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Fuller v RSPCA[2021] QDC 94

DISTRICT COURT OF QUEENSLAND

CITATION:

Fuller v RSPCA [2021] QDC 94

PARTIES:

JOHN PATRICK FULLER

(appellant)

v

RSPCA (STEFFI SCHUBERT)

(respondent)

FILE NO:

BD2350/20

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrate Court at Brisbane

DELIVERED ON:

4 June 2021

DELIVERED AT:

Cairns

HEARING DATE:

10, 12 and 27 May 2021

JUDGE:

Smith DCJA

ORDER:

  1. I allow the appeal only to the extent that the prohibition order is to remain in force until 7 March 2022 (instead of 7 March 2024) on the same terms and conditions as ordered in the Magistrates Court.
  2. The appeal is otherwise dismissed and the other orders made in the Magistrates Court are confirmed.
  3. I will hear the parties on the question of costs.

CATCHWORDS:

ANIMALS – PREVENTION OF CRUELTY TO ANIMALS – OFFENCES – GENERALLY – FAILING TO COMPLY WITH AN ANIMAL WELFARE DIRECTION – FAILING TO PROVIDE APPROPRIATE TREATMENT FOR AN ANIMAL – whether recorded conversation should have been admitted into evidence – whether there was a failure to comply with the direction – whether direction was a valid one

ANIMALS – PREVENTION OF CRUELTY TO ANIMALS SENTENCE – whether fine of $5,000 was manifestly excessive – whether costs could be referred to SPER – whether length of prohibition order was excessive

EVIDENCE – PROOF – Whether onus on the prosecution to exclude whether the appellant had a reasonable excuse or whether it was for the appellant to prove he did have a reasonable excuse

LEGISLATION:

Animal Care and Protection Act 2001 (Qld) ss 3, 4, 17, 138, 140, 159, 160, 161, 163, 165, 178, 183, 185

Justices Act 1886 (Qld) ss 76, 157, 160, 161A, 222, 223, 225

Police Powers and Responsibilities Act 2000 (Qld) s 398

State Penalties Enforcement Act 1999 (Qld) s 34

CASES:

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, applied

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 144, applied

Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63, considered

DPP (NSW) v Bolton [2007] NSWSC 1030; (2007) 178 A Crim R 460, considered

Forrest v Commissioner of Police [2017] QCA 132, applied

Hammond v Lavender (1976) 50 ALJR 728; 11 ALR 371 cited

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47; ATPR 41-185,  applied

Parsons v Raby [2007] QCA 98, cited

R v Osborne (2014) 69 MVR 45; [2014] QCA 291, cited

R v Plath [2003] QCA 567, cited

Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129, applied

Stevenson v Yasso [2006] QCA 40; [2006] 2 Qd R 150; 163 A Crim R 1, discussed

Taikato v R [1996] HCA 28; (1996) 186 CLR 454, considered

Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, applied

COUNSEL:

Mr J Lewis for the appellant

Mr N Boyd for the respondent

SOLICITORS:

Bilias & Associates for the appellant

RSCPA for the respondent

Introduction

  1. [1]
    On 29 July 2020, the appellant was convicted following a one day trial of:
    1. (a)
      (Charge 1) Failing to comply with an animal welfare direction (“AWD”) contrary to s 161 of the Animal Care and Protection Act 2001 (Qld) (the “ACPA”); and
    2. (b)
      (Charge 2) Failure to provide appropriate treatment for an animal, s 17(2) of the ACPA.
  2. [2]
    Each charge related to the appellant’s failure to provide appropriate treatment for a jaw injury to a horse under his care.
  3. [3]
    The appellant was sentenced to a fine of $5,000 and was ordered to pay costs associated with the prosecution and a prohibition order was made until 7 March 2024.
  4. [4]
    No convictions were recorded.
  5. [5]
    The appellant appeals both his conviction and sentence.

Grounds of appeal

  1. [6]
    The appellant, in his written argument, relies on two grounds of appeal relating to the conviction namely:
    1. (a)
      The appellant was not cautioned prior to any questioning of him which infringed his right to silence; and
    2. (b)
      The appellant had a reasonable excuse for his failure to comply with the AWD.
  2. [7]
    In further submissions made on 27 May 2021 it is alleged the AWD was invalid but the conviction on charge 2 is not challenged.
  3. [8]
    As to the sentence it is alleged the sentence is manifestly excessive.
  4. [9]
    The appellant sought to adduce fresh evidence at the hearing on 27 May 2021 but in an ex tempore decision I refused leave to him to adduce such evidence.

Nature of the appeal

  1. [10]
    Section 223(1) of the Justices Act 1886 (Qld) provides that the appeal is to be way of rehearing on the evidence given in the proceeding before Justices.
  2. [11]
    In Forrest v Commissioner of Police,[1] it was said that an appeal by way of rehearing requires the Appellate Court to decide the case for itself. It must conduct a real review of the evidence and make up its own mind about the case giving due weight to the Magistrate’s view.[2]
  3. [12]
    Section 225(1) of the Justices Act provides that:

On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.”

  1. [13]
    Finally, in Teelow v Commissioner of Police,[3] Muir JA noted that usually the powers of an Appellate Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the Appellate Court, the decision the subject of the appeal is the result of some legal, factual or discretionary error.

Proceedings below

  1. [14]
    The trial took place on 15 July 2020.
  2. [15]
    The appellant pleaded not guilty to both charges.[4] Prior to the commencement of the evidence, the prosecutor indicated that a recording of a phone conversation between the appellant and Inspector Schubert on 8 December 2017 was to be tendered as evidence. The appellant argued that he had not been given any warning of his right to remain silent.[5] It was submitted by the prosecutor that the provisions of the Police Powers and Responsibilities Act 2000 (Qld) concerning warnings did not apply to this matter as they were not indictable offences.[6] Ultimately though, the appellant withdrew his application to exclude the conversation.[7]
  3. [16]
    The Magistrate explained the nature of the proceedings to the appellant.[8]
  4. [17]
    The prosecutor opened the case submitting that the charges arose from the same series of events from 8 December 2017 through until 17 January 2018. The charges related to the treatment of a horse called Trumby under the appellant’s charge.
  5. [18]
    The horse had an abscess around the jaw area and the appellant was aware of this. On 2 January 2018 Inspector Schubert issued the appellant with an AWD requiring him to provide veterinary treatment to the horse within two weeks or alternatively arranging for it to be euthanised. Neither of these things were done. The prosecutor indicated that three witnesses would be called by the prosecution, Inspector Schubert; and then two veterinarians, Doctor Dwyer and Doctor Law.
  6. [19]
    Inspector Steffi Schubert gave evidence that she was an Inspector with the RSCPA. She holds a Bachelor of Science degree majoring in Zoology and has a Diploma of Investigations. She had received complaints about animals in the care of the appellant.[9] On 17 November 2017, she attended a property at Light horse Circuit, Mango Hill as she had received some information that a horse on the property had a wound under her chin.[10] She had been to the property previously. She was uncertain who owned it but believed the horses were agisted on the property. The appellant was responsible for the animals. When she attended she assessed the horse, noticed that there was an obvious swelling under her jaw, there was pus and the smell of infection.[11] Photographs were taken of the horse and they were marked as Exhibit 5.
  7. [20]
    After this attendance, Inspector Schubert contacted the appellant by telephone to discuss the injury. She issued an AWD to the appellant to arrange for treatment of the horse’s injury.[12] If Inspectors identify a potential offence they can issue an AWD. She saw an injury to the horse. The appellant indicated to her that he was aware of it and he hadn’t sought any treatment.[13]
  8. [21]
    She explained the AWD over the telephone and then left a hardcopy of the paperwork in his letterbox and texted photos to his phone. The AWD was marked as Exhibit 6. It was dated 17 November 2017, was issued to the appellant and required him to have a qualified veterinarian examine the horse and to follow all vet directions and the treatment was to be provided within one week.[14]
  9. [22]
    On 8 December 2017, she spoke to the appellant on the phone to see if he had organised treatment for the horse. She recorded this conversation. The recording was marked as Exhibit 7. It is clear from the recording that the appellant was aware of the injury the animal was suffering, the requirement for treatment and if he could not afford treatment he could have the animal euthanised.
  10. [23]
    On 2 January 2018, Inspector Schubert returned to the paddock at Mango Hill to check on the horse again. The abscess had not resolved, and in fact had gotten worse and there was still obvious pus and smell.[15] She also took some more photographs depicting this and they were marked as Exhibit 8.
  11. [24]
    The inspector spoke to the appellant again on the phone and issued another welfare direction which was marked as Exhibit 9 requiring him to get veterinary treatment for the animal.[16] The AWD, Exhibit 9, was the subject of Count 1.
  12. [25]
    On 17 January 2018, she attended the property once again with a warrant. The purpose of this was to seize the horse as evidence as there had been no compliance with the AWD.[17] She had contacted the appellant the day prior and also on 17 January and confirmed no veterinarian treatment had been sought.[18] The warrant was tendered as Exhibit 10.
  13. [26]
    After they gained access to the property, the horse was loaded onto a float. The abscess was very obvious and was unchanged from the previous visit and further photographs were taken and marked as Exhibit 11.[19] To her knowledge no treatment was administered to the horse between 2 January and 16 January 2018.[20]
  14. [27]
    She said she could identify the horse as Trumby because she was very familiar with horses on the property. She also knew the appellant was responsible for the horse as he had previously identified this.[21]
  15. [28]
    In cross examination, she said the first time she attended the property was on 4 October 2017.[22] The witness accepted that Doctor Law had previously attended the horse in February 2017.[23] Antibiotics had been administered to the horse prior to her attendance on 17 November 2017.[24] She denied the proposition there was no smell.[25] She did not recall the appellant calling her on 16 January 2018.[26]  She agreed that the appellant told her that Neville, a horse dentist, had lost somebody in the family and could not attend to the horse that day.[27]  The appellant did express some reluctance to have the horse euthanised.[28]  She was not aware that Doctor Law had been to the horse twice before the AWD.[29]  She agreed that a vet visited Trumby on 22 November 2017.[30]  She disagreed that had not properly investigated the charges.[31]  She did not recall the appellant telling her that he was going to involve a horse dental doctor.[32]  She agreed that he had sought a vet concerning Trumby.[33] 
  16. [29]
    In re-examination concerning the conversation on 16 January 2018, she did not recall the name of the vet that the appellant referred to.[34]  She accepted he could have been referring to Neville, a horse dentist.[35] 
  17. [30]
    Doctor Judith Law gave evidence that she was an equine veterinarian in Samford.[36]  She was familiar with Trumby.  She was first called to the property in February 2017 to examine the horse.[37]  This was arranged by the appellant.  The horse was obese having been over-fed but the principal problem was a draining sinus tract from the left mandible probably associated with a tooth.  She recommended the horse be placed on an oral antibiotics.  She provided these to the appellant and advised him that if after a two week course there was no resolution, the next step would be to x-ray the horse’s head to identify what the problem was.[38]  She was not contacted two weeks after this. 
  18. [31]
    The next contact was nine months later on 22 November 2017.  This was in response to an RSPCA requirement.  The appellant was there with a Miss Miles.  Although the horse was not well handled she managed to get close enough to the horse to examine the jaw.[39]  The swelling on the left mandible was unchanged.  It felt bony, the wound was still discharging pus and there was an area of tissue death.  The horse did not have trouble eating but was underweight.[40]  There was a hole leading from somewhere internal to the skin and the tissue death was associated with this.  Tissue death is associated with the skin and is the result of an ongoing infection.[41]  The witness proposed treatment; she advised that the next step was to diagnose the cause of the problem.  The horse would have to be brought into an equine facility or the hospital facility to have this done.  The appellant was definitely there when she said this.[42]  An alternative to euthanasia was surgery and it would cost about $5,000.00 to extract an infected molar.  Euthanasia was a reasonable alternative in that situation.[43]  She was not contacted by the appellant between 7 February 2017 and 22 November 2017 for this horse.[44]  It was her opinion that the horse should have received treatment prior to 22 December 2017.[45]  It was very hard to miss a big swelling on the lower jaw of the horse that was discharging pus. 
  19. [32]
    In cross-examination, the witness accepted the horse from its behaviour, may have been unbroken.  She could not recall a smell associated with the cyst.  She disagreed with the proposition that horses do not eat when they are in pain.[46]  She knows of a vet called Tom Doyle.[47]  She did not know of a horse dentist called Neville.  Prescription drugs must be prescribed by a vet who has examined the animal.[48]  To pull teeth of a horse, this usually needs to be done with ongoing sedation and nerve blocks in a standing horse crush.  They would employ a specialist dentist to extract the tooth.[49] 
  20. [33]
    In re-examination she said that the condition she observed of Trumby on 22 November 2017 would not be treatable by a non-veterinary equine dentist.[50] 
  21. [34]
    Dr Janine Dwyer, also a vet, gave evidence.  She examined Trumby at the RSPCA facility at Wacol on 18 January 2018.  The horse was difficult to handle and had a very painful and swollen bottom of its face.[51]  They had to sedate the horse.  She observed a pus discharge of the mandible on the lower part of the horse’s jaw.[52]  She was not able to tell why the hole was there.  The condition had been like that for quite some time.  It takes quite a while for infections to cause this.  It could have been present there for years.  The horse, when it was touched near the mandible, threw herself backwards in fear.[53]  She agreed that when Trumby came into the RSPCA facility she had a condition score of two out of five.[54]  She agreed that antibiotics were given to the horse.[55] 
  22. [35]
    After the prosecution case closed, the appellant was advised as to his options of giving or not calling evidence.  The court adjourned for about an hour and the trial resumed.  The magistrate ensured that the decision by the appellant to call or not call evidence was a considered one.[56]  Ultimately the appellant advised the court he would not be giving or calling evidence.

Prosecution submissions

  1. [36]
    The prosecution submitted to the magistrate that the appellant was issued with an AWD and did not comply with the direction.  He did not seek appropriate treatment or euthanize the horse, as recommended within two weeks between 2 January and 16 January 2018. 
  2. [37]
    It was submitted that the court would accept the evidence of Dr Dwyer.   It was submitted that there was no reasonable excuse as to his failure to comply with the direction.  The fact is the injury had been in existence since February 2017 and was still there on 17 November 2017. 
  3. [38]
    Turning to the second charge the court would be satisfied the appellant had control of the animal and he had a duty of care to it and he failed to take reasonable steps to provide for treatment of the disease or injury.  In those circumstances the appellant should be convicted of both charges. 

Appellant’s submissions

  1. [39]
    With respect to the first charge, the appellant believed he had complied with the direction because Dr Law had come out twice; first in February 2017 and then again in November 2017.  He also obtained a second opinion from Mr Doyle, another vet, who told him that Neville would be able to fix it and that’s why he took photos.  But Neville had a death in the family. 
  2. [40]
    So the appellant said he had consulted two people between 2 January 2018 and 16 January 2018.  As to whether or not he had a reasonable excuse, he said that every AWD he had received from Schubert had been complied with.
  3. [41]
    With respect to the second charge he believed that he had a reasonable excuse for failing to comply with the AWD. 

Magistrate’s decision

  1. [42]
    The magistrate referred to the terms of each charge and noted the prosecution case.  He correctly directed himself that the appellant was presumed not guilty of the charges and the onus was on the prosecution.  He referred to the evidence given in the case. 
  2. [43]
    On the evidence, he was satisfied beyond reasonable doubt of the elements of each of the charges.  He was satisfied the appellant knew of the Dr Law’s recommendation and knew it would be costly.  He was satisfied that there was non-compliance with the AWD; there was no reasonable excuse for this.  He found the appellant guilty of that offence.  He found the prosecution had excluded beyond reasonable doubt any reasonable excuse for not complying with the direction.
  3. [44]
    As to Charge 2, he was satisfied the appellant breached the duty of care to the horse by not taking reasonable steps to provide for Trumby’s needs.  In all of the circumstances he found him guilty of that charge.

Appellant’s submissions

  1. [45]
    The appellant submits that at no stage did Inspector Schubert caution him and he was compelled to answer her questions.  In those circumstances the evidence of the conversation ought not to be admitted. 
  2. [46]
    The appellant then argues that even though an AWD was issued the appellant had a reasonable excuse with respect to failing to comply with the AWD.  He submitted that arranging for the horse to be seen by Ms Law and sending a photo of the horse to Dr Doyle and making an appointment with the horse dentist was all reasonable.  At very short notice the expert Neville had to cancel the appointment because of a family death.  In those circumstances the prosecution had not negatived the issue of reasonable excuse. 
  3. [47]
    The appellant further argues that the direction given in the AWD does not comply with the ACPA and is ambiguous and therefore the notice is invalid.

Respondent’s submissions

  1. [48]
    The respondent submits that there was no requirement of the appellant to be cautioned.  Further, the appellant withdrew his objection to the tendering of the interview at the commencement of the trial.  It is further submitted that in any event even if the interview was excluded this would not have affected the outcome of the trial.  With respect to the issue of reasonable excuse, it was submitted that the onus was on the appellant but regardless the Magistrate applied a reasonable doubt standard to the prosecution.  Also, the appellant elected not to give evidence at the trial and there was no evidence of the matters raised by the appellant.
  2. [49]
    As to the alleged invalidity of the AWD the respondent submits that the notice was clear and also the point was never taken previously.

Discussion

Failure to caution

  1. [50]
    It is my assessment that the issue of the alleged failure to caution the appellant was raised prior to the commencement of the trial.  The relevance of the recording was to establish the appellant’s knowledge of the injury to the animal as at 8 December 2017- the start date of the offence.  In my view, the appellant agreed it could be played during the trial. In those circumstances I find he withdrew his objection to it.
  2. [51]
    In any event though there was no requirement by the inspector to caution the appellant. 
  3. [52]
    The provisions of the PPRA concerning the giving of cautions only apply to indictable offences.[57]  An offence against s 17 of the Act is not an indictable offence.[58] 
  4. [53]
    There is no legislative obligation in the Act upon the inspector to provide a caution before conducting an interview when investigating an offence against this Act.
  5. [54]
    The sections cited by the appellant in his outline do not impose an obligation by an Inspector to give a warning as to the right to silence.
  6. [55]
    Section 165 of the ACPA only relates to the requirement of the inspector to give an offence warning.[59]   There are similar obligations under ss 138, 140, 160(2) and 163 of the ACPA.
  7. [56]
    In any event, in my opinion, it was not unfair in all the circumstances to admit the evidence of the conversation. Whilst it is true there is apparently an operational guideline which suggests that a caution should be given prior to conducting an interview regarding an offence, this conversation was not an interview. The inspector was checking on whether treatment had been administered to the horse. In fact it was the start date of the offence, so charge two related to acts after that date.
  8. [57]
    If asked to exercise the discretion to exclude the conversation, applying the principles in Bunning v Cross[60] I would not have done so. The fact is the inspector was conducting a welfare check on the horse. Also this was a significant circumstantial and evidence that the appellant knew of the horse’s condition was important. I think these facts outweighed the right to silence here.
  9. [58]
    But even if I am wrong about this I consider the exclusion of the evidence would not have led to a different outcome, bearing in mind the evidence of Dr Law’s conversations with the appellant and the evidence of the lack of treatment of Dr Dwyer. The fact is on this evidence it could readily be concluded that the appellant had clear knowledge of the horse’s injury.
  10. [59]
    In those circumstances I reject the appellant’s argument. 

Failure to comply with the AWD- validity

  1. [60]
    Section 159 of the ACPA provides:

159 Power to give animal welfare direction

  1. (1)
    The inspector may give a written direction (an animal welfare direction) requiring stated action about the animal or its environment.
  1. (2)
    The direction may be given to—
  1. (a)
    a person in charge of the animal; or
  1. (b)
    a person whom the inspector reasonably believes is in charge of the animal; or
  1. (c)
    if the animal has been seized under division 4, subdivision 1
  1. (i)
    a person who, immediately before the seizure, was a person in charge of the animal; or
  1. (ii)
    a person whom the inspector reasonably believes was, immediately before the seizure, a person in charge of the animal.
  1. (3)
    Without limiting subsection (1), the direction may require any of the following action to be taken—
  1. (a)
    care for, or treat, the animal in stated way;
  1. (b)
    provide the animal with stated accommodation, food, rest, water or other living conditions;
  1. (c)
    consult a veterinary surgeon about the animal’s condition before a stated time;
  1. (d)
    move the animal from the place where it is situated when the direction is given to another stated place for a purpose mentioned in paragraph (a), (b) or (c);
  1. (e)
    not to move the animal from the place where it is situated when the direction is given.
  1. (4)
    However, action may be required only if the inspector considers it to be necessary and reasonable in the interests of the animal’s welfare.
  1. (5)
    The direction may state how the person given the direction may show that the stated action has been taken.”
  1. [61]
    Section 160 of the ACPA provides:

160 Requirements for giving animal welfare direction

  1. (1)
    An animal welfare direction must—
  1. (a)
    be in the approved form; and
  1. (b)
    describe—
  1. (i)
    the animal in a way that reasonably allows the person given the direction to identify it; or
  1. (ii)
    if the direction is given because the inspector reasonably believes a person has committed, is committing or is about to commit, an animal welfare offence—the type of animal to which the offence relates; and
  1. (c)
    state—
  1. (i)
    each requirement; and
  1. (ii)
    a time for the person to comply with each requirement; and
  1. (d)
    include an information notice about the decision to give the direction.
  1. (2)
    Despite subsection (1)(a), an animal welfare direction may be given orally if—
  1. (a)
    the inspector considers it to be in the interests of the animal’s welfare to give the direction immediately; and
  1. (b)
    for any reason it is not practicable to immediately give the direction in the approved form; and
  1. (c)
    the inspector gives the person an offence warning.
  1. (3)
    If the direction is given orally, the inspector must confirm the direction by also giving it in the approved form as soon as practicable after giving it orally.
  1. (4)
    An animal welfare direction may state that an inspector proposes, at a stated time or at stated intervals, to enter the following where an animal the subject of the direction is kept at to check compliance with the direction—
  1. (a)
    a vehicle of which the person is the person in control;
  1. (b)
    another place of which the person is the occupier.”
  1. [62]
    The inspector purportedly issued the AWD pursuant to s 159 and 160 of the ACPA on 2 January 2018. 
  2. [63]
    The Direction was directed to the appellant and confirmed an oral direction given on 2 January 2018. It noted in the form 1429 that the reason for the issue of the AWD was the horse required veterinary treatment. In the form 1169 the requirement was to “care for or treat the animal as described below.” The requirements were said to be “Provide appropriate treatment or euthanise horse as recommended by qualified veterinary surgeon.” Later in the notice it was said the appellant could show action had been taken by “receipts for vet treatment/consultation receipts for doggers, report from consulting veterinarian.” The appellant was given two weeks to comply.
  3. [64]
    The compliance date for the AWD was 16 January 2018. 
  4. [65]
    I turn to the first argument namely the notice was invalid. The appellant alleges it is ambiguous and it did not comply with the sections.
  5. [66]
    Section 159 of the ACPA provides for the power to issue the direction. Subsection (3) sets out what “may” be in the direction in terms of action to be taken.
  6. [67]
    Importantly s 160 of the ACPA sets out what must be in the direction. Section 160(1)(c) of the ACPA provides that each requirement “must” be stated, as must the time for compliance.
  7. [68]
    I accept that this sections provide for the preconditions for the issuing of a valid AWD. I also accept that unless the preconditions are met then the prosecution cannot be proved.[61] I also note that no particular form of words is required, provided the defendant is informed of the purpose of the directions and provided sufficient information.[62]
  8. [69]
    It is arguable that if the direction is ambiguous then it may be difficult to prove non-compliance or it may be easier for reasonable excuse to be established. Like in a contempt case a direction should be clear and unambiguous in its terms which leaves no room for the person to whom it is directed to wonder whether or not their future conduct falls within the scope of the direction.[63] But the question here is whether it is ambiguous.
  9. [70]
    In my opinion a reading of the whole of the AWD leads me to the conclusion it did comply with the sections and was not ambiguous.
  10. [71]
    First, I consider the words in the requirements would not and should not be read disjunctively. I consider it clear from a reading of the whole of the document and the circumstances of the case that a direction was given to the appellant to provide appropriate treatment as recommended by a qualified vet. It was clear the direction was given in the context the horse required veterinary treatment and indeed receipts and a report from a vet had to be provided.
  11. [72]
    Second, I consider the use of the words “appropriate treatment” was a stated requirement under section 160. The Inspector could not have been too particular as to the exact treatment needed. This was to be determined by a vet and she was to be advised of this in the vet report.
  12. [73]
    Third, I note that it was not suggested in the proceedings below that there was any problem with the meaning of the AWD. Also one must bear in mind the history of the matter. Ms Schubert spoke to the appellant as to the injury and she issued an initial AWD for treatment of the animal’s injury.[64] On 2 January 2018 she again spoke to the appellant and explained the AWD to him.[65]  
  13. [74]
    I reject the appellant’s argument regarding the validity of the AWD.

Reasonable excuse

  1. [75]
    It was an offence to comply with an AWD,[66] however it is not an offence if the person has a reasonable excuse for their failure to comply. The term “reasonable excuse” is not defined in the ACPA although the dictionary defines “reasonable” as means reasonable in the circumstances.
  2. [76]
    The appellant submits relying on Dowling v Bowie[67] that it was for the prosecution to exclude beyond reasonable doubt any reasonable excuse.
  3. [77]
    In Dowling, the court was concerned with a case where the statute prohibited the sale of alcohol to a “half caste” person. Dixon CJ noted that the common law doctrine was that where a statute has defined grounds of liability and introduces a distinct matter of exception or excuse then the onus lies on the party seeking to prove the exception or excuse.
  4. [78]
    The issue is not without difficulty. In Stevenson v Yasso[68] different views were taken by members of the Queensland Court of Appeal. In that case section 14 of the Fisheries Act allowed an aboriginal person acting under aboriginal tradition to take otherwise prohibited fish.
  5. [79]
    McMurdo P at [45] dissented on this point. She held it was for the prosecution to disprove the proposition the appellant was an aboriginal person acting under an aboriginal tradition.
  6. [80]
    McPherson JA at [97] held that the onus was on the appellant because s 14 created an exemption to the offence provision. Fryberg J at [151] had the same view.
  7. [81]
    In Chugg v Pacific Dunlop Ltd[69]  Dawson, Gaudron and Toohey JJ noted that a distinction is made between a requirement which forms part of the statement of general rule and a statement of some matter of answer which serves to take a person outside of the general rule. The question is whether there is a legislative intent to impose on the accused person a burden of proof.
  8. [82]
    In this case there is also s 76 of the Justices Act 1886 (Qld) which provides:

76  Proof of negative etc.

If the complaint in any case of a simple offence or breach of duty negatives any exemption, exception, proviso, or condition, contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in the defendant’s defence.”

  1. [83]
    It is my view this section applied to this case.  The reasonable excuse is an exception as identified in s 76. It is my view the legislature intended the onus be on the accused person to establish reasonable excuse. This makes sense when in many cases knowledge of the facts giving rise to the reasonable excuse are only within the knowledge of the defendant. As was noted in Chugg[70] “if the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof”.    
  2. [84]
    In those circumstances, in my opinion, there was an onus on the appellant to prove on the balance of probabilities there was a reasonable excuse for failing to comply with the AWD. 
  3. [85]
    But regardless in this case, the Magistrate applied a standard of beyond reasonable doubt on the part of the prosecution to disprove the reasonable excuse. 
  4. [86]
    In those circumstances there was no misapplication of principle and if anything, a higher standard was applied to the prosecution than may have been required.
  5. [87]
    Leaving this issue aside, did the appellant establish he had a reasonable excuse to not comply with the AWD?
  6. [88]
    In Taikato v R[71] it was said that “what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse is an exception”.
  7. [89]
    The appellant in this case elected not to give evidence at the trial.  On my assessment the Magistrate was in pains to explain ramifications to the appellant of electing not to give evidence.  Even during the prosecution closing address the Magistrate gave the appellant a further opportunity to reconsider his decision not to give evidence.  Again the appellant elected not to give or adduce any evidence.[72]  The Magistrate gave the appellant another opportunity on 29 July 2020 to call evidence and the appellant chose not to give or call evidence.[73]
  8. [90]
    As a consequence of the appellant’s election there was no evidence before the Magistrate of any reasonable excuse for failure to comply with the AWD.  As to matters raised by the appellant in his outline, none of the statements paragraph 26 were the subject of direct evidence.  The horse was attended upon by Dr Law prior to the AWD being issued not in compliance with it.  In cross-examination the appellant asked Inspector Schubert about a conversation in which he told her he had sent photos to Dr Doyle.  This evidence is hearsay and is not admissible as to the truth of the statements contained therein. But in any event sending photos to a vet was in my view not sufficient treatment for this animal. 
  9. [91]
    At no point was Mr McKenna called and there was no evidence of his experience or plans for the horse.  In any event, the evidence of Dr Law is that an equine dentist is not a veterinarian, they are not required to undertake any formal qualifications or study and are not qualified to perform the nature of the treatment required in this case.  Even if an equine dentist attended upon the animal, this most likely would have not constituted compliance with the AWD. 
  10. [92]
    The appellant did not adduce of messages he claimed he had left for the inspector, nor of any SMS messages he claims he sent her regarding the appointment having to be postponed. 
  11. [93]
    The appellant on my assessment was given ample opportunity to give or adduce evidence as to why he did not comply with the AWD.  He elected not to go into evidence at his trial. 
  12. [94]
    There was no evidence which could sustain a reasonable excuse for failing to comply with the AWD. 
  13. [95]
    The Magistrate in my opinion correctly found the prosecution had excluded this defence beyond a reasonable doubt.
  14. [96]
    In those circumstances this ground of appeal should be rejected.
  15. [97]
    I also add having read the evidence and independently reviewed the matter I am satisfied that the elements of each offence had been proved beyond reasonable doubt by the prosecution.

Sentence

  1. [98]
    The appellant submits that the penalty imposed was too great and submits for a good behaviour bond or a fine in the order of $1000. It is submitted there was no power in the Magistrate to refer the costs order to SPER. He also submits that the prohibition order was for too long. 
  2. [99]
    As to the sentence, the relevant matters to the exercise of the discretion in this case were:
    1. (a)
      The appellant was convicted after a trial rather than on a plea of guilty;[74]
    2. (b)
      He was a mature man;
    3. (c)
      There were no previous convictions;
    4. (d)
      There were two offences;
    5. (e)
      The offending comprised the dereliction of duty the appellant owed to the animal which had sustained a significant injury and he had taken no steps to treat the injury.  However this was not an offence of deliberate cruelty.
    6. (f)
      General deterrence looms large in relation to this type of offence as the community rightly condemns those who take on the responsibility of caring for animals and allow the animal to suffer from harm due to their lack of care;
    7. (g)
      Specific deterrence is particularly relevant in this case as was apparent from the manner in which the appellant conducted his trial in that he had a lack of insight into his conduct and the impact this had upon the health and wellbeing of the animal;
    8. (h)
      The appellant was employed at the time of trial and had the capacity to pay a fine;
    9. (i)
      The existence of the injury for a period of time prior to the charge period negated any submission this was an isolated incident.
  3. [100]
    In my view in matters of this kind a court should have regard to the purposes of the ACPA[75] and how the purposes are to be achieved.[76] One of the purposes of the ACPA is to prevent animals from suffering unjustifiable, unnecessary or unreasonable pain. The ACPA is also to promote the responsible care and use of animals. To achieve these purposes the ACPA imposes a duty of care on persons in charge of animals and prohibits certain conduct regarding animals.  
  4. [101]
    It is to be noted the maximum penalty for count 1 was 100 penalty units or one years’ imprisonment. The maximum penalty for count 2 was 300 penalty units or one years’ imprisonment.[77]
  5. [102]
    I have had regard to the schedule of cases which was tendered to the Magistrate. My general impression is for first offenders who plead guilty, fines are in the order of $1,500 to $3,000.
  6. [103]
    In the matter of Penny[78] the defendant pleaded not guilty to one charge of failing to treat. She was convicted and was fined $8,000 and a four year prohibition order was made. That was a more serious case as the dog had to be euthanised.
  7. [104]
    In all of the circumstances I am satisfied that a sentence of a fine of $5,000 appropriately reflected the seriousness of the offence, the harm to the animal and the appellant’s personal circumstances. I am not satisfied the fine was manifestly excessive.
  8. [105]
    No error has been demonstrated in the exercise of the sentencing discretion and the imposition of the fine of $5,000 ought not to be disturbed. 
  9. [106]
    As to the referral of the fine and costs to the State Penalties and Enforcement Registry for recovery, I do not accept the appellant’s complaint there is no power to refer court costs under the Justices Act to SPER.
  10. [107]
    Section 161A of the Justices Act provides:

161A Mode of levying penalties, moneys or costs

  1. (1)
    This section applies if the adjudicating justices in their discretion direct that the amount of the penalty or compensation or sum of money or costs adjudged or required to be paid under a decision shall be recoverable by execution.
  1. (2)
    This section also applies if the Act by virtue of which a decision adjudging or requiring the payment of a penalty or compensation or sum of money or costs is made expressly provides that the amount of such penalty or compensation or sum of money or costs is to be levied by distress or execution.
  1. (3)
    The justices may order that—
  1. (a)
    the amount to be paid or levied may be recovered by execution against the goods and chattels of the person liable to make the payment under a warrant of execution issued by the adjudicating justices; or
  1. (b)
    the clerk of the court may, under the State Penalties Enforcement Act 1999, section 34, give particulars of the amount to be paid or levied to the State Penalties Enforcement Registry for registration under that section.”
  1. [108]
    Section 161A of the Justices Act provides that any costs a Judge orders to be paid may be registered with SPER by the clerk of the court. 
  2. [109]
    The order referring the professional costs awarded under s 157 of the Justices Act to SPER was lawfully made.  I also note that s 160 of the Justices Act permits orders for costs made upon conviction to be recoverable in the same manner as a fine which were able to be referred to SPER.[79] 
  3. [110]
    Finally, the Magistrate made a prohibition order under s 183 of the ACPA.  The order prohibited the appellant from acquiring animals other than those permitted under the order or as approved from time to time by the RSPCA.  The prohibition order expires on 7 March 2024 a period of approximately three years and nine months.  The period of the prohibition order was moderated to take into account an interim prohibition order which had been put in place since 7 March 2019, a total period of five years. 
  4. [111]
    Section 185 of the ACPA sets out a non-exhaustive list of the criteria to be applied when making the order:

“(1) The court may make a disposal or prohibition order against a person only if the court is satisfied, on the balance of probabilities, it is just to make the order in the circumstances.

  1. (2)
    In considering whether it is just to make the order, the court must consider each of the following—
  1. (a)
    the nature of the animal welfare offence to which the hearing relates;
  1. (b)
    the effect of the offence on any animal that was the subject of, or used to commit, the offence;
  1. (c)
    the welfare of the animal and any other animal owned by the person;
  1. (d)
    the likelihood of the person committing another animal welfare offence;
  1. (e)
    if an interim prohibition order is in effect against the person—the person’s compliance or otherwise with the order.
  1. (3)
    Subsection (2) does not limit the matters the court may consider.
  1. (4)
    The court may make the order, to the extent it relates to an animal, whether or not it considers another animal welfare offence is likely to be committed in relation to the animal.”
  1. [112]
    As was noted by the High Court in Rich v ASIC[80] orders of disqualification both have a punitive and protective effect. Although that case involved a disqualification as a director I consider the principles to be of some assistance here.
  2. [113]
    It was noted that in assessing the length of such orders it is necessary to balance personal hardship to the defendant against the public interest.[81] Certainly when it comes to the loss of a driver licence personal hardship is not an irrelevant consideration.[82] 
  3. [114]
    I have regard to the schedule tendered below as Exhibit MFI E. My overwhelming impression is that generally five year orders are made where there are a number of animals or where for example to animal is euthanised. More often one to three year orders are made where one animal is involved. I note in Penny four years was imposed and that case was more serious than the present.
  4. [115]
    The appellant told the Magistrate that he was a primary producer and had bought animals from local sales. Some horses were shown by his partner and some were sold. The appellant claimed that after he spoke to Dr Law he spoke to a Vet who put him onto a person who could do a tooth operation.      
  5. [116]
    In reaching his decision the Magistrate appeared not to have regard to the submissions made by the appellant in determining the length of the prohibition order. I conclude an error occurred at that stage of the proceedings.  
  6. [117]
    In my view bearing in mind the absence of previous convictions, the fact one animal was involved and the fact a prohibition order might affect his primary production income, I am satisfied that the five year order was manifestly excessive.
  7. [118]
    In light of the injury to the animal, the absence of previous convictions, the matters raised by the appellant and the other s185 factors, I am satisfied a three year order should be made instead.

Conclusion

  1. [119]
    For the reasons given I make the following orders:
  1. I allow the appeal only to the extent that the prohibition order is to remain in force until 7 March 2022 (instead of 7 March 2024) on the same terms and conditions as ordered in the Magistrates Court.
  2. The appeal is otherwise dismissed and the other orders are confirmed.
  3. I will hear the parties on the question of costs.

Footnotes

[1]  [2017] QCA 132.

[2]Parsons v Raby [2007] QCA 98 at [23].

[3]  [2009] QCA 84; [2009] 2 Qd R 489 at [4].

[4]  Transcript day 1 pages 14-15.

[5]  Transcript day 1 page 28.20.

[6]  Transcript day 1 page 32.

[7]  Transcript day 1 pages 39.37 and 40.32.

[8]  Transcript day 1 page 52.

[9]  Transcript day 1 page 58.37.

[10]  Transcript day 1 page 59.7.

[11]  Transcript day 1 page 59.27.

[12]  Transcript day 1 page 61.10.

[13]  Transcript day 1 page 61.22.

[14]  Transcript day 1 page 62.

[15]  Transcript day 1 page 65.30.

[16]  Transcript day 1 pages 67-68.

[17]  Transcript day 1 page 71.5.

[18]  Transcript day 1 page 71.15.

[19]  Transcript day 1 pages 72-73.

[20]  Transcript day 1 page 73.27.

[21]  Transcript day 1 page 73.45.

[22]  Transcript day 1 page 75.17.

[23]  Transcript day 1 page 76.5.

[24]  Transcript day 1 page 77.5.

[25]  Transcript day 1 page 78.17.

[26]  Transcript day 1 page 80.44.

[27]  Transcript day 1 page 82.17.

[28]  Transcript day 1 page 83.17.

[29]  Transcript day 1 page 85.1.

[30]  Transcript day 1 page 86.5.

[31]  Transcript day 1 page 87.35.

[32]  Transcript day 1 page 92.25.

[33]  Transcript day 1 page 93.5.

[34]  Transcript day 1 page 95.35.

[35]  Transcript day 1 page 95.40.

[36]  Transcript day 1 page 99.15.

[37]  Transcript day 1 page 99.35.

[38]  Transcript day 1 page 100.

[39]  Transcript day 1 page 102.5.

[40]  Transcript day 1 page 102.35.

[41]  Transcript day 1 page 103.1.

[42]  Transcript day 1 page 103.30.

[43]  Transcript day 1 page 103.40.

[44]  Transcript day 1 page 104.1.

[45]  Transcript day 1 page 104.5.

[46]  Transcript day 1 page 106.45.

[47]  Transcript day 1 page 107.24.

[48]  Transcript day 1 page 108.20.

[49]  Transcript day 1 page 108.45.

[50]  Transcript day 1 page 112.30.

[51]  Transcript day 1 page 115.10.

[52]  Transcript day 1 page 115.45.

[53]  Transcript day 1 page 116.20.

[54]  Transcript day 1 page 117.41.

[55]  Transcript day 1 page 119.1.

[56]  Transcript day 1 page 124.5.

[57]  Section 398 of the PPRA.

[58]  See s 178 of the ACPA. 

[59]  “An “offence warning” is defined in the Dictionary as “for a direction or requirement under this Act, means a warning that, without reasonable excuse, it is an offence for the person to whom the direction or requirement is given, or of whom it is made, not to comply with it”.

[60]  [1978] HCA 22; (1978) 141 CLR 54.

[61]  See by analogy the requirement to give a specimen of breath- Hammond v Lavender (1976) 50 ALJR 728; 11 ALR 371.

[62]  Again by analogy see DPP (NSW) v Bolton [2007] NSWSC 1030; (2007) 178 A Crim R 460 at [24].

[63]ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at p 259; 110 ALR 47; ATPR 41-185.

[64]  Transcript day 1 page 61.

[65]  Transcript day 1 page 68.41.

[66]  Section 161 of the ACPA. 

[67]  (1952) 86 CLR 136; [1952] HCA 63.

[68]  [2006] QCA 40; [2006] 2 Qd R 150; 163 A Crim R 1.

[69]  [1990] HCA 41; (1990) 170 CLR 249 at page 257.

[70]  [1990] HCA 41; (1990) 170 CLR 249 at pages 258-259.

[71]  [1996] HCA 28; (1996) 186 CLR 454.

[72]  Transcript day 1 page 133-136.

[73]  Transcript 29 July 2020 pages 3-8.

[74]  Section 13 of the Penalties and Sentences Act 1992 (Qld).

[75]  Section 3 of the ACPA.

[76]  Section 4 of the ACPA.

[77]  At the relevant time a penalty unit was $126.15. The maximum for count 1 was $12,615.00 and for count 2- $37,845.00.

[78]  Bundaberg Magistrates Court, 20 June 2018.

[79]  Section 161A(1) Justices Act 1886 and s 34 State Penalties Enforcement Act 1999.

[80]  [2004] HCA 42; (2004) 220 CLR 129.

[81]  [2004] HCA 42; (2004) 220 CLR 129 at [49].

[82]R v Plath [2003] QCA 567; R v Osborne (2014) 69 MVR 45; [2014] QCA 291.

Close

Editorial Notes

  • Published Case Name:

    Fuller v RSPCA

  • Shortened Case Name:

    Fuller v RSPCA

  • MNC:

    [2021] QDC 94

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    04 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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