Janice Lesley RICHARDSON v Royal Society for the Prevention of Cruelty to Animals

[2008] NSWDC 342

CITATION:	Janice Lesley RICHARDSON v Royal Society for the Prevention of Cruelty to Animals [2008] NSWDC 342
HEARING DATE(S):	28/11/08
JUDGMENT DATE:	17 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Appeal against finding of guilt re s5(3) POCCAA offence upheld. Appeals against findings of guilt re s 8(1) matters (x 17) dismissed. S 31 order varied Costs for Local Court proceedings awarded in the sum of $12,681. Costs of appeal to be decided.
CATCHWORDS:	CRIMINAL LAW - Costs - Local Court - Private prosecution
LEGISLATION CITED:	Prevention of Cruelty to Animals Act 1979 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1989 Fines Act 1996 Justices Act 1902 Justices Act 1902
CASES CITED:	Charara v The Queen [2006] NSWCCA 244 He Kaw Teh v The Queen (1985) 157 CLR 523 DPP v Longshaw (1990) 20 NSWLR 554 Veen (No 2) v The Queen (1988) 164 CLR 465 Pearce v The Queen (1998) 194 CLR 610 Clatex Refining Company Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 553 Ly v Jenkins (2001) 114 FCR 237, (2001) FCA 1640 Cachia v Hanes (1994) 179 CLR 403
PARTIES:	Janice Lesley Richardson Royal Society for the Prevention of Cruelty to Animals
FILE NUMBER(S):	2008/00005021
COUNSEL:	Mr P King - Appellant Mr M Gallagher - Respondent
SOLICITORS:	Sam Hegney Solicitors - Appellant Smythe Wozniak Solicitors - Respondent

JUDGMENT

Appeal against findings of guilt/penalties

Introduction

1 Janice Richardson (the appellant) appeals against findings of guilt in respect of 18 charges, and if unsuccessful in that regard, then against relevant penalties, arising from the decisions of the Magistrate at the Local Court at Tenterfield on 22 January 2008. Then the appellant was found guilty of all charges brought by the respondent. She was found guilty of one count contrary to s 5(3)(c) Prevention of Cruelty to Animals Act (POCAA) and 17 charges contrary to s 8(1) POCAA.

2 The particulars of the respective charges were as follows:

In relation to the one offence contrary to s 5(3)(c) of the Act, it was alleged that the appellant, “being the person in charge of an animal (sic), to wit, 37 cattle, did fail where it was necessary for the animal to be provided with veterinary treatment for a period of time to be provided with that treatment, in that she did fail to provide veterinary treatment for a heavy burden of cattle lice”. This offence was allegedly committed between 22 October 2006 and 22 November 2006 at Bolivia, the location of the appellant’s property.

3 The other 17 allegations, each contrary to s 8(1) of the Act, allege offences concerning individual cattle of “failing to provide the animal with food which is proper and sufficient and which is reasonably practicable in the circumstances for (the defendant) to provide”. These offences were allegedly committed at the same location, between 2 September 2006 and 22 November 2006. The short particulars alleged the accused failed to provide food which was “proper and sufficient” to meet the particular cow’s “daily nutritional requirements, causing it to be in an emaciated body condition”.

4 As the matter has been argued in this Court issues relating to the findings of guilt and the penalty in each instance have been litigated before any final judgment. This was the only practical way to deal with the matter, as it was a case heard initially at Tenterfield, in the Local Court, and then argued in the District Court at Armidale, in circumstances where counsel had travelled from Sydney. It was, in fact, the last matter dealt with in the sittings and had been specially fixed to accommodate the availability of counsel and to enable the appellant to find legal representation. The Court is grateful for the cooperation of Mr King, for the appellant, and Mr Gallagher, for the respondent, in the conduct of this matter.

The proceedings at the Local Court

5 Evidence was called at the Local Court on 16 August and 15 November 2007. The learned Magistrate reserved his decision until 22 January 2008. This matter involved not only evidence from the prosecution but evidence from the appellant and evidence from a veterinary surgeon, Dr Krammy (sic), in support of the appellant’s case. Much of the prosecution case, so far as evidence in chief was concerned, was conducted by tender of statements, particularly from RSPCA Inspectors and veterinary officers assisting the RSPCA in its investigation of the matter and the subsequent prosecution.

6 I have had regard to the judgment of the learned Magistrate which involves some recitation at length of the evidence and some general findings on credit, particularly in relation to the appellant and her witness. Although this is an appeal by way of rehearing on the transcript, in accordance with the provisions of s 18 Crimes (Appeal and Review) Act, the Court is entitled to have regard to the findings of the Magistrate as discussed by Mason P in Charara v The Queen [2006] NSWCCA 244`( [22]-[24]). Ultimately, I have found little assistance in the Magistrate’s reasoning and his assessment of the credibility of witnesses. There is much exposition of parts of the evidence, but little analysis. Whilst I note his rejection of the evidence of the appellant and that of Dr Krammy, there was little justifying that rejection. His reason, in part, for rejecting Dr Krammy’s opinion was based upon, it would seem, some perceived “familiarity” by the veterinary surgeon with the appellant by reason of referring to her at one stage by her christian name. This by itself, in my view, was a spurious basis for rejecting an expert opinion on the basis of perceived lack of impartiality. There were other more salient issues of the evidence that his Honour did not analyse. I will refer to this later.

7 Ultimately, I believe I am required to consider the matter on the basis of the evidence given at the Local Court, with little assistance in the Magistrate’s reasoning and some additional evidence adduced by leave pursuant to s 18 of the Act. The point made, as part of the appellant’s submissions, that there was some constructive failure to exercise jurisdiction may well have been properly made if that argument had been advanced on a question of law in the Supreme Court where the issue would have greater relevance to that jurisdiction. Here the underlying issue, that is more relevant to this Court, is the reliance it may have upon his Honour’s reasoning.

8 In the conduct of the appeal, apart from the record of the Local Court, I have received additional evidence from Mr Hegney, a solicitor with in practice at Armidale and documentary exhibits. I will refer to his evidence in my assessment of the facts of the case. In my view it was proper to receive this evidence in the interests of justice, although it might not have been relevantly “fresh”. I also received some material from a New South Wales Departmental website.

Submissions of the parties

9 The appellant’s contentions were essentially:

i. that there had been a miscarriage of justice, by reason of the conduct of the Magistrate including the failure of the Magistrate to properly consider the issues and because of either apparent, or latent, duplicity in the charges.

ii. On the totality evidence the Court could not find the defendant guilty of the offences charged.

iii. In respect of the s 8(1) offences, the finding of guilt and fixing of a penalty for one charge required dismissal of the other charges (s 34(3) POCAA) – a submission I take as directed at either findings of guilt or penalty.

10 In relation to the issue of latent duplicity, there is complaint made about the failure to identify relevant contaminated cattle in respect of the one offence contrary to s 5(3)(c) POCAA. Purported duplicity in the s 5(3) charge is academic in light of my ultimate findings. Other complaints made relate to the “global” approach made by the Magistrate in relation to the seventeen other charges, and the inclination of the Magistrate, it is said, to roll all the offences into one. These issues are matters that require consideration in the context of re-examining the evidence that was before the Magistrate. There appears no latent or clear duplicity in the charges brought pursuant to s 8(1) of the Act. Each charge deals with an individual head of cattle and can be considered separately on the relevant evidence to that charge. Of course most of the evidence is generally relevant, however the observation of the condition of individual cattle was only relevant to the individual charge concerned with that particular charge. That the Magistrate may have rolled up the evidence is of no moment now.

11 The sufficiency of evidence issue is, of course, at the heart of the appeal against the findings of guilt. The argument put was that the prosecution case to establish guilt in respect of the seventeen s 8(1) POCAA offences was a circumstantial evidence case and that it was reasonably possible that the cause of the condition of the cattle was other than by the actions of the appellant. There were hypotheses inconsistent with guilt that may be identified from the evidence, notwithstanding that the appellant was in charge of the subject cattle. They included someone else being responsible for the condition of the cattle, the RSPCA recommendations for care of the cattle contributed to their condition and the cattle themselves did not eat the feed provided for them.

12 The respondent submitted that there was sufficient evidence to convict the appellant and relied upon an outline of written submissions and some additional specific oral submissions in response to the appellant’s arguments. As it transpired in the course of discussion with the learned counsel for the respondent, a particular issue that arose in respect of the one alleged breach of s 5(3)(c) POCAA was whether there was any evidence that could conclude, as the legislation requires to be proved, that the relevant veterinary treatment was “necessary” to be provided to the animal. That the animals may have been lousy was, it would seem, in the absence of other evidence, not sufficient to establish the charge. It was conceded by counsel for the respondent that no such evidence was, in fact, provided to the Magistrate. Otherwise the respondent’s position was that all outstanding charges were clearly established, and that the further evidence of Mr Hegney was ultimately of little weight in the determination of these matters.

General survey of the evidence of the evidence at the Local Court

The prosecution case

13 The appellant was a woman in her early sixties, living alone at a property called Hillview Park, at Bolivia, which is a hamlet 30 kms to the south of Tenterfield. The property that she occupied was approximately 150 acres in size, having been diminished in size from about 350 acres over a period of some years. A visit by RSPCA inspectors in early June revealed approximately 50 head of cattle, including cows, calves and a bull which were not in good condition. On 21 June 2006 Alistair Hills, the RSPCA Regional Inspector, returned to the property providing the appellant with a management plan and recommendations for the welfare of the cattle. The management recommendations were made to the appellant by document dated 21 June 2006 served by RSPCA officers. Those recommendations were that the cattle should be fed more protein, energy and roughage, that cattle numbers should be reduced to a more sustainable level on the pasture with a suggestion that she should keep eight to ten of the younger, better conditioned cows and other stock should be sold off. Older and poor cows should be sold for whatever price the market was prepared to offer as “current feeding requirements and costs would most likely prove uneconomical”. There were recommendations as to the handling of the bull and recommendations in relation to drenching and vaccination.

14 A visual inspection was conducted on 26 October 2006. Fifteen cattle were seen in a rear paddock in “poor to average” body condition. There was “very little” natural feed and “no hand feeding” sighted. On 7 November 2006 two Inspectors, Hills and Inspector Kelly, attended upon the property and spoke to the appellant. The appellant told the inspectors on that later date of difficulties she had had with managing the property, particularly while she had been in hospital. The appellant, both to the inspectors and subsequently in the hearing of the case, sought to ascribe responsibility for the welfare of the cattle in large part to a person called Bradley Evans, to whom she said she had entrusted the cattle from early June until after her discharge from hospital. She gave evidence that she sacked him on 2 September 2006.

15 When the RSPCA inspectors attended the property of the appellant on 7 November, the appellant asserted that Evans had not followed her instructions and the deterioration and any condition of the cattle was due to his failings. Observations were made on that date of the available feed, both for hand feeding and for natural feed. The appellant was warned that the cattle were not being fed enough but the appellant disagreed with this assertion. Thirty one cattle were observed in varying condition. There was very little natural feed, with bare ground on the majority of paddocks, no standing dry fee in the paddocks and six bales of lucerne and ten bales of low quality millet hay.

16 On 22 November 2006 Inspectors Hills, Kelly, an investigator, Mr Hall, and two veterinarians, Graham Doherty and Lisa Martin attended the property. Some feed was distributed to a number of cattle. Ultimately twenty-one cattle were removed, including calves, because of their poor condition. Each of these stock were allocated a number and seventeen of the cattle became the subject of the allegations of offences contrary to s 8(1) POCAA.

17 At the Local Court the statements of a number of the Inspectors and the two veterinarians who attended were admitted without objection and photographic evidence was produced purporting to show the condition of the cattle, who can be seen from the photographs to be in poor and emaciated condition to varying extents.

18 The property was described by the local Rural Lands Protection Board veterinarian, Lisa Martin, as being half lightly timbered with scant pasture and a steep gully. As at 22 November it was described by Dr Martin as having the capacity to run fifteen dry cows or steers or ten to twelve pregnant or lactating cows. There were, in fact, at least 37 cattle, including a number of the cows lactating with calves at foot.

19 The history of the local climatic conditions was that the Tenterfield area had been drought affected in 2003-2004, recovery had been sporadic since that period, there was a reasonable season in spring and summer in 2005 which had allowed cattle in the area to gain condition before the cold winter season and the area in which the property was located had been removed from drought declaration on 30 November 2005. It was drought declared from 1 June 2006 but removed from drought declaration on 30 September 2006. The area went back into drought on 1 November 2006. Dr Martin expressed an opinion that was not challenged at the court below that most cattle in the local area were “quite well conditioned” (as at 22 November 2006) with “storm rains and warmer weather assisting pasture growth”.

20 The observations in June 2006 in this matter form background material to the gravamen of the allegations brought against the appellant. For the purposes of determining this matter I place little weight upon the observations made of the cattle at that point of time. It is common ground, in fact, that the opinions expressed by the Inspectors at that time were opinions outside their qualifications. Their observation was that a number of the cattle were not in good condition but little else could be gleaned from that matter. The critical issue was the condition of the cattle on 22 November 2006 and what caused that within the period of 2 September until that latter date.

21 The statement of admitted facts, tendered at the Local Court, noted that, as at 7 November 2006, an inspection showed that there was “minimal natural field … no stock had been sold” and the defendant stated at that time that “20 head had been lost due to lack of feed and calving problems” but the appellant advised that she did not think there was “any problem with the cattle and they were getting enough feed”. She admitted care and control of the cattle over the relevant periods of the charges.

22 When the cattle the subject of the s 8(1) charges (along with other cattle) were seized on 22 November 2006, Dr Doherty, a veterinary surgeon, retained by the RSPCA inspected the cattle. In fact, as he revealed at the Local Court, he walked a number of them to be penned for some distance. He came to the conclusion that seventeen of thirty-seven cattle that he inspected had a “body condition score” of “1”. These were the subject of the charges brought pursuant to s 8(1) of the Act.

23 The evidence reveals that a “body condition score” is an accepted scale from “0” to “5” for assessing the condition of cattle. “0” represents “being incompatible with life” and “5” represents “grossly overweight”. Dr Doherty was of the view that seventeen of the thirty-seven cattle should be given a body condition score of “1”, which means “having all ribs, spine and hips visible, sunken over the rump area and no muscle mass”. Seventeen other cattle were scored at “2”, which is “having all ribs, spine and hipbones visible, sunken over the rump area and with some muscle mass”. These other cattle were not the subject of charges. A document tendered on appeal by the appellant from the web site of the NSW Department of Primary Industry (DPI) deals with “Visual and Manual assessment of fatness in cattle”. The document provides useful background, but neither its written detail, or the included unclear photographs, could be relied upon to second guess the observations of the veterinary surgeons who attended on 22 November 2006. Certainly I am not in a position to undertake a comparison with the photographs in the document with the photographs of the subject cattle to ‘check’ on the opinion of Dr Doherty.

24 The local Rural Lands Protection Board veterinarian, Lisa Martin, in her report set out a very detailed account of the circumstances in which the cattle were found and the manner of the inspection. None of this evidence was challenged in the court below in any realistic way. She described the method of marking with identification labels relevant cows. I note that all the cattle recommended for seizure, because of their poor condition, or need of veterinary treatment, were fit for transport, so long as they were not transported too far. She expressed the opinion that the cattle may die of malnutrition if left on the property. Other cattle had been lost according to Ms Richardson. The cattle seized included two yearling heifers, three calves and one springing cow, which calved on, or shortly after, 22 November 2006. She was of the opinion that the property was over stocked. The recommended numbers I have referred to above.

25 The evidence of the veterinarians who attended was essentially left unchallenged or unshaken on the issues of observations of cattle, the degree of emaciation, the cause of their condition on 22 November and the reasons for it. Dr Doherty was of the opinion that it was not reasonably possible that their condition was as a result of proper and sufficient food over the period between 2 September 2006 and 22 November 2006.

26 It was established at the hearing that the cattle in question were mustered to be given a thorough examination by the vets with fecal (sic) and hair samples taken for further analysis. Cattle lice were detected. It was admitted by the appellant in the same statement of admitted facts that she was in hospital between 9 August 2006 and 28 August 2006. Inspector Hills conceded that at all relevant times he had contact with Ms Richardson she was mobile, but only with the aid of walking sticks or a frame. The cattle seized were treated, fed on veterinary advice and released back to the care of the defendant in about March 2007. The seventeen cattle subject of charges pursuant to s 8(1) POCAA were in improved condition after treatment and appropriate feeding. They were scored, as at early March, between 2-3 and were regarded as “very healthy”.

27 The appellant was interviewed on 7 December 2006 and that “record of interview” was in evidence. The appellant in that interview was adamant that she had cared for the cattle and that any short fall in their condition arose from the neglect of the man Evans, who she said was responsible for the animals on the property from April through until September. She said “until I got very ill in March/April this year I had total responsibility. I hired an employee who has been responsible for neglect, killing and cruelty to my animals while I was in hospital in August … he used me, manipulated me, lied to me and cheated me and robbed me”. She admitted responsibility for the animals from September. She said that she had done “everything” that had been recommended to her by the RSPCA and neither Evans nor another person (Jeff Benson) had followed through with her instructions. She asserted that in the “last three months” she had used “very expensive lucerne, hay …. nuts, cotton seed meal, solflox” and that the cattle had been drenched “five times this year”. They had been provided with shade, shelter and water and that she had put a “bit of lime in their water troughs on the nuts”. She said that she had been feeding “a couple of bags of nuts every couple of days” and the lucerne was “top quality”.

28 She asserted that she thought that someone had been poisoning her cattle and that she had deceased cattle tested and there had been “several post mortems” however the results were “inconclusive”. She denied that her herd was in poor condition on 26 October 2006 stating that they were “a lot better than they were in September”, primarily because of the neglect of Mr Evans. She spoke of the problem with lice arising after mistreatment by Mr Evans and that she relied upon him during four months, three months of which she “could not walk” before she went to hospital in August. She said that she did not know that Evans was not caring for the animals adequately before she went to hospital and that she sacked him when she discovered the true situation on her return home in early September. She said that at the time of interview she was physically capable of looking after the cattle because she “(had) to be”. She made assertions that there had been improvements in the cattle in the observation of others prior to them being seized and that their condition had improved since the time that Evans had been sacked. Evans did not give evidence.

29 Hearsay representations relied upon by the prosecution from Evans and local merchants, criticising the defendant or otherwise making allegations against her I have ignored. I accept that, at least during August and before, the defendant was dependant upon others to care for the cattle.

The appellant’s case

30 The appellant in her evidence said that she had looked after the cattle up until June 2006 and gave details of what she had done in that period particularly in the period January through to March. She said that when she became ill, although she suffered chronic illness including “cancer, heart failure and kidney failure”, she could not look after the cattle and obtained assistance particularly from Brad Evans who started in around May 2006. She had been ill in March 2006 with what was described as “post polio syndrome”. She said that Evans took full control of the cattle in June 2006 but she was forced to sack him in early September 2006, having been hospitalised throughout August when her weight swelled up to over 90 kilograms, her normal weight being in the mid 50 kilogram range. She asserted that the cattle were in “store condition” in early August when she went into hospital but that Evans had not fed the cattle sufficiently and had not followed her instructions.

31 She said in her evidence that immediately before the RSPCA attended on 22 November there had been “six inches” of rain which had revitalised pastures and that when the inspectors attended she had approximately six bales of hay because she did not have the storage facilities for large quantities of feed, she was required to have feed brought to the property a number of times a week. She gave details of the attempts she made to ensure that Evans was looking after the cattle while she was in hospital and asserted that he had misappropriated money that she had provide to him, for example the sum of $400 provided on 21 August while she was hospital had been cleared through his account. She produced in evidence invoices from a feed merchant Exhibit 17 in the proceedings, setting out details of feed that she had purchased in late 2005 throughout 2006.

32 She said in her evidence, particularly in cross examination, that she believed that she was following the recommendations that had been set out in the management plan and that she had kept feed up to the cattle at all times. She referred to the death of a heifer that was the subject of examination by a veterinary surgeon, pathology tests were undertaken, but the cause of death was inconclusive. She thought that her cattle were perhaps poisoned, referring to “toxic poisoning”. The pathology report was dated 8 May 2006 and related to the examination of a six month old female calf. Death was said to be associated with “acute periacinar hepatopathy”, with acute liver damage. Although the liver damage was not considered “lethal”. Causes could have included moderately hepatoxic plants. This report however is dated 8 May 2006. She said that she had shown the RSPCA the report in May/June 2006. I note in passing that some complaint was made by counsel for the RSPCA that this item had not been produced to the RSPCA witnesses. Ultimately this failing is of little moment because the detail of the report, in any event, does not provide any guidance to the condition of the cattle seen six months after the report was published. She was questioned about the same report, referring to the fact that the cattle were “under nutritional stress”, although the veterinary pathologist had not “examined” the cattle.

33 She conceded in cross examination that after she had dismissed Evans she was well enough to feed the cattle. When questioned as to treatment of the cattle for lice infestation, she said that they were to be treated the Tuesday after the RSPCA removed them, a number of the cattle were lactating and there were instructions on the drenching medication that lactating cows with young calves at foot could not be treated, that the cattle had been provided lice treatment in May 2006 and that she did not believe the lice was a threat to the health of the cattle.

34 When taken to the management recommendations set out in Exhibit 11 she said that she had followed the recommendations by feeding more protein, energy and roughage and that she wanted to reduce the cattle numbers, as recommended, but she had not been able to do so. Ultimately, the appellant asserted that she had cared for the cattle both in providing them with adequate feed and other appropriate treatment, however her efforts had been undermined by the negligence of her employee, Mr Evans, between June and early September.

35 The appellant called one witness, Dr Krammy. He expressed opinions about the condition of cattle in the area in which the appellant lived. He was a veterinarian with practise primarily in cattle. He expressed the opinion that the feeding regime that the appellant claimed she had undertaken with the animals was “very good” and that the recommendations in the management plan provided to the appellant by the RSPCA were “unrealistic”. He said that if the animals were fed in accordance with the management plan he would expect that they would lose weight because they were not getting enough “metabolisable energy” and it was unrealistic for the cows to eat that much food. The veterinarian commented upon the pathology results of an examination of one of the animals. He also gave evidence that based upon information provided by the appellant, using a computer program provided by the “Meat and Livestock Association of Australia” concerned with nutrition, the food provided by the appellant on her claim was “quite adequate”. One problem, of course, with this evidence was that the appellant in her evidence and in the interview of 7 December 2006 claimed that she was in fact following the management plan of which Dr Krammy was critical.

36 In the course of his evidence when he was asked whose evidence he was basing his opinions upon, he said; “Based on Jan’s … what she said that she’s been feeding for that time period”. This was one matter that the Magistrate seized upon as discrediting Dr Krammy completely in his findings. However, putting aside any other criticisms of Dr Krammy’s evidence, one could not reasonably dismiss Dr Krammy completely on the basis of an offhanded reference to the defendant by her first name.

37 Ultimately, I would not reject Dr Krammy on the basis of partiality. In any event, no lack of impartiality was put or established from cross examination. I cannot see any reason to rationally consider the reference to her first name as important in this case. One could not conclude that familiarity with the complainant caused the opinions to fall away. The factual assumptions upon which the opinions were based as to adequate feeding were the critical issues arising from his evidence.

Consideration

The s 5(3) POCAA Allegation

38 S 5(3)(c) POCAA requires proof that;

“A person in charge of an animal shall not fail at any time … where it is necessary for the animal to be provided with veterinary treatment, whether or not over a period of time, to provide it with that treatment”.

39 Veterinary treatment is defined in s 4 to include “medical treatment … carried out by … or with the directions of a veterinary practitioner … surgical treatment … a veterinary diagnostic procedure carried out by a veterinary practitioner or a veterinary consultation in respect of an animal by a veterinary practitioner”.

40 There is no requirement that the prosecution prove “veterinary treatment” need only be carried out by a veterinary surgeon (Glass v Crowley 15 Dec 1992 NSWCCA (unreported)). However, apart from an inference that might be drawn on the evidence, the Court was not assisted by any opinions as to the significance of delousing treatment in the context of a failure to provide veterinary treatment “where it is necessary” (emphasis added). Counsel for the respondent conceded that in fact whilst the relevant animals may have been lousy, the evidence of the necessity for relevant veterinary treatment, did not exist on the evidence. This tribunal of fact cannot conclude the relevant ‘necessity’ of such treatment in the circumstances in which the animals presented themselves to the veterinarians on 22 November 2006. Whilst I believe I could readily assume that the presence of lice is not good for the animals, whether in fact the need for treatment at the points of time pleaded was “necessary”, would be a matter of complete speculation on the part of a tribunal of fact, if no relevant opinion had been expressed by someone qualified so to do. Further, the defendant gave evidence that she was planning to have the cattle treated the following week and that lice were not a problem for the health of the cattle in her opinion. There was no basis to disbelieve her as to her plans and her understanding of the significance of the presence of lice, even if one rejected other parts of her evidence. This Court could not conclude that planned treatment the following week failed the test of what was necessary required by the legislation and the charge. Whilst the basic factual matters relating to the presence of lice were established and that subsequently treatment was provided by the RSPCA, the prosecution on the evidence failed to establish beyond reasonable doubt the relevant need required under the section and/or by a failure to meet that need by the appellant. A subsidiary question of whether s 5(3) of the Act in its terms should be construed in the context of the provisions in s 5(1)(2) relating to “an act of cruelty” upon an animal need not be considered at this point.

The s 8(1) POCAA allegations

41 The gravamen of the submissions made on behalf of the appellant was, in respect of the s 8(1) allegations, in the context of what the prosecution had to prove, that the prosecution case was “circumstantial” and on all the evidence the Court could not be satisfied that the prosecution had excluded the reasonable possibility that the appellant had provided food which was proper and sufficient to meet the needs of the individual cattle and/or was reasonable practical for her to do. It was said that the prosecution could not exclude the contribution of intervening events over which the appellant had not control, contributing to their condition. The prosecution bears the burden of proving the guilt of the appellant and guilt is required to be proved beyond reasonable doubt. The burden of proof does not shift to the defendant at any point. Only the evidence relevant to a particular charge could be considered in determining whether the appellant was guilty of that charge. It was incumbent on the prosecution to prove beyond reasonable doubt that the appellant did not honestly and reasonably believe that a set of circumstances existed which would make her conduct innocent (He Kaw Teh v The Queen (1985) 157 CLR 523).

42 The 17 cattle, subject of charge, were clearly in very poor condition on 22 November 2006, consistent with “a failure to provide food that (was) proper and sufficient”. The photographic and relevant opinion evidence was all ‘one way’ in this regard. However, the appellant was adamant that she had adequately cared for the cattle, had followed the instructions in the management plan and that there were contributing facts to the condition of the cattle, particularly the conduct of the employee between June and 2 September 2006 over which she had no control. Furthermore, she relied upon the opinion of the veterinary surgeon called in her case to raise the issue of the management plan provide by the RSPCA as contributing to the condition of the cattle as observed on the 22 November 2006. It was also submitted that Mr Hegney’s evidence was of importance. It showed ample natural feed in the front paddock and sufficient hand feeding. It was submitted that the appellant’s position could be summarised by the adage (by analogy) “you can lead a horse to water but you can’t make it drink”. Mr Hegney’s evidence showed that some cattle were provided with adequate nutrition. The appellant could not control whether the cattle consumed it.

43 I have had regard to the evidence of Mr Hegney, in this appeal, of his observations “a couple of days” before the arrival of the RSPCA on 22 November 2006. He saw a number of cattle in a paddock in front of the homestead, saw lush fresh growth and saw feed within the paddock for the cattle there. The difficulty with the evidence is that it does not establish which cattle in the front paddock, if any, were the subject of the alleged breaches of s 8(1). Further, whilst an inference could be drawn on that day there was fresh hand feeding occurring and recent rains had brought on growth of natural feed, this is but one matter to be considered in the context of the observations of the condition of the cattle by the two veterinarians, Dr Doherty and Dr Martin, who attended on 22 November 2006. Even if feed was provided a few days before 22 November, the offence in respect of each cow was concerned with conduct that occurred over a period of time up to the observations of their condition on 22 November 2006. Mr Hegney was not qualified to, nor in fact made, any detailed examination of the cattle. The issue is one of “proper and sufficient” food, not whether ‘no food’ was provided. Even “proper and sufficient” food on one day may not be relevantly enough having regard to the condition of the cattle at the time, or afterwards.

44 I have had regard to the various tax invoices which are in evidence, produced by the appellant, from what I understand to be a farm produce merchant. Whilst they show the purchase of various quantities of feed, including bales of lucerne and “millet hay”, the last invoice produced is dated 28 September 2006, almost two months prior to the seizure of the cattle on 22 November 2006. The appellant admits taking control of the cattle and being able to feed them from September until the date of seizure by the RSPCA. The invoices show purchase of feed up to a particular date but do not confirm the continuation of hand feeding in drought or similar conditions for such period of time as to avert the condition in which they were found on 22 November 2006. It does not support purchase of adequate nutrition in accordance with the RSPCA recommendations. Given her evidence of limited storage capacity, feed purchased in August and September could have not been stored for much time after delivery. The invoices reflect purchases of more feed while Evans was supposedly in charge of the animals than from after 2 September.

45 Dr Doherty was of the opinion, not shaken or seriously challenged, that “a lack of nutrition would have existed for a period of greater than a month”. Dr Krammy’s evidence did not meet this opinion. He did not see the cattle in question, or effectively comment on their condition as shown in the photographs. On the totality of the evidence I have no reason to doubt Dr Doherty’s opinion on this matter. The evidence of Mr Hegney does not disturb it. Sufficient nutrition on one day, if that be what he saw, does not make for sufficient nutrition over a longer period of time.

46 I have taken into account the assertions of the appellant as to the responsibilities of Mr Evans. Even accepting the breadth of time over which he had responsibility for the cattle claimed by her, that is from June through to September, I do not accept that the condition of the cattle as at 22 November can be explained by any conduct or misconduct on his part. If the subject cattle were in such poor condition as at 2 September 2006, they could not have improved over the next two months because their condition must have been “incompatible with life” as at the earlier date if they were ‘1’ on 22 November 2006. The cattle appear to have deteriorated from 7 November 2006 in any event.

47 In fact, the invoice evidence seems to suggest that a great deal of feed was purchased (assuming it was provided to the cattle) during the period of time that Mr Evans was said to be responsible for the cattle. The appellant’s own case is that she had responsibility for the feeding of the cattle over the period of time the subject of the charge. The opinion of the veterinary surgeon called on her part that the management plan would contribute to the emaciation of the cattle, does not reasonably explain the extremely poor condition of the cattle as at 22 November. Notwithstanding assertions to the contrary by the appellant I have difficulty accepting her claim that she followed the management plan. In any event, it is contrary to the version she gave Dr Krammy. The evidence from the representatives of the RSPCA demonstrates that the appellant had a marked reluctance to accept advice or assistance in relation to the care of the cattle and, in any event, there had been long standing recommendations that there be a reduction of live stock because the property could not sustain the number of cattle that were on the property over the relevant period of time. Dr Krammy’s opinion in relation to the matter, as he conceded, was very much dependant upon accepting the appellant’s account of what she had done to feed the cattle. That account was at odds with her evidence, and neither version explains the perilous condition of the cattle that were seized.

48 Although not all her cattle were emaciated, or in extremely poor condition, the objective observations of the subject cattle on 22 November 2006 was entirely inconsistent with insufficient and proper nutrition being provided to the cattle. I have taken into account, as a circumstance, that not all cattle were rated ‘1’. In the opinion of Dr Doherty, which was unshaken, the subject cattle were one step away from a condition incompatible with life. As there is no reasonable explanation or hypothesis inconsistent with either the appellant being responsible, or with the condition of the cattle being caused by conditions inconsistent with sufficient and proper provision of food, or that someone else contributed to their condition. In the absence of any basis for concluding that it was not reasonably practicable for proper and sufficient food to be provided, I am satisfied beyond reasonable doubt that the appellant, as alleged in relation to each of the cattle, failed to provide each animal with food that was proper and sufficient and which was reasonably practicable in the circumstances for the appellant to provide. Apart from financial constraints there was no reasonable practicality to prevent proper and sufficient food being provided. In fact, the appellant never claimed that it was reasonably impracticable to provide proper and sufficient food. Noting she bore no onus, she claimed she had in fact done what was proper and sufficient. The totality of evidence was to the contrary. There is no reasonable basis for concluding that the condition of the cattle had anything to do with any matter other than a breach of s 8(1) POCAA. S 34(3) has no applicability to the current situation. This provision is directed at the avoidance of double jeopardy, or ‘autrefois convict’ situations. That does not arise here.

49 Furthermore, the prosecution has proven that there was not an ‘honest and reasonable mistake’ as to facts that would make her acts innocent. Even if the defendant had acted to hand feed the cattle for a few days before 22 November 2006, she had not acted to properly and sufficient provide food before then, and the food that was provided was not proper and sufficient given their condition on 22 November 2006.

Appeal against penalty

50 On finding the appellant guilty of the various offences the learned Magistrate sentenced the appellant in the following terms. Firstly, in respect of each matter for which there was a finding of guilt he fined her $500, making a total amount of fines of $9,000. He ordered court costs in the sum of $70. Furthermore he placed the appellant on a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for a period of two years with various conditions relating to permitting officers of the RSPCA to enter her premises, obeying reasonable directions of the officers etc. He ordered a moiety pursuant to s 128 Fines Act in respect of the fines and as a consequence of the conviction pursuant to s 31(1)(a)(b) POCAA that the appellant dispose of cattle within thirty days of the order and not purchase or acquire other cattle pursuant to s 33 (1)(2) POCAA. He ordered that the appellant pay costs and disbursements, pursuant to s 215 Criminal Procedure Act, in the sum of $37,311, witnesses expenses in the sum of $3,272.50 and expenses for the care and treatment of the cattle pursuant to s 30(A) POCAA in the sum of $5,388.76.

51 Although this appeal is one in which the Court is to form its own view as to the appropriate penalty in respect of the matters for which the appellant has been found guilty (DPP v Longshaw (1990) 20 NSWLR 554), there are some matters referred to in the Magistrate’s very brief reasons for sentence that may be referred to as they do not appear to be in dispute. Firstly, the Magistrate held that the appellant was a person of good character, there were prior findings of guilt in relation to possession of firearms for which the appellant received orders pursuant to s 10 Crimes (Sentencing Procedure) Act. However, as the Magistrate found, they were “unrelated” and would appear to be incidental to the appellant being a property owner, rather than in connection with any criminal purpose.

52 The Magistrate recited the various “purposes” of sentencing pursuant to s 3A Crimes (Sentencing Procedure) Act, without particularly analysing those matter and concluded that “the facts of the case are serious” and “any offence involving animals are serious matters (sic) which come before the Court”. He said that the Court “has a general responsibility for general deterrence within the community and a specific deterrence in relation to your conduct”. He noted that she had “a number of options available to you at the time and you failed to take appropriate actions” and “accordingly the Court notes that you were convicted after a lengthy hearing”. He concluded that while the charges were “multiple charges” and were “interconnected to some extent” each matter related to “an individual animal which is of concern”. The Magistrate said that he took into account what had been put on behalf of the appellant as to her “financial circumstances”.

53 What was known from the submissions and the evidence in the hearing is that the appellant was in very difficult financial circumstances. She was living on a 150 acre property which apparently was her sole means of income, the property having been reduced in size over a number of years for reasons not entirely clear. The believed that she had been “robbed” of her lost land. The farm had been drought affected for years. She was 63 years of age with considerable health difficulties and living on a disability pension for which she received $543 per fortnight. The Magistrate was told that she had expenses of running the property combined with living expenses of $700 a fortnight. To meet this shortfall she was “chipping away at the debt she’s got” but the debt was mounting. Her only “real cash flow” came from her disability pension. She had debts of $16,500 for her mortgage and had a further $10,000 in debts for hay and farm maintenance, which were outstanding. As at the 22 January 2008 she had a total of $1,500 in a savings account, which is the balance of the $16,500 that she had drawn against her property. She was legally aided at the conduct of the appeal. I have no reason to doubt her very difficult financial circumstances.

54 In sentencing the appellant at this point of course I am no longer considering the offence brought pursuant to s 5 of the Act. As to the seventeen charges outstanding, it could be said that the relationship between each of them is far more than being “interconnected to some extent”. The conduct of the appellant was common conduct to each of the cattle. There is absolutely no suggestion that the appellant singled out particular cattle for particular treatment. It is abundantly clear that there is no suggestion that the appellant deliberately set about to mistreat her stock. Not all the stock were in as poor condition as the seventeen the subject of charges and, in any event, the appellant was not charged pursuant to s 5(1) of the Act with cruelty to the animals. The evidence revealed, of course, that the appellant was reluctant to take advice from the RSPCA and may have regarded their involvement as meddling in her affairs. It is clear on the evidence that the appellant was, and is, leading a lonely existence with almost no support in the conduct of a property that has been in her control for a number of decades. She had been involved in farming all of her adult life. She appeared to be a knowledgeable farmer. I accept that the RSPCA had sought to assist her by its attendances in June and subsequently, before the ultimate seizure of the cattle on 22 November 2006 and were acting in good faith. However she was very suspicious of their motives believing that she had been singled out for special treatment on the basis that she was the subject of malicious rumours by, or a “conspiracy” of, neighbours with whom she was in some dispute. In the assessment of the matter it is not irrelevant that the cattle, once bought back to good condition, were returned to the appellant. The concern of the RSPCA officers was not of deliberate misconduct, otherwise one might have thought that the cattle would not have been returned.

55 There was evidence from the Inspectors who attended over time that the appellant was physically disabled in a range of ways and clearly had considerable difficulty in running the property in a physical sense aggravated by her difficult financial circumstances which limited the amount of assistance she could hire. I note in the report of Dr Martin of 29 November 2006 she observed that Ms Richardson “may have previously been able to care for her cattle in an adequate manner, there comes a time when ill health reduces ones ability to adequately care for cattle and my opinion is that Ms Richardson may have reached this stage”. Dr Martin was concerned for the welfare of the cattle particularly with Ms Richardson’s health declining. However as she pointed out, whilst Ms Richardson is able to choose to live her life “as she pleases … her cattle have no say in the conditions of malnutrition in which they were then being kept”. She went on to observe “ … there comes a time when ill health reduces ones ability to adequately care for cattle and my opinion is that Ms Richardson may have reached this stage”.

56 Whilst I note s 3A Crimes (Sentencing Procedure) Act, in my view this is not a case that requires great weight to be given either to specific or general deterrence. There is not the deliberateness of misconduct that usually attracts such considerations. In any event, it must be understood that one of the contributing factors to the poor condition of the cattle was the reality that this part of the State, as with most other parts of the State at the relevant time, was emerging from on of the worst droughts of the century. Of course drought does not exclude owners of livestock from providing proper and adequate care, but with the best will in the world drought can place limitations upon persons who are unable or can ill afford to get rid of livestock which are their livelihood. Furthermore, there is absolutely no need to consider the “protection of the community”. This appellant presents absolutely no danger to the community. The “purposes of sentencing” vary in relevance within themselves from one case to the other and, of course, may point in opposing directions to paraphrase the words of the majority in Veen (No 2) v The Queen (1988) 164 CLR 465.

57 The Magistrate did not have regard at all to s 33F(2) of the Act. Learned counsel for the respondent on the appeal drew my attend to s 33F(1) in the context of dealing with an argument in relation to duplicity however, on further reading of the Act it was revealed in argument that s 33F(2) had relevance in this matter. That provision states:

“In sentencing a person for an offence against s 5, 6, 7 or 8 a Court may take into account whether the act or omission that constituted the offence related to more than one animal. However, if the person has already been prosecuted in respect of that act or omission, the Court is to take into account any penalty that was imposed on the person as a result of that prosecution.”

58 It is arguable that provision has relevance here. Ultimately, it does not matter, as the case, in my view, can be dealt with under more general principles of sentencing. As to the submission concerning s 34(3) POCAA, that provision is not relevant to sentencing in this matter.

59 Here the acts or omissions of the appellant were common to each of the seventeen offences, it was in fact the one course of conduct. In these circumstances I am required to have regard to the decision of the majority in the High Court in Pearce v The Queen (1998) 194 CLR 610 (at [45]). That decision requires consideration to the issue of appropriate penalty for each offence but also having regard to issues such as the totality of the criminality and reflecting that in consideration of appropriate concurrency and/or accumulation where it arises. In my view it was not a matter where it is appropriate to separately fine the appellant for each offence in the same amount, noting the maximum penalty for the offence. Whilst one should have regard to “totality” of criminality, the appropriate penalties for each offence should be “concurrent” in their effect, not cumulative. A conviction and good behaviour bond is an appropriate penalty for each offence.

60 Having regard to the character of the offending to which I have referred, the age of the appellant, her extremely limited means, her ill health, and the background in which these offences have occurred I am of the view that I should confirm convictions and good behaviour bond(s), as the Magistrate ordered, pursuant to s 9 Crimes (Sentencing Procedure) Act for these offences. The appellant’s capacity to pay fines is extremely limited if not almost non-existent. The terms of the order made pursuant to s 31 POCAA, with a limitation placed by the Magistrate on the number of cattle to be owned, does not accord with the opinions of the experts as to the capacity of the property to sustain a particular number of cattle. I would vary that order to coincide with the views of Dr Martin as to the capacity of the property to sustain cattle.

Costs

61 I have set out the orders made by the learned Magistrate for costs at the Local Court. These were purportedly made pursuant to s 215 Criminal Procedure Act 1986. The power of the Court to order costs on a successful summary prosecution against the defendant is in respect of “such professional costs as the Court considers just and reasonable”. In this matter the tyranny of distance was a difficulty for both the prosecutor and the defendant. The proceedings were prosecuted in Tenterfield, almost as far north in the State as one can travel to conduct a criminal case, where the defendant lived. The prosecutor, the RSPCA, based in Sydney had retained counsel and costs were incurred for the prosecutor to travel to Tenterfield. The Magistrate was provided with details of professional costs incurred as well as s 30A costs and the like. The solicitor representing the defendant complained about the extent of costs, particularly travel costs, such as the chartering of a plane by Mr Doherty and the like.

62 The expression “just and reasonable” has been considered in a number of decisions relating to orders for costs either under other Acts, or the repealed s 81 Justices Act, (eg Caltex Refining Company Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 553 (at 560-4): Ly v Jenkins (2001) 114 FCR 237, (2001) FCA 1640).

63 In Caltex Refining Co v MSB, Sully J summarised the position in terms of a costs order that is “just and reasonable” (considering s 52, Land and Environment Court Act, 1979), that the judge must exercise the power to make the order, that the order must be ‘just and reasonable’ and that there be a fair hearing on the merits of the application that the terms of the order finally will be in themselves reasonable, the judge may receive and relevant evidence presented in admissible form as to the terms of the final costs order, only the judge may make a final cost order, it is not permissible for the judge to make an unquantified order for costs and the judge must act judicially displaying sufficiently open process of reasoning to fix a quantum of costs.

His Honour said (inter alia):

“A result which is nothing more than an intuitive stab in the dark is neither just nor reasonable” (at 564).

64 In this matter there are specific costs sought by the respondent (informant) as claimed expenses in the conduct of the hearing at the Local Court. In the circumstances I am required to consider the material presented, which is the material presented before the Local Court, note submissions of the parties at the Local Court in respect of the issue of costs (the usual way of course in which material is presented to the Local Court where there will be less formality than in the District Court and in superior courts), and consider what is claimed in the wider context of the character of the prosecution and the outcome of the prosecution to determine what is “just and reasonable”.

65 In Ly, each of the judges discussed the costs issue by reference to s 81(1) Justices Act (now repealed). Their Honours dealt with the issue of whether the costs ordered were” just and reasonable” on the specific facts of the case, but I note what has been said, for example, of the relevance Cachia v Hanes (1994) 179 CLR 403, in respect of which Justice Moore referred to the “helpful summary” of that judgment by Doyle CJ of the South Australian Supreme Court (at [10]). Costs are for “professional legal services”, including costs incurred by the practitioner, but the indemnity may only be “partial”, they “were never intended to be comprehensive compensation for any loss suffered by a litigant”. Justices Moore and Kiefel held that “costs” referred to “professional legal costs actually incurred in the conduct of litigation” but that the award of costs was “never intended to be comprehensive compensation for any loss suffered by a litigant” (at [101], [159]). Justice Moore extensively covered a number of authorities, holding that there was a wide power to reimburse costs, including investigation costs, but so long as the costs are “just and reasonable”. Justice Kiefel observed that costs are not referrable to disbursements paid to people such as witnesses and advisors and that the Magistrate was “in error” in allowing disbursements paid to witnesses and advisors as costs ([159]).

66 It must be fairly said that the costs issue was not extensively argued before me and to my mind was not particularly well argued before the learned Magistrate, at least in relation to the detail of what was being claimed as costs. At this point I am not concerned with the costs sought pursuant to s 30A POCAA which call for separate and different consideration to an application for ‘professional costs’ pursuant to s 215 Criminal Procedure Act. The matter is complicated by my finding that the prosecution had not proved beyond reasonable doubt the charge brought pursuant to s 5 POCAA. In the context of considering “just and reasonable costs”, whilst the means of the defendant are not relevant, the circumstances of the prosecution are not either. The RSPCA is a charitable organisation that performs a very valuable function in our community protecting animals from cruelty, mistreatment and neglect, amongst many other functions. There is no doubt, reading the statements of the inspectors, that the RSPCA sought to assist this defendant, but she was either unwilling or incapable of following advice or embracing the assistance that was being offered.

67 However whilst the RSPCA is a noble charity it is not entitled to special consideration. Neither is the appellant. I must confess to having some concern at the fact that the case was in fact prosecuted. This is not a case of cruelty and the RSPCA officers who attended the appellant’s property were well aware of the many difficulties the defendant had both financial, physical and emotional. It appears, given the character of the allegations against the defendant, that the needs of the situation could well have been met by care for the animals (their return, a matter of no moment) and requiring the defendant to pay for that care. Instead, this prosecution on the informant’s part necessitated the attendance at a court in a far corner of the State by a barrister and solicitor for the prosecution of the defendant for offences which, on the prosecution’s own case, were at the lowest order. The number of cattle involved in fact was relatively small. Most importantly, bearing in mind it permeated the prosecution case, was the fact that the cattle were held by the defendant during the period of one of the worst droughts in history. That having been said, the prosecution was commenced, all bar one of the offences have been ultimately proven. I must deal with the current reality.

68 In all the circumstances however, it is not just and reasonable for a global order to be made rubber stamping all costs claimed by the informant for the purposes of the prosecution. Amongst other matters, in light of the observations of Justice Kiefel in Ly, I do not propose to allow any witnesses expenses. Further, I do not believe it was “just and reasonable” even considering the location of the hearing for the matter to be prosecuted by both counsel and solicitor. The matter was a simple matter, the proof of the guilt of the appellant in respect of the s 8 matters was a straight forward matter.

69 I note in the decision of Caltex Refining Co v MSB, after the distillation of principles relating to s 52 Land & Environment Court Act, Sully J reflected upon the order Bannon J had made in the context of a claim for costs in the sum of $120,232.00, which he reduced to $60,000. Although Justice Sully ultimately did not resolve the issue of costs, the matter was remitted back to the Court below notwithstanding fresh evidence on the point, his Honour amongst other things agreed with Bannon J’s view that a claim for “solicitor/client” costs in such circumstances was in excess of what was “just and reasonable”. Sully J observed that he would agree with the view that “such fact alone required the gross figure suggested in the relevant exhibit to be reduced”. I note in passing also that Justice Sully thought in the context of a summary prosecution in the Land and Environment Court that the sum therein claimed in Caltex Refining Company was “an enormous sum” for the costs of a summary prosecution. In context, a costs order of the character made by the Magistrate here was disproportionate to what was “just and reasonable” for a two day hearing and a day for judgment (at the request of the Court) in the Local Court, albeit in a court away from Sydney.

70 This preliminary view is confirmed by a close examination of what was claimed and “rubber stamped” by the Magistrate. The “professional costs” are itemised with great particularity and clearly are itemised on a “solicitor/client” basis. The solicitor’s professional costs include on a “time basis” per minute all aspects of the preparation of the matter, travel and attendance at the Local Court. This was charged out at $300 per hour. The solicitor claimed $10,425 plus $1,042 GST, totalling $11,467 for the first 2 days of the hearing and preparation. This amount is grossly excessive of what is ‘just and reasonable’ in all the circumstances. There was a claim of 540 minutes travel to Tenterfield Local Court as “professional costs”. In my view, is also quite unreasonable. Counsel’s fees totalled $11,660. This included a claim for $1,100 for “return travel” and $1,980 for “preparation”. The memo of the solicitor refers to an: “Invoice July-August $5,280”, from the barrister with no particulars. In the context of an award of costs in this jurisdiction that claim is not just and reasonable. A “brief fee” at commercial rates, in addition to a preparation fee, is not only ‘unreasonable’, it seems inconsistent with what a ‘brief fee’ generally means, when it is greatly in excess of a refresher rate, if a refresher rate can be divined given the lack of particulars for the “Invoice – July-August”.

71 I point out that there is a further claim for disbursements for travel and the like in the sum of $4,768.40 for both legal representatives. This includes entries such as “Counsel travel August 2007 $554.86 … Solicitor travel August 2007 $554.86 … Travel counsel November 2007 $171.14 … Travel solicitor November 2007 $171.14”. One assumes this includes airfares, given the claim for the time it took to travel. In handwriting there are further figures: “Airfares $995.18 …”. I assume this figure is for proceedings of January 2008. When the matter was listed for judgment on 22 January 2008 the solicitor claimed professional fees in the sum of $3,036 and counsel claimed the sum of $6,380, this included reading the transcript in preparation $1,980, “Return travel’ – in the sum of $1,100, a “brief on hearing” fee for 22 January 2008 (in the sum of $3,300) for what was obviously the taking of the judgment and some submissions in relation to the issue of penalty and costs. This claim is extraordinary. It is grossly excessive as costs that are just and reasonable. This claim is neither just nor reasonable given other claims for earlier proceedings. This figure includes the same (emphasis added) preparation fee as for the hearing. This is, in my view, an unreasonable claim. It was the same barrister at all times according to the transcript. I have a great deal of difficulty understanding why a barrister had to be briefed at all to take the judgment of the Magistrate and make some submissions in relation to penalty and costs, or alternatively be accompanied by a solicitor. In this matter, a “brief on hearing” fee of $3,300 for a matter in the Local Court, for junior counsel, where junior counsel claims a preparation fee as well is neither ‘just and reasonable’ in an award of costs. A clerk could have instructed.

72 Witnesses expenses were claimed for Lisa Martin who apparently is employed by the local Rural Lands Protection Board and for Dr Doherty including $1,980 for him to travel to Tenterfield by aircraft. In my view witnesses expenses ought not be allowed. The claim for the cost of Chartered air travel by one witness is not just and reasonable in all the circumstances. No explanation was before the Magistrate in any intelligible way, as to why such expensive air travel was required in all the circumstances, notwithstanding the complaint of the defendant’s solicitor, in the context of the particulars supplied in the document provided to the Magistrate. In the context of the terms of s 215(1)(a) and the facts of the case I do not believe a claim for “witnesses expenses” was just and reasonable.

73 Every case has to be decided on its own facts, in the context of the principles, which are laid down by superior courts. The exercise of a discretion to award costs on the basis of a sum that is “just and reasonable” will require consideration of a range of matters. Taking all matters into account, I would allow costs to the RSPCA in respect of the Local Court proceedings in the following amounts; solicitor’s fees in preparation for the hearing and attendance at court for the first two days in the sum of $2,512, representing elimination of travel time, and calculating the time rate at $150 an hour, to more closely represent party/party costs. As for the taking of judgment, given both counsel and solicitor perused the transcript the work of the solicitor in my view was unnecessary. I will allow one hour for preparation of the solicitor for the taking of judgment proceedings. Thus I will allow a further $150 for that. I will allow for counsel’s fees involving three attendances at court and preparation, $4,600 ($1,200 per day and $1,000 in preparation) plus GST. I will not allow travel time, I will allow transcript costs, costs of air travel and accommodation and car hire. As earlier indicated I query the need for solicitor and counsel to appear at Court, particularly on the last day, when judgment was handed down and sentencing and costs issues resolved. Thus I will effectively halve the disbursements claimed for the proceedings in January 2008.

74 I confirm the s 30A POCAA expenses of $5,388.76

Thus the total amount I would award as costs which are “just and reasonable” in this particular matter are as follows: $2,662 for solicitors’ costs (plus GST), $4,600 for counsel’s fees (plus GST) and disbursements in the sum of $4,553. This is a total of $12,681 (including GST) (subject to confirmation).

ORDERS:

1. Appeal against finding of guilt re s 5(3) POCAA offence upheld. Charge dismissed, consequent orders quashed.

2. Appeals against finding of guilt re s 8(1) matters (x 17) dismissed.

I confirm convictions, quash the fines and moiety order but confirm the s 9 bond(s) ordered for these matters.

I vary the s 31 order in terms to be advised.

I award costs for the Local Court proceedings in the sum of $12,681(subject to confirmation).

Cost of the appeal to be decided.