Flaherty v Petersen - [2018] QDC 21

DISTRICT COURT OF QUEENSLAND

CITATION:

Flaherty v Petersen [2018] QDC 21

PARTIES:

Penny Flaherty (RSPCA Inspector – complainant)

(Appellant)

V

Derek Christian Petersen (Defendant)

(Respondent)

FILE NO/S:

10/17

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Registry, Hervey Bay

DELIVERED ON:

2 March 2018

DELIVERED AT:

Maroochydore District court

HEARING DATE:

9 February 2018

JUDGE:

Robertson DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

APPEAL AGAINST ACQUITTAL: where respondent charged with three counts of breaching a duty of care to an animal; where he was not legally represented; where appellant lead evidence of an interview conducted by her as an Inspector under the Act without warning the respondent; where the relevant provisions of the Act were not brought to the attention of his Honour; where on appeal it is contended that his Honour did not provide proper reasons for accepting the evidence of the respondent; where basis for that submission is detailed comparison between his evidence in the trial and the interview; whether on a re-hearing of all the evidence the appellant could prove beyond reasonable doubt that the treatment of the animal was not “appropriate”

Legislation

Animal Care and Protection Act 2001 ss 12, 17, 121, 165, 166, 175

Justices Act 1886 ss 222, 223

Cases

White v Commissioner of Police [2014] QCA 121

Teelow v Commissioner of Police [2009] QCA 84

Buswell v Francis [2010] QEC 537

Fox v Percy (2003) 214 CLR 118

Jolleyv Queensland Police [2018] QDC 12

COUNSEL:

SJ Keim SC for the appellant

SOLICITORS:

RSPCA Legal for the appellant

Self-represented litigant for the respondent (D Petersen)

On 13 March 2017 the respondent Mr Petersen went to trial before his Honour Magistrate Gutteridge in the Hervey Bay Magistrates Court charged with three breaches of the Animal Care and Protection Act 2001 (the Act).

At the trial the respondent represented himself and the appellant was represented by Ms Terrell of Carswell and Co. Solicitors, who acted as prosecutor. His Honour heard evidence on behalf of the appellant and the respondent gave evidence in his own defence. Upon conclusion of the evidence, and after hearing submissions on the same day his Honour dismissed the three complaints against the respondent and gave ex tempore reasons for so doing.

The RSPCA in the name of the appellant appeals against those orders of dismissal.

It is common ground that, pursuant to s 223 of the Justices Act 1886, an appeal under s 222 is by way of re-hearing on the original evidence given in the proceedings before the trial magistrate, and new evidence adduced on appeal in special circumstances with leave. Neither party has sought to adduce new evidence. The appeal is a re-hearing in the sense that it is a review of the record of the proceedings below rather than a completely fresh hearing. The Court is required to make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.[1]
[1]White v Commissioner of…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] QDC 21
Decision Date: 2 March 2018

CaseChat Overview and Summary

The case of Flaherty v Petersen was heard in the Queensland Magistrates Court. The respondent was charged with three counts of breaching a duty of care to an animal, specifically failing to provide appropriate care and failing to take all reasonable steps to prevent or minimise suffering of an animal under the Animal Care and Protection Act 2001. The respondent was not legally represented and was interviewed by the appellant, an Inspector, without a warning in accordance with the Act. The appellant led evidence from this interview without bringing the relevant provisions of the Act to the attention of his Honour. The appellant appealed against the acquittal, contending that his Honour did not provide proper reasons for accepting the evidence of the respondent.

The primary legal issue in this appeal was whether his Honour provided proper reasons for accepting the evidence of the respondent. The appellant submitted that a detailed comparison between the respondent’s evidence in the trial and the interview showed that the evidence was not accepted on its merits. The appellant argued that a re-hearing of all the evidence would allow them to prove beyond reasonable doubt that the treatment of the animal was not “appropriate”. The court considered the relevant statutory provisions, including those of the Animal Care and Protection Act 2001 and the Justices Act 1886, as well as relevant case law such as White v Commissioner of Police, Teelow v Commissioner of Police, Buswell v Francis, Fox v Percy, and Jolley v Queensland Police.

The court found that the reasons provided by his Honour for accepting the evidence of the respondent were sufficient and that there was no error in the acceptance of the evidence. The court noted that the statutory provisions and case law supported the magistrate's decision and that the appellant had not demonstrated any error in the proceedings that would warrant a re-hearing of the evidence. Consequently, the appeal was dismissed. The court did not find it necessary to make any further orders.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Flaherty v Petersen [2018] QDC 21
PARTIES:	Penny Flaherty (RSPCA Inspector – complainant) (Appellant) V Derek Christian Petersen (Defendant) (Respondent)
FILE NO/S:	10/17
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Registry, Hervey Bay
DELIVERED ON:	2 March 2018
DELIVERED AT:	Maroochydore District court
HEARING DATE:	9 February 2018
JUDGE:	Robertson DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	APPEAL AGAINST ACQUITTAL: where respondent charged with three counts of breaching a duty of care to an animal; where he was not legally represented; where appellant lead evidence of an interview conducted by her as an Inspector under the Act without warning the respondent; where the relevant provisions of the Act were not brought to the attention of his Honour; where on appeal it is contended that his Honour did not provide proper reasons for accepting the evidence of the respondent; where basis for that submission is detailed comparison between his evidence in the trial and the interview; whether on a re-hearing of all the evidence the appellant could prove beyond reasonable doubt that the treatment of the animal was not “appropriate” Legislation *Animal Care and Protection Act* 2001 ss 12, 17, 121, 165, 166, 175 *Justices Act* 1886 ss 222, 223 Cases White v Commissioner of Police [2014] QCA 121 Teelow v Commissioner of Police [2009] QCA 84 *Buswell v Francis* [2010] QEC 537 *Fox v Percy* (2003) 214 CLR 118 Jolleyv Queensland Police [2018] QDC 12
COUNSEL:	SJ Keim SC for the appellant
SOLICITORS:	RSPCA Legal for the appellant Self-represented litigant for the respondent (D Petersen)