Crisp v Royal Society for the Prevention of Cruelty to Animals (SA) Inc
[2011] SASC 191
•3 November 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CRISP v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2011] SASC 191
Judgment of The Honourable Justice White
3 November 2011
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES - MISCELLANEOUS OFFENCES
The appellant pleaded guilty to one count of ill treating animals (three emus) in contravention of s 13(2) of the Animal Welfare Act 1985 (SA), and one count of keeping a protected animal of a prescribed species (the emus) without authorisation in contravention of s 58 of the National Parks and Wildlife Act 1972 (SA) - the sentencing Magistrate recorded convictions against the appellant on both counts and, without imposing a penalty, discharged the appellant upon her entering into a bond - the Magistrate made ancillary orders including that the emus be forfeited to the RSPCA, that the appellant not acquire any other animals until further order, and that the appellant be under the supervision of an inspector for a period of 12 months - the Magistrate awarded costs against the appellant in the sum of $4660.
The appellant appealed against both the convictions and the sentence.
Held: appeal against convictions dismissed - the Court allows an appeal against conviction recorded following a plea of guilty in only limited circumstances - no miscarriage of justice in this case.
Appeal against sentence allowed in part - the Magistrate acted beyond power in ordering that the emus be forfeited to the RSPCA, and that Mrs Crisp be under the supervision of an inspector - no reasonable basis for the order preventing Mrs Crisp, until further order, from acquiring any animals - order that the emus be forfeited to the Crown - the orders prohibiting the appellant from acquiring further animals, and for supervision set aside - appeal against sentence otherwise dismissed.
The costs awarded reduced so as to accord with the applicable Scale and to reflect the amounts reasonably incurred by the RSPCA.
Animal Welfare Act 1985 (SA) s 13, s 28, s 31A, s 31B, s 31E, s 32A; National Parks and Wildlife Act 1972 (SA) s 58; Criminal Law (Sentencing) Act 1988 (SA) s 39; Summary Proceedings Act 1921 (SA) s 189; Acts Interpretation Act 1915 (SA) s 42, referred to.
Rainbird v Samuels (1972) 4 SASR 187; Police v Warren [2000] SASC 285; Markl v Police [2005] SASC 141; R v Cranssen (1936) 55 CLR 509; Brebner v Bruce (1950) 82 CLR 161; Willing v Watson (1974) 8 SASR 487, considered.
CRISP v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2011] SASC 191
Magistrates Appeal
WHITE J. On 4 November 2010, the appellant, Mrs Crisp pleaded guilty in the Magistrates Court to two offences: ill treating animals (three emus) in contravention of s 13(2) of the Animal Welfare Act 1985 (SA) (AWA); and keeping without authorisation more than one protected animal of a prescribed species (the three emus) in contravention of s 58(1)(a) of the National Parks and Wildlife Act 1972 (SA). The ill treatment alleged was Mrs Crisp’s failure to provide the emus with appropriate and adequate living conditions.[1]
[1] AWA s 13(3)(b)(i).
At the same time, the prosecutor, the Royal Society for Prevention of Cruelty to Animals (SA) Inc (the RSPCA), withdrew two other counts: one of failing to comply with a direction given to Mrs Crisp in an Animal Welfare Notice (s 31B(2) of the AWA); and one of hindering or obstructing an inspector exercising his powers under the AWA (s 31E(a) of the AWA).
The maximum penalty for the offence of ill treatment of an animal is $20,000 or imprisonment for two years. The maximum penalty for the offence of keeping a prescribed species without authority is a fine of $2,500. For this and other reasons, the Magistrate regarded the ill treatment offence as being the more serious of the two.
The Magistrate regarded the circumstances of Mrs Crisp’s offending as unusual, if not rare. Unlike many of the cases of ill treatment of animals which come before the courts, there was no suggestion that Mrs Crisp had failed to provide the emus with sufficient food or water, or that she had engaged in some form of active conduct involving cruelty. The conduct upon which the RSPCA relied was that Mrs Crisp had kept the three emus in a pen of limited size, which prevented them running freely. In addition, the low height of the shelter in the pen meant that they could obtain protection from the elements only by adopting a somewhat cramped position under the shelter.
The Magistrate accepted that Mrs Crisp has a genuine love of animals, and that she is well used to caring for animals. The RSPCA did not suggest that she had any relevant previous offences. Mrs Crisp subsists on Centrelink benefits. Despite the legislative policy that cruelty to animals should be punished, and the need for general deterrence, the Magistrate considered that the particular circumstances of Mrs Crisp’s case meant that discharge on a bond was appropriate.
Accordingly, acting under s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), the Magistrate recorded convictions on both counts and, without imposing a penalty, discharged Mrs Crisp upon her entering into a bond in the sum of $200. The terms of the bond required Mrs Crisp to be of good behaviour for a period of 12 months and, in the event of a breach, to come up for sentence if called upon. Mrs Crisp entered into that bond.[2]
[2] The original of the bond was not on the Magistrates Court file provided to this Court but it was common ground that Mrs Crisp had entered into a bond in the terms indicated.
The Magistrate then made ancillary orders as follows:
1.An order under s 31A(3) of the AWA that Mrs Crisp reimburse the RSPCA the sum of $482, being the costs which it had incurred in the care and custody of the three emus.
2.An order that the three emus be forfeited to the RSPCA.
3.An order under s 32A of the AWA that, until further order, Mrs Crisp not acquire any other animals.
4.An order that, for a period of 12 months, Mrs Crisp be under the supervision of an inspector.
5.An order under s 189 of the Summary Procedure Act 1921 that Mrs Crisp pay the RSPCA its costs, which the Magistrate fixed in the sum of $4,660.
6.Finally, the Magistrate ordered Mrs Crisp to pay the Victims of Crime levy of $160.
Mrs Crisp now appeals, out of time, against the Magistrate’s decision. She did not have legal representation on the appeal. This, together with Mrs Crisp’s limited education, made the conduct of the appeal difficult. The handwritten grounds of appeal are:
1. Felt under pressure from all parties to plead guilty.
2. Judgment/penalty too harsh.
These grounds suggested that Mrs Crisp wished to appeal against both the convictions and the sentence.
It is convenient to address the merits of the appeal before considering Mrs Crisp’s application for an extension of time within which to appeal.
Appeal Against Convictions
The difficulty with Mrs Crisp’s appeal against the convictions (in the sense of the findings of guilt) is that she had entered guilty pleas.
This Court may allow an appeal against convictions entered on such occasions but the circumstances in which it will do so are generally of an exceptional kind. In Hinton v O’Dea,[3] Jacobs J said:
[A] Court will not lightly set aside a conviction founded on a plea of guilty. Speaking generally, it will do so where it has been established to the satisfaction of the Court that the making of the plea has been induced by a material mistake – which is not this case – or by some improper threat or promise on the part of a police officer or other person in authority, and that but for the inducement the plea would not have been made. Although the matter last mentioned is no doubt an important matter to be considered, the right of a defendant to a completely free choice, whether to plead guilty or not guilty, is so important that in a case where the Court is satisfied that improper threats or pressure have been brought to bear there is a reasonable presumption of fact that the threats or pressure had the effect they were intended to have.[4]
It will be noted that Jacobs J referred in this passage to improper threats or promises on the part of a police officer or some other person in authority.
[3] (1977) 16 SASR 234. See also Rainbird v Samuels (1972) 4 SASR 187 at 188-9.
[4] Ibid at 235-6.
In Police v Warren,[5] the defendant pleaded guilty after receiving incorrect legal advice as to the minimum penalty which must be imposed. Counsel for the defendant became aware during the course of the sentencing submissions of an error in the advice. The defendant then moved to withdraw his plea of guilty. However, he refrained from doing so when the Magistrate indicated, without reference to the prosecution, that he would impose a penalty in line with the defendant’s original expectation. The defendant then maintained his plea. The penalty ultimately imposed by the Magistrate in accordance with his intimation was one which was not authorised by law. Gray J allowed an appeal against conviction and permitted the defendant to withdraw his plea. A significant feature in the case was, however, that the defendant had been induced by a statement made by a person in a position of authority (the Magistrate) to maintain his plea when the mistake in the original advice was first identified.
[5] [2000] SASC 285.
The underlying concern of the courts in circumstances such as the present is to prevent manifest miscarriages of justice. The principal question is always whether there is “a reasonable apprehension that justice miscarried in the court below”.[6] This means that persons who well understand the charges against them and who decide to plead guilty for reasons of expediency cannot afterwards complain on the basis that they had all along considered that they were innocent.[7]
[6] Markl v Police [2005] SASC 141.
[7] R v Cranssen (1936) 55 CLR 509 at 519; Markl v Police [2005] SASC 141.
In the present case, Mrs Crisp contended that she had pleaded guilty because of pressure which had been applied to her. Although she did not use these words, her submission was to the effect that her will had been overborne. For the reasons which follow, I do not consider that that submission should be upheld.
Mrs Crisp first appeared in Court on the charges laid by the RSPCA on 5 May 2010. She was then represented by a solicitor, Mr Semmens. The matter was then adjourned for negotiations and delivery of documents.
On 7 July 2010 the Magistrate fixed a pre‑trial conference on 19 August 2010. Mrs Crisp attended at the pre‑trial conference, again represented by Mr Semmens. When the pre‑trial conference did not produce any resolution, a Magistrate fixed the matter for trial on 4 November 2010, noting that Mrs Crisp would be unrepresented at the trial.
Mrs Crisp attended at the Ceduna Courthouse on 4 November 2010. She was accompanied by her 29 year old daughter and her daughter’s partner. In addition, Mr Semmens, although not retained for the trial, attended at the Courthouse, apparently in a voluntary capacity, to lend such assistance as he could.
The RSPCA was represented at the hearing by two legal practitioners, one of whom is a barrister at the independent bar with considerable prosecution and defence experience. In addition, the RSPCA had witnesses present at the Courthouse in readiness for the trial.
However, before the trial commenced, some further discussions occurred. Mrs Crisp was encouraged first by her daughter, then by her daughter’s partner, and then by Mr Semmens, to plead guilty to the two offences identified at the commencement of these reasons. At some stage two of the RSPCA officers were also involved in the discussions. On Mrs Crisp’s account, the two RSPCA officers suggested to her that, in the event of a plea of guilty, she may avoid a fine. However, Mrs Crisp confirmed on appeal that she was aware, before deciding to plead guilty, that the RSPCA would be seeking costs of the order of $4,800 in connection with the prosecution.
Mrs Crisp said that eventually she succumbed to the pressure and agreed to enter pleas of guilty, even though she did not wish to. The hearing before the Magistrate then commenced. Mrs Crisp entered the two pleas of guilty and the RSPCA withdrew the other two charges.
In these circumstances, it is not possible to conclude that Mrs Crisp’s pleas of guilty were brought about by some improper pressure, threat or promise on the part of someone in authority of the kind discussed in the authorities. On the contrary, Mrs Crisp had the assistance, albeit on a voluntary basis, of the legal practitioner whom she had previously retained in connection with the matter. Mr Semmens was not in a position of authority (in the requisite sense) and nor were her daughter and her daughter’s partner. The RSPCA officers were in some respects in positions of authority, but Mrs Crisp’s submissions (which were unsupported by evidence) did not indicate any improper pressure on their part.
Quite apart from that, the material does not suggest that Mrs Crisp had reasonable prospects of successfully defending the charges. The photographs of which were tendered for sentencing purposes suggest that the emus were held in a reasonably small pen, of insufficient size to allow them to run freely. Further, the emus, while standing, could have the benefit of the rudimentary shelter in the pen only by adopting a semi‑squatted position.
In these circumstances, there is no basis to apprehend that a miscarriage of justice has occurred. I dismiss the appeal against the convictions.
Appeal Against Sentence
On an appeal against sentence, this Court’s role is limited. The Court cannot interfere with a sentence imposed by a Magistrate simply because it may, had it been in the Magistrate’s position, have taken a different view. Instead, it is necessary for the person in Mrs Crisp’s position to show some error, for example, by showing that the Magistrate allowed irrelevant matters to affect his decision, or mistook the facts which were relevant to the sentence, or failed to take into account some material consideration. If none of those kinds of matters can be shown, the Court will interfere only if it is satisfied that the Magistrate’s sentence is plainly unreasonable or unjust.
The Magistrate’s decision to proceed under s 39 of the CLSA in Mrs Crisp’s case involved an exercise of leniency in her favour. The Magistrate could, in the proper exercise of his sentencing discretion, have imposed fines and perhaps other orders. That being so it is not possible to conclude that the Magistrate erred by imposing a sentence which was plainly unreasonable or unjust. Nor can it be concluded that the Magistrate erred by recording convictions and then releasing Mrs Crisp upon her entering into a bond to be good behaviour for a period of 12 months. I do not consider that any basis has been shown for interfering with the Magistrate’s decision to order Mrs Crisp to pay to the RSPCA the sum of $482 by way of reimbursement of the costs it had incurred in the care and custody of the three emus.
However, some of the Magistrate’s other orders do raise some issues.
The Order for Forfeiture
As noted earlier, the Magistrate ordered that the three emus be forfeited to the RSPCA.
The Magistrate appears to have been acting under s 32A(1)(c) of the AWA. That provision empowers a court finding a person guilty of an offence against the AWA to make an order of forfeiture:
A court may, on finding a person guilty of an offence against this Act …. make one or more of the following orders:
…
(c)an order directing that any animal owned by the person that has been surrendered or seized under this Act be forfeited to Crown.
…
As can be seen, s 32A(1)(c) authorises an order for forfeiture to the Crown only. The RSPCA is not the Crown. I note that in the Complaint, the RSPCA had sought the forfeiture of the emus to the Crown, and not to itself.
Section 42 of the Acts Interpretation Act 1915 (SA) cannot be regarded as authority for the Magistrate’s order. Section 42 provides:
Any person may sue for, or take proceedings to recover, and may recover any fine, penalty, or forfeiture imposed by, or authorised to be imposed or awarded under, any Act, unless the right to sue or take proceedings is vested by the Act in a particular officer or person.
Section 42 appears to be the source of the RSPCA’s entitlement to commence the prosecution against Mrs Crisp. See also Brebner v Bruce[8] in that regard.
[8] (1950) 82 CLR 161 at 173-4.
However, the entitlement of the RSPCA to “recover any … forfeiture imposed by, or authorised to be imposed or awarded under, any Act” bestowed by s 42 does not mean that the Magistrate could order the forfeiture to the RSPCA itself of the three emus. The “recovery” to which s 42 speaks is the obtaining of an order. See for example Willing v Watson[9] in which Mitchell J held that the word “recover” in s 42 must mean “obtain an order for”.[10] In the present case, that means the obtaining of an order for the forfeiture of the emus to the Crown. I note also that in Willing v Watson, Wells J held that s 42 relates only to the initiation, and the prosecution to judgment, of prosecutions.[11]
[9] (1974) 8 SASR 487.
[10] Ibid at 493.
[11] Ibid at 506.
Thus, s 42 of the Acts Interpretation Act cannot be relied upon as a justification for the Magistrate’s order.
The RSPCA submitted that the Magistrate’s reference to the “Society” in the order of forfeiture should be regarded as a slip as, in the Complaint, it had sought forfeiture to the Crown. Further, it has had delegated to it by the Minister the authority to dispose of animals forfeited to the Crown. Accordingly, it sought the correction of the Magistrate’s order.
I am satisfied that it is appropriate for this Court on appeal to make the correction. The Society has disposed of the emus but has done so in accordance with the delegation to it from the Minister dated 5 February 2009. Accordingly, the position now is no different than it would have been had the Magistrate ordered forfeiture of the emus to the Crown. Mrs Crisp is not prejudiced by the correction.
Prohibition on the Acquisition of Other Animals
The Magistrate’s order forbidding Mrs Crisp, until further order, from acquiring any other animals was made under s 32A(1)(d) of the AWA. There is no doubt about the Magistrate’s power to make that order. However, the order is of a wide-ranging nature, as it is of indefinite duration and applies to any animals at all.
The necessity for this wide-ranging prohibition is not apparent. As previously noted, the Magistrate accepted that Mrs Crisp is a genuine lover of animals, and well used to caring for them. The evidence did not disclose that Mrs Crisp had engaged in persistent ill treatment of animals which may have indicated that she should not be trusted with the care of animals at all. Further, the Magistrate’s order had the potential to interfere with the means by which Mrs Crisp could earn a livelihood, as she has the tenure of a 7,000 acre property used, amongst other things, for the running of stock. As it happens it is Mrs Crisp’s children who are involved in the running of the stock, and not Mrs Crisp, and so the order did not have an immediate effect on Mrs Crisp in that respect.
Further again, the good behaviour bond into which Mrs Crisp entered minimised the prospects of any ill treatment of animals during the period of the bond, because any such ill treatment constituting an offence would be a breach of the bond. Admittedly, this would be only for the period of the bond.
In all the circumstances, I consider that there was no reasonable basis for the decision to prohibit Mrs Crisp, until further order, from acquiring any animals at all. Subject to the grant of an extension of time, that particular order should be set aside.
The Supervision Order
As noted earlier, the Magistrate ordered that, for a period of 12 months, Mrs Crisp was to be under the supervision of an inspector pursuant to s 12 of the AWA. The Magistrate’s reference to s 12 appears to be an error, as it is s 28 which provides for the appointment of inspectors. However, nothing turns on that error.
It seems that in making this order, the Magistrate was purporting to act under s 32A(1)(aa) of the AWA. That sub-paragraph authorised the Magistrate to make:
(aa)an order requiring the person to care for any animal owned by the person (whether or not the subject of the offence) in accordance with the conditions of the order (which may include a condition that the care of any such animal be supervised or monitored by an inspector), either until further order, or for the period specified in the order;
In my opinion, s 32A(1)(aa) did not authorise the Magistrate’s supervision order. Section 32A(1)(aa) authorises a condition of supervision as part of an order that the defendant care for any animal owned by that person in accordance with the conditions of the order. The Magistrate had not made an order to that effect. Further, the Magistrate’s order forbidding Mrs Crisp from acquiring further animals meant that any supervision order under s 32A(1)(aa) could apply to only a limited class of animals, namely, any already owned by Mrs Crisp. There was therefore a limited utility to the order.
However, as the supervision order was not authorised, it too should be set aside (subject to Mrs Crisp obtaining an extension of time).
Costs
The costs of $4,660 which the Magistrate ordered Mrs Crisp to pay to the RSPCA were calculated as follows:
1. Trial preparation by solicitor up to PTC 900 2. Trial preparation by solicitor from PTC to trial 900 3. Arranging attendance of witness x 6 at $60 per witness 360 4. Counsel fee on brief 800 5. Counsel attendance at trial 800 6. Witness fee for expert veterinarian witness 600 7. Wildlife rescuer/carer fee 300 Total 4,660
These were the costs sought by the RSPCA. Subject to some matters which I will mention shortly, the amounts which the RSPCA claimed for each item reflected the amounts for that item in the Scale of Costs which is Sch 1 of the Magistrates Court of South Australia Rules, as applicable to this action.
The Magistrate’s reasons indicate that he made the order concerning costs by reference to the Scale. He explained to Mrs Crisp:
Costs in this jurisdiction of the Court usually follow the event, that is, the successful party generally claims an order for costs based on a scale of costs that is published by the Court.
Later, after referring to the hardship which the costs order would represent for Mrs Crisp, the Magistrate said:
I can see no good reason for me to do anything other than to follow the normal practice and, accordingly, I will make an order that you reimburse the Society’s costs in the sum of $4,660.
The RSPCA commenced the prosecution against Mrs Crisp on 2 March 2010. Accordingly, it was the Scale of Costs as published in the Government Gazette on 24 July 2008 which was applicable in this case.
The amounts claimed by the RSPCA for witness fees (items 6 and 7 above) were the allowable fees for a full day’s attendance. As the prosecution was resolved before lunchtime on the listed trial date, half-day rates only should have been allowed (ie, $300 and $150 respectively) for those items.
I consider that this was a case in which the Court should not have allowed a counsel fee on brief. Mrs Crisp had indicated at the pre-trial conference on 19 August 2010 that she would be unrepresented at the trial. That remained the case, as Mr Semmens was not retained for the trial, and attended at the Courthouse on 4 November 2010 entirely voluntarily. This was a relatively straightforward prosecution with no discernible complicating issues. It was always going to be difficult for Mrs Crisp to defend herself, bearing in mind her limited education. In these circumstances, it is difficult to understand why the RSPCA needed representation by two legal practitioners to prosecute an unrepresented defendant. On the contrary, I consider that the matter should have been able to have been prosecuted sensibly and efficiently by the RSPCA’s employed legal officer performing the counsel work. It is therefore appropriate to disallow the sum of $800 allowed for the counsel fee on brief.
Accordingly, subject to the grant of an extension of time, the amount allowed for costs should be reduced by $1,250 to the sum of $3,410.
Extension of Time
Mrs Crisp needs a substantial extension of time. However, she did make attempts in both March and April 2011 to commence an appeal. Unfortunately she did not go about it in the proper way, resulting in her documents being rejected at that time by the Registry staff. That explains some, but not all of the delay.
The RSPCA did not contend that it would be prejudiced by the grant of an extension, although it is concerned about the effect that such a grant may have more generally. On the other hand, my conclusions above indicate that Mrs Crisp’s appeal does have some merit so that, if an extension of time is not allowed, she will be prejudiced.
I agree with counsel for the RSPCA that the Court should exercise caution when considering applications for an extension of the present kind. It is public policy that appeals should be prosecuted expeditiously. However, in the particular circumstances of this case, I consider that the grant of an extension is appropriate.
Conclusion
For the reasons given above, I grant Mrs Crisp an extension of time in which to appeal. I allow the appeal but only for limited purposes:
1.I vary the order of forfeiture to direct that the emus seized be forfeited to the Crown and not to the RSPCA;
2.I set aside the orders that Mrs Crisp is not to acquire any animals until further order and that she is to be supervised by an RSPCA inspector for a period of 12 months;
3.I set aside the order that Mrs Crisp pay the RSPCA costs in the sum of $4,660 and substitute an order that Mrs Crisp pay the RSPCA costs fixed in the sum of $3,410.
In all other respects, the appeal is dismissed.
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