Behrens v Deeks[2024] QDC 87

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 22 June 2021 the appellant was convicted, following a two day trial, of eight charges of being a person in charge of an animal and breaching his duty of care to the animal by failing to take reasonable steps to provide for the animal’s needs for accommodation or living conditions in a way that is appropriate contrary to s 17(3)(a)(ii) of the Animal Care and Protection Act 2001 (Qld) (the “ACPA”).  The charges related to 10 python type reptiles and 45 quail type birds.
2. [2]
   The appellant was sentenced to two years probation with a prohibition order made until 22 June 2024.  The effect of the prohibition order was that the appellant could not possess, purchase or otherwise acquire any animal other than animals as approved from time to time in writing by the RSPCA Queensland Chief Inspector.  The learned magistrate noted that approval had been given in relation to five animals.
3. [3]
   No convictions were recorded.
4. [4]
   The appellant was ordered to pay costs associated with the prosecution determined in accordance with the Justices Act 1886 (Qld) in an amount of $2,476.80, being $2,375.00 as costs for the two day trial and $101.50 for the complaint and summons.
5. [5]
   The appellant was required to make a contribution of $2,000.00 towards the veterinary costs of $10,954.68.  The payment of all costs was referred to SPER.
6. [6]
   The appellant’s housemate, Ms Anderson, in earlier proceedings had been ordered to also contribute $2,000.00 towards the veterinary costs of $10,954.68. 
7. [7]
   The appellant appeals both his conviction and sentence.

Grounds of appeal

8. [8]
   The appellant, by his notice of appeal, relies on the following grounds relating to the conviction namely:

   1. The learned magistrate did not properly satisfy himself that the appellant was fit to stand trial, or alternatively, make the necessary allowances for his autism and attention deficit hyperactivity disorder in the conduct of the trial;
   2. The complainant failed to identify particulars as to what reasonable steps ought to have been taken by the appellant pursuant to s 17(3) of the ACPA;
   3. The learned magistrate erred in receiving into evidence:

1.  the opinion evidence of Inspector Deeks;

2.  the recording from 9 December 2019; and

3.  the recording from 12 December 2019;

4. There were irregularities in the procedure and conduct of the trial adopted by the learned magistrate which led to the appellant being denied procedural fairness.

9. [9]
   As to the sentence and costs order, it is alleged the appellant was denied procedural fairness.

Nature of the appeal

10. [10]
    The appeal is brought by the appellant pursuant to s 222 of the Justices Act.
11. [11]
    Pursuant to s 223 of that Act, an appeal under s 222 is by way of rehearing on the original evidence with any new evidence adduced only by leave.
12. [12]
    The rehearing requires this court to make its “own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view”.^[1]
13. [13]
    In such an appeal, the appellant must establish some “legal, factual or discretionary error”.^[2] The process involves a “real review of the record of proceedings below”.^[3]

Proceedings below

14. [14]
    At the commencement of the hearing below, the prosecutor requested an opportunity to speak to the appellant prior to the trial progressing.  The hearing was adjourned for almost one hour.
15. [15]
    The appellant was then asked by the magistrate whether he was persisting with his plea of not guilty. It was at that stage that the prosecutor raised the question of the medical condition of the appellant with the magistrate.
16. [16]
    The prosecutor then presented an amended complaint.  The amended complaint effectively reduced the charges from 27 to 10, with eight of the charges relating to the living conditions of the animals and two of the charges relating to providing for the animal’s needs for treatment. The appellant pleaded not guilty to each of those charges.
17. [17]
    The prosecutor called evidence from witnesses including a police officer who had attended at the property and had brought these matters to the attention of the RSPCA, two RSPCA inspectors and an RSPCA veterinarian who had attended the appellant’s residence and identified the charges as well as another veterinarian employed by the RSPCA.  Dr Burrow had conducted a further examination of the animals seized.  The prosecutor played to the magistrate two recordings of conversations between the inspector and the appellant on the days of the attendance on the property.
18. [18]
    The appellant cross-examined each of the witnesses and gave evidence upon which he was cross-examined.

Medical condition

19. [19]
    The medical condition of the appellant was raised by the prosecutor with the magistrate immediately after the initial adjournment of the matter. The prosecutor informed the magistrate that it appeared to the prosecutor that the appellant did suffer from some mental difficulties and these might impact his ability to conduct the trial. The appellant responded that he had recently been diagnosed with high functioning autism but stated that he was “not sure why the prosecution thinks that I’d have any issue with - with conducting the trial”. He responded positively to the question from the magistrate that he was happy to persist with the trial.
20. [20]
    The appellant was asked by the magistrate whether he had sought legal aid. The appellant said he had a lawyer through Legal Aid but stated that he was only granted legal aid for a plea of guilty.
21. [21]
    The magistrate then asked the appellant to sit in the back of the court (or outside) whilst the magistrate heard and determined the sentence for the co-accused. After the magistrate completed this task, the appellant’s case was called and the appellant was asked to plead individually to each of the charges that remained.
22. [22]
    The prosecution called its witnesses and they were each cross-examined by the appellant. As mentioned, the appellant gave sworn evidence and was briefly cross-examined. A reading of the transcript of the hearing does not identify any real difficulty that the appellant had at the hearing that might be said to arise by reason of his medical condition.
23. [23]
    At the time of the filing of an amended notice of appeal, an affidavit was filed by the solicitor then acting for the appellant which exhibited a letter addressed to the court signed by a psychiatrist, Dr John Keim, dated 25 May 2022 and a letter addressed to who it may concern dated 23 December 2021 by the appellant’s treating psychologist, Ian McKerrell. Both were implicitly sought to be relied upon by the appellant as fresh evidence. They were accordingly marked as exhibits.
24. [24]
    Dr Keim says that the appellant is diagnosed with ADHD, ASD, moderate anxiety disorder and moderate depressive disorder. He says that the events of which the court is involved regarding animal care occurred prior to his treating the appellant. The doctor says that from a distance, he noted that at the time of the incident (presumably meaning the events regarding his care for animals), the appellant had been through some stressful events which interacted with his autism, causing anxiety and depression with loss of motivation. He said that the appellant’s ability to manage his animals was impeded because of autism, and that the appellant had significant communication difficulty.
25. [25]
    Mr McKerrell said that he had been giving the appellant psychological treatment between 15 January 2020 to 22 April 2021 focusing on stress management and social anxiety treatment. He stated that the appellant reported experiencing difficulties with self-management, including caring for animals.
26. [26]
    Tendered in evidence on the appeal was a similar report from a counsellor at the Caboolture Neighbourhood Centre, Trevor Warrener, dated 23 May 2023. He says that the appellant had been a client since 25 November 2019 and had been progressing very well and then went into overload or burnout which was exacerbated when the RSPCA attended his property and seized his animals.
27. [27]
    Neither of these reports dealt with the appellant’s ability to plead or function in court; and I will ignore those elements of the reports which might otherwise be used by the prosecution in proving the appellant’s guilt of the offences.
28. [28]
    When the appeal first came on for hearing in this court on 1 November 2022, Judge Rafter SC adjourned the hearing to enable the appellant’s then solicitor to obtain a report from a psychiatrist as to whether the appellant was fit to plead.
29. [29]
    A report was subsequently provided to the solicitors acting for the appellant by Dr Velimic Kovacevic. The report, dated 12 January 2023, was also sought to be tendered as fresh evidence by the appellant and became an exhibit on the appeal.
30. [30]
    Dr Kovacevic took an extensive history from the appellant; both as to his life and the circumstances surrounding the events of the offending and the trial. Dr Kovacevic was provided with a transcript of the hearing and made extensive references to it in his report. Dr Kovacevic concluded that, on the balance of probabilities, the appellant was medically fit to stand trial in June 2021.
31. [31]
    Dr Kovacevic also concluded that he had little doubt that the appellant’s capacities were diminished because of his medical conditions, and that a person of his profile would have found it more challenging compared with an average individual to organise a self-defence without professional legal assistance. That is, however, the highest the evidence gets in favour of the appellant.
32. [32]
    The evidence, including the transcript and these medical reports, does not demonstrate that there was anything else the magistrate was required to do. It may be that, in some circumstances, the denial of a person that they were incapacitated should not be accepted, but in this case the magistrate not only had that denial, but he had before the court a person who demonstrated during the course of the hearing an ability to deal with relevant issues and give evidence in his own defence.
33. [33]
    The most striking example of this is the appellant’s acceptance that he was the legal owner and responsible for the care of four of the snakes and the 45 quails, but his denial that he was responsible for the care of the other four snakes. As to those snakes, the appellant admitted that they were in the same room as his snakes and that he had access to them but denied that they were under his care.
34. [34]
    It follows from the opinion of Dr Kovacevic that even if the magistrate had taken the steps, like this court, to determine whether or not the appellant was fit to stand trial, the result would have been no different. There is, as I stated, nothing in the transcript or the medical evidence which demonstrates that the magistrate did not conduct a fair trial or give the appellant a fair hearing. 

Particulars

35. [35]
    The charges were brought by way of complaint and summons. Each of the eight charges had underneath it a heading of particulars. In the case of three of the snakes, it was alleged that the appellant housed the animals in an enclosure which was unclean, where there was a build-up of faeces and where they could not display normal patterns of behaviour. In the case of one of the snakes, it was alleged that the appellant housed the animal in a plastic container which was unclean and where it could not display normal patterns of behaviour. In the case of one of the snakes, it was alleged that it was housed in an enclosure which was overcrowded and unclean and where it could not display normal patterns of behaviour. In the case of two of the snakes, it was alleged that they were housed in an enclosure where it did not have access to an appropriate source of water and where it could not display normal patterns of behaviour. In the case of the quails, it was alleged that the enclosures were overstocked, unclean, where the animals could not access appropriate food and water, where the animals were at risk of developing pododermatitis and where the animals could not display normal patterns of behaviour.
36. [36]
    There were two charges involving the failure to provide appropriate treatment to two of the snakes for a neurological deficit, but these were withdrawn at the close of the prosecution case.
37. [37]
    The substance of the prosecution evidence related to the existence of unclean cages. When the appellant asked, during the cross-examination of one of the RSPCA inspectors, a direct question on the subject, he received an answer similar to the statement in the particulars: that the cages were dirty with multiple faeces.
38. [38]
    The appellant himself gave evidence before the magistrate that the enclosures were unclean and had been so for one or two weeks; though he also said that he was in the process of cleaning them.
39. [39]
    Although, it is perhaps technically true that the prosecution did not state in so many words what reasonable steps the appellant failed to take to provide for the animal’s accommodation or living conditions, it is clear that the appellant was being accused of housing the animals in enclosures that were unclean or overcrowded.
40. [40]
    In my view the appellant was appraised of the case he had to meet; namely that he failed to clean the enclosures or give the animals water (as the case may be) and house them in enclosures that were of an appropriate size.
41. [41]
    The appellant submitted that particulars were also not given of the basis upon which it was alleged that he was the person in charge of the animal. That is true. They were neither sought nor given in the charges or otherwise.
42. [42]
    The bulk of the prosecution evidence consisted of the observations of a police officer and two RSPCA inspectors when they first attended at the premises of the appellant and recordings of conversations with the appellant and his co-accused at those premises. In those recordings the appellant guessed that he was responsible for the snakes and stated that he cleaned the enclosures. In a subsequent interview the appellant also spoke about the two of them (being him and his co-accused) looking after the reptiles.
43. [43]
    It was only during his cross-examination of the RSPCA inspector at the trial and in his evidence that the appellant drew a distinction between his responsibility for some of the snakes, and that of the person who owned them.
44. [44]
    The issue was not pursued by the RSPCA at trial, or even on appeal, but it is probable, having regard to some of the remarks made by the appellant at trial and during the appeal (including in his written outline), that the appellant took the view that he was not in charge of some of the snakes because he did not own them.
45. [45]
    In closing addresses, the prosecutor relied upon the admissions in the recordings and the cross-examination to prove that the appellant had care and control, and hence had custody and was therefore in charge of the animals within the meaning of the ACPA. The magistrate found accordingly.
46. [46]
    There is nothing to indicate that had the particulars been sought and provided that the result would have been any different.

Recordings

47. [47]
    The magistrate is criticised for failing to inform the appellant of his right to challenge the admissibility of the recordings, and hence of the opportunity to argue that the statements were not made voluntarily or that the circumstances were such that it would be unfair to admit them. In support of this ground, the appellant referred to the absence of any training of the RSPCA inspectors in relation to interviewing people with autism, and the communication difficulties he and his co-accused (who also had autism according to the appellant) had; particularly in the context where they were both questioned at the same time.
48. [48]
    It was never actually submitted that the evidence should have been excluded because the statements were involuntary or on discretionary grounds; only that the appellant was deprived of the opportunity to challenge the evidence on those bases.
49. [49]
    The evidence under consideration consisted of the recordings of conversations between the RSPCA inspectors and the appellant and his co-accused when the RSPCA attended on the premises of the appellant with a search warrant, and of conversations between the parties when the RSPCA returned to the premises with some of the property that had been removed by them on the first visit. On each occasion, the inspector informed them that they were recording and that they did not have to answer any questions and that the questions can later be used as evidence. No additional words, as has been customary for a long time when persons in authority interview potential suspects, was given. It was not explained why the customary warning was not given. It was only submitted by the RSPCA that it was not required by any legislation; as is the case with the police.
50. [50]
    It was not apparent from the recordings or any evidence that the inspectors were overbearing in any way, or that the answers were otherwise given involuntarily. Except when it came to his answers in cross-examination at the trial as to the care given by him to specific snakes, there was no inconsistency between the answers given in the conversations with the inspectors and his evidence at the trial. Indeed, there was remarkable similarity. None of the answers given by his co-accused were used against him at the trial.
51. [51]
    It may be that, had the same questions about individual snakes that were asked of the appellant in cross-examination been asked during the course of the search and subsequent attendance, the distinction subsequently drawn by the appellant between the snakes that were his responsibility and implicitly those that were the responsibility of other people who lived at the residence might have been clearer. That would possibly have been so regardless of the medical or mental condition of the interviewee, but it is not necessarily the position. To the extent that reliance can properly be placed upon the various medical reports tendered, it is to be noted that none of them reported a distinction being drawn by the appellant to the authors between any of the animals at the premises for which he was responsible and those for which he was not.
52. [52]
    In addition, it is not readily apparent that any difficulties that the appellant has with communication, which were referred to by Dr Keim but not by Dr Kovacevic, caused incorrect answers to be given or that somehow otherwise it would be unfair to use the answers that were given against the appellant.
53. [53]
    When the magistrate asked the appellant, whilst he was giving evidence in chief, whether he wished to say anything further about the charges, the appellant did respond that he had been charged for animals he did not have care for, but earlier in his evidence he explained that he had been unwell in the weeks prior to the RSPCA entering the property and had started to take some steps to clean cages. He later added that he was not saying that the enclosures were not as clean as they should be, but emphasised that he was taking some steps on the day of the search to do so.
54. [54]
    He drew no distinction at that time between his responsibility for all the snakes at the premises. This is understandable given the fact that the residence was relatively small, the appellant was one of four people living there and the space consumed by the cages and stench that evidently emanated from the premises at the time of the search by the RSPCA and an earlier search by a police officer (who also gave evidence of the state of the unit).
55. [55]
    At the commencement of the trial, the magistrate explained the procedure to the appellant. The explanation included his right to take objections to the admissibility of evidence. The explanation did not include a statement that he could object to evidence of admissions on the grounds that they were made involuntarily or that they should be excluded on some unfairness ground; as is included in Direction No. 5 of the Supreme and District Court Criminal Directions Benchbook.
56. [56]
    It may be that the obligation to give unrepresented defendants sufficient information to enable them to have a fair trial^[4] should include such a statement, but in this case, there was nothing prior to the evidence being given or the evidence itself which would suggest that such a statement was necessary.
57. [57]
    In any event, in my view there would have been no justification for the magistrate to exclude the evidence of the conversations between the appellant and the RSPCA, or any other reason why the magistrate should not have relied upon the admissions contained within them.

Expert opinion

58. [58]
    In submissions, the appellant also complained about the admission into evidence of opinion evidence from one of the RSPCA inspectors (Ms Deeks) about the normal behaviour of snakes and quails. The appellant submited that this evidence should not have been received given that Ms Deeks had said in evidence that she was not a snake expert and gave no evidence establishing her expertise in relation to quails. The appellant also submits that it was unfair for his cross-examination of Ms Deeks to be curtailed on the basis that the questions were matters for the vet.
59. [59]
    The evidence of Ms Deeks about which the objection is taken was quite limited. Ms Deeks gave evidence that she did not believe that there was sufficient space for one of the snakes (Blue) to move, and for another two large adult snakes housed in the same enclosure.  Ms Deeks had said that the size of the enclosure for Blue had meant there was nothing for it to display its normal behaviour.
60. [60]
    Ms Deeks also gave evidence that the enclosure containing 10 quails was very small and that in the container there was shredded paper which was congealed with faeces, and accordingly these quails could not display their normal behaviour.
61. [61]
    The statement made by Ms Deeks about her expertise or lack of it was quite limited as well.  In the context of being asked about the extent and smell of faeces in the cages, Ms Deeks said that she was not going to say she was a snake expert but she knew that snakes did not defecate every day and the existence of multiple faeces meant that the cages had not been cleaned for weeks.
62. [62]
    At the commencement of her evidence, Ms Deeks stated that she had been an inspector with the RSPCA since April 2019 and prior to that she worked in the medical centre in the shelter for some years. Ms Deeks said she had a Bachelor of Applied Science and had worked as a vet nurse for about 10 years.
63. [63]
    It is probable that the choice of words by Ms Deeks is no more than unfortunate to the extent that it suggests that Ms Deeks had no expertise, by training or experience, with the normal behaviour of snakes or quails, but it is clear that the gravamen of her and other evidence related to the small nature of the enclosures for the snakes and quails and the condition of those enclosures. The court does not require expertise to make an assessment that those features would mean that the animals were not free to behave as they would normally do so, and it does not appear that by making those statements that the inspector was trying to bind the court to her opinion. The majority of the evidence of Ms Deeks was simply descriptive of the situation. Even if it were otherwise, her level of experience with animals, suggests that she was entitled to make the statements about which the complaint is made.
64. [64]
    In any event, the exclusion of the evidence would have made no difference to the result. The magistrate did not refer to it but relied upon the evidence of the veterinarian and his own assessment of the situation to find the charges proved.
65. [65]
    There is no basis for this complaint about the evidence of Ms Deeks.
66. [66]
    The cross-examination which was said to be curtailed commenced with a question by the appellant of Ms Deeks to the effect that quails could display both positive and negative behaviours, and asserted that they might peck other quails, pull feathers and attack. It was unclear as to what that question was directed to, and after the witness asked the appellant to repeat the question, the magistrate indicated that maybe this was a question for the vet.
67. [67]
    The question was much more particular than the issues to which Ms Deeks was asked to direct her attention in her examination-in-chief. In any event the appellant was specifically informed that he could take the issue up with the vet.
68. [68]
    There is no basis for this ground either.

Other matters

69. [69]
    In the written outline, the appellant submitted that he was not given a fair opportunity to consider whether he wished to give or call evidence, call his own veterinarian to give evidence, cross-examine Ms Deeks or cross-examine on the effect of s 17(4)(b) of the ACPA.
70. [70]
    As the first matter, after the pleas were taken to each charge, the magistrate informed the appellant about the procedure which would be followed. This included informing the appellant that he could give evidence if he wished and how that would occur and the process if he called any witnesses.
71. [71]
    Shortly after that, the magistrate asked the prosecutor whether the co-accused, Ms Anderson, was being called. The prosecutor answered no, and when the question was directed to him, the appellant also answered no. It will be recalled that this hearing occurred shortly after Ms Anderson pleaded guilty to some of the offences and was sentenced. It was a reasonable question for the magistrate to ask.
72. [72]
    At the end of the prosecution case, on the second day, the appellant was asked whether he wished to give evidence. He answered in the affirmative and the magistrate adjourned for 10 minutes to allow him to get ready.
73. [73]
    There is nothing in the transcript of the trial or even on appeal that suggests that there was any error in this approach, or that any unfairness resulted.
74. [74]
    The second matter relied upon in relation to this ground of appeal also occurred at the commencement of the trial. The appellant indicated that he had a statement from someone who he said had been present in court, but since left. He also said he had requested test results from the prosecution for any injury or diseases. The magistrate indicated that he would not allow the appellant to get the witness back and would proceed with the trial as the appellant had been aware of the trial for some time. The appellant indicated that he had been informed that there were no test results; a matter confirmed by the prosecution. The prosecutor indicated, evidently as the prosecutor understood the matter, that the evidence sought to be elicited related to two of the charges where it was alleged that the animals suffered a neurological deficit. The prosecutor said the vet to be called by the prosecution would give evidence on that subject.
75. [75]
    No real indication was given by the appellant at the trial as to the nature of the evidence that he proposed to call. Insofar as it was dependent upon test results that were thought to exist, but did not in fact exist, it would be hard to determine that the evidence was relevant to anything. It is possible that this was one instance in the trial where the inability of the appellant to articulate something might have been important. On the other hand, the magistrate clearly took the view that it was inappropriate to adjourn the case given that it had been listed for some time and there is nothing which shows that this discretion miscarried.
76. [76]
    No evidence was adduced on appeal as to what evidence was sought to be adduced from the vet that the appellant proposed to call. If it did relate to the neurological deficits alleged to be the subject of two of the charges, that would be irrelevant now as the evidence adduced by the prosecution was insufficient and these charges were withdrawn at the end of the prosecution case.
77. [77]
    Similar considerations apply to the submission that the magistrate should have given the appellant an opportunity to call the expert by phone. In addition it is not clear that the expert was available to give evidence by phone, nor is it clear that it would have been appropriate to do so.
78. [78]
    There is no substance in this ground.
79. [79]
    The third matter relied upon in this ground appears to relate to the appellant being restrained from asking Ms Deeks to articulate the evidence she relied upon to prove that he had a duty to one of the snakes named Cleo. The prosecution objected to the question on the ground that it was a matter for the prosecutor to establish and the magistrate indicated that it was a matter that the appellant could make submissions on at the end of the trial.
80. [80]
    All of that is technically true.
81. [81]
    In any event, the appellant subsequently elicited from another inspector, Ms Finigan, that to have a duty of care to animals a person either needed to be an owner or a person in charge and that, on the day in question, the appellant identified himself as the person in charge of the animals.
82. [82]
    The fourth matter under this ground was said to be that the appellant was not given a fair opportunity to cross-examine as to the steps a reasonable person would reasonably be expected to take to provide for the animals. The appellant, however, extensively cross-examined on this ground, and the response was that the cages were dirty and contained multiple faeces and that there was no evidence of any cleaning up process. There is no substance in this ground.

Conclusions

83. [83]
    There is accordingly no basis to set aside the findings of guilt.

Sentence

84. [84]
    In his written outline the appellant says that the procedure followed in the sentence hearing was irregular in that the magistrate did not hear any submissions on mitigation and did not seek from the appellant any medical information regarding his diagnosis. The appellant submits that the sentence was manifestly excessive and seeks an order that the period of probation be reduced to one year.
85. [85]
    The sentencing process commenced immediately after the decision about the offences. Submissions were made by the prosecutor about the facts. The magistrate immediately stated that the magistrate was considering a community based order; which was immediately agreed to by the prosecutor. No submissions were sought from or given by the appellant before he was asked to stand-up for sentence. At that time the appellant was asked to confirm that he was not working and then he was asked whether he thought he could benefit from a term of probation or whether he would be willing to do some community service. The appellant answered that he just wanted to do probation and indicated that he was willing to comply with such an order.
86. [86]
    The magistrate did not record a conviction but released him on two years probation.
87. [87]
    It is true that the magistrate did not hear anything in mitigation from the appellant during the sentencing process, nor seek any medical information.
88. [88]
    The magistrate did, however, have information from the hearing relating to the appellant’s medical condition, and the magistrate had the appellant’s explanation in the recordings as to how things simply got away from him in caring for the animals.
89. [89]
    It is clear that this information was in the magistrate’s mind when he offered him probation and referred to the condition that he seek psychiatric treatment as directed (on the basis that he was receiving that at the time anyhow).
90. [90]
    At the hearing of the appeal there was a lengthy and sophisticated psychiatric report on the appellant. This report explained the background and circumstances of the appellant; including not only that he suffered from ADHD and autism spectrum disorder, but also the resulting difficulties he had at school and with long term employment and relationships. Mr McKerrell recorded that the appellant had reported experiencing difficulties with self-management, including caring for animals and completing household chores, prior to receiving an ADHD diagnosis and appropriate treatment for it.
91. [91]
    This fresh evidence is consistent with what was before the magistrate.
92. [92]
    Whilst the magistrate should have asked the appellant if he had anything to say relating to penalty, it is unlikely that any submissions on mitigation and any further information on the appellant’s medical condition would have made any difference to the result. Even if I had considered that the process was such that the sentence should be set aside, I would not have arrived at a different order.

Prohibition order

93. [93]
    Similar considerations apply to the appeal against the prohibition order.
94. [94]
    At the close of submissions as to penalty the prosecutor asked for a prohibition order under s 185 of the ACPA. The prosecutor referred to the various matters required to be considered by the court and sought, having regard to what the prosecutor said was lack of insight which was perhaps explicable by matters personal to the appellant, an order of between three and five years.
95. [95]
    The appellant was not asked to respond to this request.
96. [96]
    The magistrate made an order prohibiting the appellant from possessing, purchasing or otherwise acquiring any animal other than approved by the RSPCA for a period of three years.
97. [97]
    The appellant submits before this court that he had given evidence in the magistrates’ court that he had been unwell in the weeks prior to the attendance of the RSPCA and had been in sensory overload. The appellant submits that he was not given an opportunity to make submissions on the treatment or support he was receiving in view of his recent diagnosis and how that might impact on the allegations made by the prosecution about whether there was a risk of placing animals in his care.
98. [98]
    The letter from the counsellor, Mr Warrener, dated 23 May 2023, which is now before this court, states that he did not believe that the appellant has any potential of placing anything in his care at risk of harm at any time. Mr Warrener is also critical of the RSPCA for not attempting to work with the appellant to resolve the issues presented; as was the appellant during the trial. As noted above, Mr McKerrell in his report had referred to the appellant saying he was having difficulties with self-management prior to receiving the ADHD diagnosis and appropriate treatment for it.
99. [99]
    The magistrate should have asked the appellant whether he had anything to say about the proposed order, but there is simply not sufficient material before this court which would call into question the appropriateness of making an order prohibiting the appellant from purchasing or acquiring an animal other than with the approval of the RSPCA. The offences related to the failure to give appropriate care to the animals, and it is not clear that the position of the appellant is such that the situation would not be repeated.

Legal costs

100. [100]
     Similar considerations apply to the appeal with respect to legal costs.
101. [101]
     The appellant submits that he ought to have been given the opportunity to address the amount of costs given that, on the morning of the trial the RSPCA discontinued 17 of the 27 charges, and at the end of its case, discontinued an additional two charges.
102. [102]
     At the end of the submissions on sentence the prosecutor asked for costs based on a two day hearing ($2,375) and 11 mentions at $250 each. These amounts are those stated in the scale.
103. [103]
     The magistrate indicated that he had to consider the appellant’s capacity to pay. The evidence before this court is that the appellant was on a disability pension.
104. [104]
     The appellant was accordingly ordered to pay costs only of the trial of $2,375; together with the costs of the complaint and summons in the amount of $101.80.
105. [105]
     The prosecution was more than substantially successful at the end of the two day trial. It is accordingly unsurprising that the magistrate awarded it costs of the trial and the costs of the complaint and summons.^[5]
106. [106]
     It is hard to know on the information before this court how to deal with the discontinued charges. In the report of Dr Kovacevic, mention is made of the appellant’s legal aid being withdrawn after the appellant declined a plea deal. Some of the withdrawn charges relate to animals other than those animals named in the charges which were continued and some of the withdrawn charges relate to different alleged misconduct with respect to the same animals for which the charges were continued; namely failure to provide an appropriate quantity or quality of food or failure to provide treatment for disease or injury. No explanation was provided at the trial or this court for the withdrawal of the charges.
107. [107]
     In any event, it is unclear what costs, if any, would have been unnecessarily incurred by the additional charges. It is possible that some of the mentions could have been avoided if the charges had never been laid or had been dropped earlier. On the other hand, during the course of the discussion between the magistrate and the appellant on the issue of probation, the magistrate and the appellant each observed that the case probably took so long to be heard because the appellant did not or could not get legal advice. No evidence or submissions were made on at the hearing of the appeal as to where the fault lies for the 11 mentions.
108. [108]
     On the face of it the costs order was appropriate, and there is no justification for interfering with it.

Veterinary costs

109. [109]
     After the sentence was pronounced, the prosecution requested an order that the appellant pay veterinary costs under the ACPA. The prosecutor handed up a schedule of veterinary costs amounting to $10,954.68. As his co-accused was ordered to only pay a contribution of $2,000 to those costs, the RSPCA sought a similar order against the appellant.
110. [110]
     The appellant was again not called upon for comment before that order was made either.
111. [111]
     During the hearing of this appeal, following submissions made by the appellant, the RSPCA suggested that the parties be permitted to make further submissions in relation to the relevant veterinary costs. This was permitted and submissions were subsequently received from both parties.
112. [112]
     The RSPCA submitted that under s 189 of the ACPA it was entitled to the whole of its costs provided that it had incurred costs and, that the incurring of the costs were necessary and reasonable in the interests of the animal’s welfare. The RSPCA submitted that there was no discretion to reduce the amount of the costs that have been proven and have been shown to meet the criterion set out in the section; relying upon the decision in Wilson v Barraud^[6].
113. [113]
     The RSPCA conceded, however, that it was only entitled to costs against an owner of the animal, and that the evidence showed that the appellant was only the owner of four of the snakes (Leondra, Mini Goldie, Mini Cuddles and Blue) and the 45 quails. It was submitted, accordingly, that the costs should be reduced to $1,784.04. This was calculated on the basis of charges for boarding, consultation, blood profiles and radiographs for each of the four snakes, and consultation, euthanasia, wormout and lice spray for the quails.
114. [114]
     No evidence was adduced either at the trial or on appeal relating to those costs, or the fact of blood profiles or radiographs being taken of the snakes. Section 192(1) permits compensation recoverable under s 189 to be claimed and ordered in a proceeding brought in a court of competent jurisdiction or for an offence against the ACPA to which the claim relates. The section does not give any indication of the evidentiary conditions which must be satisfied before an order is made in a proceeding for an offence. No doubt in this case, it was considered part of the criminal process which permits such matters to be dealt with orally; and see s 132C of the Evidence Act 1977. 
115. [115]
     Section 192(2) of the ACPA provides that a court may order the payment of compensation only if it is satisfied that it is just to make the order in the circumstances of the particular case.
116. [116]
     There is no basis not to make an order for these costs or disturb the quantum of costs now sought by the RSPCA.

Conclusion

117. [117]
     The amount of the payment ordered to be paid under s 189 of the ACPA should be reduced from $2,000 to $1,784.04.
118. [118]
     Apart from that change, the appeal is dismissed.

Costs of the appeal

119. [119]
     Section 224 of the Justices Act enables the court to make an order against a party for payment of the legal costs incurred on an appeal.
120. [120]
     Both parties may wish to contend that costs should be awarded in their favour.
121. [121]
     The appellant was self-represented at the hearing before me but had legal aid for a time. It is possible accordingly that, were an order to be made in his favour, some legal costs would be recoverable.
122. [122]
     The most convenient course, in view of the fact that the appellant is unrepresented is that the RSPCA provide submissions first and the appellant can then respond to those submissions and apply for costs in his favour if he is so minded.
123. [123]
     The RSPCA is to file and serve submissions as to costs (including as to the quantum thereof) by 4pm Friday 14 June 2024.
124. [124]
     The appellant is to file and serve submissions as to costs by 4pm Monday 24 June 2024.
125. [125]
     The parties are free, of course, to reach agreement on the subject, including that there be no order as to costs, and send a consent order or other appropriate notification to my associate.
126. [126]
     In either event, I will consider the matter in chambers and make the appropriate order.