Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined (QCA)

Dart v Singer

 

[2014] QCA 263

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

In Appeal No 40 of 2013:

DART, Frederick William
(appellant)
v
SINGER, Clifford
(respondent)

In Appeal No 41 of 2013:

FILE NO/S:

CA No 41 of 2013

DC No 645 of 2011

DC No 646 of 2011

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

DELIVERED ON:

17 October 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

17 June 2014

JUDGES:

Margaret McMurdo P and Muir JA and North J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In CA No 40 of 2013:

1. The appeal is allowed with costs.

2. The orders made by the District Court at Townsville on 21 December 2012 are set aside. Instead it is ordered:

"1.The appeal against conviction for the offence of contravention of a prohibition order contrary to s 187 Animal Care and Protection Act 2001 (Qld) is allowed. The conviction is set aside and a verdict of not guilty substituted.

2.The convictions entered in the Magistrates Court at Townsville on 1 December 2011 are otherwise confirmed.

3.The appeal against sentence is allowed to the extent of setting aside all sentences of three years probation imposed in the Magistrates Court at Townsville on 1 December 2011 for breaching a duty of care under s 17(2) Animal Care and Protection Act and substituting sentences of two and a half years probation. The sentences imposed in the Magistrates Court at Townsville on 1 December 2011 are otherwise confirmed.

4.The ancillary orders made in the Magistrates Court at Townsville on 1 December 2011 are otherwise confirmed.

5.The respondent is to pay the appellant's costs of the appeal."

In CA No 41 of 2013:

1.The appeal is allowed with costs.

2.Orders 1, 2 and 6 made by the District Court at Townsville on 21 December 2012 are set aside. Instead, it is ordered:

"1.The appeal against the two convictions for the offences of contravening a prohibition order on 22 December 2008 contrary to s 187 Animal Care and Protection Act 2001 (Qld) and the appeal against conviction for the offence of contravening a prohibition order contrary to s 187 Animal Care and Protection Act on 30 December 2008 are allowed. The convictions are set aside and verdicts of not guilty are entered.

2.The convictions entered in the Magistrates Court at Townsville on 1 December 2011 are otherwise confirmed.

3.The respondent is to pay the appellant's costs of the appeal."

CATCHWORDS:

Criminal law – Appeal and new trial – Evidence – Matters relating to proof – Miscellaneous matters where each appellant was convicted and sentenced in the Magistrates Court for a number of offences against the Animal Care and Protection Act 2001 (Qld) ("the Act"), including contravening a prohibition order under s 187 of the Act – where each appellant appealed unsuccessfully against their convictions to the District Court – where the appellants contend that the magistrate erred in misconstruing the prohibition order of 12 December 2008; that it had only prospective effect; and that the respondent did not prove that the appellants were not already in possession of the relevant animals at the time the prohibition order was made – whether the magistrate erred in not considering whether the appellants took possession of the animals after the prohibition order was made – whether the appeal against conviction should be allowed

Criminal law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – where the first appellant was sentenced to three years probation and a fine – where the second appellant was sentenced to three months imprisonment suspended after one month for an operational period of 12 months – where the District Court judge varied the sentence to three months imprisonment wholly suspended – whether each appellant's sentence/s should be varied

Animal Care and Protection Act 2001 (Qld), s 17(2), s 149(2), s 187

Justices Act 1886 (Qld), s 222

Dart v Singer; Hajridin v Singer [2013] QCA 255, related

Dart v Singer; Hajridin v Singer, unreported, District Court, Qld, DC Nos 645 and 646 of 2011, 21 December 2012, related

Singer v Dart & Ors [2011] QMC 37, related

COUNSEL:

In Appeal No 40 of 2013:

The appellant appeared on his own behalf

J R Hunter QC for the respondent

In Appeal No 41 of 2013:

The appellant appeared on her own behalf with F W Dart assisting

J R Hunter QC for the respondent

SOLICITORS:

In Appeal No 40 of 2013:

The appellant appeared on his own behalf

Roberts Nehmer McKee for the respondent

In Appeal No 41 of 2013:

The appellant appeared on her own behalf with F W Dart assisting

Roberts Nehmer McKee for the respondent

  1. MARGARET McMURDO P:  The background to these appeals is set out in this Court's reasons for extending time to apply for leave to appeal:[1]

"[1]The applicants, Frederick Dart and Megan Hajridin, were convicted of offences against the Animal Care and Protection Act 2001 (Qld) ("the Act") on 7 November 2011 after a trial in the Townsville Magistrates Court extending over seven days between January and April 2011.  Mr Dart was convicted of one offence of contravening a prohibition order under s 187 of the Act, five offences of breach of a duty of care under s 17(2) of the Act and one offence of possession of a seized animal in contravention of s 149(2) of the Act.  Ms Hajridin was convicted of four offences of contravening a prohibition order under s 187 of the Act, five offences of breach of duty of care under s 17(2) of the Act and one count of possession of a seized animal in contravention of s 149(2) of the Act.

[2]On 1 December 2011, Mr Dart was fined $2,000 for the offence of possession of a seized animal which was referred to the State Penalties Enforcement Registry (SPER).  On all other offences, he was sentenced to three years probation.  He was ordered to pay court costs of $187.50.  Ms Hajridin was sentenced on each offence of contravening the prohibition order to three months imprisonment suspended after one month with an operational period of 12 months.  On each offence of breach of duty of care, she was placed on three years probation.  On the offence of possessing a seized animal, she was fined $2,000 which was referred to SPER.  She was prohibited from purchasing, otherwise acquiring or taking possession of any animal for trade or commerce other than desexed companion animals permitted by any local government local law for a period of five years.  She was also ordered to pay compensation of $200 and court costs of $337.50.  All the animals seized, together with any other animals presently registered or in the possession of the appellants not being companion animals as permitted by any local government local law, and the two pet carrying cases, were forfeited to the Royal Society for the Prevention of Cruelty to Animals (RSPCA).  Each applicant was ordered to pay the RSPCA's costs of seizure and accommodation totalling $80,481.20 under s 189 of the Act.

[3]Each applicant appealed against their conviction and sentence to the District Court under s 222 Justices Act 1886 (Qld).  Ms Hajridin was granted bail pending appeal.  The appeals were heard in late July 2012.  On 21 December 2012, Mr Dart's appeal against convictions was dismissed as was his appeal against sentence.  Ms Hajridin's appeal against convictions was also dismissed but her appeal against sentence was allowed in part.  The sentence ordering that she serve three months imprisonment suspended after serving one month was varied so that it was wholly suspended.  Her sentences were otherwise confirmed."

  1. This Court ordered that time be extended and that the applicants have leave to appeal limited to the following questions:[2]
  • "whether the applicants contravened the prohibition order of 12 December 2008 if the respondent failed to establish that they did not purchase or otherwise acquire or take possession of any dog or rat for trade or commerce prior to the date of the prohibition order; and
  • if so, whether their convictions for the offences of contravening the prohibition order should be quashed and verdicts of acquittal entered; and
  • if so, whether their sentences for their remaining convictions should be varied."
  1. Each appellant's lengthy outline of argument is in similar terms. Much in their outlines extends well beyond this Court's limited grant of leave to appeal and to that extent must be disregarded.

The appeals against conviction

  1. This Court gave the following reasons for extending time and granting limited leave to appeal:[3]

"[9] … The magistrate noted the respondent's concession that, until the decision of the court of 12 December 2008 making the prohibition order in respect of each applicant, neither applicant was constrained from "purchasing or otherwise acquiring or taking possession of any dog or rat for trade or commerce".[4]  Her Honour continued:

'[89]… However, following the making of the order, these defendants were at immediate risk of breaching the order, should they continue to possess any dog or rat for trade or commerce.

[90]The [applicants] argue that 'possession' as stated in the prohibition order should be interpreted other than as contained in the dictionary of the Animal Care and Protection Act 2001.  That definition states that 'possession includes control and custody'.  This is an inclusive definition.  In those circumstances, the ordinary meaning of 'possession' should be used.  The Australian Concise Oxford Dictionary meaning of 'possession' is 'actual holding or occupancy; visible power of exercising such control as attaches to (but may exist apart from) lawful ownership'.

[91]I have already found that the purported transfer of the business Topdogzdownunder and the purported transfer of ownership of the animals previously owned by Megan Ann Hajridin and Frederick William Dart to Sydney Dart were shams.  Added to this the fact that Megan Ann Hajridin was the person left in charge of, and in Sydney Dart's clear evidence, she was in possession of the animals and the animals resided in the same building as Ms Hajridin and Mr Frederick William Dart, I am satisfied that Megan Ann Hajridin and Frederick William Dart had possession of the animals.'[5]

[10]The magistrate's ruling at [89] of her reasons appears to be inconsistent with the prohibition order made against each applicant on 12 December 2008 which was in these terms:

'I order that each of the defendants, Frederick DART and Megan HAJRIDIN having been convicted of an animal welfare offence must not purchase or otherwise acquire or take possession of any dog or rat for trade or commerce, for a period of two years from this date.'[6]

[11]Consistent with the terms of the prohibition order, the applicants contend that it had only a prospective effect.  If they were in possession of the dogs or rats the subject of the present charges prior to the issue of the prohibition order, they were not in breach of it.  They contend that when the respondent closed its case before the magistrate, he did not prove that, when the prohibition order was issued on 12 December 2008, they were not already in possession of the dogs or rats.  They contend that the respondent gave evidence that he did not and could not know whether the dogs and rats were in the applicants' possession prior to 12 December 2008.  Although the applicants did not place the relevant portions of the transcript before this Court, since the hearing I have checked the transcript and note that this last submission is accurate and consistent with the respondent's evidence before the magistrate.[7]"

  1. The appellants relevantly contend in these appeals that the evidence before the magistrate did not establish that either appellant was in possession of dogs at all and certainly not after 12 December 2008. Further, the prohibition order did not extend to their breeding from animals in their possession before 12 December 2008. Their convictions for contravening a prohibition order should be quashed. They contend that, as a result, their remaining convictions should also be quashed.
  1. The respondent, Clifford Singer, was the complainant in the charges brought against each appellant and was an employee or officer of the RSPCA. His counsel concedes in these appeals that the magistrate's reasoning set out above is flawed. That concession is rightly made for the following reasons.
  1. The Act relevantly provides in s 183 that

"(1)The court may order (a prohibition order) that a person convicted of an animal welfare offence must not purchase or otherwise acquire or take possession of –…

(c)any animal, or a stated type of animal, for trade or commerce or another stated purpose.

(2)A prohibition order may be made permanently or for a stated period."

  1. I have set out the terms of the relevant prohibition order earlier. Under s 187 of the Act a person against whom a prohibition order has been made must not unlawfully contravene the order. The maximum penalty is 300 penalty units or one years imprisonment. Mr Frederick Dart was charged with contravening a prohibition order on 30 December 2008.  Ms Hajridin was charged with two counts of contravening a prohibition order on 22 December 2008; one on 30 December 2008 and one on 14 April 2010.  In determining whether either appellant had contravened the prohibition order made on 12 December 2008, the magistrate ought to have considered whether Mr Dart or Ms Hajridin took possession of the dogs for trade or commerce after the 12 December 2008 prohibition order was made.  Mr Singer conceded in cross-examination during the Magistrates Court trial that he was unable to say whether either appellant had taken possession of any of the dogs before 12 December 2008.[8]  It was therefore reasonably possible that the animals in the possession of the appellants on 22 and 30 December 2008, only days after the prohibition order was made, were already in their possession at the time of the order.  It followed that the prosecution established neither the charge under s 187 of contravening a prohibition order against Mr Dart on 30 December 2008 nor the first three charges of contravening a prohibition order against Ms Hajridin, two on 22 December 2008 and one on 30 December 2008.  The appeals against these convictions must be allowed, the convictions set aside and verdicts of not guilty substituted.
  1. The position is different, however, in respect of the charge of contravening a prohibition order against Ms Hajridin on 14 April 2010, 16 months after the prohibition order. The evidence on that count included the following. On 14 April 2010 RSPCA inspectors attended the residence of Ms Hajridin's mother at Buchanan Street, Mt Louisa, with a search warrant.  Ms Hajridin was inside the house but refused to open the front door.  Entry was forced at the rear of the house.  Ms Hajridin ran outside carrying a large bag containing puppies and holding several other puppies in her arms.  She was agitated and screaming to her friend, Ms Christine Jackson, to claim the puppies as hers or they would kill them.
  1. Ms Jackson gave evidence that Ms Hajridin had provided her with a constant supply of dogs since December 2008. Ms Hajridin would bring dogs for her to look after as Ms Jackson had empty cages from when she kept exotic birds. She apprehended from Ms Hajridin that all these dogs belonged to Ms Hajridin, not Mr Dart's father. A litter of seven to nine puppies whelped at Ms Jackson's house. She and Ms Hajridin agreed to sell them from Ms Jackson's mother's property.  She gave her mother the money from the sale of two pups.  She gave Ms Hajridin the rest of the money from the sales.  On another occasion one of Ms Hajridin's bitches died at Ms Jackson's house while giving birth to four puppies.  Ms Hajridin told her to drop the pups off to the home of Ms Hajridin's mother in Buchanan Street.  When she arrived, Ms Hajridin was there keeping her mother company.  On the day the RSPCA arrived at the Buchanan Street house, Ms Jackson dropped two of her own dogs off for Ms Hajridin to look after while Ms Jackson took her mother to hospital.  When Ms Jackson returned, the RSPCA had arrived.
  1. Ms Helen Osterman gave evidence that when her bitch became pregnant in April 2009 she contacted Ms Hajridin who agreed to purchase the pups. Ms Osterman subsequently delivered them to her in Cairns.  Either that year or the following year, she sold the father of the pups to Ms Hajridin for $400.
  1. Ms Hajridin gave evidence denying that she had taken possession of any animal for the purpose of trade or commerce after 12 December 2008. She said the dogs belonged to Mr Dart's father, Mr Sydney Dart. She was taking them on his behalf for a vet check on 22 December 2008. All money paid into her account from the sale of dogs was given to Mr Sydney Dart. The dogs found at her mother's house on 14 April 2010 belonged to her mother.
  1. Mr Frederick Dart gave evidence that he had not taken possession of any animals after 12 December 2008 save for those born to animals already in his possession. He and Ms Hajridin transferred property in all their animals to his father in return for him allowing them to reside at their Calcium premises which they had also leased to Mr Sydney Dart for $100 per year.
  1. Mr Sydney Dart gave evidence similar to that of Mr Frederick Dart and Ms Hajridin.
  1. As noted earlier, the term "possession" is defined in the schedule dictionary to the Act as including control and custody. I do not accept the appellants' contention that puppies bred from dogs in the appellant's possession prior to 12 December 2008 is not a contravention of the prohibition order. The puppies were found at the home of Ms Hajridin's mother on 14 April 2010 about 16 months after the prohibition order. The magistrate was entitled to conclude beyond reasonable doubt, from Ms Hajridin's conduct in respect of those puppies, that she was exercising control over them and was therefore in possession of them on 14 April 2010.  This was so, whether or not the puppies were bred from dogs in Ms Hajridin's possession before 12 December 2008.  The magistrate was also entitled to conclude beyond reasonable doubt that she had possession of the puppies on 14 April 2010 for the purpose of trade or commerce in contravention of the prohibition order.  These conclusions were consistent with the evidence of Ms Jackson and Ms Osterman.  The magistrate was entitled to reject the appellants' and Mr Sydney Dart's evidence that the appellants genuinely transferred ownership of all their animals to Mr Sydney Dart.  In any case, there was convincing evidence that Ms Hajridin was exercising control over the dogs at her mother's house for trade and commerce, even were she passing on the sale proceeds to Mr Sydney Dart.  It follows that Ms Hajridin's appeal against the conviction for contravening a prohibition order on 14 April 2010 must be dismissed.
  1. The appellants' further contentions that the quashing of these convictions affects the convictions on the remaining offences are unpersuasive. But in any case, those contentions are outside the ambit of the limited grant of leave to appeal and are irrelevant.

Appeals against sentence

  1. The next issue in accordance with the limited grant of leave to appeal is whether each appellant's sentence/s for the remaining convictions should be varied in light of the acquittals.
  1. The facts of each appellant's offending were succinctly summarised in the District Court Appeal:

"The appellants on 12 December 2008 pleaded guilty to and were sentenced on over 130 charges made under the Act.

  • On 12 December, 2008 a 'prohibition order' was made by his Honour Magistrate Smith that the appellants 'must not purchase or otherwise acquire or take possession of any dog or rat for trade or commerce for a period of two years', from the date of the order. …
  • Within ten days after the order was made [a potential purchaser] had internet negotiations involving the sale and purchase of a dog from Ms Hajridin for a sum of money.
  • [The potential purchaser] made a google search about Ms Hajridin and discovered that the appellants had been prohibited from selling dogs. She contacted the RSPCA.
  • The RSPCA induced Ms Hajridin to bring the dog that was for sale to a veterinary clinic. She was intercepted and questioned about her conduct.
  • Ms Hajridin allegedly made false representations to RSPCA officers as to why she had the dog in her possession.
  • A covert operation was arranged, with a RSPCA officer posing as a purchaser of another dog and [Ms] Hajridin was intercepted attempting to sell that dog.
  • On 22 December 2008 RSPCA inspectors attempted to enter premises of the appellants at Calcium but were refused entry.
  • On 30 December 2008 RSPCA inspectors attended that premises with a warrant to enter and in the company of police officers.
  • A search of the premises revealed 20 small breed dogs in sheds, 16 to 18 small breed dogs in an open pen area and a large number of pink and black carrier cages in a shed, each marked with the words 'TopDogzDownUnder'.
  • There were also a large number of cages containing large numbers of rats and mice.
  • A veterinary surgeon, Ms Lomax, also attended the premises in the company of the inspectors.
  • The rat and mice cages were overcrowded, in an unsanitary condition and there was an inadequate supply of water. Some of the animals had untreated injuries.
  • The inspectors formed the view that the animals were being kept for commercial purposes. The animals were all seized.
  • On 14 April 2010 inspectors attended with a warrant to enter premises at 8 Buchanan Street, Mount Louisa, a property owned by the parents of Ms Hajridin.
  • One of the dogs was identified by its microchip as a dog that had been seized in the earlier proceedings that were concluded before his Honour Magistrate Smith in December 2008."[9]
  1. In sentencing Mr Dart, the magistrate noted that the seven charges of which he had been found guilty included a breach of duty of care to 567 rats; a breach of duty of care to 272 mice; a breach of duty of care to one rat with a lesion; a breach of duty of care to a dog suffering from infected teeth and gums; a breach of duty of care to a dog suffering a severely infected ear; and possession of a seized animal.  He was the registered owner of the property where the animals were located and he lived there with his partner, Ms Hajridin.  He was 48 years old and had no criminal history prior to the offences committed on 12 December 2008 for which he was placed on two years probation.  He produced good character references and some referees attended court.  He had been in stable employment for about 20 years.  The magistrate noted that the references showed his compassion and his responsible employment which he carried out "efficiently and, it would seem, with grace".  Her Honour considered that his conscious participation in attempting to circumvent the court order of 12 December 2008 was an aggravating feature, as was his support of Ms Hajridin in her business of possessing the dogs, rats and mice for trade and commerce and his ignorance or indifference to their treatment.  The magistrate was "particularly concerned at the direct flouting of the prohibition order".  For the offence of possession of a seized animal for which the maximum penalty was $10,000 she convicted and fined him $2,000 which she referred to SPER.[10]  On the remaining counts she convicted him and placed him on three years probation.  She also prohibited him from purchasing otherwise acquiring or taking possession of any animal for trade or commerce other than de-sexed companion animals permitted by any local government local law for five years.  He was further ordered to pay court costs of $187.50.
  1. I consider that the magistrate was right to record convictions, especially in light of his 2008 like offending. It seems that in setting the probation period at the three year maximum, the magistrate was imposing a global penalty to encompass the totality of his offending, apart from the offence of possession of a seized animal for which a $2,000 fine was imposed. Her Honour particularly noted her concern as to his flouting of the prohibition order, a reference to the conviction which must now be set aside. This Court should therefore determine whether, in light of that acquittal, a lesser global penalty is apposite. After balancing the exacerbating and mitigating features, including his much lesser role than Ms Hajridin's in this offending and in the 2008 offending, I consider that the appropriate global penalty is to record convictions and place the appellant on two and a half years probation for those offences.
  1. In sentencing Ms Hajridin, the magistrate noted that she had been found guilty of four breaches of a prohibition order when she had dogs in her possession for trade or commerce (three of which have now been set aside); a breach of duty of care to 567 rats; a breach of duty of care to 272 mice; a breach of duty of care to a rat with a lesion; a breach of duty of care to a dog with infected teeth and gums; a breach of duty of care to a dog with an infected ear; and possession of a seized animal. She was 52 years old and in precarious mental and physical health. Her relationship with Mr Dart had broken down.  A character reference from a veterinarian referencing to her expertise in caring for animals over the last 18 months and medical reports relating to her poor health following a motor vehicle accident were tendered.
  1. The magistrate accepted Ms Hajridin had some skills in caring for animals and that she did care for her animals a great deal. The animal care at the property on 30 December 2008 was a vast improvement from that at the time of the previous raid.  It was still, however, not to the standard of a responsible pet owner.  The authors of Ms Hajridin's medical reports had prepared them for her personal injuries case following a May 2009 motor vehicle accident and were not available for and had not been tested in cross-examination.  They did not refer to these or her previous court proceedings and did not suggest that the present offending was related to her mental health.  The magistrate nevertheless accepted that Ms Hajridin's mental state was precarious.  She had no remorse and appeared to tell different people different things at different times to benefit herself.  Her four charges of breaching a prohibition order (now one charge) showed a repeated contempt for court orders which were put in place to protect animals from harm.  She also had earlier convictions on 31 August 2010 for stealing and fraud offences committed between 2002 and 2007 for which she was sentenced to imprisonment with immediate court-ordered parole.  The present offences were committed during that parole period and immediately after she was sentenced in 2008 for like offences.  She clearly had no respect for court orders.  Her conduct warranted community denunciation and her sentence should reflect the need for general and personal deterrence.
  1. On each of the offences of breaching a prohibition order, the magistrate sentenced her to three months imprisonment suspended after one month for an operational period of 12 months. On each offence of breach of duty care, the magistrate placed her on three years probation.
  1. As noted earlier, Ms Hajridin was successful in her appeal against sentence to the District Court in that her sentence of three months imprisonment for contravening the prohibition order was wholly suspended. The District Court judge noted:

"[212]Whilst deterrence generally was arguably a matter of significance in the sentencing of the appellant Ms Hajridin, personal deterrence was specifically referred to in the context of the appellant being a person who had defied court orders in the past in respect of orders for disqualification. However, that fact does not of necessity make a wholly suspended sentence any less a deterrent to the appellant than a short term of actual imprisonment, given her age, her health issues and the apparent breakdown of her relationship with Mr FW Dart. The previous convictions for fraud, as relevant as they are in determining sentence, do not of necessity have that effect either.

[213]Whilst it is undesirable in my view to impose sentences of imprisonment of very short duration, it does not necessarily follow that it is inappropriate in every case. The terms of imprisonment for breaches of the prohibition order were within the magistrate’s sentencing discretion and appropriate in the circumstances. Whilst on the face of things a sentence requiring a short period of actual custody was open to the magistrate to make, it constitutes a quantum leap from previous punishments imposed for similar offending. I have concluded, after careful consideration, that the discretion of the magistrate miscarried in imposing a very short term of actual imprisonment. In my view a period of imprisonment wholly suspended would have been a more appropriate sentence and in the circumstances I will vary the sentence accordingly."[11]

  1. Although three of Ms Hajridin's four convictions for contravening a prohibition order under s 187 have been set aside, the fact remains that, as the magistrate and the District Court judge rightly noted, her remaining conviction for breaching a prohibition order on 14 April 2010 showed a repeated disregard for court orders which were put in place to protect animals.  It was committed whilst on court-ordered parole for stealing and fraud.  Her persistent recidivism and her lack of respect for court orders warranted community denunciation through a firm sentence reflecting the need for general and personal deterrence.  For those reasons, despite her acquittal on three of her four charges of contravening a prohibition order, I am unpersuaded that any lesser sentence than that imposed by the magistrate as varied by the District Court judge should now be substituted.

Costs

  1. The appellants have had considerable success in this appeal. They were self-represented, as they were in the appeal to the District Court, so that it is unlikely they will have incurred legal costs but they are entitled to be compensated for any assessable costs they have incurred.

Orders

  1. I propose the following orders:

In CA No 40 of 2013 Frederick William Dart v Clifford Singer:

  1. The appeal is allowed with costs.
  1. The orders made by the District Court at Townsville on 21 December 2012 are set aside.  Instead it is ordered:

"1.The appeal against conviction for the offence of contravention of a prohibition order contrary to s 187 Animal Care and Protection Act 2001 (Qld) is allowed. The conviction is set aside and a verdict of not guilty substituted.

  1. The convictions entered in the Magistrates Court at Townsville on 1 December 2011 are otherwise confirmed.
  1. The appeal against sentence is allowed to the extent of setting aside all sentences of three years probation imposed in the Magistrates Court at Townsville on 1 December 2011 for breaching a duty of care under s 17(2) Animal Care and Protection Act and substituting sentences of two and a half years probation.  The sentences imposed in the Magistrates Court at Townsville on 1 December 2011 are otherwise confirmed.
  1. The ancillary orders made in the Magistrates Court at Townsville on 1 December 2011 are otherwise confirmed.
  1. The respondent is to pay the appellant's costs of the appeal."

In CA No 41 of 2013 Megan Ann Hajridin v Clifford Singer:

  1. The appeal is allowed with costs.
  1. Orders 1, 2 and 6 made by the District Court at Townsville on 21 December 2012 are set aside.  Instead, it is ordered:

"1.The appeal against the two convictions for the offences of contravening a prohibition order on 22 December 2008 contrary to s 187 Animal Care and Protection Act 2001 (Qld) and the appeal against conviction for the offence of contravening a prohibition order contrary to s 187 Animal Care and Protection Act on 30 December 2008 are allowed. The convictions are set aside and verdicts of not guilty are entered.

  1. The convictions entered in the Magistrates Court at Townsville on 1 December 2011 are otherwise confirmed.
  1. The respondent is to pay the appellant's costs of the appeal."
  1. MUIR JA:  I agree with the reasons and proposed orders of McMurdo P.
  1. NORTH J:  I have read the reasons for judgment of McMurdo P and agree with her Honour and agree with the orders proposed by her Honour in both appeals.

Footnotes

[1] Dart v Singer; Hajridin v Singer [2013] QCA 255, [1]-[3].

[2] Above, [16]-[19].

[3] Above, [9]-[11].

[4] Singer v Dart & Ors [2011] QMC 37, [89].

[5] Above, [89]-[91].

[6] Dart v Singer; Hajridin v Singer, unreported, District Court, Qld, DC Nos 645 and 646 of 2011, 21 December 2012, [29].

[7] Magistrates Court hearing (25.01.2011) T2-81.

[8] T 2-66 lines 10-28.

[9] Dart v Singer; Hajridin v Singer, unreported, District Court, Qld, DC Nos 645 and 646 of 2011, 21 December 2012, [17].

[10] The State Penalties Enforcement Register.

[11] Dart v Singer; Hajridin v Singer, unreported, District Court, Qld, DC Nos 645 and 646 of 2011, 21 December 2012, [212]-[213].

Close

Editorial Notes

  • Published Case Name:

    Dart v Singer; Hajridin v Singer

  • Shortened Case Name:

    Dart v Singer

  • MNC:

    [2014] QCA 263

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Muir JA, North J

  • Date:

    17 Oct 2014

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QDC
Appeal Determined (QCA) [2014] QCA 263 17 Oct 2014 -

Appeal Status

{solid} Appeal Determined (QCA)