Bond v Royal Society for the Prevention of Cruelty to Animals (SA)
[2011] SASC 19
•24 February 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BOND v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA)
[2011] SASC 19
Judgment of The Honourable Justice Duggan
24 February 2011
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES - CAUSING UNNECESSARY PAIN AND CRUELLY ILLTREATING
CRIMINAL LAW - APPEAL AND NEW TRIAL - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against conviction on a charge of aggravated ill treatment of an animal causing death contrary to s 13(1) of the Animal Welfare Act 1985 (SA) – appeal against sentence of five months imprisonment imposed by Magistrate – whether the evidence supported the charge as drafted – whether the Magistrate erred in not staying the prosecution on the ground that it was an abuse of process of the Court – whether it was open to the Magistrate to find that the appellant intentionally caused the dog harm.
Held: Appeal against sentence and conviction dismissed – Magistrate acted correctly in rejecting the argument that the appellant suffered prejudice by reason of the allegation in the information – it was open to the Magistrate to find the appellant intentionally caused the dog harm in the form of damage, pain, suffering, distress or unconsciousness – conviction was not unsafe or unsatisfactory – argument that the conviction cannot be supported having regard to the evidence and that the trial was unfair is rejected.
Sentencing remarks of Magistrate do not disclose any error – sentence was within Court’s discretion – offence constituted serious breach of Animal Welfare Act 1985 (SA) – circumstances of the appellant do not justify suspension of sentence.
Animal Welfare Act 1985 (SA) s 3, s13, s 13(1), s 13(3), s 13(3)(a), s 13(3)(g), s 13(3)(h), referred to.
Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481; Royal Society for the Prevention of Cruelty to Animals (SA) Incorporated v O'Loughlan [2007] SASC 113, discussed.
BOND v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA)
[2011] SASC 19Magistrates Appeal: Criminal
DUGGAN J: The appellant has appealed against his conviction on a charge of aggravated ill treatment of an animal causing its death, contrary to s 13(1) of the Animal Welfare Act 1985 (SA) (“the Act”). He also appeals against sentence.
On or about Tuesday 23 June 2009 the appellant had an argument with his girlfriend in the unit in which they were living at Agnes Street, Ottoway. The appellant’s girlfriend was the owner of a Keeshond dog. According to the version given by the appellant to the RSPCA officers who questioned him, he picked up a knife which he had used in his employment as a butcher and killed the dog. He then placed the carcass in a rubbish bin.
A post mortem examination was performed on the dog on the following day. It was carried out by Dr Bastianello, a veterinary pathologist at Gribbles Laboratory. She observed four superficial wounds to the head and a longitudinal cut which extended from the jaw through to the shoulder joint. There was no blood in the trachea and Dr Bastianello said in examination-in-chief that it was probable that neither of the carotid arteries were cut. There was an indication of slow bleeding and, in the view of the pathologist, the dog would have taken some time to die. She could not offer an opinion as to the order in which the cuts were caused. The longitudinal cut extended below the skin and into the muscles.
Dr Bastianello concluded that the dog probably died from blood loss and shock. She said that it was highly likely the dog would have been in pain as a result of the injuries and that loss of blood and difficulty in breathing would have resulted in distress.
The first ground of appeal complains of a rejection by the Magistrate of a defence submission that the evidence did not support the charge as drafted. The information alleged that:
On or about the 24th day of June 2009 at Ottoway in the State of South Australia, the defendant committed aggravated ill-treatment of an animal, namely a male Keeshond dog named “Nikki”, in that he repeatedly stabbed the dog so as to cause the death of the animal and he intended to cause, or was reckless about causing, the death of the animal.
Sections 13(1) and 13(3)(a) of the Animal Welfare Act 1985.
According to the argument, the prosecution evidence disclosed that a series of cuts had been inflicted on the dog whereas the allegation in the information was that the appellant “repeatedly stabbed” the dog.
It is clear that the allegation of repeated stabbing was provided as a particular of the actus reus of the offence, namely, the act of ill treating the dog. The allegation of stabbing was not a material averment. In these circumstances the relevant approach is as stated by Gleeson CJ in Environment Protection Authority v Sydney Water Corporation Ltd:[1]
In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged.
It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge take the form of a count in an indictment, or an allegation in a summons (Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16).
There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal (VHP (unreported, Court of Criminal Appeal, NSW, No 60733 of 1996, 7 July 1997)).
[1] (1997) 98 A Crim R 481 at 484.
Mr Tremaine referred to Royal Society for the Prevention of Cruelty to Animals (SA) Incorporated v O’Loughlan.[2] The respondent in that case was charged with ill treating a horse by not providing it with adequate food. The Magistrate dismissed the charge after reaching the conclusion that it was reasonably possible that the horse’s poor condition was due to bad teeth and excessive exercise, not lack of food. The appellant appealed against the dismissal of the charge. One of the grounds argued on appeal was that the Magistrate erred in not amending the complaint and finding that the offence of ill treatment was proved by the respondent’s failure to properly care for and treat the horse’s teeth. The appeal was dismissed. The ground relating to the amendment of the charge was rejected because allowing an amendment would have resulted in the respondent facing entirely different allegations.
[2] [2007] SASC 113.
However, the same cannot be said in relation to the present case where the only difference lay in the use of the word “stabbed” in the information instead of the word “cut” to describe the appellant’s admitted actions.
The Magistrate acted correctly in rejecting the argument that the appellant suffered prejudice by reason of the allegation of repeated stabbing in the information. He said:
It may be that there are cases where even though all elements of the offence are established, the particulars are so different from what the evidence establishes that a conviction should not be recorded. However in this case the distinction Mr Tremaine draws between stabbing as drafted and the evidence describing the injuries as cuts is a matter of particulars. In this instance there can be no doubt about the case the defendant had to meet, namely that the injuries he inflicted on Nikki by use of a knife resulting in the dog’s death constituted ill treatment.
Whether the injuries resulted in this case from a stabbing or a cutting action is not something the prosecution need prove. Either is sufficient if the other elements of the offence are established. I am satisfied beyond reasonable doubt that the wounds inflicted by the defendant using his knife lead to such blood loss that the dog went into shock and died.
Furthermore, the appellant and his advisors were provided with Dr Bastianello’s statement well before the summary hearing. In it she described the injuries in detail, referring to them as “cuts”. The appellant could not have been under any misapprehension before the hearing or throughout the prosecution evidence as to the physical acts relied upon to prove the charge.
Next, Mr Tremaine claims that the Magistrate erred in not staying the prosecution on the ground that it was an abuse of the process of the Court. This argument was based on the fact that the defence had not been advised of the intention to conduct the post mortem examination. According to the argument, the appellant was thereby deprived of the opportunity to arrange for a pathologist appointed by the defence to be present at the post mortem examination or to conduct a further examination. According to the argument this resulted in unfairness to the appellant which justified a stay of proceedings.
I agree with the reasons which the Magistrate gave for rejecting this argument. His Honour said:
Mr Tremaine’s complaint is that the RSPCA did not offer the defendant the opportunity to have either his own expert conduct a separate examination of Nikki’s body or be present during Dr Bastianello’s examination. Dr Bastianello’s qualifications to perform the autopsy or express the opinion she did were not challenged. Her unchallenged evidence was that an autopsy ideally is conducted within 48 hours of death. Once her autopsy was complete it was not possible for another pathologist to do a second autopsy given the dissecting she had performed. From her autopsy she prepared a report and took samples for further testing if necessary and took photographs. She was available for cross‑examination and the results of her autopsy were available to be considered by any defence veterinary pathologist. It is not put that any particular evidence that would have assisted the defence has been lost or destroyed, rather the defendant has lost the opportunity to obtain expert evidence.
Nikki’s body was incinerated in the normal process following the autopsy being conducted and there is evidence which I accept that no re-autopsy would have been possible in any event. In my view there is nothing to suggest that this lost opportunity has resulted in the trial process being unfair in any way that would justify staying the proceedings as an abuse of process.
In order to address the next argument it is necessary to refer to the following parts of s 13 of the Act:
13—Ill treatment of animals
(1)If—
(a) a person ill treats an animal; and
(b) the ill treatment causes the death of, or serious harm to, the animal; and
(c) the person intends to cause, or is reckless about causing, the death of, or serious harm to, the animal,
the person is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 4 years.
(2)A person who ill treats an animal is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
(3)Without limiting the generality of subsection (1) or (2), a person ill treats an animal if the person—
(a) intentionally, unreasonably or recklessly causes the animal unnecessary harm; or
(b) being the owner of the animal—
(i)fails to provide it with appropriate, and adequate, food, water, living conditions (whether temporary or permanent) or exercise; or
(ii)fails to take reasonable steps to mitigate harm suffered by the animal; or
(iii)abandons the animal; or
(iv)neglects the animal so as to cause it harm; or
(c) having caused the animal harm (not being an animal of which that person is the owner), fails to take reasonable steps to mitigate the harm; or
(d) uses the animal in an organised animal fight; or
(e) releases the animal from captivity for the purpose of it then being hunted or killed; or
(f) causes the animal to be killed or injured by another animal; or
(g) kills the animal in a manner that causes the animal unnecessary pain; or
(h) unless the animal is unconscious, kills the animal by a method that does not cause death to occur as rapidly as possible; or
(i) carries out a medical or surgical procedure on the animal in contravention of the regulations; or
(j) ill treats the animal in any other manner prescribed by the regulations for the purposes of this section.
Mr Tremaine draws attention to s 13(3)(g) and s 13(3)(h) of the Act. He points out that it is not an offence simply to kill an animal. According to the submission the appellant could not be found guilty of an offence under s 13(3)(g) or s 13(3)(h) because it was open to find on the evidence that the carotid arteries had been severed and the dog would have lapsed into unconsciousness almost immediately and, presumably, died without pain.
This argument fails to appreciate the scheme of s 13. Section 13(3) prescribes various ways in which the requirement of ill treatment might be proved. Simply because, in a particular case, ill treatment cannot be established in one of the prescribed situations does not mean that it cannot be proved by reference to another set of prescribed circumstances.
The circumstances upon which the allegation of ill treatment was based in the present case were those set out in s 13(3)(a). Ill treatment under that subsection occurs if a person “intentionally, unreasonably or recklessly causes the animal unnecessary harm”. “Harm” is defined in s 3 of the Act as:
… any form of damage, pain, suffering or distress (including unconsciousness), whether arising from injury, disease or any other condition.
It was open to the Magistrate to find that the appellant intentionally caused the dog harm in the form of damage, pain, suffering, distress or unconsciousness. One of these categories would have been sufficient, but the evidence was such as to establish ill treatment under each category.
As Mr Tremaine points out, in order to establish an offence under s 13(1) it is necessary to prove that the ill treatment caused the death of the animal. The evidence clearly established that the appellant caused damage to the dog which comes within the definition of “harm” as defined in s 3 of the Act. The damage, in turn, caused blood loss which resulted in death. When to this is added the evidence that the appellant acted intentionally and the harm caused was unnecessary, all elements of the offence are established.
In my view the conviction was not unsafe or unsatisfactory as alleged. I reject the arguments that the conviction cannot be supported having regard to the evidence and that the trial was unfair.
The appeal against conviction is dismissed.
Appeal against sentence
The appellant was sentenced to imprisonment for five months. The Magistrate declined to suspend the sentence.
The appellant was 46 years of age at the time of the offence. He is in receipt of a disability support pension and has a history of alcohol abuse. He told the RSPCA inspectors he was affected by alcohol at the time of the offence. He has a number of convictions which were incurred from 1981 until 2003. They include two convictions for assault occasioning actual bodily harm recorded in 1985 and 2003. Mr Tremaine has drawn attention to the fact that the appellant has no convictions for animal cruelty.
The offence constituted a serious breach of the Act. The dog was killed in a cruel manner while the appellant was in a fit of anger and motivated by spite following a dispute with his girlfriend.
The Act was amended on 4 October 2008. Under the previous legislation the maximum penalty for an offence of this nature was a fine of $10,000 or imprisonment for one year. The amendment created a new offence of aggravated ill treatment of an animal, the elements of which are set out in s 13(1). The maximum period of imprisonment provided for under this section is imprisonment for four years.
The Magistrate’s sentencing remarks do not disclose any error. The sentence of imprisonment was well within the Court’s discretion and the circumstances do not justify its suspension.
The appeal against sentence will be dismissed.