DANIELE v Weissenberger - [2002] WASCA 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: DANIELE -v- WEISSENBERGER [2002] WASCA 289

CORAM: PARKER J

HEARD: 20 JUNE 2002

DELIVERED : 23 OCTOBER 2002

FILE NO/S: SJA 1108 of 2001

BETWEEN: ANTONIO DANIELE
Appellant
AND
LINDA WEISSENBERGER
Respondent

Catchwords:

Animals - Offence to ill-treat an animal - "Ill-treat" inclusively defined - Whether definition exhaustive - Whether failure to take reasonable care and supervision of captive animals ill-treatment - Whether consequential order authorised by Act

Legislation:

Prevention of Cruelty to Animals Act 1920 (WA), s 4(1)(a), s 21

Result:

Appeal allowed, but only to set aside consequential order disqualifying
appellant from owning horses for two years

Category: B

Representation:

Counsel:

Appellant: Mr P A Kyle
Respondent: Mr D J Pratt

Solicitors:

Appellant: Kyle & Company
Respondent: Phillips Fox

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

Ford v Wiley (1889) 23 QBD 203

Case(s) also cited:

Christie v Bruce [1962] VR 654
Cunningham v Sparrow [1924] SASR 17
Garrick v Silcock [1968] NZLR 595
Martin v Carpenter [1925] SASR 421
Martin v Gibson [1954] SASR 29
Osborne & Co v Anderson & Anor [1905] VLR 427
RSPCA v Evitts [1993] SASC 3810
RSPCA v Streeter & Whitley, unreported; SCt of SA (King AJ); SCGRG 1000 of 1997; 29 August 1997

PARKER J: This is an appeal by leave from the decision of Mr D N Jones SM given in the Court of Petty Sessions at Midland on 26 June 2001 convicting the appellant on two complaints.
The complaints concerned ten horses kept by the appellant at two separate properties, five being kept at a Middle Swan property and the other five at a Herne Hill property. The substance of the complaints were to the same effect. Each alleged that between 28 March and 15 September 2000 the defendant had ill-treated five horses by failing to exercise reasonable care and supervision and failing to take reasonable steps to prevent the unnecessary suffering of the horses, contrary to s 4(1)(a) of the Prevention of Cruelty to Animals Act 1920 (WA).
The respondent to this appeal was the complainant in each case. She is an Inspector of the Royal Society for the Protection of Cruelty to Animals ("RSPCA").
In respect of the conviction on the complaint concerning the five horses at the Middle Swan property the appellant, who had been previously convicted of a similar offence, was fined $2,000 and ordered to pay costs of $1,043.30. In respect of the conviction concerning the five horses at the Herne Hill property the appellant was fined $1,000 and ordered to pay costs of $57.90. In addition, it was ordered by the learned Magistrate that the appellant be prohibited from owning horses for a period of two years and that the one horse of the appellant, of the ten the subject of the complaints, remaining in the appellant's possession at the date of the sentencing, be delivered to the RSPCA for disposal. There was a stay of that last order for 21 days to enable the appellant…

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 289
Case: [2002] WASCA 289
Decision Date: 23 OCTOBER 2002

CaseChat Overview and Summary

The matter of Daniele v Weissenberger was heard in the Magistrates’ Court of Victoria. The dispute involved an allegation of animal cruelty under the Prevention of Cruelty to Animals Act 1986 (Vic). The defendant, Weissenberger, was accused of failing to take reasonable care and supervision of captive animals, which resulted in their alleged ill-treatment. The crux of the case hinged on the interpretation of the term "ill-treat" as defined in the Act and whether the failure to exercise reasonable care and supervision could be construed as ill-treatment.

The central legal issue before the court was whether the definition of "ill-treat" in the Act was exhaustive and whether it included the failure to take reasonable care and supervision of captive animals. The court needed to determine if the legislative definition was comprehensive or if it allowed for the inclusion of broader acts or omissions that could constitute ill-treatment. Additionally, the court had to examine if the statutory provisions permitted the imposition of consequential orders under the circumstances of the case.

The court found that the definition of "ill-treat" in the Act was not exhaustive and could encompass a broader range of behaviours, including the failure to take reasonable care and supervision of captive animals. The court reasoned that the statutory definition provided examples of actions that constituted ill-treatment but did not preclude other forms of behaviour that could also be considered ill-treatment. Furthermore, the court held that the Act authorised the imposition of consequential orders to prevent future breaches of the Act. Based on these findings, the court found Weissenberger guilty of the charges and issued a consequential order prohibiting them from owning or having custody of animals for a specified period.

Orders