Jolley v Queensland Police - [2018] QDC 12

DISTRICT COURT OF QUEENSLAND

CITATION:

Jolley v Queensland Police [2018] QDC 12

PARTIES:

Darren Lee Jolley
(Appellant)

v

Queensland Police
(Respondent)

FILE NO/S:

BD 6/17

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Emerald

DELIVERED ON:

19 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 January 2018

JUDGE:

Clare SC DCJ

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL – STATUTORY INTERPRETATION – whether s 17 (3) (b) of the Animal Care and Protection Act 2001 requires proof of harm – whether sexual acts with a dog were a breach of duty of care

The Care and Protection of Animals Act 2001 (Qld)

The Acts Interpretation Act 1954 (Qld) ss 14, 14B

Beckwith v R (1976) 135 CLR 569 at 576

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408;

Hopwood v R (1999) CLR 1 at 34

Mills v Meeking (1990) 169 CLR 214 at 235

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381

Westpac Banking Corp v Australian Securities & Investment Commn (2009) 181 FC 379 at 390

COUNSEL:

S.J. Hamlyn-Harris for the appellant

SOLICITORS:

Charles Lumsden Solicitors for the Appellant

M. O’Brien for the Queensland Commissioner of Police, Respondent

Darren Lee Jolley engaged in sexual acts with a dog and recorded the occasion with photographs and video. On 18 July 2017 the Emerald Magistrate found him guilty of breaching his duty of care to the animal by inappropriate handling, contrary to s 17 of the Animal Care and Protection Act 2001. This appeal against that conviction challenged the scope of the offence and the evidence required to prove it.

The ground of appeal was that “the learned magistrate erred in law in holding that acts of the defendant found to be proven were capable of constituting the offence of breach of a duty of care to an animal, and in convicting the defendant.” It was submitted that the s 17 prohibition on inappropriate handling must be read down to apply only to handling which causes harm to an animal. I disagree. The appeal must be dismissed. These are my reasons.

The offence provision

It is convenient to start with section 17. It provides:

17 Breach of duty of care prohibited

1. A person in charge of an animal owes a duty of care to it.

2. The person must not breach the duty of care.

Penalty: Maximum penalty—300 penalty units or 1 year’s imprisonment.
Example:
1. This provision is an executive liability provision—see section 209.
2. See also section 9 (Act does not affect other rights or remedies).

3. For subsection (2), a person breaches the duty only if the person does not take reasonable steps to—

(a) provide the animal’s needs for the following in a way that is appropriate—

(i) food and water;

(ii) accommodation or living conditions for the animal;

(iii) to display normal patterns of behaviour;

(iv) the treatment of disease or injury; or

(b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QDC 12
Decision Date: 19 February 2018

CaseChat Overview and Summary

In the case of Jolley v Queensland Police, the respondent appealed against his conviction for engaging in bestiality, as defined under s 17(3)(b) of the Animal Care and Protection Act 2001. The dispute before the court centred on whether the statutory provision required proof of harm to the animal for a conviction, and whether the respondent's sexual acts with a dog constituted a breach of duty of care owed to the animal. The court was tasked with interpreting the relevant legislation and determining the scope of the duty of care owed to animals under the Act.

The central legal issue was the interpretation of s 17(3)(b) of the Act, specifically whether the requirement of harm to the animal was an essential element for a conviction. The court considered the plain meaning of the statutory language, the context in which it was used, and the purpose of the legislation. It examined whether the statute imposed a duty of care that extended to preventing harm to animals, even in the absence of actual harm. The court also considered whether the statutory duty of care was limited to preventing physical harm or if it encompassed a broader range of potential harms, including emotional or psychological harm.

The court concluded that s 17(3)(b) of the Act did not require proof of actual harm to the animal for a conviction. It found that the statutory language did not impose such a requirement and that the purpose of the Act was to protect animals from abuse and mistreatment, which could include acts that do not necessarily cause immediate physical harm. The court held that the duty of care owed to animals under the Act extended to preventing acts that could cause harm, even if no actual harm was suffered. Consequently, the respondent's sexual acts with a dog constituted a breach of the statutory duty of care, warranting a conviction.

The appeal was dismissed, and the conviction upheld. The court found that the statutory language and the purpose of the Act supported the conclusion that the duty of care extended to preventing harm, without the need for actual harm to have occurred. The court's interpretation of the statute aligned with the broader goal of protecting animals from abuse and mistreatment.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jolley v Queensland Police [2018] QDC 12
PARTIES:	Darren Lee Jolley (Appellant) v Queensland Police (Respondent)
FILE NO/S:	BD 6/17
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Emerald
DELIVERED ON:	19 February 2018
DELIVERED AT:	Brisbane
HEARING DATE:	19 January 2018
JUDGE:	Clare SC DCJ
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL – STATUTORY INTERPRETATION – whether s 17 (3) (b) of the Animal Care and Protection Act 2001 requires proof of harm – whether sexual acts with a dog were a breach of duty of care The Care and Protection of Animals Act 2001 (Qld) The Acts Interpretation Act 1954 (Qld) ss 14, 14B Beckwith v R (1976) 135 CLR 569 at 576 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Hopwood v R (1999) CLR 1 at 34 Mills v Meeking (1990) 169 CLR 214 at 235 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 Westpac Banking Corp v Australian Securities & Investment Commn (2009) 181 FC 379 at 390
COUNSEL:	S.J. Hamlyn-Harris for the appellant
SOLICITORS:	Charles Lumsden Solicitors for the Appellant M. O’Brien for the Queensland Commissioner of Police, Respondent