Jolley v Queensland Police[2018] QDC 12

DISTRICT COURT OF QUEENSLAND

1. [1]
   Darren Lee Jolley engaged in sexual acts with a dog and recorded the occasion with photographs and video. On 18 July 2017 the Emerald Magistrate found him guilty of breaching his duty of care to the animal by inappropriate handling, contrary to s 17 of the Animal Care and Protection Act 2001.  This appeal against that conviction challenged the scope of the offence and the evidence required to prove it. 

2. [2]
   The ground of appeal was that “the learned magistrate erred in law in holding that acts of the defendant found to be proven were capable of constituting the offence of breach of a duty of care to an animal, and in convicting the defendant.”  It was submitted that the s 17 prohibition on inappropriate handling must be read down to apply only to handling which causes harm to an animal.  I disagree.  The appeal must be dismissed.  These are my reasons.

The offence provision

3. [3]
   It is convenient to start with section 17. It provides:

17 Breach of duty of care prohibited

1. A person in charge of an animal owes a duty of care to it.

2. The person must not breach the duty of care.

Penalty: Maximum penalty—300 penalty units or 1 year’s imprisonment.

Example:

1. This provision is an executive liability provision—see section 209.

2. See also section 9 (Act does not affect other rights or remedies).

3. For subsection (2), a person breaches the duty only if the person does not take reasonable steps to—

1. (a)
   provide the animal’s needs for the following in a way that is appropriate—

1. (i)
   food and water;

2. (ii)
   accommodation or living conditions for the animal;

3. (iii)
   to display normal patterns of behaviour;

4. (iv)
   the treatment of disease or injury; or

2. (b)
   ensure any handling of the animal by the person, or caused by the person, is  appropriate.

4. In deciding what is appropriate, regard must be had to—

1. (a)
   the species, environment and circumstances of the animal; and

2. (b)
   the steps a reasonable person in the circumstances of the person would reasonably be expected to have taken.

Example:

• a bushfire or another natural disaster
• a flood or another climatic condition

4. [4]
   The provision provides 2 categories of breach: the failure to take reasonable steps to provide for the animal’s needs and the failure to take reasonable steps to ensure appropriate handling. The prosecution relied upon the second category. On the face of s 17 that offence would be committed if:

1. The appellant was in charge of the animal; and

2. He did not take reasonable steps to ensure the handling of the animal (whether by him or caused by him) was “appropriate”.

5. [5]
   By virtue of s 17 (4) the determination of what was appropriate had to involve consideration of the species, environment and circumstances of the animal and the likely response of a reasonable person in the appellant’s shoes.

The purposes of the Act

6. [6]
   The interpretation that will best achieve the purpose of the Act is to be preferred.^[1]Accordingly the express statement of purpose in ss 3 and 4 of the Act are relevant:

“Division 1 Purposes

3 The purposes of this Act are to do the following—

1. (a)
   promote the responsible care and use of animals;

2. (b)
   provide standards for the care and use of animals that—

1. (i)
   achieve a reasonable balance between the welfare of animals and the interests of persons whose livelihood is dependent on animals; and

2. (ii)
   allow for the effect of advancements in scientific knowledge about animal biology and changes in community expectations about practices involving animals;

3. (c)
   protect animals from unjustifiable, unnecessary or unreasonable pain;

4. (d)
   ensure the use of animals for scientific purposes is accountable, open and responsible.

4 The purposes are to be primarily achieved by the following—

1. (a)
   providing for regulations about codes of practice for animal welfare;

2. (b)
   allowing regulations to require compliance with codes of practice;

3. (c)
   imposing a duty of care on persons in charge of animals;

4. (d)
   prohibiting certain conduct in relation to animals;

5. (e)
   requiring a person using an animal for scientific purposes to comply with the scientific use code;

6. (f)
   providing for the registration of certain users of animals for scientific purposes;

7. (g)
   providing for the appointment of authorised officers to monitor compliance with compulsory code requirements and the scientific use code;

8. (h)
   providing for the appointment of inspectors to investigate and enforce this Act;

9. (i)
   allowing the Minister to establish an animal welfare advisory committee or another body to advise the Minister on animal welfare issues.”

The Magistrate’s decision

7. [7]
   There was no dispute about the appellant being both the person in the recorded images and in charge of the dog. The issue was whether the acts revealed in the recordings were sufficient to establish the breach of the appellant’s duty of care. The learned Magistrate found they were by reference to general community standards.

8. [8]
   No evidence was led by either side about any harm, potential harm or absence of harm to the dog. On appeal the appellant complained that a finding of guilt in those circumstances reversed the onus of proof.

9. [9]
   His Honour seemed unimpressed by the defence argument about the absence of harm:

“In that particular regard, Mr Lumsden was not able to advance in oral argument that an exposure to potential harm by disease could not occur, in circumstances where the defendant has handled the dog in a way that encouraged and permitted the dog to lick up his ejaculate after he’d masturbated onto his stomach while the dog was kept in close proximity and to have the dog nuzzle and lick at his anal area, anus & the bodily fluid, perspiration and human faecal waste that … one might readily infer the dog would be exposed to. It seemed to be submitted it was not harmful to expose a domesticated pup to human sexual interaction and the changes in behaviour that that may cause to the animal.”^[2] 

10. [10]
    Even so, His Honour did not make an express finding about the potential for harm in this case. Rather he read s 17 as a self-contained provision, without the need to qualify its terms. He concluded the prosecution did not need to prove actual or potential harm to the animal. It was enough to show the handling of the animal was inappropriate according to the standards of a reasonable person in the circumstances. His Honour said:

“The ultimate defence submission was the duty of care provision in section 17 is exclusively and directed only at the prevention of neglect or suffering of animals…I do not accept that submission.  In my view, with respect, that interpretation is misguided, over simplistic and requires a very narrow interpretation of the act.  It is inconsistent with achieving the purposes of the act in section 3. In my view the provisions bespeak a wide interpretation and construction.”

11. [11]
    He went on to find there was a case to answer and that the inappropriateness of the handling was proved beyond reasonable doubt. He reasoned in this way:

“It seems to me the defendant chose to handle, manage, treat the animal in a particular way. He aroused it by masturbating the pup. He kept it close while masturbating himself to ejaculation and permitted the dog to lick his ejaculate up.  In the still frame photograph he positioned himself on his side, permitted his left hand to part his buttocks and clearly allowed the dog to nuzzle at his anus or anal area. He positioned himself then up on his knees on the bed, exposing his dilated anus to the pup and allowed the dog to nuzzle and lick at his anus and perianal area. This was protracted handling, treatment, control, management, of the animal. To my mind, it could not possibly be said to be appropriate, suitable or proper and not what could be said to be:Reflected (sic) of contemporary community attitudes and expectations as to how animals should be treated.” ^[3]

The appellant’s submission on appeal

12. [12]
    The appellant’s essential submission was that regardless of the broad expression in s 17, the Act did not protect an animal from behaviour that did not harm it. The contention was that the standard of “appropriate” handling in s 17 was too vague. Its meaning had to be determined through the application of ss 14 A and 14 B of the Acts Interpretation Act  1954 ( Q).  The Animal Care and Protection Act 2001 was only concerned with protecting the welfare of animals. The interpretation that best achieved that purpose must apply. The Explanatory Notes and other extrinsic materials reveal the duty of care in s 17 was based upon the internationally recognised “Five Freedoms “of Animal welfare.  The freedoms only refer to things which cause an animal harm, pain, discomfort, fear or distress.  Therefore Parliament must have intended to limit the duty of care to only protect animals from suffering.  

13. [13]
    The appellant further submitted there was no evidence of any consequences for the dog. There was no evidence the dog was subjected to pain, suffering or discomfort. Its welfare was not compromised in any way. There was no evidentiary basis for concern about the welfare of the dog. Sexual activity alone could not then constitute a breach of the duty of care. It may or may not be morally unacceptable but the Animal Care and Protection Act 2001 was not concerned with human morality or shielding animals from immoral human behaviour that did not harm them.  Offences against morality are contained in Chapter 22 of the Criminal Code (Q). Bestiality is an offence against s 211 of the Code but it requires penetration. Parliament chose not to create an offence for the indecent treatment of an animal falling short of penetration.

The Respondent’s submission on appeal

14. [14]
    In defending the conviction the respondent relied upon the terms of s 17. The court’s role was to construe the Act, not rewrite it. The words in s 17 should be given their ordinary meaning. They are consistent with the express purpose of the Act “to promote the responsible care and use of animals” and “to reflect contemporary community attitudes and expectations as to how animals should be treated”.   There was no need to go beyond the plain meaning of the provision. Applying the test of a reasonable person, the appellant did not take reasonable steps to ensure the way he handled the dog was appropriate.

Interpreting the Act

15. [15]
    The starting point must be the text, its place in the Act and the legislative purpose.

16. [16]
    S 17 sets out the duty of care owed by a person in charge of an animal. It is a duty to take reasonable steps to appropriately provide for the animal’s needs and to ensure appropriate handling of the animal. A failure to take reasonable steps is made an offence. The provision does not mention a requirement for any harm to be caused. It seems clear that the omission was deliberate. Parliament did not intend to limit the offence to cases of injury or suffering. Firstly, the offence is styled as “breach of duty of care”. It is not called negligence. Secondly, the Act has 2 limbs: the responsible care of animals and their protection from pain. The interpretation pressed by the appellant would tend to dilute the duty of care, the central mechanism established by Parliament to ensure the responsible care of animals.

17. [17]
    While the concepts of care and protection may overlap, they are not necessarily the same thing. The Act addresses them separately. The short title to the Act is the Animal Care and Protection Act.^[4]  The long title is: “An Act to promote the responsible care and use of animals and to protect animals from cruelty, and for other purposes”.  S 3 lists the care of animals and their protection from pain as 2 separate purposes of the Act.  Animal care is the first purpose listed. S 3 (a) states the Act is to promote the responsible care and use of animals. S 4 (c) identifies the s 17 duty of care as one of the legislation’s primary means of achieving its purposes^[5].  For a standard of care to be effective, it has to be enforceable. The Act seeks to enforce by it making a breach of the duty an offence.

18. [18]
    The range of conduct addressed elsewhere in the Act confirms that the Act is intended to apply to all animals,^[6]whether human companions, working animals, research subjects or wild animals.^[7]Chapter 3 of Part 3, Division 1 sets out “General Animal Offences”.  There are only 3 of them:  the breach of the duty of care in s 17, and 2 cruelty offences.^[8]

19. [19]
    According to s 18, animal cruelty is being “cruel” to an animal. Its natural meaning conveys the infliction of pain or suffering.  It directly addresses the purpose in s 3 (c) of protecting animals from unjustifiable, unnecessary or unreasonable pain. On the other hand the breach of the duty of care offence is identified as a less serious offence. The maximum penalty for animal cruelty is 2 000 penalty units or 3 years imprisonment,^[9]whereas for the breach of duty offence it is only 300 penalty units or 1 year’s imprisonment.^[10]The s 17 breach offence is squarely directed at promoting the responsible care and use of animals.  Its terms do not require the harming of the animal even by implication. In the scheme of the Act, where there is another general offence for the infliction of harm, it seems reasonable that s 17, the less serious offence, would cast the general duty of care wider than a duty not to inflict harm.

20. [20]
    Whereas the prohibition on cruelty applies to everyone, the duty of care in s 17 is owed only by those persons in charge of animals. A “person in charge of an animal” is defined in s 12. It includes those who have custody of the animal.  The duty is breached by the failure to take reasonable steps to act “appropriately” in either the provision of the 4 itemised needs, or the handling of the animal. “Handling” is not defined in the Act.  According to the Macquarie Dictionary Online, it means “a touching, grasping or using with the hands; management; treatment; the process of packing , moving, carrying or transporting something.” Unlike the needs in s 17 (3) (a), handling is not qualified by specific categories. No examples of handling are given. The meaning however is clarified by the full context of s 17 together with the purposes in s 3.

21. [21]
    S 17 (4) refines the meaning of “appropriate” by requiring consideration of what a reasonable person in the same situation would reasonably be expected to do in the same circumstances.  The reasonable person is a well understood legal test. It is an important component in other statutory and common law forms of negligence.  It is a standard commonly featuring in defences.  It allows the law to fairly accommodate individual circumstances.   There are a wide range of ways in which people reasonably care for their animals. Some allow their dogs indoors, some keep them outside, some make them work. Some train their animals well, others indulge them.  Some take their dogs on holidays, others put them into boarding kennels.  The yardstick of reasonableness does not dictate any specific style of handling.  It recognises there must be a variety of ways in which the care of animals may be carried out appropriately.  S 17 (4) reinforces the point that the appropriateness of the care may depend on the circumstances. Under s 17 (4) (a) the species, environment and circumstances must be taken into account.   Thus appropriate handling of an animal in an emergency situation like a flood is likely to set a lower standard of care than otherwise required in the everyday domestic setting.  According to s 17 (4) (b) appropriateness is to be considered against the steps a reasonable person in those same circumstances would reasonably be expected to take.  That measure of reasonable expectations invokes a minimum reasonable standard based on the prevailing community attitude towards animal welfare.  S 3 (b) makes clear the standard of care is to balance animal welfare and economic interests, and to respond to new knowledge and changes in community expectations. The objective is the “responsible” care and use of animals.^[11]

22. [22]
    Further, the s 17 duty is a proactive one. It concerns the reasonable steps that ought to be taken. The breaching offence is the failure to take those steps. It is not dependent upon the occurrence of any particular consequences. The court must identify what steps ought to have been taken for the animal’s welfare in the circumstances. The breach may be in the form of neglect or mistreatment, but actual harm is not element. 

23. [23]
    It follows I do not accept the contention that an element of harm or danger must be read into the section. There is no justification for it.^[12]The language of the provision is plain enough. The effect is not ambiguous or capricious. It is not a case of legislative inadvertence.  There is a coherent legislative scheme. The objective intent and the practical effect of s 17 are one and the same, namely the advancement of the responsible care and use of animals by imposing a duty on those in charge of them to take reasonable action for their appropriate care, and penalising any breach of that standard.  S 14 A of the Acts Interpretation Act 1954 does not authorise the reading down proposed by the appellant. To limit the offence to incidents of harm would undermine a principal purpose of the Act. The mere fact this is a penal provision does not mean additional elements must be introduced to protect the appellant.  The rule that penal legislation must be strictly construed is now a rule of last resort.^[13]It is only where the meaning cannot otherwise be ascertained that the issue must be determined in the defendant’s favour. That is not the case here.

24. [24]
    The appellant’s observation that the Criminal Code expressly criminalises only carnal knowledge with an animal does not advance the matter. The fact that one criminal statute does not prohibit sexual activity with an animal does not mean that the same activity falls outside the ambit of different legislation enacted at a different time. The Animal Care and Protection Act established new offences in relation to animals.  They are summary offences.^[14]It is clear those offences stand in addition to offences in the Code even though there is some overlap.  For example: serious animal cruelty is an indictable offence under s 242 of the Code, while animal cruelty under s 18 of the Act is a summary offence. The general offence of breach of duty of care by inappropriate handling is wide enough to include sexual acts.

25. [25]
    There is no need to look to the extrinsic material for help. In any event, it seems to me that the extrinsic material does not contradict a wide reaching and responsive duty of care. By way of example, the Explanatory Notes to the Animal Care and Protection Bill 2001 state on page 2: “The Bill will provide standards that benchmark what is acceptable in the care and use of animals in particular circumstances…The current Act has not been significantly amended since its enactment in 1925 and does not reflect current attitudes, community expectations or knowledge about animal welfare issues…”. The Queensland Parliamentary Library published a paper when the Bill was before parliament, “Duty and the Beast: Animal Care and Protection Bill 2001”. Paragraph 1.1 is headed “Duty of Care” and includes the following: “This duty of care is to provide positively for the welfare of animals based or “Five Freedoms” which are internationally acknowledged…This is considered the key proactive aspect of the Bill.   Providing positively for the welfare needs of animals is at the opposite end of the welfare continuum to the mere absence of being cruel, the focus of the current Act.” (emphasis added)

The present case

26. [26]
    Here identification was admitted. The recorded images spoke for themselves. The dog was with the appellant in the bedroom. The defence did not dispute the appellant was a person in charge of the dog. He was naked, he continued to masturbate himself as the dog licked the ejaculate from his body. He held the dog’s penis. There was no other indication of force. The appellant seemed to press to widen his anal opening while the dog’s snout was very close to it. He stayed on his haunches as the dog licked that same area. The camera’s clock time stamped 6 minutes of photographed interaction.

27. [27]
    Mr Hamlyn Harris submitted that evidence could not prove an offence against s 17 because it did not show the dog was harmed in any way, but harm is not an element of s 17. The question is whether the evidence proved the appellant did not take reasonable steps to ensure his handling of the dog was appropriate. Before answering the question, the Magistrate had to consider the steps a reasonable person in the appellant’s position would take.

28. [28]
    The balancing concept of reasonableness in s 17 would make relevant the nature and purpose of the handling. The appellant engaged the dog in a sexual purpose. There was no evidence as to how the incident began. Whether contrived or opportunistic, the appellant did not stop the dog. He engaged with it and procured a recording of the incident. The Act is premised upon a contemporary community standard for practices involving animals.^[15]This dog was handled in a way that would be repugnant to the vast majority of our community. The appellant’s actions and omissions violated a strong and long standing taboo.

29. [29]
    He was properly convicted of the offence, not because his conduct was immoral but because he failed to “take reasonable steps to … ensure” his handling of the dog was “appropriate” within the meaning of s 17 (3) (b) of the Act. While Mr Hamlyn Harris emphasised the absence of force, it is the person in charge who carries the duty of care.  Even if the dog was an enthusiastic participant, the appellant’s conduct fell so obviously below appropriate handling that it is beyond doubt that it breached the duty of care laid down by s 17.  A reasonable person would have quickly moved, covered up or chased the dog away.  With minimum effort the appellant could have ended the episode straight away.  But instead he presented himself to the dog for more. In so doing, he breached his duty of care contrary to s 17.

Conclusion

30. [30]
    Accordingly, the appeal against conviction is dismissed.