Fuller v RSPCA

Case [2021] QDC 94

DISTRICT COURT OF QUEENSLAND

CITATION:

Fuller v RSPCA [2021] QDC 94

PARTIES:

JOHN PATRICK FULLER

(appellant)

v

RSPCA (STEFFI SCHUBERT)

(respondent)
FILE NO:

BD2350/20

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrate Court at Brisbane

DELIVERED ON:

4 June 2021

DELIVERED AT:

Cairns

HEARING DATE:

10, 12 and 27 May 2021

JUDGE:

Smith DCJA

ORDER:

1.   I allow the appeal only to the extent that the prohibition order is to remain in force until 7 March 2022 (instead of 7 March 2024) on the same terms and conditions as ordered in the Magistrates Court.

2.   The appeal is otherwise dismissed and the other orders made in the Magistrates Court are confirmed.

3.   I will hear the parties on the question of costs.

CATCHWORDS:

ANIMALS – PREVENTION OF CRUELTY TO ANIMALS – OFFENCES – GENERALLY – FAILING TO COMPLY WITH AN ANIMAL WELFARE DIRECTION – FAILING TO PROVIDE APPROPRIATE TREATMENT FOR AN ANIMAL – whether recorded conversation should have been admitted into evidence – whether there was a failure to comply with the direction – whether direction was a valid one

ANIMALS- PREVENTION OF CRUELTY TO ANIMALS SENTENCE – whether fine of $5,000 was manifestly excessive- whether costs could be referred to SPER- whether length of prohibition order was excessive

EVIDENCE- PROOF- Whether onus on the prosecution to exclude whether the appellant had a reasonable excuse or whether it was for the appellant to prove he did have a reasonable excuse

LEGISLATION:

Animal Care and Protection Act 2001 (Qld) ss 3, 4, 17, 138, 140, 159, 160, 161, 163, 165, 178, 183, 185
Justices Act 1886 (Qld) ss 76, 157, 160, 161A, 222, 223, 225
Police Powers and Responsibilities Act 2000 (Qld) s 398
State Penalties Enforcement Act1999 (Qld) s 34

CASES:

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, applied
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 144, applied
Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63, considered
DPP (NSW) v Bolton [2007] NSWSC 1030; (2007) 178 A Crim R 460, considered
Forrest v Commissioner of Police [2017] QCA 132, applied

Hammond v Lavender (1976) 50 ALJR 728; 11 ALR 371 cited

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248; 110 ALR 47; ATPR 41-185, applied
Parsons v Raby [2007] QCA 98, cited
R v Osborne (2014) 69 MVR 45; [2014] QCA 291, cited
R v Plath [2003] QCA 567, cited
Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129, applied
Stevenson v Yasso [2006] QCA 40; [2006] 2 Qd R 150; 163 A Crim R 1 , discussed
Taikato v R [1996] HCA 28; (1996) 186 CLR 454, considered
Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, applied

COUNSEL:

Mr J Lewis for the appellant

Mr N Boyd for the respondent

Continue reading Fuller v RSPCA

Sign in free to access the full text

Details
AGLC
Fuller v RSPCA [2021] QDC 94
Case
[2021] QDC 94
Decision Date

CaseChat Overview and Summary

Fuller v RSPCA is a case before the court concerning allegations of animal cruelty. The appellant, Fuller, was charged with failing to comply with an animal welfare direction and breaching the duty of care towards a horse. The respondent, RSPCA, sought to uphold the charges against Fuller. The court was tasked with determining whether the recorded conversation should have been admitted into evidence, whether there was a failure to comply with the animal welfare direction, and whether the direction was valid. The court also considered whether the fine of $5,000 was manifestly excessive, whether costs could be referred to SPER, and whether the length of the prohibition order was excessive.

The court examined the evidence presented, including the recorded conversation between Fuller and Inspector Schubert. It found that Fuller had a reasonable excuse for not complying with the animal welfare direction, as he had taken steps to arrange for the horse to be seen by an expert. However, the court was satisfied beyond reasonable doubt that there was non-compliance with the direction, and Fuller was found guilty of that offence. Fuller also breached the duty of care to the horse by not taking reasonable steps to provide for its needs. The court found Fuller guilty of both charges.

The court concluded that the alleged failure to caution Fuller was not a significant issue, as Fuller had agreed to the recording being played during the trial. The court also found that the animal welfare direction was valid, as it was clear and complied with the relevant legislation. The court allowed the appeal only to the extent that the prohibition order is to remain in force until 7 March 2022 (instead of 7 March 2024) on the same terms and conditions as ordered in the Magistrates Court. The appeal was otherwise dismissed, and the other orders made in the Magistrates Court were confirmed. The court will hear the parties on the question of costs.

Orders

Orders of the court

1. I allow the appeal only to the extent that the prohibition order is to remain in force until 7 March 2022 (instead of 7 March 2024) on the same terms and conditions as ordered in the Magistrates Court.

2. The appeal is otherwise dismissed and the other orders made in the Magistrates Court are confirmed.

3. I will hear the parties on the question of costs.

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

With respect to the second charge he believed that he had a reasonable excuse for failing to comply with the AWD. Magistrate’s decision The magistrate referred to the terms of each charge and noted the prosecution case. He correctly directed himself that the appellant was presumed not guilty of the charges and the onus was on the prosecution. He referred to the evidence given in the case. On the evidence, he was satisfied beyond reasonable doubt of the elements of each of the charges. He was satisfied the appellant knew of the Dr Law’s recommendation and knew it would be costly. He was satisfied that there was non-compliance with the AWD; there was no reasonable excuse for this. He found the appellant guilty of that offence. He found the prosecution had excluded beyond reasonable doubt any reasonable excuse for not complying with the direction. As to Charge 2, he was satisfied the appellant breached the duty of care to the horse by not taking reasonable steps to provide for Trumby’s needs. In all of the circumstances he found him guilty of that charge.Appellant’s submissions The appellant submits that at no stage did Inspector Schubert caution him and he was compelled to answer her questions. In those circumstances the evidence of the conversation ought not to be admitted. The appellant then argues that even though an AWD was issued the appellant had a reasonable excuse with respect to failing to comply with the AWD. He submitted that arranging for the horse to be seen by Ms Law and sending a photo of the horse to Dr Doyle and making an appointment with the horse dentist was all reasonable. At very short notice the expert Neville had to cancel the appointment because of a family death. In those circumstances the prosecution had not negatived the issue of reasonable excuse. The appellant further argues that the direction given in the AWD does not comply with the ACPA and is ambiguous and therefore the notice is invalid. Respondent’s submissions The respondent submits that there was no requirement of the appellant to be cautioned. Further, the appellant withdrew his objection to the tendering of the interview at the commencement of the trial. It is further submitted that in any event even if the interview was excluded this would not have affected the outcome of the trial. With respect to the issue of reasonable excuse, it was submitted that the onus was on the appellant but regardless the Magistrate applied a reasonable doubt standard to the prosecution. Also, the appellant elected not to give evidence at the trial and there was no evidence of the matters raised by the appellant. As to the alleged invalidity of the AWD the respondent submits that the notice was clear and also the point was never taken previously. DiscussionFailure to caution It is my assessment that the issue of the alleged failure to caution the appellant was raised prior to the commencement of the trial. The relevance of the recording was to establish the appellant’s knowledge of the injury to the animal as at 8 December 2017- the start date of the offence. In my view, the appellant agreed it could be played during the trial. In those circumstances I find he withdrew his objection to it.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.