Goodwin v Royal Society for the Prevention of Cruelty to Animals (SA) Inc - [2006] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GOODWIN v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
Judgment of The Honourable Justice Besanko
17 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction and sentence – appellant convicted of ill-treating animal and sentenced to 100 hours’ community service and ordered to pay respondent’s costs – held, elements of offence proven – sentence not manifestly excessive – appeal dismissed.
Magistrates Court Act 1991 s 42; Prevention of Cruelty to Animals Act 1985 ss 3, 13, 36, 42; Supreme Court Rules 1987 rr 96C.06, 97.04; Dog and Cat Management Act 2005 (generally), referred to.

GOODWIN v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2006] SASC 79
Magistrates Appeal

BESANKO J: This is an appeal against orders made by a magistrate. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
The appellant is Mr Karl Evan Goodwin and the respondent is the Royal Society for the Prevention of Cruelty to Animals (SA) Inc. The appellant was charged on the complaint of the respondent that between 4 January 2004 and 25 March 2004 at Salisbury, in the State of South Australia, he did ill-treat an animal, namely a male tan and white Heeler/Ridgeback cross-bred dog called “Harry” (“the dog”), in that being the owner of such animal he failed to provide it with appropriate and adequate food, contrary to s 13(1) of the Prevention of Cruelty to Animals Act 1985 (“the Act”).
The appellant pleaded not guilty to the charge and the matter proceeded to trial. The magistrate found the appellant guilty of the charge and a conviction was recorded. He imposed a penalty of 100 hours of community service, to be performed within three months, and he ordered that the appellant pay costs totalling $5,696.49. The costs included legal costs of the respondent, witness fees, a veterinary fee and a care fee for the dog of $2,930. The appellant was ordered to pay the total amount within 28 days. The magistrate also made an order pursuant to s 36 of the Act that the dog be forfeited to the respondent and that the appellant be forbidden from acquiring or having custody of any animal until further order.
The appellant appeals against both the conviction and the sentence. He also seeks an extension of time, because he instituted the appeal about three days outside the period prescribed by the rules of court (Supreme Court Rules 1987, rr 96C.06, 97.04). In view of the short period involved, I will extend the time for the institution of the appeal.
The prosecution case
The respondent was required to prove the elements of the offence beyond reasonable doubt. There are two elements of an offence under s 13(1) of the Act.
The first element is that the appellant was the owner of the dog at the relevant time. The “owner” of an animal is, relevantly, the person who has the custody and control of the animal (s 3 of the Act). There is an evidentiary aid in the Act. Section 42 provides that an allegation in a complaint that at a specified time a person was the owner of a specified animal will, in the absence of proof to the contrary, be proof of the matter so alleged. There is such an allegation in the complaint against the appellant in this case and so the evidentiary provision applies.
The second element (in the circumstances of this case) is that the appellant failed to provide the dog with appropriate and adequate food.
The respondent received a report about the poor condition of a dog at a property at 44 Middle Road, Salisbury in the State of South Australia (“the property”). Ms Eva Beldi, an inspector employed by the respondent, attended at the property on 27 February 2004. The property appeared to her to be used as a wrecking yard or a yard that held motor vehicles. No-one was present at the property. Ms Beldi attended the property again on 28 February 2004, when she spoke to an unidentified male, who claimed that he was not the owner of the dog. Ms Beldi attended the property again on 4 March 2004 and she spoke to the appellant on that occasion. She observed that the dog that was on the property was in an emaciated condition, although it did appear to have shelter and water. During her conversation with the appellant, Ms Beldi made recommendations about the food which should be given to the dog. Ms Beldi’s evidence about this conversation with the appellant is as follows:
“Q.What recommendations did you make?
A.I do remember the conversation, it was in the initial conversation in relation to the type of food the dog was receiving at the time, which was a poor quality food and we discussed a better quality food for the dog, ie, because it was a very young dog, puppy food and high protein, high carbohydrate.
Q.Did you make any recommendation as to how regularly the dog should be provided with food?
A.If I remember the conversation to that, the owner stated that he could only attend to the dog once a day, normally the practice would be to provide a dog in that condition and of that age with two to three meals per day but he did state that he could only attend once a day, so we basically discussed that he would have to give the dog an adequate amount of food to compensate.”
Ms Lisa Brown, an inspector employed by the respondent in March 2004, went to the property on 25 March 2004 at about 8.50 am. She was following up on the earlier report prepared by Ms Beldi. She said that it appeared to her that the property was being used as a car workshop. Ms Brown had a conversation with a Mr Peter Goode, who told her that the appellant was the owner of the dog. She observed that the dog was in an emaciated condition, that its coat was drab and that its bones were very prominent. Ms Brown seized the dog and took photographs of it at the property and elsewhere. The dog was taken to a clinic, where it was examined by Dr Ian McBryde, who is a veterinarian. A blood sample was taken from the dog. The dog was then taken to the respondent’s premises, where it was fed and subsequently taken care of. The condition of the animal was recorded both then and thereafter.
The dog was weighed on various dates and the results were as follows:
25 March 2004 – 15 kg
         5 April 2004 – 20.8 kg
         16 April 2004 – 24.6 kg
         22 April 2004 – 25 kg
17 June 2004 – 27.6 kg
Dr McBryde said that when the dog was brought to him it was in an emaciated condition. He estimated that the dog was between 10 and 18 months of age and he said that, at that age, the weight of the dog should have been between 27 and 30 kilograms. The dog’s coat was dry, indicating a lack of adequate oils and fats in the diet, as well as protein. Dr McBryde said that the animal’s abdomen was “particularly empty” and that it was unlikely that the dog had been fed in the previous 12 hours, and quite likely in the previous 24 hours. The blood tests indicated that the dog’s levels of protein and neutrophils were low.
On 25 March 2004, Dr McBryde formed the opinion that the most likely cause of the dog’s emaciated condition was an inadequate intake of food and he made recommendations as to its diet.
On 16 April 2004, Dr McBryde noted that the dog’s general appearance was considerably better. The blood tests at about that time indicated that the dog’s protein levels were back in mid-range normal. Dr McBryde formed the opinion that the dog had made a significant recovery, that that was because it had been fed an adequate amount of food, and again that that indicated that its earlier condition was caused by an inadequate intake of food.
At the hearing, Dr McBryde was asked whether the dog could appear in the condition it did if it had been fed regularly but had a “worming problem”. He said:
“A.He could, that is possible, but the question would come in, why would you leave it that long before you did something about it. A dog can get that debilitated from worms, but the two aspects you would probably see is you don’t tend to see the empty tummy. If it had been wormed just before I saw it, why was it left so long before it was wormed, would be my question.”
Dr McBryde was also asked whether the dog could have presented in the condition it was in if it had been fed something in the order of 700 grams of dog food three times a day, and he said that he would be “extremely surprised” and that he did not think so.
Ms Sandra Werner, an inspector employed by the respondent, interviewed the appellant on 8 May 2004. Ms Brown was also present at the interview. The appellant said that “we” rented the property and that it was a workshop for the storage of “our” cars. It is not clear to whom the appellant was referring other than himself. The respondent said that “… but the lease is ent, entirely in my name, or actually there is no lease either, but that’s beside the point”. The appellant said that the dog was taken to the property before Christmas 2003 and that the dog was “definitely skinny” when “we” first got him. The appellant said that the dog had worms early in March 2004 and that after Ms Beldi’s visit of 4 March 2004 he gave the dog two courses of worming tablets. He described the food that he was feeding the dog during the two weeks before 25 March 2004. The appellant told his interviewers that he wanted his dog back.
The defence case
The appellant gave evidence before the magistrate. He said that, although there was no written lease agreement, he leased the property from the owner. The appellant allowed others to use the property to work on motor vehicles. The arrangement between the appellant and those other persons was quite informal. The appellant and others would feed the dog when they were on the property. In late 2003, the dog was placed on the property by an acquaintance of the appellant. The appellant said that the dog was “pretty skinny” when it was first taken to the property. The appellant said that there was then some improvement in the dog’s condition before it contracted worms. The appellant said that he took a real interest in the dog between 4 March and 25 March 2004. He said that he gave it one or two courses of de-worming tablets and fed it properly. According to the appellant’s evidence, the dog’s condition was improving at the time it was seized by the respondent on 25 March 2004.
The magistrate’s reasons
The magistrate identified the two elements of the offence.
In relation to the first element, namely, that the appellant had the custody and control of the dog, the magistrate found that this was established having regard to the following matters:
1.The appellant was solely responsible for the property, including who was on it, what was on it and for what purpose it was used;
2.The dog was placed on the property by someone he knew. The appellant took no steps to remove the dog, and, in fact, he used it as a guard dog;
3.When questioned by the officers of the respondent, the appellant asked for the dog back, and he subsequently visited the dog;
4.The appellant oversaw the feeding or non-feeding of the dog, and
5.The appellant told Ms Beldi that he was the owner of the dog.
As to the second element, namely, that the appellant failed to provide the dog with appropriate and adequate food, the magistrate found that this was established having regard to the following matters:
1.The dog was “skinny” when it was taken to the property in December 2003 and it was emaciated on 4 March 2004. It was neglected during that period, and the appellant paid no attention to the condition of the dog prior to 4 March 2004;
2.The dog did not have worms; rather, the appellant did not feed it properly between 4 March and 25 March 2004. After it was seized by the respondent it was fed properly and improved over a short period of time. It gained about 10 kilograms in weight in a period of three weeks.
Grounds of appeal
Conviction
There are five grounds of appeal in relation to conviction. They are as follows:
1.The Learned Magistrate erred in not taking account of the fact that the Appellant de-wormed the dog and that it took a period of time for the effects to work. That when the dog was taken in to custody by the RSPCA there was no testing as to the dog’s condition and that the observations were that it was still skinny. There was no evidence other than that of the Appellant to support the claim that the Appellant was not caring for the dog by providing proper worming. In the circumstances the Learned Magistrate should have accepted the evidence of the Appellant.
2.The Learned Magistrate failed to take into account the inexperience of the Appellant in dealing with dogs in need of worming or other conditions and did not give sufficient or any weight to the failure of the RSPCA when initially attending the dog to assist the Appellant in caring for the dog by providing proper or any advice in the circumstances.
3.The Learned Magistrate failed to take any or proper notice of the condition of the dog when it was left with the Appellant and the effect of this on the Appellant’s attempts to care for the dog and to feed it properly. It was in a very bad state when it was left with the Appellant.
4.The Learned Magistrate failed to properly identify the owner and primary carer of the dog.
5.The Learned Magistrate erred in not taking account of the Appellant’s attempts to properly care for the dog and treated the evidence of the condition of the dog as the only evidence of such when there are other factors to be taken into account.
The fourth ground of appeal relates to the first element of the offence, and the other grounds relate to the second element of the offence. It is convenient to start with the fourth ground of appeal.
On his own evidence, the appellant had the custody and control of the dog from 4 March to 25 March 2004. It seems that the dog was never registered under the Dog and Cat Management Act 2005, and the appellant was never the registered owner of the dog. However, he was the owner of the dog for the purposes of the Act because he had the custody and control of the dog (s 3 of the Act).
I think that there was ample evidence to support the magistrate’s finding that the appellant also had custody and control of the dog between 4 January and 4 March 2004. The dog had come from persons known to the appellant and it was placed on property that was leased by the appellant. Although other persons used the property, that was done with the appellant’s permission. The appellant purported to make arrangements for the feeding of the dog and he fed the dog himself on occasions. He could have had the dog removed, but instead he allowed it to remain on the property. On 4 March 2004 the appellant told Ms Beldi that he was the owner of the dog, and during the interview on 8 May 2004 he referred to the dog as “my dog” and said that he wanted it back. After the dog had been seized by the respondent, the appellant travelled some considerable distance to visit it.
In my opinion, the appellant was the owner of the dog between 4 January and 25 March 2004 and the complaint in the fourth ground of appeal must be rejected.
The appellant’s main complaint on the appeal, which I think is embodied in the first, second and fifth grounds of appeal, relates to the appellant’s evidence as to how he treated the dog between 4 March and 25 March 2004. As I have said, his case was that the dog had worms as at 4 March 2004 (or at least it was a reasonable possibility that it did) and that he did the best he could to treat the dog for that condition between 4 March and 25 March 2004.
The difficulty with this argument is that the magistrate found that the dog did not have worms as at 4 March 2004. He did so on the basis that if the dog had worms, and if it had been treated by the appellant in the manner he indicated, the dog’s condition would have improved by 25 March 2004. It did not show any improvement as at that date, and it followed, said the magistrate, that it did not have worms. The photographs of the dog that were taken on 25 March 2004 are eloquent testimony that on that date it was in an emaciated condition. There was no express evidence before the magistrate as to how long it would take for one or two courses of de-worming tablets to take effect, but it is unlikely that it would be as long as three weeks. When that evidence is coupled with Dr McBryde’s evidence that if the dog had worms, one would not expect to see the empty abdomen he observed on 25 March 2004, there was, in my opinion, a sufficient basis for the magistrate to find that the dog did not have worms as at 4 March 2004.
The complaints in the first and second grounds of appeal are predicated on a finding that the dog had worms. The magistrate made a finding to the contrary, and in my opinion, there was a sound basis upon which he could do so.
If the dog did not have worms as at 4 March 2004, the only explanation for its condition on 25 March 2004 is that it was not adequately fed up until that date. The complaint in the fifth ground of appeal must therefore be rejected.
The complaint in the third ground of appeal must also be rejected. Even if the dog was in a bad condition when it was placed on the property in December 2003, its emaciated condition on 4 March 2004 and 25 March 2004, respectively, must by then have resulted from the appellant’s failure to provide the dog with appropriate and adequate food.
Sentence
There are two grounds of appeal in relation to sentence and they are as follows:
1.The Learned Magistrate imposed a penalty, which was excessive in the circumstances in the number of community service hours.
2.The Learned Magistrate was wrong in iposing (sic) the payment for care of the dog to the RSPCA in the circumstances, as it was their decision to keep the animal until the trial. Sufficient evidence of its condition after their attendance on the dog could have been documented and the dog found another home to reduce the cost to the RTSPCA [sic] and the Appellant
The maximum penalty for a breach of s 13 of the Act is a fine of $10,000 or imprisonment for one year.
As I understand it, the magistrate was told that the appellant had been unemployed for some time and that he was trying to establish a business. He would have had regard to those matters in fixing a penalty of 100 hours of community service. Nothing has been put by the appellant to suggest that that penalty is manifestly excessive. I reject the complaint in the first ground of appeal in relation to sentence.
As to the second ground of appeal in relation to sentence, the costs for the care of the dog are significant. As I understand it, the dog was kept by the respondent because of the possibility that the appellant might successfully defend the charge and then demand the dog back. That was a reasonable course to adopt. There was some delay in the matter coming on for trial but that was not of the respondent’s making. It seems that on the date the trial was listed to start, the appellant asked for and was granted an adjournment so that he could secure legal representation, and that that was the cause of the delay. In those circumstances, I do not think the magistrate erred in awarding the full amount for the care of the dog. I reject the complaint in the second ground of appeal.
Conclusion

I will extend the time for the institution of the appeal up to and including 18 November 2005. However, the appeal must be dismissed.