Flaherty v Petersen[2018] QDC 21

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 13 March 2017 the respondent Mr Petersen went to trial before his Honour Magistrate Gutteridge in the Hervey Bay Magistrates Court charged with three breaches of the Animal Care and Protection Act 2001 (the Act).

2. [2]
   At the trial the respondent represented himself and the appellant was represented by Ms Terrell of Carswell and Co. Solicitors, who acted as prosecutor. His Honour heard evidence on behalf of the appellant and the respondent gave evidence in his own defence. Upon conclusion of the evidence, and after hearing submissions on the same day his Honour dismissed the three complaints against the respondent and gave ex tempore reasons for so doing.

3. [3]
   The RSPCA in the name of the appellant appeals against those orders of dismissal.

4. [4]
   It is common ground that, pursuant to s 223 of the Justices Act 1886, an appeal under s 222 is by way of re-hearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave.  Neither party has sought to adduce new evidence.  The appeal is a re-hearing in the sense that it is a review of the record of the proceedings below rather than a completely fresh hearing.  The Court is required to make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.^[1]

5. [5]
   All charges alleged a breach of s 17(2) of the Act which (relevantly) is in the following terms:

“17. Breach of Duty of Care Prohibited

1. (1)
   A person in charge of an animal owes a duty of care to it.
2. (2)
   The person must not breach the duty of care.

Maximum penalty—300 penalty units or one year’s imprisonment.

…

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

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

…….

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

…….

4. (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 a person would reasonably be expected to have taken.”

6. [6]
   Initially Mr Petersen was charged with one offence only by complaint sworn by the appellant on an unspecified day in July 2016 (relevantly) in the following terms:

“…that between the second day of February 2016 and the fourth day of February 2016 at Hervey Bay in the Magistrates Court District of Hervey Bay in the State of Queensland one Derek Christian Petersen being a person in charge of an animal, namely one male Cavalier King Charles Spaniel known as “Chester” did breach his duty of care to the animal, contrary to s 17 of the Animal Care and Protection Act 2001, by failing to take reasonable steps to provide for the animal’s needs for treatment of disease or injury in a way that is appropriate.

Particulars:

The defendant failed to ensure appropriate treatment was provided for respiratory difficulty and blood discharge from the dog’s anus.”

7. [7]
   Mr Petersen appeared initially in the Hervey Bay Magistrates Court on 14 September 2016 and was then represented by a solicitor. At a mention on 9 November 2016 the matter was set down for hearing on 16 January 2017.

8. [8]
   By that date, Mr Petersen was representing himself and the matter could not proceed to trial because the court had no time due to other trials proceeding. The matter was then adjourned to 13 March 2017 for hearing.

9. [9]
   On 20 January 2017, the appellant filed two further complaints and summons which charged Mr Petersen with two further charges which are (relevantly) in the following terms:

“Charge 2

Between the second day of February 2016 and the fourth day of February 2016 at Hervey Bay…Derek Christian Petersen being a person in charge of an animal namely one male Cavalier King Charles Spaniel known as “Chester” did breach his duty of care to the animal, contrary to s 17 of the Animal Care and Protection Act 2001, by failing to take reasonable steps to provide for the animal’s needs for treatment of disease or injury in a way that is appropriate.

Particulars:

The defendant failed to provide appropriate treatment for infected sore eyes by failing to obtain veterinary treatment or apply a medication prescribed by a veterinarian. 

Charge 3

Between 29 January 2016 and fourth day of February 2016 at Hervey Bay…Derek Christian Petersen being a person in charge of an animal, namely one male Cavalier King Charles Spaniel known as “Chester” did breach his duty of care to the animal, contrary to s 17 of the Animal Care and Protection Act 2001, by failing to take reasonable steps to provide for the animal’s needs for treatment of disease or injury in a way that is appropriate.

Particulars:

The defendant failed to provide appropriate treatment for ear infection in the left ear, by failing to obtain veterinary treatment or apply a medication prescribed by a veterinarian.”

10. [10]
    As I observed at the appeal hearing in the Hervey Bay District Court on 9 February 2018, in my discussions with Mr Keim SC who appeared for the appellant, there was no reason apparent for why, so late in the day, at a time when Mr Petersen was representing himself and clearly contesting the first charge, two further charges should be laid in the same terms as Charge 1 but with different particulars; based on facts and circumstances known to the appellant at the time the first complaint was made. As it is not an issue in the appeal, Mr Petersen having been acquitted, there is no need to comment further.

Introduction

11. [11]
    The trial proceeded on 13 March 2017. The appellant gave evidence, particularly of an interview she conducted with Mr Petersen on 13 March 2017 which was video-recorded by her and became Exhibit 7 in the proceedings. As will be demonstrated, and as is clear from Mr Keim’s outline of submissions filed on 2 May 2017, many of the arguments advanced by the appellant depend upon alleged conflict between Mr Petersen’s evidence before his Honour and his answers given to the appellant in the interview. Her evidence-in-chief at the hearing was very brief comprising less than a page.^[2]She was cross-examined by Mr Petersen which cross-examination was also in short compass.^[3]

12. [12]
    As part of the re-hearing I have listened carefully to Exhibit 7 on a number of occasions, and have had access to the transcript which was not marked as an exhibit for identification but is on the lower court file. When the prosecutor introduced Exhibit 7 there was no objection made by Mr Petersen, which is not surprising given that he is lay person without legal training. More importantly Ms Terrell did not bring to his Honour’s attention ss 165 and 166 of the Act.

13. [13]
    Relevantly these sections are in these terms:

“165. Power to require information

1. (1)
   This section applies if—

1. (a)
   an inspector reasonably suspects—

1. (i)
   this Act has been contravened; and
2. (ii)
   a person may be able to give information about the contravention; or

..…

2. (2)
   The inspector may require (an information requirement) the person to give information in the person’s knowledge about the contravention…..
3. (3)
   When making the requirement, the inspector must give the person an offence warning.

166. Failure to comply with information requirement

1. (1)
   A person of whom an information requirement has been made must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—fifty penalty units.

2. (2)
   It is a reasonable excuse—

1. (a)
   for an individual not to give information if giving the information might tend to incriminate the person;

..…”

14. [14]
    It is clear to me from the appellants’ questions in Exhibit 7, and indeed the argumentative tone of her interrogation particularly as it proceeded, that she clearly reasonably suspected that Mr Petersen had contravened the Act. She was seeking information about the contravention, and she did not give him an offence warning. I construe that as referring to a warning to the effect that a failure to comply with the information requirement may lead a person to commit an offence against s 166(1) of the Act.

15. [15]
    On appeal, and indeed at the trial, the appellant maintains that some of Mr Petersens’ answers during the interview incriminate him. in the sense that they are internally inconsistent, or inconsistent with his evidence before his Honour, and his Honour is said to have erred in accepting Mr Petersen’s evidence uncritically and without referring to these alleged inconsistencies.

16. [16]
    I gave notice to the parties prior to the appeal hearing that I would require submissions on this issue. Mr Keim SC submits, by reference to s 175 of the Act, that the appellant (who it is conceded was an Inspector appointed under the Act), was presumed to be exercising her power under s 165, in circumstances in which Mr Petersen had not challenged it. He referred to a decision of his Honour Judge Harrison.^[4]

17. [17]
    In my opinion that case does not assist the appellant. On that occasion, it is not clear what power was being exercised under the Act, but the solicitor for the respondent at first instance argued that the inspector had not complied with s 120(1) of the Act:

“120. Production or display of identity card

1. (1)
   An inspector may exercise a power under this Act in relation to a person only if the inspector—

1. (a)
   first produces the inspector’s identity card for the person’s inspection; or
2. (b)
   has the card displayed so that it is clearly visible to a person

…”

18. [18]
    In the circumstances here there was a recorded interview but the appellant could be heard to say “I’ll show you my identification...”, so no issue of non-compliance with s 120(1) of the Act arose.

19. [19]
    Section 175 of the Act (relevantly) is in these terms:

“175. Appointments and Authority

The following must be presumed unless a party to the proceeding, by reasonable notice, requires proof of it—

1. (a)
   the appointment of an authorised officer or inspector;
2. (b)
   the power of the chief executive an authorised officer or an inspector to do anything under this Act.”

20. [20]
    The magistrate below had accepted that the inspector had not complied with s 120(1), and therefore the evidence obtained during the interview was inadmissible and accepted a no case submission made by the respondent’s solicitor below. Not surprisingly Judge Harrison regarded s 175(b) as a complete answer and ordered a re-trial.

21. [21]
    The issue here is completely different. There was no doubt that the appellant had the power to require information under s 165. There is no doubt that she did not comply with those parts of s 165 and s 166 that are designed to protect the rights of a citizen, in this case, the right to remain silent in circumstances in which answers might incriminate that person.

22. [22]
    As my later reasons will show, I am not satisfied his Honour did not give sufficient reasons for accepting Mr Petersen’s evidence relating to the treatment of Chester leading up to his surrender to the pound on 4 February 2016; however, on a re-hearing I would have held that the interview should not have been admitted into evidence.

The proceedings below

23. [23]
    The first witness for the prosecution was Denielle Howe, a Council officer who gave evidence that Mr Petersen presented at the Fraser Coast Council Pound on 4 February 2016 with his little dog Chester lying in a basket. There is no evidence, at least in the prosecution case, as to exactly what time he came in but it was in the morning and I accept the respondent’s evidence that it was soon after 10 o’clock. He filled out an Animal Surrender Form which described the dog as “unwell”. Mr Petersen told his Honour that Ms Howe told him to write that, which she fairly said it was possible she could have said that but could not remember. It is common ground that Chester was then in a bad state. He was unresponsive, lying on his side, in apparent respiratory distress and there was a blood discharge from his anus. Although Ms Howe described the role of the Pound as being a place for people to surrender animals they did not want, there is no doubt that she well understood that Mr Petersen was surrendering his dog to be euthanased.

24. [24]
    She says she asked him why he did not take the dog to the vet to be put down and that he replied that he could not get an appointment. He denies this, and for reasons I will expose later, there is uncontested evidence that he did have an appointment with a vet for the previous day, which for reasons he gave in evidence, tends to support his recollection of his conversation with Ms Howe, of which she did not take notes. At one point in her evidence she described Exhibit 1 as “the euthanasia form”.

25. [25]
    It is common ground that she made Mr Petersen aware that the Pound’s vet did not come in on a Thursday to euthanase animals until the afternoon. They agreed that she would hold the little dog in the air-conditioned office until the vet came as it was a very hot day.

26. [26]
    As soon as Mr Petersen, left Ms Howe videoed Chester and that video (Exhibit 2) was played to the Court. I have viewed the video. It shows the little dog lying on his side in a basket with bedding. He was panting excessively, appeared in poor condition, and was unresponsive at least during the video, and bleeding from the anus. Exhibit 3 are some photos of Chester taken at the same time. She agreed in cross-examination that the Council charged a $20 fee to surrender an animal at that time but did not as at the date of the hearing.

27. [27]
    The next witness was Dr Ron McKay, a vet with 40 years’ experience with a practice in Hervey Bay. Pound officers brought Chester to him on 4 February 2016. Again he is unable to give evidence as to when that occurred as there are no notes to that effect, and Ms Howe was unable to give a time. He examined the dog and described him as “quite weak, had pus-filled eyes, very dry-looking eyes, infected ears. His skin was infected, and he was in a pretty sad way”. He described the condition of the eyes, ears and skin as chronic, in place for “weeks or months”. He decided that it would be “more humane to put him to sleep rather than to institute treatment”. He said it was “difficult to assess” whether or not the dog was suffering “but..certainly in that range where his quality of life…was deteriorated quite severely”. He described his breathing as heavy and that he was “struggling to breathe a little bit”. He gave Council a form which he filled out on the day (Exhibit 4) which described the dog as being in “very poor condition”, and “in respiratory distress, unable to walk or get up, blood discharging from anus. Lying in urine-soaked bedding. Has been denied veterinary care for too long”.

28. [28]
    His practice had treated Chester for 10 years from 2003. The last visit was on 3 January 2013. He described the little dog as having chronic ear, eye and skin problems for the whole of the time for which he was treated at his surgery. He described various treatments prescribed over the years, including antibiotic ear and eye drops and Prednisone tablets. He was diagnosed on 3 January 2013 (the last time he was seen in that practice) as having Keratoconjuctivitis Sicea or KCS for which an eye ointment was recommended, but he opined that the eyes could be treated with over the counter human replacement tear formulations. He was asked by the prosecutor about treating the dog’s ears with hydrogen peroxide; which he described as “an old home remedy”, but not a medical treatment and not recommended.

29. [29]
    In cross-examination, he agreed that the use of over the counter human eye drops was suitable as a treatment for KCS. Mr Petersen then showed Dr McKay two notes which became Exhibit 6. I infer that these were documents disclosed by the prosecution, but, surprisingly not tendered through Dr McKay when he was giving his evidence-in-chief. I say surprisingly, because the notes were written by the witness, on their face, and have the effect of undermining the opinion expressed in Exhibit 4 referred to above. I infer that the first note in time was to the appellant. It is in these terms:

“Hi there,

I treated “Cavalier” brought in by the Fraser Coast Regional Council compliance officers on 4 February 2016.  According to the Council officer, the dog had been surrendered to the Council by the owner and not left to suffer – the reason was not given.

The dog was in poor body condition, with inflamed skin, infected dry eyes and in respiratory distress.  Humane euthanasia was elected for the 10 year old dog.  The duration of this condition is unknown, and we cannot even begin to guess as these conditions may be acute or chronic.”

The note is said to be under the hand of Dr McKay.

30. [30]
    The last paragraph is relevant, as it suggests that the witness was really unable to give any opinion as to “the duration of the condition”, “and we cannot even begin to guess as these conditions may be acute or chronic”.

The second note also written apparently by Dr McKay is in these terms :

“Hi Penny,

We can only go by the details provided to us by the attending compliance officer.  The name “Cavalier” is merely an identifying marker – we were not provided with a name, and I would assume that the age was an approximation.

We were to understand (and stated) that the dog was surrendered to Council – how and where this transaction took place was not pertinent to the care of the patient, therefore we do not have this information.  The statement “not left to suffer” being in reference to the infected eyes, inflamed skin and respiratory distress, this would be indicative of some form of distress and/or suffering.

Unfortunately, we cannot elaborate on any further pain and suffering that the dog was experiencing as we can only identify the symptoms which we are presented with at the time of examination.  For all we know, the owner may have had this dog under veterinary care – Cavalier King Charles Spaniels are notorious for a genetic condition called KCS, which causes chronic ‘dry eye’ and requires consistent lubrication.  As for the bloody stools, we were not provided with any photos and did not note this symptom at the time of the examination.

We are always happy to help out in any way we can, however we can only work with the facts that are provided to us by our physical examination of the patient.  Every day we are met with people claiming that their dog was “beaten/neglected as a pup” and that is why he does…(whatever behaviour they are trying to account for), and sometimes, this simply isn’t the case.

I am truly sorry if this is of little help to you, and please let me know if you have any further questions.”

This note (I infer), seems to be in response to a letter (or email), that the appellant had written to the witness in response to the first note.  Either her email was not disclosed, or if it was, Mr Petersen as a lay person, did not appreciate its potential forensic use. 

31. [31]
    Dr McKay agreed in cross-examination that the “dry eye” he observed on 4 February 2016 could have been because the dog was “not treated for an hour or two”. He agreed that both the condition of the eyes and ears as he observed on 4 February 2016, could have been made worse by a companion dog licking Chester’s eyes and ears. Mr Petersen then showed Dr McKay some photographs of Chester which later became Exhibit 8 when he gave evidence. Clearly Ms Terrell had copies of these photographs in advance of the hearing, nonetheless she objected to their admission at this stage and they were marked for identification.

32. [32]
    It cannot be logically disputed that these were photographs that Mr Petersen took of Chester (and Phoebe his companion dog, and indeed one photograph of a very handsome black and white cat with the two dogs) around 4.36 pm on 3 February 2016; and at 8.56 am on 4 February 2016. Mr Petersen’s evidence was that he took these photos as his last memories of Chester who, by then, he knew would be put down on 4 February 2016 and for whom he had cared for 13 and a half years, the true age of the dog.

33. [33]
    As will be detailed later, Mr Petersen’s evidence has always been that Chester’s condition deteriorated rapidly during the night of 3 February 2016, and into the morning of 4 February 2016, due in part to the heat and his advanced age. The photos and Dr McKay’s fair opinion evidence in cross-examination strongly corroborate that evidence. He agreed that the photos showed a 13 year and four month old dog in “fair condition for his age”. From the photos he could not see any discharge from the anus, or redness of his skin or testicles. He agreed that he did not look under-weight and “from the photos…in reasonable condition”. He could not discern any respiratory distress from the photos. He also agreed that most Cavalier King Spaniels like Chester have ongoing problems with ears and eyes, and that shaving the dog’s ears and keeping them clean, even with a cleaning agent like hydrogen peroxide would prevent the conditions getting worse.

34. [34]
    The appellant then gave evidence. She told his Honour that she was contacted by the Pound staff on 9 February 2016, and by the time she attended at Mr Petersen’s house on 12 February 2016 she had viewed Exhibits 2 and 3. It is not clear if she had spoken to Dr McKay or seen Exhibit 4 at the time she interviewed Mr Petersen. The notes in Exhibit 6 are undated so it cannot be said if she had these at that time. The cross-examination of the appellant by the defendant was constantly interrupted by objections by the prosecutor. For example Mr Petersen obtained evidence from the witness that the two additional charges in the form of summonses were served after the court appearance on 16 January 2017, by the appellant herself in company with fully-armed police officers with Tasers, pistols and bullet-proof vests. That question was objected to and the objection was upheld.

35. [35]
    For the first time in her evidence, in response to a question from Mr Petersen,^[5]she agreed that she had not seen Chester at all prior to 4 February 2017 but suggested that by inference, in the interview she saw a video on his phone which she alleged “I believe you said was the day before that”.  Again there was an objection and ultimately the issue was not proceeded with.  This evidence becomes quite important given the appellant’s position now.  She agreed that if Mr Petersen did not take Chester to the vet or pound and just left him to die at home he would be a failing in his duty of care but she maintained that he had in effect delayed too long in taking that step and by not taking him to a vet.

36. [36]
    The final witness for the prosecution was Dr Philippa Cox, an RSPCA vet. Ms Terrell informed his Honour that leave had been granted by another magistrate earlier for her to give evidence by telephone. It is not clear if Mr Petersen was ever asked if he objected to this course, as it was an important aspect of his case that Chester appeared well for a dog of his age in the photos in Exhibit 8, but he was unable to show those to her. She never saw Chester. She had seen Exhibits 2 and 3. Her opinion generally accorded with the original opinions of Dr McKay. She opined that the ear infection may have been there for up to two weeks and it was “possible” that he may have been unresponsive for up to 48 hours, but it may have been shorter. Clearly the photos taken on 3 February 2016 show a very old dog but one that is responsive thus demonstrating the unfairness to the respondent in leading this evidence from an expert by telephone.

37. [37]
    By reference to some answers that Mr Petersen gave to the appellant in the interview her opinion was that Zolpidem had no therapeutic benefit for an animal, and could cause rapid breathing and increased heart rate. She did not think hydrogen peroxide was of any use as an ear cleaner with a dog.

38. [38]
    As she conceded in cross-examination, she could give no opinion as to the rate of deterioration as she had not seen Chester either before or when he was taken to the pound. Her opinions have to be assessed in the light of not having seen the dog at all in the flesh, and because Mr Petersen was unable to show her the photos in Exhibit 8 because she was on the telephone.

39. [39]
    Mr Petersen gave evidence in his own defence. He told his Honour that he made a call to Bayview Vets on 29 January 2016 “regarding enquiry of having Chester euthanased”. He made a “tentative appointment” with them for 3 February 2016. He explained that he did not have anyone to look after Chester and he was going away on work. He telephoned Sharon Coburn, his previous partner, “out of respect that I was going away to work, no-one to look after him, and I was going to get him euthanased”. They had not been in a relationship for eight years but she was the original owner of the dog although Mr Petersen was his primary carer for all of his life.

40. [40]
    Mr Petersen told his Honour that Ms Coburn told him that she did not want him to have Chester euthanased and that she would come up on “Wednesday morning” from her home in Ipswich to pick him up. It is not clear exactly when he telephoned Sharon Coburn. The appellant has always assumed that he did so on 29 January 2016, but this was never tested by reference to the telephone records which he had in his possession when he was giving evidence.

41. [41]
    He was able to give his Honour actual times of various calls but he was never asked about when he called her. He said “once I had phoned them (i.e. the vet) I contacted Sharon”; but it is not clear that that was on 29 January 2016. It was certainly between that date and 3 February 2016 which was a Wednesday. He told her about the appointment that was in the afternoon of 3 February 2016. He took a number of photos of Chester on the Wednesday morning after he had bathed him “because I knew it was going to be the last photos I had of him”.

42. [42]
    Ms Coburn did not turn up on 3 February 2016. By mid-morning he had telephoned her on four occasions but she did not answer. He then rang her father Nev Coburn and I infer it was this man who suggested he contact the pound. Repeatedly he told his Honour that he was giving evidence from phone records which he then had in his possession and which he was using to refresh his memory (I infer), but he was never challenged about this. He spoke with someone at the Council because there was no answer at the pound. He spoke with this person for “about five minutes”. He was told that “they do euthanasia” at the pound, and the fee was $20. He was told to “just take him out”. He was told that the pound was open Thursdays from 11 to 2. He decided to take Chester to the pound when it opened on the Thursday. He received a call from the Bayview Veterinary Service in the afternoon enquiring as to why he had not brought Chester in. He told his Honour that he explained to them that he had delayed while waiting for Sharon. After this call he tried again to call her without success.

43. [43]
    He took some photos of Chester at 8.56 am on 4 February 2016 which form part of Exhibit 8 and then planned to go out to the pound when it opened at 11.00 am. At around 9.45 am Chester’s condition had deteriorated further and he could see blood near his rectum. He immediately telephoned the Council at 10.05 am (according to his telephone records) and was told the pound was in fact open. He started his four-wheel drive so that it would cool down and then took the little dog in his basket and drove to the pound getting there at 10.15 am. He left Chester in his bed in the car with the air-conditioning on and then went in and spoke to Ms Howe. He recalled filling out Exhibit 1 and that Ms Howe told him to put “unwell” as the reason for surrender in the form in Exhibit 1. He paid $20 and collected Chester. He recalls being told that the vet would not be available until the afternoon. He said he was very distressed. He went home and was “very upset”.

44. [44]
    In cross-examination he was referred to Exhibit 5 the records from Dr McKay’s surgery. Unfortunately it appears that when these were tendered by Ms Terrell through that witness, a number of other irrelevant and inadmissible documents were handed up and are part of the Exhibit on the court record. Having read them, they appear to be typed notes for the prosecutor’s cross-examination and closing address. I have ignored these as his Honour clearly did.

45. [45]
    Mr Petersen accepted that he was in charge of Chester at all relevant times. He was cross-examined about his conversation with Sharon Coburn. It was never suggested that he was not telling the truth about that, nor did the solicitor call for the telephone records.

46. [46]
    He was then cross-examined about what Ms Terrell suggested was a video that he showed the appellant during the interview. He said he showed her photos, and did not play a video to the best of his recollection during his contact with the appellant as recorded in Exhibit 7. He said that he could not recall much of that recording as he was irate and upset, and said he did not have a video of Chester.

47. [47]
    It was suggested that on the video which was played to him during cross-examination you could hear a dog barking “because it was in distress”. As I have noted, the appellant gave no such evidence in evidence-in-chief and only referred to it when cross-examined. It was suggested to him that it was “a video when you got up in the middle of the night after you gave the dog a sleeping pill”. He disagreed. As it is a matter raised in criticism of his Honour’s credibility findings, it is important to emphasise that the appellant never suggested in her evidence-in-chief, or in cross-examination that she saw and heard a video to that effect when she was interviewing Mr Petersen on 12 February 2016. I have listened carefully to Exhibit 7 on a number of occasions. In the absence of any actual evidence of what the appellant says she saw on the telephone, it is simply impossible to understand from where the prosecutor got the information which formed the basis of her suggestion. It can only be inferred that she received instructions to this effect from the appellant who did not give any details in either her evidence-in-chief or in cross-examination. Mr Petersen denied strenuously that he had a video of Chester and in all circumstances his Honour’s acceptance of that is not only reasonable but unexceptional.

48. [48]
    He was cross-examined extensively about alleged inconsistencies between what he told the appellant in Exhibit 7 about how long Chester had been sick and again this is an issue is central to the appellant’s arguments on appeal and the grounds of appeal. It is clear that at one point in the interview he said two days and then one or one and a half days on another occasion, reasonably, I opine, because he clearly became irate and as he said in his evidence found the interview “very confronting”. He perceived the appellant, as an RSPCA Inspector was accusing him of failing in his duty of care to a dog he had loved for almost 13 and a half years, and he did become irate, so if there were differences or inconsistencies, it was probably because he was so upset and he was not telling deliberate lies. Exhibit 7 certainly shows him becoming increasingly upset and irate particularly as the appellant resorts to interrogation and impermissible cross-examination.

49. [49]
    He was then cross-examined about the sleeping pill issue. He certainly said Zolpidem in the interview but his evidence before his Honour was that he may have given Chester a herbal sleep remedy Zolfatis. He produced a part of a packet in cross-examination but it was never tendered. He told the prosecutor that he did check on Chester at around 1.00 am on 4 February 2016. He had got out of his bed so Mr Petersen put him back in bed. Clearly from that evidence it could be inferred that Chester was still then responsive.

50. [50]
    Once again a line of cross-examination was pursued based on what Mr Petersen was alleged to have said in Exhibit 7. When answering questions from the appellant he said he sat with Chester for “two friggin’ hours”. It was suggested by the prosecutor that he was unhappy about sitting with his dog. He made the obvious response, that he used that terminology in the interview because he was so irate. His unchallenged evidence is that he sat up with his little dog for two hours out of his concern and care for him. As he said when this futile line of questioning was persisted with “I would not sit with Chester for two hours if I was irate. I would go to bed”. He told Ms Terrell that Chester was restless and not himself. He thought that the sleeping tablet may help to settle him down. “I just thought it would be beneficial at the time. It’s one of those decisions you make.”

51. [51]
    Remarkably, given the complete lack of any expert evidence to this effect, it was put to him that in fact he gave Chester Zolpidem “in an effort…to put the dog down yourself”. That question was quite objectionable. It was never part of the prosecution case that he did this. The question was gratuitous and unfair and his answer “you can make as many accusations as you like, that is incorrect”; treated the proposition with the contempt it deserved.

52. [52]
    He told Ms Terrell that when he took the photos at 8.56 am on 4 February 2016, Chester’s bed was not urine-stained and there was no blood near his anus. As noted, neither the pound or Dr McKay are able to say definitively what actual time they had contact with the little dog, unlike Mr Petersen who was unable to give precise times to his Honour by reference to photographs and telephone records.

53. [53]
    He was cross-examined about what he said to the appellant in Exhibit 7 suggesting some inconsistency about when he knew that Chester was “going down” by reference to the opening hours of either the vet or the pound. He was clearly referring in his evidence to the afternoon of the 3 February 2016 at around the time he took the photographs in Exhibit 8. It is clear that it was Ms Terrell who was confused about this issue. It is clear from Exhibit 7 that in Mr Petersen’s mind, Sharon was coming to get Chester on the Wednesday, and that is why he had bathed him and had all his things ready, and when she did not show up, he telephoned her father who suggested he contact the pound. When he rang the Council he was enquiring about the pound hours for the next day, Thursday 4 February 2016 and not 3 February 2016. 

54. [54]
    He was asked about treating Chester’s ears with hydrogen peroxide and he provided Ms Terrell with screen shots of internet research he had done. He said that Chester’s ears had been fine for many years, but he did not agree that Chester had a bad ear infection as at 4 February 2016. He maintained that his system of shaving the dog’s ears and using hydrogen peroxide had been working. He said he did not notice any “skin condition” when he washed Chester on 3 February.

55. [55]
    Ms Terrell addressed his Honour first. The case that was put by her on behalf of the appellant at trial was that by late on the second or “some time on the third” Mr Petersen was well aware that Chester required treatment and that this was treatment by a vet. In relation to the sleeping pill she said “what it’s impact would have been on the dog, who knows”. As to the ear and skin conditions she summarised Dr McKay’s evidence as:

“…he couldn’t say how long it had occurred, but didn’t believe it was a spontaneous thing.  He did say that licking by the other dog could have inflamed it more…but it require vet treatment”.

She suggested that the evidence did not indicate that “he looks after his pets”, by reference to Exhibit 5, the vet records, but of course she never suggested that to Mr Petersen in cross-examination.

56. [56]
    At no stage did she suggest (i.e. in her final address) that his Honour should completely reject the evidence of Mr Petersen as is now submitted. In no way did she undertake the minute analysis by way of critical comparison between his account and Exhibit 7 that is evidence before his Honour, that is now undertaken both in the grounds of appeal and in the outline of submissions.

His Honour’s reasons

57. [57]
    His Honour referred to the elements of the offence but did not refer to s 17(2) and in particular 17(4)(b). He noted that it was not an issue that Mr Petersen was in charge of Chester at all relevant times and that he owed a duty of care to the dog. He referred briefly to the evidence of the various witnesses. In relation to Dr McKay’s evidence, he noted that the little dog had suffered from the ailments referred to in Charges 2 and 3 continuously up until 2013 when his surgery last saw Chester. He noted his concession that “it was possible for Chester to have only been treated a few hours earlier”. I take this to be a reference to Dr McKay’s evidence that the “dry eye” he observed on 4 February 2016 could have been because the dog was “not treated for an hour or two”.

58. [58]
    His Honour noted the witness’s concession that the ear condition could have been made worse i.e. became more inflamed, as a result of the companion dog licking. He noted that Dr McKay was critical of treatments said to be given by Mr Petersen which he did not recommend “but did say it was a common home remedy”. In relation to the eye disease he referred to Dr McKay’s evidence about KCS which required lubrication and noted that this is what the defendant actually did. He described the appellant as a procedural witness, and did not analyse Exhibit 7. I note that no submission was made to that effect and this was an ex-tempore decision, so it is not surprising that his Honour did not descend to the in depth analysis now contended for by the appellant.

59. [59]
    His Honour referred to the evidence of Dr Cox, and noted that as she had not seen Chester her evidence (i.e. opinion evidence) was not as compelling as Dr McKay where there were differences. He noted that the defendant gave evidence and that he had telephoned Bayside Vets on 29 January 2016 with a view to having Chester euthanased “because he could no longer care for Chester”. He referred to the phone call to Sharon Coburn and the arrangements made. He referred to his contact with the Council then and the photographs on the Wednesday, because “that would be the last opportunity he would have to have pictures of Chester”. He referred to Mr Petersen’s evidence of waking in the early hours on the 4^th February and finding the dog irritable, giving him a sleeping pill and sitting with him for a couple of hours “because of his concern for the dog”.

60. [60]
    He referred to the respondent’s evidence of what occurred next morning. Although he did not say this he seemed to accept that it was Ms Howe who suggested he put in the “dog unwell” entry in Exhibit 1 and these were not Mr Petersen’s words, which I note is not surprising given that Ms Howe conceded that she may have suggested these words. He also accepted Mr Petersen’s evidence that he was told that the pound did euthanase animals. He found that Exhibit 8 showed that Chester had deteriorated from the third until 8.36 am on the fourth. He was not satisfied the prosecution had proved beyond a reasonable doubt that Mr Petersen breached his duty of care to Chester.

61. [61]
    In conclusion he said

“It is a tragic case of a loved dog that had chronic ailments all of its life.  It reached an age where it was not improving and needed to be put down.  That is what the defendant was proposing to do and Chester’s condition deteriorated rapidly in the next few hours”.

The grounds of appeal

62. [62]
    Ground 1 criticises his Honour for “making a finding of fact that the respondent only became aware that the dog was gravely ill on 4 February 2016”.

63. [63]
    The notice of appeal then provides reasons in relation to all three charges which reasons overlap.

64. [64]
    As essentially the appellant’s case constitutes a challenge to his Honour’s findings in relation to credibility, as Mr Keim accepts, by reference to Fox v Percy,^[6]his client has a significant hurdle to clear.  The Court (Gleeson CJ, Gummow J, Kirby J) wrote:

“However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal or the functions on it by statute.  In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.”

Their Honours then referred to a number of examples of this principle in recent decisions of the Court stating

“In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.”

65. [65]
    On a re-hearing and bearing in mind the principles stated in Fox v Percy I will initially deal with the reasons said to be common in the criticism of his Honour in relation to all three charges namely Ground (1), (3) and (6) a., b., c., d., e., f., g., and h.  The notice of appeal is a very confusing pleading, but I will do my best to deal with it.  Mr Keim SC expands on the grounds in his submissions and I will endeavour to cover his criticisms and submissions in the course of dealing with the comprehensive (and repetitious) grounds.

“a. In making a finding ‘(1) the learned magistrate was in error in making a finding of fact that the defendant/respondent only became aware that the dog was gravely ill on 4 February 2016 inter alia, for the following reasons:

1. (a)
   in making the finding, the learned magistrate gave no weight to the video recorded admission of the defendant/respondent that he told his former partner, Ms Coburn, on 29 January 2016 that the dog was sick, really bad.”

66. [66]
    His Honour did not refer to this evidence directly in these terms in his reasons but an inference can be drawn that he reached that conclusion. No submissions were made to him along these lines at the trial. This evidence cannot be considered in isolation. The respondent’s evidence was clearly that he made the appointment with the vet on that day to have Chester euthanased provisionally on 3 February because he was going away and could not look after him. The evidence of the respondent about the dog’s condition deteriorating suddenly is corroborated by the photographs in Exhibit 8 and the fair concessions made by Dr McKay referred to in my reasons above and by his Honour, and also Exhibit 6, which is one of many pieces of evidence in this case that should have led in evidence by the prosecution as a model litigant.

“b. In making the finding, the learned magistrate gave no weight to the video-recorded admission of the defendant/respondent that he told his partner, Ms Coburn, on 29 January 2016 that the dog was getting sick;”

67. [67]
    This again is repetitious and confusing and I refer to what I have said in relation to a. above.

“c. In making the finding the learned magistrate gave no weight to the video-recorded (and confirmed in oral testimony) admission of the defendant/respondent that the dog had been unwell for two days, having been observed to have gone downhill from 4.00 pm on 2 February 2016.”

68. [68]
    Again this evidence has to be seen in the light of all the evidence. At this point and to avoid the repetition encouraged by the grounds as pleaded, I will refer to what I think is a fatal flaw in the prosecution case, not addressed by the appellant’s lawyer, but implicitly referred to by his Honour in that last section of his reasons.

69. [69]
    What is entirely overlooked by the appellant in this sad case is the word “appropriate” in all (3) charges, a reference to s. 17(4)(a) and (b). In Jolley v Queensland Police [2018] QDC 12 at [21] a decision delivered after the hearing here, her Honour Judge Clare SC (in the context of an entirely different case) construed the word “appropriate” in these terms:

“[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.”

70. [70]
    I respectfully adopt her construction. In other words, it is a combination of an objective and subjective test. It is clear on all the evidence that the respondent loved and cared for Chester. It is clear that at the time he called the vet on 29 January, Chester was then a very old dog as is depicted in the photographs in Exhibit 8. It is not only objectively reasonable for a dog owner in the respondent’s position to want to leave off the evil day for as long as possible, but in the circumstances here, where he had given the undertaking to the dog’s former owner (an explanation described now but not before his Honour as “improbable”) to hand him to her on the third. Given the concessions made by Dr McKay and the photographs in Exhibit 8, it was clearly open to his Honour to accept that the respondent acted immediately when he realized the pound was open at 10.00 am on the fourth. A comparison between the photographs on the fourth at 8.36 am and the photographs and video-recording in Exhibits 3 and 4 suggest no bleeding from the anus, and the little dog seems curled and peaceful with his mate. Clearly, respiratory distress cannot be seen from still photographs but Chester’s muzzle in one of the photographs is tucked under the other dog’s nose which reasonably in my opinion does not suggest breathing difficulty. All this strongly supports the respondent’s evidence of sudden deterioration.

“d. and e. These refer to his Honour not giving any weight to admissions by Mr Petersen in his evidence that Chester could not walk properly on 2 February 2016 and was not walking like he normally did on 3 February 2016.

71. [71]
    There is no substance in these criticisms. This issue is dealt with above. Chester was a very, very old dog. His Honour was not required to go into this sort of detail and of course no such submission was put to his Honour below. The earlier reasons deal adequately with this issue.

“f. In making the finding the learned magistrate gave no weight to the admission of the defendant/respondent in oral testimony that the dog, in the early hours of February 2016, was restless and not himself”.

72. [72]
    I assume this refers to the early hours of 4 February 2016. His Honour specifically referred to this evidence although he could not recall the exact evidence because he was giving ex tempore reasons.  In my view, it is unacceptable for the appellant to suggest, as she did through her lawyer before his Honour, in her closing address that the evidence did not indicate that he “looked after his pets”.  As I noted earlier, this baseless contention was never put to him, and flies in the face firstly of the prime condition of the other little dog Phoebe at the time of the appellant’s visit (upon which she commented), and the photographs in Exhibit 8 which show that little dog and a cat in obviously prime condition.

“g. In making the finding, the learned magistrate gave no weight to the video-recorded admission that at approximately 1.00 am on 4 February 2016, the defendant/respondent had given the dog a sleeping tablet, namely, half a Zolpidem, to put him to sleep and had sat with the dog for hours”.

73. [73]
    For the reasons noted above, it is not at all clear what medication he gave Chester apart that it was a sleeping pill. Sitting up with him for two hours of course has a completely innocent flavour and not the sinister (and baseless) connotation suggested to the respondent and rejected in cross-examination. For the reasons expressed earlier there is no substance in this criticism.

“h. In making the finding the learned magistrate gave no weight to the video-recorded admission (constituted by playing the video on a mobile phone but denied in oral testimony) that the defendant/respondent had a video of the dog taken in the early hours of 4 February 2016 which video showed the dog in distress and vocalising its distress.”

74. [74]
    I have already referred above to the serious factual deficiencies in relation to this issue. His Honour was well entitled to ignore this evidence, or lack of evidence. If indeed it was the fact that he had a video showing what was suggested to him, why was this evidence not led through the appellant. On a re-hearing, I am not convinced that (a) he did show a video and (b) I am positive that it did not show what Ms Terrell suggested it showed, obviously on instructions from the appellant i.e. Chester being distressed in the early hours of the Thursday morning.

75. [75]
    In relation to 1(i)(j), all these matters are covered above. In relation to (k) I fail to see why the evidence of the defendant given at his trial is capable of being criticised as being “self-serving”. His evidence, as I have noted, was strongly supported by other evidence in the case including the concessions made by Dr McKay in cross-examination, and Exhibits 6 and 8.

76. [76]
    In relation to Charge 1, the prosecution could never prove beyond a reasonable doubt that what the respondent did was not appropriate in the circumstances. As I have noted above, the evidence of the photographs in Exhibit 8 would cast doubt on the prosecution case that prior to Mr Petersen bringing Chester to the pound he was in respiratory difficulty and blood was discharging from his anus.

77. [77]
    Ground 3 refers to Charge 3, and I have dealt with a. to h. above. In relation to (i) the appellant ignores the concessions made by Dr McKay in cross-examination namely:

1. (a)
   The ‘dry eye’ could have been because he had not been treated for ‘an hour or two’;

2. (b)
   The evidence is not clear, but Chester was at the pound for some time before the vet saw him;

3. (c)
   The opinions expressed in Exhibit 6 which undermine the weight of the early opinions, which was not led by the prosecution but put in evidence through Dr McKay in cross-examination.  This is particularly apposite to (3)(i)(iv);

4. (d)
   Dr McKay’s concession that both the eye and ear conditions could have been made worse (as to inflammation rather than infection) by licking by the companion dog;

5. (e)
   His evidence after viewing the photographs in Exhibit 8 that they showed an over 13 year old dog, with lifetime chronic eye and ear conditions, who looked to be in ‘fair condition for his age’; and in ‘reasonable condition’; and he could see no discharge from the anus;

6. (f)
   Although he recommended against the use of hydrogen peroxide, shaving the ears and keeping them clear with a drying agent like that would prevent the condition worsening; and

7. (g)
   It was appropriate (although not what he as a vet would prescribe), to treat Chester’s KCS with lubricant eye drops purchased over the counter from supermarkets, which Mr Petersen said he did.

78. [78]
    Grounds 3(k) – (m) are dealt with earlier in the reasons.

79. [79]
    Ground 5 refers (as a separate criticism) to his Honour’s treatment of the evidence of Mr Petersen about treating Chester with home-made (sic) remedies for three years since he had last been to Dr McKay’s surgery. Again this ground is not established for reasons set out above. Dr McKays’ notes in Exhibit 6 are particularly relevant here for the reasons stated earlier.

80. [80]
    Ground 6 deals with Charge 3 and again the various contentions are covered in the reasons set out above. The grounds dealing with the evidence of using home remedies as opposed to what a vet might recommend, on all of the evidence, fail because of the failure of the prosecution to prove that the respondent’s dealing with Chester at all relevant times in relation to his various ailments was not appropriate, in the sense of having regard to what “steps a reasonable person in the circumstances of (Mr Petersen as established on the evidence) would reasonably be expected to have taken”.

81. [81]
    The other grounds contend that his Honour failed to provide proper reasons. Even if that was the case, and I do not think it is, on a re-hearing I would:

1. (a)
   Exclude Exhibit 7 on the ground that it was obtained unlawfully and on that basis the prosecution case would certainly fail; and/or

2. (b)
   Find Mr Petersen not guilty of all three charges.

82. [82]
    There is no basis on a proper assessment of the evidence here to interfere with his Honour’s findings as to the reliability of the respondent’s evidence. This is not a case where his Honour has ignored “incontrovertible facts or uncontested testimony”, or that his decision in this regard was “glaringly improbable”.

83. [83]
    On the contrary, the evidence (even with the inadmissible Exhibit 7 included) established that the respondent was faced with the awful decision that all animal lovers must face, and that is that an old frail and loved dog had reached the end of his life and he would have to be euthanased. He delayed in taking him to a vet for very human reasons; and then acted quickly when Chester’s condition suddenly deteriorated on the Thursday. In all the circumstances, on the evidence, Mr Petersen did his best, and the prosecution fell well short of proving a breach of duty.

84. [84]
    The appeal is dismissed.