Brown v Royal Society for the Prevention of Cruelty to Animals (SA) Inc - [2017] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BROWN v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2017] SASC 95
Judgment of The Honourable Justice Kelly
27 June 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE - UNSATISFACTORY NATURE OF TRIAL
Appeal against conviction.
The appellant was charged on complaint with one count of ill treatment of a dog causing its death in contravention of s 13(1) of the Animal Welfare Act 1985 (SA) and one count of ill treatment of a dog in contravention of s 13(2) of the same Act.
On 18 May 2015 an RSPCA inspector attended the appellant’s residence at Hackham West acting on information that a dog in the care of the appellant in an emaciated condition had died. After speaking with the appellant, the inspector discovered the deceased dog in a rubbish bin outside the appellant’s home. The premises was then inspected and the dog was examined by a veterinary pathologist.
Throughout the proceedings the appellant failed to attend court on numerous occasions. The appellant first appeared in the Christies Beach Magistrates Court on 30 July 2015 and, after a number of adjournments for non-attendance and other reasons, she was eventually convicted of both offences in her absence on 25 May 2016.
The appellant appeals on five grounds. First, the appellant complains that the trial was a nullity in that the proceedings were commenced on complaint and not on information, the first count being an indictable offence. Second, that the finding of guilt on both counts was contrary to the provisions of s 13(4) of the Animal Welfare Act. Third, that the Magistrate erred in proceeding with the trial in the absence of the appellant. Fourth, that the Magistrate erred in admitting evidence of admissions made by the appellant and fifth, that the Magistrate erred in admitting evidence by way of affidavit from a forensic veterinary pathologist.
Held (allowing the appeal):
1. The provisions in Part 5 of the Summary Procedure Act 1921 (SA) necessitated that the offence charged under s 13(1) of the Animal Welfare Act – a minor indictable offence – be laid on an information rather than on a complaint and mandated that the appellant be given the right to elect for a trial by jury.
2. It was not open to the Magistrate in the circumstances to convict the appellant of both offences under s 13(1) and s 13(2) of the Animal Welfare Act.
3. The convictions and sentence imposed by the Magistrate are set aside.
4. The matter is remitted to the Magistrates Court.
Animal Welfare Act 1985 (SA) s 13(1), s 13(2), s 13(4), s 32A(1); Summary Procedure Act 1921 (SA) s 101, s 103(2), s 107(4), referred to.
Sutcliffe v RSPCA (SA) Inc [2016] SASC 125; Royal Society for the Prevention of Cruelty to Animals (RSPCA) (SA) Inc v Rogers [2016] SASC 185; Pearce v The Queen (1998) 194 CLR 610, applied.

BROWN v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2017] SASC 95
Magistrates Appeal: Criminal
KELLY J.

The appellant, Vicki Muriel Brown, appeals two convictions relating to the ill treatment of a dog contrary to s 13(1) and 13(2) of the Animal Welfare Act 1985 (SA) (the Animal Welfare Act) recorded in the Christies Beach Magistrates Court on 25 May 2016. The appellant failed to attend court on a number of occasions and on 18 May 2016 the trial proceeded in her absence. She was convicted of the offences in her absence on 25 May 2016.
On 5 December 2016 the appellant was sentenced to six months imprisonment and ordered to be released after serving six weeks, with the remainder of the sentence to be suspended. An order was also made forbidding the appellant from acquiring or having custody of any animal.
The appellant now appeals on five grounds. First, that the trial was a nullity in that the proceedings were commenced on complaint and not on information, the first count being an indictable offence. Second, that the finding of guilt on both counts was contrary to the provisions of s 13(4) of the Animal Welfare Act. Third, that the Magistrate erred in proceeding with the trial in the absence of the appellant. Fourth, that the Magistrate erred in admitting evidence of admissions made by the appellant and, fifth, that the Magistrate also erred in admitting evidence by way of affidavit from a forensic veterinary pathologist Dr Allan Kessell.
Before turning to the issues on appeal it is necessary to briefly summarise the relevant factual background.
On 18 May 2015 an inspector from the Royal Society for the Prevention of Cruelty to Animals (SA) Inc (RSPCA) went to the appellant’s residence at Hackham West acting on information received that a dog in the care of the appellant in an emaciated condition had died.
The RSPCA inspector, Ms Doudle, knocked on the door of the appellant’s home. The appellant answered and identified herself as Ms Brown. The appellant admitted that the dog had died but told Ms Doudle she had buried it and she was unwilling to show Ms Doudle the location of the dog.
Acting on information that the body of the dog had been placed in a bin, Ms Doudle later found the dog in a rubbish bin located outside the appellant’s home at Hackham West. The body of the dog was seized and later examined by a veterinary pathologist.
Ms Doudle then returned to the appellant’s unit and told the appellant she had located the body of the dog in the bin. The appellant was interviewed and in the interview she stated the following:
·The dog’s name was Kenny;
·She had owned Kenny for approximately one year;
·Kenny seemed to be eating, drinking and toileting;
·Kenny seemed to be skinny and not putting on any weight;
·The appellant did not seek any assistance from a vet for Kenny as she did not have transport and could not afford it;
·The appellant did not seek assistance from the RSPCA or any other friends because she did not consider it necessary; and
·The appellant confirmed that Kenny had been living in the bathroom of the premises.
The inspector photographed the interior of the unit, including the bathroom where Kenny was said to have lived.
Later, the appellant was charged on complaint with two offences. The first, an offence contrary to s 13(1) of the Animal Welfare Act of ill treatment of an animal causing death. Particulars alleged were that the appellant, being the owner of the animal, failed to provide the dog with appropriate and adequate food or water. The second offence was ill treatment of an animal contrary to s 13(2) of the Animal Welfare Act, the particulars being that the appellant failed to provide the dog with appropriate and adequate living conditions.
Proceedings in the Magistrates Court
The history of the proceedings in the Magistrates Court shows that the appellant failed to attend on numerous occasions.
The appellant first appeared in the Christies Beach Magistrates Court on 30 July 2015 at which time she was represented by counsel. An adjournment was granted to allow her counsel to obtain the details of the allegations and for the appellant to give instructions to her counsel.
When the matter next came on again on 9 September 2015 neither the appellant nor her counsel appeared. A message was received on that date from the appellant advising that she was unwell and unable to attend the hearing. The matter was then adjourned in the appellant’s absence.
On 21 October 2015, the adjourned date, the appellant and her counsel appeared and a further adjournment was granted.
On 2 December 2015 the matter was again listed in the Christies Beach Magistrates Court. However, on this occasion the appellant did not appear and her counsel sought a further adjournment. The matter was then adjourned to 21 January 2016.
On that date the appellant appeared unrepresented and the matter was listed for a pre-trial conference on 15 March 2016. The appellant failed to attend court on that date and at that time a warrant was issued to secure her attendance at court. Police bail was authorised.
The appellant appeared unrepresented on 12 April 2016 in answer to her bail and the matter was listed for trial.
On 18 May 2016, the date the matter was listed to commence for trial before Magistrate Sheppard, the appellant failed to attend court and a warrant was again issued to lie on the file. On that date the trial proceeded ex parte. The Magistrate heard evidence from Ms Doudle, the RSPCA inspector, and from a veterinarian Dr Bradley Ward. The trial was then adjourned for the Registrar to advise the appellant of the next court date.
The matter came on again on 25 May 2016, at which time further evidence was taken, including the tendering of an affidavit of Dr Allan Kessell dated 24 May 2016 together with a report prepared by him dated 19 May 2015. The receipt of that report is the subject of ground 5 of the appeal. The Magistrate accepted that material.
The appellant did not attend court on that date and the Magistrate convicted her in her absence.
On 24 August 2016 the appellant was arrested and admitted to bail but was required to attend court again on 12 September 2016.
On 12 September 2016 the appellant appeared unrepresented, at which time the Magistrate ordered a pre-sentence report and adjourned the matter to 17 October 2016.
On that date the appellant appeared and was represented by a duty solicitor. The Magistrate revoked the appellant’s bail and remanded her in custody awaiting the pre-sentence report.
On 5 December 2016 the Magistrate sentenced the appellant to six months imprisonment backdated to the date she was first taken into custody, being 17 October 2016. The appellant was ordered to be released after serving six weeks and the remainder of the sentence was suspended on the condition the appellant enter into a bond to be of good behaviour for two years. Hence, by the time this appeal was heard on 23 May 2017, both the suspended and unsuspended periods of the appellant’s sentence had expired.
At the time the appellant was sentenced the Magistrate also made an order pursuant to s 32A(1) of the Animal Welfare Act forbidding the appellant from acquiring or having custody of any animals until further order.
Grounds of Appeal
Although the appellant has appealed on five grounds I consider it is only necessary to deal with the first two grounds.
The first ground of appeal is a complaint that the trial was a nullity in that the proceedings were commenced on complaint and not on information as is required when one of the offences charged is a minor indictable offence.
Section 5 of the Summary Procedure Act 1921 (SA) (the Summary Procedure Act) classifies offences as summary or indictable, with indictable offences being further classified as either major indictable or minor indictable offences. Some important procedural consequences follow from the classification of an offence as indictable, either major or minor.
Summary offences are relevantly defined in s 5(2) of the Summary Procedure Act as offences to which a maximum penalty of or including imprisonment up to two years is prescribed. A minor indictable offence is relevantly defined in s 5(3)(a) of that Act as an offence for which the maximum term of imprisonment does not exceed five years.
Part 3 of the Animal Welfare Act creates offences to do with the care and treatment of animals. The appellant was charged under s 13(1) and 13(2) of that 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
(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.
(4)A person charged with an offence against subsection (1) (the aggravated offence) may be convicted of an offence against subsection (2) (the lesser offence) if the court is not satisfied that the aggravated offence has been established beyond reasonable doubt but is satisfied that the lesser offence has been so established.
(5)It is a defence to a charge of an offence against subsection (2) if the defendant proves that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
(6)In this section—
cause—a person's act or omission causes the death of, or harm to, an animal if the act or omission substantially contributes to the death or harm.
It follows from the penalty prescribed under s 13(1), being imprisonment for four years or a fine of $50,000, that an offence under s 13(1) is correctly classified as a minor indictable offence.
Part 5 of the Summary Procedure Act sets out the procedures which are to be followed where a person is charged with the commission of an indictable offence. Under the provisions of s 101 of the Summary Procedure Act an information may be laid:
101—Information of indictable offence
(1)Where a person is suspected of having committed an indictable offence triable in this State, an information may be laid, in accordance with the rules, charging that person with that offence.
(2)If the information is laid orally, it must be reduced to writing.
(3)An information must be filed in the Court as soon as practicable after it is laid.
Section 103(2) of the Summary Procedure Act provides that a defendant charged on information with an indictable offence must be provided with a copy of the information and, if the offence is a minor indictable offence, the appropriate form for electing for trial in a superior court. Later sections of the Summary Procedure Act deal with the procedures to be followed when a person charged with a minor indictable offence elects for trial in a superior court and where a person charged with a minor indictable offence does not elect or, having elected for trial by a jury, wishes to withdraw that election. Importantly s 107(4) of the Summary Procedure Act provides that the court will not proceed to deal with the charge of a minor indictable offence in the same way as a charge of a summary offence unless it has satisfied itself that the defendant fully understands that he or she is entitled to elect for trial by jury.
It can be seen from the scheme of the Summary Procedure Act that a person charged with a minor indictable offence has an inalienable right to elect for a trial by jury.
In this case the offence was erroneously charged on complaint instead of on an information which would have triggered the correct procedures, namely, the appellant would have been provided with a form to elect for trial by jury if she so chose.
I am satisfied that in the course of these proceedings at no stage was the appellant ever advised of her right to elect for a trial by jury, nor was she ever provided with the appropriate form advising her of that fact.
In the circumstances, the appellant’s submission that this incorrect procedure was fatal to the validity of the conviction must be upheld.
I turn now to the second ground of appeal. In this ground the appellant complains that the finding of guilt on both counts – that is the finding of guilt of both the ill treatment of an animal causing its death contrary to s 13(1) of the Animal Welfare Act and the finding of guilt of the ill treatment of an animal contrary to s 13(2) – was contrary to the provisions of s 13(4).
These subsections were analysed by Blue J in Sutcliffe v RSPCA (SA) Inc.[1] In that case his Honour concluded that the purpose of subsection (2) is to create a lesser offence than that which is created by subsection (1). His Honour stated that:
[58]    Subsection 13(1) creates a different and more serious offence to that created by subsection 13(2). A comparison of the two subsections shows that they both have in common as an element of the respective offences created by them ill treatment by a person of an animal, but the offence created by subsection (1) contains two additional elements, namely:
1.     the ill treatment causes the death of or serious harm to the animal (a physical element); and
2.     the person intends to cause or is reckless about causing the death of or serious harm to the animal (a mental element).
…
[62] The evident purpose of subsection 13(2) is to create a lesser offence than the offence created by subsection 13(1), containing only the first of the three elements of the more serious offence and without the causation or intention or recklessness elements of the more serious offence. Section 13 proceeds on the basis that the owner of an animal has an affirmative responsibility to look after it.
[1] [2016] SASC 125.
I agree with Blue J. The wording of subsection (4), in referring to subsection (1) as being “the aggravated offence” and subsection (2) as being “the lesser offence”, makes it clear that the offence under subsection (2) is intended to be an alternative offence to subsection (1).
The issue was further considered by Peek J in Royal Society for the Prevention of Cruelty to Animals (RSPCA) (SA) Inc v Rogers.[2] In that case his Honour confirmed that:
[36] Blue J’s analysis of the position is clearly correct. It follows that in a case of the present type where there was only one transaction relied upon, it was proper to charge both an offence against s 13(1) and an offence against s 13(2) of the Act, but only as alternatives. Charging such alternative charges enables a defendant to consider his position as to whether he will plead guilty to one of the two charges.
[37] If the defendant decides to plead guilty to the more serious offence, no plea should be taken concerning the less serious charge, which should be dismissed. If the defendant is willing to plead only to the less serious charge, it will be up to the prosecutor as to whether such a plea will be taken in satisfaction of the complaint. If the prosecutor is so willing, the plea of guilty to the less serious offence will be taken; and no plea should be taken concerning the more serious charge, which should be dismissed. If the prosecutor is not so willing, the trial will proceed on the chosen pleas of the defendant to the two charges and it will be for the Magistrate to determine whether he will find the defendant guilty of count 1, or of count 2, or of neither – but not of both.
…
[39] In future cases it must be borne in mind that there cannot be convictions of both an offence against s 13(1) and an offence against s 13(2) of the Act based on the same incident as occurred in the present case.
[2] [2016] SASC 185.

There exists in law a general principle that in the absence of any contrary legislative intention, an offender must not be punished twice for the commission of an offence where there are common elements.[3] I find that there is no such contrary intention in s 13 of the Animal Welfare Act. In addition, notwithstanding the purported reliance on different conduct in respect of the particulars alleged in each charge, I find that in fact it was in substance the same conduct which gave rise to the allegations in both counts 1 and 2, for which the appellant was ultimately convicted. It follows, therefore, that on the facts here, the Magistrate erred in convicting the appellant of both offences.
[3] Pearce v The Queen (1998) 194 CLR 610.
It is regrettable that as a result this matter must now be remitted to the Magistrates Court. The allegations against the appellant involving, as they do, allegations of wanton and prolonged cruelty to an animal resulting in its death, are very serious. The appellant herself is partly to blame for this state of affairs, having failed on numerous occasions to attend court. Whatever the reason for her non-attendances, she herself has been to a large degree the author of her own misfortune by her flagrant disregard of adjourned court dates until eventually the court ran out of patience and issued a warrant for her arrest. Nevertheless, it is also regrettable that no legal counsel on either side of the bar table seemed to have turned their mind to the critical issue, or raised it with the Magistrate at any stage of the proceedings in the court below.
However, the errors which occurred in this case necessitate appellate intervention. I allow the appeal, set aside the convictions and the sentence imposed by the Magistrate and remit the matter to the Magistrates Court for the prosecution to take whatever action may be deemed appropriate in light of the fact that the appellant has now served the sentence imposed upon her.