Evans v RSPCA (SA) Inc - [2022] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
EVANS v RSPCA (SA) INC
[2022] SASC 32
Judgment of the Honourable Chief Justice Kourakis
6 April 2022
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS
This is an appeal from the Magistrates Court of South Australia against conviction of one count of ill-treatment of an animal, namely a horse known as Regal Act, under s 13(2) of the Animal Welfare Act 1985 (SA). The offence was alleged to be committed between 6 July 2017 and 6 September 2017. The Appellant was convicted of the offence on 25 March 2021, with Magistrate Sale finding beyond reasonable doubt that the Appellant’s failure to take reasonable care to obtain veterinary treatment for Regal Act allowed Regal Act’s condition to progress to a point where the horse was unable to be saved.
The Appellant relied on two grounds of appeal:
1.the verdict was unreasonable and not supported by the evidence; and
2.there had been a miscarriage of justice by reason of the Magistrate’s excessive examination of the Appellant when she gave evidence.

Held:
1.The appeal is dismissed on ground 1.
2.The appeal is allowed on ground 2, the conviction set aside and the case remitted to the Magistrates Court of South Australia for a rehearing of the Information.

Animal Welfare Act 1985 (SA) ss 13(2), 13(3), 13(3)(b)(ii), referred to.
Lockwood v Police (2010) 107 SASR 237; R v T, WA [2014] SASFC 3; Galea v Galea (1990) 19 NSWLR 263; Yuill v Yuill [1945] 1 All ER 183; Jones v National Coal Board [1957] 2 QB 55; Michel v The Queen [2010] 1 WLR 879, considered.

EVANS v RSPCA (SA) INC
[2022] SASC 32
Magistrates Appeal: Criminal

KOURAKIS CJ: After I reserved judgment I received emails from the appellant, but I have had no regard to them in formulating my reasons.
The appellant, Ms Evans, appeals against her conviction in the Magistrates Court on 25 March 2021 of an offence of ill-treating an animal contrary to s 13(2) of the Animal Welfare Act 1985 (SA) (the Act). The offence was alleged to have been committed between 6 July 2017 and 6 September 2017 at Gawler, in that Ms Evans failed to take reasonable steps to mitigate harm to, and neglected, a horse known as Regal Act, which was owned by, and in the care of, both her and her husband. They had no professional or commercial involvement in horses. I will refer to them, and persons with similar interests in horses, as recreational horse owners.
In opening, and at the suggestion of the Magistrate, the RSPCA (SA) Inc (RSPCA), the prosecutor, elected to proceed only on the particular of failing to take reasonable steps to mitigate harm contrary to s 13(3)(b)(ii) of the Act. It was probably unnecessary to do so. Section 13(2) creates a single offence which can be committed in any number of the ways which fall within the concept of ill treatment including, but not limited to, the forms of ill treatment specified in s 13(3) of the Act. Moreover, on the prosecution case both the alleged failure to take reasonable steps to mitigate harm and the alleged neglect were the omission to seek appropriate veterinary care for Regal Act. There was therefore neither patent nor latent duplicity in the charge.
The appellant’s appeal was instituted on 22 April 2021. An extension of time was therefore required and was granted. The ground identified in the Notice of Appeal was that the verdict was unreasonable and not supported by the evidence. In the course of the hearing Ms Evans applied, and was given permission, to add as a ground that there had been a miscarriage of justice by reason of the Magistrate’s excessive examination of Ms Evans when she gave evidence.
I would dismiss the appeal on ground 1. There was, as shall be seen, evidence from which it could be inferred that Ms Evans ought reasonably to have appreciated that Regal Act required veterinary treatment, primarily because of his reduced activity and loss of weight, resulting from a condition of his hoofs known as laminitis, before she first took steps to procure a vet in late August 2017. A finding beyond reasonable doubt that Ms Evans ought reasonably to have been aware that Regal Act required veterinary attention before she made those arrangements required an evaluation of conflicting evidence and an assessment of the credibility and reliability of Ms Evans. However, the nature and extent of the Magistrate’s examination of Ms Evans, after the prosecutor had completed his cross-examination, and the treatment of Ms Evans’ evidence in the Magistrate’s reasons, show that Ms Evans lost an opportunity which would otherwise have been reasonably open to her to secure an acquittal, because the Magistrate’s intervention compromised his capacity to impartially conduct that evaluation. This was not a case in which a reasonable magistrate, properly conducting the hearings, was bound to convict Ms Evans. I therefore allow the appeal on the amended ground, set aside the conviction and remit the case to the Magistrates Court for a rehearing of the Information.
My reasons follow.
Prosecution evidence
The RSPCA called one of its officers, Ms Doudle, who attended at Ms Evans’ property on Wednesday, 6 September 2017. When Ms Doudle first arrived she observed Regal Act, with scabs and sores apparent on his feet, lying on the ground. From her car Ms Doudle phoned three vets but none could attend on the same day. Ms Doudle then saw Regal Act stand and move about. Nonetheless, Ms Doudle left a notice on Ms Evans’ front door requiring her to have a vet examine him before 5.00 pm on the following day. Ms Doudle testified that she received a telephone call from Ms Evans about ‘mid‑afternoon possibly around 1 o’clock’ who told her that Regal Act ‘was fine’ and ‘that there was nothing really that could be done for it’. Ms Evans informed Ms Doudle that she had already called a vet, Dr Herbert, before sighting the notice. Later that day, Ms Doudle spoke to Dr Herbert’s office and confirmed that an appointment had been made.
Dr Herbert attended on Regal Act on 6 September. When she attended, Dr Herbert was not aware that the RSPCA had concerns about Regal Act’s welfare. Dr Herbert was not asked by prosecuting counsel when the appointment first appeared in her calendar. Dr Herbert observed that Regal Act was thin and laying down on green grass. His hooves were elongated which signified to Dr Herbert that they had not been trimmed for a long time. Dr Herbert’s opinion was that Regal Act had not had a farrier work on his hooves for at least six months.
Dr Herbert observed oozing from around the coronary band of both front legs and purulent material coming from the bottom of the foot which had ‘rotted away’. Dr Herbert placed her finger in the bottom of the foot and felt the heel bulb without eliciting any pain reaction from Regal Act. Dr Herbert explained that in a healthy horse, that part of the foot would be vascularised and enervated, such that any attempt to insert her finger would cause great pain. Dr Herbert opined that the infection in Regal Act’s feet had killed and deadened that tissue and was working its way up above the coronary band. Dr Herbert cleaned and washed the hooves.
Dr Herbert explained that a horse’s hoof is connected to the sole of the foot by the lamina, an interdigitative substance like that which keeps the human fingernail fixed to the finger. Laminitis is an inflammation of the lamina and may cause the hoof and the leg to separate. Laminitis may be initiated in a number of ways including overfeeding or excessive grain consumption. The separation of hoof and foot secondary to laminitis allows foreign material to enter that space. The source of Regal Act’s infection was probably a subsolar abscess in both front feet initiated by bacteria from the ground. The abscess could have been cleaned away by a farrier. Dr Herbert said that it was not uncommon to see an infection of the lamina but that it was ‘incredibly uncommon’ to see an infection as extensive as that which she saw on Regal Act. Regal Act did not get up after Dr Herbert cleaned the hooves.
Dr Herbert’s immediate reaction was that the most humane course was to euthanise Regal Act, but she advised Ms Evans to give Regal Act 24 to 48 hours on the pain medication and antibiotics before deciding on what to do. Dr Herbert testified that in her view Ms Evans ‘honestly didn’t understand the level of pain this horse was in and I – you know, she’s a human, I feel sorry for people that can’t see this thing, to a point. And yes I did but basically my motto is never say never but we were – this was just to give her, I thought, enough time to come to a decision so it didn’t have to go any further’.[1]
[1] T 53.
Dr Herbert administered antibiotics and pain relief. Dr Herbert’s opinion was that if there was any chance for recovery it was remote, and that the next 24 to 48 hours would tell. Dr Herbert opined that on the state of the infection observed by her it had been present for weeks or months before 6 September. Dr Herbert estimated that Regal Act was in pain for a similar period of time but could not say exactly how long. In her opinion, topical treatments would not mask the pain caused by Regal Act’s laminitis.
In Dr Herbert’s opinion, Regal Act did not stand up on 6 September because he was in extreme pain, which she gauged from Regal Act’s tightened facial muscles, wide open eyes and increased respiration. Dr Herbert gave evidence that those signs of pain had long been intuitively recognised by persons working with horses but had only become scientifically recognised as such in recent times.
Dr Herbert attended on Regal Act again on 8 September and found him standing but still with a presentation typical of laminitis in that he resisted the raising of his legs and preferred to shift the weight from one leg to another. He was drinking and eating a little. Regal Act’s feet were again anaesthetised and cleaned up.
When Dr Herbert attended on 11 September she observed more oozing around the coronary band and found that Regal Act had no sensation whatsoever indicating that the devitalisation was progressing up the leg and Regal Act could hardly walk. Ms Evans told her that she would take Regal Act to the Roseworthy Equine Health Performance Centre (Roseworthy). However, Dr Herbert concluded that it had become necessary to euthanise Regal Act.
On the next day, 12 September 2017, Dr van Oijen examined Regal Act at Ms Evans’ request. Regal Act was standing and grazing. His heart rate was 80 beats per minute; a horse’s resting heart rate is about 40. Regal Act was thin with a body score of 2/5. He rated Regal Act’s apparent lameness at 4 on a scale on which 5 is reserved for a fractured leg. Regal Act had deep cuts in the skin on the heel bulbs which were infested with maggots. Dr van Oijen diagnosed severe laminitis which he described as an easily recognisable condition. In Dr van Oijen’s opinion it would have taken a couple of weeks or longer to develop the wounds on Regal Act’s feet. Dr van Oijen was asked whether the initial symptoms might have been mild but have deteriorated more recently. He did not think so because of Regal Act’s weight loss. From the weight loss, he estimated that Regal Act had been in pain for weeks and more probably for a month. Dr van Oijen testified that Ms Evans told him that she wanted to save Regal Act ‘no costs spared’.[2]
[2] T 81.
Dr Simon is a senior lecturer in large animal surgery at the University of Adelaide.[3] He had treated Ms Evans’ other horse, Dorian. Roseworthy’s account for those services was not immediately paid. As a result, Ms Evans had been informed that no care would be provided to her animals until payment of that invoice. Nonetheless, on 12 September 2017, Dr Simon saw Regal Act at Roseworthy on the referral of Dr van Oijen, on condition of full payment of the estimated cost of that attendance at the time of the appointment.
[3] T 61.
Dr Simon knew that Regal Act had been in the care of Dr Herbert. Radiographs of Regal Act’s feet were taken and showed extensive bone loss. Dr Simon’s diagnosis was of chronic long-lasting bilateral front leg laminitis with congruent problems, weight loss, typical abrasions from the horse spending a lot of time laying down. Dr Simon explained that laminitis is nearly never a primary disease. It may be caused by PPID which is a non-cancerous tumoral dysregulation of the pituitary gland.
In Dr Simon’s opinion, Regal Act had suffered from the condition for ‘easily’[4] three to six months. That period of time is greater than the time estimated by Dr Herbert and significantly greater than the time estimated by Dr van Oijen. Dr Simon may have included a longer period for the prodromal period of the condition or his opinion may have been based on the x‑rays which had not been available to Dr Herbert or Dr van Oijen.
[4] T 65.
Dr Simon observed an obvious degree of lameness. Regal Act could barely walk and shuffled on his feet. His extremities were swollen. There was an absence of a solar space in the feet because of a complete collapse of the feet. There were some places of separation of the hoof wall from the underlying tissues.
Dr Simon was asked whether Regal Act would have been experiencing pain at earlier stages of laminitis. He answered:[5]
Actually before becoming a radiographic condition, laminitis is first a clinical condition that is expressed by its clinical sign. So when we see the pain appearing, we can declare that the horse has laminitis. So from day 1, in step 1, horses with laminitis will show pain symptoms, pain signs. It can start being subtle but most of the time they will weight-shift, spend more time laying down, be reluctant to move, show evidence of discomfort when they are turning in short circles. If you observe them closer you will feel increased temperature of the feet, increased digital pulse, but this requires a bit more detailed observation, while external observation is immediately showing that the horse is not comfortable.
[5] T 67-68.
Dr Simon was asked whether, in his experience, it sometimes took an owner of a horse some time to realise or suspect that the horse had laminitis. His response was that clinical signs can be more subtle and be confused with other conditions. The typical diagnostic presentation for laminitis is changing posture by a shuffling of the legs. Recent horse owners might find the changes ‘a little bit blurry’. For others who assess horses regularly and over time, it is ‘generally well-identifiable’. It might be missed in mild cases but not when the condition had progressed to an extreme point. Dr Simon disputed that no obvious clinical symptoms would have been evident until three to four weeks before he saw Regal Act. Again, this evidence suggests a prodromal phase of the condition in which the symptoms are not as obvious.
Dr Simon testified that Regal Act needed earlier veterinary care to neutralise the onset of an acute laminitis attack. Dr Simon could not say whether appropriate care had been given in the months before he saw Regal Act. He described laminitis as an aggressive condition.
Dr Simon accepted that a neurectomy, a surgical treatment which Ms Evans speculated might have been performed on Regal Act before she purchased him, might mask otherwise obvious symptoms. However, it would not mask the clinical signs of the level of remodelling suffered by Regal Act when seen by Dr Simon.
Dr Simon concluded that Regal Act’s laminitis was so extreme that euthanasia was the only appropriate response.
On 16 September, Dr Herbert returned to Ms Evans’ property with Ms Doudle. Regal Act had lost another 50 kilograms. He was breathing quickly with an elevated heart rate. Dr Herbert euthanised Regal Act pursuant to an authority to do so granted by a Magistrate.
In summary, the prosecution evidence proved that by 6 September Regal Act had advanced laminitis which was untreatable, even though Dr Herbert was prepared to allow several days in the hope that he might show some recovery. However, to sustain the conviction the prosecution had to prove that some time before 6 September a reasonably prudent recreational horse owner would have:
(a)spent enough time observing Regal Act to have noticed a shuffling gait and/or excessive lying down
(b)known or reasonably suspected that the cause of that shuffling and/or lying down was laminitis
(c)understood that laminitis required prompt, if not, urgent veterinary attention to avoid serious illness or death and
(d)acted more promptly and effectively to arrange veterinary attention after becoming aware that it was required.
The prosecution did not put a case that a reasonable horse owner would have appreciated a need for prompt veterinary care by reason of Regal Act’s excessive lying down or weight loss, other than in its association with laminitis. The prosecution did not lead evidence on what easily accessible information was available to recreational horse owners, nor what was commonly known by them, about laminitis. In particular, there was no evidence of any common understanding of how aggressive the condition was or how urgently veterinary care should be arranged. The evidence showed that there would be some symptoms, primarily foot shuffling, from the inception which, in the case of Regal Act, was as early as June on Dr Simon’s estimate. However, Dr Simon accepted that some horse owners might find the changes ‘a little blurry’ early on but readily diagnosable in an extreme case. Dr van Oijen’s estimated the date of onset in August. Dr Herbert’s estimate was that the laminitis commenced in either July or August. There was no evidence as to how long before 6 September Regal Act’s condition had been in the extreme condition described by Dr Herbert.
The defence case
Ms Evans gave evidence in her defence. As we shall see, her defence was that she did not notice a problem with Regal Act’s feet until 24 August and from that same day attempted to procure veterinary attention for him. The 24^th of August was several weeks after the date on which Dr Herbert and Dr van Oijen thought that Regal Act was symptomatic. On that defence case the critical question was whether the prosecution had proved that Regal Act’s condition had deteriorated to a point where a reasonable recreational horse owner would have appreciated that he had laminitis before 24 August, or would have acted more quickly and effectively after 24 August.
Ms Evans testified that she bought Regal Act in 2009 for recreational riding. Regal Act suffered colic in 2010, and again in 2014, for which he was treated at Roseworthy. She and her husband shared the responsibility of caring for the horses. Ms Evans arranged veterinary maintenance treatment like having Regal Act’s teeth rasped and worming medication. Ms Evans testified that the last occasion on which Regal Act’s hooves were trimmed was in late June or early July 2017 when Regal Act and the other horses were moved from one paddock near the Gawler airfield to another one further up the hill. At the time of the move he was well and galloped around the new paddock after coming off the horse float.
Ms Evans gave evidence that on 13 August she had called a vet from Roseworthy to examine her other horse, Dorian, whom she had found lying on the ground and writhing in pain. On that day Regal Act was in good health and was standing in an adjacent paddock just metres away from the Roseworthy staff when they treated Dorian. Ms Evans’ evidence that she acted promptly when she found Dorian in pain and that Regal Act was then in good health was neither challenged nor contradicted.

Dorian was taken to Roseworthy and returned on Friday, 24 August. The account for Dorian’s treatment was $10,000, which was several thousand dollars more than Ms Evans and her husband had expected. Whilst Dorian was still being treated at Roseworthy, Ms Evans and her husband made an arrangement to pay Roseworthy’s account by instalments.
Ms Evans testified that she first suspected there was a problem with Regal Act’s feet on the morning of 24 August. At 10.00 am she found Regal Act lying on the ground even though her husband had fed the horses some carrots an hour earlier. If Regal Act was lying down for the first time because of the pain caused by laminitis, it is likely that he had contracted laminitis a week or so earlier. That timing is consistent with the time of onset of Regal Act’s laminitis given by Dr Herbert and Dr van Oijen. Ms Evans’ evidence that she had not noticed symptoms earlier is also possibly consistent with Dr Simon’s evidence that not all horse owners would pick up the early signs of laminitis.
Concerned about Regal Act’s feet, Ms Evans called Roseworthy on that same day and asked them to send a vet. She was informed that Roseworthy would not provide a vet because she had an open unpaid account in the sum of $10,000 for the veterinary services provided to Dorian. Her husband then applied for an increase in his credit card. Ms Evans also thought to herself that she would phone Roseworthy on Monday to negotiate for the provision of treatment to Regal Act on credit.
Ms Evans testified that she did not mention her concern about Regal Act’s health when she collected Dorian from Roseworthy on Friday, 25 August. She explained that she hoped to engage another vet and that her husband’s application for an increased limit would be approved quickly. However, she was not able to contact her preferred vet, Mr Sutherland, over the weekend. Ms Evans gave evidence that over the following week she did call other vets. Some informed her that they did not see horses themselves but instead referred them to Roseworthy. A clinic at Nuriootpa told her that it would not send a vet to Gawler. Yet another vet, Pat Ryan, was en route to Mount Gambier.
The prosecutor put no case by way of reply contradicting Ms Evans’ evidence that she had:
·contacted Roseworthy on 24 August about Regal Act’s condition;
·contacted Dr Herbert before 6 September;
·made attempts to arrange the other vets she nominated between 24 August and 6 September.
Ms Evans did not testify in‑chief, and was not cross-examined, on whether she informed any of the veterinary clinics which she contacted, that she suspected that Regal Act had laminitis.
Unable to procure a vet, Ms Evans purchased a topical hoof preparation and some low carbohydrate pellets. Ms Evans believed that Regal Act had laminitis which had possibly been caused by excessive carbohydrates. Ms Evans explained:
AWell, my area of expertise is not horse nutrition but as I understand it horses that have laminitis often have problems metabolising glucose and problems with insulin and it’s recommended to feed laminitic horses low carbohydrate food so that they are less prone to becoming hyperglycaemic; in other words, too full of sugar because carbohydrates are sugars basically.
That understanding is consistent with the opinion expressed in evidence by Dr Herbert.
After Ms Evans applied the topical preparation to Regal Act’s hooves, she thought that there was some improvement in Regal Act’s condition. Regal Act walked about, ate and drank. However, his condition fluctuated. In cross‑examination Ms Evans explained that she had hoped the reprieve would allow her time to find the funds to pay Roseworthy.
ANo. What I said was – what I will say now – his symptoms ameliorated during the last week of August. And during the last week of August, that is like, you know, Sunday, Monday, Tuesday through to the end of August – he seemed a lot more comfortable. He was walking around, helping himself for food and water, getting excited when the feed bins came out at night, when there was food for him, the special food that he liked. And I was hoping that the measures that I was taking would give him some benefit. I was also hoping that my husband’s application for credit would be approved in the very near future. And I suppose I was thinking, in the back of my mind, that if we needed to raise funds, alternatively, then we could do that but it would take a couple of weeks. Whereas what we had been trying to do should have taken only a few days. So I was thinking that if the horse was comfortable enough and I could wait another day or two that I may have funds that I could go back and sort of pay my way out of trouble at Roseworthy. They were my thought processes at the time.
Ms Evans testified that she thought that Regal Act was ‘more comfortable’ during the last week in August but by the end of the first weekend in September, it was clear to her that Regal Act ‘wasn’t going to get better on his own’. Ms Evans felt that her only remaining option was to call Dr Herbert despite her reluctance to do so because of adverse reports she had received. Ms Evans testified that she relented and called Dr Herbert on Tuesday, 5 September after her husband’s second application for increased credit was rejected. Ms Evans explained that she did not contact Ms Herbert earlier because she ‘was hoping to get someone better, or alternatively, have funds available’ to settle the Roseworthy account.
Ms Evans explained that Regal Act was taken to Roseworthy after he had been treated by Dr Herbert because Ms Evans and her husband had managed to pay $3,000 of the outstanding Roseworthy account.
In cross-examination, it was put to Ms Evans that she had not had a farrier attend to Regal Act’s hooves in the six months before Dr Herbert’s visit:
QIs it not the case that you hadn’t, in fact, even had a farrier come out to see Regal Act for the previous six months before September 2017.
AI’m sorry, can you restate that question.
QYou hadn’t had a farrier have a look at Regal Act for six months prior to the RSPCA’s attendance, isn’t that right.
ANo, of course it’s not right. Why do you say that?
QOn your evidence you say you saw Regal Act laying down on 24 August.
AIs that an answer to my question?
HIS HONOUR
QIt’s part of a coming question.
ANo, the issue of the farrier has not been dealt with. The farrier attended, as I said, in either the last of June or the first week in July while the horses were at our property next to the airfield in Gawler Belt. And on that same day he did three of the horses, and he didn’t do the young one because he said his hooves hadn’t grown very much since the time before. So for someone to say that the horses feet hadn’t been attended for six months is rubbish. I mean the condition that I believe the horse had is known for accelerating hoof growth in a rather abnormal way. But certainly the two other horses that were on the property at the time that Elizabeth Herbert arrived has been trimmed, had their feet trimmed on the same day that Regal Act had, which was a Saturday in either late June or early July 2017.
The evidential significance for the prosecution case of the allegation that a farrier had not attended on Regal Act for six months is not obvious. It was not the RSPCA’s case that the failure to do so was a particular of the charges brought against Ms Evans. Nor was it the RSPCA’s case that she had a propensity to mistreat her horses: a case which in any event would be difficult to sustain in the face of the treatment arranged for Dorian.
Ms Evans strongly maintained her account that Regal Act’s condition fluctuated when challenged in cross-examination.[6]
[6] T 100.
QAnd you observed Regal Act to be in pain over the course of that time, is that correct.
AMaybe you weren’t listening when I was talking –
HIS HONOUR
QMs Evans, there’s no need to be rude, please, it’s a legitimate question, just answer it.
AI don’t believe it was put in the form of a question, it was put in the form of a yes or no answer.
QMs Evans, I’m the arbiter of whether a question is proper. Your counsel of, I’d imagine, 20 years experience, hasn’t objected so it’s your obligation to answer the yes.
AAs I’ve already said the horses symptoms fluctuated and during the last week in August 2017 he appeared to be a lot more comfortable. He was walking around from one end of the paddock to the other. He wasn’t running, but he was walking, and he was helping himself to food and water and getting quite excited when the feed bins came out in the evening.
Counsel for the prosecutor initially put to Ms Evans that she only called for a vet after the RSPCA left a note on her door on Monday, 4 September but later corrected the question by accepting that Ms Doudle’s evidence was that she had left the note on Wednesday, 6 September. Ms Evans accepted that she saw the note on Wednesday, 6 September but denied that it was only after she saw the notice that she contacted a vet:[7]
Well, no, it is only after I saw that notice that I contacted the author of the notice. I had already contacted the vet. I’d been trying to get a vet to come out for over a week.
[7] T 101.
I observe here that it is Ms Doudle’s evidence that she had left the note on the premises ‘mid-afternoon possibly around 1 o’clock’. On that timing there was hardly enough time for Ms Evans to arrange Dr Herbert’s attendance only after reading the note. Ms Evans was not at home when Ms Doudle attended so time must be allowed for her return. She then needed to read the note, consider which vets she might call and happen on one who had a free spot early enough that very afternoon to give Regal Act the treatment she described. If Dr Herbert had fortuitously been free, had cancelled another client’s appointment or had attended late in the evening, the prosecution can be expected to have led that evidence in support of what it made a central plank of its case and described as a ‘shocking coincidence’. Dr Herbert made no mention of any such circumstances.
Ms Evans denied she expressed the opinion to an officer of the RSPCA that there was ‘nothing that could be done for Regal Act’.
Ms Evans explained that after Dr Herbert’s attendance she managed to obtain a second opinion:[8]
AWell it wasn’t immediate, what I did was I made a repeat phone call to my friend, Raydon Pangelli, I tried to contact him the week before but he was out of range, you know contactable. I thought I’d give him another go because I thought if anyone knew vets that I might then he would. So on this occasion luckily for me he answered his phone, he was back in town and he told me about the Lucas van Oijen of whom I had never heard and had not contacted for that reason. As soon as I learned of him I contacted him.
[8] T 102.
When it was put to Ms Evans that Regal Act was suffering in obvious ways well before 24 August, she vehemently rejected the proposition describing it as ‘rubbish’. She maintained that a farrier had trimmed Regal Act’s feet in late June or early July. Ms Evans insisted that the farrier had not raised any concern about Regal Act’s feet and that Regal Act did not show any sign of pain or lameness until the morning of 24 August. Ms Evans denied that Regal Act was spending significant periods of time laying down and that he was not attending to his food and drink.
The cross-examination of prosecution counsel extended from the bottom of page 98 to the top of page 107 of the transcript. On its conclusion, the Magistrate embarked on an extensive examination of Ms Evans which it is necessary to set out in full. It commenced as follows:[9]
[9] T 107.
QI’ve got some questions, Ms Evans.
AYes.
QGoing back to mid-2017, what did you know about laminitis in horses.
ANot a lot. I had never had a case of it. Mind you, I’d never had a case of colic either and that’s another biggy in horse-owners’ minds. You know, one reads about it but –
QDid you know it was a serious or could develop into a serious condition in mid-2017.
AYes, I did but unfortunately – and this seems to be the case even among expert witnesses –
QWell I hope you’re not about to tell me about what experts say because you’re not entitled to.
ANo, I’m not, I’m actually telling you what expert don’t say. They don’t seem to agree on –
QI’m not going to hear you as to you telling me what other people may or may not have an opinion about.
ANo, you asked me what I understood.
QYes. I’m asking about your understanding back in June 2017 where, I take it, you hadn’t performed the research you’re referring to.
ANo but I had heard – I had heard inconsistent – inconsistent descriptions of laminitis. I had no idea, for example, that it could be caused by insulin in a horse’s body and –
QWhat about the seriousness of it, that’s what I’m interested. What did you know back in, say, June 2017, about how serious laminitis could be to a horse.
AI didn’t – I didn’t – I didn’t know, I didn’t know or know of any instances where I horse had need to be euthanised on account of laminitis. I had thought that, you know, horses who had had laminitis may not be much good to ride but I wasn’t aware that it had led to euthanasia in any instances, I must confess. I knew that colic had.
(Underlining added)
I interpolate here that it was inevitable that the first of the Magistrate’s questions which I have underlined would elicit hearsay evidence. Ms Evans had told the Magistrate that she had never had a horse with the condition, and so it was inevitable that she would relay second-hand information in answer to his question. Of course, a few questions later the Magistrate, quite properly, directed his questions to mid-2017, but there was no reason to be critical of Ms Evans for answering the first question by reference to what she had read or been told. In the absence of direct experience that was the only way in which she could answer the question. Moreover, the Magistrate was a little harsh to Ms Evans in the second of the underlined questions, when she was about to explain the context to her admission that she knew in mid-2017 that laminitis was serious by reference to the opinions of experts.
Another point must also be made. None of the questions so far asked appear to be directed at resolving any apparent ambiguity or inconsistency in Ms Evans’ earlier testimony. Moreover, the manifest purpose of the line of questions was to elicit evidence of Ms Evans’ appreciation of the seriousness of the condition, on which there was very little evidence either in the prosecution case or through the prosecutor’s cross‑examination of Ms Evans.
When the Magistrate resumed his questioning, it was directed towards a related element of the prosecution case, namely when it first occurred to Ms Evans that Regal Act might have contracted laminitis:
QBut your evidence was you suspected it was laminitis –
AYes.
Q– when you saw Regal Act on 24 August, lying down.
AWell –
QThat was your evidence, wasn’t it.
AWell I suspected laminitis when I saw him – you know, sort of moving in an odd kind of fashion. It wasn’t just – you know, I saw another horse lying down two weeks earlier, that horse had colic. So just lying down doesn’t mean a lot.
QI’m sorry, I’m just referring to your evidence, that you thought it was laminitis or suspected it was laminitis.
AYes, not just by dint of seeing him lying down.
QWhat else made you think, on 24 August – or suspect it was laminitis.
ABecause when I was out with him, he got up and he seemed to be having a bit of, you know, awkwardness.
QPutting weight on his front legs.
AYes, he was putting weight on his front legs but he didn’t seem to be doing so very – very rapidly. He didn’t seem to be comfortable. He seemed different from what he –
QAnd that made you think ‘This could be laminitis’.
AYes, it did, yes.
I pause here to observe that even though the Magistrate commenced that series of questions with a reference to Ms Evans’ earlier testimony, the questions did not ask for clarification of any ambiguity in that earlier evidence, or request further explanation of an earlier answer. The Magistrate resumed his questioning with a focus on Regal Act’s weight which, having regard to evidence of the vets, was an indication of the severity of Regal Act’s condition:
QHad he lost any weight at that point.
AI – the only other thing I had noticed was he had, a few days before that he seemed to have a bit of a nasal discharge but it didn’t seem to last very long and, you know, gone the next day.
QHad he lost any weight at that point.
AYeah, he was –
Q24 August, when you notice and suspect he might have laminitis.
AHe didn’t seem too bad at the time but unfortunately, during his last weeks of life, he lost weight dramatically.
QSo I take it, from that answer, he either hadn’t lost weight or hadn’t, to your perception, lost weight by 24 August.
AWell they fluctuate a bit but he hadn’t – he hadn’t lost – that wasn’t – when I spoke to Lucan, when I rang Lucas, I remember telling him that the horse had lost weight, that was on 11 September. So I had certainly noticed weight loss by then.
Having established when Ms Evans had become aware that Regal Act may have laminitis and the extent of his symptoms, the Magistrate moved to the reasonableness of the steps taken by Ms Evans to arrange treatment.[10]
[10] T 109-110.
QI think it was your evidence that when you first contacted the clinic or Roseworthy or the hospital, it’s been referred to variously –
AYes, I know, yeah.
Q– and they told you – I think you said you spoke to them on a Friday and they gave you this news that they weren’t inclined to treat any more of your animals until you sorted out your outstanding account. Do you recall your evidence was that you were thinking that you’d call back on the Monday and try and speak to somebody more senior.
AIt was actually on the Thursday I was told that. On the Friday, Dorian was discharged and I signed the agreement, which I hadn’t seen the day before when I was making my request by phone. And I saw the agreement on the Friday, it had nothing about any other conditions in relation to not treating any other animal. And I was happy to sign it and by that time it was quite late in the day. I didn’t mention Regal Act because I thought ‘Right, we’re paying an extra $1,000 as part of the arrangement, by Monday when they’re back in the office, I can speak to someone more senior’.
QYes, so you recall your evidence that that as your intention, you were thinking ‘Well we’ll get this arrangement in place for the earlier treatment for the other horse and I’ll speak to someone Monday about getting someone to come out and see Regal Act’, you recall that.
AI also – yes, I –
QNo, that’s all I’m asking for, Ms Evans. So you recall that –
ABut I also was planning on looking on the Saturday and Sunday.
(Underlining added)
There is no obvious reason for why the Magistrate underlined interruption of Ms Evans’ explanation. It is quite apparent from her answer ‘I also – yes, I’ that she had accepted the Magistrate’s proposition but wanted to explain the additional action she intended to take. Nonetheless, Ms Evans gave the evidence, despite the interruption, that she was planning to take other steps over the weekend. Cutting a witness’s answer short is common in cross-examination and is sometimes necessary and appropriate, but it should rarely be necessary if a judicial officer is asking questions for the purpose of giving a witness an opportunity to clarify his or her evidence. The Magistrate continued:[11]
[11] T 110.
QMs Evans, did you make that call [to Roseworthy] on the following week.
ANo because at the time –
QWhy not.
AI will –
QI’m just asking why not. If it was your intention and it seems perfectly reasonable that you’d sort out your financial arrangements, call back.
AWell I suppose there were two reasons. Well I hadn’t. I had expected the financial arrangements to have been sorted out by Monday but my husband was actually refused the credit that he had sought. And at that time I was still – I was still of the belief that Kim Sutherland was available. It wasn’t until the next day or so that I realised that he wasn’t contactable, he didn’t return –
QWhy not get on the phone as soon as you get the bad news about Mr Sutherland, ‘Well I’ve got to –’
AI didn’t actually get – I didn’t –
QIf I can finish the question.
AWell I didn’t get the –
QNo, no, Ms Evans, please.
AWell I didn’t –
QShow some courtesy to the court and let me finish asking you the question before you interrupt me and answer it. Surely, once you got the bad news about Mr Sutherland not being available or you realised he wasn’t going to return your calls, you would have been straight on the phone to the clinic.

I pause here to observe that in the above passage the Magistrate and Ms Evans in turn interrupted each other. They were attempting to ask and answer questions respectively at a pace which frustrated, rather than facilitated, an orderly narrative of Ms Evans’ attempts to procure a vet over the weekend and in the following weeks. The questioning continued:[12]
AYes, I was straight on the phone to another vet, having had our credit application rejected, I was –
QBut not the clinic.
ANo, I didn’t ring the clinic.
QWhy not the clinic. They were your vets, weren’t they. Your previous horse was treated by them, you’ve indicated through your evidence here that you had a mind to call them and sort of try and negotiate some sort of treatment for Regal Act and yet you don’t go back to your usual source of treatment for your horses.
[12] T 111.
I pause here to emphasise that there was no evidence that Roseworthy ‘were [Ms Evans’] vets’. True it is that she had taken Regal Act there in 2010 and 2014, and Dorian in August but that evidence did not make Roseworthy ‘her vets’. Ms Evans had given evidence that she had sought treatment from private vets, of her preferences as amongst private vets, her difficulties in engaging a private vet because of absence and for other reasons and that the recommendation of one or more of the private vets was that she take Regal Act to Roseworthy. In any event, the question prompted a protest from Ms Evans’ counsel for other reasons.
MR COATES:    Your Honour, I don’t accept, with respect, the premise of that question –
HIS HONOUR: You think I put it unfairly.
MR COATES:    – accurately reflecting what the evidence has been.
HIS HONOUR: I thought it was. What do you say the evidence was? I thought the witness very clearly said ‘Well I thought I’d try and speak to someone more senior and explain that ‘Well we’d sorted out this arrangement, can somebody please treat my other horse?’. I thought that was the –
MR COATES:    Yes but what’s missing from your Honour’s question was then the explanation that’s just been proffered with respect to not doing that because the finances were still not sorted out. So with respect, before that question could be asked, the question would have to be as to what, the fact that the finances hadn’t been sorted by that stage –
HIS HONOUR: I’m happy to ask it a different way.
MR COATES:    – had on her mindset in terms of bringing that –
HIS HONOUR: I’ll ask it a different way.
The protests of the kind made by Mr Coates are commonly made in objections to the cross-examination of counsel who then step around the objection by asking the question in a ‘different way’. The Magistrate completed the questioning on Ms Evans’ decision not to call Roseworthy before Ms Doudle visited on 6 September as follows:[13]
QDid you ever contact the clinic again, before the RSPCA turn up on 6 September, and say to them ‘Listen, my horse is really unwell, I know there’s this financial problem but I really need someone to take a look at him’. Did you ever say that.
ANo and the reason I didn’t was because I was wanting to find an alternative vet. The Roseworthy people, when I had tried to get the vet to call to come out in that phone call of the 24th, I didn’t like the way they dealt with me and I was – how can I put it – I was apprehensive, having not got the financial approval that I had been expected. So I thought ‘Maybe we’ll get it tomorrow, we’ve tried something else’. And also, I believed at that time – I was wrong – but I believed at that time that there may be another vet in the locality that could assist. That’s why I tried my friend, Radon, but he wasn’t available at that time. I wasn’t able to contact him until the l1th.
[13] T 111-112.
The Magistrate then turned to another aspect of the case against Ms Evans, her observations of Regal Act’s condition, and weight in particular, in the week before Ms Doudle and Dr Herbert’s attendances.
QHow often were you going and checking on Regal Act in the week leading up to the first attendance by the RSPCA on 6 September.
AHow often was I checking on him?
QHow often you were physically walking down to him and looking at him.
AWell horses need a lot of maintenance, they need to be fed twice a day and they need – they need various things, grooming, maybe they need their rug put on or taken off –
QMs Evans, it’s a simple question. How often were you going down in the week leading up to the RSPCA coming.
APer day, three, four, five times.
QSo you were going – let’s be conservative and say at least twice a day you were going down to the paddock that Regal Act was in and being in close proximity to him. Within, say the distance in no greater than the longest distance in this courtroom.
AYes.
QAnd you were doing that twice a day in the week leading up to 6 September.
AYes. Well Regal Act was quite a friendly pet kind of horse so he would come and, you know, rub around one.
QAt any time during that week did you make observations that he’d seemed to have lost a lot of weight.
AThe only observation that I made was that he had a bit of a nasal discharge but that soon cleared.
QIn the week leading up to the attendance of the RSPCA, the only thing you observed was nasal discharge.
ASorry.
QThe week leading up to 6 September.
ANo, the week leading up to 6 September was after I had called –
QI appreciate that. I’m asking you what you observed in that week, when you tell me that you’re down there looking at him upwards of two or three times a day.
AAll right, well – okay, I’ll try to explain it again. On the Saturday, after we’ve brought Dorian home and I hadn’t been able to contact Kim Sutherland, I went to the produce store and I got some hoof treatment –
QI’ve heard all that, Ms Evans. I’m asking you what I think is a very simple question about what you saw in the week leading up to the first attendance by the RSPCA when you were spending time in close proximity to Regal Act. What condition was he in. What was he doing.
AHe was – well I believe I have answered this question.
QWell I’m asking you.
AThat’s fine.
QIndulge me.
(Underlining added)
The questioning of the Magistrate on the subject of Regal Act’s weight continued:[14]
[14] T 113-116.
AThat’s fine, that’s fine. Following my application – my repeated applications of this hoof treatment stuff, goo, he appeared to be happier, more comfortable, enjoying his food, getting excited, feed time, walking around, helping himself to food and water. He seemed to be happier and more comfortable during that week. It was only at the end of that week – let’s say the fourth or whatever – that he had again resumed or had resumed lying down in the daytime. But during the several days prior to that, he was much more alert and I noticed that he wasn’t lying down except maybe at night to go to sleep.
QSo on 1, 2, 3 September, he was moving around, walking, is that correct.
AHe was but his symptoms began to show more discomfort over that weekend.
QDid you think to call the RSPCA.
ANo, I was – why would I?
QWell, you’ve got a horse that’s in pain isn’t it, is that true, in that week, leading up to 6 September.
AOnly towards the end of the weekend, and I called Elizabeth Herbert on –
QThe 6th.
ANo, on the 5th.
QWas that the only day you observed that Regal Act was in pain, that day.
AThat was a Monday I think, his condition became of concern towards the end of the weekend, which is why I called Elizabeth Herbert.
QWell, did you call Elizabeth Herbert the moment that his symptoms became of concern to you, obvious discomfort.
AYes.
QSo one day before the 6th, so 5 September; that’s when you observed sufficiently obvious symptoms.
ANo, no –
QTo make a call.
ANo, this is a gradual – by the end of the weekend his condition was becoming of concern. By Monday morning it was of concern, and I rang Elizabeth Herbert for that reason. Does that answer your question your Honour?
QI think it does. When was the last time you saw Regal Act on his feet before 6 September.
AWell, he was on his feet on 6 September.
QWhat about before then, before the vet had come and treated him.
AWell, yes, every – as I said, they need feeding at least twice a day, and he was very happy to have his food.
QOn the 5th he was feeding.
AYes, yes.
QOn the 4th he was feeding.
AYes.
QJust as normal.
AYeah, his appetite was not of concern of itself, even after Elizabeth had begun treating him. And he was, he was eating, he was eating well until the, until the 13th or 14th. Even then there was some fluctuation, because on the 14th of September he seemed more comfortable and happier.
Q.Alright, thank you.
The Magistrate’s examination concluded on page 116 of the transcript.
Mr Evans gave evidence which, in material respects, accorded with the testimony of Ms Evans.
The Magistrates reasons
The Magistrate subjected the video recording taken by Ms Doudle to careful examination:[15]
On reviewing the recording during my deliberations, I noted the audible intake of breath by Ms Doudle when she first approaches Regal Act at 9:08 minutes into the recording. I had not heard this when the recording was played in Court. There was no evidence elicited from Ms Doudle as to the cause of the intake of breath. Having said that, I could readily infer that Ms Doudle was reacting to the fact that Regal Act was obviously in a pitiable and shocking state. He was displaying strange behaviour by not standing up in the presence of a stranger, appeared in pain and had scabs and sores near his hooves. However as there was neither evidence about this reaction nor submissions on what, if any use I should make of it, I have ignored it during my deliberation.
(Underlining added)
[15] Reasons for Decision at [71].
It is not obvious why the Magistrate engaged at all in speculation about Ms Doudle’s reaction only to put that evidence to one side. Moreover, the very poor condition of Regal Act on 6 September was not in question but there was a very real risk in this case of an emotionally charged conclusion that condition (‘pitiable and shocking state’) could not have developed without culpable neglect on Ms Evans’ part. The Magistrate did claim inference which his Honour was not prepared to draw from the intake of breath, from ‘the urgency of Ms Doudle’s movements’ as seen in the video clip:[16]
I have however had regard, as instructive of the severity of Regal Act’s condition at the time P1 was recorded, the urgency of Ms Doudle’s movements. Ms Doudle’s examination of Regal Act was very brief. From the time Ms Doudle opens, then closes behind her the gate to Regal Act’s paddock, walks towards him, inspects him when she walks away from him takes less than 30seconds.
[16] Reasons for Decision at [72].
The Magistrate returned to the urgency of Ms Doudle’s movement in [75]. It is difficult to see why the Magistrate spent time on the inferences which might be drawn from Ms Doudle’s reactions. There are many reasons for drawing breaths or acting urgently, and even if they were related to Regal Act’s condition, they remained the subjective reactions of Ms Doudle about which she did not testify. It was hardly necessary to mention Ms Doudle’s reactions at all to factual finding about Regal Act’s ill health; Dr Herbert gave detailed evidence of Regal Act’s condition. If the Magistrate was concerned about the lack of evidence on how concerned a reasonable recreational horse owner would have been about Regal Act’s condition, speculating on Ms Doudle’s reaction was a poor make-weight.
In paragraph [73] the Magistrate speculated about the significance of a patch of bare earth before putting it aside because it would be ‘unsafe’ to draw any inference from it.
The Magistrate accepted the evidence of Dr Herbert and Dr Simon:[17]
Dr Herbert impressed me as a vastly experienced equine vet. I have no hesitation in finding beyond reasonable doubt that Regal Act would have been displaying obvious symptoms of a severe laminitis infection in both front feet in the weeks leading up to 6 September 2017. I also find to the same standard of proof that these symptoms would have been obvious to a lay person, and could not have been masked by a period of remission, followed by a rapid onset of a week or a few days. As Dr Herbert said and I accept beyond reasonable doubt, “this took a long time to get to where it is.”
…
I accept beyond reasonable doubt that Regal Act would have displayed obvious features of severe laminitis infection in the weeks leading up to 6 September 2017. I also reject the notion as a reasonable possibility that Regal Act’s infection went into remission before returning for the reasons given by Dr Simon.
[17] Reasons for Decision at [78], [80].
I interpolate here that Ms Evans had accepted that Regal Act was displaying signs of laminitis from 24 August. The question thereafter was whether she should have acted more urgently and effectively to procure a vet.
The Magistrate was particularly critical of Ms Evans’ demeanour in answering his Honour’s own questions:[18]
Again, regrettably for the defendant, her desire to have her own way did not stop with trying to demand that counsel be seen to listen to her or that counsel answer her. When I asked the defendant about her understanding of laminitis in mid-2017 she proceeded to attempt to give evidence about her view that experts on the disease did not agree on some issue. I tried to stop Mrs Evans giving opinion evidence, by telling her it was evidence she was not entitled to give. Undeterred Ms Evans tried nonetheless to give it. Plainly Mrs Evans did not like being told what to do and seemed overly sensitive to perceived slights or any sign of disrespect.
[18] Reasons for Decision at [97]-[98].
As we shall see the Magistrate ultimately reached the conclusion that obstinacy or stubborn pride of the kind he observed in response to his questioning, was the reason for Ms Evans not arranging a vet earlier. The Magistrate continued with the following further criticism of Ms Evans’ responses to his Honour’s questions:
I sort to understand Mrs Evans’ evidence concerning her intention to call the clinic on the Monday following her first call, to try to speak to someone more senior and come to an arrangement which would see the clinic treat Regal Act. While trying to ask this question Mrs Evans interrupted repeatedly. It was apparent that having stated her desire to renegotiate with someone more senior at the clinic to facilitate treatment, her failure to make any further call to the clinic may have reflected poorly on her. It was equally as clear to me that Mrs Evans was aware of this and was resisting my efforts to clarify whether in fact she had ever made the second call. She did not. In the same manner, she had dealt with most other areas in which she had been challenged, Mrs Evans responded with evasion and sometimes rudeness. I do however accept this part of Mrs Evans’ explanation as to why she made no follow up call to the clinic, “I didn’t like the way they had dealt with me…” I accept this aspect of Mrs Evans’ evidence as here she reveals the same acute sensitivity to her perceived treatment as she did in the witness box.
The last underlined sentence also likens Ms Evans’ reaction to his Honour’s questioning to her failure to ask Roseworthy to treat Regal Act.
The Magistrate concluded:[19]
As is no doubt apparent Mrs Evans made an exceeding poor impression as a witness. On almost every occasion when her version of events was challenged she responded in a combative, evasive or rude manner. As poor as Mrs Evans demeanour was and as indicative of dishonesty as I found it to be, it was not as decisive a factor in my rejection of her account as being reasonable possible as the fact that her evidence of certain topics was so at odds with all of the experts. The particular topics upon which Mrs Evans’ evidence was irreconcilable with the experts are;
1.The timing of the onset of obvious symptoms;
2.Regal Acts’ appetite and weight loss;
3.Regal Act “coming good” and then rapidly worsening of Regal Act.
The vets’ evidence was clear on these topics however Mrs Evans’ evidence was so at odds with their opinions that one could be forgiven for thinking she was talking about a completely different animal.
As I have previously noted none of the opinions or qualifications of the vets were challenged. Nor in my view were there opinions capable on the evidence I heard with effective challenge. All three vets personally examine Regal Act and independently came to the same conclusions as to diagnosis, treatment of the longevity or the infections and obvious symptoms. Counsel for Mrs Evans put to all three experts, what amounted to the defence case which was the Regal Act improved for a period and the rapidly worsened in the week leading up to 6 September 2017. I make no criticism of counsel for the defendant but the essence of the defence case was put in broad terms to the three vets. However even the broad range of the week leading up 6 September 2017 was universally and categorically rejected. When one compares the three vets’ responses to this idea of symptoms only be apparent to a layperson in the week leading up to 6 September 2017 to Mrs Evans evidence which in fact narrowed the time frame to a day or so before 5 September 2017, Mrs Evans’ evidence is exposed as preposterous. The possibility that Regal Act could have failed to display very obvious and alarming symptoms of laminitis in the weeks leading up to 6 September 2017 when there had been “extensive bone loss in his front feet is not reasonably possible. The suggestion that Regal Act could have not shown obvious and alarming symptom until a day or so before 5 September 2017 is patently ridiculous.
[19] Reasons for Decision at [100]-[102].
I observe again that Ms Evans accepted that Regal Act displayed symptoms from 24 August. The bone loss was evident only when x-rays were taken by Dr Simon. The loss of nerve tissue was noted by Dr Herbert after a veterinary examination. Lesions were visible on 6 September but that was almost two weeks after Ms Evans first tried to arrange a vet.
There are significant inconsistencies between Ms Evans’ evidence and some of the evidence of the vets as to the severity of Regal Act’s condition. However, labelling Ms Evans’ testimony as preposterous and ridiculous does not answer the critical questions, which were whether it had been proved that signs observed by Ms Evans would have prompted more urgent action by a reasonable horse owner, or that a reasonable horse owner would have more closely examined Regal Act’s hooves.
The Magistrate considered at length the evidence touching on when Ms Evans called Dr Herbert:[20]
I have considered whether I accept the defendant’s evidence as a reasonable possibility that she contacted Dr Herbert on the 5th of September 2017, as opposed to on the 6th, after she saw the notice left by Ms Doudle. Dr Herbert was unable to shed any light on this issue, saying that all she knew was that Mrs Evans had called her practice and that she attended on the 6th. Given that I formed the view that Mrs Evans was such a dishonest witness, I am reluctant to accept as a reasonable possibility any of her evidence where is it self‑serving. I consider it far more in keeping with the behaviour of the defendant, that she would have swallowed her pride and called Dr Herbert only when given no other choice by the notice left by Ms Doudle, rather than because of Regal Act’s condition.
I am also struck by the coincidence of the defendant calling the same vet as Ms Doudle within 24 hours. However, coincidences do occur, more often than we acknowledge and even were I to reject that the defendant called on the 5TH it is not disputed that she called Dr Herbert. Therefore, this coincidence is not a factor in my rejection of the defendant’s evidence on this point as a reasonable possibility. What is, is that her motivation to call Dr Herbert was said, by her, to be that by the first weekend of September (2-3 September 2017) “it was clear that he wasn’t going to get better on his own”. Thus, the call to Dr Herbert is predicated on the main pillar of Mrs Evans’s defence, that Regal Act’s condition deteriorated rapidly in the days leading up to her call to Dr Herbert. As I have previously found this cannot have been the case. Regal Act’s condition had been dire, shockingly and obviously so for weeks at least at this point. Therefore, I do not accept Mrs Evans called Dr Herbert on 5 September as being a reasonable possibility. I find that the call to Dr Herbert was prompted by the notice left by Ms Doudle requiring her to have a vet attend upon Regal Act.
Even if I were to accept that Mrs Evans did call Dr Herbert on the 5^th, I reject that the hoof deformity and sores would not have been, visible, obvious and alarming to a layperson many days if not weeks prior. Indeed, Mrs Evans accepted in her evidence that she suspected laminitis on 24 August 2017 and knew it was a serious condition. It is also remarkable that at no time in her evidence did Mrs Evans refer to the suppurating sores on Regal Acts front feet or his grossly elongated front hooves.
(Underlining added)
[20] Reasons for Decision at [106]-[108].

I make the following comment about the Magistrate’s reasons in the underlined parts of these paragraphs. First, the view that Ms Evans’ was proud or arrogant to a fault, (‘swallow[ing] her pride’) is sourced in the Magistrate’s assessment of Ms Evans’ demeanour in particular, when answering his Honour’s questions. However, it was not a prosecution theory which was put to Ms Evans. Secondly, Ms Doudle’s evidence was that she called Dr Herbert after speaking to Ms Evans and in order to confirm that Ms Evans had booked her attendance; there is no coincidence. Thirdly, a rejection of Ms Evans’ evidence about Regal Act’s deteriorating condition cannot found a positive finding that she only called Dr Herbert after the notice was left by Ms Doudle. Indeed, as I observed in [47] above, it is improbable that Ms Evans could have arranged Dr Herbert that quickly. To that may be added Ms Doudle’s own testimony that she could not find a vet to attend in the calls she made before leaving the notice. Fourthly, let it be accepted that the sores were visible days before 6 September (the reference to weeks is put in terms of a possibility only). Ms Evans gave evidence that she had been attempting to procure a vet for over a week before that.
The Magistrate dealt with the adequacy of Ms Evans’ efforts as follows:[21]
Moreover, there is the problem of how I regard these efforts even if I accept they were made. There is an illogicality in a Defence whereby it is argued simultaneously for Mrs Evans that Regal Act’s symptoms were not severe and alarming but also that urgent efforts were made to have him seen by a vet. In fairness to Mrs Evans she did not characterise her claimed efforts to have a vet attend as urgent. In a way, this is of itself an admission by conduct, given that while these efforts where supposedly being made, Regal Act was suffering excruciating pain, had grossly deformed front hooves and the infection was eating away at the bones in his front feet. Mrs Evans’ evidence on this topic lacked the ring of truth and I would find that I do not accept her version on this topic. However, when I come to consider the questions of whether the defendant failed to take reasonable steps to mitigate the harm and the statutory defence, I have for the sake of fairness assumed that the defendant did make these efforts. I do conclude though that her efforts were sporadic and lacked urgency.
[21] Reasons for Decision at [118].
The difficulty with the general finding that the efforts were sporadic and lacked urgency is that it does not address the statutory language of s 13 of the Act. The question was what more and reasonably should have been done. It is also not clear what the Magistrate meant in saying that he ‘assumed that Ms Evans’ made the efforts she described to procure a vet for the purposes of the ‘reasonable steps to mitigate harm’[22] element and the statutory defence after his Honour had rejected her testimony. If his Honour meant to say that he accepted the reasonable possibility that Ms Evans did so notwithstanding his Honour’s rejection of her evidence, then the question was what more a reasonable recreational horse owner should have done.
[22] Reasons for Decision at [118].
It is convenient here to make the following observation about the Magistrate’s reference to the statutory defence. The defence in s 13(5) of the Animal Welfare Act, the onus which falls on the defence, is not applicable to all of the ways in which an animal be ill‑treated. Some of those forms of ill‑treatment are defined in ways which import as an element of the offence, a lack of reasonable care. The elements with which Ms Evans was charged neglect and failure to mitigate injury are examples. Others like abandoning an animal do not import an element of unreasonable conduct. The defence in s 13(5) applies to those elements which do not in themselves, require proof of a lack of reasonable care.
The Magistrate’s conclusions were as follows:[23]
At the conclusion of the evidence, I was struck by the stark evidentiary position that Mrs Evans knew on 24 August 2017 that Regal Act needed veterinary treatment. She suspected he had laminitis which she knew was a serious condition. She called her preferred vets that same day and was referred to Dr Herbert. On the basis of the evidence given by all the vets, by 24 August 2017 Regal Act’s laminitis infection was well advanced and in need of urgent treatment, in the 11 days that followed Mrs Evans did not consider the situation dire enough to call Dr Herbert. She did not make concerted efforts to arrange for veterinary care despite Regal Act losing considerable weight, having grossly deformed front hooves, being at times unable to stand, having suppurating sores on his feet and being in obvious distress. As Dr Herbert said it took a long time to get to this and Mrs Evans who insisted she tended to Regal Act daily, only called a vet on 6 September when required to do so and never contact the RSPCA for assistance. While I have found that I do not accept that Mrs Evans called the day before as a reasonable possibility, even if she had, this would still have been so late that it would not make any difference to my overall findings. Whether on the 5^th or 6^th, the mark of how late this was, was that from the 6^th onwards, all the vets who examined Regal Act recommended euthanasia.
I find beyond reasonable doubt that in 2017 and until his death by euthanasia, Regal Act was owned by the defendant. I similarly find proven to the same standard that between 6 July and 6 September 2017 Regal Act suffered harm in the form of a chronic and severe laminitis infection in his front feet. During this time, I also find beyond reasonable doubt that the Defendant knew of the infection, suspected it to be laminitis, knew that to be a serious condition and knew of the urgent need to obtain veterinary treatment. Even if I were to accept her evidence of her attempts to obtain veterinary care and herself treat Regal Act, which I do not as a reasonable possibility, I find beyond reasonable doubt that they fell woefully short of what amounted to reasonable steps to mitigate the harm being suffered. I find to the same standard of proof that Mrs Evans voluntarily and consciously decided that more was not required of her. She was manifestly and fatally wrong.
(Underlining added)
[23] Reasons for Decision at [125]-[126].
I observe the first of the underlined sentences appears to be inconsistent with the ‘assumption’ made in paragraph [118] and again fails to identify what ought to have been done. The second underlined sentence suggests a deliberate refusal to do more and is perhaps another reference to Ms Evans’ pride. However, it was not an element of the charge, and to that extent is surplusage. So too the final sentence of the judgment.
The test for excessive intervention
In Lockwood v Police, [24] Vanstone J articulated three ways in which excessive judicial intervention may result in a miscarriage of justice:
However, there are dangers inherent in participating in the questioning of witnesses. First, there are matters of perception. The judicial officer might, by such questioning, identify himself or herself with one party or the other. That might lead to a defendant or a party apprehending a discrimination or even bias against his case. Then there is the fact of it. The eyes of the judicial officer might become ‘clouded with the dust of conflict’: as Lord Greene MR put it in Yuill v Yuill [1945] P 15 at 20; [1945] 1 All ER 183. Denning LJ observed in Jones v National Coal Board [1957] 2 QB 55 at 64: ‘an over-speaking judge is no well-tuned cymbal’. Then, the intervention may make it impossible for defence counsel to properly present the defence, or it might impede a witness in giving his account in such a way as to do himself justice. Therefore, it is as well for judicial officers to strive to ensure that by the tone and language of their interventions they maintain neutrality and that such interventions are no more than are necessary to achieve legitimate purposes.
[24] (2010) 107 SASR 237 at 241.
In R v T, WA[25] I reformulated those three risks as follows:
I would state the grounds on which a judge's intervention might vitiate a conviction a little differently, as follows:
(i)the questioning unfairly undermines the proper presentation of a party's case (the disruption ground);
(ii)the questioning gives an appearance of bias (the bias ground); and
(iii)the questioning is such an egregious departure from the role of a Judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).
I prefer to state the dust of conflict ground in terms of compromising the capacity of the Judge to adjudicate because an appeal court can never do anything more than speculate as to whether the judicial officer's vision was in fact “clouded by the dust of conflict”. If the appeal court, on an appeal by way of rehearing, concludes that a judge's findings were wrong in fact on the evidence, it may correct them without relying on the Judge's excessive judicial intervention. However, in those cases in which the facts, as found, were open to the trial Judge, particularly given the Judge's advantage in assessing the credibility of the witnesses, it is impossible for an appeal court to say whether or not the Judge's finding in fact proceeded from a clouded, or clear headed, evaluation of the evidence. Moreover, because this ground, in effect, alleges an error of law which will generally result in a retrial irrespective of the appeal court's view of the weight of the evidence, it is better based on an objective standard measured by an assessment of the degree to which the departure from a judge's traditional role compromises the judicial capacity to objectively evaluate the evidence.
[25] [2014] SASFC 3 at 38-39.
In Galea v Galea,[26] Kirby A-CJ later summarised the considerations bearing on the question of an apprehension of bias arising out of excessive judicial intervention as follows:
A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport.
Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and into the perils of self-persuasion: see Sir Robert Megarry, ‘Temptations of the Bench’ (1978) 16 Alta L Rev 406 at 409; see also U Gautier, ‘Judicial Discretion to Intervene in the Course of the Trial’ (1980) 23 Crim LQ 88 at 95-96 and cases there cited.
[26] (1990) 19 NSWLR 263 at 281.
In Galea, the appellant also impeached the judgment on the additional ground that by his intervention the Judge had ‘turned his back on his duties as a Judge, assumed instead those of the advocate and had descended from his neutral duties on the bench to the well of the courtroom, thereby depriving the appellant of a trial according to law’. That ground is the egregious departure which compromises the Judge’s capacity to objectively evaluate the evidence or dust of conflict ground.
The metaphor ‘clouded by the dust of conflict’ was coined by Lord Greene MR in Yuill v Yuill:[27]
… A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in this case, prolonged and covers practically the whole of the crucial matters which are in issue.
In Jones v National Coal Board,[28] Denning LJ said:
The judge's part … is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.’
[27] [1945] 1 All ER 183 at 189.
[28] [1957] 2 QB 55 at 64.
In Galea,[29] Kirby A-CJ identified the following considerations against which a complaint that there has been unwarranted departure from the common law adversarial trial process might be evaluated:
The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v The Queen (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F.
[29] Galea v Galea (1990) 19 NSWLR 263 at 281.
In Michel v The Queen,[30] the Privy Council considered the circumstances in which a departure from the adversarial process may result in a miscarriage of justice. Lord Brown explained that excessive judicial intervention might result in a miscarriage of justice because the basic right of the adversarial trial process is adjudication by an impartial judge who remains neutral during the presentation of evidence:
To that admirable analysis the Board would add that not merely is the accused in such a case deprived of ‘the opportunity of having his evidence considered by the jury in the way that he was entitled’. He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. All this is elementary and all of it, unsurprisingly, has been stated repeatedly down the years. The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials. All will be familiar with Denning LJ's celebrated judgment in Jones v National Coal Board [1957] 2 QB 55.
[30] [2010] 1 WLR 879 at 887.
Ultimately the Privy Council in Michel held that the intervention required the conviction to be quashed because it was an egregious departure from the role of a judge in a criminal trial, was calculated to influence the jurats (jury) and grounded a reasonable apprehension of bias. The Privy Council said:[31]
Naturally, in Jersey, where the facts are decided by the jurats (the Commissioner retiring with the jurats but not joining in the fact-finding unless the Jurats disagree), the facts are not summed up so that the Nelson approach is not available to the Commissioner. But that cannot begin to justify the Commissioner seeking to give the jurats the benefit of his analytical powers by way of his own extensive examination of the witnesses, or indicating his thinking by the nature of his questions and comments. Indeed, it does not entitle him to conduct the hearing in any way different from that ordinarily required of a judge at trial. Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
Regretfully the Commissioner's interventions during this trial breached each one of those canons. One can understand his incredulity during parts of the defendant's evidence. But quite why he thought it necessary to manifest it is altogether more difficult to follow. Not only was it improper, but he could scarcely have thought the jurats unable to perceive for themselves many of the defence's ‘implausibilities, inconsistencies and illogicalities’.
[31] Michel v The Queen [2010] 1 WLR 879 at 889.
Conclusion
The observations which I have made in connection with the Magistrate’s examination which satisfy me that the Magistrate’s extensive examination of Ms Evans compromised his capacity to impartially judge the matter, may be summarised as follows:
·the examination was extensive and indeed about as long as the cross‑examination;
·the examination was not, on its face, calculated to resolve ambiguities or clarify uncertainty but was formulated around the elements of the charge;
·the questions and comments of the Magistrate made during the examination exhibited a degree of sarcasm and manifested animadversion to Ms Evans.
The significant part played by that questioning in the Magistrate’s reasons is shown by:
·the degree to which the answers given to the Magistrate’s questions featured in his Honour’s reasons for rejecting Ms Evans’ testimony;
·the Magistrate’s references to Ms Evans’ excessive pride.
·the use of the rejection of Ms Evans’ evidence as a makeweight on an important issue of fact.

The significant issues in this case on which the prosecution carried the burden of proof were:
·what knowledge of the symptoms and disease progression of laminitis can reasonably be expected of a recreational horse owner?
·when should a reasonable recreational horse owner have suspected that Regal Act had contracted laminitis?
·when did the external sores and scabs become apparent?
·should a reasonable recreational horse owner have examined Regal Act’s hooves before the sores and scabs had become apparent?
·when should a reasonable recreational horse owner have contacted a vet about Regal Act’s condition?
·did Ms Evans inform the vets she contacted that she suspected that Regal Act had laminitis?
·would a reasonable horse owner have informed those vets that Regal Act had laminitis?
·if so informed, would any of the vets contacted by Ms Evans have made arrangements to attend on Regal Act more urgently?
The evidence called by the prosecutor directly relevant to those questions was sparse. The Magistrate’s reference to it did not descend to the particular. The prosecution case and the underlying reasoning of the Magistrate was that Regal Act’s condition could not have deteriorated to the point described by Dr Herbert on her visit on 6 September without a period of prior neglect on Ms Evans’ part. There is no room for the presumption, available in civil negligence actions, that the injury or incident speaks for itself, in criminal prosecutions.
The emotional reaction to Regal Act’s condition and the adverse reaction to Ms Evan’s testimony is understandable. However, for that very reason, a careful objective appraisal of the evidence was necessary. I am satisfied that Ms Evans lost the opportunity of an acquittal because the Magistrate compromised his capacity to undertake that exercise impartially and objectively because of the nature and length of his examination of her.
I allow the appeal. I set aside the conviction. I remit the case for a fresh hearing of the Information.