Gary Steven Taylor and Harold Ernest Taylor v RSPCA (SA) Inc Nos. SCGRG 95/2227 and SCGRG 95/2391 Judgment No. 5714 Number of Pages 15 Magistrates Appeals from and Control over Magistrates

[1996] SASC 5714

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA NYLAND J

CWDS
Magistrates - appeals from and control over magistrates - South Australia - appeal to Supreme Court - time for appeal and extension of - appeal from magistrate's decision - appeal as to conviction and sentence imposed under s13 of Prevention of Cruelty to Animals Act 1985 - discussion as to when time for appeal commences - magistrate relied on evidence of prosecution witnesses to find charges proved - credibility - ample evidence to justify findings of Magistrate appeal dismissed. Prevention of Cruelty to Animals Act 1985 ss3, 13(1), 13(2), 36; Magistrates Court Act 1991ss3(1), 42(1), 42(5); Supreme Court Rules 1987 rr 96c.01, 96c.02; Justices Act 1921 ss163-179; Summary Procedure Act 1921ss69, 69a, 70, referred to. Softwood Holdings v Cunningham and Stevenson Judgment No.4061, 22 July 1993 per Perry J; Morgan v Masters 25 SASR 128; DeVries and Anor v Australian National Railways Commission and Anor (1992) 112 ALR 641; RSPCA (SA) v Evitts (1993) 169 LSJS 108, applied. Talbot v Bevan
(1961) SASR 47; McNair v McEvoy (1966) SASR 342; Schiller v Fingleton (1979) 21 SASR 229; Peters v Lawson (1980) 23 SASR 418, discussed.

HRNG ADELAIDE, 16 November 1995 and 16 January 1996 #DATE 25:7:1996 #ADD 29:10:1996
Counsel for appellants:     Mr F Difazio
Solicitors for appellants:    C B McDonough and Co
Counsel for respondent:     Mr B J Tremaine
Solicitors for respondent:    Murray and Cudmore

ORDER
Appeals dismissed.

JUDGE1 NYLAND J The appellants Harold Ernest Taylor and Gary Steven Taylor are father and son. They were jointly charged on a complaint that between about 1 December 1992 and 13 January 1993 at Paradise in South Australia, they:
    "1. Did illtreat animals, namely 6 kittens, in that being
    the owners of such animals they failed to provide them with
    appropriate and adequate food.
    Section 13(1) of the Prevention of Cruelty to Animals Act 1985.

2. Did illtreat 10 animals, namely a Keeshund (sic) pup, a
    Chihuahua pup, a Miniture (sic) Pincher (sic) pup, a Terrier
    cross pup, a grey kitten, a tabby kitten and 4 white kittens, in
    that being the owners of such animals they failed to take
    reasonable steps to alleviate any pain suffered by reason of
    age, illness or injury.
    Section 13(1) of the Prevention of Cruelty to Animals Act 1985.

3. Did illtreat 10 animals, namely a Keeshund (sic) pup, a
    Chihuahua pup, a Miniture (sic) Pincher (sic) pup, a Terrier
    cross pup, a grey kitten, a tabby kitten and 4 white kittens, in
    that being the owners of such animals they neglected them so as
    to cause them pain, suffering or distress.
    Section 13(1) of the Prevention of Cruelty to Animals Act 1985."
2. The appellant Harold Taylor originally pleaded guilty to the charges but was permitted on 14 September 1994 to change his plea. The trial of both appellants was heard by a magistrate sitting as a court of summary jurisdiction at Holden Hill in the State of South Australia.
3. On 25 August 1995, the learned magistrate delivered reasons for judgment in which he found Gary Taylor guilty of all three offences and Harold Taylor guilty of Counts 1 and 3 but not of Count 2. On that date he recorded convictions against each of the appellants and in each case imposed one penalty. Gary Taylor was ordered to pay a total sum of $1,853 within 12 months. Harold Taylor was ordered to pay a total sum of $943 within 12 months. The question of an application for an order pursuant to s36 of the Prevention of Cruelty to Animals Act 1985 ("the Act") was adjourned to 22 September 1995.
4. Section 36 is contained in Part 6 of the Act and gives power to the court upon conviction to deprive a person of an animal and provides (inter alia):
    "(1) Where the owner of an animal is convicted of an
    offence against this Act in respect of the animal, the court may
    make an order -
    (a) directing that the person surrender the animal to an
    inspector; and
    (b) forbidding the person to acquire, or have custody of, any
    other animal or any other animal of a specified class, either
    until further order, or for the period specified in the order.

..."
5. It would appear therefore that this section gives a discretionary power to the magistrate to impose a penalty additional to that provided for the specific offence.
6. In this case, on 22 September 1995 the learned magistrate made an order forbidding each of the defendants from acquiring or having custody of any animals for a period of 12 months.
7. On 13 October 1995, Gary Taylor lodged an appeal against the conviction and sentence. The grounds of that appeal are as follows:
    "Count 1
    1. The learned magistrate erred in finding that the kittens
    were underweight because they had not been adequately or
    appropriately fed.

2. The learned magistrate was in error by not making a finding
    as to when the kittens had been last fed.

3. The learned magistrate was in error in finding that the
    kittens were not recovering from feline enteritis.

4. The finding that the kittens were not recovering from feline
    enteritis was against the evidence and against the weight of the
    evidence.

5. The learned magistrate erred in finding that twice a day
    feeding of kittens was not enough.

6. The learned magistrate erred in not making a finding that
    the kittens were still suckling.

7. The learned magistrate erred in placing excessive weight on
    the evidence that the kittens ate ravenously at 8 o'clock at
    night.

Counts 2 and 3
    1. The learned magistrate erred in making a finding that
    the 3 kittens (Cage A) were born on the premises.

2. The finding that the 3 kittens (Cage A) contracted ringworm
    by reason of the defendant's failure to take adequate steps to
    sterilise the cage in which they were kept was against the
    evidence.

3. The learned magistrate erred in making a finding that the
    kittens contracted ringworm by reason of the defendant's
    neglect.     4. The learned magistrate erred in making a finding that the
    ringworm contracted by the kittens was causing the animals pain
    suffering or distress.

5. The finding that ringworm causes pain suffering and distress
    was against the evidence and against the weight of the evidence.

6. The learned magistrate's finding that the Keeshond pup was
    suffering pain suffering and distress as a result of ringworm
    and sarcoptic mange was against the evidence and against the
    weight of the evidence.

7. The learned magistrate erred in that he failed to make a
    finding that the ringworm on the tabby kitten (Cage C) was
    causing pain suffering or distress.

8. The finding that the white kitten (Cage C) suffered pain
    suffering and distress by reason of sunburn was against the
    evidence and against the weight of the evidence.

9. The learned magistrate erred in failing to make a specific
    finding that the ringworm caused by neglect of the grey kitten
    (Cage D) resulted from the neglect of the defendant.

10. The learned magistrate erred in making a finding that the
    ringworm on the two dogs (Cage E) was contracted as a result of
    the defendant's neglect.

11. The finding that ringworm on dogs causes pain suffering and
    distress was against the evidence and against the weight of the
    evidence.

12. The learned magistrate erred in making a finding that the
    defendant failed to take reasonable steps to alleviate the pain
    suffering or distress of the Terrier Cross (Area F) in that such
    a finding was against the evidence and against the weight of the
    evidence.

13. The learned magistrate erred in finding that an itchy
    sensation amounts to suffering.

14. The finding that the animals were not being treated for
    ringworm was against the evidence and against the weight of the
    evidence."
8. On 13 November 1995, Harold Taylor lodged his appeal against conviction and sentence in terms which were virtually identical to those in the appeal filed by Gary Taylor.
9. Before dealing with the substantive matters it is necessary to consider the issue of an extension of time within which to appeal. The appellants were charged with offences pursuant to s13(1) of the Act. Section 41 of the Act provides that offences constituted by the Act are summary offences. Accordingly, they come within the jurisdiction of a magistrate and the provisions relating to appeals therefrom are governed by s42 of the Magistrates Court Act 1991. Rule 96c.02 of the Supreme Court Rules 1987, deals with appeals from the Magistrates Court, pursuant to s42 of that Act and provides that an appeal shall be instituted within 14 days of the making of the judgment.
10. In this case, the convictions were recorded and sentences imposed on each of the appellants on 25 August 1995, but the magistrate did not make the s36 order until 22 September 1995.
11. Mr Tremaine, who appeared for the respondent on the hearing of the appeal, did not strenuously object to the granting of an extension of time, but asked that there be some clarification as to the date on which the appeal could be instituted, although as is obvious, whatever should be the relevant date, the appellants would be out of time. If, however, the appropriate date is 22 September 1995, the time would be reduced by about one month.
12. Prior to the Magistrates Court Act 1991 appeals against criminal judgments for summary offences were governed by the provisions of ss163 to 179 of the Justices Act 1921. In Talbot v Bevan (1961) SASR 47, Chamberlain J held at 49 that "the right of appeal under s163 is from the conviction in the sense of the whole judgment ...", the "whole judgment" including the penalty.
13. In McNair v McEvoy (1966) SASR 342, Chamberlain J again considered this matter and held at 345 that:
    "... the right of appeal under s163 does not arise until the
    Court of summary jurisdiction has made its final adjudication or
    order, and in the case of a conviction, this means until it has
    finally dealt with the questions which are consequent on the
    conviction."
14. In Schiller v Fingleton (1979) 21 SASR 229, Walters J took a similar approach and said at 231:
    "I cannot think that a mere finding of guilt without any order
    as to penalty can be said to amount to a conviction, in the
    sense of a judgment of the court which concludes the proceedings
    and finally determines the rights of the parties."
15. In Peters v Lawson (1980) 23 SASR 418, the Full Court reviewed these authorities. In that case, at the conclusion of the evidence, the special magistrate found the case against the defendant proved and indicated that he intended to record a conviction but the hearing was thereafter adjourned. The defendant then lodged an appeal. The court followed Talbot v Bevan, McNair v McEvoy and Schiller v Fingleton (supra), and held that the appeal was incompetent as there had not been a conviction recorded within the meaning of s163 of the Justices Act 1921-1972. In the course of his reasons, however, King CJ said at 420:
    "In the cases in this Court referred to above, however,
    Chamberlain J and Walters J were construing a particular section
    of the Justices Act conferring a right of appeal and were
    assigning a meaning to the word 'conviction' in that particular
    context. I do not know whether, if the matter were tabula rasa,
    I would arrive at the same conclusion. It is a conclusion,
    however, which has prevailed and been acted upon since at least
    1966 and probably 1961. It is a tenable view of the law which
    has been adopted and acted upon for many years. I do not think
    that we should depart from it at this stage." He went on to say, however:
    "I take the opportunity of drawing attention to difficulties
    which arise from this state of the law. It is generally
    desirable, in my view, that sentence should be passed before an
    appeal is instituted. This Court can then deal with any
    complaint about the penalty as well as the conviction in one
    hearing. There are circumstances, however, in which the
    magistrate and the parties may desire, quite reasonably, to have
    the correctness of the conviction tested before the penalty is
    imposed. There may be other cases in which the imposition of
    the penalty might be considerably delayed, perhaps to obtain
    pre-sentence reports or for other reasons, and the defendant
    might, with every justification, wish to challenge the
    conviction without delay." His Honour then went on to discuss particular difficulties which could arise with the activation of a suspended sentence by the recording of a conviction.
16. Each of these cases, however, was concerned with an appeal pursuant to the now repealed provisions of s163 of the Justices Act 1921 which was in the following terms:
    "Any person aggrieved by any conviction, order, or
    adjudication of a Court of Summary Jurisdiction (including a
    conviction of a minor indictable offence, or an order dismissing
    a complaint of a simple offence) may appeal to the Supreme Court
    from such conviction, order, or adjudication, as hereinafter
    provided, in every case, unless some Special Act expressly
    declares that such conviction, order or adjudication shall be
    final, or otherwise expressly prohibits any appeal against the
    same ..."
17. Section 42(1) of the Magistrates Court Act 1991 which now governs the right of appeal is in substantially different terms. That section provides:
    "A party to a criminal action may, subject to this section and
    in accordance with the rules of the appellate court, appeal
    against any judgment given in the action (including a judgment
    dismissing a charge of a summary or minor indictable offence but
    not any judgment arising from a preliminary examination)."
    (emphasis added)
18. I am therefore of the view that the earlier decisions are of little assistance in resolving the issue in the present case. The charges in this case are governed by the Summary Procedure Act 1921. That Act clearly contemplates the entry of a conviction in some circumstances at a different time to the imposition of penalty. (See, for example, ss69, 69(a), 70 and following.)
19. Similarly, s42(5) of the Magistrates Court Act 1991 contemplates more than one order being made in proceedings. It provides on appeal that the appellate court -
    "(a) ... may confirm, vary or quash the judgment subject to the
    appeal and, if the Court thinks the interests of justice so
    require, it may vary or quash any other judgment given in the
    same or related proceedings; ..." (emphasis added)
20. "Judgment" is defined in s3(1) of the Magistrates Court Act 1991 as "a judgment, order or decision and includes an interlocutory judgment". It would seem, therefore, that an appeal can be separately lodged against the entry of a conviction or imposition of a penalty because each can be considered to be an order or decision. Section 42(1a) of the Magistrates Court Act 1991 provides that no appeal lies against an interlocutory judgment given in summary proceedings.
21. There is no definition in the act of "interlocutory judgment" but I do not think that the recording of the conviction could be considered an interlocutory judgment. "Judgment" is defined in Rule 96c.01 of the Supreme Court Rules in the same way as "judgment" is defined in s3(1) of the Magistrates Court Act itself. This would appear to support the view that the appeal process contemplates, in certain circumstances, more than one appeal. I am therefore of the opinion that the time within which the appeal from the recording of a conviction or penalty in the Magistrates Court will commence from the date of the appropriate order.
22. I do not think that this view is inconsistent with the decision of Perry J in Softwood Holdings v Cunningham and Stevenson (Judgment S4061, unreported decision delivered on 22 July 1993). In that case, the applicant had sought judicial review of the refusal by a magistrate to accede to a submission of no case to answer. Perry J held, in my respectful view correctly, that the expression "judgment, order or decision" where it appeared in s3(1) of the Magistrates Court Act "should not be interpreted to enable the fragmentation of the hearing of criminal or summary charges which are proceeding in a summary fashion, if on a proper construction of the provisions, that result can be avoided." Unlike the facts of that case, however, this matter is concerned with a final order which records a conviction and a final order with respect to penalty. In my view, where conviction and penalty are imposed simultaneously, the right or appeal must be exercised within 14 days of that date.
23. Where the conviction and penalty are imposed at different times, the time for appeal will be within 14 days after the respective order or decision. In this case, therefore, the appellants had 14 days from 25 August 1995 to lodge an appeal against the conviction and sentence imposed on that date and a further 14 days from 22 September 1995 to appeal against the order made pursuant to s36 of the Act.
24. It is obvious, therefore, that in each case the appellants are substantially out of time. The affidavit filed in support of the application for extension of time, however, indicated that the late filing of the notices was primarily due to a delay in obtaining legal assistance for the appeals. I have therefore decided that it is appropriate to extend time within which to appeal.
25. In the course of the hearing, an application was made to add further grounds of appeal which are in the following terms:
    "Counts 1, 2 and 3
    1. The Special Magistrate erred in finding that Harold
    Taylor was the owner, as defined in Section 3 of the Prevention
    of Cruelty to Animals Act, of the animals referred to in Count
    3.
    (This ground relates to Harold Taylor.)

1. The Special Magistrate erred in finding the defendant Gary
    Taylor guilty of Count 1 in that:

1.1 on the findings of the Special Magistrate Harold Taylor was
    guilty in relation to Count 1.

1.2 proof of the guilt of Gary Taylor in relation to Count 1
    required at least knowledge by him that Harold Taylor was not
    adequately feeding the six kittens, as to which there was no
    evidence.
    (Please note this ground relates to Gary Taylor only.)

2. The convictions imposed by the Special Magistrate were
    unsafe and unsatisfactory.

2.1 The defendants did not know until after the evidence of Dr
    McBryde, the nature of the complainant's case.

2.2 In particular, allegations:
     (i) that the defendants failed to sterilise the premises
    against ringworm;
     (ii) the defendants failed to isolate animals suffering from
    ringworm;
     (iii) the defendants failed to treat ringworm at all;
     (iv) that Dr McBryde did not observe evidence of treatment of
    the animals by bleach and water;
    were first made in Dr McBryde's evidence in chief.     2.3 The Special Magistrate did not evaluate the evidence
    according to the correct onus and in particular he approached
    the evidence on the basis that it was for the defendants to
    prove:
     (i) that the kittens had not contracted ringworm from the
    environment;
     (ii) that the premises had been adequately sterilised against
    ringworm;
     (iii) the defendants had treated the animals for ringworm.

3 The Special Magistrate wrongly allowed cross-examination
    relating to Dr Kubler's appearance before the Veterinary Board
    when this fact was not relevant to any fact in issue nor to Dr
    Kubler's credit and the Special Magistrate was wrongly
    influenced by this fact in that he accepted the evidence of Dr
    McBryde on issues relating to which Dr Kubler's evidence
    differed."
26. The charges against the two appellants arose as a result of a visit by RSPCA inspectors on 13 January 1993 to a property at 13 Grantham Grove, Paradise where both appellants resided. The inspectors were accompanied by Dr McBryde, a veterinary surgeon who was the principal witness for the prosecution. He gave evidence as to the observations he made of the various animals, some of which were seized and returned to his surgery.

27. Eva Belde, one of the RSPCA inspectors, also gave evidence as to her observations of and at the subject premises. She drew a plan of the premises. She said that three white kittens were seized from Aviary A, a Keeshond pup from Aviary B, a white kitten, a grey kitten and a tabby kitten from Cage C, a Chihuahua and miniature Pinscher from what was marked E, and a small terrier cross with a lesion at one marked F on the plan. The animals were transported to the RSPCA headquarters and then to Dr McBryde's surgery where they were physically examined by him.
28. Gary Taylor and Harold Taylor each gave evidence and in addition called evidence from a Dr Kubler, a veterinary surgeon. Dr Kubler took issue with some of the conclusions reached by Dr McBryde. He was, however, forced to concede on a number of occasions that Dr McBryde was in the superior position when giving evidence as he had personally observed and examined the animals which are the subject of the charges.
29. Mr DiFazio who appeared for the appellants, in very detailed submissions, criticised a number of findings made by the magistrate. As to Count 1, which related to the finding that the six kittens were underweight, he argued that the prosecution evidence could not have established that the appellants failed to provide appropriate and adequate food, either on 13 January 1993 or in the period 1 December 1992 to 13 January 1993, and that in finding otherwise, the special magistrate had failed to consider: (1) That the kittens were still lactating; (2) that the kittens ate hungrily about an hour after they would normally have been fed; (3) the special magistrate's finding that feeding twice a day was inadequate was mere conjecture; (4) that some of the kittens were ill with a gastric condition which caused vomiting and diarrhoea; (5) proof that on 13 January 1993 at the time of the seizure of the kittens, the appellants had not fed the kittens, was insufficient to establish that they had failed to provide adequate and appropriate food; and (6) the special magistrate's doubt the defendants had fed the kittens at all on 13 January 1993 was conjecture.
30. Counts 2 and 3 were in effect laid in reverse order. It is therefore convenient to deal with Count 3 before turning to a consideration of Court 2.
31. Count 3 was a finding of ill-treatment of the ten animals referred to therein on the basis that as the owners of such animals the appellants had neglected them so as to cause them pain, suffering or distress. This primarily related to the lack of adequate sterilisation of the premises where the animals were kept and the proper isolation of them so as to protect them against ringworm.
32. The Keeshond pup referred to therein was suffering from ringworm and sarcoptic mange and one of the kittens referred to therein was found to have sunburnt ears. Mr Di Fazio argued with respect to this count that there was no evidence as to what was reasonably adequate sterilisation and that the fact that attempts to sterilise had not eradicated ringworm, did not prove that those attempts were not reasonable steps. He also argued there was no evidence the animals contracted ringworm because of inadequate sterilisation, that there was no finding as to what is adequate sterilisation. He submitted that the finding by the learned magistrate that the appellants showed total disregard for proper sanitary conditions was unsupported by the evidence and he argued that there was insufficient evidence that ringworm caused pain to animals as the word "pain" is defined in the Act.
33. In relation to the Keeshond pup and the sunburnt kitten, he argued that there was no evidence upon which the appellants' actions could amount to neglect or ill-treatment.
34. In relation to Count 2, the learned magistrate found that the appellants failed to take reasonable steps to alleviate pain experienced by the animals upon having contracted ringworm. It was argued that the finding by him that Gary Taylor had not treated the animals for ringworm by using a mixture of bleach and water was perverse, that he had not made any finding as to the credit of Gary Taylor, nor any finding as to the application of Grisovin. Mr DiFazio submitted that the evidence of Dr McBryde that he did not observe indications of treatment or implements is of no weight or little weight and that the magistrate's finding that if such treatment had been applied there would have been signs of healing, was conjecture. He argued that Dr McBryde had not examined the animals prior to 13 January 1993 and there was no evidence of the state of condition of the ringworm or any of the animals at any time prior to that date. He also submitted that the evidence as to the treatment of ringworm by the appellants was at least sufficient to raise a doubt and that the magistrate had reversed the onus of proof in that it was for the prosecution to prove that the appellants had not treated the animals and not for the appellants to prove that they had. Mr Di Fazio argued that the magistrate should have found first that Gary Taylor had treated the animals for ringworm by application of bleach and water and Grisovin and that the treatment was a reasonable step to alleviate pain.
35. It was argued that the special magistrate should have found that Gary Taylor had treated the animals with ringworm and that was a reasonable step, particularly bearing in mind there was evidence of previous success with that treatment which had been recommended by Dr Kubler, who in evidence stated that such treatment was effective. Mr DiFazio argued that there was no evidence as to what would have been reasonable steps to alleviate pain, if any, due to ringworm, and that reasonable steps for the purpose of s13(2)(b)(ii) are what an ordinary reasonable person would have done: Morgan v Masters 25 SASR 128 at 131.
36. He submitted that in so far as the magistrates comments indicate that a reasonable step would have been to take the animals to a veterinarian, there was no evidence that veterinarian treatment would have been any more effective or would have alleviated pain. Mr DiFazio also submitted that if the Terrier cross was suffering from ear mites and the dog was thereby in pain, there was no evidence that the appellants had failed to take reasonable steps to alleviate the pain. The evidence of Gary Taylor was that he did not know of the existence of the ear mite as well as the lesion and he therefore could not be criticised for his failure to take steps with respect thereto. He further argued that the learned magistrate, in not accepting feline enteritis as a possible cause of underweight in the kittens, had misdirected himself and that it was reasonably possible that he had reversed the onus of proof.
37. With respect to the further grounds of appeal, Mr DiFazio referred to the evidence that Harold Taylor fed the animals exclusively and conceded on that basis that he had the custody and control of the animals for the purpose of feeding and therefore, subject to evidence being sufficient, he could be guilty of Count 1. He further submitted, however, that Gary Taylor could not be found guilty of Count 1 simply because he was the owner. He submitted that to sustain this charge against Gary Taylor, the prosecution was required to prove that Gary Taylor failed to provide the kittens with adequate food, which in the circumstances of this case, required evidence that Gary Taylor knew or should have known that Harold Taylor was not feeding the kittens and failed himself to remedy Harold Taylor's omission. He argued that on the evidence Harold Taylor had no other duty or responsibility in relation to the animals the subject of the charge, except as to their feeding and the cleaning of the cages. He was not, for practical purposes, in charge of the animals, except for those limited purposes. To find Harold Taylor not guilty of Count 2, the magistrate must have done so on the basis that he was not the owner and therefore he was not in practical charge of the animals and did not therefore have any duty requiring him to take any steps, reasonable or otherwise, to alleviate pain. If that was the case, however, by the same process of reasoning, the magistrate should have found Harold Taylor not guilty of Count 3.
38. Mr DiFazio, in the course of his argument, criticised the lack of particularity contained in the respective complaints, and suggested that every allegation that was possible to conceive was laid against the appellants, particularly in the first stage of the proceedings when they were unrepresented. It is regrettable that the appellants were unrepresented at the commencement of these proceedings, and in particular, during the course of Dr McBryde's evidence which ultimately was the evidence upon which the learned magistrate relied in making the findings that he did. It would appear from the transcript, however, that after the first day of hearing when the trial had proceeded against Gary Taylor only, the matter was adjourned for some months. Upon its resumption both appellants were represented. Harold Taylor, having been allowed to withdraw his plea of guilty, consented to the evidence that had been given against Gary Taylor being taken as evidence against him, provided that the witness, McBryde, whose cross-examination had been completed, was made available for further cross-examination by him, that is, Harold Taylor. Thereafter the court directed that the trial against both defendants proceed jointly. Dr McBryde was recalled and further cross-examined by Mr McDonough, who at that time appeared for Gary Taylor. Mr Berman, who appeared for Harold Taylor, did not, however, seek to ask any further questions of Dr McBryde. It seems to me that any possible injustice that might have been occasioned as a result of the manner in which the case had proceeded to that point, was cured by making Dr McBryde available for further cross-examination by the duly appointed legal representatives of both appellants.
39. The magistrate did not make specific findings as to the credibility of the various witnesses, but it is implicit in his reasons for judgment that he accepted the evidence of Dr McBryde and rejected the evidence of Dr Kubler wherever it was in conflict with that of Dr McBryde. Mr DiFazio acknowledged that the magistrate clearly preferred the evidence of Dr McBryde and rejected that of Dr Kubler, but argued that the magistrate may have been led to that conclusion of preference by the attack on Dr Kubler's credit relating to prior appearances before the Veterinary Surgeons Board. The only reference to Dr Kubler in the magistrate's judgment appears at p15 of his reasons, and it was at the point at which the magistrate was considering the evidence concerning the pain, suffering or distress. It is clear from the comments made by the magistrate that he rejected Dr Kubler's evidence on the practical basis that he "did not have the opportunity of viewing the animals as Dr McBryde did".
40. It is also clear that there were a number of matters of inconsistency arising out of the evidence of Gary Taylor relating, for example, to such matters as the source of the kittens referred to in the first count, which in my view properly led to the magistrate rejecting him as a witness of truth. The learned magistrate's finding that the six kittens were underweight due to inappropriate and inadequate feeding was well supported by the evidence of Dr McBryde, who saw the animals concerned and expressed the opinion that they were underweight and under condition. The magistrate was entitled to reject the explanation from Gary Taylor that the kittens were recovering from symptoms consistent with feline enteritis as that was contrary to the evidence of Dr McBryde that the symptoms were not seen until after seizure of the animals. Dr McBryde was in a better position than Dr Kubler to give evidence as to the state of the various animals and the learned magistrate clearly accepted the evidence he gave as to these various matters. The credibility of the various witnesses was an important issue in this case, and the superior position of the trier of fact has long been emphasised by appellate courts and should not be lightly set aside.
41. In DeVries and Anor v Australian National Railways Commission and Anor (1992) 112 ALR 641 at 645, Brennan, Gaudron and McHugh JJ said:
    "More than once in recent years, this court has pointed out
    that a finding of fact by a trial judge, based on the
    credibility of a witness, is not to be set aside because an
    appellate court thinks that the probabilities of the case are
    against - even strongly against - that finding of fact. If the
    trial judge's finding depends to any substantial degree on the
    credibility of the witness, the finding must stand unless it can
    be shown that the trial judge 'has failed to use or has palpably
    misused his (or her) advantage' SS Hontestroom v SS Sagaporack
(1927) AC 37 at 47 or has acted on evidence which was
    'inconsistent with facts incontrovertibly established by the
    evidence' or which was 'glaringly improbable' Brunskill (1985)
59 ALJR 842 at 844; 62 ALR 53 at 57."
42. Once the issues in this case are approached on the basis of the acceptance of Dr McBryde, it is clear there was ample evidence before the magistrate to enable him to make the various findings that he did. For example, Dr McBryde said that it was a hot day when he attended at the premises and that there were three kittens in a cage on the lawn under the shade of a large gum tree which he described as providing probably under 40% shade. He examined the white kitten which had badly sunburnt ears and formed the conclusion that the kitten had been receiving sunburn for at least one week fairly extensively or for much of the time and he did not observe any evidence of treatment of that sunburn. He expressed the opinion that it would have caused pain. He also observed ringworm lesions which were at least a week old and described the kittens as being mildly itchy as a result thereof. He said the tabby kitten had been suffering from ringworm for at least a week and would have been in a similar condition to the white kitten and would have been itchy as well as underweight. He described the large grey kitten as underweight with a large ringworm lesion on his side which he estimated to be at least two weeks old. He also commented that it would have been itchy. He described the other three kittens as having ringworm which he estimated they would have had for about a week and which he thought would have been "itchy" and he could see no evidence of treatment. Dr McBryde described the method of isolation to be the best practice for treatment and he also explained the necessity for adequate sterilisation for a long period of time.
43. Dr McBryde described the Keeshond pup as 8-10 weeks old and he said both ears were just a mass of dried scaly material and it appeared that he had been scratching it as well and his diagnosis was that it was suffering from sarcoptic mange mite. He said that it would be shockingly irritating and would have been so for one or two weeks, if not longer. He did not observe any evidence of treatment for this condition.
44. The Chihuahua pup had a problem with his left eye. There were some healing lesions of the eye and he also had ringworm lesions which he estimated to have been there for a period of one to two weeks.
45. The miniature Pinscher puppy also had ringworms, manifesting as round lesions around the face and head and neck area which he thought would also be itchy. The Terrier cross puppy was hiding under a wardrobe. He had scratch lesions behind one ear and that he had a dark black discharge that appeared to be ear mites. Dr McBryde said he would have been scratching for some time to get that extent of discharge, it would have to have been at least two weeks. He described this as extremely uncomfortable and very irritating. Dr McBryde's evidence as to the conditions in which the animals were kept was at transcript p15:
    "A. Just generally it was, they were in the yard, had
    numerous boxes and cages and things piled up in there. As we
    went around there was a lot of young lice around in the side
    area as the yard was dirty. As we went inside the house to
    where some of the other dogs were there it was extremely dirty.

Q. Are you able to comment in light of the conditions you
    observed what if any affect that may have had cause for in
    relation to ringworms.

A. The spores of ringworm live for a long time. They can live
    in soil or rubbish that is not cleaned up which is likely to
    house it for a considerable length of time.

Q. Was that a possibility at that property.

A. Yes probably I would have thought.

Q. In relation to treatment for ringworms you are familiar with
    a treatment involving one part water and one part bleach.

A. Some of my clients have mentioned they have used it in the
    past.

Q. What is your opinion of the desirability and effect of such
    treatment.

A. From the cases I have seen in the past at best, it might
    prevent further spread of it and using the Halmitancolmite which
    is a similar sort of compound I have found that alone is not
    suitable. We use it for the prevention of spread and to dry
    them off, not to kill them. By the time you have used it
    effectively enough to cure the lesions you have damaged the
    skin.

Q. Of the observations you made of cats and dogs suffering from
    ringworm at that property was there any evidence that a solution
    of water and bleach had been used to treat the ringworm.

A. On none of the occasions I saw was there a bleaching of the
    hair and discolouration of the hair around lesions which is
    generally what you see with a long use of bleach around the
    areas."
46. "Pain" is defined in s3 of the Act as including "suffering and distress". In view of Dr McBryde's evidence, I consider that there was ample evidence upon which the learned magistrate could find that the animals suffered pain to the extent required to prove Counts 2 and 3 of the complaints.
47. I further consider that the magistrate correctly found that Gary Taylor was guilty of Count 1 by reason of being the owner of the animals. I reject the appellants' argument that the prosecution was required to prove that Gary Taylor knew or should have known that Harold Taylor was not feeding the kittens and failed himself to remedy Harold Taylor's omission.
48. In s3, "owner" is defined to include:
    "(a) in relation to an animal, a person who has the custody and
    control of the animal ..."
49. In Royal Society Prevention of Cruelty to Animals (SA) v Evitts
(1993) 169 LSJS 108, Cox J considered the issue of ownership and of custody and control arising out of a prosecution pursuant to s13(1) of this Act. The case concerned a person who was not the owner of an animal who was charged with not taking reasonable steps to alleviate pain suffered by the animal by reason of illness.
50. The defendant worked as a dog handler for a security firm which provided guard dogs for the premises of its customers. One morning the manager of Palm World, one of the customers of the security firm, contacted the security firm with the information that one of the dogs was sick and convulsing and foaming at the mouth. The telephonist contacted the defendant, who by then had gone off duty and was home sleeping. He arrived at Palm World several hours later. The RSPCA alleged that the defendant was responsible for alleviating the animal's pain by reason of being the owner of the animal. Cox J said at 112:
    "One of the dictionary meanings of 'custody' is 'charge,
    care, guardianship' (SOED). It does not necessarily connote
    actual physical possession or continuous physical presence. The
    word 'control' is more elusive. Its meanings include 'the fact
    of controlling, or of checking and directing action; domination,

    command, sway' (SOED); 'the act or power of controlling'
    (Macquarie Dictionary). I think the notion of having the care
    of an animal, with the power of controlling it, though not
    necessarily immediately, underlies the composite expression
    'custody and control' in the Prevention of Cruelty to Animals
    Act."
51. He went on to say at p113:
    "The need for a reasonably liberal interpretation of
    'custody and control' may readily be illustrated. Take the case
    of an absentee farm owner who leaves everything, including his
    dog, in the charge of a resident manager. The manager quite
    reasonably goes off to the market leaving the farm unattended
    and the dog in good health. During the day he learns that the
    dog has been seriously injured and is in pain and needs
    treatment. It would not be difficult for him to get back to the
    farm or, at the least, to arrange by telephone for the dog to be
    treated, but he does nothing. On a physical proximity test of
    'custody and control' the manager has no possible responsibility
    under the Act - he ensures that by staying away - and neither
    has anyone else. There is nothing very unusual about this
    example. It could be repeated in the case of a pound-keeper,
    for instance, or a horse trainer or stock agistor or boarding
    kennel proprietor. It is noteworthy that the postulated
    proximity restriction cannot possibly, without more, assist the
    owner of the animal. His only answer to a prosecution under
    s13(2)(b)(ii) (apart from any possible argument along knowledge
    lines) is confined to the issue whether he failed to take
    reasonable steps to relieve the animal's pain. I see no
    difficulty in an interpretation of 'custody and control' which
    would produce that same result for a person who is for practical
    purposes in charge of an animal although not necessarily on the
    spot when it falls sick. If he was not aware of the animal's
    condition and could not reasonably have been expected to foresee
    it, or if there was nothing that he could reasonably do about
    it, he will not be convicted, but if he had the general custody
    and control of the animal he may need to do more than show that
    he happened to be absent at the relevant time."
52. The evidence in this case established that Gary Taylor was the owner of the animals and was responsible for the sale of them. Harold Taylor's evidence was that he assisted Gary Taylor in picking up medication from the veterinarian Dr Kubler and assisting in the sale of animals when necessary, and was responsible for the cleaning of the animal cages and the feeding of the animals. Gary Taylor must therefore have been aware that the kittens were underweight and that could only be because they had not been adequately or appropriately fed. He was therefore properly convicted on Count 1.
53. I agree with the submission of the appellant that there is an element of inconsistency between the magistrate finding Harold Taylor not guilty as to Count 2, but guilty of Count 3. Harold Taylor appears to have had the daily care of the animals. He was the person responsible for feeding them and cleaning out their cages. He was, therefore, a person who had the "custody and control" of the animals and would therefore come within the definition of "owner" in s3 of the Act. On that basis, he perhaps was fortunate not to have been convicted of Count 2. No appeal has been lodged by the respondent, however, against dismissal of that count and I do not propose to take any further steps with respect to same. I consider Harold Taylor was properly convicted of Count 3.
54. In my view, both appeals against conviction and sentence imposed on 25 August 1995 should be dismissed. At the conclusion of the argument, Mr Di Fazio raised the possibility of lodging an appeal against the s36 order, although at that time he had insufficient information upon which to proceed with that matter. No appeal has since been lodged with respect thereto.
55. In view of my reasons for decision, the appeal against that order should have been lodged within 14 days of 24 September 1995. It is therefore substantially out of time. In view of the dismissal of the appeals against the conviction and sentence of each of the appellants, I am of the opinion that an appeal against the s36 order would have no chance of success and I therefore indicate that I would not extend the time within which to lodge an appeal against that order.