[2018] FCAFC 43
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
[1996] HCA 36
Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388
[2007] NSWCA 190
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
El-Haddad v The Queen (2015) 88 NSWLR 93
[2015] NSWCCA 10
Federal Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325
Source
Original judgment source is linked above.
Catchwords
[2018] FCAFC 43
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389[1996] HCA 36
Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388[2007] NSWCA 190
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
El-Haddad v The Queen (2015) 88 NSWLR 93[2015] NSWCCA 10
Federal Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325[2011] HCA 17
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498[2000] NSWCA 44
Kelly v The Queen (2004) 218 CLR 216[2004] HCA 12
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60[1925] HCA 18
Lorimer v Smail (1911) 12 CLR 504[2000] HCA 33
Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279[2019] NSWCA 41
SAS Trustee Corporation v Miles (2018) 265 CLR 137[2018] HCA 55
Smalley v Motor Accidents Authority of New South Wales (2013) 85 NSWLR 580[2013] NSWCA 318
South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513[2018] NSWCA 69
Sweeney v Fitzhardinge (1906) 4 CLR 716[1906] HCA 73
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
[2017] HCA 34
Thiess v Collector of Customs (2014) 250 CLR 664
[2014] HCA 12
Vanstone v Clark (2005) 147 FCR 299
[2005] FCAFC 189
Zaburoni v The Queen (2016) 256 CLR 482
Judgment (12 paragraphs)
[1]
Introduction to s 530 of the Crimes Act
Section 530 of the Act was introduced by the Crimes Amendment (Animal Cruelty) Act 2005 (NSW). In the second reading speech given on behalf of the then Attorney-General, Minister Nori said that:
"I am pleased to introduce the Crimes Amendment (Animal Cruelty) Bill. The community was understandably outraged earlier this year by a number of vicious attacks on animals. In response, the Government established the multi-agency Animal Cruelty Task Force to consider changes to animal cruelty laws and procedures. The amendments contained in this bill arise from the task force report to the Government. Current animal cruelty offences are found in the Prevention of Cruelty to Animals Act 1979. The most serious of these offences carries a maximum penalty of two years imprisonment. The task force was concerned primarily with whether a new aggravated animal cruelty offence carrying a higher penalty should be created in the Crimes Act 1900.
It was proposed that this new offence deal with the worst examples of animal cruelty, that is, cases where offences are committed with the intention of inflicting pain on the animal in circumstances that amount to serious instances of animal cruelty, such as torture, and where the animal is killed, seriously injured or experiences prolonged suffering."
Interpolating there, neither party nor the Law Courts Library nor the New South Wales Parliamentary Library has been able to locate a copy of the report of the Animal Cruelty Task Force. This is regrettable as such a report would, if available, have been useful as an aid to the process of statutory interpretation that arises in the present case, albeit that the value of such secondary materials should not be overemphasised: Interpretation Act 1987 (NSW) s 34(3).
The Second Reading speech continued as follows:
"The introduction of the new offence under the Crimes Act will not affect the offences that currently exist in the Prevention of Cruelty to Animals Act.
Those offences will remain unchanged and, together with the new Crimes Act provisions, will create a scale of animal cruelty offences of increasing seriousness. Less serious matters of animal cruelty, therefore, will continue to be dealt with under the Protection of Cruelty to Animals Act. I now turn to the detail of the bill. Schedule 1 inserts proposed sections 530 and 531 into the Crimes Act 1900. Both offences will be indictable offences carrying maximum penalties of five years imprisonment.
Proposed section 530 makes it an offence, with the intention of inflicting severe pain on an animal, to torture, beat or commit any other act of serious cruelty on the animal, and to kill, seriously injure or cause prolonged suffering to the animal. Specific defences provided for are authorised animal research, routine agricultural and animal husbandry, recognised religious practices, pest extermination and veterinary practice. Many of these defences are carried over and summarised from the same defences that apply in the Prevention of Cruelty to Animals Act. These specific defences, of course, do not limit other circumstances where there is no requisite intention to cause severe pain or other general statutory or common law defences.
Of course, as with all criminal defences, the responsibility for proving the defences lies with the accused.
…
Unwarranted and unjustified cruelty to animals is unacceptable to our society and the Government wishes to send a strong message that such unacceptable actions will be dealt with as serious criminal offences and offenders can be assured of strong enforcement of these new laws. I commend the bill to the House."
One point that can be immediately drawn from this speech is that what underlay the introduction of the section was a concern to address particularly egregious acts of cruelty to animals, irrespective of whether or not the animal in question was killed. The killing of an animal may be deliberate but not necessarily accompanied by an intention of inflicting "severe pain" on the animal, even if the killing is not otherwise justified or inevitably involves a degree of pain for the animal.
It is also plain that the introduction of s 530 of the Act was intended to supplement rather than replace the existing regime for the regulation of the prevention of cruelty to animals in New South Wales. This follows not only from the terms of the second reading speech but also from the reference to the "Animal Research Act 1985 or any other Act or law" in s 530(2)(a). As such, s 530 should be considered as part of a suite of New South Wales legislation dealing with the prevention of cruelty to animals and it is for that reason that other animal welfare statutes and regulations have already been referred to in these reasons.
[2]
Relevant principles of statutory interpretation
In Sweeney v Fitzhardinge (1906) 4 CLR 716 at 726; [1906] HCA 73, Griffith CJ observed that:
"When there is fresh legislation dealing with matters that have already been the subject of legislation then, ex necessitate rei, all the acts must be construed together for the purpose of answering any question arising under them."
In its approach to statutory construction, the Court should endeavour, so far as is possible, to secure a coherent and harmonious operation of statutes dealing with a common or overlapping subject matter.
For similar reasons, when construing s 530 of the Act, that section must be construed as a whole. In other words, s 530(2), with which this application is principally concerned, needs to be construed in the context of s 530 as a whole as well as in a way that is, so far as is possible, consistent with the language and purpose of all of the provisions of the statute in which it is contained and statutes which are in pari materiae with the statute or statutory provision under consideration (see P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020) at [8.280]-[8.300] (Herzfeld and Prince); R v Loxdale (1758) 1 Burr 445 at 447; R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 at [113]).
In SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20], the High Court observed that:
"The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky at 381 [69]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 368 [14]. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies: Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531 at 557 [66]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 375 [38]." (emphasis added)
In the context of animal welfare legislation in New South Wales, the search for (and goal of) statutory coherence necessarily extends beyond the Crimes Act. Section 530's presence in that Act was the result of a one-off legislative initiative, and it is perhaps surprising that it was introduced as an amendment to that Act as opposed to the Prevention of Cruelty to Animals Act given that it was intended to supplement existing offences which are found in the latter Act.
[3]
The structure of s 530 and the element of intention
The first point to note is that the structure of s 530 operates to create, in subs (1), an offence and then, in subs (2), what is in effect a defence to the conduct that constitutes that offence by reference to the context in which it occurs. But the "conduct" referred to in ss 530(2)(a) and (b) is the conduct described in ss 530(1)(a) and (b), namely the torturing, beating or commission of any other serious act of cruelty on an animal and the killing, serious injuring of or the causing of prolonged suffering to the animal.
It might be thought to be somewhat extraordinary and indeed shocking that such abhorrent conduct including the torture of animals and acts of serious cruelty to them could occur either:
(a) in accordance with an authority conferred by or under the Animal Research Act 1985 or any other Act or law, or
(b) in the course of or for the purposes of routine agricultural or animal husbandry activities, recognised religious practices, the extermination of pest animals or veterinary practice (where such practice in New South Wales is regulated by a Code of Professional Conduct which, in cl 2, requires a veterinary practitioner at all times to consider the welfare of animals when practising veterinary science and which, in cl 3, insists that a veterinary practitioner must not refuse to provide relief of pain or suffering to an animal that is in his or her presence).
This is, however, what s 530(2) seems to contemplate in absolving a person who engages in such conduct from criminal responsibility under s 530(1).
The primary judge made a similar observation at [111] when he observed that:
"… it is, at least, difficult, if not impossible, to imagine a 'recognised religious practice' that was performed 'with the intention of inflicting severe pain' or to imagine any routine agricultural or animal husbandry practice or activity that likewise was done 'with the intention of inflicting severe pain'. There may be practices or activities, respectively, that would have the consequence of inflicting severe pain, but that is a different concept to the killing of an animal 'with the intention of inflicting severe pain'."
The availability of such a defence as is provided for by s 530(2) of the Act might appear even more extraordinary and shocking if the mental element of the offence under s 530(1), viz the "intention of inflicting severe pain", carries the meaning of an actual subjective intention to bring about this result as opposed to an intention to do acts which have the consequence of causing severe pain, whether subjectively intended or not: see [27] above. It was for this reason that Mr Odgers SC, who appeared for the respondent, submitted that the reference to intention in s 530(1) should bear the latter meaning.
[4]
The defence under s 530(2)
The primary judge noted at [41] that there was a potential issue as to whether or not s 530(2) was, on its proper construction, a defence to s 530(1) or part of the offence which needed to be disproved by the prosecution. His Honour did not need to decide this question nor the question of onus which it presented.
Although submissions were not developed in any detail before this Court on the question, the better view, in my opinion, is that s 530(2) operates as a defence and the onus of establishing it lies with the defendant. This follows both from the structure of the section and the fact that it is s 530(1) which creates the offence. It is also supported by the observations in the second reading speech referred to above and the fact that, as the Minister observed, many of the defences in s 530(2) are carried over from the Prevention of Cruelty to Animals Act. Section 24 of that Act, as set out at [19] above, makes it clear that the invocation of religious and agricultural practices and animal research are all defences, and that the onus of establishing them lies on the person charged.
[5]
Conduct "in the course of or for the purposes of … the extermination of pest animals"
In order to take advantage of one of the defences under s 530(2)(b) of the Act, namely that the killing of the dog involved the "extermination of pest animals", it was necessary for the respondent to establish that the dog in question was a "pest animal" and that what was involved in the killing of the dog occurred in the course of or for the purposes of the "extermination of pest animals".
As noted at [31]-[32] above, the primary judge held that the dog killed by the respondent was a "pest animal" within the meaning of s 530(2)(b). "Pest animal" is not a defined term in the Act, cf the Agricultural and Veterinary Chemicals Code Act 1994 (Cth), sch 1, s 3, applying as a law of New South Wales pursuant to s 5 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (NSW), which defines a "pest" as:
"(a) in relation to an animal, plant or thing - any animal, plant or other biological entity that injuriously affects the physical condition, worth or utility of the first-mentioned animal or plant or of that thing; or
(b) in relation to a place - an animal, plant or other biological entity that injuriously affects the use or enjoyment of that place"
and s 15(1) of the Biosecurity Act 2015 (NSW), which contains the following definition of "pest":
"a plant or animal (other than a human) that has an adverse effect on, or is suspected of having an adverse effect on, the environment, the economy or the community because it has the potential to -
(a) out-compete other organisms for resources, including food, water, nutrients, habitat and sunlight, or
(b) prey or feed on other organisms, or
(c) transmit disease to other organisms, or
(d) cause harm to other organisms through its toxicity, or
(e) otherwise reduce the productivity of agricultural systems or the value of agricultural products, or
(f) damage infrastructure, or
(g) reduce the amenity or aesthetic value of premises, or
(h) harm or reduce biodiversity, or
(i) do any other thing, or have any other effect, prescribed by the regulations."
The absence of a definition of "pest animal" in s 530 (which defines "animal") is unfortunate, given that the term forms part of a defence to an offence which carries a serious penalty. That observation does not, of course, relieve the Court from the need to interpret the expression in the context of the section as a whole.
[6]
Conclusion and orders
For the reasons I have given, the primary judge erred in concluding that the defence in s 530(2)(b) was made out. Whilst the primary judge was correct to conclude that the dog was a "pest animal", its killing did not occur "in the course of or for the purposes of … the extermination of pest animals". It follows that no defence under s 530(2)(b) was established.
Ordinarily, this would be a very powerful reason for granting leave to appeal and allowing the appeal. In the circumstances, for the reasons explained more fully below and subject to any further written submissions by the parties, I would be inclined to grant leave to appeal on the condition that the applicant agreed not to press her application for leave to appeal from order (3) made by the primary judge quashing the convictions and to the remitter of the matter to the Local Court to be determined in accordance with law.
The reason for this flows from my serious disquiet as to whether or not, in convicting the respondent, the magistrate proceeded in accordance with the proper construction of s 530(1) of the Act and, in particular, the meaning of the element of "intention". As has been noted earlier in these reasons (see [26]-[29] above), the magistrate did not identify what the elements of the offence were, did not express his understanding as to the meaning of the requirement of intention and did not make any express finding as to the respondent's intention in respect of each charge.
It is arguable that the respondent's undoubted intention to kill the dog did not encompass or entail an actual, subjective intention to inflict severe pain on it as opposed to an intention to kill it as quickly as possible, even if this necessarily entailed a degree of pain to the dog. In this context, the primary judge observed the following at [130], in relation to the method used by the respondent to kill the dog:
"There is no evidence before the Court as to whether, at the time of these events, the appellant had any other method available to him of killing the dog. There is no evidence that the appellant possessed a weapon, such as a gun, or possessed bait, of some description."
That is to say, as unpalatable as the subject matter is, the fact that the respondent used a pitchfork repeatedly and then, on the second occasion, a mallet repeatedly to kill the dog may not necessarily be indicative of an "intention of inflicting severe pain" as opposed to an intention to kill the dog as quickly as possible (perhaps motivated, in the first instance, by retribution for the attack on the camel) and, in the second instance, to put the dog out of any pain by killing it quickly, having thought that he had already killed it on the earlier occasion. It is also possible that the respondent's intention may have differed as between the first and second charges.
[7]
Endnotes
Brighton v Will [2020] NSWSC 435 at [45].
Brighton v Will at [47].
(2005) 147 FCR 299; [2005] FCAFC 189 (Black CJ and Weinberg J).
(2014) 88 NSWLR 488; [2014] NSWCA 409.
D C Pearce, Statutory Interpretation in Australia (9th ed, LexisNexis, 2019) at [4.33]. Even A Scalia and B Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012), a book based on the canons, eschews that approach, at p 195, fn 1.
Interpretation Act 1987 (NSW), s 33.
Interpretation Act, s 34.
Cf P Herzfeld and T Prince, Interpretation (2nd ed, Law Book Co, 2020), p 37.
Brighton v Will at [72], [138].
Brighton v Will at [111], [147].
[8]
Amendments
24 December 2020 - Revision to [60], first sentence "... acts of serious cruelty them ..." changed to "... acts of serious cruelty to them ..."
[9]
Revision to [96], third sentence, "... in the case of recognised religious practices, ..." inserted " before "recognised".
29 January 2021 - Revision to [132], "... justification the conduct ..." changed to "... justification for conduct ..."
02 June 2021 - Revision to [59], second sentence, inserted "and (b)" following "... s 530(1)(a)".
[10]
Revision to [88], first sentence, "... the lack of any collar." has been changed to "... the lack of any tag."
[11]
Revision to [115], second sentence, removed "and Geddes" from "Pearce and Geddes". Same revision made to fn 5.
[12]
Revision to fn 9, inserted "[72]" before "[138]".
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 June 2021
Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Cabell v Markham 148 F 2d 737 at 739 (2nd Cir 1945)
Cheryala v Minister for Immigration & Border Protection (2018) 260 FCR 169; [2018] FCAFC 43
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388; [2007] NSWCA 190
Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294
El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10
Federal Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60; [1925] HCA 18
Lorimer v Smail (1911) 12 CLR 504; [1911] HCA 44
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541
R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61
R v Brown [1996] 1 AC 543
R v Loxdale (1758) 1 Burr 445
Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33
Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279; [2019] NSWCA 41
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
Smalley v Motor Accidents Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318
South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69
Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12
Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189
Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12
Texts Cited: A Scalia and B Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012)
D C Pearce, Statutory Interpretation in Australia (9th ed, LexisNexis, 2019)
Lord McMillan, Law & Other Things (Cambridge University Press, 1937)
P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020)
Category: Principal judgment
Parties: Natalie Will (Applicant)
Daniel Brighton (Respondent)
Representation: Counsel:
Just as a single statutory provision must be construed in its broader statutory context rather than in isolation, so too it is trite that individual words or expressions in a single statutory provision should not be construed in isolation: see Lorimer v Smail (1911) 12 CLR 504 at 509-510; [1911] HCA 44; R v Brown [1996] 1 AC 543 at 561; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396; [1996] HCA 36; see also Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388; [2007] NSWCA 190 at [10]-[14], quoting Lord McMillan, Law & Other Things (Cambridge University Press, 1937) at 166; 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [82]-[83] (2 Elizabeth Bay Road); El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [108].
So too, care must be taken not to place too heavy reliance on the definition of words in dictionaries, noting that different considerations apply where the statute itself supplies its own dictionary: cf Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12. This is so for a number of reasons.
First, focussing on the definition of a particular word or words in a dictionary may detract from the need to attend to the meaning of the words of a statutory provision as a whole and the meaning of the whole statutory provision in the wider context of the Act or Acts in question: see Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [23] (Thiess); Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33 at [27]; 2 Elizabeth Bay Road at [81]; Smalley v Motor Accidents Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318 at [47]-[48] (Smalley).
Secondly, dictionaries will often supply a range of meanings for a particular word and consultation of a dictionary will supply no guidance to the meaning of the word or words which the legislature intended: see Federal Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17 at [49]; South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [78] (Gould); House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28].
Whilst accepting Basten JA's observation in Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279; [2019] NSWCA 41 at [37], citing 2 Elizabeth Bay Road, Gould, Smalley and Thiess, that "the use of dictionary definitions is rarely determinative of the meaning of a term in a statute where there is doubt as to its scope", I would not go so far as some fully to eschew the use of dictionaries in the exercise of statutory construction: cf Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 at [163]; Cheryala v Minister for Immigration & Border Protection (2018) 260 FCR 169; [2018] FCAFC 43 at [31] and [44]. Like secondary materials whose use in the interpretation of statutes is authorised by the Interpretation Act, dictionaries may supply some assistance in the interpretation of a statutory provision or at least in the initial identification of a range of possible meanings but they must be used with caution for the reasons already noted. Indeed it has been said that "[t]o refuse to look at a dictionary risks a judge proceeding on the basis of a vague and imprecise understanding of the ordinary meanings of a word": Herzfeld and Prince at [2.140].
The famous injunction issued by Judge Learned Hand in Cabell v Markham 148 F 2d 737 at 739 (2nd Cir 1945) "not to make a fortress out of the dictionary" does not operate to preclude or disclaim the value of the use of dictionaries entirely, or to render such reference irrelevant to the exercise of statutory construction. It warns simply that dictionaries are not a substitute for the ordinary process of statutory construction, taking into account the broader context of the relevant provision: see, for example, Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560, citing Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; [1925] HCA 18. Dictionaries may be resorted to but not relied upon at least in any absolute sense to discharge the task of statutory construction.
So much accords with Leeming JA's acknowledgement in Gould at [81] that, while a dictionary may be of assistance "if a question truly arises as to the meaning of a word, especially if it has an historical meaning" and "in identifying the full range of literal meanings a statute might bear", "the court's task is not accomplished by surveying the range of meanings found in a dictionary and choosing that which seems most apt". That would be to abdicate the task, properly understood, of statutory construction.
With these principles in mind, I turn to a consideration of the proper construction of s 530 of the Act, the text of which is set out at [11] above.
I do not agree for at least five reasons.
First, as Basten JA has recently explained, "[a]n intention can be a state of mind subjectively held by the relevant person, or it can be an intention imputed by the law, based on a presumption that a person intends the natural and probable consequences of a particular act": Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [4] (Dickson). Where two constructions are open, that which would promote the purpose or object underlying the statutory provision is to be preferred: Interpretation Act s 33. The discernment of the statutory purpose is therefore integral: SZTAL at [39] per Gageler J.
The statutory purpose underpinning s 530(1) of the Act was the creation of an offence of a greater degree of gravity and attracting a significantly greater penalty (up to 5 years) than the offence of aggravated cruelty to an animal under s 6 of the Prevention of Cruelty to Animals Act. This purpose is better promoted by the subjective meaning of intention, namely that which Basten JA referred to in Dickson as "actual intention" as opposed to "merely a constructive intention": at [6]. In the same case, at [181], Simpson AJA used the expression "actual, formulated, intention". The requirement of an actual, subjective "intention of inflicting severe pain" in s 530(1) is in keeping with the higher penalty, as a mark of community disapprobation, which that offence attracts as compared to penalties under the Prevention of Cruelty to Animals Act, which may be imposed as a result of negligent rather than deliberate conduct: see [16]-[19] above.
Secondly, the word "intention" in s 530(1) forms part of the expression "with the intention of inflicting severe pain". "Infliction" carries the connotation of a deliberate act. This supports the notion that intention is being used in the subjective sense. The actions of "torture" and "serious cruelty" also connote a deliberate subjective mindset: "torture" and "serious cruelty" are not typically accidental or unaccompanied by a deliberate subjective intent on the perpetrator's behalf: see SZTAL at [17].
Thirdly, the requirement that the intention be one of "inflicting severe pain" also supports the subjective meaning of the concept of intention as used in s 530(1). The inclusion of the word "severe" points to and requires a consideration of the actual subjective intention and purpose of the perpetrator of cruelty and calls for an assessment as to whether or not the perpetrator's intention rose to the level not just of inflicting pain but pain of a severe kind.
Fourthly, although caveated by the consideration that judicial observations made in the context of different statutory provisions must be treated with caution, dicta of the High Court in Zaburoni at [8]-[9] as to the ordinary meaning of the word "intention" also favour the former construction of the word "intention" in s 530(1) of the Act. See, also, Dickson at [182]-[186] per Simpson AJA.
Fifthly, what can be discerned from the second reading speech extracted above (at [41] and [43]) also provides support for the subjective meaning of "intention".
Whilst it is true that the existence of an actual subjective intention to inflict serious pain on an animal may make it most unlikely that the conduct accompanying such an intention could fall within one of the circumstances or contexts referred to in s 530(2) of the Act, the same observation may be made even if such a consequence, namely the infliction of severe pain as a result, for example, of the torturing of an animal, was simply foreseeable.
The fact that the defences in s 530(2) may be unlikely to be capable of being made good where there has been conduct of the kind described in s 530(1) is not a reason for not giving to the phrase "intention of inflicting severe pain" the meaning which arises for the five reasons identified above.
It may well be that the reason for the inclusion of the defences in s 530(2) was to seek to ensure a measure of consistency with the defences under s 24 of the Prevention of Cruelty to Animals Act. The section was, after all, designed to provide a more serious offence than those already included in that Act and it may have been incongruous not to make provision for similar defences in s 530, however inapposite or unlikely to be engaged they may have been given the nature of the elements of the offence established under s 530(1).
Further or alternatively, such defences may have been included in s 530(2) out of abundance of caution or indeed for political expediency to protect and/or placate stakeholders fearful of prosecution in respect of "routine" practices or "recognised" religious observances in relation to a topic (cruelty to animals) notorious for engendering passionate reactions and responses.
There is also force in the applicant's submission that the defences in s 530(2) serve an important practical function, giving those who engage in the activities there described knowledge in advance that their activities are not governed by s 530(1).
It has already been noted that the primary judge held that "[o]n its face, there seems to be no reason to give the term 'pest animal' any special or restricted meaning" (at [133]), and that "the term 'pest', when used to describe an animal, means a noxious, destructive or troublesome animal; a nuisance animal": at [135].
On appeal, the respondent supported the definition of "pest animal" favoured by the primary judge and submitted that an animal could qualify as a pest animal either by reason of its conduct (such as the conduct of the dog in question in the present case in attacking the respondent's camel) or by reason of its membership of a class of animals recognised generally to be pests (such as rats, feral pigs, feral dogs or feral horses).
For the sake of completeness, I should note that I agree with the primary judge's observation that the fact that an animal might not be manifesting the characteristics that render it a pest animal at the time of its extermination does not mean that the animal loses its character as a pest animal: see [147] of the primary judgment extracted at [32] above.
The applicant resisted the construction of "pest animals" favoured by the primary judge and the respondent, contending that the term should be defined by reference to the "innate" and "inherently harmful" characteristics of an animal. The applicant submitted that the term "pest animals" should be defined at the level of a species "rather than at the level of an individual animal", contending that this "better comports with the purpose of the defences under s 530(2), which is to exclude certain activities at a systematic level (i.e. as a class)". The applicant also submitted that the phrase "pest animals" refers to a class of animals "rather than a conglomeration of animals that, by their individual behavioural characteristics, qualify as pests".
There is a difference between grouping animals by reference to species as opposed to a class. The definition of a class need not be confined or limited by reference to the characteristics by which a particular species is defined. Feral dogs are an example of a class which may readily be conceived of as a class of pest animals, but such a class is not a species. So, too, some classes of non-feral dogs may fairly be characterised as "pest animals", for example, those breeds of dogs which may only be kept as pets if muzzled: see the Companion Animals Act, s 15. Unmuzzled, such dogs would in my opinion qualify as a class of pest animals, as the very reason they are required to be muzzled is the fact that they are prone to bite other animals or people. The primary judge made the point that a "companion animal" within the meaning of the Companion Animals Act (being a dog or a cat or any other animal prescribed by the regulations as a "companion animal") was not, by that fact alone, incapable of being a "pest animal" (at [157]). I agree. Undomesticated cats, for example, are included in the definition of a "cat" for the purposes of that Act: see s 5.
At [167], the primary judge said:
"There can be no doubt that some animals may be pest animals because of their numbers or because of their kind. There are many examples of the former: feral cats; feral pigs; deer in some areas; rabbits. The best examples of the latter, 'pest by kind', might be the cane toad or the fox …"
I see no reason to differ from the primary judge's use of the words "noxious and destructive" to identify characteristics of a "pest animal" although, like Simpson AJA, his Honour's inclusion of "troublesome" as a word to describe a pest animal is somewhat problematic. It is too close to the concept of an "annoyance" which was accepted not to be an appropriate word to capture the concept of a pest animal: see [31] above.
When the words "noxious and destructive" are used in conjunction with the word "extermination" (which I consider in a little more detail below) and bearing in mind the significance of the use of the plural "pest animals" in s 530(2)(b) of the Act, for the defence under that subsection to be attracted, the animal killed or seriously injured must not simply be an animal that is a "pest" but an animal that shares its characteristics of being a pest with comparable animals. That does not, however, require the animals necessarily to be of the same breed or species. To employ such a constraint would not only involve the importation of a definition into the Act which is not supplied by its terms but would not accommodate examples of pest animals such as feral dogs which may hunt in packs but not necessarily be of the same breed.
The primary judge classified the dog killed by the respondent as a "pest animal" because it had a number of characteristics, namely its savage attack on the camel and its apparent lack of ownership, as manifested by the lack of any tag. The dog being microchipped, it probably did not satisfy the description of a feral dog because the inference is that it was once owned but that fact did not stop it from being a "pest animal".
The dog in question in the present case also shared its characteristics, namely its propensity to attack a vulnerable docile animal, with another dog (although not necessarily of the same breed), and both were apparently not owned and/or were roaming free but in conjunction with each other. They could be described as "uncontrolled dangerous dogs" but that term is not here intended to be used as a term of art, even though the expression "dangerous dogs" is used in s 33 of the Companion Animals Act. The "extermination" of such dogs would, in my opinion, amount to the "extermination of pest animals".
This leads to the critical question as to the meaning of that expression and a consideration of whether what the respondent did fell within that expression, on its proper construction. In my opinion and contrary to the primary judge's conclusion, it did not.
The primary judge derived his interpretation from a dictionary definition of "exterminate" or "extermination" (see [33] and [52]-[57] above) and did not, with respect, consider the meaning of that term in the context of the expression "extermination of pest animals" as a whole or indeed in the context of s 530(2) as a whole. In so doing, he departed, in my view, from the approach to statutory construction which has been set out above at [46]-[58].
One matter that is notable about the phrase "extermination of pest animals" as used in s 530(2)(b) is that it is expressed in the plural, whereas s 530(1) refers to the torturing, beating or commission of any other serious act of cruelty "on an animal" and the killing, the serious injuring or the causing of prolonged suffering to "the animal". Whilst the use of the singular in s 530(1) makes perfect grammatical sense, the use of the plural "pest animals" in s 530(2)(b) is significant. An exercise undertaken "in the course of or for the purposes of the extermination of pest animals" may result in only one pest animal being killed but the aim of the exercise will have been to eliminate "pest animals" in the sense of the plural. That was not the respondent's course or purpose in the present case. His focus was on killing the single pest animal he had captured.
The primary judge made reference to the use of the plural "pest animals" in s 530(2)(b) and noted, referring to s 8(c) of the Interpretation Act, that "to the extent that it uses the plural, it imports the singular, unless the context otherwise indicates": at [165]. His Honour then said that "[t]he context provides no reason not to import the singular." I disagree.
Not only is there the conspicuous shift from the singular "animal" in s 530(1) to the plural in s 530(2)(b) but, perhaps more significantly, the word "extermination" carries with it a connotation, reinforced by the use of the expression "pest animals", of a systematic process designed or directed to rid a place or location of a particular class of pests. When one speaks of "pest extermination", for example, the problem being addressed will invariably involve multiple creatures or insects (noting, in the context of s 530, that the definition of "animal" does not include insects) and the techniques of extermination will not be directed to a specific animal or insect but rather will be designed to eliminate as many pest animals or insects that are exposed to the technique or process of extermination. This does not describe the conduct of the respondent.
The interpretation of "extermination" adopted by the primary judge, viz "to destroy utterly, to get rid of or to eliminate" also does not sit comfortably with s 22(10) of the Companion Animals Act (see [20] above). While s 22(5) of that Act authorises the killing of an uncontrolled dog if it is reasonably believed that the dog will attack, molest or cause injury to an animal being farmed on the land, such authority extends only to the destruction of a dog "in a manner that causes it to die quickly and without unnecessary suffering": s 22(10). On the primary judge's interpretation of "extermination", a defence would lie under s 530(2)(b) for the killing of a dog in circumstances involving torture or a serious act of cruelty where there was an intention of inflicting severe pain. This would be quite incongruous with the balance sought to be struck by the legislature in the Companion Animals Act and would also, in my opinion, defeat or at the very least undermine the legislative purpose underpinning s 530(1).
I am reinforced in my conclusion as to the meaning of the expression "in the course of or for the purposes of … the extermination of pest animals" by a consideration of the other circumstances referred to in s 530(2)(b). All of them, including the concept of "recognised religious practices", have a systemic or accepted aspect to them. In the case of "routine agricultural or animal husbandry activities", this is conveyed by the word "routine"; in the case of "recognised religious practices", this is conveyed by both the word "recognised" and the word "practices"; and in the case of "veterinary practice", this is conveyed by the word "practice" and what is implied by the fact that veterinary practice is regulated in New South Wales and governed by a Code of Professional Conduct: see [15] and [60(b)] above.
My disquiet is acute in circumstances where, in the course of his sentencing remarks, the magistrate made no finding that the killing of the dog was gratuitous and there is some basis, having regard to the transcript of the sentencing remarks, for thinking that the magistrate did not regard the killing of the dog as a gratuitous act of cruelty although the matter is not entirely clear. That doubt raises a large question as to whether the magistrate could have been satisfied beyond reasonable doubt as to the respondent's subjective "intention of inflicting severe pain" on the dog as opposed to having had a simple intention to kill it as a response to its attack on the respondent's camel, or to put it out of its misery in the circumstances of the second charge where the respondent discovered, apparently to his surprise, that the dog was not already dead.
This Court is not in a position to, and does not seek to make, any finding on the question of the respondent's subjective intention in respect of either of the two charges.
It may not, however, be a just result to allow the respondent's convictions to stand in circumstances where it is not clear that, on the proper construction of s 530(1) of the Act, all the elements of the offence have in fact been established or that the respondent's innocence or guilt has been determined by reference to the elements of the offence, as properly understood.
The grant of leave to appeal involves the exercise of a discretion by this Court which is to be undertaken in accordance with the requirements of s 58 of the Civil Procedure Act 2005 (NSW), which requires the Court to act in accordance with the dictates of justice: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [36]. In determining what the dictates of justice are in a particular case, s 58(2)(vi) of the Civil Procedure Act empowers the Court to have regard to "the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction".
If leave to appeal is granted and, as would inevitably follow in light of my consideration of the proper construction of s 530 of the Act, the quashing of the respondent's conviction is set aside, the respondent will be subject to a custodial sentence, subject to determination of his outstanding appeal on sentence. This would be in circumstances where a powerful doubt exists as to whether the respondent was properly convicted of the offences under s 530(1) in the first place by the magistrate.
If leave to appeal is not granted, however, the respondent will remain at liberty where there is no doubt that he engaged in conduct that, depending on the determination of the question of intention, could mean that there has been a serious breach of the criminal law.
Because conditional relief of the kind foreshadowed in [98] above was not fully ventilated in argument, I would propose that the parties be given an opportunity to make any short submissions in writing as to the appropriateness of an order conditioning the grant of leave to appeal on the applicant agreeing not to press her application for leave to appeal from order (3) made by the primary judge quashing the convictions (but otherwise allowing the appeal and setting aside the primary judge's dismissal of the charges) and agreeing to the remitter of the matter to the Local Court to be determined in accordance with law.
For this reason, the only order that I would propose is that the parties be directed to file any written submissions, not exceeding 5 pages, as to the appropriateness of the making of orders in the form of those set out in the preceding paragraph by 4.00pm on Wednesday 3 February 2021 with any submissions in reply by 4.00pm on Friday 5 February 2021. Those submissions should also address the question of costs in light of the substantive reasons contained in this judgment and the judgments of the other members of the Court.
BASTEN JA: I agree with the directions proposed by the President, and with his reasons, subject to the minor matters raised below.
The primary issue raised on the application for leave to appeal was whether the conduct of the respondent fell within an exception to the offence of serious animal cruelty under s 530 of the Crimes Act 1900 (NSW). In particular, did his killing of the dog which attacked his pet camel constitute conduct "in the course of or for the purposes of …the extermination of pest animals".
The applicant (the prosecutor in the Local Court) submitted that the scope of the defence should be determined by treating the phrase "extermination of pest animals" as a composite phrase to be understood in its specific statutory context. That submission should be accepted. However, both the primary judge, and this Court, were taken to dictionary definitions of "pest" and "exterminate". This course was sought to be justified on the basis that these were ordinary words which should bear their ordinary meanings; those ordinary meanings are found in dictionaries. Even were both propositions true, it is doubtful whether any member of the legal profession with a sound grasp of the English language would find assistance in a dictionary in understanding the ordinary meaning of these terms. However, the dictionary meanings were not merely a distraction, reference to them was conducive to error. That was so, because (i) it removed attention from the statutory context, and (ii) it led, predictably, to identification of a range of possible meanings, with one party proposing a broader meaning and the other a narrower meaning. The dictionary itself was, inevitably, unable to assist in determining which meaning was appropriate in the present case.
The primary judge was taken to, and quoted, [1] the Australian Oxford Dictionary definition of "pest" as meaning "1. A troublesome or annoying person or thing; a nuisance. 2. A destructive animal, especially an insect which attacks crops, livestock etc." The unhelpfulness of this definition was immediately conceded by the respondent, accepting that a pest animal needed to be "more than a mere annoyance." [2] Further, although we often describe annoying people as pests, the definition of "animal" in s 530 expressly excludes people. As to the second limb of the definition, it is true that we commonly refer to insects (such as locusts or cockroaches) as pests, but the definition of "animal" in the Act excludes insects.
In Vanstone v Clark, [3] the Full Court of the Federal Court was required to determine whether particular conduct constituted "misbehaviour" for the purpose of engaging a ministerial power to remove a Commissioner of the Aboriginal and Torres Strait Islander Commission. Referring to an earlier decision, Weinberg J stated:
"[163] I agree with his Honour that the term 'misbehaviour' is inherently vague, and lacks precision. Dictionary definitions are unhelpful, and say little, if anything, about how that term is to be understood in any particular situation. Examples of cases where 'misbehaviour' has been established are generally unhelpful. In this area context is all-important. When an Act provides for the removal of a statutory office-holder on the ground of 'misbehaviour', the meaning to be accorded to that term must be gleaned from its statutory context."
That approach, expressed in unequivocal terms, is apt to be applied in the present case.
It is important to note the underlying justification for this approach. As explained by Leeming JA in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943: [4]
"[82] … It is axiomatic that (a) the words in a sentence are not building blocks whose meaning is unaffected by the rest of the sentence, (b) the sentence is the unit of communication by which language works, and (c) the significance of individual words is affected by other words and the syntax of the whole sentence. Lord Hoffmann stated as much in R v Brown [1996] AC 543 at 561, a passage endorsed in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397, when observing that the fallacy of treating words as individual building blocks construed in isolation is common among lawyers."
Because the meaning of a word may be affected by other associated words, there is a tendency to treat this principle as no more than a variation on the constructional canon represented by the Latin phrase "noscitur a sociis", it is known by its associates. This canon is described by Pearce as a rule which "reflects the same philosophy as the general approach of reading an Act as a whole." [5] However, that statement tends to obscure the principle in two respects. On the one hand, the canon deals with associated words which allow the reader to form a picture of the whole matter from a set of examples: it remains a semantic approach. On the other hand, the statement reads the canon at a level of generality as merely an example of reading an Act as a whole. Both propositions diminish the syntactical significance of the principle.
Although reference is correctly made to "context" and to the requirement to adopt a purposive construction, [6] together with the availability of extrinsic materials which may support such an approach, [7] in each case there are elements of imprecision. Context, for example, may be narrowly or broadly approached; similarly, purpose may be derived from the text of the legislation or by reference to extrinsic material. What is clear, however, is that there is limited space for reference to a dictionary in modern principles of statutory construction. The purpose of a dictionary is not to state the ordinary meaning of words with precision, [8] but to reflect common usage in a comprehensive way, including all appropriate usages. A dictionary will not tell one the meaning attached to a particular word in a particular communication.
There is a further difficulty with defining the phrase "pest animals", even eschewing the dictionary, as revealed by the applicant's submissions. The applicant argued that animals should be classified by reference to species, rather than subsets based on behaviour. The assumption appeared to be that pest animals could only be defined by reference to their inherent characteristics, rather than according to the behaviour of an individual. Thus, because not all dogs were properly described as pest animals, individuals did not qualify by reason of bad behaviour.
I agree with the President that the submission adopts an overly narrow approach in seeking to define categories of pest animals scientifically. In countries where rabies is present, rabid dogs are clearly a category of pest animals. Further, the concept of a pest may need to be considered from the perspective of the person or other animal affected. To a grazier, kangaroos may be a pest; to other members of the community, kangaroos may be a national icon worthy of protection. Similar debates could arise with respect to eagles, reptiles, native species generally, and foxes.
Dictionaries were also relied upon to construe "extermination". The primary judge referred to the appellant's submission that the term "exterminate" meant "destroy utterly (especially something living)" or "get rid of, eliminate (a pest, disease, etc)". [9] The primary judge identified error on the part of the magistrate in dealing with this aspect of the defence.
The dictionary definition of "destroy utterly" or "get rid of" does not usefully apply either to an individual animal or to a class of animals. Pest extermination is not a concept which only applies where a whole species or class of animals is utterly destroyed. Often the sole practical approach to pests is to keep populations under control, or within manageable limits. So far as individual animals are concerned, it makes sense to say they are killed, but not destroyed utterly.
The use of the plural "animals" is indicative of the correct approach, but not determinative. The phrase "pest extermination" would have expressed the meaning adequately, without using a singular or plural form.
Once the distraction of undue focus on words in isolation is put aside, the concept of exterminating pest animals may be better understood. Consistently with the applicant's submissions, I would understand extermination of pest animals to refer to a systematic and regulated approach to dealing with an identifiable problem. If a householder puts out a bait for a mouse or rat, his or her purpose will be to kill the rodent, not to engage in an activity described as pest extermination.
Exterminating wild dogs and foxes is commonly undertaken by poisoning using 1080 baits. Use of 1080 is, consistently with the magistrate's approach, regulated and not available to unlicensed individuals, but only to authorised control officers under the Local Land Services Act 2013 (NSW). On the preferred approach, the defence available under s 530(2) extends to such activities, and not to individual acts involving particular animals, albeit pest animals.
I therefore agree with the conclusion that the operation of the defence adopted by the primary judge was erroneous as a matter of statutory construction.
What is somewhat confusing is the assumption underlying the defence that persons engaged in routine agricultural or animal husbandry, religious practices, regulated extermination of pest animals, or veterinary practice will torture animals with the specific intention of inflicting severe pain. Even if the action, consistently with the definition of "kill or seriously injure" an animal, includes using the animal as a lure and permitting a dog to kill or seriously injure the animal, there will be doubt whether the person has a specific intention to inflict severe pain. On one view, the existence of such defences distracts attention from the important element of the specific intent required to commit the offence in the first place. The point was noted by the primary judge. [10]
There is an element of inconsistency between the findings of the magistrate with respect to the intention of the defendant in addressing the defence and the conclusion that he acted with the intention of inflicting severe pain for the purposes of s 530(1). The element of specific intent is an important feature of the offence which distinguishes it from other offences involving cruelty to non-human animals. Accordingly, the grant of leave should be conditioned upon the prosecutor not seeking to set aside order 3 (quashing the conviction), but only order 4 (dismissing the charges). That will permit the matter to be remitted to the Local Court for such further hearing of the charges as the prosecutor may seek to pursue. In the course of the hearing in this Court senior counsel for the applicant accepted remittal as a possible outcome.
SIMPSON AJA: The facts and circumstances relevant to this application are comprehensively stated in the judgment of the President, which I have had the advantage of reading in draft and with which, subject to one matter of some importance, I agree.
The point of departure concerns the President's acceptance that the dog the subject of the two charges brought against the respondent was a "pest animal" within the meaning of that term as it is used in s 530(2)(b) of the Crimes Act 1900 (NSW). In my opinion the dog could not, on the evidence before the magistrate, be so characterised.
Section 530 deserves some close examination. It presents significant difficulties of construction. The premise of subs (1) is that a person has:
(i) tortured;
beaten; or
committed any other serious act of cruelty
on an animal
and
(ii) has (thereby) killed or seriously injured or caused prolonged suffering;
and
(iii) has done so with the intention of inflicting severe pain.
Subs (2) purports to excuse such conduct, where it:
(i) occurs in accordance with an authority conferred by the Animal Research Act 1985 (NSW) or any other Act or law; or
(ii) occurs in the course, or for the purposes, of:
(a) routine agricultural or animal husbandry activities;
(b) recognised religious practices;
(c) the extermination of pest animals; or
(d) veterinary practice.
For my part, I am unaware of any Act or law that authorises conduct that comes (or could remotely come) within subs (1), and none was identified in the course of argument. I find it impossible to conceive of any "routine agricultural or animal husbandry activities", "recognised religious practices", or "veterinary practice" in the course of or for the purposes of which such conduct could properly occur. Again, none was identified. In this context, not to be overlooked is the requirement in subs (1) that the conduct be undertaken with the (express) intention of inflicting severe pain. That distinguishes the relevant conduct from conduct that is intended to kill without the infliction of severe pain.
In these circumstances it is tempting to conclude that subs (2) is unlikely to have any practical application unless it could be said that the extermination of pest animals could provide a justification for conduct of the kind that comes within subs (1) - including conduct undertaken with the intention of inflicting severe pain on an animal.
It is therefore necessary to consider the meaning of the composite phrase "extermination of pest animals". It does not lie within the function of this Court to attempt to define statutory terms the definition of which the legislature has (inexplicably, in my view) chosen to avoid. But the determination of this application cannot sensibly proceed without some appreciation of what is encompassed in the term "pest animals" as it appears in subs(2), although it may be more practical to focus on what is not encompassed in the term.
While every word in the composite phrase must be given value, none can be construed in isolation from the others. "Extermination" is a term that is, ordinarily, identified with systematic and wholesale removal, destruction or eradication of an entire class of organisms or, at least, an attempt and an intention to achieve that result so far as it is achievable. The class may be defined by breed, or species, or by conduct that is characteristic of the class. Notably, "extermination" is not a term that is readily associated with the removal or destruction of an individual animal or other organism. It carries a connotation of mass removal.
The use of the word "extermination" (as distinct from, for example, "killing") provides some guidance to what is to be understood by the other terms used in the composite phrase. There are more reasons for concluding that "pest animals" are animals that are linked by membership of a class, the class being identified by shared characteristics, whether species, breed or behaviour. "Pest animal" is not a variant of "animal that is a pest" and "pest animals" is not a variant of "animals that are pests". The term "pest animals" connotes something more than individual animals that cause nuisance, annoyance or anger. Dogs that bark during the night may well be considered to be pests; they could not, for the purposes of s 530(2)(b), for that reason alone, be considered "pest animals". I do not understand that proposition to be controversial but it is, nevertheless, a point worth noting.
Consistent with the view that "pest animals" are animals linked by membership of a class is the meaning to be ascribed to the word "pest". "Pest" is a word that can have a wide range of applications, but when used in conjunction with "extermination", it connotes animals or organisms that consistently, repetitively, or as a matter of habit or disposition, cause damage to persons, animals, property or crops. Important words in that formulation are "consistently, repetitively, or as a matter of habit or disposition". I would be inclined to accept (as does the President) the primary judge's description of "pest animals" as those that are "noxious or destructive" although I would hesitate also to adopt "troublesome" in that description. That is because "troublesome", like "nuisance", falls short of crossing the threshold of behaviour that the animal in question must exhibit in order to qualify for the description "pest".
Two propositions emerge from this reasoning. First, to be a "pest animal" within the meaning of s 530(2)(b), an animal must belong to a class of animals that can be categorised as "pests". A class is not constituted by two animals of a kind, although it is not possible, as a generalisation, to state what number would be sufficient. What is sufficient will depend on the circumstances of each case. Second, the class must be linked by a common propensity to cause damage of the kind mentioned above. A single act of damage on the part of an individual animal is insufficient to constitute that animal "a pest animal" (although its membership of a class defined as "pest animals" would almost certainly be sufficient).
Adopting this approach, I have concluded that the evidence did not establish that the dog the subject of the charges against the respondent was a "pest animal" because it was not shown to have been a member of the class of animals that could be so characterised and (even if two dogs could constitute a class) the single act of attacking the camel was insufficient to establish that those animals were "pest animals".
For this reason as well as those given by the President I agree that the evidence was not capable of establishing that the conduct of the respondent occurred in the course, or for the purposes, of the extermination of pest animals. Subsection (2) of s 530 had no application. The primary judge was in error in finding that it did. The error was of the kind that justifies a grant of leave to appeal.
It is then necessary to consider what orders should be made consequential on these conclusions.
I share the concern of the President that an essential element of the offence against s 530(1) may have been overlooked, or not given the attention it deserved, in the proceedings in the Local Court. That element was the element of specific intention to inflict severe pain. There was no clear finding in the Local Court on that element. It was not an issue in the proceeding in the Supreme Court and was raised in the appeal to this Court only by the Court itself. In circumstances where the respondent has been convicted of two serious offences and sentenced to a term of imprisonment, the interests of justice would be served by the remitter of the matter for further consideration by the Local Court, or, possibly, by an appeal to the District Court (which would require a significant extension of time).
Confronted (without warning) with the issue, senior counsel for the applicant volunteered that:
"… the appropriate order would then be not to refuse leave but to grant leave, uphold the appeal and then remit the matter so it can be properly argued and discussed in that context".
It would be appropriate that, before proceeding to make final orders, the Court provide the parties with the opportunity to make submissions in that regard. I agree with the order proposed by the President.
General Counsel, RSPCA (Applicant)
Gibson Howlin Lawyers (Respondent)
File Number(s): 2020/00156244
Publication restriction: N/A
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law
Citation: [2020] NSWSC 435
Date of Decision: 23 April 2020
Before: Rothman J
File Number(s): 2019/195511
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Daniel Brighton (the respondent) was charged, by RSPCA Inspector Natalie Will (the applicant), with two counts of serious animal cruelty under s 530 of the Crimes Act 1900 (NSW) (the Act) alleging that, with the intention of inflicting severe pain upon the animal, the respondent did commit a serious act of cruelty upon a dog and did seriously injure and kill the animal.
Following a trial in the Local Court of New South Wales, the applicant was convicted on both counts, with the magistrate finding that the dog killed by the respondent was not a "pest animal" and that the respondent's conduct in killing it did not constitute an act of "extermination" for the purposes of s 530(2)(b), so that the defence in that section was not made out. In holding that "all the elements of the offence" under s 530(1) had been established, the magistrate did not set out what those elements were, stating simply that they were contained in s 530 of the Act and, in particular, did not expose his understanding of the meaning of "intention of inflicting severe pain" on an animal in s 530(1) of the Act.
Pursuant to ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW) and by way of a Summons filed in the Common Law Division of the Supreme Court, the respondent brought an appeal against his conviction, being that the magistrate erred in concluding that the deceased dog was not a "pest animal" and that the respondent's conduct did not amount to an act of "extermination of pest animals" under s 530(2) of the Act. The primary judge upheld the appeal on these grounds, quashed the respondent's conviction and dismissed the charges preferred against him.
The primary judge accepted that the dog was a "pest animal" as a result of its conduct in threatening, attacking and injuring the respondent's livestock, namely a camel kept for a mobile petting zoo, and interpreted the term "extermination" as bearing its ordinary meaning, which was held to be "to get rid of by destroying; to destroy totally, to remove utterly or to do away with". The conduct of the respondent was therefore held to constitute the "extermination of a pest animal" and to attract the defence under s 530(2)(b). Although it was not raised as a ground of appeal before the primary judge, his Honour expressed the view that the mental element of "intention of inflicting severe pain" referred to an actual, subjective intention.
The applicant sought leave to appeal against the primary judge's decision pursuant to s 101(2)(h) of the Supreme Court Act 1970 (NSW).
The principal issues on appeal were:
1. whether the primary judge erred in his construction of the term "the extermination of pest animals" in s 530(2)(b) of the Act;
2. whether the primary judge erred in finding that the deceased dog was a "pest animal" as that term is used in s 530(2)(b);
3. whether the primary judge erred in finding that the respondent's conduct constituted "extermination" as that term is used in s 530(2)(b); and
4. the appropriate relief.
An issue going to the elements of the offence, as to whether the mental element in s 530(1) refers to "actual" or "constructive" intention, was raised in the course of submissions.
The Court held (Bell P, Basten JA and Simpson AJA (as to part) agreeing):
1. What underlay the introduction of s 530 was a concern to address particularly egregious acts of cruelty to animals, irrespective of whether or not the animal in question was killed and to supplement as opposed to replace the existing regime for the regulation of the prevention of cruelty to animals in New South Wales. [44]-[45] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
2. Section 530 should not be construed in isolation, but as part of a suite of legislation dealing with the prevention of cruelty to animals, as well as in light of its statutory context and purpose: [45] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
3. The mental element of the offence of serious animal cruelty in s 530(1), namely "the intention of inflicting severe pain", carries the meaning of an actual, subjective intention to bring about this result as opposed to an intention to do acts which have the consequence of causing severe pain, whether subjectively intended or not: [63]-[71] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294, referred to.
1. The statutory purpose underpinning s 530(1) of the Act was the creation of an offence of a greater degree of gravity and attracting a significantly greater penalty than the offence of aggravated cruelty to an animal under s 6 of the Prevention of Cruelty to Animals Act 1979 (NSW). This purpose is better promoted by the subjective meaning of intention, or "actual intention", as opposed to "merely a constructive intention": [65], (Bell P); [109] (Basten JA); [127] (Simpson AJA).
2. The word "infliction" carries the connotation of a deliberate act, whilst "torture" and "serious cruelty" also connote a deliberate, subjective mindset, such actions not typically being accidental or unaccompanied by a deliberate subjective intent on the perpetrator's behalf. The word "severe" in s 530(1) also points to and requires a consideration of the actual, subjective intention and purpose of the perpetrator of cruelty: [66]-[67] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
1. Per Bell P and Basten JA: The primary judge did not err in his finding that the deceased dog was a "pest animal". However, when used in conjunction with the word "extermination" and bearing in mind the significance of the use of the plural "pest animals" in s 530(2)(b) of the Act, the animal killed or seriously injured must not simply be an animal that is a "pest", but an animal that shares that characteristic with comparable animals. That does not, however, require the animals necessarily to be of the same breed or species: [83]-[96] (Bell P); [117]-[124] (Basten JA).
2. Observations by Bell P [52]-[57] and Basten JA [111]-[120] as to the use of dictionaries for the purposes of statutory interpretation.
3. Per Simpson AJA [135]-[137]: to be a "pest animal" within the meaning of s 530(2)(b), an animal must belong to a class of animals that can be categorised as "pests". A class is not constituted by two animals of a kind, although it is not possible, as a generalisation, to state what number would be sufficient. What is sufficient will depend on the circumstances of each case. The class must be linked by a common propensity consistently, repetitively, or as a matter of habit or disposition, to cause damage to persons, animals, property or crops. A single act of damage on the part of an individual animal is insufficient to constitute that animal "a pest animal" (although its membership of a class defined as "pest animals" would almost certainly be sufficient).
4. The primary judge erred in failing to consider the meaning of the term "extermination" in the context of the expression "extermination of pest animals" in s 530(2)(b), or in the context of s 530(2) and the suite of New South Wales legislation dealing with the prevention of cruelty to animals. On the proper construction of the term, the conduct of the respondent in killing the dog did not engage the defence in s 530(2)(b) and the primary judge erred in so holding: [90]-[91] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
1. Whilst the use of the singular term "animal" in s 530(1) makes perfect grammatical sense, the use of the plural "pest animals" in s 530(2)(b) is significant. An exercise undertaken "in the course of or for the purposes of the extermination of pest animals" may result in only one pest animal being killed, but the aim of the exercise will have been to eliminate "pest animals" in the plural sense: [91]-[92] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
2. The word "extermination" carries with it a connotation, reinforced by the use of the expression "pest animals", of a systematic process designed or directed to rid a place or location of a particular class of pests. This does not describe the conduct of the respondent: [94] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
3. The interpretation of "extermination" adopted by the primary judge, namely "to destroy utterly, to get rid of or to eliminate" does not operate harmoniously and coherently with s 22(10) of the Companion Animals Act 1998 (NSW), under which the authority to destroy a dog extends only to conduct undertaken "in a manner that causes it to die quickly and without unnecessary suffering": [95] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
4. The other circumstances referred to in s 530(2)(b), including the concept of "recognised religious practices", have a systemic or accepted aspect to them, as conveyed by terms including "routine", "recognised" and "practice": [96] (Bell P); [109] (Basten JA); [127] (Simpson AJA).
1. The parties were directed to file submissions in relation to the appropriate relief including the possibility of conditioning any grant of leave to appeal in circumstances where, although the primary judge erred in upholding the defence, it may not be a just result to allow the respondent's convictions to stand in circumstances where it is not clear that, on the proper construction of s 530(1) of the Act, all the elements of the offence were in fact established: [98]-[108] (Bell P); [126] (Basten JA); [141]-[143] (Simpson AJA).