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- Unreported Judgment
MAGISTRATES COURT OF QUEENSLAND
QPS v McElliggott  QMC 1
Qld Police Service
Patrick Joseph McELLIGOTT
Criminal proceeding for Animal Cruelty charged under Animal Care and Protection Act 2001, section 18.
Southport Magistrates Court
4 February 2020
Heard on 24 September and 12 November 2019.
Prosecution submissions received on 26 November 2019.
Defence submissions received on 11 December 2019.
Animal Cruelty – Statutory Interpretation – Whether intent is an element of the offence – What is the meaning of “cruel”; “beats”; “so as to cause the animal pain”; “abuses”; “terrifies”; “torments” or “worries”.
Acts Interpretation Act 1954, ss 14A, 14B.
Animal Care and Protection Act 2001, s 18.
Criminal Code, s 69.
CASES and ARTICLES
Ashcroft v R (1989) 38 A Crim R 237.
Bulsey & Anor v State of Queensland  QCA 187.
Hyder v Commonwealth of Australia  NSWCA 336.
John v Police (2002) 219 LSJS 228;  SASC 112.
Morgan v Graham  WASC 68.
R v AJB  QDC 169.
R v Bennett  2 Qd R 174.
R v Green (No.3)  ACTSC 96.
Smith v Corrective Services Commission of NSW (1980) 147 CLR 134.
J Aberdeen: “What is “Going Armed” (1998) 19 Qld Lawyer 57
Acting Senior Constable Butterfield and Mr Freeman, Solicitor, for the prosecution.
Ms DR Quadrio, Solicitor, Gatenby Criminal Law, for the defendant.
REASONS FOR JUDGMENT
- The defendant was charged with one count under section 18(1) of the Animal Care and Protection Act 2001 (the Act) namely, that on the second day of May 2019 at Oxenford he was cruel to an animal, the animal being a German Shephard dog. To that charge the defendant entered a plea of Not Guilty.
- I have given myself the general directions which would usually be given by a trial judge to a jury before they retire to consider their verdict.
- The defendant is entitled to a fair trial according to law. The defendant is presumed to be innocent unless and until the prosecution proves he is guilty beyond reasonable doubt.
- While I am judging the facts and the law, it is my duty to have regard to all of the evidence and to find the facts, and to draw relevant inferences from the facts, as well as to apply what law is relevant to the proven facts.
- I must deliver my verdict according to the evidence.
- The onus of proving that the defendant committed relevant acts or made relevant omissions rests with the prosecution from start to finish.
- There is no onus on the defendant to prove anything.
- It is for the prosecution to prove each and every element of the offence. I do not have to resolve every single little issue or inconsistency raised by the parties if, at the end of the day, on the totality of the evidence, I am satisfied the prosecution has proven beyond reasonable doubt each and every element of the charge, and disproved any defences raised, beyond reasonable doubt. It is totality of the evidence which the court must look to before determining whether a case is proven beyond reasonable double. For example, owing to the relevant issues in this case, it would not matter if it turned out the dog is not a pure bred German Shephard, or if his eye colour was brown or black.
- However, on the other hand, any fact which needs to be proved, and which could only be described as an indispensable link in a chain of evidence, before a defendant could be proven guilty, must also be proved beyond reasonable doubt. For example, in this case it is important that there was, as I accept and find proven, sufficient continuity of unobstructed observation of the defendant by the witnesses Smith and Hausmann, and that the actual words spoken by defendant where those words which those witnesses attested to.
- If the defendant raises a legal defence (as in an authorisation, justification or excuse which would relieve the defendant of any criminal responsibility for his acts or omissions), then if that defence is fairly raised on the evidence, it is for the prosecution to negative it beyond reasonable doubt. As I wrote above, the onus of proof rests on the prosecution from start to finish. Here, the defendant purported his handling of the dog was justified as, or could be rationally explained as, a way of training and disciplining the dog by showing it “who is the Alpha”.
- If the defendant makes or points to a rational explanation which is consistent with innocence, he does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant. Otherwise, the prosecution will not have proven its case beyond reasonable doubt.
- The defendant elected to exercise his right to silence and did not call any witnesses. No reason needs to be given for making that choice. The reason is that he has the right to do so and because the prosecution bears the onus of proof. The onus of proof did not ever shift from the prosecution to the defence. The onus of proof rests upon the prosecution from start to finish. Any evidence led in favour of the defence case is evidence like any other evidence. The court must weigh all of the evidence. In this case, that evidence included the video footage taken by the police in the carpark after the incident reported by Smith and Hausmann. It contains depictions and audio of the defendant’s interactions with the dog from which the defence want me to infer appropriate handling of the dog. To some extent the defendant’s version is on that video footage.
- In weighing all of the evidence I am aware that anyone giving prosecution evidence or defence evidence can have a motive to lie or exaggerate or speak half-truths. This fact of life is usually unhelpful and irrelevant because one cannot usually say that one person has more reason to lie than another. Sometimes evidence may take on such an appearance, but really be a matter of memory failure or an attempt to fill in gaps by, sometimes unwittingly, making assumptions or an attempt to give hearsay information told to them by someone else and stating it as if it were an observed fact. Also, I am aware that some people may be more experienced at giving evidence in a court of law, but that does not necessarily mean they are any more or less reliable than someone who has never given evidence. It is not uncommon, and is in fact quite common, to hear different yet consistent accounts of the one incident as viewed from several perspectives, in such a way that they would sound like the descriptions of wholly separate affairs if they were not considered together and in context. However, if it appears a person may have lied or exaggerated it is still important to seek corroboration or supporting evidence before simply dismissing that evidence. It also does not mean that all other evidence given by that person is necessarily unreliable. These are all things I am looking for when I listen to the evidence. Each case is different. Each case has to be assessed independently.
- If, at the end of the day, I am left unsure where the truth lies, then I must find the defendant not guilty.
- If I am left in any state of reasonable doubt whether the prosecution has proven any element of the charge beyond reasonable doubt then I must find the defendant not guilty.
- If I am left in any state of reasonable doubt whether the prosecution has disproved beyond reasonable doubt any defence raised in respect of the charge then I must find the defendant not guilty.
- If in any of these circumstances I find the defendant not guilty of the charge then I must acquit and discharge the defendant in respect of that charge.
- If I am satisfied the prosecution has proven each element of this charge beyond reasonable doubt, and that the prosecution has negatived any defence beyond reasonable doubt, I must find the defendant guilty and convict the defendant, and then give the parties an opportunity to make submissions relevant to imposing an appropriate penalty or sentence.
- Where, in this judgment, and in these reasons, I do make a finding of a particular fact, or talk about being satisfied of any matter, then I have reached that finding having been satisfied beyond reasonable doubt.
- The fact that certain consequences may follow upon conviction, such as Disposal Orders under section 182, or Prohibition Orders under section 183 of the Act, is irrelevant to determination of guilt or innocence where the standard of proof is beyond reasonable doubt. Although I do not need to decide it here, such considerations may have relevance in a civil case if the requisite standard of proof is on the balance of probabilities and on the Briginshaw sliding scale.
- Such other consequences in Chapter 7 of the Act are to be treated no differently to the fact that the maximum penalty is a term of imprisonment. It is irrelevant for present purposes, except to say that a criminal statute must be read strictly and in favour of the accused citizen.
- In most trials there are issues which must be proven beyond reasonable doubt by the prosecution but which are simply not in dispute. Sometimes such issues are resolved by making formal admissions. Sometimes it is made apparent in the evidence. Other times it is made known in the closing address.
- In this case there was no dispute raised or challenge made about the following:
- The date, time and place of the incident as alleged in the charge.
- The identity of the defendant. He was the person heard and observed by Smith and Hausmann.
- Ownership of the dog, which rests with the defendant.
- The dog is a German Shephard.
and I am satisfied beyond reasonable doubt, in any case, that the prosecution proved those matters.
- It is important then, to concentrate on those matters which are in dispute and which the prosecution has to prove or disprove beyond reasonable doubt. However, first I will set out the relevant law which will determine the issues.
- The presumable to the Act states it is “An Act to promote the responsible care and use of animals and to protect animals from cruelty, and for other purposes.”
- In chapter 1 (Preliminary), part 2 (Purposes and application of Act), section 3 states the purposes of the Act and section 4 sets out how those purposes are to be achieved by everyone, including by the courts:
3 Purposes of Act
The purposes of this Act are to do the following:
- promote the responsible care and use of animals
- provide standards for the care and use of animals that—
- achieve a reasonable balance between the welfare of animals and the interests of persons whose livelihood is dependent on animals; and
- allow for the effect of advancements in scientific knowledge about animal biology and changes in community expectations about practices involving animals;
- protect animals from unjustifiable, unnecessary or unreasonable pain;
- ensure the use of animals for scientific purposes is accountable, open and responsible.
4 How purposes are to be primarily achieved
The purposes are to be primarily achieved by the following—
- providing for regulations about codes of practice for animal welfare;
- allowing regulations to require compliance with codes of practice;
- imposing a duty of care on persons in charge of animals;
- prohibiting certain conduct in relation to animals;
- requiring a person using an animal for scientific purposes to comply with the scientific use code;
- providing for the registration of certain users of animals for scientific purposes;
- providing for the appointment of authorised officers to monitor compliance with compulsory code requirements and the scientific use code;
- providing for the appointment of inspectors to investigate and enforce this Act;
- allowing the Minister to establish an animal welfare advisory committee or another body to advise the Minister of animal welfare issues.
- In this proceeding, the relevant purposes and achievement of them, is tied to protecting animals from cruelty and unjustifiable, unnecessary or unreasonable pain and to imposing a duty of care on persons in charge of animals and prohibiting certain conduct in relation to animals. However, these considerations do not override the proper interpretation of the elements of the offence and the need to prove each element beyond reasonable doubt,
- In the Act, chapter 3, part 2 (Cruelty Offences), section 18 relevantly provides (ommitting the legislative notes and examples which are not relevant here):
18 Animal cruelty prohibited
(1) A person must not be cruel to an animal.
Maximum penalty—2000 penalty units or 3 years imprisonment.
(2)Without limiting subsection (1), a person is taken to be cruel
to an animal if the person does any of the following to the animal—
- causes it pain that, in the circumstances, is unjustifiable, unnecessary or unreasonable;
- overdrives, overrides or overworks it;
- uses on the animal an electrical device prescribed under a regulation;
- confines or transports it—
- without appropriate preparation, including, for
example, appropriate food, rest, shelter or water; or
- when it is unfit for the confinement or transport; or
- in a way that is inappropriate for the animal’s
- in an unsuitable container or vehicle;
- kills it in a way that—
- is inhumane; or
- causes it not to die quickly; or
- causes it to die in unreasonable pain;
- unjustifiably, unnecessarily or unreasonably—
- injures or wounds it; or
- overcrowds or overloads it.
- Although, for the purposes of subsection (1) under which the charge is brought, the definitions of cruelty to an animal in subsection (2) do not limit subsection (1) and are not exclusive or exclusionary, the prosecution has particularised its case against the defendant under subsection (2)(b) and (c) underlined above.
- The Prosecution called:-
- Lawrence Hausmann (a Bunnings employee) (transcript from page 1-4);
- Richard Smith (another Bunnings employee) (transcript from page l-14);
- Alison Smith (a Vet employed by the RSPCA) (transcript from page pl- 40);
- Nicky Wright (Constable of Police); and
- Drew Bevan (Senior Constable of Police)
- The defendant elected to exercise his Right to Silence (discussed above). No onus shifted to him at all.
- With the consent of the defence the prosecution tendered a video taken in the carpark. It showed me the police interactions with the defendant and interactions between the defendant and the dog. In the end I find the video is of limited relevance or assistance because:-
- It is recorded at a time after, and at a time which I consider to be sufficiently removed from, the events relevant to the charge as witnessed by Hausmann and Smith, for it to have sufficient bearing on judging whether the defendant had been cruel to his dog back then, and
- On any view of the video, the defendant is intoxicated and is acting up to the camera and is deliberately performing for an audience.
Findings of Fact
- Having considered all of the evidence and submissions I make the following findings of fact:
- On 2 May 2019 the defendant walked past Bunnings at Oxenford at about 3.30pm.
- The defendant walked with a dog on a leash. The dog is a german shephard.
- The defendant, at a distance of only a metre away from Hausmann, asked “Is there any cameras in the car park?’
- The defendant looked at the dog and said “If you don’t find my effing car I’m going to beat you”.
- The defendant’s manner was that he was screaming at the dog.
- Hausmann heard the defendant make the threat to the dog about 3 times.
- Hausmann’s evidence, the circumstances in which he made his observations, and the results of the cross examination of that witness, leave no room for any reasonable doubt that he heard “specifically what he (the defendant) was going to do to that dog.”
- He also demonstrated how the words were spoken, and with confidence that he could do so accurately. It was loud, clearly audible at such a distance (I was sitting in a courtroom at a distance which is further than he would have been from the defendant on the Second of May, and I noted it was “stark” in my notes at the time.
- Richard Smith saw the defendant and the dog on a lead and the dog was pulling away from the defendant. Smith then went to the bathroom and heard yelling. He came out and saw the defendant had returned, screamed and yelled at the dog “where’s my effing car.”
- The defendant walked on, some 50 metres, but Smith had an unobstructed view of him and his actions. He had a direct line of sight. He saw the defendant lay into his dog with his foot. The dog was kicked to the head two to three times. That dog then cowered, bowed his head, bowed down and also tried to get away or stay away from the defendant.
- In arriving at these conclusions I have not relied on the evidence of Constable Nicky Wright about the dog not walking freely or appearing “quite frightened” in the car park. I have ignored it because:
- The dog was unfamiliar with them (taking into account the veterinarian’s evidence. Alison Smith said the dog’s behaviour could be affected by being in unfamiliar circumstances with unfamiliar people; and
- The dog was unfamiliar with them (taking into account the veterinarian’s evidence. Alison Smith said the dog’s behaviour could be affected by being in unfamiliar circumstances with unfamiliar people; and
- For the purpose of making the above findings of fact I have also ignored Wright’s evidence of seeing the defendant putting a knee into the dog, placing the dog in a headlock and that he tackled and kicked the dog, which he said was “just playing” or “showing who is alpha”. I did give that evidence the consideration sought by the defence in terms of whether the behaviour could be explained or excused so as not to amount to cruelty. The argument is without merit and the evidence is too disconnected from the relevant event to have that quality. The prosecution’s case negatives any such explanation given the evidence of Smith and Hausmann which I accept completely.
Was the defendant cruel to the dog?
- Having made these findings, the next question is whether the defendant was cruel to the animal.
- The prosecution’s case is particularised under s18(1) and s18(2)(b) and (c). The prosecution must prove that the defendant was “cruel” to the dog.
- The Concise Oxford Dictionary defines the word “cruel” as “Harming or showing indifference to or pleasure in another’s suffering” and as “causing pain or suffering” and therefore giving rise to the cognate words “cruelly (an adverb) and cruelty (the noun).
- I noted earlier that section 18(2) sets out not to limit the scope of subsection (1). Therefore cruelty could extend to other forms of cruelty not mentioned in subsection (2)(a) through (h). However, the prosecution here must prove its particulars, i.e. that the defendant did— beat the dog so as to cause the animal pain and/or that he abused, terrified, tormented or worried the animal.
- Only one of the terms used in section 18 is further defined in the Act. For example, in the schedule -‘Dictionary” to the Act, the following definition is made and must also be applied by me:
“pain” includes (so is not limited to) distress and mental or physical suffering.
- However, the Act’s Dictionary does not define the other terms such as “beats”, “abuses”, terrifies”, “torments” or “worries”. For those I return to the Concise Oxford Dictionary where:
“beats” means “to strike repeatedly, to inflict blows on.”
“abuses” means to “misuse, make bad use of or maltreat and to speak insultingly or unkindly to or of.”
“terrify” means to “fill with terror, frighten” (and “terror” means “extreme fear”).
“torment” means to “cause severe bodily or mental suffering.”
“worries” means generally, among other things, to be “anxious” or “troubled” and specifically (of dog) means to “1. bite or seize especially at throat, (rat, sheep, dog) repeatedly, shake or pull about with the teeth, attack repeatedly. 2. Tease, harass, importune, be continuously or intermittingly troublesome to.”
- Therefore, cruelty can cover a broad range of abuses and a varying range of suffering caused to an animal.
- Before deciding whether the defendant was cruel to the animal there is one more issue raised by the solicitor who appeared for the defendant and it will require a consideration of further rules of statutory interpretation.
Is there an element of intent in subsection (2)(b)?
- While making her closing submissions Ms Quadrio raised “intent”. The submission is that in subsection (2)(b) there is an implied element of intent and that the words “so as to cause the animal pain” means that the prosecution must prove the defendant had the intent to cause the animal pain.
- In R v Green (No.3)  ACTSC 96 at  to  in the Supreme Court of the Australian Capital Territory, Justice Loukas – Karlsson very helpfully, with respect, summarises six important and relevant principles of statutory interpretation. Her Honour stated:
 It is uncontroversial that a question of statutory construction must be “determined by reference to text, context and purpose” of the Act in question (Military Rehabilitation and Compensation Commission v May  HCA 19; 257 CLR 468 at ). Nevertheless, in approaching the task of construing s 28(2)(a), it is appropriate to elaborate on this process by reference to a number of further principles.
 First, regard must be had to the appropriate starting point for the task of construction. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue  HCA 41; 239 CLR 27 , Hayne, Heydon, Crennan and Kiefel JJ observed as follows at :
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
 This process was considered more recently in SZTAL v Minister for Immigration & Border Protection; SZTGM v Same  HCA 34; 347 ALR 405 (SZTAL) by Kiefel CJ, Nettle and Gordon JJ at :
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
 Thus, while it is appropriate in the first instance to consider the natural and ordinary meaning of words of the statute, at this initial stage context and purpose may nevertheless ultimately displace an otherwise ordinary meaning. As was observed by Kiefel CJ, Bell and Nettle JJ in SAS Trustee Corp v Miles  HCA 55; 361 ALR 206 (SAS Trustee) at :
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.
 Second, when considering the text of the Act, it must be read with regard to, and consistently with, the provisions of the Act as a whole (Legislation Act 2001 (ACT) (Legislation Act) s 140; Project Blue Sky v Australian Broadcasting Authority  HCA 28; 194 CLR 355 at ).
 Third, when construing a particular word, a court may take judicial notice of the fact of an ‘ordinary meaning’ of a word, and can do so with the assistance of an authoritative dictionary (Kuzmanovski v New South Wales Lotteries Corporation  FCA 876; 270 ALR 65 at –). In Australia, the “most authoritative” dictionary is said to be the Macquarie Dictionary (see House of Pearce Pty Ltd v Bankstown City Council  NSWSCA 44; 48 NSWLR 498 at ). I note, however, the concerns expressed by Leeming JA regarding the reliance on dictionaries in discerning meaning within a particular context (see 2 Elizabeth Bay Road Pty Ltd v The Owners — Strata Plan No 73943  NSWCA 409; 88 NSWLR 488 at ). The use of a dictionary is considered no substitute for the interpretative process (TAL Life Ltd v Shuetrim  NSWCA 68; 91 NSWLR 439 at ).
 Fourth, consistent with the approach described in SZTAL, context and purpose should not be considered at some later stage, including legislative history and extrinsic materials (Federal Cmr of Taxation v Consolidated Media Holdings Ltd  HCA 55; 250 CLR 503 at ). Some uncertainty exists as to the requirement for the statutory text to present an ambiguity before referral can be made to extrinsic materials (see CIC Insurance Ltd v Bankstown Football Club ltd  HCA 2; 187 CLR 384 at 408; A2 v R  NSWCCA 174 at ; cf Saeed v Minister for Immigration & Citizenship  HCA 23; 241 CLR 252 at ). However, there is authority in this jurisdiction at least that such an ambiguity is not required (Commissioner for ACT Revenue v Dataflex Pty Ltd and ACAT  ACTCA 14; 5 ACTLR 271 ).
 In any event, the Legislation Act, though not an exhaustive codification of the law of interpretation in this jurisdiction (s 137(2)), provides that extrinsic materials may be referred to for the purposes of, amongst others, resolving an ambiguous or obscure provision of an Act or confirming or displacing the apparent meaning of an Act (ss 138, 141). The categories of materials that a court may have regard to are listed non‐exhaustively in s 142 of the Legislation Act.
 Fifth, in this jurisdiction, where multiple possible interpretations of an Act are open, the interpretation which “best achieves” the purpose of the Act is to be preferred to any other interpretation (Legislation Act, s 139).
 Finally an additional presumption is applicable in the context of penal statutes in particular. That is, although ordinary rules of construction are to be applied, where doubt exists in the construction of penal statute, courts should interpret the statue so as not to extend a category of criminal offences (Beckwith v R (1976) 135 CLR 569 (Beckwith) at ). However, this presumption is one to be applied as a “last resort” (Beckwith at ; Aubrey v R  HCA 18; 260 CLR 305 at ) or when “an ambiguity seems intractable” (R v Lavender  HCA 37; 222 CLR 67 at ).
- Of course, in Queensland we must also consider the relevant provisions of the Acts Interpretation Act 1954 (AIA):
- Section 14A of the AIA states:
14AInterpretation best achieving Act’s purpose
- (1)In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
- (2)Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.
- (3)To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any resumption or rule of interpretation.
- Section 14B of the AIA relevantly provides:
14BUse of extrinsic material in interpretation
- Subject to subsection (2) in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation-
- If the provision is ambiguous or obscure-to provide an interpretation of it; or
- If the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable- to provide an interpretation that avoids such a result; or
- in any other case-to confirm the interpretation conveyed by the ordinary meaning of the provision.
- In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to-
- The desirability of a provision being interpreted as having its ordinary meaning; and
- The undesirability of prolonging proceedings without compensating advantage; and
- Other relevant matters.
- In subsection 14B(3) the phrase ‘ordinary meaning’ means the ordinary meaning conveyed by a provision having regards to its context in the Act and to the purpose of the Act.
- I note that the maximum penalty, if the defendant is convicted, is 200 penalty units or 3 years imprisonment. I accept Ms Quadrio’s submission that as a matter of construction a statute which affects personal liberty should be construed strictly and in favour of a citizen. See Bulsey & Anor v State of Queensland  QCA 187 at .
- Therefore, any ambiguity about the meanings of words or elements in the section should be resolved by a strict construction, in favour as of the citizen. See Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 at 139. Here I am asked to infer such an element of intent because it is not expressly declared to be an element of the offence under either under subsection 18(1) or (2) of the Act.
- Ms Quadrio submits there is an element of intent which the prosecution must prove and by analogy refers to section 69 of the Criminal Code (which uses the similar phrase “as to cause fear”). Does it help in the interpretation of section 18(2) of the Act?
- Section 69 of the Criminal Code provides:
“69. Going armed so as to cause fear
Any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person is guilty of a misdemeanour, and is liable to imprisonment for 2 years.”
- I also note that, at least for the purposes of raising excusal from criminal liability under s 23 of the Criminal Code, subsection (2) in s 23 of the Code provides that “Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
- I have had regard to the academic article by John Aberdeen: “What is “Going Armed” (1998) 19 Qld Lawyer 57 where the learned author traces the history and origin of section 69 to the year 1328, in 14th Century England. At page 61 he points out the offence under s 69 comes with a built in defence of having “lawful occasion” to go armed in such a manner so as to cause fear. One example of a case of lawful occasion not referred to by Mr Aberdeen is R v Anderson (1910) QLR 19 where a defendant had the right to frighten off an assailant by drawing his revolver.
- Mr Aberdeen refers at page 61 to the case of Ashcroft (1989) 38 A Crim R 327, in Western Australia:
“The element of being “armed” was considered in Ashcroft where the appellant had menaced people at a take-away food bar with a replica pistol. Kennedy J held that “armed” in the context of the section meant “furnished with an object capable of causing terror” (or, in Queensland, “fear”). There is certainly a crucial importance attaching to the circumstances, as his Honour observed, and perhaps the words “in the circumstances” should be inserted between the words “capable” and “of causing terror”. A wine glass held delicately in the hand of a family member at a quiet barbecue in the park could not be said to constitute “arms” – its character changes if being swung by a drunken assailant towards concerned onlookers in the course of a street brawl. A practical and sound approach to a definition could be seen in the test proposed by the learned trial judge, whose direction was under appeal in Ashcroft. “The question is whether its character and the way in which it is used is such as to inspire terror, fear, panic or other like emotion.”
- There is nothing else even coming close to discussing any element of intent in Aberdeen’s learned article.
- In Ashcroft v R (1989) 38 A Crim R 237 Kennedy J actually said:
“ The provisions of s 68 were considered by this Court in Inowye v The King (1921) 24 WALR 52, in which it was held that a person's merely carrying a stick did not mean that he was armed, there being nothing ‘to show that it had been treated in any unusual manner so as to make it a dangerous weapon’. McMillan CJ, in whose extempore judgment the other members of the court agreed, suggested that support for the court's conclusion was to be found in s 393 and s 394 of the Act (since amended), which deal with the punishment of the offence of robbery and with attempted robbery. In each section, however, the reference is to persons being ‘armed with any dangerous or offensive weapon or instrument’. The difficulty with this approach is that it treats the use of the word ‘armed’ in s 68 as meaning ‘armed with a dangerous or offensive weapon’. With respect, that does not appear to be warranted in the circumstances. It would render the addition of those words in s 393 and s 394 otiose. It is, in my opinion, significant that the words ‘armed with any dangerous or offensive weapon or instrument’ do not appear in s 68. That being said, however, there can be no doubt that, on the facts in Inowye's case, the appellant was not relevantly armed. All that the evidence showed was that he was carrying a stick. There was no evidence to indicate the size of that stick. Nor, it would appear, was there any evidence as to the manner in which it was being held. The latter point is, of course, crucial. As McMillan CJ pointed out, if a man goes about ‘merely carrying a stick’, it does not constitute the offence of going armed in public.
In my opinion, the expression ‘armed’ in the context of s 68, should not be given a restricted meaning, but should be regarded as meaning ‘furnished with an object capable of causing terror’.”
- In Ashcroft, Walsh J said:
“The fact that the object used is not capable of firing a projectile does not, in my opinion, make any difference. The question is whether its character and the way in which it is used is such as to inspire terror, fear, panic or other like emotion. In my opinion, the case of Inowye is no authority for the proposition that one can't be armed with something like a replica pistol. All that case decides is based on the state of the evidence in that case, and all that the evidence showed in that case was that the accused had a stick, and nothing to show that it had been treated in any unusual manner so as to make it a dangerous weapon. The judges in that case were not concerned with a replica pistol, nor are the observations in the cases on s 393 and s 394 to the point. What is condemned in s 68 is the ‘going in public in such a way as to cause terror’, and whether that terror is induced by a weapon in the Medieval sense or some other object which is capable of inspiring terror, in my opinion, makes no difference. In my opinion the accused has a case to answer."
- I will continue to deal with further cases which have considered section 69 of the Criminal Code (Qld,) or similar sections in other states, in chronological order. In R v Bennett  2 Qd R 174 McPherson JA traced the history of the section and stated at :
“ This 650-year history is useful only to show how little assistance it provides in elucidating the meaning of that expression in s. 69(1) of the Code. Still, what Hawkins mentioned in his treatise, which was first published in 1716, does at least suggest that going armed in public is not necessarily an offence if there is good and lawful reason for it.”
- At  his Honour said:-
“ It is at this point that the Crown’s principal difficulty arises. There appears to be little, if any, direct authority on the meaning of that expression in s. 69(1). In R. v. Anderson  Q.W.N. 19, Chubb J. directed the acquittal of a man who drew a revolver which he pointed at someone, who had initially threatened him in a public street and then struck him a blow on the chest. In Inowye v. R. (1921) 24 W.A.L.R. 52, merely carrying a stick in public in Broome in 1920 was, without more, held not to amount to an offence under the corresponding s. 68 of the Western Australian Criminal Code. The decision in R. v. Anderson appears to suggest that a person may (subject, of course, to later statutes on the matter) carry a concealed firearm for his own protection; cf. also R. v. Hildebrandt  Qd.R. 43, 53; but none of these cases is of any real assistance here. The same is true of Dearnley v. The King  St.R.Qd. 51, where the accused fired a shot after his pursuer chased him through Turbot Street to Little Roma Street, following an attempt by the accused to commit a robbery at a residential building in George Street. In his case, there was plainly no ‘lawful occasion’ for going armed in public.”
- And at :
“ In what Mr Jack Bennett said to Police Officers McPhail and Graham, of which they gave evidence at the trial, there is ample evidence that the fight was still proceeding when he fired the shot in the air, and that he fired it to break up the fight with Barry Facer and stop his two sons going on with it. In my opinion, that state of affairs was fairly capable of being considered a lawful occasion, within the meaning of s. 69(1) of the Code, for his going armed in public so as to cause fear, if that is what he did, to those involved in the fight, who included George and Lindsay Bennett as well as Barry Facer. If he had not fired that shot and the fight had gone on, even more serious injuries might have been sustained by those involved in it.”
- One can gather from the cases referred to so far that intention is not an element of the offence under s. 69, but that intention is relevant to whether a defendant had a ‘”awful occasion” for going armed so as to cause fear. The elements of the section, and the defence in it, speak to the manner of the going.
- In contrast, George John v Police (2002) 219 LSJS 228;  SASC 112 is the only case which actually addresses whether there is an element of intent in the similar section in South Australia. Lander J held that the prosecution did not have to prove intention to frighten the victim.
- In John v Police (above) the charge alleged that the defendant “without reasonable cause, discharged a firearm so as to frighten a person, contrary to s.51(1) of the Summary Offences Act 1953 (S.A).” In that case the Magistrate had directed himself that:
“In order to prove the offence, the prosecution must prove beyond reasonable doubt that the defendant discharge a firearm, that he did so with a specific intention of frightening any person or that he did so person were frightened by the discharge of the firearm. In addition they must prove that he had no reasonable cause for that conduct.”
- At  to  Louder J held:
“. Regrettably the Magistrate, in so directing himself, fell into error. The prosecution did not have to prove that the appellant discharged this firearm with the specific intention of frightening the victim, not did the prosecution have to prove that he did so with reckless indifference as to whether any person or persons were frightened by the discharge of the firearm. (all my underlining)
. Moreover, it was wrong of the Magistrate to direct himself that the prosecution had to prove that the appellant had no reasonable cause for that conduct.
. The elements of this offence were discussed in the judgment of the Full Court in Rowe v Manevski & Another (1994) 62 SASR 468. In that case Perry J said in discussing a similar charge, that the onus is upon the prosecution to establish first that the appellant discharged the firearm and secondly, that he did so to injure the victim. He said that if the prosecution proved those two elements, the onus fell upon the appellant in that case to establish, on the balance of probabilities, that the discharge of the firearm was done with reasonable cause. Perry J reached that conclusion by having regard to s.51(1) and s.5 of the Act. S.5 of the Act provides:
“5 Subject to any provision to the contrary, where this Act provides that an act done without lawful authority, without reasonable cause, without reasonable excuse, without lawful excuse or without consent constitutes an offence, the prosecution need not prove the absence of lawful authority, reasonable cause, reasonable excuse, lawful excuse or consent, and the onus is upon the defendant to prove any such authority, cause, excuse or consent upon which he or she relies.”
“ The prosecution does not have to prove the absence of lawful authority, reasonable cause, reasonable excuse, lawful excuse or consent and the onus is upon the defendant to prove any such authority, cause, excuse or consent upon which he or she relies.
“ Clearly enough, the interaction of those two sections leads to the conclusion reach by Perry J.
- While the outcome was particularly driven by the specificity of the defence provision in s 5 of the South Australian Act, the case is still authority for the proposition that to “discharge a firearm so as to frighten” does not carry with it an element of intention to frighten.
- However, Lander J also held that under s 51 of the South Australian Act it was necessary for the prosecution to prove that the victim was in fact frightened by the discharge of the firearm. That seems to be at odds with the Queensland cases.
- Another case, Morgan v Graham  WASC 68, is helpful only to show that the difficulty in interpretation and enforcement of the Western Australian equivalent of s 69 in Queensland’s Criminal Code has been dealt with by amendment. In Western Australia s.68 of the Criminal Code now relevantly provides:
“68. Being armed in a way that may cause fear
- A person who is or pretends to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person is guilty of a crime and is liable to imprisonment for 7 years. Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.
- It is a defence to a charge under subsection (1) to prove that the accused person had lawful authority to be so armed in such circumstances.”
- The legislation in Western Australia appears to have deliberately elected not to include an element of intent.
- In my considered view, the interpretation which best achieves the objects and purposes of the Act is one which does not infer or imply an element of intent. That interpretation is also justified by giving the words their plain English meaning. The defendant’s intentions are relevant only to whether the prosecution has negatived any lawful authority, justification or excuse raised by the defence.
- Here the defence case is contained in the video which, as I say, is unhelpful because the defendant is performing to the camera and to police as an audience in an obvious and exaggerated way, while he is intoxicated, and his actions regarding the dog are not sufficiently connected in time or otherwise to the events in question as witnessed by the Bunnings employees.
- The facts as I have found them do in any case evidence an intention, even if I am wrong about that being an element of the offence; an intention to beat the dog and cause it pain and an intention to abuse it physically, by kicking it in the head, which did abuse, terrify and worry it.
- The defendant indeed telegraphed his intention twice:
- He asked if there were cameras in the car park, from which it may be inferred he intended to do something he knew he ought not do; and
- Repeatedly, the defendant exclaimed to the dog that he will beat the dog if the dog did not help him find a car (whatever car the defendant had in mind in his intoxicated state).
- The severity of the kicks, the repetition of the kicks and the evidence of the veterinarian that dogs are sentient beings and that they feel pain just like humans do, and the fact that each kick was to the dog’s head, and that the dog reacted to the kicks as found above, each draw me also to the irresistible conclusion that the kicks were “beats” and did cause pain and further the kicks were “abuse” and did terrify and torment and worry the dog.
- I make all the above findings and conclusions beyond all reasonable doubt. Consequently, I find the defendant guilty as charged.
- I will give the parties an opportunity to make submissions relevant to imposing an appropriate penalty or sentence.
- Published Case Name:
QPS v McElliggott
- Shortened Case Name:
QPS v McElliggott
 QMC 1
04 Feb 2020