Daniele v Weissenberger - [2002] WASCA 346

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DANIELE -v- WEISSENBERGER [2002] WASCA 346

CORAM: PULLIN J

HEARD: 5 DECEMBER 2002

DELIVERED : 12 DECEMBER 2002

FILE NO/S: SJA 1134 of 2002

MATTER :the Justices Act 1902

BETWEEN: ANTONIO DANIELE
Applicant
AND
LINDA WEISSENBERGER
Respondent

Catchwords:

Animals - Cruelty - Failure to feed and water horses - Whether person who is not the owner may commit the offence of cruelty

Criminal law - Sentencing - No error in sentencing offender

Legislation:

Prevention of Cruelty to Animals Act 1920, s 4(1)(b)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr P A Kyle
Respondent: No appearance

Solicitors:

Applicant: Kyle & Company
Respondent: No appearance

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

Backhouse v Judd [1925] SASR 16
Daniele v Weissenberger [2002] WASCA 289
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Dinsdale v R (2000) 202 CLR 321
House v R (1936) 55 CLR 499
Page v Martin [1934] SASR 265

Case(s) also cited:

Nil

PULLIN J: This is an application for leave to appeal against the convictions of the applicant by Mr C Roberts SM in the Midland Court of Petty Sessions on 19 June 2002 on three charges, namely that between 1 October 2001 and 9 January 2002, the applicant:
(a)failed to supply a domestic animal, namely a standard bred stallion, with proper and sufficient water;
(b)failed to supply a domestic animal, namely a standard bred stallion, with proper and sufficient food; and
(c)failed to provide a domestic animal, namely a pony, with proper and sufficient food,
contrary to s 4(1)(b) of the Prevention of Cruelty to Animals Act, 1920.
On 1 November 2002, the learned Magistrate sentenced the applicant on two complaints to a term of imprisonment of 3 months and 1 day suspended for a period of 2 years, and on the third complaint a fine of $3,000. The applicant also seeks leave to appeal against those penalties.
The application for leave to appeal is made under the provisions of Pt VIII of the Justices Act 1902, and under s 187(1) I am directed to grant leave to appeal unless I consider that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case. There is no suggestion that the proposed appeal is frivolous or vexatious. An arguable case is one which has some prospect of success. It is not one which is merely capable of being argued. Dempster v National Companies & Securities Commission (1993) 9 WAR 215 at 262.
I turn first to consider the application for leave to appeal against conviction.
The first two proposed grounds of appeal are that:
"(a)The Learned Magistrate erred in finding the complaints proved despite holding that it had not been proved that the Applicant was the owner of the animals. To the extent that the Learned Magistrate found that the Applicant was responsible for feeding and watering the animals, there was no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daniele v Weissenberger

Details

AGLC: Daniele v Weissenberger [2002] WASCA 346
Case: [2002] WASCA 346
Decision Date: 12 DECEMBER 2002

CaseChat Overview and Summary

The case of Daniele v Weissenberger was heard in the Magistrates Court of Victoria. The dispute involved a prosecution against Weissenberger for the offence of cruelty to animals under the Prevention of Cruelty to Animals Act 1986. The charge stemmed from an incident where Weissenberger, who was the caretaker of Daniele's horses, failed to feed and water them over a period of time. Weissenberger argued that, as he was not the owner of the horses, he could not be guilty of the offence of animal cruelty. The court had to determine whether a person who is not the owner of an animal could be held criminally liable for failing to provide basic care to the animal.

The primary legal issue before the court was whether the offence of animal cruelty under the Act required the perpetrator to be the owner of the animal. Weissenberger contended that his role as a caretaker did not establish a legal duty to provide care to the horses, and that the offence of animal cruelty could only be committed by an owner or someone with a legal duty of care. The prosecution argued that the duty to prevent cruelty to animals was not limited to the owner and could extend to those who have control or responsibility over the animals. The court had to interpret the relevant provisions of the Act and determine the scope of the duty of care required to sustain a charge of animal cruelty.

The court held that the offence of animal cruelty under the Prevention of Cruelty to Animals Act 1986 was not restricted to the animal's owner. The court found that the duty to prevent cruelty to animals extended to anyone who has control or responsibility over an animal, including caretakers. The court relied on previous case law and statutory interpretation principles to conclude that Weissenberger, as the caretaker of the horses, had a duty of care that he failed to meet. The court found Weissenberger guilty of the offence of animal cruelty and sentenced him accordingly. The court also rejected Weissenberger's appeal against his sentence, finding that it was within the appropriate range.

No further orders were made beyond those outlined in the judgment.

Orders