Green v Randell
[2023] WASC 239
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GREEN -v- RANDELL [2023] WASC 239
CORAM: MCGRATH J
HEARD: 3 APRIL 2023
DELIVERED : 30 JUNE 2023
FILE NO/S: SJA 1080 of 2022
BETWEEN: KYLIE RAE GREEN
Appellant
AND
ELANAH RAE RANDELL
Respondent
ON APPEAL FROM:
For File No: SJA 1080 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S OLIVER
File Number : AR 4243 OF 2022
Catchwords:
Criminal law - Appeal against acquittal for animal cruelty - No case to answer - Magistrate entered a judgment of acquittal - Whether no case to answer was reasonable based on the evidence
Legislation:
Animal Welfare Act 2002 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA)
Result:
Leave to appeal granted
Appeal allowed
Verdict of acquittal quashed and retrial ordered
Category: B
Representation:
Counsel:
| Appellant | : | Mr I Weldon |
| Respondent | : | In Person |
Solicitors:
| Appellant | : | Mr I Weldon |
| Respondent | : | In Person |
Case(s) referred to in decision(s):
Antoun v The Queen [2006] HCA 2; (2006) ALR 51
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Mulhall v Barker [2010] WASC 359
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
MCGRATH J:
The respondent pleaded not guilty to one charge that between 16 January and 18 January 2022, being a person in charge of an animal, namely a dog, she was cruel to the animal by confining it in a manner that caused it unnecessary harm, contrary to s 19(1), s 19(3)(b)(ii) and s19 (3)(d) of the Animal Welfare Act 2002 (WA) ('Animal Welfare Act').[1] On 17 October 2022, the trial was held before the learned Magistrate in the Armadale Magistrates Court.
[1] Charge No AR 4243/2022.
At the close of the prosecution case, the learned Magistrate acquitted the respondent, finding that there was no case to answer.[2] The prosecution now appeals that decision, contending that her Honour erred in law in acquitting the respondent.
[2] ts 54-56 (17/10/2022).
For the following reasons, I have determined that the learned Magistrate erred in law in finding that the respondent did not have a case to answer and therefore, leave to appeal is granted and the appeal is allowed.
Magistrates Court proceedings
The prosecution charged two co-accused, namely Ms Lindrea and Mr Casey, with the same offence. Both co-accused pleaded guilty prior to the commencement of the respondent's trial.[3] The learned Magistrate imposed fines on the two co-offenders in the amount of $3000 and $2200 respectively.[4]
[3] ts 2-3 (17/10/2022).
[4] ts 16-17 (17/10/2022).
At the trial the prosecution was represented by counsel and the respondent was self-represented. Her Honour diligently explained, at the commencement of the trial, the manner in which the trial would be conducted.[5]
[5] ts 17-23 (17/10/2022).
The prosecutor outlined the alleged offending during his opening address.[6] The allegation concerned the tethering of a dog, named Oreo, by a chain that became entangled. The consequence was that the animal was unable to find shelter or water on a day that reached approximately 40 degrees celsius. The respondent, who is the owner of the animal, had difficulties keeping the animal at her property. Therefore, arrangements were made for the animal to stay at a different property in Kelmscott occupied by Ms Lindrea, the respondent's partner's sister and her boyfriend, Mr Casey. The Kelmscott property is approximately two to three minutes from the respondent's property.
[6] ts 24-27 (17/10/2022).
The prosecution case alleged that the animal was kept at the Kelmscott property for approximately two weeks prior to the death of the animal. The prosecution alleged that the respondent was continuing to attend the Kelmscott property and thereby accepted responsibility for the animal's welfare, not exclusively, but in conjunction with the two occupiers of the property.[7]
[7] ts 25 (7/10/2022).
Given that the animal had a tendency to walk away from the Kelmscott property, it was tethered on a chain at the rear of the property. The prosecution alleged that the respondent attended the Kelmscott property on Sunday, 16 January 2022 to provide food, being two days prior to the animal being found deceased by the RSPCA inspector.[8]
[8] ts 26 (17/10/2022).
On Tuesday, 18 January 2022, RSPCA inspectors attended at the Kelmscott property and found the deceased animal restrained by a tangled chain in the backyard.
Witnesses at trial
The prosecution called three witnesses namely Ms Lindrea,[9] a co-offender and occupier of the Kelmscott property, Ms Peta Janssen,[10] a RSPCA Inspector and Dr Kym Campbell,[11] a veterinary pathologist.
Ms Lindrea
[9] ts 31-35 (17/10/2022).
[10] ts 35-44 (17/10/2022).
[11] ts 44-48 (17/10/2022).
Ms Lindrea gave evidence that she lived at the Kelmscott property for five years. Ms Lindrea stated that the animal commenced living at the Kelmscott property in January 2022 after she received a communication from her mother via Messenger asking whether the animal could temporarily stay at her property.[12] Ms Lindrea gave evidence that initially she declined to assist but that she changed her mind. She informed her mother that the animal 'could stay temporarily' but that 'myself and Matthew could not be responsible for the dog because we both work and that Daniel and Elanah would have to look after it, and that my mother said that was fine'.[13] Elanah is the respondent and Daniel, who was her then partner, is Ms Lindrea's brother.[14]
[12] ts 32 (17/10/2022).
[13] ts 32 (17/10/2022).
[14] ts 32 (17/10/2022).
Ms Lindrea stated that the animal commenced living at the Kelmscott property approximately two weeks prior to the animal's death. Ms Lindrea gave evidence that on the Sunday (prior to the death of the animal on Tuesday) she received a telephone call from her younger brother who was at the Kelmscott premises, stating that the respondent and Daniel were bringing food over for the animal. Ms Lindrea was asked 'so you weren't actually there when they came', to which she stated 'no, I was not there'.[15]
[15] ts 33 (17/10/2022).
Ms Lindrea did not recall whether any person attended to look at the animal on Monday, 17 January 2022. The only other question asked of Ms Lindrea during her evidence in chief was whether she was at work when informed that the animal had died. Ms Lindrea stated that she received a message stating that the animal had died.
In cross-examination, the Ms Lindrea stated that her understanding was that the respondent was going to care for the animal. Ms Lindrea reiterated that she told the respondent's mother that 'the dog could stay' but that the respondent 'would have to look after it because we weren't home during the day because we both work'.[16] Ms Lindrea said that there must have been a misunderstanding because she believed the respondent was caring for the animal whilst at her property.
[16] ts 34 (17/10/2022).
The respondent asked the question 'were you aware that I had no idea that Oreo was actually at your house?' to which Ms Lindrea answered 'at the beginning, no, but later on I was told that you didn't know until the dog was brought over'.[17]
[17] ts 35 (17/10/2022).
Counsel for the prosecution did not re-examine Ms Lindrea.
Ms Janssen
Ms Janssen, a RSPCA Inspector, attended at the Kelmscott property on 18 January 2022. Ms Janssen observed that the deceased animal was lying in the backyard tethered by a very hot, heavy chain and without shelter or any water.[18] The prosecution tendered photographs of the scene taken by Ms Janssen.[19]
[18] ts 38 (17/10/2022).
[19] Exhibit 1, Five scene photographs taken by Ms Janssen.
Ms Janssen stated that as she was taking the deceased animal to her vehicle, the respondent and Ms Lindrea arrived at the premises. Ms Janssen gave testimony that at that time the respondent stated that the animal belonged to her and was registered to her.[20] The conversation was recorded on Ms Janssen's body worn camera, which was played at the trial. Ms Janssen stated that the temperature was approximately 40 degrees on 18 January 2022.
[20] ts 39 (17/10/2022).
Her Honour made findings concerning the utterances of the respondent during the conversation with the RSPCA inspector. The respondent stated that she attended the property the day before and then stated that the attendance at the property was on the Sunday (being two days prior to the death of the animal).[21] Her Honour also found that the respondent told the inspectors about the 'circumstances where she was being forced to move out of her rental property, and that's why they needed somewhere for Oreo to stay'.[22]
[21] ts 55 (17/10/2022).
[22] ts 55 (17/10/2022).
Ms Janssen was not cross-examined by the respondent.
Dr Campbell
Dr Campbell gave evidence that on 18 January 2022, a postmortem examination of the animal was undertaken. Dr Campbell concluded that the animal died of heatstroke with the core body temperature being measured at 41.75 degrees, which is the upper limit of the measurement of the thermometer.[23] Dr Campbell observed that a microscopic evaluation of the fixed tissues found edema congestion and accelerated autolysis in the animal's lung, liver and brain, which is consistent with the diagnosis of heat stroke.[24]
[23] ts 48 (17/10/2022).
[24] ts 48 (17/10/2022).
In cross-examination, Dr Campbell was asked whether the animal, prior to suffering heatstroke, was 'in a healthy state'. Dr Campbell stated that the animal was 'in lean but good body condition' and that it appeared to 'be a healthy dog'.[25]
Reasons for decision of learned Magistrate for no case to answer
[25] ts 49 (17/10/2022).
At the conclusion of the prosecution case, the learned Magistrate informed the respondent that whilst she had the presumption of innocence and right to silence, she may give evidence on her own behalf. Her Honour asked the respondent to consider whether she wished to give evidence during the court adjournment for lunch. Upon returning, the learned Magistrate stated that prior to asking the respondent whether she proposed to give evidence, the prosecution should address her Honour as to whether there was no case to answer. Her Honour did not explain to the respondent the nature of a no case submission and whether she wished to make that submission or elect to give evidence.[26]
[26] ts 50 (17/10/2022).
The learned Magistrate in her reasons for decision outlined salient aspects of the evidence. The learned Magistrate observed that Ms Lindrea stated that she never directly told the respondent that she would have to care the animal. Rather, Ms Lindrea informed her mother that the respondent would have to care for the animal whilst at her property.[27] Further, her Honour found that Ms Lindrea in her testimony stated that the respondent 'had no idea' that the animal was at her home. With respect to the learned Magistrate, that was not the evidence of Ms Lindrea. Rather, Ms Lindrea understood that the respondent 'did not know until the dog was brought over',[28] and further, the respondent admitted to the RSPCA inspector that she knew the animal was staying at the property.
[27] ts 54 (17/10/2022).
[28] ts 35 (17/10/2022).
Her Honour stated that there was evidence that the respondent attended the property on Sunday, two days before the animal died, observing the hearsay element of that evidence.[29] The learned Magistrate then turned to the respondent's interview with the inspector during which she stated that she attended the property the day before and then further stated that the attendance at the property was on the Sunday.[30] Her Honour also observed that the respondent told the inspectors that of the 'circumstances where she was being forced to move out of her rental property, and that's why they needed somewhere for Oreo to stay'. The learned Magistrate found that 'there is nothing in the admissions on the body camera footage that indicates that she was aware or that she saw Oreo tethered when she attended the property'.[31]
[29] ts 55 (17/10/2022).
[30] ts 55 (17/10/2022).
[31] ts 55 (17/10/2022).
The learned Magistrate then concluded as follows:[32]
In submissions on behalf of the prosecution, it's being said that it's unnecessary for the prosecution to establish any act or admission by the accused person that would constitute the cruelty. I don't agree. Criminal responsibility only arises as a result of a person's acts of behaviour.
In this case, the evidence from the prosecution witness, Ms Lindrea, is there was no discussion at all with Ms Randell about the care arrangements for the dog, and there is no evidence significantly before me that says Ms Randell was unaware that there was - that the dog was not going to be provided with sufficient food or water, or such shelter or shade and protection from the elements that is necessary to ensure its welfare, safety, and health.
And more significantly, no evidence that she was aware that the dog was going to be restrained in the manner that it was which led ultimately to its death and suffering that it encountered. There was water available on the day, but not within reach once the chain became tangled. There is no evidence before me to support the claim in opening that it was known that Oreo had a habit of tangling the chain and could not move away tangled, or about barking in distress.
In those circumstances, I'm not satisfied that the prosecution can establish criminal responsibility on the part of Ms Randell for this act, and I will enter a judgment of acquittal. Okay. So. That completes the matter, Ms Randell, and you are free to go.
[32] ts 56 (17/10/2022).
Appeal legal principles
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[33]
[33] Criminal Appeals Act 2004 (WA), s 9(1).
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[34] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[35]
[34] Criminal Appeals Act 2004 (WA), s 9(2).
[35] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, [56] (Steytler P, Wheeler & Roberts-Smith JJA).
The appellant relies upon the following ground of appeal:
The learned magistrate erred in law, when having found that -
(a)the accused was the owner of the dog 'Oreo' and therefore was a person in charge of Oreo; and
(b)Oreo had suffered harm in the ways identified in the prosecution notice,
her Honour never the less found that the accused had no case to answer.
Legal Principles - No case
Determining whether there is a case for an accused to answer, which the trial judge had to decide, is not an issue of fact but an issue of law.[36] As Gleeson CJ observed in Antoun v The Queen:[37]
The question whether there is evidence capable of supporting a verdict at a civil or criminal trial by jury is a question of law. As was explained in Doney, this is a different question from whether a jury ought to be warned about the probative value of evidence. It is different from the question whether a trial judge might properly inform a jury, at any time after the close of the prosecution case, of its power to acquit. And it is different from the question which confronts an appellate court when it has to decide whether a conviction is unreasonable. There is no advantage to be gained by blurring these differences. Keeping them in mind helps to avoid confusion. (footnotes omitted)
[36] Antoun v The Queen [2006] HCA 2; (2006) ALR 51.
[37] Antoun v The Queen [2006] HCA 2, [16]; (2006) ALR 51.
The relevant applicable principle to be applied on the submission of no case to answer was established by the Full Court in Morrison v Kiwi Electrix Pty Ltd.[38] The learned trial judge is required to ask whether the evidence adduced by the prosecution, taken at its highest, is capable of establishing beyond reasonable doubt the guilt of the accused. The question is whether on the assumption that all of the evidence of primary fact considered at its strongest from the point of view of the prosecution case is accurate, and on the basis that all inferences most favourable to the prosecution which are reasonably open are drawn, the evidence is capable of producing in the mind of a reasonable person satisfaction beyond a reasonable doubt of the guilt of the accused.
[38] Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 489.
Legal principles - Animal Welfare Act
Section 5 of the Animal Welfare Act provides that the term 'person in charge, in relation to an animal' means:
(a) the owner of the animal; or
(b) a person who has actual physical custody or control of the animal; or
(c) if the person referred to in paragraph (b) is a member of staff of another person, that other person; or
(d) the owner or occupier of the place or vehicle where the animal is or was at the relevant time;
Section 19 of the Animal Welfare Act provides:
19.Cruelty to animals
(1)A person must not be cruel to an animal.
Penalty: Minimum - $2 000.
Maximum - $50 000 and imprisonment for 5 years.
(2)Without limiting subsection (1) a person, whether or not the person is a person in charge of the animal, is cruel to an animal if the person -
(a)tortures, mutilates, maliciously beats or wounds, abuses, torments, or otherwise ill-treats, the animal; or
(b)uses a prescribed inhumane device on the animal; or
(c)intentionally or recklessly poisons the animal; or
(d)does any prescribed act to, or in relation to, the animal; or
(e)in any other way causes the animal unnecessary harm.
(3)Without limiting subsection (1) a person in charge of an animal is cruel to an animal if the animal -
(a)is transported in a way that causes, or is likely to cause, it unnecessary harm; or
(b)is confined, restrained or caught in a manner that -
(i)is prescribed; or
(ii)causes, or is likely to cause, it unnecessary harm;
or
(c)is worked, driven, ridden or otherwise used -
(i)when it is not fit to be so used or has been over used; or
(ii)in a manner that causes, or is likely to cause, it unnecessary harm;
or
(d)is not provided with proper and sufficient food or water; or
(e)is not provided with such shelter, shade or other protection from the elements as is reasonably necessary to ensure its welfare, safety and health; or
(f)is abandoned, whether at the place where it is normally kept or elsewhere; or
(g)is subjected to a prescribed surgical or similar operation, practice or activity; or
(h)suffers harm which could be alleviated by the taking of reasonable steps; or
(i)suffers harm as a result of a prescribed act being carried out on, or in relation to, it; or
(j)is, in any other way, caused unnecessary harm.
Therefore, s 19(1) of the Animal Welfare Act creates one offence, namely being cruel to an animal. The prosecution may prove that the accused was cruel by any one or more of the matters referred to in s 19(2) or, where the accused was in charge of an animal, by any one or more of the matters referred to in s 19(3). In the present case, the prosecution alleges that the respondent, being a person in charge of an animal, was cruel by virtue of s 19(3)(b) and s 19(3)(d).
Section 19(2) applies to any person who does any one or more of the matters particularised in that subsection. If the person does any one of the particularised acts, then the person is cruel to the animal. Section 19(3) does not require that the 'person in charge of an animal' actually does any of the acts or matters particularised as constituting cruelty under the Animal Welfare Act. Rather, s 19(3) is creating a positive duty on a person in charge of an animal that the respective animal is not subject to cruelty by the acts or matters particularised in the subsection.
In respect to a charge pursuant to s 19(1) and s 19(3), the prosecution must prove beyond a reasonable doubt that the accused was a person in charge of the animal and that the animal was subject to cruelty by one or more of the circumstances particularised in s 19(3) of the Animal Welfare Act. There is no element of knowledge in the offence created by s 19(1) and s 19(3) of the Animal Welfare Act.
Section 28 of the Animal Welfare Act provides the specific applicable defence provisions in the following terms:
28.Defence - where person in charge is not in actual custody
(1)It is a defence to a charge under section 19(1) committed in circumstances described in section 19(3)(d), (e), (f) or (h) for a person to prove that the person -
(a)is a 'person in charge' by reason of paragraph (a), (c) or (d), but not paragraph (b), of the definition of that term; and
(b)took reasonable steps to ensure that the animal would be properly treated and cared for.
(2)It is a defence to a charge under section 19(1) committed in circumstances described in section 19(3)(d), (e), (f) or (h) for a person to prove that the person -
(a)is a 'person in charge' by reason only of paragraph (d) of the definition of that term; and
(b)did not know, and could not reasonably be expected to have known, that -
(i)the animal was at a place, or in a vehicle, owned or occupied by the person; or
(ii)the animal was not being properly treated and cared for.
Therefore, a person charged with an offence under s 19(3) of the Animal Welfare Act may rely upon the specific defence provisions in s 28. The defence provisions are highly relevant in the case of an accused that owns an animal. Under the Animal Welfare Act a person can therefore be in charge of the animal without having custody of the animal at the time the act or circumstance of cruelty allegedly occurs.
Assessment
In the present case, the respondent was the owner and therefore, a person in charge of the animal. The evidence at trial supported findings that the respondent was unable to keep the animal at her property and therefore, arrangements were made to allow the animal to be kept at her relative's property. The respondent did not dispute that the animal was being kept at the property. Further, the respondent attended the property to care to the animal. The respondent admitted that she attended the property to feed the animal two days prior to the death. Upon the attendance of the RSPCA inspector, the animal was found tethered without shelter and had died of heatstroke. In this case, as a matter of law, if the evidence adduced is taken at its highest and accepted and if all inferences open on that evidence adverse to the respondent are drawn, the respondent could be convicted.
The evidence at the trial supported a finding that the respondent did not have custody of the animal at the time the act or circumstance of cruelty occurred. The respondent therefore, if permitted to do so by the learned Magistrate, may have elected to give evidence and that testimony may have addressed whether the respondent knew the circumstances in which the animal was being kept and the steps undertaken by the respondent in respect to the proper care of the animal which she owned. The respondent has the legal burden of proving the defence under the Animal Welfare Act on the balance of probabilities.[39]
[39] Mulhall v Barker [2010] WASC 359.
There is no element of knowledge in respect to an offence contrary to s 19(1) and s 19(3) of the Animal Welfare Act. The learned Magistrate erred in law in finding that there was no case to answer because the prosecution did not have sufficient evidence that proved knowledge.
During the hearing of the appeal, submissions were received from the appellant concerning the scope of the defence provisions in the Animal Welfare Act and s 24 of the Criminal Code (WA). It is neither necessary nor appropriate that I consider that matter. The respondent was not given the opportunity to give evidence nor adduce evidence. Therefore, whether any defence provision arises is unknown.
Conclusion
Accordingly, the learned Magistrate erred in law in finding that the respondent did not have a case to answer. Therefore, leave to appeal is granted and the appeal is allowed. The verdict of acquittal is set aside and a retrial is ordered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Honourable Justice McGrath
29 JUNE 2023
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