Hutchens v T2 Enterprises Pty Ltd; Hutchens v Perkins
[2019] ACTMC 28
•14 August 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hutchens v T2 Enterprises Pty Ltd Hutchens v Perkins |
Citation: | [2019] ACTMC 28 |
Hearing Dates: | 26 February 2019, 24 April 2019, 21 June 2019, 18 July 2019 |
DecisionDate: | 14 August 2019 |
Before: | Magistrate Morrison |
Decision: | See paragraphs [26], [28], [45] |
Catchwords: | CRIMINAL LAW – Animal Welfare Act 1992 (ACT) (the Act) – failure to take reasonable steps to provide an animal with appropriate treatment for illness, disease, and injury contrary to s 6B(2)(a)(iv) – application of Chapter 2 of the Criminal Code 2002 (ACT) – construction of the physical and fault elements of the offence – proof of recklessness – whether defendants on notice of requirement for treatment – absence of evidence about appropriate treatment |
Legislation Cited: | Animal Welfare Act 1985 (SA) s 13 Animal Welfare Act 1992 (ACT) s 6B Criminal Code 2002 (ACT) ch 2, s 22 |
Cases Cited: | Taylor v Royal Society for the Prevention of Cruelty to Animals (SA) Inc [2016] SASC 61 |
Parties: | T I Hutchens (Informant) T2 Enterprises Pty Ltd (Defendant) Jason Perkins (Defendant) |
Representation: | Counsel Mr C Wanigaratne (Informant) Mr A Fraser (Defendants) |
| Solicitors ACT Office of the Director of Public Prosecutions (Informant) Armstrong Legal (Defendants) | |
File Number(s): | CC 41186 of 2018; CC 41187 of 2018; CC 41188 of 2018; CC 41189 of 2018; CC 41190 of 2018; CC 41191 of 2018; CC 41192 of 2018; CC 41193 of 2018 |
MAGISTRATE MORRISON:
Introduction
The defendants each face four charges under s 6B(2)(a)(iv) of the Animal Welfare Act 1992 (ACT) (the “Act”) for failure to take reasonable steps to provide an animal with appropriate treatment for illness, disease or injury.
The charges against each defendant are the same. Each of the charges relates to one of four animals which, at the time of the commission of the alleged offences, were kept at the Yarralumla Play Station, a facility owned and operated by the defendants.
The charges are as follows:
(a)charges CC 41193 and 41189 of 2018 relate to a yellow male canary;
(b)charges CC 41190 and 41186 of 2018 relate to a white female turkey;
(c)charges CC 41191 and 41187 of 2018 relate to a white female chicken; and
(d)charges CC 41192 and 41188 of 2018 relate to a grey and black chicken.
These four animals were seized by RSPCA inspectors on 4 April 2018 following a complaint some days earlier about the condition of some of the animals at the Yarralumla Play Station. Following an examination by a veterinarian, it was determined that the condition of these animals was such that there was no option other than to euthanize them.
The Criminal Code 2002 (ACT) (the “Code”) applies to offences under the Act, but the identification of the physical and fault elements of the offence created under s 6B(2)(a)(iv) has not been straightforward. Section 6B(1) of the Act imposes a broad obligation on a person in charge of an animal. This obligation is expressed as a duty to care for the animal. The more specific obligations impliedly case by virtue of s 6B(2)(a) are straightforward enough. The charge against the defendants in this case are brought under sub-paragraph (iv), referring to a failure to take reasonable steps to provide treatment for illness, disease or injury.
The physical and fault elements
I invited the prosecution and defence to make submissions in relation to the physical and fault elements. I did so primarily because of what I saw as the difficulty in reconciling the apparent requirements of the application of Chapter 2 of the Code. In particular, Chapter 2 would require:
(a)proof of a failure by the defendants to provide appropriate treatment measured not by reference to any understanding of theirs, but rather to the objective test inherent in use of the expression “reasonable steps”; and
(b)proof that the defendants intended to fail to take reasonable steps, that being the default fault element provided for in Chapter 2 of the Code: see s 22.
The difficulty in reconciling those obligations can be expressed this way: how can a defendant be said to have intentionally failed to do something when he might not subjectively have recognised the requirement to do so?
The defence’s written submissions were to the effect that it was an element of the offence that the defendants’ “obligation to act would arise only if he had knowledge of illness, disease or injury”. The case of Taylor v Royal Society for the Prevention of Cruelty to Animals (SA) Inc [2016] SASC 61 is cited in support of that submission. Taylor involved an appeal from a decision of a magistrate after a conviction for an offence committed contrary to s 13(2) of the Animal Welfare Act 1985 (SA). That section imposes implied obligations which are differently expressed to those in s 6B of the Act, although it does create an offence based upon failing to take reasonable steps to mitigate harm suffered by an animal. The magistrate dealt with the matter on the basis that it was necessary to prove that the defendant knew that animal was suffering. That conclusion was not challenged on appeal. Of course, South Australia does not have the equivalent of an all-encompassing Code dealing with elements of criminal responsibility and the decision is therefore not persuasive for present purposes.
My own analysis of the elements of the charged offences is as follows.
An offence under s 6B(2)(a)(iv) is conceptually in a materially different category to the offences under sub-paragraphs (i) – (iii). The implied obligations under those other sub-paragraphs – that is, to provide food, water, shelter and the opportunity to display normal behaviour – are obligations which, as a matter of common sense, apply to all animals at all times. However, the implied obligation under s 6B(2)(a)(iv) logically applies only when an animal is suffering from some illness, disease or injury, or, perhaps more precisely, only when the animal requires some treatment for illness, disease or injury.
Whilst not identified in the section in these terms, it follows that a prosecution under s 6B(2)(a)(iv) can only succeed if the prosecution proves beyond reasonable doubt that such a requirement for treatment for illness, disease or injury existed. In other words, no offence of failing to take reasonable steps to provide appropriate treatment can succeed unless it is established beyond reasonable doubt that a requirement for such treatment existed.
Accepting that to be the case such a requirement would constitute a physical element of circumstance. By virtue of chapter 2 of the Code, in the absence of any express fault element in the section, the default fault element is recklessness.
It follows that, for the prosecution to succeed in relation to a charge under s 6B(2)(a)(iv), it is necessary for the evidence to establish beyond reasonable doubt, not merely that the defendant failed to take reasonable steps to provide treatment, but first:
(a)that the animal required treatment for some illness, disease or injury; and
(b)that the defendant knew or was at least reckless that such a requirement existed.
The deconstruction of the elements of an offence under s 6B(2)(a)(iv) referred to above goes some way to reconciling what must be proved for a successful prosecution. The need to prove that a defendant intentionally failed to take steps to provide appropriate treatment sits easily with proof that the defendant knew that a requirement for treatment existed.
In addition, such a deconstruction also logically accommodates proof of the requirement for treatment based upon recklessness. That is to say, proof that a defendant was aware of a substantial (unjustified) risk that a requirement for treatment existed can logically be reconciled with a requirement to also prove that the defendant then intentionally failed to take reasonable steps to provide appropriate treatment.
The evidence and consideration
Having reached that conclusion about the elements of the offence, the analysis of the facts can be dealt with quite shortly.
The defendants’ knowledge or recklessness about a requirement for treatment of the animals the subject of the charges can only have come about as a result of direct observations by Mr Perkins or what was reported to him or some combination of both.
I recognise that in theory the recklessness test may be met by what might be described as wilful blindness but that is not the basis upon which the prosecution case has been conducted.
The evidence about what was known by Mr Perkins came from Ms Taylor Ballard and Mr Aaron Jones – both of whom were employees at the Yarralumla Play Station – and, of course, from Mr Perkins himself. There is no evidence that Mr Perkins made any relevant direct observations of any of the relevant animals. He says that he relied upon what was reported to him by Ms Ballard and Mr Jones.
Ms Ballard commenced working at the Yarralumla Play Station in February 2018. In her testimony, Ms Ballard said that when she was employed she was told that her duties would involve “[l]ooking after the farm animals and assisting with the animals’ care”. However, during the course of her employment Ms Ballard was given other duties – that is, duties other than those directed to animal welfare – which made it difficult for her to properly carry out her animal welfare role. I accept her evidence about that. She presents as a person who cares deeply about animal welfare, and she was clearly concerned about being able to fulfil that role.
It is apparent, however, that despite the competing demands on her time, she did in fact carry out inspections of the animals and report on them to Mr Perkins. There is no evidence that Mr Perkins was told that her reports were incomplete or inadequate because she did not have the time to do them properly.
In the circumstances, I am not persuaded that it was unreasonable for Mr Perkins to rely upon what was reported to him.
The evidence in relation to reports about the turkey is materially different to that about the two chickens and the canary. I deal with the evidence relating to these latter three birds first.
Even assuming for present purposes that the evidence established a requirement for treatment of the chickens and the canary, there is no evidence that specific concerns about them were brought to the attention of Mr Perkins by either Ms Ballard or Mr Jones, or, indeed, anybody else.
There is no evidence upon which to conclude that Mr Perkins either knew or was reckless about any requirement for treatment of the canary.
The charges relating to that bird must therefore be dismissed.
Ms Ballard said that she made some general observations to Mr Perkins about the risk of laying chickens becoming egg-bound. I note the testimony of Dr Liang that it is difficult for a lay person to identify when a chicken is egg-bound. In the circumstances, I do not accept the prosecution submission that the general observations of Ms Ballard were sufficient to put Mr Perkins on notice such that he was then reckless about a specific requirement for treatment at the relevant time of the two chickens which are subject of the charges.
The charges relating to those two chickens must therefore also be dismissed.
As noted earlier, the evidence about the turkey puts it into a different category.
I deal first with the question of whether the evidence establishes that the turkey was in need of treatment for illness, disease or injury. Despite the opinions expressed by Dr Liang based upon his review of the reports and the video, I prefer the testimony of Dr Flesser and the observations of Ms Ballard herself about the state of the animal immediately before the arrival of the RSPCA officers. I find that, on the basis of that testimony, the turkey was in need of treatment for illness, disease or injury at the time of the alleged offence.
That conclusion leads to an analysis of whether Mr Perkins knew or was reckless about the condition of the turkey. Ms Ballard says that she told Mr Perkins of her concerns about the turkey and that she was “shrugged off”. For his part, Mr Perkins acknowledges that he was told of concerns about the turkey but says that he was told that it was being monitored.
It is necessary at this point to deal with some findings about credit.
Ms Ballard presented as a forthright young woman, who, as I have said, evidently cares deeply for animals. She was only quite new to the job when the RSPCA seizure took place. I was left with the impression that she struggled somewhat with what were no doubt competing priorities for her – on the one hand, wanting to carry out the work she was directed to do by her employer, but, on the other hand, wanting to properly fulfil that part of her role dealing with animal welfare. Against that background, I think it is likely that at least some of what she said to the RSPCA inspectors went beyond what she had reported to Mr Perkins.
Mr Perkins gave evidence in the defence case. He also generally presented as a forthright witness. There was, however, one aspect of his testimony which warrants special mention. Mr Perkins was cross examined about the meeting with Ms Ballard which took place on 6 April 2018. The RSPCA seizure had taken place on 4 April. Ms Ballard had left the premises immediately thereafter – that is, on 4 April – after what appear to have been some heated exchanges. She attended the meeting on 6 April at the request of Mr Perkins. He described it as an exit interview. In the course of cross examination, Mr Perkins denied that he had at that meeting asked any questions of Ms Ballard about the animals which had been seized by the RSPCA only two days earlier but gave no rational explanation of why he had not done so. In the circumstances, his evidence about that is inherently improbable and I do not believe it. My conclusion is that Mr Perkins was not being truthful when he gave that evidence. That in turns causes me to doubt other aspects of his evidence.
On the issue of what was reported by Ms Ballard to Mr Perkins about the turkey, I prefer the testimony of Ms Ballard. I find that she did report to him her concerns about the turkey. I find that there was no arrangement for monitoring referred to or put in place, and that Mr Perkins’ response is accurately described by Ms Ballard when she said Mr Perkins “pretty much brushed off what I said”.
Having reached that conclusion I am satisfied beyond reasonable doubt that the report by Ms Ballard to Mr Perkins establishes that Mr Perkins was at least reckless as to the need for treatment for illness disease or injury at the time of the alleged offence.
What falls next for consideration is whether in the circumstances there was a failure by Mr Perkins to take reasonable steps to provide appropriate treatment.
The evidence before me gives rise to some uncertainty about the point in time at which the report by Ms Ballard of her concerns about the turkey was made to Mr Perkins. That is a material consideration because what constitutes reasonable steps to provide appropriate treatment logically has both a temporal and a qualitative aspect.
For his part, Mr Perkins said that the report to him about the turkey took place on the morning when the RSPCA inspectors arrived and seized the turkey.
For her part, Ms Ballard could not be certain of when she had spoken to Mr Perkins about it. She expressed herself in these terms – “so when I noticed that she was unwell and I brought it up to the defendant’s attention, it was pretty much that week that the RSPCA had come in and seized her.”
Later in Ms Ballard’s evidence, the following exchange took place between the prosecutor and Ms Ballard:
Was there any indication by the defendant of medical treatment or veterinary treatment that would be pending, in relation to the turkey or the other ---?
No. Look, to be fair, she did go downhill very quickly.
That evidence leaves open as a reasonable possibility that Ms Ballard’s report to Mr Perkins about the condition of the turkey was in fact made on the very morning on which the RSPCA officers intervened.
The culpability of Mr Perkins’ conduct must be assessed at the time referred to in the charges – that is, at the time of the RSPCA intervention.
There was no evidence given at hearing as to what would have been appropriate treatment for the turkey, what would have been reasonable steps to provide such treatment, or about the time frame within which any such treatment could or should reasonably have been provided.
I am satisfied that Mr Perkins did not immediately act in response to the concerns expressed to him by Ms Ballard. However, in the absence of evidence of the kind referred to, and given that I cannot exclude the possibility that he was told of concerns about the turkey only shortly before the arrival of RSPCA officers, I cannot be satisfied that, at the time of the RSPCA intervention, Mr Perkins had failed to take reasonable steps to provide appropriate treatment.
The charges in relation to the turkey are therefore also dismissed.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Morrison Associate: Angus Brown Date: 14 August 2019 |
0
1
3