, pardon the colloquialism.

That being the case, if he's right to plead all of those separate counts, he can't plead the rolled up count as a particular under Charge 1, because it's duplicitous within itself. It's blatantly ambiguous within itself. That is which horse does this get covered by, and it's duplicitous within the count because it raises the offence under s35(4) of the regulations as proof simpliciter of the breach of regulation, of s7. And that's not what s7 says."

1. The fact that none of the relevant 28 charges identified a particular horse as its subject was mentioned only in the course of a submission that count 1 should be struck out or dismissed for duplicity. The learned magistrate was not asked to strike out or dismiss any of the other charges for lack of particularity on the basis suggested. It follows that she did not err in law by not doing so. Ground 4 must therefore fail.

1. The submissions of the applicant as to duplicity and the inapplicability of reg 34(6), both before the learned magistrate and before this Court, were devoid of merit. The learned magistrate heard argument as to those issues on 4 March 2020, more than two years after the voyage to which the charges relate. She rejected the applicant's submissions on 31 March 2020. The hearing before the learned magistrate has been delayed by months as a result of unmeritorious arguments and a motion for the review of rulings that were plainly correct. It is in the public interest that the charges in the Magistrates Court be heard and determined with as little further delay as possible.
2. The motion to review is dismissed.