Magistrates - Appeal and review - Tasmania - Motion to review - When remedy available - Jurisdiction - Motion to review an order of a magistrate available to person aggrieved by an order - Definition of "order" included determination and adjudication - Magistrate ruled that no duplicity in a charge on complaint - Ruling amenable to motion to review.

Justices Act 1959 (Tas), ss 30, 31, 107, 116.

Wilson v McCormack [1968] Tas R 55 applied.

Roadside Products Pty Ltd v Cocker [2018] TASSC 6, considered.

Criminal law - Procedure - Information, indictment or presentment - Averments - Uncertainty, duplicity and ambiguity - Duplicity - Offence to use a method of management of animals which is reasonably likely to result in unreasonable and unjustifiable pain or suffering - Appellant charged with offence relating to transport of horses in trucks on Bass Strait ferry - Where particulars alleged deficiencies in inspection of horses before and during voyage and failures in relation to the manner, positioning or circumstances of transportation - Where further particulars alleged non-compliance with regulations - Essence of offence was using a method of management reasonably likely to bring about the prohibited result - Method of management almost inevitably comprised of a number of aspects - Charge related to a single course of conduct and not duplicitous.

Animal Welfare Act 1993 (Tas), s 7.

Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373, 205 FLR 217; Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, applied.

Judgment Number: [2021] TASFC 3

1. The appellant is charged on complaint with breaches of the Animal Welfare Act 1993 (the Act). The charges relate to the transport across Bass Strait of a number of horses.
2. Before the magistrate, Ms L Topfer, the appellant submitted that count 1 of the complaint was bad for duplicity. The learned magistrate rejected that submission and the appellant filed a motion for review of that determination. Blow CJ dismissed the motion and upheld the decision of the magistrate (TT-Line Company Pty Ltd v Burrows [2020] TASSC 52). His Honour found that the appellant's arguments were "devoid of merit", and that the ruling of the magistrate was "plainly correct".
3. The appellant's notice of appeal contained a single ground:

"His Honour erred in failing to find that 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. Before Blow CJ, and in the written submissions provided by the parties prior to the hearing of the appeal, no issue was raised as to the jurisdiction of Blow CJ to entertain the motion for review. However, prior to the hearing of the appeal, the Court advised the parties that it wished to hear submissions as to the issue of jurisdiction. Both parties agreed that the Court possessed jurisdiction. For reasons later discussed, I agreed with that view.
2. The appellant applied to argue an issue not raised before the magistrate or Blow CJ. It concerned prosecution particulars alleging omissions by the appellant which the prosecution contended were part of the conduct of the appellant amounting to the offence charged. The appellant sought to argue that an omission to act cannot amount to an offence under the relevant provision of the Act.
3. At the conclusion of submissions, the Court dismissed the appeal and refused leave to add proposed ground 2. I now set out my reasons for agreeing with those orders.

1. The appellant operates ferries across Bass Strait between Devonport and Melbourne transporting passengers and goods. On 28-29 January 2018 the respondent transported 30 horses across Bass Strait, and a number of horses died. The charges on complaint relate to that transportation.
2. Count 1 alleges an offence against s 7 of the Act, and is the charge which the appellant complained is bad for duplicity. Count 1 is as follows:

"DATE OF OFFENCE: Between on or about 28 January 2018 and on or about 29 January 2018

CHARGE 1: Use method of management reasonably likely to result in unreasonable and unjustifiable pain and suffering to the animal or animals in the group

BREACH OF: Section 7 of the Animal Welfare Act 1993

PARTICULARS: 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. During the hearing of the appeal, in answer to questions from the Court, counsel for the respondent confirmed that although the particulars of count 1 refer to the respondent having charge of 30 horses, and used the method of management, namely, the transport, in respect of the 30 horses, the charge in count 1 relates only to 18 horses in trailer unit TA27PF. In substance, the respondent elected to proceed with count 1 in relation only to the 18 horses in that trailer.
2. Counts 2-29 of the complaint each allege an offence against reg 34(6) of the Animal Welfare (Land Transport of Livestock) Regulations 2013, and each concern a single horse identified by name. Each count alleges that the appellant failed to ensure that the horse was individually stalled when transporting the horse across Bass Strait. Counts 2-17 concern the horses transported in trailer unit TA27PF and the 16 horses are identified in particulars provided by the respondent. Counts 18-29 relate to horses transported in trailer unit AM38BY.
3. In rejecting the submission that count 1 is defective by reason of duplicity, the magistrate said that she was not persuaded by the argument as to duplicity "at this stage". Her Honour referred to the appellant's submission that the particulars supplied by the prosecution demonstrate that more than one offence is alleged, and that the prosecution should be put to an election to proceed either with count 1 or counts 2-29. In rejecting that submission, her Honour observed that a failure to individually stall the animals in breach of the regulations may, or may not, amount to an offence against s 7 which was charged in count 1. Her Honour recognised that duplicity could arise, depending on the evidence and her findings from the evidence, and observed:

"I am satisfied that this duplicity will only arise at the sentencing stage."

1. The magistrate concluded her written reasons with the following:

"I am satisfied at this stage that the argument as to duplicity is not made out and the charges can remain as drawn."

1. The right to review a decision of a magistrate is found in s 107 of the Justices Act 1959:

"107 Summary mode of reviewing decisions of justices

(1) A person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order.

(b) shall set forth in specific terms the ground on which review is sought.

(3) An applicant under this section shall, within 21 days after the making of the order to be reviewed -

(a) file a notice to review in the Supreme Court; and

(i) the person interested in upholding the order; and

(4) The grounds set forth in a notice to review shall allege -

(a) an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; or

(b) that the justices had no jurisdiction to make the relevant order."

1. As to the meaning of an "order", s 116 of the Justices Act provides that unless the contrary intention appears, "order includes conviction, dismissal of a complaint, determination, and adjudication". Section 117 specifically provides that an order committing a defendant for trial "is not subject to review or appeal under this Part".
2. In Wilson v McCormack [1968] TASStRp 7; [1968] Tas SR 55, a magistrate permitted the withdrawal of a charge and amendment of other charges. Having then heard submissions following a plea of guilty to further charges, the magistrate announced he was unable to do justice, rejected the amendments and the pleas of guilty, and adjourned the complaint for rehearing before another magistrate. Chambers J found that in the circumstances of the case, the orders of the magistrate could be reviewed. After referring to Victorian authorities and s 116 of the Justices Act, Chambers J said at 57-58:

"Prima facie these are words [of s 116] of wide import, particularly the word 'adjudication', and the question is whether they should be given a wide or narrow construction. In Byrne v Baker [1964] VicRp 57; [1964] VR 443, in dealing with the larger definition found in the Victorian legislation, the Full Court found two other statutory provisions which appeared to confirm its view that the legislature intended the word 'order' to be widely construed. One was a provision that 'any person who feels aggrieved' was to include an informant as well as a defendant: this appears also to be the effect of s 116 of the Tasmania Act as 'order' includes the dismissal of a complaint. The other was a provision that the Supreme Court may exercise all the powers exercisable upon certiorari, mandamus and prohibition. This has its counterpart in s 110(2)(h) of the Tasmanian Act.

I am of the opinion, that the definition of 'order' in s 116 should be widely, rather than narrowly, construed, and I think it is wide enough to include orders of an interlocutory nature. I do not go so far as to say that it includes all interlocutory orders. That question must be decided on the circumstances of each particular case which arises. It is sufficient for me to say that in my opinion in the circumstances of the case which is at present before me, the impugned orders of the magistrate are orders subject to review under Div I of Pt XI of the Justices Act 1959."

1. The view of Chambers J as to the approach to the definition of "order" in s 116 has been followed by single judges in Tasmania on a number of occasions.[1] I see no reason to depart from that approach.
2. Chambers J in Wilson v McCormack specifically refrained from finding that "order" encompassed "all interlocutory orders" (58). In Norton v Loring [1976] TASStRp 4; [1976] Tas SR 40, his Honour found that an "order" adjourning the hearing of a complaint was an "order" within the meaning of s 116, but in Cowen v Estcourt [1976] TASStRp 10; [1976] Tas SR 113, his Honour found that a decision overruling a submission of no case to answer was not an "order" for these purposes. A ruling as to admissibility of evidence is not an "order" that can be reviewed.[2]
3. In Roadside Products v Cocker, in respect of a complaint alleging breaches of the Work Health and Safety Act 2012, a magistrate made a number of rulings which the applicant sought to review. In relation to issues concerning particulars, Brett J found that the magistrate had not completed the procedural process, and there had been no determination or adjudication which could be reviewed. However, in respect of parts of an investigation report in respect of which the magistrate upheld a claim for legal professional privilege, Brett J found that the ruling was an "order" for the purposes of review pursuant to s 107. His Honour made the following observations at [53] and [54]:

"There are good reasons why a procedural determination, or a ruling related to the admissibility of evidence during the course of a hearing, is not properly defined as an order amenable to review. From a practical point of view, the capacity of a party to seek immediate and discrete review of such a ruling would be unacceptably disruptive to the proper administration of justice. Further, it would, in the normal course, be impossible for a court to determine whether the incorrect ruling has resulted in a substantial miscarriage of justice for the purposes of s 110(2)(ab) of the Justices Act, at that point of the proceedings.

However, the determination sought to be reviewed in this case is in a different category. Section 131A of the Evidence Act provides for the determination of an objection in respect of a requirement for disclosure, which would extend to the summons issued in this case. It is clearly contemplated that that determination will be made, in an appropriate case, prior to the commencement of the proceedings and will apply the relevant provisions with respect to privilege contained in the Evidence Act. The determination of the provision of such information, prior to the commencement of the actual hearing, has the capacity to affect and inform the course, conduct and nature of the hearing. In the case of the defence, it could conceivably have real implications with respect to the conduct of its case, including the decision by the defendant as to whether to give or adduce evidence. It is certainly possible to test at the conclusion of the hearing whether there has been a miscarriage of justice, but there are discernible benefits with respect to the due and efficient administration of justice, if such a decision is made, and if necessary reviewed, prior to the commencement of the hearing proper. I am satisfied, therefore, that the determination of the magistrate was an order within the meaning of s 107, and, accordingly, the Court has jurisdiction to conduct a review of that determination."

1. There are three points to note from the observations of Brett J:

(i) Procedural rulings, and rulings related to the admissibility of evidence, are not amenable to review, and permitting review of such rulings would be "unacceptably disruptive to the proper administration of justice".

(ii) The Evidence Act 2001 contemplated that the issue of objections to disclosure would be determined prior to the commencement of proceedings.

(iii) Such a determination, prior to the commencement of the hearing, possesses the capacity to assist the efficient administration of justice by informing the "course, conduct and nature of the hearing", in addition to assisting a defendant in the conduct of the defence.

1. Significant assistance is provided by the observations of Dixon CJ in Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620 at 635. The High Court was concerned with a determination by a magistrate as to whether to dispose of an indictable offence summarily. In the course of his judgment, Dixon CJ referred to the definition of "order" in the Victorian provisions which was wider than the provision under consideration. However, of assistance are his Honour's remarks comparing a ruling concerning the admission of evidence with a decision refusing to exercise jurisdiction (635):

"Wide as are the words of the definition of 'order' and of sub-s (4), they cannot be pressed to cover every incidental ruling or direction. For example there can be no doubt of the correctness of the decision of Dean J in State Savings Bank (Vic) v Rogers Bros, that a magistrate's ruling that evidence is to be admitted or rejected cannot itself constitute an 'order' that may be reviewed under s 150, though of course if erroneous it may be a ground for reviewing a determination affected by it. But an application to dispose summarily of an information for an offence is an application to exercise a jurisdiction to hear and determine the accusation. The refusal, although it implies a decision to go on with the proceedings for committal, which of course are not regarded in our law as involving a judicial determination, means a refusal to exercise a definite jurisdiction. True it is that the question whether the jurisdiction shall be exercised or not depends on a discretion and not upon an imperative duty. But that affects the examinability of the discretion not the question whether there is the refusal of an application within the meaning of sub-s (4) or the definition of 'order'. Section 73 of the Crimes Acts in both par (a) and par (b) describes the invoking of the discretion as an application and that in itself provides an important consideration. The question can only arise when the exercise of the discretion is said to be vitiated because it is based on extraneous matters or is otherwise contrary to law. But the discretion is so wide in its ambit that such a thing can seldom occur. Moreover once a committal takes place and a presentment is filed the matter has passed to another jurisdiction. But if you have a refusal which is the result of an inadmissible exercise of the discretion and, as in the present case, an opportunity is afforded of correcting it, I think that it may be reviewed as an erroneous refusal of an application." [Footnote omitted.]

1. Although it is not an issue in most cases, the first question for any court is whether it possesses jurisdiction to hear a matter brought before it. If jurisdiction is in issue, in most cases it is necessary and appropriate to determine that issue at the outset. Unlike an objection to the admissibility of evidence, the question of jurisdiction goes to the heart of the proceedings and determining it at the outset is not unacceptably disruptive in the proper administration of justice.
2. An application to strike out a charge by reason of duplicity directly attacks the validity of the complaint and goes to the jurisdiction of the court to hear and determine the complaint. In my view, the magistrate's determination that count 1 was not bad for duplicity was an "order" for the purposes of s 107 of the Justice Act, and Blow CJ possessed jurisdiction to hear the motion for review.

1. In respect of count 1, the appellant submitted that each of the particulars supplied by the prosecution "gives rise to separate and discrete acts or omissions which independently give rise to the offence". In those circumstances, the appellant contended that "both on its face and in the manner proposed to prove the allegation, count 1 is bad for duplicity. The written submission continued:

"The prosecution has provided multiple particulars and alleged that each one amounts to a method of management which is capable of constituting an offence under s7, and the further alternative that the particulars in some unspecified combination constitute an offence under s7."

1. After summarising the appellant's contention that count 1 charges more than one offence, Blow CJ found that count 1 was not bad for duplicity and described the appellant's submissions as "misconceived". His Honour's reasons continued [36]-[40]:

"... 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.

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.

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.

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.

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. In order to understand the appellant's complaint, it is necessary to identify the particulars provided by the respondent, being particulars elaborating upon the "further particulars" set out in the complaint. As Marshall AJ has observed in his reasons, it is the particulars which the appellant submitted highlighted the duplicity in count 1.
2. Particular (a)(i) asserted that the method of management "used" by the appellant was "in receiving the horses for transport, not permitting the inspection of the horses during the voyage by passenger(s) accompanying the animals". In answer to a question from the Court, counsel for the respondent suggested that the failure to permit the inspection was "the" method of management used. However, under further questioning, counsel accepted that the method of management used was the transport of the horses, and declining to permit the inspection was one aspect only of the transport. Similarly, not ensuring that the horses were packed in a particular manner was an aspect of the method of management, namely, the transport.
3. In respect of particular (a)(i) concerning the appellant not permitting inspection by persons accompanying the horses, the respondent provided further and better particulars asserting that the appellant did not permit inspection because of a prohibition in the policy of the appellant. While the policy might explain the reason why inspection by passengers was not permitted (as opposed to the reason for the policy), the policy has no bearing upon whether failure to permit such inspection was an aspect of the method of management which contributed to the method being reasonably likely to cause the prohibited result. Ultimately it is a question of fact to be determined by the magistrate whether the failure to permit such an inspection contributed in this way.
4. Particular (a)(ii) of the complaint asserted a failing by the appellant not adequately inspecting the trailer, or the horses contained in the trailer, either prior to or during the voyage, or both. The further and better particulars of (a)(ii) are as follows:

The defendant did not conduct an 'adequate' inspection (the inspection) by reason of:

• not conducting an inspection of the horses during the voyage;
• not conducting a visual inspection of the horses prior to or during the voyage;
• not conducting an inspection of the horses other than Spirit of Tasmania 1 staff cleaning an amount of urine from outside the transport and trailer unit CE96CK and TA27PF;
• not employing a system to monitor or ascertain the condition, health or safety, or any risk thereto, of the horses at any point prior to or during the voyage.

The defendant ought to have conducted the inspection:

• prior to departure; and, or alternatively
• during the voyage.

• to assess whether the horses were safely mustered and assembled in preparation for transportation in a manner that was appropriate for the horses, namely, by the horses being individually stalled; and
• to assess whether the design and condition of the trailer and transport unit in which the horses were to be stalled during the voyage across Bass Strait presented any risk to the health and safety of the horses in the actual and/or likely circumstances of the voyage and, consequently, whether it ought to have been allowed to be used for that purpose."

1. In substance, the further and better particulars of (a)(ii) assert that the appellant ought to have conducted an inspection prior to departure, or during the voyage, to assess whether the horses were safely mustered and assembled for transportation in a manner appropriate for the horses by the horses being individually stalled; and to assess whether the design and condition of the trailer presented any risks to the health and safety of the horses, and whether it ought to have been allowed to be used for that purpose. In addition, in conjunction with not conducting an inspection, the further and better particulars assert that the appellant had failed in not employing a system to monitor the condition of the horses, or any risk to their condition, prior to or during the voyage.
2. Despite the lengthy wording of the further and better particulars in connection with (a)(ii), the essence of the complaint is clear. The prosecution asserts that an aspect of the method of management which, either in isolation or in combination with other aspects, was reasonably likely to bring about the prohibited result, was the failure to inspect the horses and the conditions in which the horses were transported either prior to or during the voyage. As part of that failure, the prosecution asserts that the inspection should have been conducted with a view to making an assessment of the conditions in which the horses were to be transported, and were transported, and whether such conditions presented any risk to the health of the horses.
3. Particular (a)(iii) of the complaint alleges that the method of management included not ensuring, either prior to or during the voyage, that the horses were transported or packed in a manner that complied with the Animal Welfare (Land Transport of Livestock) Regulations. The further and better particulars provided of (a)(iii) are as follows:

The horses should have been packed before transportation:

• in a manner ensuring that the horses were safely mustered and assembled in preparation for transportation in a manner that was appropriate for the horses, namely, by the horses being individually stalled; and
• in a manner ensuring that the vehicle being used to transport the horses was:
  • suitable for the horses being transported; and
  • fitted or designed in a way that it had effective and appropriate airflow for the horses being transported. The horses should have been packed appropriately for transportation by
  • Andrew Williams; and
  • The defendant (s 3A(1)(b), s 6 Animal Welfare Act 1993)

The horses should have been packed (or repacked) during the transportation in the following manner:

• not more than 11 horses ought to have been packed into the transport and trailer unit CE96CK and TA27PF for the voyage across Bass Strait;
• all horses that were transported across Bass Strait on Spirit of Tasmania 1 on 28 - 29 January 2018 ought to have been individually stalled in their respective trailer units

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 r 34(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. Both particular (a)(iii) of the complaint, and the further and better particulars, assert a failure to ensure compliance with animal welfare regulations. Providing particulars in this way does not result in duplicity, but is apt to confuse. The question to be determined, namely, whether the method of management was reasonably likely to have brought about the prohibited result, is a question of fact. Similarly, it is a question of fact whether any particular aspect of the method of management was likely to have brought about such a result either in isolation from other aspects, or in combination with other aspects. Whether the particular aspect of the method is a breach, or does not comply with regulations, is irrelevant. A failure to comply with a regulation does not prove, and cannot assist in proving, whether a particular aspect of the method of management was reasonably likely to bring about, or contribute to bringing about, the prohibited result.
2. Similarly, the reference to ss 3A and 6 of the Animal Welfare Act, in conjunction with the assertion that the horses should have been packed for transportation by the appellant, is not helpful. If there was a failure to comply with either or both of those sections, such failure does not assist the respondent in proving its case with respect to count 1. The prosecution is required to establish the facts of the method of management, and to prove that those facts resulted in a method which was reasonably likely to have brought about the prohibited result.
3. Leaving aside the references to the Act and regulations, the further and better particulars of (a)(iii) all relate to facts associated with the way in which the horses were "packed" and, in particular, the assertion that the horses should have been individually stalled. Viewed in this way, they are not difficult to understand.
4. Finally in relation to count 1, par 9 of the particulars provides an overview of the prosecution case with respect to the method of management:

The method of management that was reasonably likely to have resulted in unreasonable and unjustifiable pain and suffering to the horses was:

• not permitting the inspection of the horses by passengers accompanying the animals; and
• not adequately, either prior to or during the voyage, inspecting the transport and trailer unit, or the horses contained therein; and
• 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. Again, the third bullet point leaves room for confusion and uncertainty through reference, broadly, to a failure to pack the horses in a manner that complied with the requirements of the regulations. The specific requirements are not identified. It appears likely that the specific requirements which the prosecution intend to rely upon are set out in par 7 of the further and better particulars, but that should be made clear by the prosecution. Once the particular facts are asserted, no confusion or uncertainty will exist.

1. Whenever the issue of duplicity is raised, it is essential to address the terms of the complaint and the provision of the Act under which the charge is laid. The respondent having elected to confine count 1 to the method of management of the 18 horses in trailer TA27PF, considered in the context of the transportation of 30 horses, there is no duplicity arising from the terms of count 1 (although it would be appropriate to amend the terms of count 1 to simplify it).
2. Section 7 is to be considered in the context of the statutory scheme. The Act is concerned with ensuring the welfare of animals, and s 6 imposes on a person who has the care or charge of an animal a duty "to take all reasonable measures to ensure the welfare of the animal".
3. Section 7 is directed specifically at the manner in which a person, who has the care or charge of an animal or group of animals, manages those animals. Section 7 is concerned with "a method of management" used by the person in charge of the animals.
4. Section 8(1) contains a prohibition against doing any act, or omitting to do any duty, which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal. Section 8(2) identifies specific acts which will offend against s 8(1).
5. Section 7 prohibits the use of "a method of management" which is reasonably likely to bring about a particular result, namely, "unreasonable and unjustifiable pain or suffering" to an animal. However, s 7 does not identify any aspect of the method of management which is prohibited; nor does s 7 identify any form or manner of management, or any aspect of management, relevant to the question to be determined. The method of management used is a question of fact to be determined by the magistrate. Once the facts of the method of management are determined, the magistrate is in a position to address the question whether the method of management was reasonably likely to bring about the prohibited result.
6. It is obvious that if the method of management involves a fact that would be an offence against s 8(2), such as overloading or overcrowding an animal (s 8(2)(b)), in addition to committing an offence against s 7, the person in charge of the animal will also commit an offence against s 8. However, it does not follow that a charge under s 7 is bad for duplicity. If, following a conviction for an offence against s 7, the prosecution does not seek a conviction for an offence against s 8, or a penalty for such an offence, no duplicity is involved.
7. The appellant submitted that the duplicity is apparent from the particulars provided by the respondent. The particulars identify that each act or failure to act could, in isolation, prove that the method of management was reasonably likely to bring about the prohibited result. For example, independently of the manner in which the horses were packed, the prosecution alleges that the failure to inspect, on its own, could prove the breach of s 7. Similarly, the failure to pack the horses in individual stalls could prove a breach of s 7. In those circumstances, submitted the appellant, each act, or failure to act, must be the subject of a separate charge.
8. The fallacy in the appellant's contention lies in the nature of the offence created by s 7, namely, using a method of management reasonably likely to bring about a prohibited result. A method of management of animals is almost inevitably to be comprised of a number of aspects. Similarly, the offence against s 7 plainly contemplates that a method of management is likely to encompass a period of time over which the method of management was used. A relevant point was made by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373, 205 FLR 217 at [9]:

"There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities." [My emphasis.]

1. The same point was made by Kirby J in Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 107-108 [6]:

"Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs." [Citations omitted.]

1. The prohibited act is the use of a method of management reasonably likely to bring about the prohibited result. The method of management used was the transport of horses in one journey across Bass Strait. The charge is limited to the single journey and, although the transport necessarily possessed a number of aspects, each of which might render the transport a breach of s 7, nevertheless only one offence is committed regardless of whether one or more of the aspects of the transport was capable of rendering the use of the transport a breach of s 7.
2. In my opinion, this is the appropriate construction of s 7 in the context of the Act which separately provides for specific cruelty offences. Blow CJ used the analogy of negligent driving which, in my opinion, is a useful analogy. To use another analogy in the driving context, a charge of causing death by dangerous driving involves proof of dangerous driving. Almost inevitably, a number of aspects, or "qualities", will be attached to the driving in question. For example, the driver may have exceeded the speed limit, driven through a red light and driven with an excessive level of alcohol in the blood. Any one of those three aspects of the driving might support a finding that the driving was dangerous, but only one offence is involved. It would be different if the prosecution also sought to rely upon driving at a different time of day or in a different locality.
3. The charge is not duplicitous and, following the election by the prosecution, it is not uncertain or unfair. The essence of the case is obvious. The method of management used was the transport of 30 horses. In respect of 18 of the horses, the method used was, on the prosecution case, reasonably likely to have resulted in unreasonable and unjustifiable pain or suffering to the animals. The facts of the transport upon which the prosecution rely to establish that the transport was reasonably likely to bring about the prohibited result have been identified. If the magistrate convicts the appellant of the offence charged in count 1, it will be for the magistrate to determine which of the facts have been proved beyond reasonable doubt, and which aspects of the method of management resulted in the breach of s 7.

1. The appellant seeks leave to add a ground concerning an issue not raised before the magistrate or Blow CJ. The appellant seeks to argue that an omission to act by way of inspecting the animals cannot be a relevant aspect of the method of management because, in contrast to s 6 which imposes a specific duty to take all reasonable measures to ensure the welfare of an animal, s 7 does not impose a duty to act or prohibit an omission to act.
2. In support of the proposed ground, counsel relied upon the decision of Blow CJ in Mitchell v Marshall [2014] TASSC 43. His Honour was dealing with a motion for the review of a number of convictions relating to animals on a dairy farm, including convictions for offences against s 7 of the Act. The primary issue was whether the learned magistrate erred in finding that the offences created by ss 7, 8(1) and 9 of the Act are offences of strict liability.
3. In the course of his reasons, Blow CJ drew a comparison between the three sections under consideration:

"[27] It should be noted that s7, unlike ss8(1) and 9, does not prohibit any sort of omission. It only prohibits the use of a method of management that is reasonably likely to have certain results. There is therefore no reason why cases about criminal negligence should have any relevance to that section. By contrast, the offences created by ss8(1) and 9 can be constituted either by the doing of acts or by omissions to do duties."

1. Blow CJ then noted the duty created by s 6 and observed that a breach of the duty could be subject to a prosecution under ss 8(1) or 9.
2. Later in his reasons, having noted that each of the sections imposes a prohibition, his Honour identified the need for the prosecution to prove that the defendant used a method of management of an animal or group of animals. He added that the prosecution would need to prove that the use of the method of management was voluntary and intentional, but nothing in s 7 suggested a need to prove that the defendant intended, knew or foresaw the likely result of the method of management.
3. In observing that s 7 does not prohibit any sort of omission, Blow CJ was simply drawing a comparison between s 7 and the express prohibitions contained in ss 8(1) and 9 which included omissions to do a duty. His Honour made a general observation in the context of the issues before the court concerning the mental element of the offences. His Honour was not asked to determine whether an omission to act could comprise a method of management or be an aspect of such method. Nor was his Honour endeavouring to analyse "method of management" in any respect.
4. The decision of Blow CJ is not an authority for the proposition that an omission to perform an act cannot be regarded as an aspect of a method management for the purposes of s 7. Proposed ground 2 has no prospects of success, and is not raised in exceptional circumstances which would justify the grant of leave.
5. For these reasons, I agreed that leave should be refused to add proposed ground 2 and that the appeal should be dismissed.

1. The appellant, ("TT Line") appeals from a judgment of Blow CJ dismissing its motion to review a decision of a magistrate that a charge on a complaint is bad for duplicity for alleging multiple offences in the one charge: TT-Line Company Pty Ltd v Burrows [2020] TASSC 52.
2. TT Line also seeks to add a further ground of appeal, raising a matter that was not put to the magistrate or to Blow CJ. That ground alleges that the relevant charge is defective because it alleges an offence based on an omission to act. The respondent, an officer of Biosecurity Tasmania, opposes the grant of leave to add the new appeal ground.
3. There is also another threshold issue regarding whether the Supreme Court had jurisdiction to entertain the order to review. This matter was not argued before Blow CJ but raised with the parties by the Court prior to the hearing of the appeal. It is to that issue that I turn first.

1. Section 107 of the Justices Act 1959 ("the Act"), provides:

"(1) A person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order."

Under s 116 of the Act, "order" is defined as "In this Part, unless the contrary intention appears, order includes conviction, dismissal of a complaint, determination, and adjudication."

1. In a decision in transcript on 31 March 2020, the magistrate stated that she was satisfied that the argument as to duplicity was not made out. She had earlier indicated that it was a matter that may arise at the sentencing stage to ensure that an offender was not punished twice for the same offence.
2. Some guidance is given as to what is an order under s 107 of the Act by the judgment of Chambers J in Wilson v McCormack [1968] TASStRp 7; [1968] Tas SR 55 at 58, who said that the definition of "order" in s 116 should be widely construed, and that it is wide enough to include some, but not all, interlocutory orders, depending on the circumstances of the case.
3. In previous judgments of the Court, an order refusing or granting an adjournment has been held to be reviewable: see Norton v Loring [1976] TASStRp 4; [1976] Tas SR 40. On the other hand, the overruling of a no case to answer submission (Cowen v Estcourt [1976 Tas SR 115), or a ruling on admissibility of evidence (Haselman v Reid [1973] TASStRp 9; [1973] Tas SR 93) has been held not to be reviewable. These cases are discussed by Tennent J in Mitchell v Marshall [2012] TASSC 4 at [14]- [16].
4. The decision of the magistrate was an adjudication on a matter in dispute between the parties. While an interlocutory decision, it was an adjudication of the issue as to whether count 1 was duplicitous. Some interlocutory decisions in other matters coming to this Court from magistrates have been held to be "orders" under s 116 of the Act and others not. The definition of "order" in s 116 of the Act is inclusive rather than exhaustive, and Chambers J in Wilson v McCormack at 58 suggests a wider construction should be preferred to a narrower one. It is significant in the current matter that the question as to whether count 1 was duplicitous was a question going to the jurisdiction of the court below.
5. Having regard to the matters articulated in the foregoing paragraph, I consider that the dismissal of TT Line's argument that count 1 was duplicitous amounts to an "order" under s 116 of the Act as an "adjudication" to that effect by her Honour on a matter going to the jurisdiction of the court to hear a charge on count 1 as framed.

1. The impugned charge alleges a single contravention of s 7 of the Animal Welfare Act 1993. Section 7 provides:

"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. ...".

"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. ...".

1. During the hearing of the appeal the respondent confined the complaint to the method of management said to be in breach of s 7 as it specifically related to 18 horses in one trailer and said that his client would seek to amend the particulars when the case returns to the magistrate, making it clear that the prosecution case is based on the entirety of the method of management which includes various aspects, and clarifying that the charge relates to the harm done to 18 horses.
2. The particulars then continued under the heading "FURTHER PARTICULARS":

"(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. TT Line submitted before Blow CJ that the particulars of the count contain allegations of four separate offences. His Honour rejected that submission. At [36] he said:

"All of the particulars in question are particulars of one alleged 'method of management' of the group of animals."

1. His Honour observed that the particulars of the count were similar to the particulars provided to a charge of breaching reg 15(1)(b) of the Animal Welfare (Land Transport of Livestock) Regulations 2013 ("the regulations"). The Chief Justice held that although the particulars of the charge alleging breaches of the regulations did allege contraventions of the regulations, they did not make this count duplicitous.
2. At [40], Blow CJ concluded that:

"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."

1. The respondent provided further and better particulars in respect of charge 1 on 26 September 2019 after the original complaint, dated 11 June 2019, was served. Those further and better particulars gave further information as to why the respondent contended that s 7 of the Act had been breached. They dealt with:
   • the failure to permit inspection of the horses by reason of a policy not to do so;
   • the failure to conduct an adequate inspection;
   • the failure to conduct an inspection at appropriate times;
   • the failure to assess whether the horses were safely mustered and assembled or to assess the design and condition of the transport unit;
   • the failure to pack the horses appropriately;
   • the failure to repack them during transport;
   • the failure to pack them in accordance with the regulations;
   • the unjustifiable pain and suffering to the horses.
2. TT Line has seized upon the above dot points, including the second last dot point in the preceding paragraph, to allege that it contains allegations of breach of the regulations in three respects, thereby making the count more duplicitous.
3. TT Line contends that, in the charge, multiple methods of management are specified:
   • inspection of horses during the voyage by passengers accompanying the horses;
   • inspection by TT Line before, after or during the voyage;
   • inspection of the way in which the horses were packed;
   • not packing the horses so that they were individually stabled in accordance with reg 34(6)(b).

TT Line says each of those matters is sufficient to sustain a charge under s 7 of the Act. TT Line says each of the above particulars amount to a method of management.

1. The respondent supports the view of the Chief Justice that all of the particulars in question are particulars of one alleged "method of management" of the group of animals, there being several aspects to that method.
2. In Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 104 ff, Kirby J discussed the principles governing duplicity in criminal courts. He said:

"It is a product of the accusatorial trial which has long insisted upon precision in the statement of the charge which the accused has to meet. ... Under the rule of precision, no one count of the indictment should charge the accused with having committed two or more separate offences."

1. Kirby J in Walsh v Tattersall at 111, considered the count in that matter to be duplicitous because it alleged several instances of illegal payments, whereas the purpose of the relevant section of the Act in question was to create a separate offence for each payment or benefit.
2. Gaudron and Gummow JJ held that the appellant was not charged with any offence because the provision in question intended to create a discrete offence on the receipt of any one payment: see at 89-91. Their Honours specifically observed at 91 that the offence is to be contrasted with one dealing with a course of conduct.
3. Dawson and Toohey JJ (dissenting) at 84 in Walsh v Tattersall discussed the meaning of the rule against duplicity, citing Archbold, where the following is said:

"The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences ... This rule though simple to state is sometimes difficult to apply. ... Duplicity in a count is a matter of form, not evidence."

1. Dawson and Toohey JJ at 83, noted that the case against the appellant was that there was "a course of conduct which amounted to one compendious false pretence of incapacity to work". At 87, their Honours said:

"... the practice of laying charges of a compendious kind can place an accused in a position of difficulty. In most cases the uncertainty can be dispelled by further and better particulars. But it may be preferable, where various amounts of money are paid on different occasions, as in the present case, that more specific charges be laid."

1. Curiously, in the present case, it is the provision of further and better particulars that is said to identify the duplicity. The purpose of further and better particulars is to assist a defendant to understand the charge laid against that party. In this case, the charge was that TT Line, which had the care or charge of a group of animals, used a method of management that was reasonably likely to have resulted in unreasonable pain or suffering to an animal in the group as a result of exposure to acute heat stress and asphyxiation due to suffocation in a confined space, such exposure not being identified as a result of a failure to inspect the horses during the voyage.
2. The charge sets out what amounts to a method of management likely to result in unreasonable and unjustified pain and suffering to animals. It makes reference to the central problem alleged with the method of management referred to in the charge by referring to exposure of 18 horses in a transport and trailer unit to heat stress and suffocation in a confined space, not being identified as a problem as a result of a failure to inspect the horses during the voyage. That charge is not duplicitous. It refers to a single course of conduct using a prohibited method of management. The particulars of the count go into detail regarding the problems with the method of management chosen by TT Line to demonstrate that it was reasonably likely to result in the harm referred to in s 7 of the Act.
3. The fact that the further particulars in the count set out the method of management used and assert it also breaches the regulations is not to the point. Nor is it relevant to the duplicity argument that the particulars provided in September 2019 referred to three other matters which could separately constitute breaches of the regulations.
4. A method of management which offends s 7 of the Act may also offend various provisions of the regulations. However it would be artificial to allege a breach of s 7 in respect of every aspect of what constitutes a method of management. The section is addressing one method of management, not various aspects or sub-sets of a method of management that go to make up that method. As Basten JA said in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373, 205 FLR 217 at [9]:

"[9] ... Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such an act has more than one of the proscribed qualities."

1. The current matter is analogous to charges which may be laid against registered persons in the greyhound industry concerning animal welfare under r 106 of the Greyhounds Australasia Rules ("GAR"). Under GAR, 106(2):

"A registered person must exercise such reasonable care and supervision as may be necessary to prevent greyhounds pursuant to the person's care or custody from being subjected to unnecessary pain or suffering."

GAR, r 106(1)(d), requires a registered person to ensure that all greyhounds in that person's custody be provided at all times with veterinary attention when necessary. It may be that part of the particulars in a charge under GAR, r 106(2), would be that the registered person failed to take reasonable care not to subject a greyhound to unnecessary pain and suffering by refusing to take an injured greyhound to a veterinarian. That would not make the charge under GAR, r 106(2), duplicitous and would not prevent a charge being brought under GAR, r 106(1)(d), which may be considered for penalty purposes, in the event of the charges being proven, as part of a single course of conduct.

1. I agree with the submission of counsel for the respondent that the offence charged is one of utilising a particular method of management in transporting horses. The further and better particulars do no more than refer to aspects of the regulations that constitute elements or aspects of the method of management used by TT Line. Any or all of those particulars may lead the trial court to consider that a method of management was adopted that was reasonably likely to have resulted in unreasonable pain or suffering by the animals.
2. Any aspect of claimed duplicity could arise at the sentencing stage, as would occur with the greyhound example referred to above, should a case of that kind come before a State racing tribunal.
3. Counsel for TT Line submits that the judgment of the High Court in Kirk v Industrial Relations Court of NSW [2010] HCA 1, 239 CLR 531 demanded a contrary conclusion. I disagree. Kirk was not a case dealing with duplicity but, as demonstrated in [28] of the judgment, one dealing with a failure to provide particulars which would amount to an offence under the relevant sections. Nor does Director of Public Prosecutions v Vibro-Pile Aust Pty Ltd [2016] VSCA 55, 49 VR 676 at [142] assist TT Line, as there the Court of Appeal emphasised that the relevant legislative provision imposed a variety of distinct obligations, each requiring the employer's separate attention. Here s 7 imposes the one obligation of not using a prohibited method of management.
4. Ground 1 of the appeal should be dismissed.

1. TT Line seeks leave to add an additional ground of appeal raising a matter not raised before Blow CJ or the magistrate. TT Line admits that this matter can be raised before the magistrate when the matters return to her, but considers it expedient for the Court to deal with the issue. Counsel for TT Line concede that the consideration of a new ground not previously raised, in a court of first instance, can be raised in the interests of justice but only in exceptional circumstances: see Cramptom v The Queen [2000] HCA 60, 266 CLR 161 at 171 [12], per Gleeson CJ.
2. The point raised by TT Line is that s 7 of the Act does not deal with the omission to perform an act, whereas the particulars provided allege an omission to do an act as being part of the method of management.
3. I would not grant leave for this ground of appeal to be argued given that it is not raised in exceptional circumstances. In the event that leave should have been granted, I would reject the ground. The argument in support of the proposed ground of appeal seeks to argue that in Mitchell v Marshall [2014] TASSC 43, 27 Tas R 1, Blow CJ considered that s 7 of the Act did not comprehend any omission to act, but only punished overt acts. In my view such an approach is inconsistent with the concept of a method of management which may include positive acts which may be alleged to be harmful to animals, as well as failure to take certain actions which result in harmful consequences to animals, and be part of one method of management. In any case I agree with the submissions of counsel for the respondent that Blow CJ's judgment in Mitchell v Marshall does not exclude the possibility of an omission being part of a method of management. The question in that case concerned whether there was a specific mental element attached to overt acts. The case does not stand for the proposition that omissions cannot form part of a method of management and, if it did, with respect, it would have been wrongly decided.
4. For the foregoing reasons, I would dismiss the appeal.

1. On 5 March 2021 following the hearing, the Court refused leave to add a second ground of appeal, and dismissed the appeal. The Court said it would later publish its reasons. I have read the reasons for judgment of both Martin AJ and Marshall AJ, and generally agree with their Honours. I want to add some comments about the jurisdictional point. Additionally, in deference to the appellant's detailed submissions about four 'duplicity' cases, I will say something about them and the submissions made.

1. Section 107 of the Justices Act 1959 is set out in the reasons of Martin AJ. The issue of whether the appellant was a person "aggrieved by an order" was raised with the parties by the Court before the hearing of the appeal. Section 116 of the Justices Act extends the meaning of "order" to include "determination" and "adjudication". The respondent did not argue that the motion to review the magistrate's ruling was incompetent.
2. In my respectful view, discussion of this issue should include the regime relating to "general procedure" under the Justices Act. Section 31 relevantly provides as follows:

(1) An objection shall not be taken or allowed to a complaint in respect of -

(a) an alleged defect therein, in substance or in form; or

(b) a variance between it and the evidence in support thereof.

(2) Notwithstanding the provisions of subsection (1), where -

(a) a complaint fails to disclose an offence or matter of complaint; or

(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection -

the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.

(3) If it appears to the justices that the complaint -

(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and

(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect -

the justices may amend the complaint upon such terms as may be just."

1. An allegation of duplicity falls within the matters referred to in s 31 as involving a defective complaint. This is made clear by Leeming JA in Environment Protection Authority v Truegrain Pty Ltd [2013] NSWCCA 204, 85 NSWLR 125. At [36]- [40], his Honour set out the historical background of the rule against duplicity in the context of summary proceedings. As appears from that outline, controls over the nature of objections able to be taken in proceedings before magistrates were first introduced in England by Jervis's Acts, adopted in Tasmania in 1855. Section 31 is derived from that source.
2. At [38], Leeming JA alluded to the resulting situation in which courts exercising summary jurisdiction became empowered to take courses as alternatives to dismissal where duplicity existed; namely, ordering particulars, requiring a prosecutorial election or permitting amendment. His Honour said "... [T]he rule against duplicity became not so much a basis for quashing an originating process (or a conviction based upon it) as a means to identify when one or more of the other powers was to be exercised."
3. His Honour went on to note statutory provisions in New South Wales similar to s 31, and cited a number of authorities for the proposition that the doctrine of duplicity continues to apply in the exercise of summary jurisdiction, as governed by those provisions. Whether the issue is one of "substance"[3] or "form"[4] does not need to be decided. Defects in both are, of course, mentioned in s 31.
4. Under the Justices Act there is the extended definition of "order". The magistrate in this case made a determination or an adjudication in relation to an issue under s 31 of the Justices Act. The submission with which her Honour was dealing was one which went to the power of the court to embark upon a hearing of a complaint in the form in which it was. A refusal to summarily dispose of a complaint is a refusal to exercise a definite jurisdiction; Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620 per Dixon CJ at 635. To that, I think one can safely add a refusal to take any other available remedial action. The determination of an adjudication was made in the context of a process provided for in the statute, and the ruling was properly the subject of a motion to review.
5. This view of a ruling under s 31 was taken by Brett J in Roadside Products Pty Ltd v Cocker [2018] TASSC 6, referred to in the judgment of Martin AJ. In that case there was a submission to the magistrate that the charge did not disclose an offence or was bad for duplicity. The magistrate rejected the duplicity argument but agreed there were deficiencies in the particulars, apparently without accepting the submission that this rendered the charge invalid. Questions of amendment and the limitation issue then arose, and the matter was adjourned for further argument. A notice to review this and another ruling was filed, and the jurisdictional point was taken. At [30], Brett J said the magistrate had "not yet made an order" which was capable of review; there has been no determination or adjudication because the magistrate had not yet completed the procedural process set out in s 31(3).

1. Section 7 of the Animal Welfare Act 1993 creates an offence. It provides that 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. The first charge on the complaint against the appellant was under this section. The details of charge 1, the particulars of that charge and the further particulars supplied are set out in the reasons of Martin AJ, and there is no need for me to repeat them. The appellant's case was one of duplicity apparent from the particulars and the suite of further particulars provided.
2. In its simplest form, the rule against duplicity is that no one charge can allege the commission of two or more separate offences. In Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 84, Dawson and Toohey JJ said the rule was simple to state but sometimes difficult to apply. Questions of degree are often involved. As Martin AJ has shown, the identification of duplicity is firstly by way of a consideration of the statutory description of the particular offence in order to identify the prohibited act or conduct, and secondly by identification of the act or conduct pleaded as constituting the offence. See Walsh v Tattersall per Kirby J at 100-102; Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373, 205 FLR 217 at [9]. The appellant did not seek to argue otherwise.
3. On examining the elements of the offence, a proper construction might show that the offence is concerned with an act of a particular nature, with acts forming part of a transaction, or a composite activity or a course of conduct. See Walsh v Tattersall per Kirby J at 108-109; Environment Protection Authority v Truegrain Pty Ltd (above) at [47]-[52] per Leeming JA (RA Hulme and Button JJ agreeing).

1. Truegrain is the first of the four cases I referred to earlier as being discussed and relied on by the appellant. Truegrain concerned s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) which made it an offence to contravene the condition of an Environment Protection Licence. The condition said to have been breached required (among other things) the carrying out in a competent manner of the treatment, storage, processing, transport and disposal of waste. The summons alleged incompetence particularised in six separate paragraphs. Two of those involved treatment and storage in the same paragraph, two dealt separately with treatment and storage, and two were capable of including both.
2. The Court of Criminal Appeal held that the particulars disclosed more than one offence. The Court said the distinct particularised acts and omissions which concerned both storage and treatment were not part of a single criminal enterprise. Each was capable of independently amounting to a breach of the condition, thereby giving rise to separate offences under that section. Accordingly, the particulars disclosed more than one offence. See [55]-[56].
3. At [57] Leeming JA went on to demonstrate how that was so. For instance, incompetent storage was alleged on six days in a roughly three week period, while incompetent treatment was alleged on six different days in the same time frame. Further, the particulars "revealed the obvious fact that waste was stored other than where it was treated, and competent storage involves quite different acts and omissions from its competent treatment." His Honour noted it seemed "equally obvious that incompetent storage could constitute a breach of condition considered alone, as may incompetent treatment", and said "Test the matter this way: it is not the case, in my opinion, that the charge would inevitably fail unless both the storage and the treatment particulars were made out." As I will reveal, that statement assumes some significance in the appellant's submissions.
4. The remaining three cases are all referred to in Truegrain. The first is Byrne v Baker [1964] VicRp 57; [1964] VR 443. It involved a charge under s 107 of the Companies Act 1958 (Vic). The section provided that a director shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office. In response to a request for particulars, a large number of specific instances were provided relating to a period of about two years. The Full Court (Herring CJ, Smith and Adam JJ) at 452 noted the debate in the following terms: whether "the gist of the offence"[5] lay in the failure to be a reasonably diligent director, or whether on a true construction of s 107 it was each and every omission amounting to a failure to use reasonable diligence, that constituted an offence.
5. The Court said the language used in the section was appropriate and designed to introduce an aspect of the concept of negligence. That "concept ... has reference to identifiable acts or omissions, not to any general characterisation of the conduct of a director over a selected period".
6. Byrne v Baker was applied by Fullagar J in Chugg v Pacific Dunlop Ltd [1988] VicRp 49; [1988] VR 411. His Honour was dealing with s 21(1) of the Occupational Health and Safety Act 1985 (Vic) which provided that an employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health. Section 21(2) provided that without in any way limiting the generality of subs (1), an employer contravened that subsection if the employer failed to do a number of things that were enumerated in subs (2). Section 47 provided that any person who contravened any provision of the Act shall be guilty of an offence.
7. After discussing Byrne v Baker, at 416 Fullagar J said that using the word "gist" in the same sense as the Full Court, the gist of the offence did not lie in a failure to have maintained at all times a constant environment. Rather, on the true construction of the sections, it was each and every failure by the employer that constituted an offence under the section.
8. A similar statutory regime was considered in Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150. Section 15(1) of the Occupational Health and Safety Act 1983 (NSW) created a general duty on employers to ensure the health and safety of employees at work. Section 15(2) set out a list of particular duties, breach of any one of which meant a breach of subs (1). By majority (Hill and Hungerford JJ), the Industrial Court followed the approach of Fullagar J in Chugg v Pacific Dunlop Ltd.
9. At 179, Hill J said the gist of the offence created by s 15 was not the single act or omission of failing to observe a general duty to maintain at all times a safe working environment which may possess one or more of a number of characteristics or features, but each particular act or omission which amounts to a failure to maintain that environment. Similarly, at 209-210 Hungerford J observed that the manner in which the section may be breached gave rise to separate breaches of the same offence, so that including all circumstances in the one information made it bad for duplicity. His Honour found Chugg "persuasive and directly applicable."
10. In the present case, the appellant noted "in summary" that the last three authorities dealing with negligence or negligence-type fault elements, required the act or omission relied on to be particularised and to follow the rule against duplicity. The appellant submitted the cases emphasise the need to analyse the provision creating the offence and the charge as laid by the prosecution, and to identify the act alleged to constitute the offence; once this analysis has been undertaken, consideration needs to be given to whether the particulars of the charge disclose more than one offence or whether all particulars need to be proved in order to prove the offence: "The Court should consider whether the charge can be proved on the basis of one particular standing on its own". This analysis, it was said, was not undertaken by the primary judge in this case. The quoted part of the submission is a reference to what Leeming JA said in Truegrain at [57], set out above.
11. In argument, senior counsel for the appellant submitted that the Court of Criminal Appeal had "posed a question that courts should ask themselves in determining this question about whether a charge is duplicitous". A distinction was drawn between particulars which are evidentiary on the one hand, and on the other hand constitute separate offences; that being at the heart of the distinction discussed in the cases on duplicity. Senior counsel submitted in effect that the particulars in this case could each amount to an offence against the section, and the "test" to be applied was that adopted by Leeming JA.

1. As to these submission, they correctly state the need to examine the offence so as to identify the nature of the proscribed conduct, and the need to identify the conduct charged. But it seemed to me that this exercise was effectively ignored in favour of close scrutiny of the particulars in isolation. It is the proper construction of the offence that governs the characterisation of the particulars of the conduct said to constitute that offence. The construction exercise determines what the offence can bear in terms of the alleged conduct without offending the rule against duplicity. The appellant did not confront that issue.
2. I do not think it is correct to say that in Truegrain the Court formulated a test in terms of whether the particulars of the charge disclose more than one offence, or whether the whole of the particularised conduct needs to be established to prove the offence charged. That is not a test in itself. The choice of alternatives can only be determined by the proper construction of the offence. That is the anterior question.
3. What Leeming JA said in Truegrain has to be put in its context. It seems clear to me that his Honour was illustrating the point he had made - in the exercise of looking at what was alleged in the context of the proper construction of the offence - about the storage/treatment dichotomy and the various acts and omissions involved. That is made plain by the words themselves in [57] and by what is said in the passages in the judgment that follow.
4. After referring to the prosecution's submission that the alleged criminality involved a licensed activity which included such things as treatment and storage of waste, at [59] Leeming JA continued:

"It may be accepted that the scheduled activity of 'Waste processing (non-thermal treatment)' was one of the licensed activities, and that all aspects of it, including 'treatment, storage, processing, reprocessing, transport and disposal of the waste generated by' the licensed activity were required to be carried out in a competent manner. But in my opinion, in circumstances where as here what is to be carried out competently are different (albeit related) activities, one of which is storage, another of which is treatment, the fact that the condition deals with that conduct collectively is not to the point. The element of the offence is the contravention of the condition. But the condition, ... refers in terms to both storage and treatment. A contravention will occur when treatment is undertaken other than competently, and a contravention will also occur when storage is undertaken other than competently. In other words, it is not necessary in order to breach a condition requiring the carrying out of a scheduled activity competently to store waste incompetently and to process waste incompetently."

1. Indeed, his Honour went on at [70] to say that each case turns on the elements of the offence the subject of the charge. He discussed Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361, in which the Court at 362 endorsed (obiter) the proposition that a prosecution based on a single offence comprising a failure to maintain industrial plant installed on premises in an efficient condition contrary to a licence condition, could be particularised by reference to five separate items of equipment. This was on the basis that the sewerage treatment plant concerned was "a single entity wherein the free flow of liquids is interrupted by individual items of plant".
2. Leeming JA said the five items "would seem to have been closely linked operationally." As a further instance, his Honour said that likewise, in Hakim v Waterways Authority of New South Wales [2006] NSWCCA 376, 149 LGERA 415, the statutory offence was to "make an excavation on, in or under protected land", and the single charge extended to two excavations on the same site, separated in time, and a third excavation immediately following the second.
3. Each of the four cases the subject of analysis by the appellant is generally orthodox in its approach. Each is readily explicable on its facts. There is no assistance by analogy because each can be distinguished from the present one. The point of distinction is simply one of statutory construction.
4. Section 7 of the Animal Welfare Act is concerned with the use of a method of management reasonably likely to bring about a particular result. The proscribed act or conduct is that of using such a method of management. The conduct alleged is the use of a certain method of management on the particular occasion. The incident of use is unambiguously identified by date, voyage, vessel and truck/trailer unit. The controversial particulars set out in the complaint, and the plethora of further particulars, go to the method of management. As Martin AJ has said, a method of management will almost inevitably have different features or aspects, and be likely to encompass a period of time.
5. The appellant submitted that each individual particular would amount to an offence if it was reasonably likely to result in unreasonable and unjustifiable pain or suffering. That submission must be rejected. It may well be that one particularised aspect of the method of management could be the subject of a charge of using a method of management under s 7, but to say that each feature or aspect must necessarily be the subject of a separate charge is to adopt an unrealistic and unnecessarily restrictive construction of the provision. It would impose a high degree of artificiality. The "use of a method of management" is to be construed as "one activity": Walsh v Tattersall at 107; Truegrain at [50].
6. Some aspects of the method of management might fall foul of other provisions of the Act or of regulations but that is of no consequence. The references in the further particulars to relevant regulations are merely descriptive of what is alleged. The exercise could have been easily done by way of setting out the thrust of the particular regulation, without express reference to it.

[1] Canning v Smith [1969] TASStRp 3; [1969] Tas SR 8; Thow v Lowe [1988] TASSC 37; Mitchell v Marshall [2012] TASSC 4; Roadside Products Pty Ltd v Cocker [2018] TASSC 6 at [52].

[2] Hessleman v Reid [1973] TASStRp 9; [1973] Tas SR 93; Adam Dez Phillips v Sergeant Roger Richardson [1997] TASSC 112.

[3] Environment Protection Authority v Truegrain Pty Ltd at [65].

[4] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 per Kirby J at 102 citing R v Greenfield, Barker, Creek, Mendleson (1973) 57 Cr App R 849 at 855-856.

[5] In Walsh v Tattersall at 178-179, Kirby J said that not a great deal of help is given by putting the test in this way.