TT Line Company Pty Ltd v Burrows [2021] TASFC 3

TT Line Company Pty Ltd v Burrows [2021] TASFC 3 - TASFC 2021 case summary — Zoe

[60]

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.
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.
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.
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:

[73]

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.
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.
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.
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:

[78]

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).
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".
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.
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).
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.
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.
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.
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]:

[82]

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.
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.
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.

[90]

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.
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.
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].
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.
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.

[111]

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.
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.
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.
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]:

[117]

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.
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.
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.
For the foregoing reasons, I would dismiss the appeal.

[131]

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.
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."
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.
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.
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).

[133]

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.
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].
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.
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.
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".
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.
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.
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.
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."
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.
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.

[136]

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".
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.
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.
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.
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].
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.

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Judgment (141 paragraphs)

TT Line Company Pty Ltd v Burrows [2021] TASFC 3 (22 March 2021)

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