Culverwell v Ginbey - [2016] WASC 3

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CULVERWELL -v- GINBEY [2016] WASC 3

CORAM: CORBOY J

HEARD: 10 APRIL 2015

DELIVERED : 5 JANUARY 2016

FILE NO/S: SJA 1076 of 2014

BETWEEN: ADELE CULVERWELL
Appellant
AND
KEITH NEVILLE GINBEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R S HUSTON
File No  :PE 18751 of 2013

Catchwords:

Criminal law - Appeal against conviction and sentence - Animal cruelty - Whether prosecution was validly commenced - Whether prosecution could be maintained following the resignation of the respondent as a general inspector - Whether charge was bad for duplicity - Whether magistrate made errors of fact - Whether verdict was unsafe and unsatisfactory - Whether sentence imposed was manifestly excessive

Legislation:

Animal Welfare Act 2002 (WA), s 19(1), s 33, s 82
Criminal Procedure Act 2004 (WA), s 20, s 23, s 172

Result:

Leave to appeal on proposed grounds of appeal 4 - 6 and an additional proposed ground granted
Leave to appeal on the remaining proposed grounds of appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr R Christoforou & Mr J Prus-Butwilowicz
Respondent: Mr D J Pratt

Solicitors:

Appellant: Ross Christoforou
Respondent: Jackson McDonald

Case(s) referred to in judgment(s):

Attorney General v Savill and Forrest (Unreported, WASC, Library No 970414, 5 August 1997)
Barton v The Queen (1980) 147 CLR 75
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
Connelly v Director of Public Prosecutions [1964] AC 1254
Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75
Davern v Messel (1984) 155 CLR 21
Dinsdale v The Queen (2000) 202 CLR 321
DPP v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81
Durani v The State of Western Australia [2012] WASCA 172
Elliott v Taylor [1947] St R Qd 210
Hawkins v Bepey [1980] RTR 392
Holding v Parkin [2012] WASC 113
Holland v Jones (1917) 23 CLR 149
Jago v District Court of New South Wales (1989) 168 CLR 23
John L Pty Ltd v Attorney‑General (NSW) (1987) 163 CLR 508
M v The Queen (1994) 181 CLR 487
Maxwell v The Queen (1996) 184 CLR 501
McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130
McMahon v The State of Western Australia [2010] WASCA 143
Michaelides v The Queen [2013] HCA 9; (2013) 296 ALR 1; (2013) 87 ALJR 456
Moti v The Queen (2011) 245 CLR 456
Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193
R v Agius [2011] NSWSC 367; (2011) 86 ATR 433; (2011) 251 FLR 375
R v Burt; Ex parte Presburg [1960 1 Qb 625
R v Chairman, County of London Quarter Sessions; Ex parte Downes [1954] 1 QB 1
R v Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314
R v Petroulias (No 1) [2006] NSWSC 788; (2006) 177 A Crim R 153
R v Truelove (1879 ‑ 80) LR 5 QBD 336
Ridgeway v The Queen (1995) 184 CLR 19
Romeyko v Samuels (1971) 2 SASR 529
Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65
Samuels v State of Western Australia (2005) 30 WAR 473
Spagnolo v Flynn [2014] WASC 88
Tey v Plotz [2010] WASC 163
Tey v Plotz [2011] WASCA 194
The House of Relocators Pty Ltd v Ginbey [2013] WASC 188
The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94
TKWJ v The Queen (2002) 212 CLR 124
Walton v Gardiner (1993) 177
Ward v State of Western Australia [2011] WASCA 172
Weissensteiner v The Queen (1993) 178 CLR 217
Williams v Spautz (1992) 174 CLR 509
Wilson v The State of Western Australia [2010] WASCA 82

Table of contents

The appeal and the result
The Act

The intention of the Act

Inspectors
The offence and its enforcement

The prosecution case
The magistrate's findings
The prosecution policy

The prosecution policy
The discretion to prosecute
DPP guidelines
Judicial review
The alleged failure to comply with the Policy
Proposed ground of appeal 1(b)
Proposed ground of appeal 2
Proposed ground of appeal 3 – the Policy and abuse of process

The respondent as the prosecutor

The respondent's position and the objections during the trial
The parties' contentions
The relevant legislation
Ground of appeal 1(a)
The respondent's position as 'the prosecutor' - grounds of appeal 4 ‑ 6

The parties' submissions
Jurisdiction
The agency allegation – the additional proposed ground of appeal
Section 169 CPA
Procedural issues – the CPA
No substantial miscarriage of justice in any event
Some preliminary observations about the CPA
Analogous issues – the death of an 'informant' prosecutor
Changes in the status of an 'initiating prosecutor'
Some concluding observations

The additional ground of appeal

Duplicity and the amendment of the charge

The amendment to the charge
The appellant's submissions

Duplicity

Prejudice

The test of cruelty

The magistrate's finding

Disposition

The magistrate's findings

Proposed ground of appeal 9
The duration of confinement
The location of the vehicle

Shade
Judicial notice
Mr Douthat's experience
Mr Douthat's entry into the vehicle
The finding that Roxy suffered from heatstroke
The finding that Roxy suffered from heatstroke when seized
Proposed ground of appeal 10
Proposed ground of appeal 11
Proposed ground of appeal 12

The appellant's submissions
The relevant principles
Disposition

The competence of counsel

The appellant's submissions
The relevant principles

Disposition

The appeal against sentence

The principles to be applied

Disposition
Proposed ground of appeal 16

CORBOY J:

The appeal and the result

The appellant was convicted following trial of the offence that, being a person in charge of an animal, namely a dog, she was cruel to the animal by confining it in a manner that caused it unnecessary harm, contrary to s 19(1) and s 19(3)(b)(ii) of the Animal Welfare Act 2002 (WA) (the Act). The appellant was fined $5,000 and ordered to pay legal and care costs. An order was also made that her dog, 'Roxy', be forfeited to the Crown (s 55(2)(c)(ii) of the Act).
The appellant's amended appeal notice pleaded 16 proposed grounds of appeal. A further proposed ground of appeal was added to the notice immediately prior to the hearing of the appeal. Proposed ground of appeal 13 was not pursued. Particulars of some of the proposed grounds of appeal were provided. A copy of the proposed grounds of appeal and the particulars are attached to these reasons.
The question of whether the appellant should be granted leave to appeal on any of her proposed grounds of appeal was deferred to the hearing of the appeal. Proposed grounds of appeal 4 ‑ 6 and the proposed additional ground raised issues concerning the application of the Criminal Procedure Act 2004 (WA) (CPA) on which I was unable to find any direct authority. Leave to appeal on each of those grounds will be granted having regard to the issues raised. However, I have concluded that the appeal on those grounds should be dismissed.
I have found that none of the remaining proposed grounds of appeal had a reasonable prospect of success applying the test explained by the Court of Appeal in Samuels v State of Western Australia(2005) 30 WAR 473, especially at [56]. Accordingly, leave to appeal on each of those grounds will be refused.

The Act

The intention of the Act

The intention of the Act is specified in s 3(2):
(a)to promote and protect the welfare, safety and health of animals;
(b)to ensure the proper and humane care and management of all animals in accordance with generally accepted standards; and
(c)to reflect the community's expectation that people who are in charge of animals will ensure that they are properly treated and cared for.
The Act gives effect to that intention by regulating the use of animals for scientific purposes (pt 2); by making it an offence to be cruel to an animal or by being in possession of anything with the intention of using the thing to inflict cruelty on an animal or by engaging in certain prohibited activities involving shooting, hunting or fighting captive animals (pt 3); by the appointment of general and scientific inspectors (pt 4); and by providing for the enforcement of the various provisions of the Act (pt 5).

Inspectors

Section 33 of the Act provides for the appointment of general inspectors. The appointment is made by the chief executive officer (CEO) of the department of the public service principally assisting the Minister in the administration of the Act (s 33(1), read with s 5 in which the terms 'chief executive officer' and 'Department' are defined). The appointment is to be from among:
(a)those members of the staff of the RSPCA nominated by the RSPCA; and
(b)in accordance with s 31(2), as many other people as the CEO considers to be suitably qualified or experienced and necessary for the purposes of the Act.
An appointment remains in force for five years, unless (among other things) the inspector ceases to be a member of the staff of the RSPCA or the inspector resigns by written notice to the CEO.
Section 37 provides for the functions and powers of inspectors. Section 37(1) states that the functions of a general inspector include enforcing pt 3 of the Act.
It was not in issue that the Department of Local Government was the department of the public service that principally assisted the Minister in the administration of the Act until 4 July 2011 and that the Department of Agriculture and Food (DAFWA) assumed that responsibility on and from that date.

The offence and its enforcement

Section 19 of the Act makes it an offence for a person to be cruel to an animal. The minimum penalty for the offence is $2,000 and the maximum penalty is $50,000 and imprisonment for 5 years. Section 19(3) provides, among other things, that a person in charge of an animal is cruel to an animal if the animal is confined, restrained or caught in a manner that causes, or is likely to cause, unnecessary harm.
The offence created by s 19 is a simple offence: s 67 of the Interpretation Act 1984 (WA).
Section 82(1) of the Act provides that proceedings for an offence under the Act may be commenced by:
(a)the CEO of the department principally assisting the Minister in administering the Act (the Assisting Department);
(b) an inspector (subject to immaterial exceptions); or
(c)an officer of the Assisting Department authorised by the CEO.
Section 82(3) provides that in proceedings for an offence under the Act, unless evidence is given to the contrary, proof is not required:
(a)of the authority of a person to institute proceedings for the offence; or
(b)that a signature on a prosecution notice is the signature of a person authorised to commence the proceedings.
Section 82(4) provides that in proceedings for an offence under the Act an officer of the Assisting Department authorised by the CEO may appear on behalf of the CEO or any other officer of the Assisting Department.
Finally, s 86 provides that:
A fine imposed as a penalty for an offence against this Act is to be paid or credited to, if the offence was prosecuted by -
(a)an inspector who is a member of the staff of a local government, that local government; or
(b)any other person, the Consolidated Account.

The prosecution case

Notwithstanding that the trial was listed on 13 hearing days from which over 600 pages of transcript was generated, the prosecution case was relatively straightforward. It was alleged that the appellant left her dog, Roxy, in her vehicle parked at the Carousel shopping centre on the afternoon of 4 December 2012. The temperature that day was in excess of 30 degrees Celsius, and the dog was alleged to have been left in the car for at least three and a half hours. The RSPCA was contacted and an inspector sent to the car park. He opened the vehicle, removed Roxy and took it to a veterinary surgeon. The dog was diagnosed as suffering from mild heatstroke. It was alleged that she had been unnecessarily harmed by being confined in the appellant's car for a lengthy period on a hot day.

The magistrate's findings

The magistrate made a number of findings of fact, including that:
(a)The appellant's vehicle was a 'panel van', having a driver and passenger door and two full‑length doors opening to the rear.
(b)The Carousel shopping centre incorporated a multi‑storey car park. The top deck of the car park was partially shaded by triangular shade sails. The sails were made from a fabric that did not prevent sunlight passing from one side to the other. The walls of the car park were primarily made of concrete and the 'combined effect' of the structure of the car park was that the 'unrestricted passage of any breeze' was prevented and heat would be reflected.
(c)The maximum temperature on 4 December 2012 was 37.7 degrees Celsius, and the temperature at 3.00 pm was 37 degrees.
(d)Two witnesses, Ms Zuraszek and Ms Weiman, observed the appellant's vehicle parked on the top deck of the multi‑storey car park at approximately 1.05 pm. The vehicle was unattended and was parked in a position that was fully exposed or 'nearly fully exposed' to the sun - that is, 'the vehicle was not parked under cover, other than some shade perhaps being intermittently available from the shade sails' (reasons for decision, 22).
(e)A dog was confined in the rear of the vehicle and appeared to be in a distressed state. The windows to the driver and passenger doors had been partially lowered, but only by approximately 5 cm.
(f)Ms Zuraszek and Ms Weiman were sufficiently concerned about the state of the dog that they approached centre management, who suggested that they contact either a Shire ranger or the RSPCA. They were also angered by the confinement of the dog and left a note on the windscreen of the appellant's vehicle stating, 'Dogs die in cars too'.
(g)Ms Zuraszek subsequently telephoned a Shire ranger at about 1.50 pm and was referred to the RSPCA. She telephoned the RSPCA at approximately 2.01 pm and left a recorded message expressing concern about the confinement of the dog in the vehicle.
(h)Ms Zuraszek sent a copy of a photo that had been taken of the appellant's vehicle to Ms Weiman's husband. Mr Weiman went to the shopping centre at approximately 3.00 pm. The appellant's vehicle was parked on the top level of the multi‑storey car park. Mr Weiman was concerned about the welfare of the dog that was still in the vehicle.
(i)Ms Zuraszek again telephoned the RSPCA at 3.58 pm. An inspector was despatched by the RSPCA to the shopping centre at approximately 4.00 pm. Mr Weiman remained at the shopping centre observing the dog until the inspector, Mr Douthat, arrived.
(j)Mr Douthat located the appellant's vehicle in the same spot where Ms Zuraszek and Ms Weiman had earlier observed the vehicle. There was a dog in the rear of the vehicle. The dog was the appellant's dog, Roxy.
(k)Mr Douthat considered that Roxy had been adversely affected by her confinement in the vehicle and decided to remove the dog. That was notwithstanding that he noted that there was water in the rear of the vehicle.
(l)Roxy did not react adversely or otherwise respond to Mr Douthat's entry into the appellant's vehicle. Mr Douthat noted that the interior of the vehicle was 'very much hotter' than the temperature outside the vehicle but he did not measure the temperature.
(m)Roxy was taken in the rear of an RSPCA vehicle to a veterinary surgeon. The vehicle had 'much improved' ventilation when compared to the appellant's vehicle.
(n)The veterinary surgeon diagnosed Roxy as suffering from heatstroke based on clinical observations of an elevated heart rate, elevated rectal temperature, poor body condition, some distress, hyperthermia, hyper-salivation, excessive panting and dehydration. The surgeon commenced treating Roxy for heatstroke. The dog was held overnight at the veterinary surgeon's surgery for monitoring and was discharged into the care of the RSPCA the following morning.
In making those findings of fact, the magistrate accepted the evidence of the prosecution witnesses and found each of them had provided a 'reliable, consistent and compelling account of their observations of the vehicle and of a dog inside that vehicle and of their actions in response to what each of them testified they had observed on the afternoon in question' (reasons for decision, 20).
The magistrate was satisfied that Roxy had been harmed by the manner of her confinement in the appellant's vehicle. The dog was harmed by suffering heatstroke and the harm caused by her manner of confinement was unnecessary in that the harm was predictable, easy to avoid and not intended for the immediate or longer term benefit of the dog. His Honour considered that it was not necessary to make a finding as to whether the dog had been confined in the rear of the vehicle continuously between 1.00 pm and 4.30 pm - 'what is critical to the outcome of this prosecution is the manner of the confining of Roxy in the rear of the vehicle, not the duration of the confinement' (reasons for decision, 29).

The prosecution policy

(Proposed grounds of appeal 1(b), 2 and 3)

The prosecution policy

Proposed grounds of appeal 1(b), 2 and 3 refer to the DAFWA's compliance, enforcement and prosecution policy (the Policy). Counsel who appeared for the appellant at the trial referred to the Policy but it was not tendered as an exhibit. A copy of the Policy was attachment 'RC 03' to the affidavit of Ross Christoforou made on 9 April 2015. Mr Christoforou appeared in the appeal for the appellant.
The purpose of the Policy was stated to be to:
(a)promote consistent enforcement action across all sections of the DAFWA;
(b)guide and assist officers in the performance of their functions;
(c)encourage a proactive compliance approach where staff were confident and supported in their roles; and
(d)improve compliance with DAFWA legislation.
The submissions made on behalf of the appellant focused on that part of the Policy that concerned the decision to prosecute. The Policy stated that the decision involved two elements:
(a)whether sufficient evidence existed to justify a prosecution;
(b)whether the prosecution was in the public interest.
The Policy provided for a hierarchical decision-making process in relation to prosecutions. The investigating officer was to prepare a brief of evidence and supporting reports, documentation and recommendations. Those materials were to be provided to the director of DAFWA with responsibility for administering the relevant legislation. The director was to then provide a recommendation to the executive director for referral to the State Solicitor's Office. Finally, the investigating officer, the relevant director and the State Solicitor's Office were to discuss and agree upon the most appropriate charges to be laid.
The Policy related to all matters in respect of which legislation conferred a power to prosecute on DAFWA or its officers; the Policy was not specific to prosecutions under the Act.

The discretion to prosecute

The decision to prosecute is a discretion vested in the relevant prosecuting authority. The exercise of the discretion will not be reviewed by a court unless the prosecution would constitute an abuse of process: Connelly v Director of Public Prosecutions [1964] AC 1254; Barton v The Queen (1980) 147 CLR 75 and Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81. The court may stay a prosecution if it is oppressive or unfair - in particular, if a prosecution has been commenced for an improper purpose: Williams v Spautz (1992) 174 CLR 509.
The Victorian Court of Appeal observed in DPP v Patrick Stevedores:
It is well-established that certain, if not all, prosecutorial decisions are insusceptible of review. Decisions falling broadly within that category do not attract the rules of procedural fairness.
To take but one example, in Barton v R the High Court had to consider whether the decision of the Attorney-General to present an ex officio information was susceptible to judicial review. Gibbs ACJ and Mason J held that it was not because:
(a)the function that the Attorney performed in commencing prosecutions had previously been performed by the grand jury whose decisions were not subject to judicial review, except in very limited circumstances;
(b)it is undesirable for the court to become too closely involved in the question of whether a prosecution should be brought given that the court's ultimate function is to determine the guilt or innocence of the accused;
(c)in exercising its power to prevent an abuse of process, the court will consider (albeit rarely) whether a prosecution should be permitted to continue;
(d)the court has powers to ensure that an alleged offender is dealt with fairly and, for this reason, a separate safeguard by way of judicial review of the prosecutorial decision is not necessary [26] ‑ [27].

The Court of Appeal in DPP v Patrick Stevedores also referred to the judgment of Gaudron and Gummow JJ in Maxwell v The Queen (1996) 184 CLR 501 to the following effect:
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what (534).
The issue in DPP v Patrick Stevedores was whether a decision by the Director of Public Prosecutions (Vic) to authorise proceedings for an indictable offence against the Occupational Health and Safety Act 2004 (Vic), outside the statutory time limit for commencing the prosecution, was susceptible to judicial review. The Occupational Health and Safety Act provided that proceedings for an indictable offence were to be brought (a) within two years after the alleged offence was committed or the Victorian WorkCover Authority became aware the offence had been committed or (b) at any time with the written authority of the DPP.
The Victorian Court of Appeal held that the DPP's decision to prosecute outside the statutory time limit could not be reviewed. Accordingly, the question of whether a pre‑condition for instituting a prosecution has been satisfied may be beyond the court's power of review even where the pre‑condition is imposed by statute.

DPP guidelines

An analogy was drawn in the appellant's submissions between the Policy and the Director of Public Prosecutions' Statement of Prosecution Policy and Guidelines 2005 (the DPP Guidelines). Implicit in the appellant's submissions was a suggestion that the DPP Guidelines had statutory force and created 'pre‑conditions' to a prosecution that were enforceable. So, for example, it was submitted that:
Whilst general inspectors have been given authority under the Act to commence proceedings, it is inconceivable that Parliament would have permitted the situation to arise, where General Inspectors under the Act have unfettered and unsupervised powers to prosecute when organisations such as the DPP, which employ legally qualified personnel are required to comply with the DPP Policy Guidelines which are said to apply to every prosecution in the State (appellant's submissions, section 2).
Section 24(1) of the Director of Public Prosecutions Act 1991 (WA) provides that the Director of Public Prosecutions may issue a statement of guidelines intended to be followed in the performance of his or her functions. Section 24(3) further provides that an act or omission of the Director or a person acting on the Director's behalf may not be called in question or held to be invalid on the grounds of a failure to comply with any statement issued under s 24.
In R v Grey [2000] NSWCCA 46; (2000) 111 A Crim R 314, Simpson J referred to the guidelines issued by the Director of Public Prosecutions (NSW) on the obligation of disclosure and observed:
Of course, guidelines cannot be treated as prescriptive in the same sense as a statute might prescribe procedures, non‑compliance with which might have specific legal consequences. The DPP guidelines are precisely what they are called - guidelines. They are designed to ensure the fair conduct of criminal prosecutions. They do not create any enforceable right in any individual. But they do provide a useful touchstone, both of what fairness requires, and of what an accused person might expect by way of disclosure from those involved in the prosecution [32].
Prosecution policies are one means by which a prosecuting authority seeks to achieve various administrative objectives. That is reflected, for example, in the stated purpose of the Policy. The policies are internal to the authority, albeit that they reflect the obligations imposed on every prosecuting authority and prosecutor in prosecuting criminal charges. A failure to fulfil those obligations may have consequences for the prosecution of a charge but the failure is not addressed by 'enforcing' the policy of an executive agency. Rather, what a court may 'enforce' are the procedures and processes that are fundamental to the proper and fair conduct of criminal proceedings.

Judicial review

It follows from the authorities to which reference has been made that the policies of a prosecuting authority on the decision to prosecute and the conduct of a prosecution; the question of whether there has been compliance with any policy; and the decision to prosecute, are not susceptible to judicial review. That is regardless of whether the review is sought under the guise of an appeal from conviction or through an application under s 36 of the Magistrates Court Act 2004 (WA).

The alleged failure to comply with the Policy

The allegation that the respondent failed to comply with the Policy in commencing the prosecution rested on a statement made by the prosecutor during argument at the trial. The appellant's counsel referred to the Policy and the prosecutor intervened to inform the magistrate that the Policy was not the prosecution policy for the RSPCA. The magistrate observed that the RSPCA was not a party to these proceedings and the prosecutor replied, 'the inspector is employed by the RSPCA and the inspector is governed by a prosecution policy which is covered by its own body, the RSPCA' (11 July 2013, ts 26). A copy of the RSPCA prosecution policy was not provided to the magistrate and the prosecutor did not explain the differences, if any, between the RSPCA's policy and the Policy.
The appellant contended that the prosecutor's advice to the magistrate established that the respondent:
[D]id not follow the prosecution policy of the Department but rather according to the submissions of counsel was guided by the RSPCA Prosecution Policy. That is to say, a policy authored by a private organisation with no power to prosecute in its own right (appellant's submissions, section 2).
In particular, it was submitted that the respondent had not followed any of the steps culminating in a decision to prosecute that were outlined in the Policy and which were summarised above.

Proposed ground of appeal 1(b)

The jurisdiction of a magistrate to hear and determine a charge alleging a simple offence is conferred by s 9 and s 11 of the Magistrates Court Act. The jurisdiction is not contingent upon compliance with a prosecution policy or conditioned by any aspect of such a policy. Accordingly, the jurisdiction of the magistrate to hear and determine the charge alleged against the appellant could not have been affected by any alleged failure to comply with the Policy.
Although proposed ground of appeal 1(b) referred to the magistrate's jurisdiction to hear the charge, the appellant submitted that, '[g]iven the concession that the Department's policy was not followed, there was never any authority given to [the respondent] to commence the prosecution and the prosecution was unlawful and ought to have been struck out' (appellant's submissions, section 2). The respondent's authority to commence the prosecution was conferred by s 82(1) of the Act, read with s 20 CPA. Compliance with the Policy was not a pre-condition to the lawful exercise of his authority under those sections. A prosecution policy is not a source of power nor does it operate as a procedural fetter on the exercise of a statutory power to commence a prosecution.

Proposed ground of appeal 2

The Policy has no statutory force or legal effect. Accordingly, compliance with the Policy could not be a 'condition precedent' to commencing the prosecution against the appellant. Whether compliance with the Policy was an administrative 'pre‑condition' to the exercise of the discretion to prosecute was a matter for DAFWA and those who were empowered by the Act to exercise the discretion. It is not a matter that is capable of being reviewed by a court, nor could any alleged failure to comply with the Policy affect the validity of the charge against the appellant, the authority of the respondent to commence the prosecution or the magistrate's jurisdiction to hear and determine the charge.
There was no obligation to accord the appellant procedural fairness in relation to the decision to charge her with an offence under s 19 of the Act. That is apparent from the authorities to which reference has already been made. It is not the law that an accused person must be accorded natural justice before a decision to commence a prosecution is taken by a person who is authorised to make the decision.
Finally, a failure to adhere to the Policy could not, in itself, constitute an abuse of process.

Proposed ground of appeal 3 – the Policy and abuse of process

It was submitted on behalf of the appellant that the effect of the Policy was that the decision to prosecute was a last resort with the primary response to a contravention of the Act being to educate the alleged offender. It was contended that, in this case, the Department had not complied with that policy in deciding to prosecute the appellant and, in doing so, had unfairly denied her an opportunity to be educated rather than charged.
It was further submitted that the appellant had been 'made a scapegoat and treated unfairly' and that it was not in the public interest to commence the proceedings. Reference was made to a press release issued by the RSPCA following the appellant's conviction. Presumably, that reference was intended to suggest that the respondent (or the RSPCA) had been motivated by a desire to attract publicity in deciding to prosecute the appellant.
It was also submitted that the appellant was a pensioner who was 'ill equipped to properly fund her defence' and the prosecution 'amounted to using a sledgehammer to crack a nut' (appellant's submissions, section 4). Moreover, the appellant was denied a fair trial as the charge alleged against her was bad for duplicity.
Section 76 CPA provides that the court may at any time order that the prosecution of a charge be permanently stayed if it is satisfied that the charge is an abuse of the process of the court. A court of summary jurisdiction is a court for the purpose of s 76: s 3(1) CPA.
It is necessary to only briefly state the principles relevant to determining whether criminal proceedings ought to be stayed as an abuse of process:
(a)Two policy considerations are fundamental to the determination: first, the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike; and second, a failure by a court to protect its ability to function in that way will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice: Williams v Spautz (520) (Mason CJ, Dawson, Toohey & McHugh JJ); Moti v The Queen (2011) 245 CLR 456 [57].
(b)Abuses of process cannot be restricted to defined and closed categories. Notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and take account of the particular circumstances of the case. That does not mean that the concept is at large or without meaning. It extends to proceedings that are instituted for an improper purpose and to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment': Ridgeway v The Queen (1995) 184 CLR 19, 75 (Gaudron J).
(c)Although the jurisdiction to stay proceedings as an abuse of process is wide, it is not without limits. It has been said that the discretion cannot be exercised to stop proceedings merely because the evidence against an accused person is weak or because the court disapproves of the prosecution: R v Chairman, County of London Quarter Sessions; Ex parte Downes [1954] 1 QB 1, 6; R v Petroulias (No 1) [2006] NSWSC 788; (2006) 177 A Crim R 153 [63].
(d)The majority in Walton v Gardiner (1993) 177 CLR 378 noted that the power to stay proceedings as an abuse of process was not confined to cases where the court was satisfied that the hearing would necessarily be unfair or that proceedings had been brought for an improper purpose. The power extended to all categories of cases in which the processes and procedures of the court may be converted into 'instruments of injustice or unfairness'. Examples include where the proceedings were doomed to fail; where proceedings were commenced in a court that was clearly an inappropriate forum and proceedings that sought to litigate a new case that had already been disposed of by earlier proceedings (393). The majority in Walton v Gardiner considered that the determination of whether criminal proceedings should be stayed was to be determined:
[B]y a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice (396).
(e) A prosecution will only be stayed in the most exceptional circumstances: Jago v District Court of New South Wales (1989) 168 CLR 23, 31. The onus of satisfying the court that there is an abuse of process lies upon the party making the allegation and the onus is a heavy one: Williams v Spautz (529).
The submissions made on behalf of the appellant raised matters relating to the decision to commence the prosecution. Consistent with the authorities already discussed, McKechnie J observed in Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65 that, 'in deciding whether the interests of justice require a stay of an indictment a judge should be careful not to stray beyond a proper judicial role. The institution and continuation of judicial proceedings is a wholly executive function' [42].
There was no application made at the trial to stay the prosecution of the appellant as an abuse of process. Nevertheless, it was submitted in the appeal that the prosecution was an abuse as it was initiated for the improper purpose of gaining publicity and was it oppressive, having regard to the appellant's personal circumstances, the emphasis in the Policy on educating possible offenders, the nature of the offence and the allegedly duplex formulation of the charge.
In my view, those matters, whether considered individually or collectively, do not establish that the prosecution was an abuse:
(a)The appellant's submissions referred to a press release issued by the RSPCA after the appellant had been convicted. It is commonplace for regulatory authorities to issue press releases following the conviction of an offender for a regulatory offence. Presumably, it is considered that such releases assist in educating the public about the consequences of committing the offence. The issue of a press release following the conviction of the appellant for the offence of animal cruelty could not establish that the prosecution had been commenced for an ulterior and improper purpose.
(b)The prosecution of the appellant could not characterised as oppressive because a decision had been made not to pursue an alternative that was designed to 'educate' her about animal cruelty.
(c)The prosecution did not constitute an abuse merely because the appellant was a pensioner with limited financial resources. The appellant was represented at the trial and in the appeal.
(d)Animal cruelty is a serious offence. That is evident from its very nature and from the prescribed penalties: a minimum fine of $2,000 and a maximum penalty of $50,000 and imprisonment for 5 years.
(e)I have found later in these reasons that the charge, as amended, was not duplicitous. However, a prosecution could not be characterised as an abuse merely because a charge alleged more than one offence contrary to cl 2(4), sch 1, div 2 CPA.

The respondent as the prosecutor

(Grounds of appeal 1(a), 4 ‑ 6 and the additional ground)

The respondent's position and the objections during the trial

The prosecution was commenced by the respondent, Mr Ginbey. The magistrate was provided with the respondent's identity card in the course of argument concerning the authority to prosecute the charge alleged against the appellant. The identity card stated that the respondent was a general inspector whose appointment was valid until 15 August 2015. According to the magistrate, the identity card included a photograph of the respondent under which there appeared the signature of a person who had identified herself as the Director General of the Department of Local Government. The appellant's counsel did not require the respondent to further prove his appointment as an inspector.
It was not in issue that the respondent had been appointed a general inspector pursuant to the nomination of the RSPCA. The appellant submitted at the commencement of the trial that the prosecution could not be maintained as it had been instituted, without authority, by the RSPCA. However, that objection was withdrawn when the magistrate noted that there was no reference in the prosecution notice to the RSPCA (11 July 2013, ts 7).
Counsel for the appellant then queried whether the respondent had been entitled to commence the prosecution. It was suggested that a general inspector did not possess power to commence a prosecution under the Act (ts 21). However, the appellant's counsel subsequently (and rightly) withdrew that objection.
A further objection was later raised concerning the respondent as the prosecutor of the charge. It was contended that 'a special inspector is not an appointed prosecutor' so that the respondent, as an inspector, could commence a criminal proceeding by alleging a charge against the appellant but he could not prosecute the charge (ts 33). That contention was initially based on a misreading of s 82(1)(b) of the Act (ts 31 ‑ 32). It was then said to rest on the proposition that the respondent could 'commence the action but then that the action should be prosecuted in accordance with the prosecution policy of the Department' (ts 35). The magistrate rightly rejected that submission for the reasons that have already been given.
The trial of the charge was first listed for hearing on 11 and 12 July 2013. It was adjourned part‑heard to 18 September 2013 and again to 5 December 2013. A further application relating to the authority of the respondent was made on 5 December 2013. The application was initially for orders that the prosecution be permanently stayed under s 76 CPA; alternatively, that the prosecution be dismissed for want of prosecution under s 54(b) CPA.
The appellant's counsel had ascertained that the respondent had ceased to be a general inspector at some time after the prosecution had been commenced. Prosecuting counsel confirmed that the respondent was no longer an inspector and that he was taking instructions, if required, from another general inspector. It was not in issue that the respondent had been an inspector at the time that he had signed the prosecution notice.
Ultimately, the appellant's counsel sought an order that the prosecution be dismissed under s 54(b) CPA, there being, so it was submitted, 'no valid prosecutor as per the prosecution notice at the court and capable of instructing' (6 December 2013, ts 5). The magistrate rejected the application, holding that s 54(b) CPA did not apply as there had been an appearance by the prosecutor and that the CPA only required that a prosecution be commenced by a person who was authorised to institute the proceedings.

The magistrate observed in reaching that conclusion that he was required to interpret the CPA in a way that advanced rather than frustrated the objects of the Act; that the effect of the submissions made by the appellant's counsel was that a criminal prosecution would be stayed where, for example, the prosecutor who had commenced the proceedings died before the proceedings were completed; and that it was in the interests of justice that the prosecution of the charge alleged against the appellant (which his Honour considered had been properly commenced under the Act and the CPA) be determined. His Honour concluded:
So in terms of the application by … [the appellant] …that there be a permanent stay of these proceedings on the basis that [the respondent] is no longer an inspector, it is my ruling that the prosecution notice was validly lodged; that the prosecution was validly commenced; that the prosecutor who is standing at the bar table now is the prosecutor, in terms of what the Criminal Procedure Act requires, and in the event that application were to be made to substitute the then inspector, then I'm inclined to agree to any such application, but, in any event, it is my ruling that the application for a stay of proceedings is not successful and I want the matter to get underway (6 December 2013, ts 15).

The parties' contentions

Ground of appeal 1(a) referred to the change in the department principally assisting the Minister to administer the Act that occurred on 4 July 2011. It was not in issue that the respondent had not been re‑appointed as a general inspector by the CEO of DAFWA following that change.
As to ground of appeal 4, the appellant contended that the respondent was 'no longer the prosecutor' on ceasing to be a general inspector so that 'the person in court … could not have been representing [the respondent] when the latter had no standing in the proceedings' (appellant's submissions, section 5). That contention was, in effect, repeated in relation to proposed ground of appeal 16.
As to grounds of appeal 5 and 6, it was submitted that the magistrate erred in permitting the trial to proceed when the prosecution notice was not amended to 'substitute a new prosecutor' with the result that 'counsel was not representing anyone after [the respondent] had left' (appellant's submissions, section 5).
The respondent submitted that there was no reason to construe the Act as requiring the re-appointment of inspectors on a change in the department principally assisting the Minister (that is, a change in the Assisting Department). The circumstances in which the appointment of a general inspector ceased to have effect were set out in s 33(4) of the Act. The section did not refer to a change in the Assisting Department (respondent's submissions, par 16).
As to grounds of appeal 4 ‑ 6, the respondent submitted that, as the magistrate held, 'there is nothing in either the [Act] or the [CPA] which requires that the authorised person who commences a prosecution by signing a prosecution notice must remain an authorised person throughout the duration of the prosecution' (respondent's submissions, par 17).

The relevant legislation

As has already been noted, criminal jurisdiction is conferred on the Magistrates Court by s 9 and s 11 of the Magistrates Court Act. Section 11 provides that the court's jurisdiction includes hearing and determining a charge of a simple offence.
Section 67(3) Interpretation Act 1984 (WA) provides that the procedure for 'prosecuting and dealing with offences' is set out in the CPA.
Section 3 CPA contains the following definitions:
charge means an allegation in a prosecution notice or indictment that a person has committed an offence;
party, in relation to a charge, means the prosecutor or the accused;
prosecutor means -
(a)in a prosecution in a court of summary jurisdiction, the person who commenced the prosecution or a person who in court represents that person;
(b)in a prosecution in a superior court, the authorised officer (as defined in section 80) who commenced the prosecution or a person who in court represents that person.
Authorised officers for the purposes of pt 4 CPA include the Attorney General, the Solicitor‑General, the State Solicitors, the DPP and members of the staff of the DPP who are authorised by the DPP.
Section 20(3) CPA provides that:
Subject to subsection (2), a prosecution for an offence may be commenced by, and only by -
(a)one of the following acting in the course of his or her duties -
(i)an authorised person in relation to the offence;
(ii)a person referred to in section 80(2)(a) to (e);
(iii)a police officer;
or
(b)a person who, acting in accordance with the terms of an appointment made under section 182, may prosecute the offence.
The term 'authorised person' is defined by s 20(1) CPA to mean:
(a)if under another written law a person or class of person is authorised to commence a prosecution for the offence, that person or a person of that class; or
(b)in any other case, a person -
(i)who is a public authority or an employee of a public authority; or
(ii)who is authorised in writing by a public authority to commence a prosecution for the offence.
Section 20(2) further provides that:
If another written law limits who may commence a prosecution for an offence, a prosecution for the offence may only be commenced in accordance with that law.
Section 20(5) provides that:
A person acting in his or her private capacity cannot commence a prosecution, unless another written law expressly provides otherwise.
Section 23 CPA concerns the formal requirements of a prosecution notice. Relevantly, s 23(3) provides that the notice must be signed by an investigator or an investigator in the presence of either a justice of the peace or a prescribed court officer if the prosecution is commenced by an 'authorised investigator' (the term 'authorised investigator' is defined in s 18 CPA). A prosecution notice must comply with the requirements of sch 1, div 2 to the CPA. Clause 3 of sch 1, div 2 provides that a prosecution notice must identify the prosecutor.
Section 25 provides for the discontinuance of a prosecution in a court of summary jurisdiction:
(1)If no evidence has been adduced in relation to a charge, the prosecutor may inform the court the prosecutor is discontinuing the prosecution of the charge.
(2)On being so informed, the court may consent or, if satisfied that the discontinuance may be an abuse of process, refuse to consent to the discontinuance of the prosecution concerned;
(3)If a prosecution of a charge is discontinued, the court may dismiss the prosecution for want of prosecution.
(And see s 87 CPA for discontinuing the prosecution of an indictable charge.)
Section 172 CPA concerns representation of the parties to criminal proceedings. Section 172(1) provides that a party to a case is personally entitled to appear before the court in order to present and conduct the party's case and to call, examine, cross‑examine and re‑examine witnesses. Section 172(3) states that:
Unless this Act or another written law expressly provides otherwise, any entitlement of a party under this Act may be performed -
(a)on a prosecutor's behalf in a court of summary jurisdiction -
(i)if the prosecutor is the State or a police officer acting in the course of duty, by a police officer acting in the course of duty; or
(ii)if the prosecutor is acting for or on behalf of a public authority, by an officer or employee of the public authority acting in the course of duty
…
(b)on any party's behalf in any court -
(i)by a legal practitioner …
It is relevant to also note the provisions of s 169 CPA. That section concerns prosecutions determined by a court without jurisdiction. Section 169(1) defines the expression 'jurisdictional error' in relation to a charge against a person being dealt with by a court to mean 'an error of fact or law that is material to whether the court has jurisdiction to deal with the charge'. Section 169(2) provides that:
If a court that does not have jurisdiction to deal with a charge against a person determines the charge as a result of a jurisdictional error -
(a)the court's determination has full force and effect; and
(b)anything done as the result of the determination is lawful.
Section 169(3) provides that where a court that did not have jurisdiction to deal with a charge against a person determines a charge, a party to the prosecution or the attorney general may apply, if the determination is subject to an appeal, to the court dealing with the appeal for an order varying or setting aside the determination. The appeal court may either refuse the application or vary the determination and any sentence imposed or set aside the determination and any sentence imposed and order the prosecution to be sent to and dealt with by a court that does have jurisdiction to deal with the charge against the person.
As has been noted, s 82(1) of the Act provides that a general inspector may commence proceedings for an offence under the Act. Section 33(1) provides that the CEO of DAFWA may appoint those members of the staff of the RSPCA nominated by the RSPCA to be general inspectors. Accordingly, an inspector who is an employee of the RSPCA may commence a prosecution for an offence under the Act.
Section 86 of the Act provides that a fine imposed for an offence against the Act is to be paid to a local government if the offence was prosecuted by an inspector who was a member of the staff of that local government and to the Consolidated Account if another person prosecuted the offence.
Finally, the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Official Prosecutions Act) defines:
(a)an 'official prosecution' to mean, 'proceedings in a summary court against a person charged with an offence by a public official acting or purporting to act by virtue of his office';
(b)a 'public official' to mean, 'a Minister of the Crown, a person employed in the Public Service of the State, a member of the Police Force, or a person employed by a local government or any other statutory body and includes any person acting as agent of or under the instructions of such a person or body'.
Section 5 of the Official Prosecutions Act provides that a successful accused is entitled to his costs, and s 9 provides that where costs are awarded under the Act:
(a)if the public official a party to the proceedings is, among others, a person acting as agent of a person employed in the public service of the State, the accused's costs shall be paid out of the Consolidated Account;
(b)if the public official a party to the proceedings is a person employed by, or an agent of, a local government or a statutory body, the accused's costs shall be paid by that body and shall be recoverable as a civil debt.
Section 86 of the Act reflects the dichotomy created by s 5 of the Official Prosecutions Act. Moreover, it is significant in considering the appellant's submissions that the successful accused's right to be paid costs is not against the prosecutor but against either the Treasury and the Consolidated Account or a local government or a statutory body.

Ground of appeal 1(a)

It was not in issue that the Director General of the Department of Local Government had appointed the respondent a general inspector on 15 August 2010. As has been noted, it was also agreed that the Department of Local Government was the Assisting Department until 4 July 2011 and that this responsibility was transferred to DAFWA on that date.
The appellant contended that the respondent had not been duly appointed as a general inspector under the Act at the time that he signed the prosecution notice on 2 April 2013:
The Chief Executive Officer of the Department of Agriculture and Food, who at the time of the signing of the prosecution notice, was the person authorised to appoint General Inspectors pursuant to the Act, did not appoint [the respondent]. There was no evidence led to show that his previous appointment had been renewed nor ratified by the relevant CEO. It is therefore submitted that at the time of the signing of the prosecution notice, [the respondent] was not a General Inspector duly appointed under the said Act as it then was. He was, at best, a person acting as an agent for a Department that no longer had the power to assist in the administration of the Act (appellant's submissions, section 3).
In my view, that submission proceeded on a misconception that a change in the Assisting Department could affect the validity of the respondent's appointment as a general inspector. A rearrangement within the executive of departmental responsibility for assisting the Minister in the administration of the Act could not have that effect. Accordingly, the CEO of DAFWA was not obliged to re-appoint all of the inspectors who had been previously appointed by the Director General of the Department of Local Government on an administrative decision being made to re-allocate departmental responsibility for assisting the Minister. There was nothing express or implied in the provisions of the Act to suggest that the continuing validity of an inspector's appointment was contingent on there being no change in the allocation of the Assisting Department or that it was necessary for inspectors to be re‑appointed on a change in departmental responsibility.

The respondent's position as 'the prosecutor' - grounds of appeal 4 ‑ 6

Grounds of appeal 4 ‑ 6 concern the fact that the respondent ceased to be an employee of the RSPCA and a general inspector sometime after he commenced the prosecution against the appellant and before the trial had been completed. The circumstances in which, and the date on which, that occurred were not disclosed.

The parties' submissions

The parties' submissions on grounds of appeal 4 ‑ 6 have been briefly summarised above. Regrettably, the submissions did not analyse the relevant provisions of the Magistrates Court Act and the CPA or refer to any relevant authority. So, for example, neither party identified by reference to the relevant legislation what, if any, effect the respondent ceasing to be a general inspector had on the prosecution that had been commenced against the appellant. In particular, the appellant's submissions left unanswered a number of questions. Did the fact that the respondent was no longer an inspector impact on the magistrate's jurisdiction to hear and determine the charge or did it mean that a prosecutor no longer appeared in the prosecution so that the charge should be dismissed for want of prosecution (as the appellant's counsel submitted in the trial) or was the continuation of the prosecution some form of an abuse of process? What did it mean for the continuation of the prosecution to assert that the prosecuting counsel who appeared in court was no longer representing the respondent 'when the latter had no standing in the proceedings'? What was meant by the allegation made in ground of appeal 5 that the magistrate erred in permitting the trial to proceed 'in the absence of a properly authorised prosecutor'? Moreover, was the appellant's complaint merely that the prosecution notice ought to have been amended to substitute a different party as 'prosecutor'? If so, why was the failure to amend fatal to the prosecution?

Jurisdiction

As has been noted, the Magistrates Court Act expressly confers criminal jurisdiction on a magistrate to hear and determine a charge. Section 67(3) of the Interpretation Act provides that the procedure for 'prosecuting and dealing' with offences is set out in the CPA. The section indicates that the CPA is concerned with procedural matters; it is not concerned with the jurisdiction of the various courts in which offences are prosecuted.
The Court of Appeal confirmed that interpretation in Calandra v Civil Aviation Safety Authority [2015] WASCA 31: 'the jurisdiction of the Magistrates Court to hear charges alleging the commission of simple offences is conferred by s 9 and s 11 of the [Magistrates Courts Act], not the CPA' [25] (Martin CJ, Mazza JA and Hall J agreeing). Accordingly, 'defects' in the procedure for commencing prosecutions do not deprive the Magistrates Court of jurisdiction, although they might result in the proceedings being dismissed by a magistrate acting within jurisdiction: Calandra [25] (Martin CJ citing with approval the observations of EM Heenan J in Spagnolo v Flynn [2014] WASC 88).
In my view, the fact that the respondent ceased to be a general inspector sometime after he commenced the prosecution against the appellant could not affect the magistrate's jurisdiction to hear and determine the charge alleged against the appellant having regard to the provisions of s 9 and s 11 of the Magistrates Court Act and the decision of the Court of Appeal in Calandra. The court's jurisdiction was not dependent on the prosecution having been commenced or maintained by an 'authorised person'.

The agency allegation – the additional proposed ground of appeal

That conclusion also applies to the allegation made in the additional proposed ground of appeal. The magistrate possessed jurisdiction to hear and determine the charge even if the respondent had commenced the prosecution in a private capacity contrary to s 20(5) CPA. The appropriate course would have been for the magistrate to consider whether to dismiss the charge if it had been established that the respondent had acted in a private capacity. The question of whether the magistrate erred by not dismissing the charge on that ground will be considered later in these reasons.

Section 169 CPA

The magistrate did, of course, hear and determine the charge alleged against the appellant. However, the appellant did not make an application in the appeal pursuant to s 169 CPA. Consequently, his Honour's determination of the appellant's guilt and the penalty imposed have 'full force and effect', notwithstanding any 'jurisdictional error' that might have been made in ruling on the effect of the respondent ceasing to be a general inspector and despite any lack of jurisdiction to hear and determine the charge as a result of any such error. As Buss JA explained in Ward v State of Western Australia [2011] WASCA 172:
The phrase 'full force and effect', in s 169(2)(a), connotes that, notwithstanding the jurisdictional error, the court's determination of the charge is valid and effective. Section 169(2)(a) expressly and unambiguously confers validity and efficacy on the court's determination. Despite the jurisdictional error, the determination is not void or of no effect [42] (and see the observations of Murphy JA to the same effect [109]).
In my view, it is plain that the magistrate possessed jurisdiction to hear and determine the charge alleged against the appellant. However, the fact that no application was made under s 169 CPA means that the appellant's conviction and sentence cannot be disturbed on any ground of appeal that alleges, in effect, that the magistrate lacked jurisdiction to hear and determine the charge made against the appellant.
Obviously, the parties made no submissions on the application of s 169(4) CPA. However, I should indicate that I would not have been inclined to set aside the magistrate's determination of guilt and the sentence imposed had I found that the magistrate had erred in exercising jurisdiction and an application had been made under s 169. I accept the observations made by Murphy JA (with whom Hall J agreed) in Ward concerning the effect of the section (and see the comments of Buss JA at [51] ‑ [54]):
First, s 169(4) does not itself specify the factors to be taken into account. In this regard, the court's discretion is confined only by the subject-matter, scope and purpose of the legislation and the requirement that it be exercised judicially, and consistently with the judicial process: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [53], [108] ‑ [111].
Secondly, it is to be noted that by s 169(3), an application may be made not only by the particular parties to the prosecution, namely, the State and the accused, but also by the Attorney-General, which also tends to suggest that the discretion in s 169(4) is broad in scope.
Thirdly, s 169(4) does not refer to 'substantial miscarriage of justice'. Whilst a 'substantial miscarriage of justice' in the sense used in the proviso will likely form a basis upon which the discretion in s 169(4) may be exercised, there would seem to me to be no warrant in the text to import the language of the proviso and to treat it as providing a 'single universally applicable criterion' in the exercise of power under s 169(4): cf Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45].
Fourthly, ss 169(3) and (4) evidently operate on the basis that something more is required to enliven the power under s 169(4) than the mere consequence that the general law would or may have regarded the determination in question as a nullity.
These considerations suggest, in my view, that the discretion is a broad one, to be exercised to serve the interests of justice. In other words, it appears to me that, in substance, the object of s 169(3) & (4) is to enable the court to set aside or vary a determination made as a result of jurisdictional error if, and to the extent that, it appears to the court that it is in the interests of justice to do so. For this purpose, the applicant must point to some matter beyond the mere fact that a jurisdictional error was made and that under the general law the determination could or would be regarded as a nullity in consequence of the jurisdictional error [113] ‑ [117].

Applying that approach, and allowing for the fact that no submissions were made by the parties, I do not consider that the interests of justice would have required that the appellant's conviction and sentence be set aside merely because the respondent ceased to be a general inspector after he had validly commenced the prosecution against the appellant. The matters discussed below further explain that view.

Procedural issues – the CPA

I am inclined to the view that the gist of grounds of appeal 4 ‑ 6 and the additional ground is to assert that the magistrate lacked jurisdiction to hear and determine the charge alleged against the appellant once the respondent ceased to be a general inspector. However, any error of the kind alleged in grounds of appeal 4 – 6 or in the additional proposed ground of appeal must concern a matter of procedure under the CPA if, as I have concluded, the appellant has not established that the magistrate lacked jurisdiction to hear and determine the charge (or if his Honour did lack jurisdiction, his determination nevertheless has full force and effect in the absence of an application under s 169 CPA).
The width of the wording of s 67(3) of the Interpretation Act - 'prosecuting and dealing' - should be noted in this context. It suggests that the CPA was intended to deal comprehensively with matters of criminal procedure.
The CPA prescribes in some detail who may commence a prosecution and the procedure that is to be adopted in commencing a prosecution. (It is convenient in what follows to focus on the authority of an 'authorised person' to commence a prosecution as the respondent was such a person; however, the fact that s 20 refers to police officers and other persons who hold a particular office or appointment when proceedings are commenced should not be overlooked.) Significantly, the Act defines an authorised person solely for the purpose of identifying who may commence a prosecution. That person or, where permitted, a public authority becomes a party to the prosecution (see cl 3 of sch 1, div 1 CPA in relation to public authorities and Tey v Plotz [2010] WASC 163 and on appeal, Tey v Plotz [2011] WASCA 194). However, the CPA does not otherwise refer to an authorised person in relation to the proceedings. In particular, the Act does not expressly require that the prosecution must be maintained by a person who retains their status as an 'authorised person' (or who continues to be a police officer or hold the office referred to in s 80(2) or an appointment under s 182).
The absence of any express provision referring to an authorised person other than in the context of commencing a prosecution begged further questions that were not answered by the appellant: which provision(s) of the CPA had been breached when the prosecution continued after the respondent had ceased to be an inspector; which provision(s) dealt with the respondent's 'standing' at that point and in particular, which provision(s) denied the respondent 'standing' as a prosecutor; which provision(s) required the prosecution notice to be amended when the respondent ceased to be an inspector and which provision(s) of the Act required the magistrate to dismiss the charge or stay the prosecution in the circumstances? The fact that no answer was offered to those questions – and that there is no obvious answer – suggests that the CPA does not require that a person who lawfully commenced a prosecution must retain their status as an authorised person for the prosecution to be validly maintained.

No substantial miscarriage of justice in any event

I have been unable to locate any authority on the question of the effect, if any, of a person ceasing to be an 'authorised person' for the purpose of the CPA after a prosecution has been validly commenced by that person (or the equivalent question in relation to any of the other classes of persons who may commence a prosecution under s 20). However, I make some observations below on that question and on related issues raised by the appellant in proposed grounds of appeal 4 ‑ 6 and the proposed additional ground. There are lines of authority that have considered analogous issues, albeit in different statutory contexts. I briefly mention those authorities in the discussion that follows as they may provide a historical understanding of criminal procedure that has informed the drafting and enactment of the CPA or otherwise assist in resolving the issues raised by the appellant.
However, it should be understood that the observations that follow are made without the benefit of submissions from the parties on the particular matters that are discussed. Further and more importantly, the observations are made against the background of a finding that the magistrate had jurisdiction to hear and determine the charge or his determination is taken to be of full force and effect even if it could be shown that he had made a jurisdictional error. As has been already been emphasised, that means that any error allegedly made by the magistrate could only have been procedural in character or, possibly, an error concerning the inherent fairness of the prosecution - that is, an error about whether the proceedings ought to have been characterised as an abuse of process.
In my view, none of the errors alleged in grounds of appeal 4 ‑ 6 or the additional ground, if properly characterised as errors, caused a substantial miscarriage of justice or rendered the proceedings an abuse of process. Neither party expressly addressed the question of whether there had been a substantial miscarriage of justice as a result of any of the matters alleged by the appellant in grounds of appeal 4 ‑ 6 or the addition ground (or indeed, in relation to any of the proposed grounds). That may be because the appellant's grounds implicitly assumed that the magistrate was deprived of jurisdiction on the respondent ceasing to be a general inspector. However, the question of whether there has been a substantial miscarriage of justice falls to be determined on the basis that the magistrate did not err in exercising jurisdiction to hear and determine the charge alleged against the appellant.
On that basis, I have been unable to discern any miscarriage of justice from my review of the trial transcript and the various matters raised by the appellant in grounds of appeal 4 ‑ 6 and the additional ground of appeal. There is no reason to doubt that prosecuting counsel was appropriately instructed throughout the trial to the extent that he required instructions independently of the power conferred by s 172(1) to appear before the court to 'present and conduct' the prosecution case. There is no allegation in the appeal that prosecuting counsel or any person associated with the prosecution breached any duty imposed by the CPA or owed to the court at law or acted in any way that undermined the integrity of the court's proceedings. The appellant's grounds of appeal recognise the possibility that another prosecutor could have been substituted for the respondent by amending the prosecution notice. No submission was made that demonstrated why the decision not to amend the notice caused a substantial miscarriage of justice, if, as I have held, the magistrate retained jurisdiction to hear and determine the charge or his determination has full force and effect despite any jurisdictional error.

Some preliminary observations about the CPA

There are several aspects of the CPA that should be noted in relation to the issues raised by the appellant in grounds of appeal 4 ‑ 6 and the additional ground.
First, the CPA defines the term 'party' to mean the 'prosecutor' or the accused. Historically, the term 'prosecutor' has been used to refer to both the person who commenced a prosecution by laying an information or making a complaint and the person who appeared at the trial to prosecute the charge. The CPA retains those meanings for prosecutions in a court of summary jurisdiction and, with a modification to reflect s 80, for prosecutions in a superior court.
The two senses in which the word 'prosecutor' may be used reflect the historical reality that it was rare for an informant to appear at the trial to prosecute a charge. For example, it has long been the practice in this State and elsewhere for police prosecutors to appear in courts of summary jurisdiction to prosecute charges laid by other police officers. The officer who charged an accused person will often have little, if any, involvement in the subsequent prosecution (except, perhaps, as a witness). Indeed, the CPA does not require that the prosecution be commenced by the arresting police officer or by a police officer that had any particular connection with, or knowledge of, the alleged offence (indeed, it is apparent from the provisions of the Criminal Investigations Act 2006 (WA) that very often the arresting officer will not be responsible for charging an accused person). It is only necessary that the prosecution be commenced by a police officer acting in the course of his or her duties. Accordingly, it is somewhat artificial to conceive of a police officer who commenced a prosecution as instructing, or being required to instruct, a police officer who appears in court to prosecute the charge.
Similar observations apply to a prosecution commenced by a public authority or an employee of a public authority or a person authorised in writing by a public authority to commence a prosecution for an offence. A person who is an authorised person in those circumstances is not required by the CPA to have personal knowledge of the alleged offence.
The second aspect of the CPA to note is that at common law and under Jervis' Act, as adopted by the Australian States in the various Justices Acts, any person could commence a criminal proceeding by laying an information on oath before a justice. The information commenced the proceeding by providing a factual basis for a justice to issue a summons or warrant requiring the accused person to appear in, or be brought before, a court. The CPA has altered the law for commencing prosecutions - it limits the persons who may commence a prosecution and simplifies the procedures by which a person may be brought before a court. The limitation on who may commence a prosecution is evidently intended to protect against the risk of vexatious or frivolous or wholly unmeritorious prosecutions being commenced in such a scheme. The persons prescribed by s 20 are persons who, by virtue of their office, might be expected to responsibly exercise the discretion to commence a prosecution.
The third relevant aspect of the CPA is that, as has been noted, the term 'party' is defined to mean the prosecutor and the term 'prosecutor' is defined to refer to the two senses in which the word has been traditionally used. It would have been a simple matter of drafting to define the parties as 'the person who commenced the prosecution and the accused' if Parliament had intended to confine references in the CPA to a 'party' in that way; that is, if Parliament had intended to adopt in the CPA a conventional meaning for the term 'party' to a proceeding. The CPA contains a number of references to the parties to a prosecution. It is apparent that those references are generally intended to apply to both the person who commenced the prosecution and the person who in court represents that person.
The fourth aspect of the CPA that is relevant concerns s 172(1). The section refers to the entitlements of a 'party to a case'. It is rather cumbersome to refer to a person who in court represents another person as being personally entitled to appear. Nevertheless, I cannot see why the reference to a 'party to a case' in s 172(1) should read down to refer only to the person who commenced the prosecution (the 'prosecutor' in the first sense of the term) and the accused and as excluding a person who represents in court the person who commenced the prosecution (the 'prosecutor' in the second sense of the term). That is especially as the reference to prosecutor in s 172(3)(a)(i) and s 173(a)(ii), appears to be only to the person who commenced the prosecution. Further, s 172(1) refers to an appearance before the court, a reference that is seemingly more specific than the expression 'represents in court' that is used in the definition of 'prosecutor'.
Importantly, the entitlement conferred by s 172(1) is expressed in wide terms - to 'present and conduct' the party's case. The section would appear to confer a wide authority on a prosecutor who appears to represent the person who commenced the prosecution.
Finally, s 172(3)(a)(i) recognises the historical practice in relation to police prosecutions to which reference has been made and s 172(3)(a)(ii) recognises that a person who commences a prosecution as an employee of a public authority or as a person who was authorised in writing by a public authority to commence a prosecution 'acts for or on behalf of the public authority'.

Analogous issues – the death of an 'informant' prosecutor

In R v Truelove (1879 ‑ 80) LR 5 QBD 336, a magistrate issued a warrant for premises to be search under an Act concerned with obscene publications. The warrant was issued on the complaint of G. A police officer subsequently seized two pamphlets pursuant to the warrant and a magistrate issued a summons requiring T to appear at the Bow Street Police Court to show cause why the pamphlets should not be destroyed. G died prior to completion of the proceedings. It was argued on appeal that the proceedings lapsed on the death of G, as the Act under which proceedings had been commenced required that there should throughout be an informer who might be liable to pay costs.
Lush J (with whom Manisty J agreed) rejected that contention. The proceedings were 'essentially' criminal proceedings that could not 'be liable to abatement in the same manner as civil or quasi civil proceedings' (339). The warrant was similar to an ordinary search warrant and the presence of the complainant was not necessary on the further prosecution of the proceedings.
His Lordship noted that a person aggrieved by an order made under the Act could appeal, but was not required to give notice to the complainant. However, the aggrieved person had a right to costs if successful in the appeal. His Lordship stated in that regard:
Counsel for the defendant mainly relied upon these last words, as shewing that it is essential that there should be a complainant to appeal against. But I cannot see why, if upon the death of the complainant some other person takes over the prosecution, he should not be liable to pay costs if the appeal should be successful. It could readily be ascertained as a matter of fact who was the party prosecuting the appeal. There is nothing to shew again that the same person who originally made the complaint must always be party to the appeal (340).
In Elliott v Taylor [1947] St R Qd 210, an officer of a Commonwealth department made a complaint charging the respondent with a breach of the National Security (Prices) Regulations. The officer died after service of the summons and before the hearing of the charge. The presiding magistrate stated various questions for determination by the Full Court, including whether he had jurisdiction to hear and determine the complaint notwithstanding that the complainant had died prior to the trial. The Full Court held that the magistrate did have jurisdiction and that it was not necessary for an application to substitute another person as prosecutor following Truelove. E A Douglas J considered that criminal proceedings did not abate, while Philp J considered that it was 'basic law that in all criminal proceedings the Crown is a party although criminal proceedings be instituted by a private prosecutor'. The Crown could at any time take over the proceedings, albeit that they were commenced by a private prosecutor. Matthews J agreed that the Crown was a party to all criminal proceedings.
In Hawkins v Bepey [1980] RTR 392, a police officer laid an information alleging that the defendants had contravened traffic regulations. The police officer as the prosecutor was represented by a solicitor at the trial of the charges. The magistrates dismissed the charges and the prosecutor appealed. However, the prosecuting police officer died before the appeal was heard. It was contended by the respondents that the appeal had lapsed on the death of the prosecuting police officer.
Watkins J (with whom Brown LJ agreed) noted that the police officer was acting pursuant to an instruction given by the Chief Constable in laying an information and that the instruction, in turn, had been given pursuant to powers conferred on the Chief Constable by legislation governing the police. Accordingly, the 'real' prosecutor was the Chief Constable or the relevant county police force. In a 'real sense' no party to the appeal had died (400).
Watkins J considered that Truelove and R v Burt; Ex parte Presburg [1960 1 Qb 625, supported that conclusion. In both cases, the court had recognised that a person who was not the informant and who was not, therefore, initially the 'prosecutor' could assume responsibility for a prosecution and could, for example, be liable to pay the costs of a successful defendant where legislation conferred an entitlement to costs.

Changes in the status of an 'initiating prosecutor'

In John L Pty Ltd v Attorney‑General (NSW) (1987) 163 CLR 508, an information was laid before a judge of the Supreme Court for the purpose of invoking that court's summary jurisdiction. The information alleged an offence against the Consumer Protection Act 1969 (NSW). Section 56(1) of that Act provided that proceedings for offences against the Act might only be taken 'by a person acting with the authority in writing of the Minister'. The informant had acted with the authority in writing of the Minister in laying the information.
The information was dismissed on the ground that it was defective. An appeal against that decision was commenced in the Court of Criminal Appeal. The Criminal Appeal Act 1912 (NSW) only allowed an appeal in summary proceedings to which the Crown was a party. It was contended in the High Court that the appeal to the Court of Criminal Appeal was incompetent as the prosecutor had been an officer of the Department of Consumer Affairs and not the Crown.
Mason CJ, Deane and Dawson JJ considered that the Crown was not a party to the proceedings. The informant and the appellant were the parties to the proceedings. However, their Honours added:
The proceedings were not brought in the name of the Crown or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf of or in the name of the Crown. They were brought by by Mr Clayton as 'a person' (s 56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs: contrast, e.g., proceedings to which 'the Minister' (s 56B) or 'the Commissioner with the consent of the Minister' (s 56A(1) is a party. They were not proceedings to which the Crown was a party in any accepted meaning of the words 'Crown' or 'party' (519).
Brennan and Toohey JJ held that there was a right of appeal to the Court of Criminal Appeal as the proceedings had been instituted by a government official acting in the performance of his official functions.
The reasoning of the High Court in John L was further considered by the New South Wales Court of Appeal in Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193. The issue in Ove Arup was whether proceedings in the Full Bench of the Commission in Court Sessions were proceedings to which the Crown was a party for the purpose of determining rights of appeal. Basten JA (with whom Spigelman CJ and Mason P agreed) referred to the passage from the majority in John L Pty Ltd cited above and observed:
The contrast drawn in the penultimate sentence of this extract between, on the one hand, a public servant who required the consent of the Minister to prosecute, but could maintain the proceedings even if he were no longer a member of the public service and, on the other hand, a statutory officer such as the Commissioner, indicates that the present case may fall into a different category. The inspector was appointed by a statutory authority representing the Crown, and brought the prosecution pursuant to his statutory authority as an inspector [62].

The location of the vehicle

Ms Zuraszek, Ms Weiman, Mr Weiman and Mr Douthat all stated that the appellant's motor vehicle was parked on the top deck of the Carousel shopping centre carpark. Ms Zuraszek and Ms Weiman stated that the motor vehicle was parked in the second row away from the entrance to the Coles supermarket. They both placed the motor vehicle as having been parked approximately in the middle of the row.
Ms Zuraszek and Ms Weiman further identified the location of the appellant's motor vehicle by marking exhibits 8.1 and 8.3 (a pink marker for Ms Zuraszek and a purple marker for Ms Weiman). They each placed the vehicle in almost the same location. The vehicle was parked underneath one of two shade sails that covered part of the second row of vehicles.
Mr Weiman stated that the appellant's vehicle was parked in a row of vehicles located behind the row identified by Ms Zuraszek and Ms Weiman. He marked the location with a yellow sticker on exhibit 8.4. Mr Douthat also stated that the appellant's vehicle was parked in that row. He marked exhibit 8.2 with a green sticker, locating the vehicle close to where Mr Weiman had indicated that it was parked.
The magistrate found that Mr Douthat had located the appellant's vehicle in the same spot as where Ms Zuraszek and Ms Weiman had earlier observed the vehicle. I accept the appellant's submission that the magistrate misstated the effect of Mr Douthat's evidence if his Honour's finding was to the effect that the vehicle was parked in exactly the same spot. Mr Douthat placed the vehicle in a different row to that identified by Ms Zuraszek and Ms Weiman. However, it is not clear whether the magistrate only intended to indicate that the appellant's vehicle was located on the top floor of the Carousel shopping centre car park in the vicinity of where it had been observed earlier in the afternoon by Ms Zuraszek and Ms Weiman.
I accept, however, that the inference to be drawn from the evidence of Ms Zuraszek, Ms Weiman, Mr Weiman and Mr Douthat was that the appellant's vehicle had been moved some time during the afternoon of 4 December 2012. Again, whether the vehicle was actually moved by the appellant and if so, when, were matters that were peculiarly within her knowledge.
The difference in the location of the appellant's vehicle according to the evidence of Ms Zuraszek and Ms Weiman, on the one hand, and Mr Weiman and Mr Douthat, on the other hand, was insignificant - a matter of one row and a few car bays. Any error that the magistrate may have made in relation to the evidence regarding the location of the vehicle was, in my view, immaterial to the ultimate findings made by the magistrate and to the inferences reasonably available on the evidence presented by the prosecution.

Shade

The markings by the witnesses on exhibits 8.1 to 8.4 indicated that the appellant's vehicle was parked under the shade sails erected across part of the top deck of the carpark. However, there were gaps between the shade sails and witnesses placed the appellant's vehicle near the edge of the sails and close to the gaps.
Ms Zuraszek stated that the appellant's vehicle had 'slight shade from the shade sail' (11 July 2013, ts 90). Ms Weiman said that the car was partially under shade, but that the shade cloth was 'minimal' and that the side of the appellant's vehicle was in the sun (18 September 2013, ts 13 and ts 23). She also stated that standing in the shade under the shade sails made 'little difference … in the feeling of heat on your skin' (ts 23).
Mr Weiman stated that the cabin of the appellant's vehicle was under the shade sail, but that the bonnet was in the sun (18 September 2013, ts 30). Mr Douthat stated that the appellant's car was 'predominantly' in the sun (12 July 2013, ts 156).
Obviously, the shade thrown by the shade sails would have varied across the afternoon. In my view, the magistrate's finding was broadly consistent with the evidence.

Judicial notice

Judicial notice may be taken of facts that are so generally known that every ordinary person may be reasonably presumed to be aware of it: Holland v Jones (1917) 23 CLR 149, 153 (Isaacs J). That heat may be radiated off concrete surfaces and that the interior temperature of a vehicle wholly or partially parked in the sun may be elevated above the ambient temperature are facts that are so notorious that they may be the subject of judicial notice.
However, it is not a fair reflection of the evidence presented by the prosecution to suggest that the magistrate was forced to take judicial notice of the likely temperature inside the appellant's vehicle. Mr Douthat gave evidence that the temperature inside the appellant's vehicle was higher than the ambient temperature (12 July 2013, ts 148). He was not cross‑examined on that evidence. Further, Mr Manning gave expert evidence on the issue. He described tests that had been performed that demonstrated that the interior temperature of a vehicle parked for some time in the sun is significantly higher than the ambient temperature (and see also Ms Weiman's evidence on 18 September 2013, ts 14).

Mr Douthat's experience

It was not put to Mr Douthat that his ability to assess the condition of Roxy was compromised by his lack of experience with Borzoi dogs. In any event, there was no evidence that suggested that the observations made by Mr Douthat regarding Roxy's condition and behaviour were compromised by his lack of experience with that breed of dog.

Mr Douthat's entry into the vehicle

In my view, there was no inconsistency between the magistrate's finding regarding the reaction of Roxy when Mr Douthat entered the appellant's vehicle and the evidence given by Mr Douthat. Presumably, the point of this particular was to suggest that Roxy had not been adversely affected by heat as evidenced by her movement on Mr Douthat's entry. There was no suggestion to that effect made at the trial and the movement of the dog on Mr Douthat's entry into the vehicle could not be said to be inconsistent with all of the evidence concerning Roxy's condition - in particular, the evidence given by Dr Keall.

The finding that Roxy suffered from heatstroke

Dr Keall diagnosed Roxy as suffering from 'mild' heatstroke. The magistrate's reference to heatstroke was, in my view, a shorthand reference to Dr Keall's diagnosis. In any event, any difference in language was of no consequence when his Honour's reasons are read in the context of the evidence that he accepted and the findings that he made on that evidence.

The finding that Roxy suffered from heatstroke when seized

I am satisfied from a review of the trial transcript that it was open to the magistrate to find that the only reasonable inference available on the evidence was that Roxy was suffering from heatstroke at the time that she was seized by Mr Douthat. I have reached that conclusion having regard to:
(a)the evidence concerning the circumstances in which the dog was confined in the appellant's vehicle;
(b) the evidence that the dog was distressed while in the back of the vehicle;
(c)Dr Keall's diagnosis of heatstroke, her explanation of that condition and the symptoms that she described (see, for example, Dr Keall's evidence on 22 April 2014, ts 110);
(d)the evidence about the manner in which Mr Douthat conveyed Roxy to Dr Keall's veterinary clinic and the time that it took to transport the dog – in addition to the evidence of Mr Douthat, there was evidence given by Dr O'Connell regarding the type of vehicle that is used by the RSPCA to transport animals;
(e)Dr O'Connell's evidence that the temperature of a dog would not be increased by transporting it in a ventilated van (22 April 2014, ts 134).

Proposed ground of appeal 10

The particulars to this proposed ground of appeal refer back to the allegation made in relation to proposed ground of appeal 9 that there was no evidence concerning Roxy's symptoms at the time that she was seized by Mr Douthat and to the magistrate's observation that Mr Douthat was faced with an emergency when he arrived at the Carousel shopping centre as Roxy was in distress and had been unnecessarily harmed (reasons for decision, 30). The proposed ground of appeal alleges that there was no evidence adduced by the prosecution from which the magistrate could find that Roxy was suffering from heatstroke when seized by Mr Douthat and that Mr Douthat was faced with an emergency.
The proposed ground ignores the evidence regarding Roxy's behaviour and appearance, the opinions of Dr Keall and Dr O'Connell and Mr Douthat's evidence of his observations of the dog and the manner in which it had been confined. The magistrate accepted the evidence given by each of the prosecution's witnesses and there is no challenge to the evidence given by Ms Zuraszek, Ms Weiman, Mr Weiman, Mr Douthat and Dr Keall about their observations of Roxy's condition and behaviour.
The fact that Mr Douthat took photographs of the appellant's vehicle with Roxy inside does not mean that the magistrate erred in observing that Mr Douthat was faced with an emergency. In any event, the word 'emergency' was used by the magistrate merely as part of the narrative and is to be understood in the context of the findings that his Honour made.

Proposed ground of appeal 11

The particulars to proposed ground of appeal 11 merely refer back to the particulars to grounds 9 and 10. To recast the matters alleged by grounds 9 and 10 as an allegation that the conviction was against the weight of evidence does not raise any allegation of express or implied error that has not, in substance, already been considered.

Proposed ground of appeal 12

The appellant's submissions

It was submitted that the verdict was unsafe and unsatisfactory as Dr Keall was unable to comment on the state of the appellant's dog at the time that she was seized. It was open to infer, so it was contended, that the condition of the dog may have deteriorated while she was being transported to Dr Keall's veterinary clinic. It was further submitted that:
(a)while Mr Weiman and Mr Douthat had described Roxy as appearing stressed and wet, the prosecution had not excluded an inference that the dog's appearance could be explained by the fact that she had been lying on wet towels while in the back of the appellant's vehicle;
(b)the magistrate had not explained what he meant by the word 'manner' and in the absence of such an explanation, the verdict was unsafe and unsatisfactory having regard to the matters that he found relating to the manner of Roxy's confinement.

The relevant principles

The test to be applied where it is contended that there has been a miscarriage of justice because the verdict was unreasonable or could not be supported by the evidence is as stated in M v The Queen (1994) 181 CLR 487, 492 ‑ 493:
The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.
...
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
The High Court also noted that (at 493):
And as the Court observed in Davies and Cody v The King …, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:
'not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.'
Finally, the High Court observed that (at 494):
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
The High Court recently confirmed that M v The Queen authoritatively stated the circumstances in which a conviction may be set aside on the ground that the verdict was unreasonable or could not be supported having regard to the evidence: Michaelides v The Queen [2013] HCA 9; (2013) 296 ALR 1; (2013) 87 ALJR 456.

Disposition

I have reviewed the whole of the evidence that was presented in the trial. In my view, it was open to the magistrate to have been satisfied beyond a reasonable doubt that the appellant was guilty of the charge alleged against her. That conclusion is based on all of the evidence adduced by the prosecution but especially the evidence to which reference was earlier made regarding the allegation that the magistrate had erred in finding that Roxy was suffering from heatstroke by the time that she was seized by Mr Douthat.
The magistrate did not fail to observe any condition that was central to a satisfactory and fair trial and I have not been persuaded that his Honour made any material error of fact. I was not left with a troubling doubt of the kind referred to by the High Court in M v The Queen from my review of the evidence.
The expression 'the manner of confinement' raises a question of fact to be determined by all of the relevant circumstances. The expression is to be understood and applied according to the ordinary meaning of the words used. The findings made by the magistrate regarding the circumstances in which Roxy was confined in the appellant's vehicle disclosed how his Honour determined that issue. His Honour was not required to provide a further explanation of the meaning of the word 'manner'.
It follows from the conclusion that I have reached in relation to proposed ground 12 that I am satisfied that the appellant's conviction was supported by the evidence, contrary to the allegation made in proposed ground of appeal 11.

The competence of counsel

(Proposed ground of appeal 14)

The appellant's submissions

The appellant submitted that her counsel had incompetently conducted her defence in a number of respects. Broadly, the allegations that she made were that her counsel had failed to:
(a)adduce evidence that DAFWA was the department responsible for assisting the Minister to administer the Act from 4 July 2011;
(b)identify or argue the relevance of the Policy and the alleged consequences of the failure to comply with the Policy;
(c)identify that the respondent was not a general inspector appointed under the Act and had, therefore, no power to commence proceedings against the appellant;
(d)object to the amendment of the prosecution notice with the result that the trial involved the prosecution of a charge that was bad for duplicity;
(e)object to hearsay evidence given by Mr Douthat of a conversation with a person that had not occurred in the presence of the appellant;
(f)object to leading questions 'prompting the learned trial magistrate to intervene due to concern that the appellant was being prejudiced';
(g)object to speculative remarks by a witness prompting the magistrate to intervene;
(h)advise the appellant to give evidence following the completion of the prosecution case;
(i)object to an assertion by Ms Zuraszek that Mr Weiman saw the same vehicle with the same dog inside.

The relevant principles

The principles relevant to an allegation that a miscarriage of justice has been caused by the conduct of counsel at trial were summarised by the Court of Appeal in McMahon v The State of Western Australia [2010] WASCA 143 and Durani v The State of Western Australia [2012] WASCA 172. The principles were substantially derived from the various judgments delivered in TKWJ v The Queen (2002) 212 CLR 124. The following brief statement of the relevant principles is taken from the judgment of McLure P in McMahon:
(a) The applicant carries a heavy burden in demonstrating that the conduct of trial counsel caused a miscarriage of justice [24].
(b) Ordinarily, an accused is bound by the way the trial is conducted by counsel regardless of whether counsel's conduct accorded with his or her wishes. It is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions or involved errors of judgment or even negligence [24].
(c) There will be a miscarriage of justice regardless of whether counsel's conduct might have affected the outcome if the accused has been deprived of a fair trial according to law [25].
(d) Two questions arise where the conduct of counsel has not deprived an accused of a fair trial according to law but counsel's conduct was nevertheless irregular in some respect: first, did the conduct result in a material irregularity in the trial and second, was there a significant possibility that the irregularity affected the outcome [26].
(e) The test of whether there was a material irregularity is objective and ordinarily, a material irregularity will not occur where the alleged error of counsel concerned forensic choices about which competent counsel might have differing views. Nevertheless, there will be a miscarriage even though the error involved a forensic choice or judgment if it plainly affected the result of the trial [27].

Disposition

It will be seen that the allegations of incompetence substantially mirror the appellant's proposed grounds of appeal. I have found that the proposed grounds lack merit. Obviously, there is no basis for concluding that the appellant's counsel was incompetent in relation to those matters.
Dealing with each of the matters submitted by the appellant in the order set out above:
(a)For the reasons that have already been given, the change in the department principally assisting the Minister in administering the Act had no consequences for the prosecution of the charge alleged against the appellant.
(b)Contrary to the appellant's submission, her counsel did raise the alleged failure to comply with the Policy on the first morning of the trial. Further, the question of whether there had been compliance with the Policy was not a matter that was susceptible to review by the magistrate for the reasons that have been given.
(c)The respondent was a general inspector duly appointed under the Act at the time the proceedings were commenced.
(d)As has been explained, the charge was not bad for duplicity.
(e)The prosecution alleged that Mr Perry had transported Roxy to the Carousel shopping centre where the dog was handed to the appellant. The conversation between Mr Douthat and Mr Perry was recorded by Mr Douthat and played to the court. Mr Douthat also gave evidence of his recollection of the conversation with Mr Perry. According to Mr Douthat, Mr Perry told him that he had taken the dog to the shopping centre, leaving his residence in Muckenburra sometime between midday and 1.00 pm. Mr Douthat did not state whether Mr Perry also advised him as to when he had arrived at the Carousel shopping centre (12 July 2013, ts 150). Mr Douthat repeated his account of the conversation with Mr Perry later in his evidence (5 December 2013, ts 12 ‑ 13). The evidence of the conversation with Mr Perry was hearsay to the extent that it was adduced for the purpose of proving Mr Perry's arrangements with the appellant and the time that he left for the Carousel shopping centre. However, the magistrate did not take into account Mr Douthat's evidence of the conversation for the purpose of finding the facts.
(f)The exchanges identified in the appellant's outline of submissions reflected interventions by the bench that routinely occur in a criminal trial. They did not disclose that the appellant's counsel at trial was incompetent.
(g)No evidence has been presented concerning any advice that may have been provided by the appellant's counsel on whether the appellant should have given evidence or about the appellant's instructions following that advice. There is no basis for concluding that the appellant's counsel was incompetent merely because another counsel would have made a different forensic assessment and advised the appellant to give evidence.

The appeal against sentence

(Proposed grounds of appeal 15 and 16)

The principles to be applied

The court can only allow an appeal against sentence if the sentencing magistrate has made an express or implied material error of fact or law and, in the court's opinion, a different sentence should have been imposed – there would otherwise be no substantial miscarriage of justice in the sentence imposed: s 14 Criminal Appeals Act 2004 (WA). The principles to be applied by the court in forming its opinion were summarised by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They reflect the discretionary nature of sentencing.
An allegation that a sentence is manifestly excessive is an allegation of implied error. In determining whether a sentence is manifestly excessive, the court will have regard to the maximum sentence for the offence; the standards of sentencing customarily imposed for sentences of a relevant type; the seriousness of the offending and the personal circumstances of the offender. However, the court will not intervene merely because it might have imposed a different sentence to that which had been imposed. Error may be implied if the result is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321.

Disposition

Neither party cited any comparable cases in which sentences for animal cruelty had been imposed or reviewed on appeal. However, I note that this court has considered appeals against sentence for contraventions of s 19 of the Act in Holding v Parkin [2012] WASC 113; (2012) A Crim R 323; The House of Relocators Pty Ltd v Ginbey [2013] WASC 188 and The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94. In each instance, it was alleged that the sentence imposed was manifestly excessive.
The Act replaced the Prevention of Cruelty to Animals Act 1920 (WA). The penalty for an offence of being cruel to an animal is a fine of between $2,000 and $50,000 and/or imprisonment for a maximum of 5 years. The maximum penalty under the repealed Act was a fine of $5,000 or 12 months' imprisonment (s 4(1)). The maximum penalty fixed by Parliament for an offence demonstrates Parliament's view of its gravity. The fact that Parliament has increased the maximum penalty for an offence is a relevant factor in sentencing; the increase in the maximum penalty is an indication that the sentences should be increased to reflect Parliament's revised view of the gravity of the offending.
In Holding v Parkin, Hall J reviewed sentences that had been imposed for cruelty offences in other jurisdictions and concluded that:
It is impossible to derive a definite range of sentences from these cases. The factual circumstances varied significantly. It could not be said that imprisonment was the usual sentence for offences of this type. A number of the cases did involve sentences of imprisonment, but they were offences which were clearly more serious than the present matter [35].
His Honour identified six circumstances that were relevant to characterising the seriousness of an offence committed against s 19 of the Act:
(a)the nature of the harm inflicted on the animal;
(b)the length of time during which the animal suffered;
(c)the amount of suffering caused; that is, the extent of any injury or the degree of pain or the amount of distress;
(d)the vulnerability of the animal, both in general and in relation to the particular offender;
(e)whether the conduct that caused the harm was a single act or a course of conduct; and
(f)whether the conduct was deliberate, intentional or planned, or was neglect of a duty to animals [41].
In The House of Relocators v Ginbey, a director of the appellant was convicted of four offences against s 19(1) of the Act. McKechnie J allowed an appeal against sentence to the extent of setting aside a suspended imprisonment order that had been made by the sentencing magistrate. He otherwise dismissed an appeal against the fines imposed. The fines ranged between $14,000 and $30,000.
The fine imposed by the magistrate was towards the lower end of the range of fines prescribed for a breach of s 19 of the Act. It was obvious that Roxy was at risk of harm by being left for some time in a vehicle on a very hot day. The risk was immediately apparent to Ms Zuraszek and Ms Weiman. The dog was distressed as evidenced by its behaviour and appearance and by the symptoms described by Dr Keall. The dog was distressed for some time on the evidence of the witnesses who observed her at the Carousel shopping centre. That is consistent with the opinions expressed by Dr Keall and Dr O'Connell regarding the symptoms and nature of heatstroke.
The magistrate noted that the appellant had shown no remorse or insight into her offending: 'perhaps the most troubling aspect of the offending is the complete and utter absence of any remorse' and 'even today, the accused seems to be in denial of having done anything wrong' (19 September 2014, ts 196). His Honour gave detailed consideration to the sentencing factors prescribed by s 6 of the Sentencing Act 2004 (WA) and found that general and personal deterrence were significant factors in sentencing the appellant.
In my view, the fine imposed by the magistrate was within the range of fines that represented a sound exercise of the sentencing discretion having regard to the seriousness of the offence and the appellant's offending, the appellant's personal circumstances and the sentences that have been imposed in other cases for animal cruelty (including those referred to by Hall J in Holding v Parkin).

Proposed ground of appeal 16

There is no merit in this proposed ground of appeal for the reasons given in relation to grounds of appeal 4 ‑ 6 and the additional ground of appeal.
Further, evidence that Roxy had been taken to veterinary surgeons at times while she was in the care of the RSPCA (exhibits 16 and 17) does not establish that the magistrate's discretion to order forfeiture of the dog miscarried given his Honour's findings on conviction and sentence.

Attachment A

Additional ground of appeal

Attachment B

Amended appeal notice - grounds of appeal

Attachment C

Particulars to proposed grounds of appeal

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CULVERWELL -v- GINBEY [2016] WASC 3 (S)

CORAM: CORBOY J

HEARD: ON THE PAPERS

DELIVERED : 8 SEPTEMBER 2016

FILE NO/S: SJA 1076 of 2014

BETWEEN: ADELE CULVERWELL
Appellant
AND
KEITH NEVILLE GINBEY
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R S HUSTON
File No  :PE 18751 of 2013

Catchwords:

Criminal law - Appeal - s 55 of the Animal Welfare Act 2002 (WA) - Whether appeal court can vary reimbursement order made following conviction

Legislation:

Animal Welfare Act 2002 (WA), s 55

Result:

Application to vary reimbursement order dismissed

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: Ross Christoforou
Respondent: Jackson McDonald

Case(s) referred to in judgment(s):

Culverwell v Ginbey [2016] WASC 3
Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386

CORBOY J: The appellant was convicted of the offence that, being a person in charge of an animal, namely a dog, she was cruel to the animal by confining it in a manner that caused it unnecessary harm, contrary to s 19(1) and s 19(3)(b)(ii) of the Animal Welfare Act 2002 (WA). She was fined $5,000 and ordered to pay legal and care costs. An order was also made that her dog, 'Roxy', be forfeited to the Crown (s 55(2)(c)(ii) of the Act).
The appellant appealed from her conviction. Her amended appeal notice pleaded 16 proposed grounds of appeal. A further proposed ground of appeal was added to the notice immediately prior to the hearing of the appeal.
I granted leave to appeal on proposed grounds 4 ‑ 6 and the proposed additional ground. However, I dismissed the appeal on those grounds. I further found that none of the remaining proposed grounds of appeal had a reasonable prospect of success. Accordingly, leave to appeal on those grounds was refused: Culverwell v Ginbey [2016] WASC 3.
The respondent has now applied for an order under s 55(2)(f) of the Animal Welfare Act seeking to vary an order made by the presiding magistrate pursuant to that section. I have concluded that the application should be refused for the reasons that follow.

The Animal Welfare Act

Section 40 of the Animal Welfare Act provides that an inspector may provide to an animal any food, water, shelter, care or treatment the inspector considers necessary to ensure the welfare, safety and health of the animal. Section 42 of the Animal Welfare Act provides that an inspector may seize an animal if the inspector reasonably suspects that an offence under pt 3 of the Act is being, or has been, committed in respect of the animal.
Section 55 of the Act provides that:
(1)A court convicting a person of an offence under this Act may, in addition to imposing a penalty, make any other orders against the offender that the court considers appropriate to protect the welfare, safety and health of an animal, a group of animals or animals in general.
(2)Without limiting subsection (1) a court may -
…
(c)order the forfeiture to the Crown of -
(i)seized property owned by the offender;
(ii)an animal owned by the offender; or
(iii)anything used by the offender in the commission of the offence;
…
(f)order the offender to reimburse a person who incurred costs under section 40(1), 41 or 42 in relation to -
(i)the animal the subject of the offence;
…
Section 56 of the Act also provides for recovery for the costs of caring for an animal. Relevantly, the section provides that:
(1)A person who has incurred costs under section 40(1), 41 or 42 in relation to an animal may apply to the Magistrates Court for an order that the applicant be reimbursed for those costs by a person who was in charge of the animal immediately before the care was provided or the animal was destroyed or seized.
(2)On an application under subsection (1) the court is to make the order sought unless the respondent proves that there were no reasonable grounds on which an inspector could have considered the provision of care, destruction or seizure to be necessary.
(3)The court may adjourn an application under subsection (1) until after the determination of any relevant prosecution proceedings.
…
(5)An order cannot be made under subsection (1) in respect of costs for which an order has been made under section 55(2)(f).

The amount claimed

The respondent relied on an affidavit made by Jonathan Rex Shepherd in support of his application. The affidavit annexed an email from Ms Johanna Edwards, the General Counsel for the Royal Society for the Prevention of Cruelty to Animals of Western Australia Inc (RSPCA). Ms Edwards annexed to her email a summary of costs said to have been incurred by the RSPCA in relation to the care of Roxy for the period June ‑ December 2015 and accompanying documents to substantiate the amounts referred to in the summary. The summary stated that the RSPCA had expended $7,306.97 exclusive of GST in the period to December 2015 in caring for Roxy.
Mr Shepherd's affidavit was made prior to judgment being entered in the appeal. Directions were subsequently made with a view to the respondent’s application being determined on the papers.
Mr Shepherd made a further affidavit pursuant to those directions. The affidavit corrected an error in Mr Shepherd’s first affidavit. The effect of the error was to reduce the amounted claimed for the care of Roxy to $4,889.72.

The magistrate's orders

The orders made by the magistrate on convicting the appellant included an order pursuant to s 55(2)(f) of the Animal Welfare Act. His Honour made a reimbursement order in the amount of $15,000. That order was made in addition to imposing a fine of $5,000 and ordering that the appellant pay the respondent's costs of the prosecution fixed at $15,000.

The respondent's submissions

The respondent submitted that 'the inspector' was obliged to care for Roxy 'at all times' pursuant to s 44(2) of the Animal Welfare Act. Section 44(2) requires an inspector to notify the owner where property has been seized. It is difficult to see how the subsection, considered in isolation, imposes an obligation on an inspector to care for an animal that has been seized. However, there is no doubt that an inspector is obliged under the Animal Welfare Act to care for, or make arrangements for the care of, an animal has been seized.
The respondent further submitted that the obligation to care for Roxy continued for so long as the dog was under the care of the inspector, including the period between the sentencing of the appellant and the completion of the appeal. Moreover, the appellant had sought the return of Roxy and it would have been unreasonable for her to refuse to reimburse the respondent for the costs of caring for the dog and it was to be inferred, in those circumstances, that the appellant had the means to pay for the reasonable costs of care. (respondent's submissions, pars 15 ‑ 21).

The appellant's submissions

The appellant submitted that:
(a)the power to make a reimbursement order was discretionary;
(b)s 55(2) of the Animal Welfare Act only operated where the circumstances described in s 40(1) had been established;
(c)Roxy had been forfeited to the Crown pursuant to the orders made by the magistrate so that the Crown became the only entity that was entitled to deal with the animal - in particular, the Animal Welfare Act did not vest any power in an inspector to make directions about the care of an animal that had been forfeited to the Crown;
(d)s 55(2)(f) could not support an order for 'top up' reimbursement as the circumstances described in s 40(1) were not lawful directions given by an inspector;
(e)the appellant was an elderly woman with no assets; her only source of income was an aged pension; she had been fined and ordered to pay the respondent's legal costs and the costs of caring for Roxy; the total amount that she had been ordered to pay was $35,000 and she had no means to satisfy any further order for reimbursement.

The power to make a further order

In my view, this court does not have power to vary the reimbursement order made by the magistrate on convicting the appellant.
Section 55 of the Animal Welfare Act is directed to the court that convicts a person of an offence against the Act. It permits various orders to be made in addition to imposing a penalty.
The reimbursement order made by the magistrate under s 55(2)(f) formed part of the process of sentencing the appellant; that is, part of the process of dealing with the consequences of the appellant’s conviction. The order was made, and is to be made under s 55, by reference to the circumstances as at the date that the appellant was convicted and sentenced. Arguably, considerations of proportionality between the penalty that was imposed, any additional order that was made and the criminality involved in the appellant’s offending were relevant: see, for example, Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386. In any event, the consequences of conviction - penalty, prosecution costs, reimbursement orders and forfeiture - are to be dealt with once and for all by the court convicting the offender subject to the rights of appeal conferred by the Criminal Appeals Act 2004 (WA). The court that convicted the offender has no power to impose any further penalty or make some further or enlarged order in light of subsequent circumstances once it has dealt with the offender.
Section 14(1)(c) of the Criminal Appeals Act provides that the Supreme Court may, in deciding an appeal, set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision. However, that power can only be exercised 'in deciding an appeal'. This court’s powers under s 14 are governed by the appellate jurisdiction conferred by pt of the Criminal Appeals Act and in particular, by s 6 ‑ s 9 of the Act.
The reimbursement order made by the magistrate was a decision for the purpose of s 6 of the Criminal Appeals Act: see s 6(f). However, the respondent did not appeal from the magistrate's order. Further, the respondent did not contend that the magistrate had erred in law or fact or had acted without or in excess of jurisdiction in making the order or that there had been a miscarriage of justice. The respondent made no complaint about the reimbursement order; rather, he sought to vary and enlarge the order in light of circumstances that had arisen following the appellant’s conviction. This court, in exercising appellate jurisdiction under pt 2 of the Criminal Appeals Act, has no jurisdiction to interfere with the order made by the magistrate in those circumstances.
Section 56 has no application. As the appellant submitted, it is difficult to see how the former owner of an animal can be held liable for the cost of care once the animal has been forfeited to the Crown. In any event, the section requires a separate application to be made to the Magistrates Court.