Turner v Cole [2005] TASSC 72

1 The applicant is aggrieved by orders made by a magistrate on 3 May 2005 whereby he was convicted of omitting to do a duty which resulted in the serious disablement of an animal, contrary to the Animal Welfare Act 1993 ("the Act"), s9, fined $4,000 plus $263.82 costs, and ordered pursuant to the Act, s43(1)(d), not to have the possession or care of any more than 20 horses for a period of five years, with effect from 1 August 2005. The applicant contends that he was wrongly convicted, and that the penalties were manifestly excessive.

2 Under the Act, s6, a person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of that animal. The prosecution case was that the applicant had the care or charge of a horse that needed veterinary attention; that he therefore had a duty under s6 to ensure that the horse received veterinary attention; that he omitted to obtain veterinary attention for the horse; and that the horse became seriously disabled as a result, to such an extent that it needed to be shot. The applicant's case was that the horse did not need veterinary attention; that it was not seriously disabled; and that it did not need to be shot.

3 The hearing extended over five days in the first half of this year: 12 January, 21 February, 21 and 22 March, and 3 May. The prosecutor called four witnesses: a constable named Sargent, two RSPCA inspectors named Lewis and Wyld, and a veterinary pathologist, Dr Pyecroft. He also tendered five photographs, and a video said to have been filmed on 19 and 21 May 2003. The evidence against the applicant was essentially as follows. On 12 May 2003 Mr Lewis went to the applicant's property at Garden Island Creek, but the applicant was not home. Mr Lewis saw two thin horses. He filmed a video of one of them, which was in a worse condition than the other, but that video was not available at the hearing, possibly as a result of having been taped over. Mr Lewis left a card with a message asking the applicant to call him. Mr Lewis spoke to the applicant by telephone on 15 May 2003. He told the applicant to have the animals attended to by a veterinarian, but the applicant said that he knew what he was doing. On 19 May 2003 Mr Lewis visited the applicant's property again. The applicant was not at home. Mr Lewis saw the horse that was eventually shot. It seemed to be in worse condition than before. He filmed another video and took some photographs. On 21 May 2003 Mr Lewis visited the applicant's property again, with Mr Wyld, Constable Sargent, and another police officer. Another video was filmed that day. The applicant was at home. He told Mr Lewis that he had not had the horses treated by a veterinarian. Mr Lewis told the applicant that it was his intention to seize the animals and take them away. The applicant told Mr Lewis that he was not taking his horses, told him to leave his property, and said that he had been treating the horses and knew as much as any vet. The applicant attempted to chase the horses away. Mr Lewis captured the weaker horse in a stable, and put a halter on it. He and Mr Wyld then led that horse to the front of the house, intending to load it onto a float. The horse collapsed. The two RSPCA inspectors and the applicant tried unsuccessfully to get it to its feet. Mr Lewis took veterinary advice by telephone, and euthanised the animal. Its body was taken to the Mt Pleasant laboratories of the Department of Primary Industries, Water and Environment ("DPIEW"), where it was seen on arrival by Dr Pyecroft. He observed it to be in a poor condition. It was examined by another veterinary surgeon, Dr Chadwick, under the supervision of Dr Pyecroft. Dr Chadwick wrote an autopsy report, and later went to live in Hong Kong. Having observed the body of the horse, Dr Pycroft's opinion was that it was scouring badly, to the extent that it had faeces caked down both hind legs, as a result of severe diarrhoea over about six to eight weeks. He said in essence that he would have expected a horse in such a condition to need veterinary treatment so as to properly identify and treat the cause of the diarrhoea.

4 The applicant denied having seen the card that Mr Lewis said he had left. He denied having spoken to Mr Lewis on the telephone. He contended that some of the photos produced by Mr Lewis were not photos of the horse to which the charge related. He gave evidence to the effect that the horse had been born and bred on his property; that it was being properly cared for by him; that he was treating the diarrhoea adequately; and that the horse did not need veterinary assistance. He said that the animal had been abused and mistreated by the RSPCA officers just before they killed it, and that it had collapsed as a result.

5 I gave the applicant leave to amend his notice to review by substituting nine amended grounds of appeal. In essence they raise the following contentions:

* that the applicant was denied procedural fairness (grounds 1 and 2);

* that illegally obtained evidence was wrongly admitted and relied on (grounds 2, 3, 5, 6 and 8);

* that Dr Pyecroft was not qualified to give expert evidence about horses (ground 7);

* that the prosecution evidence as to the cause of the horse's disablement should have been rejected (ground 4);

* that the penalties imposed were manifestly excessive (ground 9).

6 The applicant requested copies of the autopsy report, witness statements and videos prior to the hearing, without success. According to an affidavit sworn by the applicant, he wrote to the Minister for Primary Industry in mid-2003 demanding (inter alia) a copy of the autopsy report, did not receive a reply, wrote to the Commissioner of Police about various matters including the autopsy report on 18 July 2003, and received a reply that did not include a copy of the autopsy report. He requested a copy of the autopsy report in a letter to the Secretary of DPIWE on 30 July 2003, but the Secretary wrote back advising him to seek a copy from the RSPCA. According to his affidavit, he then sought the autopsy report from the RSPCA, but did not receive it; he had a very heated phone conversation with Mr Lewis; and he wrote again to the Secretary of DPIWE demanding the report, but did not receive a reply. On 17 September 2003 he asked for a copy of the autopsy report in a long letter to the Deputy Commissioner of Police. The Deputy Commissioner wrote back saying that the information could be obtained by contacting Inspector Scott of Kingston. According to the applicant's affidavit, he immediately wrote to Inspector Scott, and in his letter demanded to receive "copies or evidence of any veterinary evidence/opinion Mr Lewis presented to Inspector Scott to obtain the assistance of Police", but he did not receive a reply to his letter. On 19 February 2004 a magistrate made an order for disclosure by the prosecution, but the terms of that order do not appear in the material before me. The applicant wrote to the officer in charge of the Tasmania Police Southern Regional Prosecution Services on 4 May 2004 requesting the disclosure of documents. A sergeant sent back an undated letter saying that the relevant documents would be disclosed "at the normal disclosure fee of $38.50". The applicant was unemployed, and thought he should not have to pay such a fee. According to his affidavit, he wrote to senior police officers three times in June 2004 "demanding the necessary materials" to conduct his defence, without receiving a reply. On 31 August 2004 he wrote a long letter to the Minister for Agriculture in which he demanded "the autopsy report and videos" (as well as the sacking of Mr Lewis and Mr Wyld and $5,000 damages), but according to his affidavit he did not receive a reply. He wrote to the police again on 1 January 2005, without success.

7 The applicant was an unrepresented defendant. If convicted, he faced a very substantial fine. He was going to defend himself. It was going to be necessary for the prosecution to call a veterinary surgeon to give expert evidence. It would have been unjust to expect the applicant to cross-examine that expert without first having had an opportunity to take expert advice about the autopsy report. Videos had been filmed for use as evidence against the applicant. It was unfair for him not to be offered at least an opportunity to view them before the hearing. A magistrate had made an order for disclosure. That order had been ignored. The provision of copies of witness statements and photographs would have involved little effort and would have cost almost nothing. I have not enquired as to the legality or otherwise of the standard charge of $38.50, but it appears from the transcript that there was a policy that that fee could be waived at the request of an impecunious defendant. However that policy was apparently not disclosed to the applicant. Taking all those circumstances into account, it seems very clear that the applicant was unfairly treated prior to the hearing. However it does not follow that he was ultimately denied procedural fairness.

8 At the very start of the hearing, the applicant complained to the learned magistrate that he had not received the witness statements, the autopsy report, or the videos. He said he wanted them. The learned magistrate persuaded the prosecutor to make copies of the witness statements and give them to the applicant, and to allow him to inspect the photos that were to be tendered, but, in relation to the video, said, "Mr Turner can see that when I see it." Apparently the prosecutor had a single video with film from 19 and 21 May 2003. The case was stood down to give the applicant an opportunity to read and consider the witness statements and the autopsy report, and to inspect the photographs. On that first day of the hearing, Constable Sargent and Mr Lewis completed their evidence, the video was screened and tendered during the evidence of Mr Lewis, and Mr Wyld gave his evidence-in-chief. The hearing was then adjourned for over five weeks. At a later date, the learned magistrate held that Mr Chadwick's autopsy report was inadmissible. Although Constable Sargent completed his evidence on the first day, 12 January, he was recalled and further cross-examined on 21 March. Apparently the applicant asked the learned magistrate for a second screening of the video, but that request was refused.

9 The applicant contends that he was denied procedural fairness and natural justice as a result of not being provided with the witness statements, autopsy report and photographs prior to the hearing, and as a result of being afforded an opportunity to view the video only once, during the evidence of Mr Lewis. I think it is quite clear that the learned magistrate afforded him a sufficient opportunity to inspect and consider the witness statements, autopsy report and photographs on the first day of the hearing. He was not required to cross-examine Mr Wyld or Dr Pyecroft until weeks after the first day of the hearing, and had a second opportunity to cross-examine Constable Sargent. He had an opportunity to take expert advice in relation to the autopsy report, and that document was never tendered. As far as the request for a second screening of the video is concerned, I think it is important to remember that this was a hearing in a court of summary jurisdiction. Defendants in the Magistrates Court are usually not provided with transcripts. They do not get an opportunity to listen to the audiotapes of the evidence. They hear the evidence once, and have to do their best. Against that background, I do not think that screening the video only once resulted in a denial of procedural fairness to the applicant. He told me that he saw it for a second time shortly before the hearing of the motion to review, and noticed important things that he had not noticed before. No doubt a defendant provided with a transcript would often notice aspects of the evidence that he or she had not noticed when the evidence was being given. It does not follow that there was any unfairness.

10 In my view, the grounds of appeal relating to procedural fairness must fail.

Admissibility of evidence obtained by RSPCA officers

11 A person who has been appointed to be an officer for the purposes of the Act under s13 thereof has a variety of statutory powers. Under s16(1), he or she may, without warrant, enter and search premises, if he or she reasonably believes that there is on the premises an animal in respect of which an offence under the Act has been, or is being, committed. Under s16(4A), he or she may, in entering or searching premises, inspect or examine any animal on the premises. Under s16A, he or she may take photographs and make videos. Under s24(1), he or she may kill an animal if he or she believes the animal is diseased or is otherwise suffering, and if he or she reasonably believes that the disease or other suffering will cause the animal continued and excessive pain and suffering. Under s25(1)(a), he or she may require a veterinary surgeon to carry out any examination that may be necessary to determine the extent of any disease or suffering endured by an animal. Under s24(3), he or she may dispose of the carcass of an animal that he or she has killed under s24(1), provided there has been no request from the owner to make the carcass available. All of these provisions authorise an officer appointed under s13 to do things that would otherwise not be lawful without the permission of the owner of the animal and/or premises in question.

12 The hearing before the learned magistrate related not just to the charge under s9 that I have referred to, but also to two other charges - a charge under the Act, s41, of obstructing a person in the exercise of a power conferred by the Act, and a charge of assaulting a public officer in the execution of his duty contrary to the Police Offences Act 1935, s34B(2)(a). The prosecution alleged that Mr Lewis was an officer appointed pursuant to the Act, s13, and that, at the time of the visit to the applicant's home on 21 May 2003, the applicant had obstructed and assaulted him when he was exercising his statutory powers. The prosecutor did not adduce evidence of Mr Lewis having been appointed under s13. The learned magistrate therefore held that the applicant had no case to answer in respect of the obstruction and assault charges, and dismissed them. The applicant contends that, in determining whether the only other charge, that under s9, was proved beyond a reasonable doubt, the learned magistrate should have proceeded on the basis that Mr Lewis and Mr Wyld had not been appointed under s13; that he should have proceeded on the basis that they entered the applicant's property as trespassers; that he should have treated the photographs, the video, and the possession of the carcass of the horse as having been illegally obtained; and that he should therefore have treated the photographs, the video, the evidence of the observations of Mr Lewis and Mr Wyld, and the evidence of Dr Pyecroft's observations of the carcass as inadmissible. All of that evidence had been adduced without objection.

13 Under the Evidence Act 2001, s138(1), evidence that was obtained in contravention of an Australian law, or in consequence of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. However that subsection has effect only when a court has made a positive finding that the evidence was obtained in contravention of an Australian law or in consequence of such a contravention. The learned magistrate did not make a finding that any of the evidence before him had been obtained in contravention of an Australian law or in consequence of such a contravention, nor was he asked to. There was no evidence before him one way or the other as to whether Mr Lewis or Mr Wyld had been appointed as officers under s13. The obstruction and assault charges were dismissed not because of evidence of non-appointment, but because of the absence of evidence of appointment. Without evidence of non-appointment, the learned magistrate could not make a finding that either Mr Lewis or Mr Wyld had done anything in contravention of an Australian law, and there was no basis for him to conclude that any of the evidence had been illegally obtained.

14 Ground 7 of the amended grounds of appeal reads as follows:

"The learned magistrate erred in fact and/or in law by accepting Stephen Pyecroft as an expert witness with respect to horses when;

(b) He hadn't practised in horses for over 15 years and viewed a horse abused by the RSPCA;

(c) He tried with RSPCA Inspector G Lewis to manufacture documentary evidence for the Court;

(d) He did not know the names of Australia wide and commonly used horse feed;

(e) He was the overseer of a negligent autopsy report on the horse withheld from me for 2 years; and

(f) He knowingly misled the Court or withheld vital evidence."

15 The Evidence Act, s79, permits a person who has specialised knowledge based on the person's training, study or experience to give evidence of an opinion that is wholly or substantially based on that knowledge. There was undisputed evidence that Dr Pyecroft held degrees in veterinary science, that he had been a veterinary surgeon since 1985, and that he had worked with horses whilst in general practice in Queensland for several years in the late 1980s. He had specialised expertise as a fish pathologist, and was in charge of all the pathology work undertaken at the Mt Pleasant Laboratories. Because of his training, study and experience, he was undoubtedly entitled to give expert evidence as to the condition of the horse, on the basis of his observations of its carcass. Some of the points made by the applicant in ground 7 are relevant to the weight to be attached to that evidence, but not to its admissibility.

16 Ground 7(c) relates to some documentary evidence that was compiled in the hope of it being admitted in Mr Chadwick's absence. The learned magistrate held that evidence to be inadmissible. The creation and inadmissibility of that documentation is irrelevant to the question whether Dr Pyecroft was entitled to give expert evidence. As to ground 7(e), I am unable to say whether there was any negligence associated with the preparation of the autopsy report, since it was not admitted by the learned magistrate and is not before me. There was no evidence that Dr Pyecroft had been responsible for the applicant not seeing the autopsy report before the hearing. As to ground 7(f), there is nothing in the material before me to indicate that Dr Pyecroft knowingly misled the learned magistrate, nor that he withheld any evidence. Ground 7 must fail.

"The learned magistrate erred in fact and/or in law in failing to find that the death of the horse resulted from its mishandling by officers of the RSPCA and a gunshot wound administered by those officers."

18 In order to succeed upon this ground, the applicant would need to establish either that the learned magistrate made findings of fact that were not reasonably open to him upon the evidence, or alternatively that his finding of guilt was unsafe or unsatisfactory. The applicant's case was that the RSPCA inspectors had ill-treated the horse by chasing it around after their arrival on 21 May 2003. Their evidence was to the effect that they thought it needed attention, that the applicant chased it away, that they made reasonable efforts to capture it, that it collapsed after being captured, and that they ultimately had no reasonable choice but to shoot it. It was reasonably open to the learned magistrate to accept their evidence.

19 If the evidence before a magistrate lacks credibility, contains discrepancies or inadequacies, is unreliable, or otherwise lacks probative force, a judge reviewing a conviction or finding of guilt may conclude that the magistrate ought to have experienced a reasonable doubt, and that his or her finding of guilt is unsafe or unsatisfactory: Chidiac v R [1991] HCA 4; (1991) 171 CLR 432; M v R [1994] HCA 63; (1994) 181 CLR 487; Kelly v O'Sullivan [1995] TASSC 72; (1995) 4 Tas R 446.

20 Although the visit by the RSPCA inspectors and police officers during which the horse was shot took place on 21 May 2003, the charge under s9 alleged that the applicant omitted to do a duty contrary to the provisions of the Act on or before 12 May 2003. Although there was evidence that the applicant had the care of the horse until 21 May 2003, and evidence suggesting that the way in which he cared for the horse must have been unsatisfactory not only on and before 12 May, but up to and including 21 May, the particulars of the charge required the learned magistrate to determine whether he was satisfied beyond reasonable doubt that the applicant had omitted to take all reasonable measures to ensure the welfare of the horse on and before 12 May, and that his omission to do a duty resulted in its serious disablement.

21 The applicant argued to the effect that he had given evidence as to how the horse was looked after at all material times, whereas the prosecution evidence focused on the condition of the animal after the period to which the charge related. In substance, he argued that the evidence of the prosecution witnesses therefore lacked probative force as to the issue whether he had omitted to do his duty during the period ending 12 May. However I think it was open to the learned magistrate to infer from the prosecution evidence that the applicant had omitted to do his duty in respect of the horse during the period to which the charge related, ie, the period up to and including 12 May. When the prosecution case is a circumstantial one, and the defence case is based on positive evidence as to matters in controversy, it by no means follows that the prosecution evidence lacks probative force to such a degree that a reasonable doubt should be entertained. In this case, although the prosecution case depended in large measure on the learned magistrate using evidence as to later observations to draw inferences as to the applicant's care of the horse during the period to which the charge related, I do not think there were any aspects of the prosecution evidence that caused it to lack probative force to such a degree that I can say that the learned magistrate should have entertained a reasonable doubt. Ground 4 must therefore fail.

22 The applicant is 63 years old. He has a very long record of prior convictions, mainly for quite minor matters. He was fined for cruelty to animals in 1992 and 1993. He has served short sentences of imprisonment on four occasions. Although he was unemployed, he had the ability to pay a large fine since he owned a number of valuable animals, and was in a position to sell some if necessary. An individual who is convicted of an offence in contravention of s9 may be fined as much as $10,000, or sentenced to imprisonment for as long as 18 months, or both. Imprisonment can be an appropriate penalty for a serious case of cruelty to animals, even when the cruelty arises only through neglect. See, for example, Joyce v Visser [2001] TASSC 116. Having regard to the applicant's prior convictions, the evidence accepted by the learned magistrate, and the fact that the horse had to be shot, I think that the penalty of $4,000 plus costs could not be said to be manifestly excessive.

23 The applicant submitted that the order preventing him from having the possession or care of more than 20 horses for a period of five years was manifestly excessive. He pointed out that difficulties could arise if he had more than 10 brood mares and they were all in foal at the same time. However I regard the order in question as a punishment that "fits the crime". This was a serious case of neglect. I do not think that the restriction on the number of horses that the applicant can have was unreasonable. I do not think that the penalties imposed by the learned magistrate, separately or in the aggregate, were manifestly excessive.

24 For these reasons, the motion to review is dismissed.