Dobrinsky v Royal Society for the Prevention of Cruelty to Animals

Case •

[2022] NSWDC 432

•

17 September 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Dobrinsky v Royal Society for the Prevention of Cruelty to Animals [2022] NSWDC 432
Hearing dates: 7– 8 September 2022
Date of orders: 23 September 2022
Decision date: 23 September 2022
Jurisdiction:Criminal
Before: Fitzsimmons SC DCJ
Decision:

(1)   The appeal is dismissed.

The Court:

(2)   Confirm the 12-month Intensive Correction Order imposed by the Magistrate to commence from 23 September 2022.

(3)   The standard conditions that apply during the terms of the Order are that the offender:

(a)   Must be of good behaviour.

(b)   Must submit to supervision by a community corrections officer at the City Community Corrections office and is to attend this office within 7 days to facilitate this condition.

(4) Confirm the Order made by the Magistrate pursuant to s 31(1)(a) of the Prevention of Cruelty to Animals Act 1979 in that the male Maremma dog (RSPCA Tag No 086 1452) is forfeited to RSPCA NSW.

(5) Confirm the Order made by the Magistrate pursuant to s 31(1)(b) of the Prevention of Cruelty to Animals Act 1979 in that the offender must not, for a period of five (5) years, do one or more of the following:

(a)   purchase or acquire, or take possession or custody of, an animal,

(b)   keep, or participate in keeping, an animal,

(c)   be party to an arrangement under which the person is entitled to control or influence the keeping of an animal, including an animal owned by another person or in another person’s possession,

(d)   otherwise be involved with the keeping or care of an animal, including an animal owned by another person or in another person’s possession.

(6) Confirm the Order made by the Magistrate pursuant to s 215(1) of the Criminal Procedure Act 1986 in that the offender is ordered to pay the RSPCA’s professional costs of $34, 641.75.

(7)   Order that in addition to those professional costs ordered by the learned Magistrate, that the appellant pay the additional professional costs of the RSPCA in the appeal in the sum of $14,000.00.

Catchwords:

CRIME – appeal and review – appeal from Local Court to District Court – nature of the appeal – rehearing – act of cruelty – failure to provide veterinary treatment – aggravated cruelty – strict liability defence – defence of honest and reasonable mistake

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) ss 11, 18

Evidence Act 1995 (NSW) s 110 (1)

Prevention of Cruelty to Animals Act 1979 (NSW) ss 4(1), 4(3), 5(3), 6

Cases Cited:

Bell v Steward (1920) 28 CLR 419

Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39

CTM v The Queen [2008] HCA 25

Hekawteh v The Queen (1985) 157 CLR 523

Knight v The Queen (1992) 175 CLR 495

McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298

R v Soto-Sanchez [2002] NSWCCA 160

Watson v Foxman (1995) 49 NSWLR 315 at 319

Category:Principal judgment
Parties: Mr Savva Dobrinsky (Appellant)
Royal Society for the Prevention of Cruelty to Animals (Respondent)
Representation:

Counsel:
S Odgers SC (Appellant)
LC Hutchinson (Respondent)

Solicitors:
Michael Bowe (Appellant)
Royal Society for the Prevention of Cruelty to Animals (Respondent)

File Number(s): 2018/72986
Publication restriction: Unrestricted
 Decision under appeal 
Court or tribunal:
Local Court
Jurisdiction:
Crime
Date of Decision:
17 September 2021
Before:
Magistrate Crompton
File Number(s):
2018/27986

Court or Tribunal:

Local Court

Jurisdiction:

Crime

Date of Decision:

17 September 2021

Before:

Magistrate Crompton

File Number(s):

2018/27986

JUDGMENT

The appeal

  1. The appellant, by Notice of Appeal dated 10 November 2021, appeals against his conviction on 17 September 2021 at the Downing Centre Local Court following a three day summary hearing for the offence of commit an act of aggravated cruelty in contravention of s 6(1) of the Prevention of Cruelty to Animals Act1979 (NSW) (the POCTA Act).

  2. The appellant was sentenced by the learned Magistrate to a 12-month Intensive Correction Order (ICO) on 29 October 2021.

The nature of the appeal

  1. The appeal is brought pursuant to ss 11 and 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act).

  2. Section 18 of the CAR Act provides that an appeal against conviction is to be by way of rehearing on the basis of the evidence given in the Local Court proceedings except as provided by s 19. No fresh evidence was called on the appeal and/or no evidence was given in person.

  3. The evidence on appeal consisted of the transcript, exhibits, written submissions and judgment of the Local Court (Ex 1).

  4. In Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39, Mason P said the following:

“[17] The appeal is to be by way of rehearing on the Local Court transcripts (s18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s18(2).

[18] The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, i.e. recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).

…..

[22] The appellate role of the District Court in the present context is further reinforced by the references to “appeal” in ss18 and 19 and by the power, conferred by s20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal. It is true that the Court moves to the disposition of the appeal by considering the totality of the material before it, including any “fresh evidence” that has been admitted, and making up its own mind on the critical issue of guilt. The prosecutor continues to carry the onus (Gianoutsos at [42]-[43]). But, as indicated in the passages quoted from Fox and Da Costa, the District Court must of necessity observe the “natural limitations” stemming from proceeding wholly or substantially on the transcript record.

[23] Howie and Johnson, Criminal Practice and Procedure NSWstate [4-s 19.10(g)] that the reasons of the magistrate for finding the offence proved are not “evidence” and that the District Court may not have regard to those reasons unless the parties consent to that course. The point has not been argued before us, but I wish to express my doubts as to the correctness of this opinion of the learned authors. District Court judges traditionally and understandably refrained from reading the reasons of the Local Court when the appeal was do novo. But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate’s reasons are not part of the “certified transcripts of evidence” referred to in s18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them.

[24] The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme. In civil appeals, the court of appeal is not entitled to ignore the reasons in which findings based on credibility are to be found (Paterson at 222-4). There is no basis in principle for a different approach in the criminal law.” (Emphasis added.)

  1. These principles were subsequently affirmed in McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298.

  2. In McNab, Bell P (as he then was) observed at [25] that:

“The task for a District Court judge in hearing a s18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate… whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt”.

  1. Basten and McCallum JJA observed at [91] that “demonstration of error may mean no more than satisfying the District Court DC judge that the Magistrate should not have been satisfied beyond reasonable doubt as to the appellant's guilt".

The POCTA Act

  1. The appellant was convicted of a single offence of an act of aggravated cruelty in contravention of s 6 of the POCTA Act.

  2. Section 4(3) provides that a person commits an act of aggravated cruelty upon an animal if the person commits an act of cruelty upon the animal or (being a person in charge of the animal) contravenes s 5(3) in a way which results in:

  1. the death, deformity or serious disablement of the animal, or

  2. the animal being so severely injured, so diseased or in such a physical condition that it is cruel to keep it alive.

  1. The prosecution relies upon s 4(3)(b) in that the animal was so severely injured that it was cruel to keep it alive.

  2. Section 5(3) the POCTA Act provides that a person in charge of an animal shall not fail at any time, relevantly (given the prosecution’s case), where it is necessary for the animal to be provided with veterinary treatment, whether or not over a period of time, to provide it with that treatment.

  3. Veterinary treatment is defined in s 4(1) of the POCTA Act as meaning, relevantly, medical treatment of a prophylactic or therapeutic nature carried out upon the animal by, or in accordance with directions given in respect of the animal by, a veterinary practitioner.

The issues in the Local Court

  1. The written submissions of Senior Counsel for the appellant, Stephen Odgers SC, helpfully articulated the issues in the Local Court:

“5. In the Local Court there was no issue taken that the elements of the aggravated cruelty offence, a strict liability offence, were proved. It was conceded that the Appellant was at all relevant times the person in charge of his dog “Shep”. It was then conceded that, based on the unchallenged expert evidence of Dr Speight (Ex 6), when Shep was examined on 14 January 2018 it was suffering from a number of conditions which meant it was cruel to keep it alive. It was conceded that, again based on that unchallenged expert evidence, the Appellant had failed to provide veterinary treatment that was necessary for his dog.

6. The area of dispute in the Local Court involved the Appellant’s reliance on the defence of honest and reasonable mistake of fact…”

The issues on the appeal

  1. The appellant, consistent with his position in the Local Court, conceded that the elements of the aggravated cruelty offence had been proven, and that the issue on appeal was the appellant's reliance on the defence of honest and reasonable mistake of fact.

  2. Further the appellant further conceded in his written submissions:

“9. Given the ‘natural limitations’ of an appellate court in conducting a rehearing on the record, including the advantage of the magistrate in assessing witness credibility, no attempt will be made in this appeal to seek different credibility findings in respect of the appellant and Dr Richards."

  1. However, the appellant contended:

  1. The defence case did not rely exclusively on the testimony of the appellant.

  2. The defence case was not that Dr Richards was an untruthful witness, but rather that she was honestly mistaken regarding what she had conveyed to the appellant in her conversations on 12, 13 and 14 January 2018.

  3. Regardless of the reliability (or otherwise) of Dr Richards’ account of those conversations, it was reasonably possible that the appellant did not believe that his dog (Shep) was in such a poor condition that it was cruel to keep it alive.

  1. In all the circumstances, it was the appellant's contention that notwithstanding the findings of the learned Magistrate, the Court would have a reasonable doubt that, between 17 December 2017 and 14 January 2018 (being the dates identified in the Court attendance notice), the appellant believed that Shep was in such a poor physical condition that it was cruel to keep him alive.

  2. In this respect the appellant contended that since the Royal Society for the Prevention of Cruelty to Animals (RSPCA) had to prove beyond reasonable doubt that he did not honestly believe, during the relevant period of time, that Shep was not in such a physical condition that it was cruel to keep it alive, it relied upon a circumstantial case to prove beyond reasonable doubt his state of mind.

  3. The appellant contended that the state of mind of the appellant was “necessarily a matter of inference from other facts found" (citing Knight v The Queen (1992) 175 CLR 495). In the circumstances, the issue for the Court to determine was whether an alternative explanation or hypothesis is reasonably open on the evidence.

The defence of honest and reasonable belief / mistake of fact

  1. The RSPCA conceded that on the evidence, taken at its highest, the defence of honest and reasonable mistake of fact had been raised. Therefore, it was necessary for the RSPCA to prove beyond reasonable doubt that the appellant did not honestly believe, during the relevant period of time, that Shep was not in such a physical condition that it was cruel to keep it alive, or that such a belief was not held on reasonable grounds, based on the circumstances as the appellant perceived them to be.

  2. In Hekawteh v The Queen (1985) 157 CLR 523 Wilson J observed that

“If there is some evidence that an accused person honestly believed on reasonable grounds that his act was innocent then he is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt this was not so" (at 558 – 559).

  1. Dawson J observed that “…the mistake to be exculpatory must be not only honest but also based upon reasonable grounds" (at 592).

  2. In CTM v The Queen [2008] HCA 25, the plurality stated, citing Hekawteh:

“…the evidentiary onus of raising the ground of exculpation is on the accused, but, once that occurs, the ultimate legal onus of displacing the ground lies on the prosecution. The concept of evidentiary onus itself needs to be understood in light of the subject matter to which it applies; here, honest and reasonable belief, a concept that has a subjective element of a kind that ordinarily is peculiarly within the knowledge of the accused, and an objective element that must be capable of being measured against the evidence by a tribunal of fact" (at [8]).

The RSPCA evidence

Dr Bethany Richards’ expert report

  1. Dr Richards was a registered veterinarian who graduated with a Bachelor of Veterinary Science in December 2017. According to the certificate of expert evidence of Dr Richards (Ex 1, Tab 2), in the final year of her degree she was on rotating internships at various veterinary practices before commencing employment with Southern Cross Veterinary Clinic in December 2017.

  2. It was whilst in the employ of this veterinary practice that she attended the appellant’s premises at Bondi on the afternoon of 12 January 2018. Dr Richards recorded in the certificate of expert evidence her involvement in the case of Shep. Given the emphasis placed by the appellant on this certificate it is necessary to traverse its contents in some detail.

  3. Dr Richards recorded that on the afternoon of 12 January she arrived at the appellant’s premises to find Shep, a 14.5-year-old male white Maremma sheepdog, to be on the ground lying on a pathway close to the gate. Shep was lying in lateral recumbency (lying down) and not moving. Her medical findings were recorded as including recumbent for two days and covered in urine. She found muffled heart and lung sounds and “extremely painful when moved". There was an “enormous mass” on the right thorax measuring approximately 30 cm x 30 cm. Shep was observed to have a dirty coat. While searching for a possible tick causing the paralysis, Dr Richards observed that Shep presented with muscle wastage all over his body, with weakness of all four limbs and being unable to stand.

  4. Dr Richards told the appellant that Shep “needed to be admitted to hospital". She further advised that Shep was a very old animal “in need of either euthanasia or hospital admission with fluids and pain relief". The appellant replied:

“No he is not coming back with you. I’d like you to run a blood test on him”.

  1. The appellant also suggested that perhaps Shep had pulled a muscle and requested that Dr Richards massage around the shoulder area of Shep. Dr Richards told the appellant that that was unlikely as Shep had “ no muscle mass in that area". She further told the appellant that it was the muscle wastage that was likely causing Shep slipping.

  2. The appellant told Dr Richards that Shep lacked appetite although he was managing to feed him small amounts of salmon and Nutrigel. The appellant asked if he could use the drug Mirtazipine (which stimulated the appetite), to which Dr Richards replied that the problems Shep had ranged beyond inappetence. Dr Richards also expressed concerns as to how much water Shep had received given it was quite dehydrated.

  3. Dr Richards returned to the veterinary clinic, running blood tests. Dr Richards then contacted the appellant the same day, advising that the blood results indicated liver damage. Dr Richards told the appellant “that the dog needed to come into the hospital straight away or that he needed to euthanise the dog today". The appellant replied that euthanasia “was not an option" and he would “not accept euthanasia at any point". He asked whether he was able to treat Shep at home, to which Dr Richards replied that it was unlikely there was anything that could be done at home to treat Shep that would make a difference. Dr Richards again emphasised that Shep was “extremely ill" and needed to be admitted to hospital, to which the appellant replied that he was unable to afford veterinary treatment. Given Dr Richards’ impression that the appellant may have been coming round to the idea that Shep needed treatment, she indicated that she would give the appellant a call the following morning to discuss options.

  4. In the meantime, the appellant had emailed blood results which he believed to be missing. The following day Dr Richards attempted to call the appellant several times but did not reach him until approximately 12pm, at which time she addressed the appellant’s concerns arising from his email. Dr Richards again emphasised that Shep was in “a lot of pain and needed treatment". She provided estimates for the treatment and again reiterated that despite medical intervention it was likely that Shep would still need to be euthanised. The appellant expressed concern regarding blood results which he believed to be missing.

  5. The appellant sent an email at 1:30pm the same day expressing a desire to treat anaemia and dehydration. In reply, Dr Richards contacted the appellant at 1:44 PM again emphasising that Shep was “suffering and needed either immediate hospital care or euthanasia". In response to the appellant’s expressed intentions to treat the anaemia and dehydration at home, Dr Richards advised that this would be insufficient to care for Shep. When the appellant indicated that Hydralyte and iron tablets might correct his condition, Dr Richards indicated that this was unlikely to be of any assistance.

  6. As the appellant had declined euthanasia and hospitalisation, Dr Richards told the appellant at that time that she would contact the RSPCA and advise them regarding Shep’s condition as she had a legal obligation to do so. In reply the appellant stated that he could not consent to euthanasia due to religious and moral reasons. Dr Richards advised the appellant to attend and collect pain medication that afternoon to provide some relief but emphasised that this would not correct the underlying issue. Dr Richards gave the appellant an ultimatum that he had 24 hours to present to her clinic, or another clinic for treatment or euthanasia. Dr Richards thereafter made a report to the RSPCA. The appellant did not attend the surgery that day to pick up the prescription for pain medication.

  1. The following day Dr Richards called the appellant to verify whether he had sought treatment at another vet; he said that he had not. The appellant stated that he wanted Dr Richards to perform further blood testing. Dr Richards indicated that further testing would have to be performed by another veterinarian as she did not believe it was in Shep’s best interest; she advised that the best diagnostic test at that point would be ultrasonography. She again emphasised that hospitalisation was required, if euthanasia was not an option. The appellant told Dr Richards that he had been giving Shep human iron supplements and he believed that this would treat the anaemia. Dr Richards told the appellant that Shep’s anaemia was most likely not related to iron deficiency, but rather Shep was likely to be bleeding internally, which could not be managed at home. The appellant again stated his intention to manage Shep using home remedies, to which Dr Richards advised that this was unlikely to make any difference to Shep’s condition.

  2. That afternoon the appellant collected the script for painkilling medication (Tramadol) and again discussed the possibility of performing more blood tests. Whilst Dr Richards provided a quote for additional liver tests, she stated that she would no longer be the treating veterinarian; that further tests would have to be performed at another vet or with another vet from the same practice because Shep needed euthanasia or urgent hospitalisation. The appellant again declined either option, indicating that he believed Shep was improving.

  3. In the certificate, Dr Richards reiterated her opinion that Shep required euthanasia or hospitalisation from the day he first presented to her. Shep's prolonged recumbency and generalised weakness likely resulted from a combination of muscle wastage and underlying disease process. The muscle wastage was indicative of chronic muscle disuse characteristic of a disease which had been ongoing for weeks or months. It was the result of a long chronic illness. Dr Richards further stated that the pain that Shep appeared to suffer when moved, or when his lower limbs were touched, warranted veterinary attention and pain relief. Strong pain relief was required such as an opioid treatment which could only be provided whilst hospitalised under veterinary supervision. Dr Richards concluded that it was difficult to estimate the length of time which Shep would have been required to be treated as she did not know the exact cause of his illness.

  4. Dr Richards’ statement was supported by the contemporaneous clinical notes including the following:

“Friday 12/Jan/2018 6:46 PM

Hx: Recumbent for two days. Owner says has been having episodes of recumbency for past week, has barely moved over past 2 days… Unable to move to urinate, covered in urine.

…

ASS: Given recumbency, muffled heart sounds and lung sounds, and pale mm extremely concerned about internal bleeding possible thoracic/abdominal.

…

Called O and advised of blood results. Given state of dog recommended either overnight hospitalisation with fluids and supportive care or euthanasia. Owner says euthanasia is not an option, will not consider euthanasia ever. Owner wants to treat at home with home therapies – advised that this is unlikely to make any difference as Shep is extremely ill and requires hospitalisation. Owner declined hospitalisation. Would like to follow-up call tomorrow to discuss options.

13/Jan/2018 1:44pm

Spoke to owner – emphasised that Shep is suffering and requires either immediate hospital care or euthanasia. Owner declined both for monetary and ethical reasons. Advised owner that will be required to report to the RSPCA if have not presented to a veterinarian within 24 hours for euthanasia or hospital treatment. have provided a script for tramadol 2 days worth of medication.

  1. Dr Richards gave evidence consistent with her expert certificate.

Dr Richards’ evidence

  1. When Dr Richards attended the appellant’s home, she could see an animal lying on the ground that was very thin with a very large mass hanging off the side of it. The appellant told Dr Richards that Shep had been lying down (recumbent) for two days. Following an examination of the animal Dr Richards determined that Shep needed to be hospitalised or euthanised and that the appellant was told by Dr Richards:

“This dog needs to go into hospital and it needs to have treatment within hospital or this dog more than likely need to be put down”.

  1. Dr Richards told the appellant that she believed Shep needed IV pain relief and IV fluids. In response the appellant told Dr Richards that Shep would not be going with her for hospitalisation but requested that Dr Richards take blood from Shep for testing; Dr Richards agreed. However, Dr Richards told the appellant that in her opinion the blood test would not have changed the results. Dr Richards told the appellant that she would perform particular blood tests for the purposes of checking liver and kidney functioning. Dr Richards conceded that the appellant opted for the more expensive form of blood testing.

  2. The appellant stated that he was concerned that Shep’s immobility might be related to arthritis or pulling a muscle, to which Dr Richards replied that that was unlikely as Shep had very little muscle mass. Dr Richards further told the appellant that arthritis and inflammation in any event was not the primary issue at hand and a treatment plan of hospitalisation was required.

  3. The appellant also requested that Dr Richards trim Shep’s nails as he could potentially be slipping on the concrete causing the immobility or recumbancy. Dr Richards told the appellant that she thought this was unlikely and again emphasised that the cause of recumbency was likely to be the fact that Shep had very little muscle mass.

  4. The appellant asked whether the drug mirtazapine could be used to stimulate Shep’s appetite. Whilst Dr Richards informed the appellant that it did work in general to stimulate appetites, she was concerned that the reasons why Shep lacked appetite would not be fixed by such a drug. Dr Richards acknowledged that she showed the appellant a more effective way of hydrating Shep using a water bottle. Dr Richards acknowledged that the appellant asked about the use of Hydralyte, to which she told the appellant that she did not consider it would be of great benefit. In this respect Dr Richards also observed, in any event, that hydrating with a bottle would never have been a substitute for IV fluids.

  5. Dr Richards acknowledged the appellant was expressing a wish to have Shep treated at home, but she informed the appellant that such treatments were not suitable as a first line of treatment, and that hospitalisation for Shep was needed. The appellant told Dr Richards that Shep was not going with her.

  6. Dr Richards subsequently performed the blood tests and informed the appellant of the results later that evening. After communicating the outcome of the blood testing results Dr Richards again recommended euthanasia or hospitalisation. In response the appellant said that he would not consider euthanasia as an option ever and that he, at that time, was unable to afford veterinary treatment. The phone conversation with the appellant on the evening of 12 January came to an end on the basis that the appellant would consider the recommended treatment overnight and that she would call him the next day to discuss it further.

  7. In the meantime, in the early hours of the following morning, the appellant emailed Dr Richards for copies of particular blood tests which had not been performed.

  8. Dr Richards telephoned the appellant the following morning (13 January). After discussing the blood results, and offering estimates for costs of treatment, the appellant again emailed Dr Richards requesting that she treat the anaemia and dehydration in Shep.

  9. Dr Richards told the appellant on 13 January, in response to the suggestion that Shep be treated with iron supplements and Hydralyte at home, that such treatments were inadequate, and estimates were provided for treatment in hospital. Dr Richards told the appellant that she could not perform the particular blood tests he requested as the blood sample had already been thrown away. Dr Richards subsequently provided the appellant with estimates for costs of treatment in hospital.

  10. Dr Richards again told the appellant that she did not consider the treatment he was suggesting was in Shep’s best interest. Having again told the appellant on 13 January that Shep ought to be hospitalised or potentially euthanised, the appellant stated that he could not consent to euthanasia for moral and religious reasons.

  11. Dr Richards told the appellant that if he did not accept her advice she felt obligated to contact the RSPCA. However, she offered, in the meantime, to provide some pain relief for Shep. Dr Richards told the appellant that he had 24 hours to present Shep to another vet or to her vet practice for treatment or euthanasia.

  12. Dr Richards stated that she was very concerned about the pain of Shep and it was in this context that she advised the appellant to attend and collect pain medication so as to provide some pain relief. This was in the context that the appellant did not want to bring the animal into hospital, and accordingly she wished for the animal to have some form of pain relief to tide the animal over. Dr Richards subsequently reported the matter to the RSPCA.

  13. Dr Richards further spoke to the appellant on 14 January 2018 at which time the appellant advised that he had started treating Shep with human iron supplements at home and he believed that he thought Shep was doing better.

  14. Dr Richards specifically asked the appellant on that day whether he had sought treatment at another vet; he said that he had not. In response to the appellant's request for further blood testing, Dr Richards told the appellant that she did not think such testing would be the best test; rather the best test to perform would be an ultrasound. Dr Richards told the appellant that she did not feel doing those particular tests was in Shep’s best interest. In this context Dr Richards told the appellant that in her opinion hospitalisation or euthanasia were the best options.

  15. Dr Richards confirmed that the appellant was not in agreement with what she proposed. Following this phone conversation, Dr Richards rang the RSPCA again to have them send an inspector, having been told by the appellant that he had not taken Shep to another vet for treatment.

  16. The appellant subsequently attended the surgery to collect painkilling medication script. The appellant again told Dr Richards that he would like more blood testing to be performed. Dr Richards told the appellant again that she did not consider this was in Shep’s best interests, and that she would not be the treating vet to perform any such tests. Dr Richards told the appellant that if he wanted a vet to do this it would have to be another vet at the clinic or another vet practice. Dr Richards again told the appellant that she considered euthanasia or hospitalisation was in the best interests of Shep, to which the appellant told Dr Richards that “it wasn’t an option”.

  17. Shep was subsequently seized at 12:40pm that day.

  18. Dr Richards did not resile from her evidence in cross examination. She denied that the appellant had told her that Shep had only been lying down for two hours. Dr Richards accepted that the appellant appeared concerned for the health of the animal and provided a history of how he had been treating Shep. Dr Richards agreed with the proposition that there was a long discussion about what could be done for Shep. She acknowledged that it was unlikely she would have used the word recumbent but rather would have use the expression “lying down". Dr Richards acknowledged that there were a number of discussions about treatments that might be available to treat Shep at home, however Dr Richards stated that she told the appellant that such treatments were not suitable as a first line of treatment, and that hospitalisation was the preferred method of treatment. In response to the suggestion that the appellant had told her that Shep had been tested for cancer, and it had shown no cancer, Dr Richards noted that there was no single blood test to test for cancer, acknowledging that this may been a misunderstanding on the appellant's behalf.

  19. It was suggested to Dr Richards that the appellant did not say euthanasia was against his moral or ethical principles. Dr Richards maintained that this was what the appellant said. Dr Richards denied that the appellant had told her that he had intended to book Shep into his normal vet on the Monday.

  20. Dr Richards was not challenged as to her evidence that she repeatedly told the appellant that Shep was in need of either euthanasia or hospital admission.

Inspector Natalie Will

  1. Natalie Will, in her capacity as an inspector of the RSPCA, attended the appellant's premises at approximately 12:40 pm on 14 January 2018. The inspector observed Shep inside a sunroom laying on the floor. Shep was laying on his side and appeared to have increased respiratory effort. Shep’s coat was incredibly dirty, his back right leg was covered with mud or faecal matter and his coat was discoloured and untidy. Shep had a large lump on his thorax approximately the size of a soccer ball. She observed areas on the back legs which had alopecia where the skin appeared red, inflamed and ulcerated.

  2. Shep raised his head and appeared to bark and snarl but was unable to get up or move. The bark was strained and was not what she considered usual for a dog in a physically fit state. When Shep barked she was able to see inside his mouth, the colour of his mouth appeared light pink with a yellow tinge.

  3. Shep was laying on some blankets and rags which appeared to have been wet with urine given the strong odour and change of colour on the ground behind him. The thigh bone and pelvic bones appeared prominently through Shep’s coat despite its thickness. Shep appeared unable to get up or move from the area where he was lying.

  4. Shep’s behaviour made the inspector extremely concerned that it was in pain and suffering and believed that he required immediate veterinary intervention. In the circumstances, she made a determination that the animal should be seized in accordance with the POCTA Act.

Dr Abigail Speight

  1. Dr Speight examined Shep shortly after his seizure at the RSPCA Yagoona shelter. On examination Shep was non-ambulatory with bilateral hind limb paresis, severe bilateral hind limb muscle atrophy. Shep was covered in urine with urine and faecal staining. Shep's body mass was assessed as five over five being emaciated, with no discernible body fat and obvious loss of muscle mass. There was a large painful subcutaneous mass (75 cm x 18 cm) on the right thorax. A large amount of live fleas were present. Shep demonstrated increased respiratory effort and rate and increased body temperature. He was anaemic. Given the severe debilitating medical conditions, involving multiple body systems causing pain and distress, it was determined that it was cruel to keep Shep alive and accordingly was humanely euthanised.

Dr Kaiser Dawood

  1. Dr Dawood was a registered veterinarian employed at the RSPCA. She performed a post-mortem on Shep. Dr Dawood noted the final diagnosis included very underweight, fleas infestation, pancreatitis, chronic hepatitis amongst other conditions. The body condition score was 4/5 which was “very underweight" according to the relevant scales, where one is ideal and five is emaciated. In conclusion Dr Dawood commented that Shep presented for post-mortem in a poor body condition with dirty, rough, and unkempt coat. The observed mass on the right thorax was likely to have been growing for at least 4 to 6 months, or longer, given the size of the mass.

The clinical notes of Bondi Vet Hospital

  1. The clinical notes of Bondi Vet Hospital relating to the treatment of Shep were annexed to the affidavit of Elizabeth Quintal (Ex 1, Tab 32).

  2. On 30 January 2013, Shep attended for vaccination. It was noted that the owner declined “a FNA smear assessment due to cost". On 2 April 2014 Shep again attended for a vaccination wherein it was noted that Shep:

“Would need to have X/R thorax R/O major lung disease".

  1. It is assumed that “X/R” refers to X-ray and “RO” refers to rule out.

  2. On 13 March 2017, Shep was further assessed with a history of losing weight and "Lump". The clinical notes recorded a large lump on the lateral aspect of the right thorax. The clinical note further recorded:

“Dog [likely] has some [significant] disorder – need to look into this to get eating again.

… [Requires] Urine sample. Again ADV needed to do invests beginning with bloods/urine but likely to need imaging, biopsies etc.”

  1. The clinical notes further recorded:

“This is a tumour, possibly low-grade malignancy. Biopsy req for [accurate] diagnosis + imaging.

FNA – Similar on both sides. Some RBCS. Large population of round cells."

  1. On 22 March 2017 a further appointment noted the reason being "blood sample". The clinical note included the following entry:

“ADV [biopsy] mass for accurate diagnosis"

  1. On 15 June 2017 Shep returned for further vaccination which included the following entry:

“ADV need GA to remove eyelid tumour and biopsy/imaging Large thoracic mass. O’ (owner) declines offer to organise imaging/biopsy.

Suspect [this] plays a role in lack of WT gain despite O saying eats OK.

I'm still concerned this dog has disease though O says A+ better than previously.

ADV is quiet due to age but also concern re disease.

Offer Mirtazapine trial to Inc A+.”

  1. In respect to the recommendation for Mirtazapine a clinical note of 28 June 2017 records:

“13 / 7 medication put back on shelf as owner hasn't collected and has been more than two weeks since been dispensed".

The appellant’s evidence

  1. The appellant gave evidence that Shep was always a fussy eater and that as he aged he found him even more fussy. In his final years he swapped food successfully. In terms of flea treatments, the appellant stated that throughout Shep’s life he was very attentive to providing such treatment. He produced various printouts corroborating the various treatments provided in this respect.

  2. The defendant stated that he regularly took Shep to the vet, noting that he needed regular vaccinations every year. The appellant stated that as Shep aged he developed “bumps". When he first noticed a lump, he immediately had it checked, although was subsequently told Shep was fine in the context of doing a fine needle aspiration. He was told by the vet that such conditions were “very common for dogs", that it was benign, and there was nothing to worry about.

  3. Nonetheless the appellant stated that he would return to the vet requesting further tests which were performed. The appellant stated he was again assured that it was benign although it could be drained. He followed this advice. He recalled Shep having blood tests in 2017 which he was told were fine, and that there was “nothing to worry about." The appellant stated that following results in mid 2017 he was told everything was within the normal ranges.

  4. The appellant stated that between March 2017 and January 2018 he attended the vet as he was concerned about Shep’s “fussiness of eating" as well as concerns about his teeth. The appellant stated that he again asked the vet at this time about the lump; he was again assured that it had been tested and told that it was benign.

  5. The appellant stated that as Shep got older he did slow down in terms of gait which he attributed to his age. When asked about his fluids the appellant stated that he was “drinking a lot… drinking normally". In respect to his weight the appellant stated that he thought it was fine. In respect to faeces that was found on Shep he stated that Shep had a lot of fur and throughout his life faeces would stick to his coat. In respect to sores on his feet the appellant stated that this was checked by a vet; he was told that they were just normal pressure sores or bites and that cream could be applied.

  1. The appellant stated that during the period leading to his seizure there was “nothing different" although he was “an old dog". The appellant gave evidence that there were no changes prior to 12 January that caused him any concern and seemed irregular to him.

  2. The appellant gave evidence that around 12 pm on 12 January he noticed that Shep did not seem his usual self. He was lying down in an unusual spot in an unusual location in the yard. When he did not move, he became worried and called the vet. He gave evidence of pursuing a number of alternative vets before contacting a Bondi clinic resulting in the later attendance of Dr Richards.

  3. The appellant claimed that on her attendance Dr Richards appeared in a “frazzled state" and that her clothes were “all shifted". The appellant claimed the Dr Richards stated she did not know what was wrong with Shep and suggested blood tests. He opted for a more expensive version of the blood test. The appellant stated that he observed Dr Richards’ “box” to be a “mess” as she rummaged through it. He claimed things were “upside down, absolute jumbled". She asked for Vodka as a method of cleaning Shep’s wound.

  4. When asked whether at any time during the examination, or after the examination, Dr Richards mentioned hospitalisation the appellant stated:

“She discussed a range of options. I may have brought it up, and I said “look do you think he needs to go to the hospital”. She said “look I can't take him now on my own, but if you want me to I can”.”

  1. Following a further discussion as to how this would be done, the appellant stated that he told Dr Richards he didn't feel comfortable moving Shep, and the appellant claimed it was then agreed that he would be left behind. The appellant claimed that after Dr Richards left Shep moved that night, walking onto the veranda and drinking and eating. The appellant stated that during the visit he provided Dr Richards with Shep's medical history, retrieving relevant medications. The appellant stated that there was a discussion with Dr Richards as to Shep’s fluid intake in which he advised that Shep was drinking and eating at the time, and that that wasn't an issue. The appellant stated that Dr Richards showed the appellant how to feed from a water bottle.

  2. The appellant stated that due to his increasing concern he attempted to call the veterinary practice a number of occasions that evening. The appellant stated that eventually he spoke to Dr Richards who advised that she did not know what was wrong with Shep. He apparently advised her that Shep had been up eating and drinking since. The appellant claimed that Dr Richards told him that he had a number of options in circumstances where she was unsure what was wrong with Shep. He accepted Dr Richards’ invitation to undertake further tests.

  3. The appellant claimed that on 13 January he attempted to speak to Dr Richards, only to be advised that she was not in attendance but was working at a different clinic. The appellant stated late the same day he spoke to Dr Richards who advised that there was a drug which she would like to start Shep on and would provide it. It was suggested that it be picked up from the clinic. There appeared to be some confusion as to the collection of the medication. In any event, the appellant subsequently emailed the clinic in respect to the blood tests.

  4. The hearing was adjourned part heard. On the resumed hearing the appellant tendered a 10-page statement documenting the alleged interaction between the appellant and Dr Richards, culminating in Shep’s seizure on 14 January 2018 (Ex 1, Tab 19). The statement has been read and considered on the appeal although neither Counsel referred to it in any detail on the appeal. The statement sets out in the first person the appellant’s version of the various conversations with Dr Richards. The statement is generally consistent with the appellant's oral evidence, although provided in more detail. The appellant also tendered a bundle of pet shop receipts seeking to corroborate his claim of otherwise caring for Shep. He also tendered various telephone records corroborating his evidence as to various claims.

  5. The appellant was cross-examined on the clinical notes of Bondi vet relating to Shep's attendance in 2017. The appellant's responses in cross examination relating to recommendations for further investigations relating to the presence of a lump were initially evasive. However, the appellant ultimately denied that on 2 April 2014 the veterinarian discussed the need to have x-rays. The appellant denied, contrary to the clinical records, that on 13 March 2017 there was a discussion with the veterinarian relating to Shep losing weight. The appellant denied that the veterinarian recommended further investigations at that time.

  6. The appellant similarly denied that on 13 March 2017 he was advised that the mass in Shep’s thorax was a tumour with a possible low-grade malignancy. The appellant denied that the veterinarian recommended a biopsy, or that he declined the veterinarian's recommendation for such treatment. The appellant denied, contrary to the clinical notes, that he failed to collect the prescription for Mirtazapine in July 2017.

  7. The appellant refused to accept that Shep was emaciated at the time of seizure, claiming that “he looked within appropriate weight limits for his age". The appellant was cross-examined on paragraph 6 of his written statement, denying that he told Dr Richards that Shep had been unwell for several days. He claimed that he had told Dr Richards that it had only been a couple of hours. Specifically, he denied that he told Dr Richards that Shep had been lying down for approximately two days. The appellant denied that he told Dr Richards that Shep had been experiencing trouble standing or moving for about a week.

  8. When it was suggested to the appellant that Dr Richards had told him that Shep needed to go to hospital for treatment, or more likely would need to be put down, the appellant replied:

“Those weren't her words, those weren't her exact words."

  1. The appellant denied that he told Dr Richards that Shep was not “coming back” with her. He denied that he refused Dr Richards’ advice to have Shep transported back to hospital. The appellant denied that he was lying in his statement wherein he had claimed that Dr Richards had repeatedly professed not to know what was wrong with Shep.

  2. When it was suggested to the appellant that on the evening of 12 January, Dr Richards again recommended euthanasia, the appellant said:

"She didn't recommend it again or at all in that call. She brought it up for the first time, not in that call".

  1. The appellant denied that he told Dr Richards that he would not consider euthanasia as an option, and he denied telling Dr Richards that he was unable to afford veterinary treatment.

  2. The appellant further denied that the following day (13 January) Dr Richards had again suggested that Shep be euthanised. He denied that Dr Richards told him that she felt obligated to contact the RSPCA. The appellant denied that Dr Richards had made it clear that Shep needed immediate hospitalisation or euthanasia, suggesting that the immediacy merely related to the collection of drugs for pain. The appellant denied that he had told Dr Richards that he had started treating Shep with human iron supplements. The appellant stated that he told Dr Richards that he thought Shep looked better in that he had got up at night to get onto the balcony. He also observed food had been eaten and water had been drunk and spilled.

  3. In respect of the evidence of Dr Richards that the appellant repeatedly resisted the idea of Shep being hospitalised on three days commencing 12 January 2018, the appellant replied:

"I don't think I resisted; I tried to help the vets. I asked Dr Bethany would she attend my home on the Friday, whether she can sedate Shep so we can take him to the hospital. She said she doesn't have sedatives and she can't do it. So I don't think I resisted to hospitalisation, I didn't."

  1. The appellant denied that Dr Richards at any time communicated to him that Shep's situation was so dire that his conditions were fatal or near fatal. The appellant accepted that he had been told by Dr Richards that Shep needed pain relief; “she mentioned this throughout our interactions, at some point she did, yes”.

The recorded telephone calls

  1. The appellant recorded telephone calls made to Southern Cross Vet on two occasions on 14 January 2018. A transcript of the calls are identified as MFI B and D in Ex 1.

  2. The first call was in response to the appellant finding Shep had been seized that day upon his return to his home. In that call, following a discussion with an unidentified vet, the employee Mia said the following:

“From what the vet just told me, Shep is very sick, and is dying, you’re refusing treatment, and it's now a human issue that the RSPCA need to step in and see."

  1. In response to the allegation that the appellant was refusing treatment, the appellant noted that he had been at the clinic earlier that day to collect a script and had also arranged to have blood tests early the following week. The appellant stated that “we are all extremely stressed about this. The whole family is crying".

  2. In a subsequent call to Southern Cross Vet in respect of the discussion to Shep's likely whereabouts the appellant said:

“It's a sick animal though. It's unwell. So it's probably been booked into a hospital.”

  1. A telephone call by the appellant to the RSPCA on 14 January was similarly recorded and a transcript of the call was admitted into evidence on the appeal (Ex 1, MFI C). Senior Counsel for the appellant highlighted the appellant's statement in that call to the following effect:

“We understand that the dog is quite sick. Which is why we were at the vet yesterday and today, and we have picked up medications for him today… I have evidence of all the treatment occurring, quotes and emails, and the phone calls and the visits, and the script. So it just does not compute… So could you please give us some details on what's going on? We understand the dog is sick. We would love to see him and know how he is please".

The findings of the Magistrate

  1. Given the clear conflict between the evidence of the appellant and Dr Richards as to their interactions, it was necessary for the learned Magistrate to make relevant findings as to the evidence he preferred. His Honour found:

“As to divergence in the evidence of conversations between Dr Richards and the defendant on 12, 13 and 14 January 2018, I prefer the evidence of Dr Richards and I found her to be a witness of credit. She was acting in her professional capacity and gave a detailed report setting out her advice and conclusions shortly after the events. She has no motive to lie about, or to exaggerate the advice she gave to the defendant, and her evidence that she told the defendant that the dog was very sick and dying and that the defendant was refusing treatment is corroborated by other evidence, including the call made by the defendant to Southern Cross Veterinary Hospital on 14 January 2018.

Much of the contrary account of the accused was not put to Dr Richards in cross examination. The evidence of Dr Richards is particularly compelling…"

  1. In respect to the appellant’s evidence, the learned Magistrate found the following:

“In the face of the evidence of Dr Richards and the evidence of Ms Will and the photographs in Exhibit 1, and also taking into account the communication that Dr Richards gave evidence about with the defendant, I do not accept for a moment that the defendant was not aware that the dog was seriously ill and required urgent expert veterinary care. The defendant was at times disingenuous during cross-examination, particularly when the unlikelihood of the truth of his evidence was apparent. Moreover I would characterise the defendant's evidence, both in evidence in chief and during cross examination, as being self-serving, revisionist and hollow. It is unreliable and I reject it.”

  1. His Honour ultimately found:

“I am not satisfied that there is anything arising from the defendant’s evidence which supports an honest and reasonable mistake of fact by him which would render him innocent. The defence as raised has been negatived to the high standard required.”

Consideration

  1. The appellant contended that, in determining whether the RSPCA had proved beyond reasonable doubt as to the appellant's guilt, the state of mind of the appellant was a matter of inference from facts found, and therefore it is necessary to determine whether an alternative explanation or hypothesis is reasonably open on the evidence. The appellant contended that there were a number of alternative explanations for the appellant's conduct.

  2. Firstly, that Dr Richards did not unambiguously make it clear to the appellant that in her opinion Shep must be hospitalised or euthanised; Dr Richardson did not use the word “necessary” and indeed engaged with the appellant in considering alternative treatment options.

  3. Senior Counsel for the appellant, in oral submissions, focused on Dr Richards’ use of expressions such as ‘unlikely’ in the context of whether the appellant’s urging that remedies/treatment administered in the appellant’s home would be of any assistance. Further the appellant highlighted Dr Richards’ use of the term ‘likely' as to the cause of Shep’s presentation, and her representations that euthanasia was an ‘option’ to hospitalisation.

  4. However, this submission ignores several material aspects of Dr Richardson's evidence:

  1. Dr Richardson told the appellant, following the initial examination at the appellant’s home on 12 January, that Shep “needed to be admitted to hospital” and was “in need of either euthanasia or hospital admission with fluids and pain relief with investigation in relation to the cause of its condition".

  2. Later that evening, following assessment of blood results, Dr Richards again told the appellant that Shep was “extremely ill and needed to be admitted to hospital".

  3. The following day (13 January) Dr Richards again told the appellant that Shep was in a lot of pain and needed treatment. Estimates for treatment were provided which involved hospital admission. In that same conversation Dr Richards told the appellant that despite medical intervention Shep would likely still need to be euthanised.

  4. Following further emails from the appellant, expressing a desire to treat the anaemia and dehydration, Dr Richards again told the appellant that Shep was suffering and needed either immediate hospital care or euthanasia. In the same telephone call Dr Richards told the appellant that proposed treatments for anaemia and dehydration at home would be insufficient care.

  5. The following day (14 January) Dr Richards again told the appellant that hospitalisation was required if euthanasia was not an option. In that same telephone call Dr Richards told the appellant that the iron deficiency was likely to be caused by internal bleeding which could not be managed at home.

  6. Later that same day, when the appellant collected the script for Tramadol, Dr Richards again told the appellant that Shep needed euthanasia or urgent hospitalisation.

  1. In the circumstances, Dr Richards told the appellant at least four times that Shep needed either immediate hospitalisation or euthanasia.

  2. The level of concern of Dr Richards in respect to Shep's condition, and need for euthanasia or hospitalisation, was further reinforced with the appellant, if it was ever necessary, by Dr Richards’ ultimatum to the appellant that she would be contacting the RSPCA to advise them of Shep's condition given her legal obligations to do so. I do not accept the contention of Mr Odgers SC that the appellant might have misunderstood the meaning of such an ultimatum; it would have conveyed to the appellant in clear terms the seriousness with which Dr Richards was treating the appellant's repeated refusal to accept her advice that Shep needed to either be euthanised or admitted to hospital. Further, Dr Richards told the appellant that she would no longer be Shep's treating veterinarian following his repeated refusal to accept her recommendations. This would have again conveyed to the appellant the seriousness with which Dr Richards was treating Shep’s condition.

  3. Mr Odgers SC submitted that, given Dr Richards did not make contemporaneous records of some of the conversations, and that the expert certificate was completed approximately one month after the events, “considerable caution" is required in respect of Dr Richards’ recount of those conversations, quite apart from the requirements for proof beyond reasonable doubt. Reliance was placed upon the observations of McLelland CJ in Watson v Foxman (1995) 49 NSWLR 315 at 319, as to the fallibility of human memory as to what was said in a conversation. It was submitted that given Dr Richards’ use of technical terms, which would not have been the words used, the fact that she was prepared to entertain alternative tests, and that she did not know the exact cause of the illness, it was reasonably possible that Dr Richards did not use the words which reflected her intention to convey that Shep “needed" to be hospitalised or euthanised.

  4. I do not accept this submission. Whilst it must be acknowledged that the precise words contained in the certificate of evidence may not have been used, Dr Richards in that statement repeatedly used the expression that Shep “needed” to be euthanised or alternatively hospitalised. I find, even allowing for fallibilities of the type identified in Watson, that the clear tenor of Dr Richards statements to the appellant, repeatedly made over three days, was that Shep needed to be euthanised, or alternatively hospitalised.

  5. My finding in this respect is further reinforced by the contemporaneous notes of Dr Richards recorded on 12 January that the appellant was told by Dr Richards that Shep was “extremely ill and requires hospitalisation". It is further reinforced by the contemporaneous record on 13 January 2018 that the appellant was advised that Shep was “suffering and requires either immediate hospital care or euthanasia."

  6. My finding in this respect as to the emphatic manner in which this advice was conveyed to the appellant is further corroborated by the same contemporaneous record which noted that the appellant “declined both for monetary and ethical reasons".

  7. Secondly, it was contended that as Dr Richards was not Shep’s regular veterinarian, and she was a relatively inexperienced veterinarian, she may have had some difficulty in clearly expressing her assessment to the appellant. I do not accept this submission. To the contrary, it is self-evident from the contemporaneous records, the certificate of expert evidence, and Dr Richards’ oral evidence, that she repeatedly conveyed to the appellant, in unequivocal terms, her assessment and recommendations as to Shep’s immediate needs.

  8. My findings in this respect are consistent with the findings of the learned Magistrate that Dr Richards’ evidence was “particularly compelling", and the finding that Dr Richards was a witness of credit.

  9. Thirdly, the appellant contended that Dr Richards did not “categorically" rule out various options for treatment other than hospitalisation as raised by the appellant. Mr Odgers SC referred in written submissions again to the use of expressions such as ‘unlikely’, ‘most likely’ and ‘likely’.

  10. I do not accept the appellant's submission in this respect. Contrary to the appellant's submission that this suggested the possibility that Dr Richards did not clearly and unqualifiedly communicate Shep ‘needed’ to be hospitalised, Dr Richards’ heard the appellant's representations in this respect but consistently reinforced in reply that euthanasia or hospitalisation was what was needed.

  11. Fourthly, the appellant contended that it is reasonably possible that he “misunderstood" what Dr Richards was attempting to communicate. The appellant contended that the issue is what might possibly have been the understanding of the appellant regarding the conditions of Shep and his understanding regarding “necessary" treatment. It is contended that on a number of matters the appellant may have misunderstood Dr Richards’ views.

  1. It is submitted that whilst Dr Richards may have intended to convey that Shep “should” be hospitalised, the appellant may have understood this was one option. I do not accept this submission. For the reasons set out earlier, including Dr Richards’ repeated statements to the appellant that Shep’s condition was so serious that immediate hospital care or euthanasia was needed, such treatment could hardly have been understood as no more than an “option”.

  2. It is further contended that the appellant may have misunderstood Dr Richards’ statements to mean that euthanasia was merely something to “keep in the back of your mind". This is contrary to the evidence of Dr Richards, and I do not accept that the appellant could have misunderstood Dr Richards' views in this respect.

  3. It is further contended that the appellant may have understood that, in circumstances where Dr Richards had indicated she was unaware of what was wrong with Shep, the treating of the symptoms of pain was an appropriate option prior to being treated by the regular vet. I do not accept this submission given the repeated terms in which Dr Richardson conveyed to the appellant the immediate needs of Shep to relieve him of his suffering. Similarly, I do not accept the submission that the quotation for additional testing may have been understood by the appellant as saying that such tests would assist diagnosis by the regular vet. This does not, in any way, derogate from the emphatic and immediate statements repeatedly made by Dr Richards as to Shep’s immediate needs.

  4. Fifthly it is contended that as Dr Richards was a relatively inexperienced veterinarian, and as the appellant had intended to take Shep to his regular vet on the following Monday, the appellant may have failed to give “very close attention" to what was said to him; he may have misunderstood her opinion that Shep needed to be hospitalised or euthanised. However, such a submission is again inconsistent with Dr Richards’ evidence.

  5. Further the evidence of Dr Richards that the appellant rejected euthanasia as an option on more than one occasion clearly established that the appellant well understood what Dr Richards was telling him; that given Shep’s suffering, euthanasia needed to be seriously contemplated as the alternative to immediate hospital care. The appellant told Dr Richards that he was unable to afford veterinary treatment, consistent with the appellant clearly understanding what Dr Richards was advising.

  6. In all the circumstances I do not accept that an alternative explanation or hypothesis was that the appellant misunderstood what Dr Richards was attempting to communicate.

  7. The appellant contends in the alternative that, even if the appellant did understand that it was the opinion of Dr Richards’ that Shep needed to be hospitalised (or euthanised), it was a “large step" to infer that the appellant accepted this opinion, and as a result, believed that Shep was in such a poor physical condition that it was cruel to keep it alive. Mr Odgers SC contended that “it must be reasonably possible” that the appellant did not accept the opinion of Dr Richards, even if he understood clearly what that opinion was.

  8. In considering the appellant’s submissions in this respect it is appropriate to make some comment on evidence which, the appellant contends, the learned Magistrate did not take into account.

  9. It was contended that there was considerable evidence that the appellant loved Shep and desired to have any physical conditions from which it suffered appropriately treated.

  10. Whilst there is no doubt that the appellant, from time to time, attended the veterinary practice for routine vaccinations, and other treatment, the clinical notes of Bondi Vet Hospital do not support such an unqualified contention. According to those notes, on 30 January 2013, the appellant declined the veterinary recommendation for a fine needle assessment “due to cost".

  11. On 13 March 2017 the appellant presented at the veterinary practice with Shep. According to the clinical notes the reasons for the attendance was losing weight and a lump. It is not without significance that this reason for the attendance was denied by the appellant in his evidence. The clinical notes record that it was likely that Shep had a “significant disorder" and again advised the appellant that investigations were necessary which were likely to include imaging and biopsies. The notes further record that there was possibly a low-grade malignancy and biopsy was required for accurate diagnosis and imaging. It is apparent that this recommendation was not followed by the appellant given the clinical entry on 22 March 2017, in which the appellant was again advised that a biopsy mass was necessary for an accurate diagnosis.

  12. On 15 June 2017 the appellant returned to the veterinary practice with Shep. The clinical note further records that a biopsy/imaging of a large thoracic mass was necessary. The appellant declined to organise such tests. Again, it is not without significance that the appellant, in his evidence, denied this occurred, despite the contemporaneous clinical entry. The clinical notes further record the veterinarian’s concern that Shep had “disease" and Mirtazapine was offered as a trial. However, it is apparent that the appellant had failed to collect the medication over two weeks after it was dispensed.

  13. There can be no issue that the thoracic mass identified by the veterinarians in the clinical notes was the same thoracic mass which had clearly grown by the time of Dr Richards' attendance in January 2018.

  14. Whilst Dr Richards did concede that the appellant appeared concerned for the health of Shep, the historical objective evidence arising from the clinical notes is inconsistent with the appellant’s apparent concern. Indeed, the objective clinical notes establish that the appellant declined earlier recommendations for investigations of Shep’s condition. Further, Shep’s extremely poor condition at the time of assessment by Dr Richards, and further described by the RSPCA inspector and later by RSPCA veterinary surgeons, is entirely inconsistent with the appellant's contention that he loved Shep to the extent that “it would be unlikely that he would decline to permit the dog to receive veterinary treatment”.

  15. The appellant relies upon good character arising from his “personal history and his evidence". It is contended that the Court should take into account the appellant’s good character in deciding whether he is guilty of the offences (Evidence Act 1995 (NSW) s 110 (1); R v Soto-Sanchez [2002] NSWCCA 160). It is contended that the appellant’s character may have a bearing on whether he was honestly mistaken regarding the condition of Shep, and whether veterinary treatment was necessary.

  16. The appellant’s evidence in the Local Court is relevant in assessing the issue of good character, and its bearing on the fundamental issue as to whether the RSPCA has proven its case beyond reasonable doubt. This is not to reverse the onus of proof, but rather to consider the appellant's claim of good character.

  17. The Court is reminded of the unchallenged findings of the learned Magistrate that the appellant was at times “disingenuous" during cross examination, particularly “when the unlikelihood of the truth of his evidence was apparent". The learned Magistrate further described the appellant’s evidence in chief, and during cross examination, as being self-serving, revisionist and hollow. The learned Magistrate found the evidence was unreliable and rejected it. This Court’s review of the appellant’s evidence is consistent with the findings of the Magistrate.

  18. These credibility findings must be considered in the context of the appellant’s denials, whilst giving evidence, of critical conversations with Dr Richards, over three days leading to Shep’s seizure. The unchallenged finding, preferring the evidence of Dr Richards to that of the appellant, is significant.

  19. In the circumstances, the appellant’s apparent good character is of little weight given the credibility findings adverse to the appellant on the central factual issues arising from the proceedings.

  20. It is further contended by the appellant that, in assessing the question of whether the appellant believed Shep was in such a poor physical condition it was cruel to keep it alive, it must be remembered that Shep was relatively old. The appellant relies upon his own evidence in this respect. Whilst evidence established that Shep was old, and suffered from various unrelated ailments, it was the evidence of Dr Richards, as traversed above, that the appellant was repeatedly told that Shep was in such a condition that hospitalisation, and more likely euthanasia, was necessary. When the appellant suggested to Dr Richards that Shep could possibly be treated at home with alternative remedies, Dr Richards repeatedly informed the appellant that the proposed treatments or investigations would not treat or alleviate the conditions from which Shep suffered. Instead, the appellant was repeatedly told that Shep required hospitalisation, or more likely, euthanasia.

  21. I do not accept the appellant’s contention that, given the appellant's extensive experience with Shep, he might have made assumptions about Shep’s condition based on that experience. The relatively minor conditions relied upon by the appellant including “bumps”, “cysts”, and being a "fussy eater" pales into insignificance given Shep’s serious condition at the time he was examined by Dr Richards. Shep’s presentation, together with Dr Richards’ repeated statements to the appellant as to Shep’s needs, is inconsistent with the contention that the appellant may merely have made assumptions about Shep’s condition.

  22. The mere fact that the appellant contacted police does not make it implausible that the appellant realised Shep was in such severe physical condition that it was cruel to keep it alive.

  23. I do not accept the contention that it was reasonably possible the appellant did not accept the opinion of Dr Richards for the following reasons:

  1. The appellant asserted in his evidence that Dr Richards repeatedly told the appellant that she did not know what was wrong with Shep. This was inconsistent with the overall effect of Dr Richards’ evidence. Whilst Dr Richards acknowledged in her statement that she did not know “the exact cause" of Shep’s illness, this does not detract from Dr Richards’ repeated and emphatic statements that Shep was in need of either euthanasia, or hospitalisation.

  2. It was in the face of the appellant’s repeated statements that euthanasia was not an option that Dr Richards continued to recommend immediate hospitalisation as an alternative. The evidence of Dr Richards established that the appellant was not prepared to entertain at all her recommendation for euthanasia. It was not a case of the appellant not accepting the opinion of Dr Richards or requiring a second opinion. Rather, it was the evidence of Dr Richards that the appellant, without any rational basis, consistently rejected Dr Richards’ statement that Shep needed euthanasia or immediate hospital admission.

  3. It was not the appellant’s case that he did not accept these recommendations, but rather he denied that such recommendations were made.

  4. The appellant contends that focus is required on the word “necessary". The appellant contends that the question is whether the appellant believed not only that Shep did suffer from the relevant conditions but also believed that hospitalisation was “necessary" for those conditions. Given Dr Richards’ repeated statements that Shep was in “need" of either euthanasia, or hospital admission, the appellant could not have been informed in more clearer terms that the veterinary treatment being recommended by Dr Richards was indeed necessary.

  1. In all the circumstances I am satisfied beyond reasonable doubt that the appellant did not honestly believe, during the relevant period, that Shep was not in such a physical condition that it was cruel to keep it alive. Even if the appellant did so honestly believe, which I do not accept, given all the evidence, I am satisfied beyond reasonable doubt that any such belief was not held on reasonable grounds.

  2. The appeal is dismissed.

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Decision last updated: 27 September 2022

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Bell v Stewart [1920] HCA 68
Bell v Stewart [1920] HCA 68
Charara v R [2006] NSWCCA 244