MAGISTRATES COURT OF QUEENSLAND

1. [1]
   Reginald Dean Sauer is charged with numerous offences relating to cattle as follows:

1. That between the 2 April 2014 and the 10 May 2014 at Dalga in the State of Queensland, he stole an animal that is stock, namely cattle, the property of Steven Charles Beale.

2. That between 25 April 2014 and the 4 June 2014 at Lawgi Dawes in the State of Queensland, he with intent to facilitate the commission of a crime, branded an animal, namely cattle, with the registered brand of the owner of the said brand, namely Wayne Keith Sauer, without his permission.

3. That between 25 April 2014 and the 4 June 2014 at Lawgi Dawes in the State of Queensland, he defaced the registered brand on an animal that was stock, namely cattle.

4. Between 2 April 2014 and 14 May 2014 at Dalga, in the State of Queensland, he stole an animal that is stock, namely cattle, the property of William James Oram.

5. Between the 2 April 2014 and the 4 June 2014 at Lawgi Dawes in the Magistrates Court’s District of Rockhampton in the State of Queensland he removed a permanent tag that a head of cattle bore, and that he was not an inspector.

6. Between the 2 April 2014 and 4 June 2014 at Lawgi Dawes in the Magistrates Court’s District of Rockhampton in the State of Queensland he removed a permanent tag that a head of cattle bore, and that he was not an inspector.

2. [2]
   The charges relate to the alleged movement of cattle from Dalga Station, illegal use of a brand, defacing brands on cattle and removing National Livestock Identification System (NLIS) tags after execution of the contract of sale of the property on 3 April 2014.

3. [3]
   The Prosecution has called Aaron Jay Sparrow; Glenn Robin Powell; Steven Charles Beale; Geoffrey Maurice McNamara; William James ORAM; Janette Margaret WARD; Leon David WARD and Wayne Keith SAUER.

4. [4]
   The burden of proof lies with the Prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt. It is for the Prosecution to satisfy the Court that not only is guilt a rational inference that could be drawn from the proved facts, but it is the only inference^[1]. This means that the Prosecution is required to exclude any reasonable hypothesis consistent with innocence^[2].

5. [5]
   The Prosecution case relied on limited eyewitness testimony and circumstantial evidence. In order to prove objective facts from which the Prosecution contended I should be satisfied that the accused is guilty of the above offences, the Prosecution relied in part on evidence of surrounding circumstances commonly known as circumstantial evidence.

6. [6]
   Circumstantial evidence is evidence of circumstances, which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly: typically, when the witness testifies about something which that witness personally saw, or heard. Both direct and circumstantial evidence are to be considered.

7. [7]
   To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, then the Defendant is not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.

8. [8]
   This principle and the approach to circumstantial evidence was described by Dixon CJ in Martin v Osborne (1936) 55 CLR 367 in the following terms:

‘If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed (375).

9. [9]
   Further, the Defendant has not given or called evidence. That is his right. He is not bound to give or to call evidence. The Defendant is entitled to insist that the Prosecution prove the case against him, if it can. The Prosecution bears the burden of proving the guilt of the Defendant beyond a reasonable doubt, and the fact that the Defendant did not give evidence is not evidence against him. It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the Prosecution. It proves nothing at all, and you must not assume that because he did not give evidence that adds in some way to the case against him. It cannot be considered at all when deciding whether the Prosecution has proved its case beyond a reasonable doubt, and most certainly does not make the task confronting the Prosecution any easier. It cannot change the fact that the Prosecution retains the responsibility to prove guilt of the Defendant beyond reasonable doubt.

10. [10]
    In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence. This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.

Stealing Animal that is Stock

11. [11]
    The Prosecution must prove that:

1. The cattle is a thing capable of being stolen. “Anything that is the property of any person is capable of being stolen if it is (a) moveable; or (b) capable of being made moveable even if it is made moveable in order to steal it.”

2. The thing is owned by the person named as owner in the charge.

3. There was a taking without the consent of the owner. That is the Defendant must have actually moved it or actually dealt with it by some physical act without the owner’s consent.

4. The taking was with a fraudulent intent. That is with an intent to permanently deprive the owner of the thing.

12. [12]
    For the purposes of this case stealing is defined under section 391(2) of the CC as:

“A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if the person does so with any of the following intents, that is to say –

1. (a)
   …

1. (b)
   An intent to permanently deprive any person who has any special property in the thing of such property;”

13. [13]
    Owner is defined in subsection 7 as:

“(7) In this section –

Owner includes the owner, any part owner, or any person having possession or control of, or a special property in, the thing in question.”

14. [14]
    Special property is defined in subsection 2AA as:

“(2AA) In this section –

Special property includes any charge or lien upon the thing in question, and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for the other person’s benefit.”

Using Registered Brands with Criminal Intention

15. [15]
    To begin with, branding is compulsory for cattle when they are offered for sale in Queensland under section 24A of the Brands Act 1915. Exemptions apply for approved stud cattle sales and calves under 100kg liveweight. When an animal is branded with a legally registered brand and earmarked, this can be used to establish legal ownership. Livestock owners are responsible for registering brands and earmarks, and obtaining the branding iron and earmarking pliers. Brands and earmarks are registered to an entity, not a property.

16. [16]
    The Prosecution must prove the Defendant:

1. Brands or marks any animal;

2. With a registered brand or registered mark;

3. Without the permission of the owner of the brand or mark;

4. With intent to facilitate the commission of a crime.

17. [17]
    Section 1 – Definitions in the CC define “A registered brand and registered mark mean respectively a brand or mark which is registered under the authority of the laws relating to brands and each such registered brand or registered mark shall for the purposes of this Code be deemed to be the registered brand or registered mark respectively of the person in whose name such brand or mark is registered. However, where such brand or registered I the names of 2 or more persons such registered brand or registered mark shall for the purposes of this Code be deemed to be the registered brand or registered mark respectively of each of such persons” and animal “includes any living creature other than mankind”.

18. [18]
    The penalty is imprisonment up to 5 years or if the offender is sentenced to pay a fine in addition to, or instead of, imprisonment, the fine shall be not less than 4 penalty units or, where in respect of the animal in question a value is determined in accordance with the provisions of the regulations made pursuant to section 450F, not less than that value, whichever is the higher amount, for every animal branded or marked. However, the fine imposed in respect of the offence shall not exceed 455 penalty units.

19. [19]
    This section creates the offence of using registered brands with criminal intention and sets upper and lower limits to the amount of a fine which may be imposed for the offence.

Defacing Brands

20. [20]
    The Prosecution must prove the Defendant:

1. Defaces;

2. A registered brand;

3. Which brand is on an animal.

21. [21]
    Defacing so as to render undistinguishable does not mean obliteration. It means the putting of one brand over another, which, as the freshness of the last brand wears off, would have the effect on an ordinary inspection of confusing the original brand to such an extent as to render it undistinguishable: per Brennan J in Roach v Chubb [1931] QWN 49; (1931) 26 QJPR 13.

22. [22]
    Section 1 – Definitions in the CC define “A registered brand and registered mark mean respectively a brand or mark which is registered under the authority of the laws relating to brands and each such registered brand or registered mark shall for the purposes of this Code be deemed to be the registered brand or registered mark respectively of the person in whose name such brand or mark is registered. However, where such brand or mark is registered in the names of 2 or more persons such registered brand or registered mark shall for the purposes of this Code be deemed to be the registered brand or registered mark respectively of each of such persons” and animal “includes any living creature other than mankind”.

23. [23]
    The penalty if for the offence is imprisonment up to 5 years or to a fine of not less than 4 penalty units or, where in respect of the animal in question a value is determined in accordance with the provisions of the regulations made pursuant to section 450F, of not less than that value, whichever is the higher amount, for every animal with respect to which the act is done.

24. [24]
    This section creates the offence of defacing brands and sets upper and lower limits to the amount of a fine which may be imposed for the offence.

Restrictions on Removing Permanent Tags

25. [25]
    The National Livestock Identification System (NLIS) ensures that lifetime movements of cattle can be identified and recorded within Australia. Queensland participates in the NLIS, which is supported by Queensland legislation through, at the relevant time, the Stock Act 1915 and specifically by regulations in the Stock Identification Regulation 2005.

26. [26]
    The NLIS involves the permanent identification of cattle. It commences on their property of birth through the use of an ear tag containing a microchip encoded with a unique, unalterable number. Details about cattle identification with NLIS tags, including ownership changes and from “paddock to plate”. Importantly, any suspect animals can be quickly located and detained. Traceability, especially lifetime traceability, is important for biosecurity purposes, including the management of disease and chemical residues. See section 3(1) of the Regulations.

27. [27]
    The National Livestock Identification System (NLIS) is based on the property identification system. Animal movements are recorded against a Property Identification Code (PIC) on the NLIS database. See section 10 of the Regulations.

28. [28]
    Anyone in Queensland who keeps the threshold number of livestock is a registerable biosecurity entity and must be registered with Biosecurity Queensland to be allocated a PIC.

29. [29]
    There are specific NLIS requirements when moving different types of livestock in Queensland. All cattle, sheep, goats and pigs must be fitted with an approved NLIS device when moving between properties identified with different a PIC. All movements must be reported to the NLIS database within 48 hours of livestock being moved.

30. [30]
    Once applied to an animal, the device is designed to remain with the animal for its entire life. If a tag has been accidentally applied to the wrong animal, it can only be removed or replaced with an inspector’s approval.

31. [31]
    It is illegal to remove an NLIS device unless it is damaged to faulty^[3].

32. [32]
    An approved device^[4] includes an ear tag. For example, breeder tags are applied to animals that were born at a particular place identified by the PIC recorded on or shown by the tag, and have not been previously travelled.

33. [33]
    NLIS approved ear tags come in two colours:

1. White breeder tags – for cattle bred and still on the property

2. Orange post-breeder tags – for cattle purchased that are not already identified with an NLIS device or cattle that have lost their tag.

34. [34]
    The Stock Act 1915 section 37(1)(k) provides for an offence to breach a regulation:

“37 Offences (1) Every person who – (k) is guilty of any breach of the regulations; commits an offence against this Act”.

and Stock Identification Regulation 2005, section 36 provides for restrictions in removing permanent tags:

“36 A person, other than an inspector, must not remove, or allow the removal of, a permanent tag that a head of cattle (whether living or dead) bears, unless -

1. (a)
   The removal if with an inspector’s oral or written approval;”

35. [35]
    Permanent tags are defined in section 28 of the Regulations and include (“permanent tags”) – (i) breeder tags to show designated stock – (A) were born at a particular place identified by a PIC recorded on or shown by the tag; and (B) have not previously been travelled from the place.

Witnesses

Aaron Jay Sparrow

36. [36]
    The evidence of Aaron Sparrow is that he knows the Defendant Dean Reginald Sauer who is his uncle.

37. [37]
    He worked on Dalga Station, a cattle property half an hour from Monto towards Bundaberg in 2014 and finished about April or May 2014 after working six months to 12 months, but is unsure when he commenced.

38. [38]
    He fixed fencing and did cattle work and looked after his grandmother and grandfather, Irene and Reginald Sauer.

39. [39]
    He indicates Dalga Station was about 40,000 acres with two to three thousand head of cattle. It was owned by the Defendant and his wife Shan.

40. [40]
    He resided on the station.

41. [41]
    For his work he was paid about ‘three or four cattle’ which he branded with his ASA brand. They were cleanskins from the paddock.

42. [42]
    He was aware the farm’s financial position was not too bad when he first started work, but got worse as more cattle had to be sold to make the repayments.

43. [43]
    He found out Dalga Station had been sold about ‘three weeks, four weeks’ before its sale.

44. [44]
    Mr Sparrow testifies they started shifting vehicles and animals to Kawartha Stud, 116 Royes Road Thangool as it was being bought.

45. [45]
    He says they carted stuff to Kawartha two weeks before the gates were closed and locked by the people who bought Dalga.

46. [46]
    Mr Sparrow states cattle and horses were mustered and moved and a cattle contractor moved them.

47. [47]
    Some cattle were put on the Defendant’s truck and the Defendant took them to Kawartha. This happened several times. The truck could take about ten cattle.

48. [48]
    When question in relation to who could be in the truck with the Defendant, Mr Sparrow stated, ‘No he’s go alone’.

49. [49]
    He was carting furniture and household goods etc. He says it was a two and half hour drive from Dalga to Kawartha.

50. [50]
    The cattle that Dean carted were unloaded and left in the yard at Kawartha. The Defendant unloaded the cattle.

51. [51]
    He did some topping of horns at Kawartha.

52. [52]
    Mr Sparrow testifies brand X7W was the Defendant’s brand, Wayne Sauer’s brand was WKS and his was ASA.

53. [53]
    He says some of the X7W brands on cattle were faded and the Defendant touched them up although he is unsure what brand the Defendant used.

54. [54]
    He is not sure how many cattle were taken to Kawartha, but it was less than one hundred, all Brahman cross.

55. [55]
    In cross-examination Mr Sparrow conceded that he assisted with the loading of just one single load of cattle that went to Karawartha that included two of his cattle.

56. [56]
    He was also asked if her or if he saw any persons load these animals and from what part of Dalga. He replied ‘front yards, back yards’.

57. [57]
    When asked he had not gone specifically and looked for his cattle in Karawartha, replied ‘I seen that they were there yeah’.

58. [58]
    He says it was a very chaotic time when moving.

59. [59]
    Sparrow also indicates that he did not drive in front, behind or with the Defendant from Dalga to Kawartha.

60. [60]
    When he loaded the cattle on the truck he indicates he saw no brands on them other than some of Wayne’s although he is not sure of how many and does not know how many other cattle were on the truck.

Detective Sergeant Glenn Robiin POWELL

61. [61]
    Detective Sergeant Glenn Robyn Powell is officer-in-charge of the Rockhampton Stock and Rural Crime Investigation Squad.

62. [62]
    On the 3 June 2014, he received some information and as a result he and Detective Green travelled to Thangool to a property named Kawartha on Roys Road.

63. [63]
    They took up with Leon Ward and his wife who told them they had signed a contract with Mr Sauer for the sale of their property pending finance and Mr Sauer had moved a lot of his possessions and cattle to their property and the finance had fallen through.

64. [64]
    He saw yards made from portable panels with a ramp and head bail near the residence of the property. There were 53 head of cattle in these yards, mainly Brahman and Hereford cross.

65. [65]
    Detective Powell indicates that Shan and Wayne Sauer were also there, the wife and son of the Defendant. They appeared to him to be trying to tidy up and collect belongings to take off Kawartha.

66. [66]
    Powell indicates he made enquiries about Dalga and found the property identification code and brands associated with Dalga.

67. [67]
    Powell spoke with Shan and Wayne Sauer.

68. [68]
    Wayne Sauer and Powell inspected cattle in the yards and they appeared to be freshly branded with a brand WKS which was Wayne Sauer’s brand. No scabbing had fallen off the brand.

69. [69]
    An inspection of the cattle was conducted and Wayne Sauer identified two cattle with an older WKS brand as his.

70. [70]
    Powell identified a lot of freshly branded cattle with the WKS brand some were cross branded with X7W. Some had the WKS branded directly over the X7W brand.

71. [71]
    He states nearly all of the cattle had no NLIS tags.

72. [72]
    Powell explains what NLIS is and that tags can only be removed with the chief inspector of DAFS (Department of Agriculture and Fisheries) approval.

73. [73]
    Powell explains white breeder (NLIS) tags are put in a beast prior to it leaving a property from its birth. An orange (NLIS) tag is a post breeder tag for a beast that was not born on your property or for a beast that had lost a tag.

74. [74]
    He states only two cattle had NLIS tags.

75. [75]
    Powell also saw some cattle had a brand spur YW which he later found out to be registered to William Oram of Box Vale Station which neighbours Dalga Station.

76. [76]
    Powell also testifies he spoke to Aaron Sparrow and two of his head of cattle branded with his ASA brand were also identified on Kawartha.

77. [77]
    Wayne Sauer produced his brand WKS and he took possession of that brand as well as the brand SZ over wings.

78. [78]
    Wayne Sauer also relinquished all cattle branded WKS to Powell.

79. [79]
    Powell says he inspected 53 head of cattle which he seized and had transported to the police holding paddock at Etna Creek the following day.

80. [80]
    Later that day he assisted the Ward’s in tidying up and noticed a portable donga an in an open doorway there was a buck containing Leader brand bags which he explains area stock brand for management tags or NLIS tags.

81. [81]
    Inside those bags he found a smaller plastic bag with eight removed NLIS devices. He testifies these devices had been cut as you have to cut the male piece.

82. [82]
    He testifies that a NLIS device is affixed to cattle and the device has a male and female section with the male section positioned behind the (centre of the) ear and with pliers (applicator), (with the female side of the tag facing forwards) you squeeze the male and female section together and the male section (on the outside of the ear) will lodge in the ear. To remove the device you have to cut the male section and he could see part of the male section still inside the NLIS device.

83. [83]
    He made enquiries regarding the PIC numbers on these devices and the PIC displayed on these devices were from Dalga Station and Box Vale Station.

84. [84]
    There were other bags in the donga that contained orange management tags.

85. [85]
    He also found nine NLIS male buttons with the word ‘Do not remove with other parts of the button cut.

86. [86]
    He also found a yellow management tag used, he explains, for individual management purposes with ink handwriting with OC1104. Later enquiries revealed that management tag belonged to Box Vale Station.

87. [87]
    He also found a quantity of plain orange management tags with pens which he took possession of. The NLIS ID printed on those devices were for Dalga and four for Box Vale Stations.

88. [88]
    Detective Powell took photographs of the items which are exhibit 2.

89. [89]
    Powell also assisted Leon Ward in loading some of the property onto and old white UD truck which, as a result of a registration check, he found out it belonged to the Defendant.

90. [90]
    As a result of a conversation with Mr Ward he entered the truck cabin and in the console he located some NVD (National Vendor Declaration) books from Dalga Station. These books are used when transporting cattle.

91. [91]
    There was other correspondence and documents in the name of the Defendant as well as an Emergency NVD and Waybill dated 1 May 2014 filled out for cattle to be moved from 941 Dalga Toad Gin Gin 4671, to ‘new property Thangool’, and signed and had the name of the Defendant. This document also shows the Dalga Station PIC (QFCL0673) and brand X7W and ear mark.

92. [92]
    Photographs were tendered of the truck and inside the cabin and console with documentation inside. Photographs were also taken of the emergency NVD and other documents and admitted into evidence as exhibit 3.

93. [93]
    Close inspection of the photograph of the emergency national declaration shows the person as owning or in charge of the husbandry of those cattle as Reginald Sauer, Dalga Station date 1 May 2014 with two signatures.

94. [94]
    Powell also located in a box on a rear table on patio section under a carport in an old residence at Kawartha plastic bags containing unused NLIS devices – white and orange tags as well as some blue tags. A blue management tag with phone number belonging to Dalga Station was also located. Another bag contained eight removed NLIS tags with a Dalga Station PIC.

95. [95]
    Photographs were taken of the above are exhibit 4.

96. [96]
    Powell and Green stayed at the station that night and to maintain possession of the seized cattle and the next day when the transport arrived loaded the cattle on to the truck to be taken to the police holding facility.

97. [97]
    Also that morning after a conversation with Mr Ward, Powell and Green walked up to a paddock directly behind the yards and saw a mob of cattle and because they were flighty made arrangements with Mr Ward.

98. [98]
    On 6 June Powell and other detectives processed the cattle and branded each beast with QP brand, a QP under a broad arrow with a corresponding exhibit number 1 to 53.

99. [99]
    They also affixed a management tag with a written QP and corresponding exhibit number.

100. [100]
     NLIS device were also affixed to cattle that had no device and was recorded on a property stock recording sheet which was tendered as an aid to exhibit 5.

101. [101]
     A police photographer took photos of each beast processed which are admitted into evidence as exhibit 5.

102. [102]
     On the 8 June 2014 William Oram, the former owner of Boxvale station, attended the holding facility and he identified six head branded with his brand – three steers and three cows. None of these cattle were cross-branded.

103. [103]
     Another beast with WKS brand was found that was a calf to one of Oram’s cows.

104. [104]
     None of the Box Vale cattle had NLIS tags but did bear holes in their ears where tags may have been.

105. [105]
     On 9 June 2016 Powell and Green attended the Rockhampton Watch House where they learnt the Defendant was in an attempt to interview him. He was in no condition to be interviewed.

106. [106]
     Exhibit 6 was admitted which includes photographs of seized brands WKS & Wings over SZ, located at Karawatha.

107. [107]
     On the 10 June 2016 Powell applied for a Post Search approval Order which his Honour Magistrate Cosgrove granted – Exhibit 7.

108. [108]
     On 12 June 2014 the seized cattle were inspected by a DAF vet and a stock inspector was also present and the vet’s observations were recorded on the stock recording sheet – part of exhibit 5.

109. [109]
     On 17 June 2014, after speaking with Mrs Ward, Powell and Detective Steele attended Kawartha where they observed a Brahman cross steer in the yards. The beast was very lame and after speaking with Leon Ward the beast was euthanized.

110. [110]
     The beast had an orange management tag in its ear with the words ‘W.Sauer’ and mobile phone number. It had a fresh WKS brand, had recently been dehorned and castrated. Photographs of the beast were tendered as exhibit 8.

111. [111]
     Powell had a further conversation with Mr Ward who handed him in a clip seal bag a removed NLIS device and had a date on it. It was a Dalga device and appeared to have been cut. It was photographed and the photographs admitted as exhibit 9.

112. [112]
     Powell and Steele also walked up to the paddock where Powell had previously seen cattle in an attempt to get closer to them for an inspection. They counted 17 cattle.

113. [113]
     They spoke to the Wards in relation to yarding them at a later date.

114. [114]
     On 27 June, Mr Ward rang Powell and indicated he had managed to yard the 17 cattle.

115. [115]
     The next day they attended and seized the cattle. The majority were branded with fresh WKS brand and one beast was branded with ASA.

116. [116]
     The cattle were transported to the Etna Creek holding facility where they were processed the following day using the police brand (QP54 to QP70), police management tags and police NLIS tags.

117. [117]
     Photographs were also taken of each beast and a DAF vet and stock inspector were present and form part of exhibit 5.

118. [118]
     Stock recording sheets were completed for these 17 cattle and admitted as exhibit 10.

119. [119]
     The following exhibits were admitted into evidence:

Exhibit 11 – Certification by the Registrar of Brands stating brand X7W is registered to Reginald Dean SAUER and Shan Machelle SAUER.

Exhibit 12 – Certification by the Registrar of Brands stating brand SIZ and Symbol SZ under wings is registered to Reginald Dean William SAUER and Shan Machelle SAUER.

Exhibit 13 – Certification by the Registrar of Brands stating brand WKS is registered to Wayne Keith SAUER.

Exhibit 14 – Certification by the Registrar of Brands stating brand ASA is registered to Aaron Jay SPARROW.

Exhibit 15 – Certification by the Registrar or Brands stating brand Spur YW is registered to William James ORAM.

Exhibit 16 – NLIS Life History Report.

Exhibit 17 – Photographs of old set of burnt out cattle yards on Dalga Station.

Exhibit 18 – Certificate of valuation of Panel Animal Valuers placed on 70 head of seized cattle. Value of 70 head of cattle as at 3 April 2014 $21,546.50.

120. [120]
     Powell was cross-examined in relation to dislodgement of tags by themselves from cattle when they are moved and indicated some do, however if they dislodge, the male section of the tag is still intact to the female section and there is no cut marks on it. It will pull through. It will not break off, or come off.

121. [121]
     He was also asked if they dislodge they just fall on the ground which he replied ‘Yes’.

122. [122]
     Powell also indicated in cross-examination the beast euthanised was not part of the valuation.

123. [123]
     Powell was also cross-examined on the freshness of the brands and he indicated his opinion from his knowledge they would have been branded within the last four weeks or less but could not place an exact date when.

124. [124]
     He was also asked about movement of cattle from Dalga prior to when the contract was signed 3 April 2014 and Powell indicated he believed there was none, no cattle moved prior to that date.

Steven Charles Beale

125. [125]
     Steven Beale testifies he knows Dean Sauer, the Defendant, as he purchased Dalga Station from him two years ago.

126. [126]
     He indicates he made several inspections of the property before signing a contract in early April 2014. He went through Geoff McNamara of Ray White Rural Gracemere who was the agent for the vendor.

127. [127]
     He believes the contract included all unbranded cattle as it states “All cattle, hides, skins”. It all included cattle with the brand X7W.

128. [128]
     Mr Beale indicates that because some of the land was leasehold it required Ministerial consent before the sale was completed.

129. [129]
     He put special conditions in the contract because he ‘found that the vendor was very difficult to communicate with and I had an uneasy feeling about the way things may have progressed whilst under contract’.

130. [130]
     The property was bought on ‘walk in walk out’ basis. Therefore it would not have been wise for me to have cattle able to be removed from the property during that period’.

131. [131]
     Me Beale conducted semi-regular visits to the property after the contract was signed as he indicates he was entitled to because of a clause in the contract. As a result of the visits some issues arose.

132. [132]
     The main occasion was when he arrived at the Minerva Creek yards he found some portable panels and ramp erected and recently used with cattle been through the yard. He indicates this was midway through the contract period when the property was under contract.

133. [133]
     He saw signs of cattle being in those yards and up the ramp, in his opinion from his experience, in the previous 48 hours.

134. [134]
     Mr Beale removed the supporting pin that locked the vertical stay to the platform of the ramp and buried the pin behind a building to stop it being further used.

135. [135]
     After viewing photographs of the yards Mr Beale identified relatively fresh cow dung, fresh cattle prints and minimal grass in the yard and compared this to the paddock in the background that was full of grass. Mr Beale indicates the yards had no grass and had been trodden on, torn up, ripped out or eaten.

136. [136]
     Mr Beale indicates settlement was delayed primarily because of the delay in Ministerial consent to mid-May.

137. [137]
     On the day of settlement Mr Beale indicates the vendors were meant to vacate by 5pm but it was not till 8pm that he was able to take possession of the property.

138. [138]
     Mr Beale spoke with Detective Powell in the first or second week June.

139. [139]
     In cross-examination Mr Beale indicates the Kalpowar recreational reserve was not part of the sale.

140. [140]
     In cross, Mr Beale indicates there was a discussion with the Defendant about cattle late in the contract period that the Defendant advised Beale that there were Dalga cattle at the Kalpowar recreational ground. He thinks this was about the day he was moving out.

141. [141]
     Beale indicates he had sighted them there and there were about 17 head.

142. [142]
     Me Beale stated in cross that the contract included all cattle bearing the brands of Dalga.

143. [143]
     Mr Beale denied the Defendant had said to him that he had removed some cattle from the recreational grounds.

144. [144]
     Mr Beale indicates that some cattle had been removed from Dalga and sold and the contract price for those 14 head of cattle were part of an adjustment at settlement.

145. [145]
     Mr Beale also indicated half a dozen cattle were returned to Boxvale after he had taken over control of Dalga.

146. [146]
     He returned cattle to various neighbours and he estimated probably returned 30 head to people over the two years.

Geoffrey Maurice McNamara

147. [147]
     Mr McNamara testifies he is the principal of Ray White Rural Gracemere. He is a real estate and livestock agent.

148. [148]
     He knows Mr Dean Sauer, the Defendant, as he has sold cattle for him for about six to seven years. He indicates Mr Sauer owned Dalga Station was aware that the brand he used was X7W.

149. [149]
     He says they sold Dalga Station in April/May 2014 after Mr Sauer appointed them as agent.

150. [150]
     Mr McNamara states that there was not a huge amount of interest in the property and Steven Beale looked at it first during Christmas 2013. Mr Beale then looked at it a number of times and he signed a contract on 2 April 2014 and Dean signed the contract on the 3 April.

151. [151]
     The contract had special clauses which included all cattle on the property were included in the sale. It was a walk in walk out arrangement.

152. [152]
     Mr McNamara indicates there was some cattle sold where an adjustment was made at the time of settlement.

153. [153]
     On 14 May, the day before settlement, a pre-settlement inspection was conducted by McNamara and Steven BEALE.

154. [154]
     They turned up about midday and drove around the property. They did not see anybody on the property.

155. [155]
     They saw activity in the yards with soil disturbance and fresh cow manure. The cow manure was wet and the soil moist and he estimated from his experience that there was activity in the last two days.

156. [156]
     He contacted the Defendant who advised he had been returning cattle to his neighbours.

William James ORAM

157. [157]
     Mr William Oram knows Mr Dean Sauer, the Defendant, as he and his ex-wife, brother and his wife use to own Boxvale Station which was next door to Dalga Station.

158. [158]
     They bought Boxvale in December 2003 and ran it as a beef cattle breeding operation and tourism business.

159. [159]
     They used a brand SPUR YW registered in Mr Oram’s name and had an earmark.

160. [160]
     They use to put NLIS devices in the ear of all the male calves when branded because when they sold weaner steers straight off their mothers and saved redoing them, but they did not always NLIS tag their heifers.

161. [161]
     ORAM stated that he used yellow management tags and some orange tags, predominantly yellow, starting with number one and he thinks got up to 1,400. They usually had their name on the tag Oram, Oram Cappell or OC.

162. [162]
     He indicates the boundary between Boxvale and Dalga was about five kilometres right across the back and down two sides a bit. The fencing was fair to good.

163. [163]
     Mr Oram state the fencing conditions towards the time period of April and May 2014 was good although sometimes cattle moved between the two properties sometimes.

164. [164]
     If they found Dalga cattle on their property he would take them back. This usually occurred when they mustered which was a couple of times a year.

165. [165]
     He remembers getting three head back over the 10 year between 2003 and 2013. One beast the stock squad brought back and Dean had two cows he brought to them in a truck.

166. [166]
     He testifies he knows the brand XW7 is Dalga’s.

167. [167]
     Mr Oram indicates the bank took possession of Boxvale in October 2013 and agisted some cattle.

168. [168]
     He state in June 2014, he received a phone call from Detective Powell.

169. [169]
     A few days later he and his wife attended Etna Creek and inspected a mob of cattle. He identified six of his cattle – three females and three steers as they had his brand and earmarks on them. They stood out because they were three reds and three blacks.

170. [170]
     He also noticed that one heifer calf that belonged to one of his cows had a Wayne Sauer’s brand WKS on it.

171. [171]
     He states he gave no permission or authority to anyone to take possession of any Boxvale cattle.

172. [172]
     He indicates he ran cattle at Box Vale till around mid-2015.

173. [173]
     He also states he and his wife, Toni Cappell, owned Boxvale cattle around April/May 2014.

Janette Margaret WARD

174. [174]
     Janette Ward testifies her and her husband bought Kawartha Stud, 166 Roys Road, Thangool in April 2007. It is a cattle property with yards, buildings and paddocks on 198 acres.

175. [175]
     In January 2014 they advertised the sale of the property through Ray White Real Estate.

176. [176]
     Mrs Ward testifies that on 9 April, Mr Sauer came up to their house and she spoke to him about the sale of their property. She advised Mr Sauer it was exclusively listed with Ray White and he should speak to Mark Simpson, the agent.

177. [177]
     Eventually a contract for sale was signed by Mr Sauer on 22 April and Mrs Sauer sign on 24 April and they then signed the contract.

178. [178]
     Part of the contract allowed Mr Sauer to bring some of his property onto Kawartha before completion of the contract.

179. [179]
     Mrs Ward says property started arriving on 30^th April including dongas, feed bins and rain water tanks.

180. [180]
     She also indicates that from 30April to 4 May two truckloads of cattle numbering approximately 35 to 40 head were brought onto Kawartha by Mr Sauer on a white truck.

181. [181]
     On the 5 May, Mr Sauer brought another truck load of cattle to the property.

182. [182]
     She noticed late that afternoon around 5:00pm, Mr Sauer and others, she believes his nephew Aaron and Sauer’s sister Aileen, branded all the cattle and put orange management tags in their ears. Mr Sauer’s parents, Reg and Irene were watching at the time.

183. [183]
     She could see it, because their house is about 50 metres from the yards, if that.

184. [184]
     Mrs Ward indicates that all the cattle in the yard were branded but cattle from the first two loads had been released to the hill paddock.

185. [185]
     She says all the cattle appeared cross-branded with WKS and freshly branded with the brand WKS.

186. [186]
     Mrs Ward explains cross branding to mean when you purchase cattle and take them home the cattle have the brand from the previous owner so you brand them with your brand and they become your cattle. She also states she does not know what the old brand on the cattle were although later she states she did not see other brands than WKS on the cattle.

187. [187]
     On the 12 May Mrs Wards says a further truckload of cattle came onto their property in Mr Sauer’s truck with him driving. She says she thinks there would be 15 to 20 head on that truckload.

188. [188]
     Horses were also brought onto the property by Mr Sauer a day or two before the 12 May.

189. [189]
     Mrs Ward saw on the 13 May, Mr Sauer unload cattle onto their property early in the morning, she thinks around the 7:00am, 7:30am time.

190. [190]
     She did not see him pull up but the truck was parked out the front when she got up that morning. She saw Mr Sauer unload them into the yard later in the morning.

191. [191]
     Mrs Ward indicates there were roughly 15 head. There was one horse on the truck at that time.

192. [192]
     She states on occasions Aaron helped the Defendant, and he came in the truck once with Mr Sauer, as far as she can remember. On other occasions Aaron has helped him unload the cattle brought by the Defendant as he was already present on the property bringing other loads of items from their previous property.

193. [193]
     Mrs Ward says on the 17 May, Mr Sauer and Aaron branded and put orange management tags in the cattle’s ear that were left in the yard.

194. [194]
     The Contract of Sale of Karawatha fell through on 30 May 2014.

195. [195]
     They asked Mr Sauer and his family to remove their items they had brought to the property and they saw relatives come and start taking property except the horses and cows.

196. [196]
     When the sale fell through, Mrs Ward and her husband started trapping cattle and noticed there were no NLIS tags in the cattle’s ears.

197. [197]
     Her husband contacted the stock squad and Detectives POWELL and GREEN attended on 3 June.

198. [198]
     They seized 53 head of cattle in the yard. There were about 20 cattle in a paddock.

199. [199]
     Powell found some NLIS tags and she states they appeared to be cut out from the cattle’s ear as if a knife had cut through the tag piece.

200. [200]
     Mrs Ward also testifies she was walking through her yards and found and discovered and NLIS tag in front of the head bail and picked it up and put it in a zip lock bag and wrote on the date and then called Powell and notified him we had found it.

201. [201]
     That tag was not from their property.

202. [202]
     It looked to Mrs Ward like it had been a used tag cut out of a beast’s ear. It was dirty, and looked to her like sweat and dirt rubbed in after a period of time in a beast.

203. [203]
     The cattle in paddock were mustered into the yard which numbered 17 head of cattle. She noticed they were all freshly branded with WKS and had orange management tags in their ears.

204. [204]
     They rang Detective Powell and he came out with another Detective she thinks the next day and those cattle were seized.

Leon David WARD

205. [205]
     Leon Ward testifies he and his wife are the owners of Kawartha Station, 116 Roys Road, Thangool.

206. [206]
     He testifies he first met Dean Sauer, the Defendant, when he came to him and his wife Janet, with an offer to buy their property. They subsequently signed a contract through Ray White Real Estate, Biloela which included terms that Mr Sauer could bring property onto Kawartha prior to completion of the contract. The contract subsequently feel through.

207. [207]
     He saw cattle being brought onto Kawartha in early May by Dean Sauer. He thinks it was roughly 20 head of cattle. He unloaded them.

208. [208]
     He saw them branded in his yards with WKS by a number of people including Dean Sauer were there and orange management tags were applied to them. Dean Sauer’s mobile number was written on the tags and W Sauer was also written on the tag.

209. [209]
     Leon Ward indicates he saw two loads of cattle that Dean Sauer brought onto his property.

210. [210]
     The second time was the 13 May as he came home from work and Dean Sauer’s UD truck parked there that morning, and then Dean unloaded them in the yards. None of the cattle had NLIS tags.

211. [211]
     He contacted the Stock Squad was contacted and they attended Karawatha. They seized 53 head of cattle.

212. [212]
     He testified he went to move some of Mr Sauer’s property into the UD truck and found some cut-out NLIS tags in the truck. They were not his PIC. He saw an NVD book and spoke to Detective Powell and told him what I’d found.

213. [213]
     Mr Ward says he and his wife also found a cut NLIS tag near the head bail in the yard that were not his.

214. [214]
     He says he believes they were cut because of the serration marks on the NLIS tag and he believes is a snip mark from scissors.

215. [215]
     This NLIS tag was bagged and passed onto Detective Powell.

216. [216]
     He indicates a further 17 head of cattle from his hill paddock were penned and appeared to have a fresh brand, WKS, and orange management tags in their ear.

217. [217]
     In cross-examination it was put its possible for a tag to be dislodged from a beast’s ear from time to time and Mr Ward agreed.

Wayne Keith SAUER

218. [218]
     Wayne Sauer testifies Dean Sauer (the Defendant) is his father and he is known as Dean.

219. [219]
     He indicates X7W was his father’s brand and WKS is his brand since somewhere around 2006.

220. [220]
     Wayne Sauer testifies he purchased a number of calves and small weaners, who says a number under 20. They were all cleanskins which he branded with WKS. These cattle already had NLIS tags in their ears.

221. [221]
     He indicates the WKS brand was used on Dalga Station by himself and his father.

222. [222]
     He became aware of financial difficulties through his mother and father regarding repayments on the property and that they were doing to have to sell it.

223. [223]
     Wayne Sauer says he had a conversation with this father about where the cattle he owned on the property would be moved to. At the time he owned approximately around 60 head of cattle.

224. [224]
     His father told him his cattle would be moved to this new property that they were looking at purchasing. He says the conversation took place shortly prior to the sale of Dalga Station. He says they would have had to get off Dalga about three weeks prior to the sale and this happened before the contract for sale was signed.

225. [225]
     Wayne Sauer attended Karawatha after the sale fell through to help with the removal of property.

226. [226]
     That is when he had contact the Stock Squad.

227. [227]
     He identified two head out of the cattle that were in the yards which were his cows that he had raised from potty calves. He says there were approximately 50 to 60 head there.

228. [228]
     He saw fresh WKS brands on the others as he could see the fresh burn marks on the hair of the cattle.

229. [229]
     Some cattle also had X7W brand on them.

230. [230]
     He found his branding iron in one side of the sheds, leaning against the wall.

231. [231]
     Wayne Sauer state he only gave permission to his father to use his brand to brand his cattle on Dalga Station and nowhere else.

232. [232]
     It was suggested in cross-examination that he had had a conversation in relation to using his brand by ‘your family, your mum and your dad and other family on Dalga’ was not specific that is it was not, ‘You can only use my brand on this station’.

233. [233]
     He replied that: ‘It was specific because I know in the fact of them using that brand when I applied for it, I’m solely responsible for where it gets used and I gave my father permission, if cattle came into the yards that were mine, that he was allowed to brand those cattle with my brand’.

234. [234]
     He was asked what happened to his 60 or so head of cattle and indicates he does not know. The last time he knew where they were was the bottom paddock on Dalga 12 months prior to talking to Police.

235. [235]
     He indicates his cattle were mixed in with other cattle and that the fencing on Dalga was very poor and that cattle from other stations wandered onto Dalga and cattle from Dalga wandered off Dalga.

Discussion

236. [236]
     The only witnesses called were for the Prosecution.

237. [237]
     Aaron Sparrow, who is the Defendant’s nephew, gave honest evidence although he was circumspect and careful not to provide too much detail in answering questions.

238. [238]
     All other witnesses gave forthright and honest evidence and I believe they were reliable and credible evidence.

239. [239]
     Janette Ward was an impressive witness, has a good memory of events and her evidence fits in with others evidence.

Stealing

240. [240]
     Mr Sauer and his wife, Shan Michelle Sauer, owned Dalga Station, 941 Dalga Road, Dalga which they sold in 2014 to Steven Beale because of financial difficulties. A contract of sale (exhibit 19) was executed on 3 April 2014 with completion 28 days after the contract date or five business days after Ministerial approval, whichever is the later. The sale was conditioned as a ‘walk in walk out’ which included all cattle on the property as described in schedule 1 of the contract.

241. [241]
     Specifically, the Contract for Sale refers to the conditions of sale and provides:

Contract

7. All cattle, hides and skins

8 All brands and ear-marks used in connection with the property including ‘X7W’

Annexure A Special conditions

8.3 Vendor not to remove cattle

On and from the contract date, the Vendor must not remove any cattle from the Land.

242. [242]
     The law is the vendor remains the legal owner of the property until title is transferred to the purchaser on completion. In equity, on formation of a valid contract the vendor becomes a trustee of the property for the purchaser and the vendor’s interest in the land is converted into an interest in the purchase price under the contract. The purchaser, on formation of a valid contract becomes the beneficial owner of the land, subject to completion of the contract: Bunny Industries Ltd v F.S.W. Enterprises Pty Ltd [1982] QdR 712.

243. [243]
     Mr Beale became the ‘owner’ of all cattle that belonged to Dalga Station when the contract for sale of Dalga Station was executed by the Sauers on 3 April 2014 which included all cattle as described in schedule 1 of the contract.

244. [244]
     As to any argument cattle not on Dalga when the contract was signed, or any that have wandered off Dalga after the signing of the contract do not form part of the contract is difficult to accept and such a term ‘all cattle’ whether cattle are on Dalga or somewhere else is necessary to be implied to give business efficacy to the contract. Whilst it may be said there is a deficiency in the expression of the consensual agreement caused by a failure of the parties to direct their minds to a particular eventuality and make explicit provision for it, it is implied as:

1. It would be just and equitable;

2. It is necessary to give business efficacy to the contract;

3. It goes without saying;

4. It does not contradict any express term in the contract^[5]

245. [245]
     In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, French CJ, Nettle and Gordon JJ said: “In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose of objects to be secured by the contract.”

246. [246]
     In my opinion, a reasonable businessperson would understand the term ‘all cattle’ includes cattle that may have wandered off Dalga Station that has been branded with Dean Sauer’s X7W brand are owned by the Defendant and, after 3 April 2014, Steven Beale. The brand is used as proof of ownership. Any person who takes them with intent to permanently deprive the owner of the cattle is stealing them.

247. [247]
     As to cleanskins, ownership of unbranded cattle does not depend on ownership of the land upon which those cattle are running. The common law position is that a calf is the property of the owner of the cow was distinguished in the law regarding cygnets in The Case of Swans (1592) 7 Co Rep 155B; 77 ER 435 because swans mate for life and the male swan shares care of the cygnets. See Reeve v Wardle; ex parte Reeve [1960] QdR 143 at 150. Bensted v Edwards [2003] QCA 145.

248. [248]
     In this case, the property may be legally owned by the Defendant, but subject to equitable interests held by the complainant. In such circumstances, the property interests protected range far beyond those of possession.

249. [249]
     The ‘special property’ recognised by law in certain cases is sufficient evidence of title against any wrongdoer.

250. [250]
     On 9 April 2014 Mr Sauer spoke to Mrs Janette Ward at her and her husband Leon, at their house on their property ‘Kawartha’ 166 Royes Road, Thangool about buying the property that was on the market.

251. [251]
     Mrs Ward put him in touch with Mark Simpson at Ray White Real Estate Biloela and eventually a contract for sale of the property was executed by Leon and Janette Ward as vendors and Reginald and Shan Sauer as purchasers on 24 April 2014 with settlement 28 days from the date of the contract.

252. [252]
     There appears to have been an agreement that Dean and Shan Sauer were able to bring their property from Dalga Station onto Kawartha before completion of the contract.

253. [253]
     Dean Sauer and Aaron Sparrow started moving property onto Kawartha on and from the 30 April including two truckloads of cattle brought by the Defendant in his white UD truck delivered from 30 April to 4 May.

254. [254]
     Mr Sauer brought other truckloads of cattle on 5 May and 12 May to Kawartha.

255. [255]
     Aaron Sparrow indicates that cattle were mustered and loaded on the Defendant’s truck at Dalga and the Defendant took them to Kawartha. This coincides with Mrs Ward’s evidence of cattle arriving on Kawartha. The Defendant also branded cattle on Kawartha with the WKS brand which is registered to his son. Most of the cattle belonged to Dalga, one to Sparrow and 6 were from Box Vale station and therefore Mr Oram’s cattle.

256. [256]
     There is no suggestion that Shan Sauer removed any property from Dalga Station during the contract period.

257. [257]
     The case is substantially based on inferences to be drawn from basic facts or, in other words, a circumstantial case.

258. [258]
     In Shepherd v the Queen (1990) 170 CLR 573, at 579, Dawson J described circumstantial evidence as “evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts”. Dawson J went on to say at 579-580: “As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.”

259. [259]
     As to the element of intention the position is explained in Sinnasamy Selvanayagam v The King [1951] AC 83 at 87 where the Privy Council observed that “…intention which is a state of mind, can never be proved as a fact: it can only be inferred from facts which are proved”. The same view was expressed in Cutter v The Queen (1997) 71 ALJR 638 per Kirby J at 647. See I (a child) v R (1992) 15 MVR 185; R v Singh (2003) 86 SASR 473; (2003) 230 LSJS 142; [2003] SASC 344.

260. [260]
     It may be proved by acts and events previous or subsequent to the transaction: see Re Grove (1889) 40 Ch D 216 at 242 where Lopes LJ said: “[In] order to determine a person’s intention at a given time, you may regard not only conduct and acts before and at the time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency.”

261. [261]
     Further circumstantial evidence is the National Vendor Declaration (NVD) and Waybill found in the Defendant’s truck by Detective Powell which was photographed and admitted into evidence in exhibit 3.

262. [262]
     Each time livestock are bought, sold or moved off property the livestock must be accompanied by documentation usually a NVD. It provides a declaration in the NVD and Waybill that all the information is true and correct.

263. [263]
     The emergency NVD and Waybill found in the truck by Powell on 4 June 2016 indicates Brahman cross cattle with brand X7W were transferred by the Defendant from 941 Dalga Road Gin Gin 4671 (Dalga Station – see contract of sale exhibit 19), to ‘new property Thangool’ on 1 May 2014. It is signed by the Defendant. It does not state how many cattle were moved.

264. [264]
     The branding of cattle on Kawartha with Wayne Sauer’s brand by the Defendant; the financial difficulties and having had to sell Dalga Station and did not have the finance to purchase Kawartha are significant in drawing the inference that the Defendant intended to permanently deprive Beale and Oram of their cattle.

265. [265]
     The cattle taken included seven head belonging to William Oram as they had his brand on six of them and one of those cows had a calf with the Defendant’s brand on it.

266. [266]
     There is no other hypothesis consistent with innocence that explains how Oram’s and Sauer’s cattle arrived on Kawartha station other than the Defendant took them there. Cattle were loaded on Sauer’s UD truck during the contract period for the sale of Dalga Station and then cattle started appearing on Kawartha just after Dean Sauer and Shan Sauer signed a contract to buy that property from the Wards.

267. [267]
     There is evidence cattle were sold by the Defendant either just before or during the contract period that was subject to an adjustment at settlement but that has nothing to do with how 70 head of cattle turned up on Kawartha.

268. [268]
     The Defendant did not have permission to do so and the circumstances indicate it was done to permanently deprive the owners of the cattle, Beale and Oram. It was not as if the cattle were mustered, found to be neighbour’s cattle and returned to them.

269. [269]
     A muster did take place on Dalga Station and Dalga cattle were removed from Dalga Station.

270. [270]
     Nor can there be an honest and reasonable mistake by Mr Sauer that he was not aware that they were Dalga cattle.

271. [271]
     The cases establish that there is an onus upon the Defendant to show that there is evidence of an honest and reasonable mistake fit to be considered by the tribunal of fact, but once that point is reached it is for the Prosecution to negative the existence of operative mistake, and the Defendant is entitled to the benefit of any doubt that the tribunal of fact may have in that regard: Loveday v Ayre; ex parte Ayre [1955] St R Qd 264 and Brimblecombe v Duncan; ex parte Duncan [1958] Qd R 8.

272. [272]
     There is no evidence to support any such claim by the Defendant including he has not or limited knowledge of the requirement to sell or move cattle. He has sold cattle through McNamara for at least 6 years. NVD books were found in the cabin of this truck including completed parts and he was seen branding and attaching tags to beasts in a yard on Kawartha. I infer from that he has knowledge of the requirement to buy and sell cattle and what is required by law for the movement of cattle and any defence of honest and reasonable mistake is not available.

273. [273]
     He admits moving cattle to McNamara off Dalga but there is nothing to support the statement he said he was returning them to neighbours. That was a lie. As Sparrow indicated things as this time were chaotic and the pre-settlement inspection by McNamara and Beale indicated cattle had, in their opinion from their experience, been in yards up to 38 hours before are facts that indicate cattle were moved and not just a couple.

274. [274]
     I should also indicate the evidentiary effect of the Certificate of Valuation (exhibit 18) under section 15 of the Criminal Code (Animal Valuers Regulation 2014 is that a certificate of valuation for an animal purporting to be signed by two animal valuers forming a panel is evidence –

1. (a)
   Of the panel’s formation for deciding the value of the animal; and

2. (b)
   Of the value of the animal as at the day stated in the certificate; and

3. (c)
   That the value of the animal has been decided under a regulation made under the Code, section 450F; and

4. (d)
   Of any other matter for which the approved form for a certificate of valuation, or the certificate of valuation, must or may make provision.

275. [275]
     A certificate is provided pursuant to section 450F of the Criminal Code 1899 which provides:

450F Animal Valuers and Valuations

3. (1)
   This section is applicable in every case in which a provision of this Code relates the amount of a fine to the value of an animal determined in accordance with the provisions of the regulations made pursuant to this section.

3. (2)
   The chief executive may appoint a person as an animal valuer.

3. (3)
   The Governor in Council may make regulations, not inconsistent with the provisions of this Code …

276. [276]
     I am satisfied beyond reasonable doubt the Defendant has taken Dalga cattle off Dalga in breach of the contract of sale during the contract period with intention to deprive the new owner, Steven Beale, of those cattle.

277. [277]
     I am satisfied beyond reasonable doubt, after considering the whole of the evidence, the Defendant is guilty of stealing as set out in charges one and four.

Using Registered Brand with Criminal Intention

278. [278]
     Charge two relates to using a registered brand with criminal intent.

279. [279]
     The Defendant branded cattle with help of Mr Sparrow and Janette Ward saw Sparrow, the Defendant’s sister Aileen and the Defendant branding all the cattle in the yard around 5:00pm on 5 May 2014 at Kawartha. The Defendant was doing the branding.

280. [280]
     Mrs Ward, on the 17 May, saw the Defendant and Aaron Sparrow brand and put orange management tags in the cattle’s ears that were left in the yard.

281. [281]
     Powell, on inspection of the cattle with Wayne Sauer on 3 June 2014 at Kawartha that were in the yard identified the cattle had been freshly branded with WKS brand and that some had WKS branded directly over the W7X brand.

282. [282]
     That brand is registered to Wayne Sauer, the son of the Defendant and the brand was seized by Detective Powell at Kawartha on 3 June 2014 as well as a brand SZ over wings.

283. [283]
     Wayne Sauer gave no permission for the Defendant to use his brand other than on Wayne’s own cattle.

284. [284]
     As to the element of intention, my previous comments regarding intention to permanently deprive Beale and Oram of their cattle and the motive for the Defendant to do this apply here as well.

285. [285]
     I am satisfied beyond a reasonable doubt, having regard to the whole of the evidence, the Defendant was branding the cattle with a registered brand without the permission of his son, the owner of the brand WKS, with intent to facilitate the commission of a crime as he had stolen cattle from Dalga Station with intent to deprive Beale of ownership of the cattle.

286. [286]
     I am satisfied beyond reasonable doubt the Defendant is guilty of this offence.

Defacing Brands

287. [287]
     The Prosecution case is that the Defendant defaced by placing brand WKS over the top of brand X7W on four cattle – QP6, QP23, Qp34 and QP60 between the 25 April and 4 June 2014 at Kawartha.

288. [288]
     Defacing so as to render undistinguishable does not mean obliteration. It means the putting of one brand over another, which, as the freshness of the last brand wears off, would have the effect on an ordinary inspection of confusing the original brand to such an extent as to render it undistinguishable: per Brennan J in Roach v Chubb [1931] QWN 49; (1931) 26 QJPR 13.

289. [289]
     The brand X7W is registered to the Defendant and Shan Sauer.

290. [290]
     The brand WKS is registered to Wayne Sauer and the brand was seized by Detective Powell at Kawartha on 3 June 2014 as well as a brand SZ over wings.

291. [291]
     Exhibit 5 is a series of photographs of the cattle seized.

292. [292]
     Powell on inspection of the cattle with Wayne Sauer on 3 June 2014 at Kawartha that were in the yard identified the cattle had been freshly branded with WKS brand and that some had WKS branded directly over the W7X brand.

293. [293]
     If Powell could see the WKS brand was directly over the W7X brand then it would be reasonable if the Defendant was branding cattle to inspect the beast to see if it has already been branded and see exactly the same as what Powell saw. It is not as if the Defendant is inexperienced with cattle. The onus is upon the Defendant to show that there is evidence of an honest and reasonable mistake fit to be considered by the tribunal of fact, but once that point is reached it is for the Prosecution to negative the existence of operative mistake.

294. [294]
     The Defendant branded cattle with help of Mr Sparrow and Janette Ward saw Sparrow, the Defendant’s sister Aileen and the Defendant branding all the cattle in the yard around 5:00pm on 5 May 2014 at Kawartha. The Defendant was doing the branding.

295. [295]
     Mrs Ward, on the 17 May, saw the Defendant and Aaron Sparrow brand and put orange management tags in the cattle’s ear that were left in the yard.

296. [296]
     The ‘Stock Recording Sheet’ for each beast when Detectives processed, including inspecting each beast seized, at Etna Creek holding facility, indicate beats QP6, QP23, QP34 and QP60 were freshly branded with WKS brand over the top of X7W brand.

297. [297]
     It is also significant that the WKS brand was placed over the X7W brand, the inference I draw considering the whole of the evidence, it was done to try to hide the W7X which, at that time, the cattle would have been the property of Mr Beale.

298. [298]
     Again the financial difficulties and having had to seel Dalga Station and did not have the finance to purchase Kawartha are significant in drawing the inference that the Defendant intended to permanently deprive Beale and Oram of their cattle.

299. [299]
     I am satisfied beyond reasonable doubt, having regard to the whole of the evidence, the Defendant has defaced a registered brand which was on an animal by branding the WKS brand over the top of the W7X brand on 4 beasts.

300. [300]
     I am satisfied beyond reasonable doubt, after considering the whole of the evidence, the Defendant is guilty of this offence

Restrictions on Removing Permanent Tags

301. [301]
     The Prosecution case is that between 2 April and 4 June at Kawartha the Defendant removed NLIS tags from cattle and he was not a stock inspector.

302. [302]
     Both charges relate to eight Dalga NLIS tags and four Boxvale NLIS tags.

303. [303]
     None of the Boxvale cattle had NLIS tags but did bear holes in their ears where tags may have been. The Stock Recording Sheets indicates numerous cattle were observed with no NLIS tag but a hole in the off ear including Dalga cattle.

304. [304]
     The NLIS tags found on Kawartha obviously had been cut from the ear of cattle without the approval of an inspector. They appeared to have a straight cut which indicates an implement such as scissors or a knife were used to cut the tags off as opposed to tearing.

305. [305]
     They were numerous tags found in bags so it cannot be said that cattle randomly had the tags ripped off going through fences or the beast hooked on a branch as they would fall straight onto the ground all over Dalga station. Someone picked them and put them in a bag and all the circumstantial evidence points to the Defendant.

306. [306]
     This charge relies purely on circumstantial evidence.

307. [307]
     Janette Ward also found a cut NLIS tag near the head bail in the yard that was not theirs. She put it in a zip lock bag, dated the bag and her husband handed it to Detective Powell.

308. [308]
     Leon Ward says he believes it was cut because of the serration marks on the NLIS tag and he believes is a snip mark from scissors.

309. [309]
     Both Detective Powell, Leon Ward and Janette Ward are experienced with cattle and accept their evidence that the NLIS tags were cut. Powell indicates in relation to dislodgement of tags by themselves from cattle when they are moved if they dislodge, the male section of the tag is still intact to the female section and there is no cut marks on it. It will pull through.

310. [310]
     This occurred, I believe, on the 5 May and/ or 17 May 2014 when Mrs Janette Ward saw cattle being branded by the Defendant.

311. [311]
     Again the financial difficulties and having had to sell Dalga Station and did not have the finance to purchase Kawartha are significant in drawing the inference that the Defendant intended to permanently deprive Beale and Oram of their cattle and remove NLIS tags that could trace the beasts back to their owners.

312. [312]
     I am satisfied beyond reasonable doubt, having regard to the whole of the evidence, the Defendant has removed the NLIS tags from the cattle without the approval of a stock inspector.

313. [313]
     I am satisfied beyond reasonable doubt, after considering the whole of the evidence, the Defendant is guilty of offence five and six.

Conclusion

314. [314]
     I find the Defendant guilty of all charges.

Mark Morrow

Acting Magistrate