Rosily v RSPCA[2022] QDC 32

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   Following a 3-day hearing in the Beenleigh Magistrates Court, on 27 May 2021, Gila Golda Rosily was convicted of animal welfare offences. She was found guilty of five (5) counts of failure to provide appropriate accommodation or living conditions under ss 17(2) and 17(3)(a)(ii) of the Animal Care and Protection Act 2001 (Qld) (ACP Act) and four (4) counts of failure to provide appropriate treatment for injury under ss 17(2) and 17(3)(a)(iii) of the ACP Act. 
2. [2]
   She was sentenced to a good behaviour bond requiring recognisance in the amount of $1,000.00 for 12 months from 27 May 2021.
3. [3]
   An order was also made prohibiting Miss Rosily from possessing, purchasing or otherwise acquiring any poultry other than poultry as approved from time to time in writing by the RSPCA QLD Chief Inspector (the prohibition order), which remains in force until 26 May 2024.
4. [4]
   On or about 31 May 2021, Miss Rosily instituted an appeal under s 222 of the Justices Act 1886 (Qld) (Justices Act). 
5. [5]
   During the hearing of this appeal Miss Rosily indicated that she was in pain and I asked if she wished to proceed with the hearing that day.  Miss Rosily advised that she wished to proceed with the appeal despite her discomfort.

Amended notice of appeal

6. [6]
   The notice of appeal dated 31 May 2021 indicated that the order that Miss Rosily sought was “prohibition order, disposal”.  No grounds of appeal were stated in the notice of appeal.  In written submissions in support of her application to adduce further evidence, Miss Rosily said she intended to rely upon this new evidence to prove her innocence.  The RSPCA prepared for the hearing of the appeal on the basis that the appeal was against the conviction, the sentence and the prohibition order.  Following a discussion Miss Rosily’s notice of appeal was amended pursuant to s 224(1)(c) of the Justices Act.  The appeal proceeded on the basis that it was against the conviction, the sentence and the prohibition order. 

Admission of new evidence on an appeal

7. [7]
   An appeal initiated under s 222 of the Justices Act is by way of rehearing on the original evidence given in the substantive proceeding before the learned Magistrate.^[1]  In an appeal proceeding such as this, the judge hearing the matter is able to make their own determination on the evidence.  However, in making a determination, the appeal judge ought to have regard to the decision of the learned Magistrate and bear in mind any advantage the learned Magistrate, being the trial judge, had in seeing and hearing the witnesses give evidence at first instance.^[2]  
8. [8]
   However, the court may give leave to adduce fresh, additional or substituted evidence if the court is satisfied there are special grounds for giving leave.^[3]  The issue of what amounts to special grounds was considered by the Court of Appeal in the decision of Pavlovic v Commissioner of Police.^[4]  In that matter the Court observed that the considerations relevant to the existence of special grounds for granting leave included:

   1. (a)
      whether the evidence relied on could, with reasonable diligence, have been produced by the defendant at the trial;
   2. (b)
      whether the evidence was apparently credible or at least capable of belief; and
   3. (c)
      whether the evidence, if believed, might reasonably have led the tribunal of fact to return a different verdict.^[5]
9. [9]
   Where leave has been granted by the court, the appeal is then by way of rehearing on the original evidence and on the new evidence adduced.^[6]
10. [10]
    On 2 November 2021, Miss Rosily filed an application seeking leave to adduce additional evidence.  She asked the court to issue subpoenas to seven witnesses to adduce additional evidence and also filed four affidavits in her name on 2 November 2021, 8  November 2021, 10 November 2021 and 16 November 2021.  
11. [11]
    The parties provided written and oral submissions in relation to the application to adduce additional evidence.  This application was dealt with prior to the substantive appeal proceeding.
12. [12]
    In her affidavit filed on 2 November 2021 Miss Rosily refers to an application for a claim for compensation for poultry removed from her property by the RSPCA, for injuries she  claims to have suffered as a result of the RSPCA’s entry to her property with an expired warrant and for payment for witnesses. 
13. [13]
    In the affidavit filed on 8 November 2021 Miss Rosily says she trusted Mr Hayes to  provide her with animals and that she had never before had issues with the product that he provided.  This affidavit also exhibits a New Zealand criminal record check for a person named Gila Sue. 
14. [14]
    The affidavit filed on 10 November 2021 purports to provide proof of service of the previous affidavit and exhibits a screen shot in relation to monetary orders made in the Beenleigh Magistrates Court on 27 May 2021 and a Facebook page screenshot purporting to report on Miss Rosily’s ban from owning poultry which she says is defamatory. 
15. [15]
    The affidavit of Gila Golda Rosily filed on 16 November 2021 is an affidavit of service.  It is unclear what was purportedly served. 
16. [16]
    The RSPCA opposed the application to allow new evidence.  In relation to the affidavit material it said that neither the affidavits nor the exhibits addressed the matters relevant to the issues in the appeal, and they bear no connection to the list of proposed witnesses and how their evidence was relevant to the appeal.
17. [17]
    None of the affidavits deal with the proposed evidence of the additional witnesses.  I am satisfied that the affidavits do not relate to the issues in the appeal.
18. [18]
    After the conclusion of the hearing, on 2 February 2022, Miss Rosily filed a further affidavit exhibiting medical reports and a claim for compensation for an injury to her knee.  I am satisfied that this affidavit is not relevant to the matters in issue in the appeal.
19. [19]
    Miss Rosily also asked the court to issue 7 subpoenas directed to various people, requiring their attendance to give evidence in this appeal.  In written submissions Miss Rosily indicated the evidence she proposed to adduce from each of these witnesses. In  particular, she said that:

    1. (a)
       Dr Asif Shahzad would give “a qualified opinion of me and my son’s state before, during and after the fact of the false claims against me by the RSPCA”;
    2. (b)
       Mr C Dugluss would give character evidence about her good conduct and upstanding reputation within the community and her love and kindness towards animals;
    3. (c)
       Mr Michael Dwyer would provide character reference in relation to her good conduct;
    4. (d)
       Mr Matthew Haigg would refute the claim by the RSPCA that she was cruel to animals or that she ever sold sickly animals;
    5. (e)
       Mr Redge would refute the claim by the RSPCA due to his own dealings with her at Mt Gravatt market;
    6. (f)
       Mr Peter Williams would give evidence that he had been paid as her lawyer but failed to deal fairly with her leaving her unrepresented in the court below; and
    7. (g)
       She could prove through evidence from Mr Peter Hayes that the animals in question which he sold her were sickly prior to her purchase of them.
20. [20]
    In relation to the proposed witnesses the RSPCA said that there was no evidence of:

    1. (a)
       who the witnesses are;
    2. (b)
       whether Miss Rosily had obtained a proof of evidence from the witnesses;
    3. (c)
       whether they were willing to participate in the proceedings;
    4. (d)
       whether they could have been called at trial;
    5. (e)
       whether the evidence is credible; and
    6. (f)
       whether it would have led to an acquittal of one, some or all of the charges.
21. [21]
    Following the RSPCA’s evidence on the second day of the hearing at first instance, the matter was adjourned to allow Miss Rosily time to produce witnesses in person for the third day of the hearing.^[7]
22. [22]
    At the commencement of Day 3, Miss Rosily indicated that her proposed witnesses had attended at court but had been turned away due to COVID-19.^[8]  Her Honour indicated that the evidence could be given by telephone.^[9]  After much discussion^[10] Miss Rosily determined to call five witnesses, Dr Love, Mr Hegg (perhaps this is Mr Haig whom Miss Rosily now proposes to subpoena), her son, Mr Mares and Mr Winder.^[11]  She decided not to call the solicitor, Mr Williams.^[12]
23. [23]
    The matter was stood down to allow Miss Rosily time to organise the witnesses.^[13] After hearing evidence from Talel Rosily^[14] and Dean Winder,^[15] her Honour explained that  Miss Rosily did not have to call evidence – that the RSPCA had to prove the case beyond reasonable doubt.^[16]  The matter was again stood down to allow Miss Rosily time to  coordinate her witnesses.  Evidence was given by Patrick Zaporata^[17] and Joshua Dunn.^[18]  Miss Rosily determined not to call Dr Love.^[19]  A number of unsuccessful attempts were made to contact Mr Mares and Mr Hegg to give evidence by telephone.^[20]  The matter was again stood down. 
24. [24]
    Upon resuming Miss Rosily advised the Court that she would have ‘loads more people’ if she was granted an adjournment.  As the matter had already proceeded for 3 days her  Honour declined to grant a further adjournment.^[21]  After unsuccessful efforts were made to contact Ms Taylor to give evidence by telephone, Miss Rosily closed her  case.^[22]
25. [25]
    When asked why she did not arrange these witnesses to give evidence at first instance Miss Rosily responded that it was not the right timing with COVID-19 and the court being closed.  It is apparent from the transcript that significant efforts were made to  contact each of Miss Rosily’s proposed witnesses.  The hearing proceeded for 3 days before the learned Magistrate, and these witnesses were not called.  No satisfactory explanation is now given for that failure.  Thus, it seems that, with reasonable diligence at least some of the witnesses could have been called at the trial but were not.
26. [26]
    I am not persuaded by the brief outline of the nature of the evidence indicated by Miss Rosily in her submissions, that the evidence proposed from the witnesses is relevant to the issues in the appeal. Nor am I persuaded that the matters addressed in the four affidavits are relevant to the matters in issue.  Further, if I have erred on this point, then I am not satisfied, on the material avaiable, that the evidence in the affidavits or from the proposed witnesses is credible or might have led the learned Magistrate to return a different verdict.
27. [27]
    It follows that I find that there are no special grounds to warrant the granting of leave to  adduce fresh evidence. 
28. [28]
    In the circumstances, the application for leave to adduce evidence was dismissed at the hearing.

This appeal

29. [29]
    The principles relevant to the consideration of this appeal are set out above.
30. [30]
    The purpose of the appeal proceeding is to determine whether the learned Magistrate erred in convicting or sentencing Miss Rosily or in imposing the prohibition order made on 27 May 2021 at Beenleigh Magistrates Court.  As is consistent with a proceeding of  this nature, the onus is on the appellant to show that there is an error in the decision under appeal.
31. [31]
    In this appeal, the court must have regard to all of the original evidence adduced and  determine whether the orders made by the learned Magistrate are the result of some legal, factual or discretionary error.
32. [32]
    On hearing the appeal, this court may confirm, set aside or vary the appealed order.^[23]  The court is also able to make any other order in the matter it considers just under s 225 of the Justices Act.  If the court sets aside an order, the matter may be remitted back to the Magistrates Court so that it can be reheard or reconsidered.
33. [33]
    To prove an offence against s 17 of the ACP Act, it must be established beyond reasonable doubt:

    1. (a)
       that the defendant owed the animal a duty of care; and
    2. (b)
       that the defendant breached the duty of care by failing to take reasonable steps to:

       1. provide appropriate living conditions for the animal; or
       2. provide appropriate treatment for disease or injury.
34. [34]
    A person in charge of an animal owes it a duty of care.^[24]  A person is in charge of an animal if the person:

    1. (a)
       owns or has a lease, license or other proprietary interest in the animal; or
    2. (b)
       has custody of the animal; or
    3. (c)
       is employing or has engaged someone who has custody of the animal and the custody is within the scope of the employment or engagement.^[25]
35. [35]
    Custody is defined to include “care and control of the animal”.^[26] 

Proceedings below

36. [36]
    The trial took place over three days – 14 December 2020, 1 March 2021 and 27 April 2021.  Miss Rosily pleaded not guilty to all charges.
37. [37]
    The RSPCA called nine witnesses in support of the charges:

    1. (a)
       Tahlia Guggi – civilian witness;
    2. (b)
       Benjamin Alsop – civilian witness;
    3. (c)
       Katie Bintine – civilian witness;
    4. (d)
       Laura Cheshire – civilian witness;
    5. (e)
       Senior Constable Bonita O'Farrell
    6. (f)
       Inspector Prue Kearney;
    7. (g)
       Anna Argandona – veterinarian;
    8. (h)
       Timothy Portas – veterinarian;
    9. (i)
       Inspector Sommer Heath-Crilley
    10. (j)
        Peter Ko – veterinarian;
    11. (k)
        Inspector Samuel Beavon; and
    12. (l)
        Meaghan Barrow – veterinarian
38. [38]
    As indicated above, after the prosecution closed its case, Miss Rosily was advised as to her options.  The learned Magistrate observed that Miss Rosily did not have to give evidence or adduce evidence on her behalf and that by calling evidence the burden of proof did not shift to her.  Rather the prosecution had the burden of proving each element beyond reasonable doubt. 
39. [39]
    Miss Rosily gave evidence herself and called four witnesses:

    1. (a)
       Talel Rosily, Miss Rosily’s son; ^[27]
    2. (b)
       Dean Winder, friend;^[28]
    3. (c)
       Patrick Zaparota, friend;^[29] and
    4. (d)
       Joshua Dunn, friend.^[30]
40. [40]
    Her Honour found that the RSPCA inspectors and vets gave credible and reliable evidence, that they had the requisite expertise and experience to give the professional opinions that they gave.  She accepted the opinions of Dr Barrow, Dr Ko, Dr Portas and Dr Argandona.  Miss Rosily did not appear to challenge the evidence of the veterinarians or suggest that they were not impartial. 
41. [41]
    Her Honour did not accept Miss Rosily’s evidence that she delivered appropriate care to the animals.  She ‘found the defendant’s evidence unresponsive and not at all compelling.  At times, she gave unresponsive answers to questions posed under cross-examination.  Her account regarding the timing of her possession of the animals seemed at odds with some of the information she gave to the inspectors during the search of her property on 17 January 2019’.^[31]   She did not find the defendant’s evidence to be credible or reliable or that it provided a satisfactory answer to the prosecution’s case. 
42. [42]
    The evidence of Miss Rosily’s witnesses did not impact upon the proof of the charges or raise a defence.
43. [43]
    The RSPCA adduced evidence to establish, in respect of each charge, that Miss Rosily was in charge of the relevant animals and therefore owed them a duty of care.^[32]
44. [44]
    On the evidence her Honour was satisfied beyond reasonable doubt of the elements of each of the charges and found Miss Rosily guilty of each of them.

General grounds of appeal

45. [45]
    In addition to her concerns regarding the specific counts which are addressed later, Miss Rosily raised some matters she considered errors at first instance. These were that:

    1. (a)
       She was denied natural justice as her lawyer did not turn up for any of the four days before the court;
    2. (b)
       Because she was unwell on 14 December 2020, 1 March 2021 and 27 April 2021 when this matter was being heard and she provided medical certificates to the court and to the RSPCA, she should have been given longer to recover; and
    3. (c)
       The RSPCA attended her property pursuant to a warrant that was expired. 
46. [46]
    Miss Rosily suggested that she should have been given time to have her legal representative in attendance.  It is apparent from the transcript of the proceedings at first instance that the solicitor to whom she was referring was not representing her at the trial but had been purportedly subpoenaed by her to give evidence at the trial.^[33]  Miss Rosily accepted before me that the solicitor was not engaged to act for her at the trial.^[34] 
47. [47]
    Thus, Miss Rosily did not have a lawyer engaged at the time of the trial and I find there was no error in this regard. 
48. [48]
    In relation to Miss Rosily’s submission that she was not well at the time of the trial and that the matter should not have proceeded, evidence was heard over three days being 14  December 2020, 1 March 2021 and 27 April 2021.  Sentencing took place on 27  May 2021. 
49. [49]
    Miss Rosily told me she was unwell on each of those days.  She said that she went to the Magistrates Court not feeling very well, limping, crying and in pain such that she took painkillers. 
50. [50]
    This issue was raised during the course of the hearing of the appeal.  In relation to Miss Rosily’s submission that she provided medical certificates to the Court and to the RSPCA, Mr Boyd was able to identify an email sent by Miss Rosily to the Beenleigh Magistrates Court which provided:

“Dear Sir/Madam

If I have a medical certificate and still attend but not comfortably and believe court can come to a sick person’s environment so that those witnesses can do.  I object to witness phone call and they should appear to give evidence.

Thank you

Kind regards –”

51. [51]
    Mr Boyd submitted that was the only item that could be broadly categorised as raising an issue with respect to Miss Rosily’s fitness prior to trial, in the limited time available to him. 
52. [52]
    An examination of the Magistrates Court file revealed three medical certificates had been emailed by Miss Rosily to the Registrar of the Beenleigh Magistrates Court.  The  covering email does not indicate they were emailed to the RSPC at the same time.
53. [53]
    A letter from Dr Jean Railton of Jimboomba Medical Centre dated 24 May 2021, indicates that the doctor examined Miss Rosily on that day and

“She reports that she was upset after reading an email at 12.37pm today.  She was examined and an ECG was performed.  Initially her BP was elevated slightly but on re-examination it returned to normal.  Her ECG was normal.”

54. [54]
    A medical certificate on the file from Jimboomba Medical Centre, Dr Karen Love, dated 20 July 2020, relates to an injury to Miss Rosily’s left knee, this is some months before the hearing. 
55. [55]
    A medical certificate for Centrelink purposes signed by Dr Karen Love which indicates that Miss Rosily was unfit for work/study from 5 May 2020 to 5 August 2020 due to  pain and reduced mobility in the left knee.  Again, this is some months before the first day of the trial. 
56. [56]
    There are no other medical certificates apparent from an examination of the Magistrates Court file.  These medical certificates do not suggest Miss Rosily was unwell on the days of the trial.
57. [57]
    Reference was made by Miss Rosily to her health in closing submissions before her  Honour.^[35]  These included a reference to past surgery, and an incident in which she  alleges she sustained injuries for which she held the RSPCA responsible. 
58. [58]
    There was no evidence before the learned Magistrate that Miss Rosily was not well at  the time of the hearing.  The transcript reveals that Miss Rosily did not seek an adjournment for health reasons during the trial.  I do not find the learned Magistrate erred in this regard. 
59. [59]
    The warrant that Miss Rosily took me to was dated 16 January 2019 and ceased to have effect at 6.00pm on 23 January 2019.^[36]  A handwritten note at page 2 indicates it was executed at 10.30am on 17 January 2019.  It became apparent that when saying the warrant was expired Miss Rosily was talking about subsequent attendances by the RSPCA at her property rather than the execution of this warrant.  I am satisfied that the warrant relevant to these charges was not expired at the time that it was executed.  Accordingly, I do not accept this is an error. 
60. [60]
    Miss Rosily also raised issues with respect to each count which are addressed below.

Count 1

61. [61]
    This charge was that on 11 November 2018, Miss Rosily being in charge of five white juvenile Indian Runner ducks, breached her duty of care to the ducks by failing to provide appropriate living conditions for them. 
62. [62]
    The particulars are that Miss Rosily confined the animals in a cage without shade or  shelter.
63. [63]
    At the trial, Miss Tahlia Guggi,^[37] Mr Benjamin Alsop,^[38] and Miss Katie Buntine^[39] each gave evidence of observing the animals in the care of Miss Rosily on 11 November 2018 at the Ipswich Showgrounds.  They each observed the poor conditions of the animals and the small cage they were being kept in, which was exposed to the sun.  They purchased the ducks from Miss Rosily, and Mr Alsop and Miss Buntine took the animals to the RSPCA.^[40] 
64. [64]
    Her Honour had before her Exhibit 1, being photographs taken by Ms Guggi which included photographs of the conditions of the ducks in the stalls and Exhibit 2 being photographs taken by Mr Alsop.  
65. [65]
    In evidence, Mr Alsop said:

“When we first saw them, they were in sunshine, in the sun itself.  But over time, I think the shade came across.  I can’t remember what time that was, but they were in full sun and then moved into shade.  And that’s I think why we were a bit shocked.  We were shocked that the cage was actually sitting in the open – in the sunshine of full sun.  I can’t remember exactly what time it was they moved to shade, but that’s what we were a bit shocked about.”^[41]

66. [66]
    Miss Rosily told her Honour that she had only the ducks in her possession for a short time.^[42]  No explanation was offered as to why the animals were kept in the fashion they were.^[43]
67. [67]
    When asked to identify the error of the Magistrate, Miss Rosily submitted that:

    1. (a)
       As it was alleged the offence was committed at the Ipswich Markets it should be the responsibility of the Ipswich Markets to action the complaint and the Ipswich Market had not done so;
    2. (b)
       It was not her fault because she bought the animals in that condition;
    3. (c)
       By reference to the photographs at page one of six, two of six and six of six of Exhibit 2 it was apparent that there was shade on the ground over the cage and water in the cage and that the witnesses were not there the whole day; and
    4. (d)
       By reference to page 2 of 6 of Exhibit 2 there was a bottle of water outside the cage.
68. [68]
    Ground (a) is not relevant to the matters in issue. 
69. [69]
    I do not accept Miss Rosily’s submission that it was not her fault as she bought the animals in that condition.  She does not dispute that the animals were in her charge at the relevant time.  Accordingly, she owed them a duty of care. 
70. [70]
    As to Miss Rosily’s submission that the animals were in a cage in the shade, the evidence of Mr Alsop was that the animals were in the sun when he first noticed them but that over time some shade came across the cage.^[44]  The particulars of this count relate to the animals not having shade or shelter. Whether they had access to water was not in issue.  
71. [71]
    Having considered the evidence I am satisfied that the Magistrate made no error in finding this count proved beyond reasonable doubt.

Count 2

72. [72]
    This charge was that from 9 November 2018 to 11 November 2018, Miss Rosily being a person in charge of five white juvenile Indian Runner ducks, breached her duty of care to the animals by failing to take reasonable steps to provide for the animals’ needs for  treatment of disease or injury in a way that is appropriate.
73. [73]
    The particulars of this charge are that Miss Rosily failed to provide treatment for coccidia and disease or injury causing ocular discharge and mucous material around the choana.
74. [74]
    The evidence set out in paragraphs [63] – [65] in relation to Count 1 was also relied upon in respect of this count.
75. [75]
    Following the sale transaction, Dr Anna Argandona,^[45] a veterinarian, examined the five ducks.  In Dr Argandona’s opinion, each of the five ducks were missing feathers, had  dry material around their eyes, evidence of anaemia, were under-weight and had parasites.  She further opined that a reasonable person would have observed the conditions of the animals and obtained treatment for them.^[46]
76. [76]
    Before her Honour, Miss Rosily’s evidence was that she had only had the ducks in her possession for a short time.  She offered no explanation as to why no treatment was  sought for them.^[47]
77. [77]
    When asked to identify the error of the Magistrate, Miss Rosily made submissions to the following effect:

    1. (a)
       That she had purchased the animals in that condition;
    2. (b)
       That the ducks may have become ill after leaving her care;
    3. (c)
       That the photographs comprising Exhibit 2 to show that the ducks were in good condition; and
    4. (d)
       That Miss Rosily was not convinced that the ducks in question were even hers.
78. [78]
    I do not accept Miss Rosily’s submission that it was not her fault as she bought the  animals in that condition.  Although she also suggests that the ducks may not have been hers the evidence was that she sold them to Ms Guggi, Mr Alsop and Miss Buntine.   Miss Rosily gave evidence at trial that the ducks were in her possession. On the evidence she was in charge of the animals and therefore owed them a duty of care.
79. [79]
    Miss Rosily’s submission that the ducks were not ill in her care but may have later become ill is contrary to the evidence.
80. [80]
    Having considered the evidence I am satisfied that the Magistrate made no error in  finding this count proved beyond reasonable doubt. 

Count 3

81. [81]
    This charge was that from 13 January 2019 to 15 January 2019, Miss Rosily being a  person in charge of a domestic chicken, breached her duty of care to the chicken by  failing to take reasonable steps to provide for its needs for treatment of disease or injury in a way that is appropriate.
82. [82]
    The particulars of this count are that Miss Rosily failed to provide treatment for disease or injury causing respiratory distress and shock, and causing the bird to be barely responsive and unable to stand.
83. [83]
    Mrs Cheshire’s evidence^[48] was that on 12 January 2019 she had Facebook contact with Miss Rosily about buying watermelons.  On 15 January 2019 she attended Miss Rosily’s residence at about 11.30am.  She called out and knocked on the door but no-one answered.  She accessed the property to locate Miss Rosily (who was not there) and observed two chickens, one dead and one alive, in a wooden stove, surrounded by food scraps and ash.  She observed the live chicken was panting, with maggots through its  feathers and in her words “not good”.  She took the live chicken to a vet at Jimboomba and called the RSPCA. 
84. [84]
    The Magistrate had before her Exhibits 3 and 4.  Exhibit 3 comprised photographs taken by Mrs Cheshire of the chicken and Exhibit 4 comprised screenshots of the messages between Miss Rosily and Mrs Cheshire making arrangements for Mrs Cheshire to come to Miss Rosily’s property to buy watermelons. 
85. [85]
    Dr Peter Ko, a veterinarian employed at the Jimboomba vet surgery, gave evidence about this chicken.  He examined the chicken the day it was brought to him.  He said it was in  severe shock, was dehydrated and covered in mites and maggots.^[49]  The chicken’s neck was flexed towards the spine.  The crop was empty which meant that no food had  been taken by the animal for some time.  He gave the animal fluids and treated it  for mite and maggot infestation.  His evidence was that the chicken should have received medical attention sooner.
86. [86]
    Dr Meaghan Barrow, who is employed with the RSPCA, examined the animal.  Her  evidence was that it was in respiratory distress, had an arched neck, discharge from its mouth and nostrils and was covered in maggots and that it was euthanised due to the severity of its condition. 
87. [87]
    Miss Rosily said in the trial that no-one came to her property that day, but that if Mrs  Cheshire did, she was trespassing on her property and stole the chicken. Further, Miss Rosily said that she did not think the chicken belonged to her.^[50]
88. [88]
    When asked to identify the error of the Magistrate in respect of this Count, Miss Rosily submitted the following:

    1. (a)
       She went through her Facebook records and could not find a record of any contact with Mrs Cheshire;
    2. (b)
       If Mrs Cheshire had corresponded with her about buying watermelons, which she disputed, she did not know what address Mrs Cheshire went to but that it may not have been Miss Rosily’s address;
    3. (c)
       She was not selling watermelons on 15 January 2019;
    4. (d)
       In her opinion, there could not have been maggots on the chicken because if  there had been the chicken would have eaten them; and
    5. (e)
       Roadworks at her place meant that she could not access her property on 17 January 2019.  When it was pointed out that Count 3 related to 13-15 January 2019, she said the roadworks were there “around that time” and that there were access difficulties associated with her house;
89. [89]
    Miss Rosily’s submissions regarding the Facebook posts and selling watermelons were contrary to the evidence before her Honour.  Further, there was unchallenged evidence before her Honour from Dr Ko, Dr Barrow and Mrs Cheshire that there were maggots through the chicken’s feathers. There was no evidence before her Honour in relation to the impact of any roadworks on access to Miss Rosily’s property at the relevant time.  The evidence was that the chicken was on Miss Rosily’s property and should have received medical treatment.
90. [90]
    Having considered the evidence I am satisfied that the Magistrate made no error in  finding this count proved beyond reasonable doubt.

Count 4

91. [91]
    This count was that on 17 January 2019, Miss Rosily being a person in charge of eight ducks breached her duty of care to the animals, by failing to take reasonable steps to provide for the animals’ needs for appropriate living conditions.   
92. [92]
    The particulars of this offence were that Miss Rosily confined the animals in a cage that was unhygienic, exposing the ducks to risk of disease including pododermatitis and resulting in the ducks having poor plumage that was dirty.
93. [93]
    The evidence before her Honour was that Inspector Prue Kearney^[51] executed a warrant on 17 January 2019 at Miss Rosily’s residence.  Inspector Kearney observed eight ducks in an enclosure where there was a build-up of faeces, the swimming water was dirty, there was no clean drinking water, no food available and the animals were dirty.^[52]  She  said these were not appropriate conditions for the animals.  Exhibit 6 shows the living conditions of the ducks.
94. [94]
    Officer Bonita O'Farrell gave evidence of attending Miss Rosily’s residence to execute a warrant.^[53]  Miss O'Farrell observed that there was insufficient water for the ducks and that their enclosure was unclean.  The search was recorded by her body-worn camera.  The recording was tendered as Exhibit 5, and showed the living conditions of the ducks and Miss Rosily pulling up a hose to fill up the containers for the ducks. 
95. [95]
    Dr Tim Portus, an RSPCA vet who examined the ducks, gave evidence.  He found their feathers were in poor condition, particularly the tail feathers, which damage he said was caused by too small an enclosure or an enclosure of inappropriate construction, for example wire.  His notes comprised Exhibit 8 before Her Honour.
96. [96]
    In respect of this count Miss Rosily gave the same explanation as that which she provided concerning the ducks that were the subject of charges 1 and 2.
97. [97]
    When asked to identify the error of the learned Magistrate in respect of this count, Miss  Rosily submitted the following:

    1. (a)
       That the ducks were removed from her property but as she was not there at  the time she does not know precisely what was removed, however she did not recall having eight ducks;
    2. (b)
       She reported the ducks stolen; 
    3. (c)
       By reference to page 22 of Exhibit 6 before Her Honour, Miss Rosily queried how the ducks at the top were clean and at the bottom were dirty. 
98. [98]
    The clear evidence before her Honour was that the ducks in Miss Rosily’s charge were housed in unhygienic conditions.
99. [99]
    Having considered the evidence I am satisfied that the Magistrate made no error in  finding this count proved beyond reasonable doubt.

Counts 5

100. [100]
     This count was that on 17 January 2019, Miss Rosily being a person in charge of one quail at her residence, breached her duty of care to the animal, by failing to take reasonable steps to provide for the animal’s needs for appropriate living conditions. 
101. [101]
     The particulars of this count are that Miss Rosily confined the animal in a small cage that was unhygienic with inappropriate substrate and no access to appropriate water.
102. [102]
     Inspector Kearney gave evidence that the quail was confined to a cage that was unhygienic with inappropriate substrate and no access to water.  Exhibit 6 included photographs of the quail.  She said the only food available was mixed in with the faeces and the water was green with sediment and unclean.  Inspector Heath-Crilley’s evidence was that the water was tinged green. 
103. [103]
     At trial Miss Rosily indicated that the quail was not hers but went on to say that she had bought it in that condition on the Monday before the search.  She also said she bought the quail from the sales and did not know how long it had been on her property.^[54]
104. [104]
     When asked to identify the errors which the learned Magistrate made, Miss Rosily said that:

     1. (a)
        The water to the property is from the dam and the tank. It is poor quality and dirty;
     2. (b)
        The water plants depicted in the water indicate that the water was not poor quality;
     3. (c)
        She did not leave the cage in the condition described;
     4. (d)
        The cage was kept open so the quail could get out of the cage;
     5. (e)
        The animal was dirty because she could not prevent dust from nearby roadworks entering her property and the cage.
105. [105]
     Miss Rosily’s assertions regarding the quality of the water are inconsistent and not supported by evidence. The other claims are contrary to the evidence before her Honour.  Her Honour accepted that the animal was in Miss Rosily’s charge and was not provided with appropriate living conditions. 
106. [106]
     Having considered the evidence I am satisfied that the Magistrate made no error in  finding this count proved beyond reasonable doubt.

Count 6

107. [107]
     This count was that on 17 January 2019, Miss Rosily being a person in charge of one white Leghorn chicken and five baby chicks at her residence, breached her duty of care to the animals, by failing to take reasonable steps to provide for the animals’ needs for appropriate living conditions.   
108. [108]
     The particulars of the charge are Miss Rosily confined the animals in a small cage with no appropriate substrate, no access to appropriate water, and where the animals were unable to display normal patterns of behaviour.
109. [109]
     Inspector Kearney gave evidence that there was a cage holding a hen and five chicks with old hay, faeces and food.  She said that there was a container outside the cage and a water container inside the cage which was unclean, brown and cloudy with grit in it.  There was no food that was not contaminated by parasites.  Exhibit 6, pages 64 – 73 were relevant. 
110. [110]
     Inspector Heath-Crilley’s evidence was that the water in the cage was putrid and brown, that there was a build up of faeces and no food available.
111. [111]
     Miss Rosily’s evidence was that she bought the hen and chicks at markets and that she  liked to take them to the markets because the children at the markets liked playing with the chicks.
112. [112]
     When asked to identify the errors made by the learned Magistrate, Miss Rosily said that:

     1. (a)
        She bought the chickens from Hayes & Co;
     2. (b)
        The chickens are free-range and so can go to the dam to get water if they need it;
     3. (c)
        The nearby roadworks caused dust at her property;
     4. (d)
        The faeces in the cage indicated that the animals had been fed, because if  they had not been fed they would not excrete waste and the evidence was there was a build-up of faeces;
     5. (e)
        Exhibit 6, photo 130 shows that the chickens did have water and that there was food ‘all over the floor’; and
     6. (f)
        She did not leave the chickens and their cages in the condition described. Rather, a combination of the nearby roadworks and the chickens scratching in the dirt caused the cages to be in that condition.
113. [113]
     I do not accept Miss Rosily’s submission that it was not her fault as she bought the  animals in that condition.  She does not dispute that the animals were in her charge at the relevant time.  Accordingly, she owed them a duty of care.
114. [114]
     Miss Rosily’s submissions are not supported by the evidence at the trial. 
115. [115]
     Having considered the evidence I am satisfied that the Magistrate made no error in  finding this count proved beyond reasonable doubt.

Count 7

116. [116]
     This count was that on 17 January 2019, Miss Rosily being a person in charge of two roosters at her residence, breached her duty of care to the animals, by failing to take reasonable steps to provide for the animals’ needs for appropriate living conditions. 
117. [117]
     The particulars of the charge are Miss Rosily confined the animals in a small cage with  no appropriate substrate, no access to appropriate water, and where the animals were unable to display normal patterns of behaviour.
118. [118]
     Inspector Kearney gave evidence that she observed two roosters housed in a small crate, too small for one rooster, let alone two roosters.  The roosters could not open their wings, there was no appropriate access to water and the roosters were at risk of attacking each other.^[55]  The substrate on the bottom of the cage had old hay, a build-up of faeces and  dander, which is old feathers and skin.
119. [119]
     Inspector Heath-Crilley gave evidence that two roosters should not be together in a cage as they will harm each other.  She gave evidence that Miss Rosily told her that one rooster had been in her possession for two weeks and that the other rooster had been dumped on her property two months earlier.  She further said that Miss Rosily told her that the large rooster has been in her possession since Christmas and was going to the sales on Monday.
120. [120]
     Miss Rosily gave evidence that she was unsure how or when she obtained the roosters, they would only have been with her for a short time and gave a confused explanation as to why the two roosters were kept in the cage.^[56]
121. [121]
     When asked to identify the error of the learned Magistrate, Miss Rosily said:

     1. (a)
        She bought the two roosters from Hayes & Co;
     2. (b)
        She must have put them quickly in that cage to transport them elsewhere (because people were coming to her place to re-home the roosters) so they were only in the cage for between 10 minutes and one hour;
122. [122]
     Miss Rosily told me that she did not understand the evidence which she gave during the  trial.
123. [123]
     I do not accept Miss Rosily’s submission that it was not her fault as she bought the  animals in that condition.  She does not dispute that the animals were in her charge at the relevant time.  Accordingly, she owed them a duty of care.  Her submission that  the animals must have been in the cage temporarily is not consistent with her evidence at the trial.
124. [124]
     The evidence established beyond reasonable doubt that the animals were in Miss  Rosily’s charge and were not provided appropriate living conditions.  I am satisfied that the Magistrate made no error in finding this count proved beyond reasonable doubt.

Count 8

125. [125]
     This count was that on 15 January 2019 to 17 January 2019, Miss Rosily being a person in charge of one rooster, breached her duty of care to the animal, 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.
126. [126]
     The particulars of the charge were that Miss Rosily failed to provide treatment for  disease or injury causing signs of respiratory illness, including a foul smell emanating from the pharynx.
127. [127]
     The rooster the subject of this count was one of the same roosters the subject of Count 7. 
128. [128]
     Dr Portas, a veterinarian, examined the rooster and observed it to have a foul smell coming from its pharynx which was consistent with respiratory disease,^[57] and  no  treatment had been administered.  Exhibits 7 and 12 were relevant to Dr Portas’ evidence.
129. [129]
     Miss Rosily provided no explanation for the failure to provide treatment to the rooster.^[58] 
130. [130]
     As to the error Miss Rosily said the learned Magistrate made, Miss Rosily said she bought the rooster from Hayes & Co and did not know it was unwell at the time of  purchase.  I do not accept Miss Rosily’s submission that it was not her fault as she bought the animal in that condition.  She does not dispute that the animals were in her charge at the relevant time.  As the animal was in her charge, she owed it a duty of care. 
131. [131]
     Having considered the evidence, I am satisfied that the learned Magistrate made no error in finding this count proved beyond reasonable doubt.

Count 9

132. [132]
     This count was that from 15 January 2019 to 17 January 2019, Miss Rosily being a  person in charge of eight chickens at her residence, breached her duty of care to the animals, by failing to take reasonable steps to provide for the animals’ needs for treatment of disease or injury in a way that is appropriate.
133. [133]
     The particulars of the charge are that Miss Rosily failed to provide treatment for disease or injury causing symptoms of respiratory illness.
134. [134]
     Dr Portas examined the chickens which were seized from Miss Rosily’s residence.  He  observed them to each be suffering from respiratory illness which ought to have been the subject of veterinary treatment.^[59]  He said each of the eight chickens had signs of respiratory illness including discharge from the nostrils, dried discharge on the feathers, increased respiratory rate or mucous in the pharynx.  All were given antibiotics.  On  some animals dried faeces was present on the feathers near the animals’ vents.  The animals were treated for parasites.  Dr Portas’ evidence was that he would expect the carer of these animals to seek veterinary treatment for the respiratory illness and it was obvious that the welfare of the animals was not great due to the discharge evident around their bodies.
135. [135]
     Inspector Heath-Crilley also gave evidence about these chickens and said that Miss Rosily told her that she had had the chickens for a long time and that worming was due the next week.
136. [136]
     Miss Rosily told the learned Magistrate that she did not recall how she acquired the  chickens and could not remember much about them.  She did not offer any evidence about why they had not received veterinary treatment.^[60]
137. [137]
     Before me Miss Rosily said that:

     1. (a)
        The chickens came from Hayes & Co, that she was not certain of their health condition and that she needed to be more careful in the future when buying animals;
     2. (b)
        The air quality at her home due to the chemicals in the air including asbestos and chemical weedkiller (sprayed in association with the nearby roadworks) may have caused the respiratory illness and the learned Magistrate erred in not allowing in evidence about these chemicals; and
     3. (c)
        From her observations of the photograph the chickens did not appear to be unwell.
138. [138]
     I do not accept Miss Rosily’s submission that it was not her fault as she bought the  animals in that condition.  She does not dispute that the animals were in her charge at the relevant time.  Accordingly, she owed them a duty of care. 
139. [139]
     There was no evidence before her Honour about air quality.  Miss Rosily accepted that she had not asked the Magistrate to admit evidence of this.^[61] 
140. [140]
     Miss Rosily’s final submission is not supported by the evidence at the trial.
141. [141]
     Having considered the evidence I am satisfied that the Magistrate made no error in  finding this count proved beyond reasonable doubt.
142. [142]
     In the circumstances I am not satisfied that the Magistrate erred in convicting Miss  Rosily of each offence.  The appeal against conviction is dismissed.

Appeal against sentence

143. [143]
     Miss Rosily also appeals against sentence.
144. [144]
     The court ought not interfere with a sentence unless an error is identified in the exercise of discretion. 
145. [145]
     Sentencing involves the exercise of discretion by the sentencing judge.  As observed by Keane JA, as he then was, in R v Lawley [2007] QCA 243 at [18]:

“It is necessary to state that the sentence imposed by the learned sentencing judge involved the exercise of the discretion which this Court may not interfere with unless an error of the kind identified in House v The King (1936) 55 CLR 499, 504 – 505, has occurred.  It is not a sufficient basis for this Court to intervene, that this Court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.”

146. [146]
     Further, in House v The King, Dixon, Evatt and McTiernan JJ stated:

“But the judgment complained of, namely sentenced to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it.  The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way, there has been a failure properly to exercise the discretion which the law proposes in the court on first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”^[62]

147. [147]
     Miss Rosily was convicted after a trial, rather than on a plea of guilty.  During the substantive proceeding, the learned Magistrate was satisfied that Miss Rosily failed to  take reasonable steps to provide to the animals’ appropriate accommodation or living conditions and to treat disease or injury.
148. [148]
     The maximum penalty for failure to provide appropriate accommodation or living conditions is 300 penalty units or 1 year imprisonment.  The maximum penalty for failure to provide appropriate treatment for injury is the same.  Her Honour observed that the monetary penalty for each charge was nearly $33,000.  
149. [149]
     In sentencing her Honour determined that it was not appropriate to imprison Miss Rosily with respect to the charges and was mindful that the RSPCA be the recipient of any monetary penalty imposed due to the significant amount of costs incurred by the RSPCA.  The Magistrate had regard to Miss Rosily’s age, lack of criminal history and the matters raised throughout the trial.^[63]
150. [150]
     She sentenced Miss Rosily to a good behaviour order with $1,000.00 recognisance.  
151. [151]
     Miss Rosily said no sentence should have been imposed because she is not guilty. 
152. [152]
     In all the circumstances, I am satisfied that the sentence appropriately reflected the seriousness of the offending, the harm to the animals and Miss Rosily’s personal circumstances.  I am not satisfied that the sentence was manifestly excessive.  No error has been demonstrated in the exercise of the sentencing discretion and the imposition of  the sentence ought not be disturbed.  Even if an error was established I do not consider a lower sentence would be imposed.   

Appeal against prohibition order

153. [153]
     Miss Rosily also appealed against the imposition of the prohibition order.
154. [154]
     Upon conviction of an animal welfare offence the Court may order that a defendant be  prohibited from owning animals for a specified period of time.^[64] 
155. [155]
     Section 185 of the ACP Act provides:

3. “(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.

3. (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;

2. (b)
   the effect of the offence on any animal that was the subject of, or used to commit, the offence;

3. (c)
   the welfare of the animal and any other animal owned by the person;

4. (d)
   the likelihood of the person committing another animal welfare offence;

5. (e)
   if an interim prohibition order is in effect against the person—the person’s compliance or otherwise with the order.

3. (3)
   Subsection (2) does not limit the matters the court may consider.

3. (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.”

156. [156]
     In exercising her discretion, the learned Magistrate had regard to the matters set out in s  185 of the ACP Act and amended the draft prohibition order to refer only to poultry. She ordered that Miss Rosily be prohibited from owning poultry, other than as approved by the RSPCA, for a period of three years.^[65] 
157. [157]
     The RSPCA relied upon the decision of Fuller v RSPCA^[66] in which a five-year prohibition order was imposed after a trial in relation to one animal welfare offence, which was reduced to three years on appeal.
158. [158]
     In this case there were a number of animals involved and one was required to be euthanised due to the severity of its condition.  There was no evidence of prior convictions.
159. [159]
     In the circumstances, I am not satisfied that an error has been demonstrated.  A three-year prohibition in relation to poultry is not manifestly excessive.

Costs

160. [160]
     The RSPCA sought costs and disbursements in the event that the appeal is dismissed. Section 226 of the Justices Act gives the court a broad discretion to make such order as to costs as the judge may think fit.  The purpose of a costs order is to compensate the successful party rather than as a means of punishing the unsuccessful party.^[67]
161. [161]
     The appropriate scale is found in Schedule 2 of the Justices Regulation 2014.  A cost may be allowed only to the extent to which the incurring of the cost was necessary or proper to achieve justice or to defend the rights of a party and were not incurred by overcaution, negligence, mistake or merely at the wish of the party.^[68]
162. [162]
     There was a written outline for the RSPCA, and the RSPCA was represented at the hearing.  This leads me to be satisfied that there were legal services performed for the RSPCA and that the services met the description of instruction, preparation and attendance at hearing.  I am satisfied that the work done for the RSPCA complies with the descriptions in the schedule. 
163. [163]
     The costs associated with the appeal under the Justices Act are $2,100.00 calculated as one mention and one day of hearing with the twenty per cent uplift applied for appeals to a District Court judge.^[69] 
164. [164]
     To facilitate the conduct of the appeal, the RSPCA purchased the four days of the transcript of proceedings in the Magistrates Court, being three days of hearing and one day for the decision.  The cost of obtaining the transcript was $3,943.32.  The RSPCA sought to recover the cost of obtaining the transcript and provided copies of the relevant receipts for payment.  
165. [165]
     Part 3 of Schedule 2 of the Justices Regulation 2014 provides in part:

5 Disbursements, other that to witness for attending

Court fees and other fees and payments (other than allowances to witnesses to attend proceedings) including allowances to interpreters, and travelling, accommodation and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.

166. [166]
     Miss Rosily denies that she has the capacity to pay costs.  She said she is not currently employed, does not receive Centrelink payments and that she has medical bills to pay. There was no evidence adduced about Miss Rosily’s capacity to pay.
167. [167]
     I am satisfied it was necessary and proper to incur the cost of obtaining the transcript for the purposes of preparing and conducting the appeal. Establishing there was no error required detailed reference to the transcript of evidence and the learned Magistrate’s reasons for decision.
168. [168]
     I consider an order that Miss Rosily pay the RSPCA’s costs of the appeal fixed at $2,100 and disbursements of $3,943.32 is just and reasonable.  In those circumstances, I exercise my discretion to order Miss Rosily pay the RSPCA’s costs and disbursements.  Pursuant to s 232(1) of the Justices Act I direct that the sum of $6,043.32 shall be paid by Miss Rosily to the Registrar of the District Court of Brisbane within 28 days in order that such sum be paid over to the RSPCA.

Conclusion

169. [169]
     For the reasons outlined above, the appeal is dismissed.  The orders of the learned Magistrate are confirmed.  I order Miss Rosily pay $6,043.32 to the Registrar of the District Court at Brisbane within 28 days in order that such sum be paid over to the RSPCA.