Leake v Holland - [2002] QDC 73

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Date: 25 / 3 / 02

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE C F WALL QC
No D10 of 2002

DAVID LEAKE Appellant
and

MALCOLM RICHARD HOLLAND Respondent
TOWNSVILLE
..DATE 21/03/2002
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HIS HONOUR: This is an appeal against the conviction of the appellant in the Magistrates Court at Townsville on the 16th of November 2001, on the following charge:
"The complaint of Malcolm Richard Holland a person Townsville in the State of Queensland made this 24th day of August 2001, before the undersigned, a Justice of the Peace for the said State, who says between the 26th day of May 2001 and the 2nd day of July 2001, at Alligator Creek, in the Magistrates Court District of Townsville, in the State of Queensland, one David Leake, being the owner of a bay yearling thoroughbred filly, did fail to provide treatment for injury, namely a circum-laceration to the left hind leg, with which the said filly was afflicted, contrary to section 4(1)(ba) of the Animals Protection Act 1925 as amended."
aggrieved pursuant to section 22(3) Animals Protection

Section 4(1)(ba) of the Animals Protection Act 1925 provides as follows:

"4.(1) It shall be an offence against this Act for any
person to -

(ba) being the owner of any animal - fail to provide
treatment for injury, disease or illness with
which that animal may at any time be
afflicted."

"Owner" is defined in section 3 in the following terms:
"'Owner', used with reference to any animal, includes any person for the time being having or being entitled to the possession or custody or control or charge of the
animal."

Section 4(2B) of the Act provides as follows:
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"An animal that is afflicted with injury, disease or
illness such that, in the opinion of the owner thereof -

(a)

it will cause or contribute to the death of the animal in circumstances of suffering; and

(b)

there is no other reasonable means of healing or curing such injury, disease or illness or of avoiding its consequences;
may be killed humanely as an alternative to providing
treatment."

The appellant was not the legal owner of the horse but looked after it on his property for the owner, Mr Hedley.
The appellant was found guilty of the charge. No conviction was recorded. He was discharged upon entering into a good behaviour bond for two years.
The Magistrate found that the appellant "did all that could reasonably be expected of him in providing treatment for injury up to the 14th of June 2001".
The Magistrate found the appellant guilty for the following reasons:

(1) the horse required further veterinary treatment

during the period of seven to 10 days prior to the
2nd of July 2001 and the appellant failed to provide
such treatment;
(2) the appellant himself was of the view that the horse
urgently required further veterinary attention;

(3) when unable to contact Dr Preston, the vet treating
the horse, the appellant should have sought
alternative veterinary treatment during the period
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of seven to 10 days immediately prior to the 2nd of
July 2001.

This was not a case where the appellant provided no treatment at all for the horse, rather it was one where it was suggested he should have done more for the horse than he did.
Dr Preston is a veterinary surgeon and she had been treating the horse, a filly, since the 28th of January 2001, (see her clinical notes Exhibit 6). Because of the way in which the
appeal was argued and because of the findings made by the in some detail so that the treatment which was provided to the horse can be seen in context. She was called as a witness by the appellant.
On the 28th of January 2001, at the request of the appellant, Dr Preston attended at his property and examined the horse. She observed on its left or near side hind leg a circum- laceration which she described as "an awful wound", a severed long digital extensor tendon, a severed superficial digital flexor tendon and a partial laceration of the deep digital flexor tendon. She said the prognosis was "very poor", by which she meant (see page 70 of the Magistrates Court transcript) that it had a "very poor chance of surviving." With the consent of Mr Hedley she performed surgery on the horse under general anaesthetic and prescribed pain killers
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and anti-inflammatory and antibiotic drugs. The horse was
confined to a stable.

She re-examined the horse on the 31st of January, changed the dressing and continued the drug treatment and confinement. On the 5th of February she changed the dressing again, replaced a splint, and prescribed an antiseptic spray to clean the wound and encourage proud flesh or exuberant granulation tissue growth, which she said is the first stage of healing. The proud flesh fills the wound to allow the skin or scar tissue to grow over. She examined the horse again on the 9th of February and the 13th of February and continued the treatment.
In the interim, the appellant was treating the horse as
directed by Dr Preston.
By the 22nd of February, she felt the prognosis "had improved" and she was "very happy" with the position. Treatment was continued. She provided more drugs on the 25th of February, she re-examined the horse on the 9th of March, and because the wound then appeared to be infected, a stronger antibiotic drug was prescribed and penicillin was continued. By the 13th of March, the horse's condition she said was "much improved." Between visits by Dr Preston, the appellant was continuing with the prescribed treatment.
By the 23rd of March, the proud fresh or granulation tissue
"had nearly covered the whole wound". Treatment was
continued. On the 28th of March, the appellant's wife advised
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her by phone that the granulation tissue was "growing
rapidly". She recommended the application of bluestone or
copper sulphate powder to the wound. This was designed to
burn or kill off the top layer of cells of the proud flesh,
because if it extended above the skin level, that would slow
the healing process because the skin would not be able to grow
across the wound.

Dr Preston next examined the horse on the 4th of April, at which time she was satisfied that bluestone had been applied to the wound. She observed excess granulation tissue. Further treatment was prescribed. On the 9th of April, she spoke to the appellant on the phone. He told her that the granulation tissue was still increasing. She instructed him to continue with the treatment she had prescribed.

Dr Preston examined the horse again on the 14th of April. She concluded that the granulation tissue "was growing far too rapidly". She prescribed a powder known simply as "Black Powder" which has bluestone in it and is caustic on proud flesh as well as being an antiseptic. Dr Preston re-examined the horse on the 20th of April. The Black Powder had been "completely unsuccessful" but the horse, she said, was "very well in herself". She prescribed arsenic trioxide, a "very poisonous arsenic to burn away the proud flesh". She did so because she said the "proud flesh was basically developing a life of its own and was taking over the wound", and she felt "we had to use something pretty caustic to burn it away".
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By the 26th of April when she next examined the horse, the filly's overall condition was deteriorating, but not to a level of concern. She continued with the arsenic rather than further surgery, because at that stage, the proud flesh was not "enormous". In her evidence she mentioned "enormous" in the context of "the photographs", and here I think she meant the photographs Exhibits 1 and 5, taken by the respondent on the 2nd and 3rd of July respectively. She thought the amount of proud flesh was then mild compared to what is shown in the photographs.

The appellant rang Dr Preston on the 30th of April, saying that the proud flesh appeared to be dying. Dr Preston prescribed continuing with the drug treatment. She then saw the appellant at the races on the 3rd of May, when he told her the horse was "much brighter".

She re-examined the horse on the 9th of May. She observed "definite weight loss" in the horse, however, her vital signs were normal and the appellant reported she was "eating better now". Dr Preston "decided to leave the leg at this point in time".
On the 19th of May, Dr Preston received a phone call telling
her that the proud flesh was "bigger than a football", (which
Dr Preston agreed it was - page 86), so she decided to operate
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again, which she did on the 21st of May. She then gave this
evidence:
"I put her under general anaesthetic again. With proud
flesh, it's very radical surgery. We're talking about a
tissue that's got no nerves in it and is of no benefit
when it gets enormous. I - I was hoping to cut off all
of the proud flesh. However, I'd got approximately half
of it cut off when, due to both blood loss and some other
unknown reason, the filly started to go into a shock
reaction, and I had to immediately stop surgery and bring
her out of anaesthetic. We could go no further,
otherwise we were risking losing the horse under
anaesthetic.
How much of the proud flesh did you remove?-- About half of it, 'cause I moved it from the inside of the leg and the back of the leg. And yet this football was around the whole leg.
Yes. And did you administer or recommend any drugs be administered to her?-- Yes. I - after I operated on it, I actually smothered it in terramycin powder, which is another antibiotic powder.
Yes?-- And again, we - I left anti - penicillin and the phenylbutazone, the anti-inflammatory pain-killer."

Dr Preston saw the horse again the next day, the 22nd of May.
She gave the following evidence in relation to her
examination then:
"She was still pale. She was definitely a sick little
horse that day."
"She was dull in herself. Her coat had turned. She
wasn't eating. I gave her a saline drench."

She also administered further drugs. On examination the following day, the 23rd of May, the horse was still dull but
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there was some improvement. Penicillin was continued to stop
any more infection.

On the 24th of May, Dr Preston rang the appellant, who said the horse had "begun eating and was acting brighter".

Dr Preston returned to the horse on the 31st of May. She gave the following evidence about this occasion:
"Her body weight was very poor this time, and her coat turned still from the surgery. She had, however, pink mucous membranes. Her eyes were bright. She was
reported to be eating half her normal feed. I decided to
return to the Black Powder use over the leg, just to try
and hold the leg. I realised we weren't going to get rid
of the proud flesh with it, but I wanted to hold it until
the horse was well enough to do more."
"And you said 'until' and I just didn't get - did you say
until what, you could do further surgery?-- Until we
could do further surgery, 'cause I had to stop half-way
through operating due to her shock reaction.
Now, how long do you think, before you would've been able to operate again?-- I was waiting to - well I didn't know how long it would be, but I was waiting until we had the filly picked up in herself. I wanted her to put on weight, to feel a lot healthier in herself so that we were able to act again on the leg and to handle the anaesthetic."

On that occasion she observed minor proud flesh regrowth since the 21st of May.
On the 14th of June, Dr Preston was advised over the phone of the condition of the horse then. Her evidence was as follows:
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"And what happened in that phone call?-- That the proud wanted the filly in good condition before we had another attempt at surgery, and her healthy in herself."
flesh was regrowing, but the filly was eating slightly
better. I said to continue with the Black Powder and the

Dr Preston told the appellant she wanted to wait until the horse was in a condition to handle the anaesthetic. She did not put a time frame on when this would be. She intended to re-examine the horse when it was "in a good enough condition to handle surgery". She said she would have made the decision about further surgery, but on the appellant's judgment of the horse's condition. She agreed that without any treatment the condition of the horse, and here I think she meant the proud flesh growth, would get worse (page 87), that is, keep growing.
Up until this point, Dr Preston had operated on the horse twice, and in total, examined and treated the horse on 18 occasions. Leaving aside the meeting with the appellant at
the races on the 9th of May, she had also discussed the
condition of the horse over the telephone on a further eight
occasions.
The relevant period so far as the Magistrate's findings are concerned, is the seven to 10 days immediately prior to or leading up to the 2nd of July 2001.
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Before considering the evidence in relation to that period, I should mention the evidence of Dr Preston about her next and last examination of the horse. This was on the 3rd of July at the request of the respondent. The horse was still thin and was then "probably a bit too light to operate". She did not think the horse was yet in a condition to handle further surgery. The horse was not showing any pain and appeared quite content. The regrowth of proud flesh was "absolutely enormous, larger than at the second operation". The growth would not have been painful "because there's no nerve endings in proud flesh". She was disappointed but not surprised at the extent of the regrowth (page 91).

Dr Preston thought the horse would not survive further surgery because of the blood loss she would incur. She said, "I felt we'd come to a point where we couldn't save her any more. We couldn't fix that leg". She had known proud flesh to "double itself in probably seven to 14 days once it has started to grow rapidly". She said, "You can see proud flesh will stop growing for a couple of weeks and then it'll start growing again". She was satisfied that the horse had been receiving the treatment she had prescribed over the phone on the 14th of June 2001. She said that between the 31st of May and when she next observed the horse on the 3rd of July, the condition of the leg, but not the condition of the horse, got significantly worse (pages 87 to 88). The condition of the horse had in fact improved over that period (page 88). She euthanased the horse. In her notes, Exhibit 6, she refers to "obvious
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pressure from Mr Holland" to do so. See also her evidence at
page 92.

Dr Preston said (page 88), that between the 14th of June and the 3rd of July the horse would have been "in no condition to handle any more treatment" in relation to the proud fresh regrowth. She said (page 89), there was an "enormous risk" in using arsenic trioxide because the horse "still hadn't regained all her weight from the surgery." Any other treatment involving cutting the flesh back and skin grafting would have required surgery, and the horse "was in no condition to handle an anaesthetic at that stage" (pages 89 to 90). She had no experience of laser surgery and whether that could have been undertaken without anaesthetic. There was no treatment that she knew of apart from Black Powder and Cetrigen that she would have prescribed, notwithstanding the fast regrowth of the proud flesh (page 91).
She gave this further evidence in cross-examination:
"Did you understand that it would have been better to
have examined the horse - horse's leg prior to 3 July,
that is between - say 14 June and 3 July?-- It may have
been.
Well, it would have been better to have observed it prior to the proud flesh getting to such an excessive extent. Isn't that correct?-- I'm not sure what the answer is to that. I don't know.
Well, the answer's obvious. If you get to the leg and observe it prior to the flesh being so excessive-----?--
But I've already said that we could do no more treatment
on the leg until the horse's body-----
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You've said that?-- -----condition improved.
But the-----?-- So it probably would have made no difference.
I see, no difference whatsoever?-- Probably."
"If the leg had been with about a third less proud flesh as than that observed in the photographs, would you have considered surgery at that point, knowing that the - the leg was, you know - with the proud flesh was essentially growing in quite a fast rate?-- No, because the horse
wouldn't have been in the condition to do it. I wouldn't
have even considered surgery."
"If you had the opportunity prior to 3 July to have done
something for the horse, that is to examine the horse,
would you have taken that opportunity up?-- Yes. Well,
every time they asked me to visit the horse I did, if I
was available."
"Now, if you'd been contacted in that period, do you
think you might have been able to give some assistance to
the horse?-- I doubt it."
"Can I put it to you that, in fact, the most appropriate course in respect of this animal, given the way in which it was - proceeding was to - at a point earlier than 3
July, to have decided either to proceed with the surgery
and - and obvious consequential treatment, or to bite the
bullet and decide whether or not you were going to
euthanase it?-- I don't think I agree with you on that
comment, no."
"Just last let me put it to you that, in fact, given the
option of either euthanasing the animal, or treating it,
by 3 July - can I put it to you that really you were left
with no options. All the options had run out, and you
were left only with the euthanasia option?-- No, I don't
believe I was only left with that. I - I'm a bit similar
to John Keast's opinion that there was a possibility
still that surgery may have worked, the odds are against
us, just like they were on 29 January.
And the - the option of treatment was much - much better from a period from at least from 14 June when you were advised that the proud flesh started to regrow?-- No, I don't believe that, 'cause the horse would not have been in good enough condition."
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With reference to the photographs, Exhibits 1 and 5, Dr vital signs on the horse".

Dr William Keast, a veterinary surgeon gave evidence for the respondent before the Magistrate. He had not examined, treated or seen the horse at all. He was shown only the photographs, Exhibits 1 and 5. He thought the horse would have been in distress because of the growth. This opinion must be taken subject to that of the treating vet, Dr Preston.

He said the proud flesh growth shown in the photographs could only be removed by surgery, followed by pinch graft. As long as the skin cannot grow over it, the condition gets worse. He
agreed that unless the owner otherwise requests, it is normal
practice for the treating vet to "see the animal through its
entire treatment" (page 42). He agreed with Dr Preston that
surgery on "these types of granulated tissue" can lead to an
extremely large amount of blood loss. He could see nothing
unusual in the treatment carried out by Dr Preston (page 43).

He agreed that this form of granulation tissue "can be very
difficult to manage" (page 43).
Because he had not seen the horse, Dr Keast could not comment on whether further surgery should have been done, but he agreed surgery was a last resort, and from the photographs, that was all that could have been done for the horse (page 49). That was what he would have done on the 2nd of July, by
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reference only to the photographs. The alternative was to
euthanase the horse.

because it was not specifically put to Dr Keast in cross-
examination, that Dr Preston's view was that the horse was in
no condition for further surgery, Dr Preston's evidence to
that effect should not be relied upon. In my view, there is
no substance in this submission. Dr Preston's view is clear
from the notes, Exhibit 6, which Dr Keast had perused. Dr
Keast did not criticise Dr Preston's treatment of the horse,
and his evidence about surgery must be read as being subject
to the condition of the horse. Dr Preston, the treating vet,
said the horse was not fit enough for surgery. In addition,
the respondent made no application as he could have done,
after Dr Preston's evidence, to recall Dr Keast. I cannot
conclude that any unfairness has resulted to the respondent
over this aspect. See R v Birks (1990) 19 NSWLR 677 at 690
and Seymour v ABC (1977) 19 NSWLR 219 at 236-7. Further, the
fact that Dr Keast said he would have been available to see
the horse in June leading up to the 3rd of July cannot assist
the respondent, because on the evidence, there was clearly
nothing more he or anyone could have done for the horse.

It was submitted by Mr O'Sullivan for the respondent, that matters not that the appellant was understandably concerned about the extent of proud flesh growth during its last seven to 10 days.
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The Magistrate correctly concluded that the credibility of the witnesses was not in question. That is clearly so. In these circumstances, it is difficult to understand and impossible to accept as open on the evidence, the Magistrate's conclusion that in the seven to 10 days prior to the 2nd of July, "the horse required further veterinary treatment" and "the defendant failed to provide such treatment." The fact is that on the evidence, the only course open to pursue was further surgery, and the horse was in no condition to undergo surgery, or to undergo any more treatment.

In the alternative, Mr O'Sullivan submitted to me that the appellant should have, in that seven to 10 days period, arranged for the horse to "be killed humanely as an alternative to providing treatment" pursuant to section 4(2B).

His submission to the Magistrate however, was that it had

never been the respondent's contention that section 4(2B) "has made most reluctantly and not until the 3rd of July. According to her, treatment of the horse was continuing during the period chosen by the Magistrate, notwithstanding that she did not see the horse then. She was hoping its condition would improve to such an extent that it could undergo surgery,
any application to this matter". See at page 109. In my
view, it is too late to rely upon section 4(2B) and in any
event, the provision seems more directed to authorising a
course of action by an owner in certain circumstances than to
providing a basis for a charge such as the present.
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notwithstanding the size of the proud flesh regrowth. Apart
from greatly increasing in size over this period at an
accelerated rate, nothing else had changed.

In this sense, there is substance in the submission of Mr Riethmuller for the appellant, that the horse had undergone very lengthy and ongoing treatment between the 28th of January and the 2nd of July, and it was wrong of the Magistrate effectively to isolate and consider in isolation, a short period at the end of the longer period. The situation in the seven to 10 day period chosen by the Magistrate was taken out of context, and an interpretation was placed on it, which was not justified when considered in the overall context of the extensive and continuing treatment provided to the horse. Effectively, the horse was under the care and treatment of Dr Preston for the entire period, including the seven to 10 days' period relied on by the Magistrate.

that during this period the appellant was continuing to
provide the horse with treatment prescribed by Dr Preston. In
addition, the appellant was trying to contact her, which was
mentioned by the Magistrate.

Likewise, the Magistrate appears to have overlooked the fact and again on the 3rd of July. The appellant said the horse injured herself when she got caught in the top wire of a fence. He immediately called Dr Preston. Thereafter, whatever she told him to do, he did. He said "it" (presumably
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the proud flesh) "flared up again in the last couple of
weeks". He had been trying to contact Dr Preston - she was
"hard to get". Dr Preston gave the following evidence in
relation to her contactability:
"Are you an easy person to contact?-- No, I'm not. It's
a regular complaint I get."
"And why is that?-- Possibly because I've got so many
horses of my own. I work in my paddock a lot and I'm
also the mother of three children and I do turn my phones
off. I do only work part-time as a veterinary surgeon
and I do not supply an after-hours service with my
practice."

The respondent said to the appellant that he considered it the appellant's "responsibility to ensure that the horse is afforded the best possible treatment and taken out of any pain and suffering". That is not the test or the standard prescribed by section 4(1)(ba) of the Animals Protection Act.
It is with this background that the reasons relied on by the
Magistrate for convicting the appellant need to be considered.
In my view, the evidence clearly established that in
practical terms there was in fact no "further veterinary
treatment" open, short of further surgery and the horse was,
during the period relied on by the Magistrate, in no condition
to undergo such surgery. "Alternative veterinary treatment"
by a different veterinary surgeon would not have made any
difference and cannot be necessarily determinative of guilt.
Where the prosecution case depends not on the failure to
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provide any treatment at all, but on the fact that further or
additional treatment to that already provided should have been
provided it is, in my view, incumbent on the prosecution to
identify the kind of further treatment it alleges should have
been provided and there should, of course, be evidence to
support that contention.
In the present case there was, for the reasons I have given, no further treatment which could have been provided during the relevant period. Even if there was, the Magistrate has not made any findings as to its nature; it has not been identified. It is not sufficient to find against the appellant because the horse required further veterinary treatment and he failed to provide such treatment without further finding what that treatment should have been. The failure to make any finding as to the nature of such further treatment is in fact consistent with the absence of any evidence supporting such a conclusion.
It may also be the position in circumstances where an owner, relying on veterinary assistance and advice, is in fact providing treatment, that it matters not that another veterinary surgeon (especially one who has not examined the animal) may have treated the horse differently. Further, the section talks about treatment, not efficacious treatment.
At the start of these reasons I mentioned that for the period up to 14 June 2001 the Magistrate found that the appellant
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21032002 D.1 T4-5/SPB M/T TSVDC1/2002 (Wall DCJ) seven to 10 days period immediately prior to the 2nd of July, and, if he did, he was wrong. Liability to conviction is dependant upon proof of a failure to provide treatment, not proof of failing to do all that could be reasonably expected in the provision of treatment.
"did all that could reasonably be expected of him in providing
treatment for injury". There is, I think, a risk that the
It is also implicit in the Magistrate's findings that the appellant did in fact provide treatment for the injury with which the horse was afflicted, and in the circumstances of this case that should have been sufficient to acquit the appellant, more so when section 4(1)(ba) does not seem to import a requirement that the treatment must work or must be efficacious and certainly when no finding was made as to the nature of the further treatment which should have been provided by the appellant or another veterinary surgeon.
Merely because treatment is not working or does not appear to be working at a particular point in time does not mean that the animal is not being treated for the injury with which it is afflicted.
With respect, none of these issues appear to have been examined or considered by the Magistrate. Had such an examination been undertaken, the conclusion would, I find,
have been inevitable that the prosecution had not provided a
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sufficient evidentiary and factual basis to warrant a
conviction.
For these reasons, the appellant has made out grounds 3, 4 and 5 of the Notice of Appeal and the conviction of the appellant cannot stand and must be set aside. The Magistrate erred in the respects I have mentioned. The verdict is against the evidence and the weight of the evidence and is unsafe and unsatisfactory.
In these circumstances it is unnecessary for me to consider the other issues raised on the appeal, but in deference to the parties I will mention the issue of whether the respondent is a "person aggrieved" within the meaning of section 22(3) of the Animals Protection Act, and, if so, whether the Magistrate was correct in amending the description of the respondent in the complaint from inspector to person aggrieved.
Section 22(3) is in the following terms:
"All offences against this Act may be prosecuted and all
other proceedings under this Act may be taken in a
summary way under the Justices Act 1886, on complaint by
any person aggrieved (or, where that person is an infant,
by a parent or guardian), or by any officer."

It is not necessary to consider whether the respondent is an
"officer". The Magistrate found he was not and there is no
appeal by the respondent against that finding.
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21032002 D.1 T4-5/SPB M/T TSVDC1/2002 (Wall DCJ) respondent was a "person aggrieved" beyond saying that "the wide interpretation given to an aggrieved person can be attached to Mr Holland" (page 61). Wide it may be, but there are nevertheless constraints and there is an evidentiary threshold which first must be satisfied.
It is therefore necessary to consider the evidence on the
point. What is involved in determining the issue has been the
subject of many decisions by Courts and by the Administrative
Appeals Tribunal, including but not limited to Australian
Conservation Foundation Inc v The Commonwealth (1980) 146 CLR
473; Onus v Alcoa of Australia Ltd (1981) 149 CLR 77; Ogle v
Strickland (1987) 71 ALR 41; Cameron v Human Rights and Equal
Opportunity Commission (1993) 119 ALR 279; Tasmanian
Conservation Trust Inc v Minister for Resources (1995) 127 ALR
580 and North Coast Environment Council Inc v Minister for
Resources (1994) 127 ALR 617.
Clearly, in my view, The Royal Society for the Prevention of Cruelty to Animals Qld Inc (the RSPCA) would be a "person aggrieved". (See its constitution, Exhibit 3, in particular rule 2).
The issue here though is whether the respondent, an employee of the RSPCA, also fits that description. The respondent gave the following evidence before the Magistrate and this is the only evidence bearing on this issue:
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"And your occupation?-- I'm employed as a regional
inspector for the Royal Society of Prevention of Cruelty
to Animals, Queensland."
"And do you recall attending to an address at Alligator
Creek, here in Townsville?-- I do."
"Now, was that in respect of a complaint you received in
respect of a injury to a horse?-- It was."
"How long have you been an inspector for?-- For 14
years.
And in that capacity, on how many occasions would you observe horses in respect of complaints of cruelty?-- At leave every second day."
"Mr Holland, are you a paid employee of the Royal Society
for the Prevention of Cruelty to Animals Incorporated -
Queensland Incorporated?-- Yes, I am.
And you were so at the time - the time you commenced to investigate this matter?-- I believe so, yes.
And you were so at the time the summons was issued?--
That is correct."

In cross-examination, the respondent said he first received information about this matter on the 2nd of July 2001. When asked who made the complaint, objection was taken to the question on the grounds of informant confidentiality and relevance. Argument ensued, following which the appellant's counsel withdrew the question to "save time". The evidence was thus not adduced but clearly it could have been relevant to the respondent's contention that he was a person aggrieved by the appellant's alleged failure to provide treatment to the horse.
23 JUDGMENT

21032002 D.1 T4-5/SPB M/T TSVDC1/2002 (Wall DCJ) not think the evidence goes far enough to establish that he is. The evidence goes no further than placing him as an inspector employed by the RSPCA apparently doing his job on behalf of the RSPCA and believing he was an "officer" as defined in the Act. For all we know, he may not personally identify with the aims and objects of the RSPCA as set out in rule 2 of Exhibit 3. His personal views and concerns, his beliefs, his involvement with animals (if any) are unknown.
He may have no personal affinity with animals beyond his employment. In the present case he appears to have been doing no more than his job. No evidence was led as to his job description and the selection criteria for employment as an inspector. He may have no personal interest or attachment whatsoever with animals or with cruelty to animals beyond the fact that he is involved with them in his job. His interest in this sense may be no greater or lesser than any other member of the community. There was a complete absence of evidence.
He may, in fact, have a direct professional or vocational interest in animals and cruelty to animals sufficient to give him a closer proximity to the subject matter of the complaint against the appellant and that may also have been relevantly more significant to him in a way different from members of the community generally but the evidence did not go far enough to permit such conclusions to be reached. The evidence does not
24 JUDGMENT

21032002 D.1 T4-5/SPB M/T TSVDC1/2002 (Wall DCJ)
establish any "special" interest in comparison with the
interest of the public at large in the subject matter of the
complaint. The assessment of whether the respondent is a
person aggrieved in the appellant's alleged failure to
provided treatment to the horse here is a mixed question of
fact and law; the test is objective, not subjective and value
judgments have to be made when assessing matters of weight and
proximity. The process cannot be undertaken in an evidentiary
vacuum such as exists here.
In fact, no "curial assessment" at all was undertaken here, view go far enough even in this respect.
see Onus v Alcoa of Australia Ltd (1981) 149 CLR 776 at page
42. The respondent may have been able to establish what
French J in Cameron v Human Rights and Equal Opportunity
Commission (1993) 119 ALR at page 289 referred to as
"derivative or relational" interest with the interests of the
On the evidence before him, the Magistrate was, for these reasons, in error in concluding that the respondent was a person aggrieved. The application to amend the complaint to
allege that he was should not have been allowed. The
respondent had already given his evidence when the application
was made and that evidence did not justify a conclusion that
he was a person aggrieved. There was no application to have
him give further evidence. Had the application to amend been
made and granted at the outset of the hearing, the onus would
25 JUDGMENT

21032002 D.1 T4-5/SPB M/T TSVDC1/2002 (Wall DCJ)
have been on the respondent to adduce evidence relevant to the
issue and it would then have been for the Magistrate to
determine whether it was sufficient. No averment provision
was said to be relevant or applicable to this aspect of the
case. Each case must be dealt with separately and on its own
merits and no doubt in many, the point will not be taken, but
having been taken here it was incumbent upon the prosecution
to adduce evidence relating to it. The appellant has
therefore also made out ground 2 of the Notice of Appeal.
The result is that the appeal will be allowed with costs and the conviction and sentence of the appellant set aside. In lieu thereof, there will be an order dismissing the complaint.
The respondent agreed that in these circumstances the
appellant is entitled to his costs of defending the complaint,
agreed at $1,830.
I further order that within two months of today that the
respondent pay the appellant's costs of the appeal, agreed at
$2,465.

-----

26 JUDGMENT

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Citations

Leake v Holland [2002] QDC 73

Cases Citing This Decision

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R v Nudd [2004] QCA 154

Bale v Mills [2011] NSWCA 226

R v Nudd [2004] QCA 154

DAVID LEAKE	Appellant
and
MALCOLM RICHARD HOLLAND	Respondent
TOWNSVILLE ..DATE 21/03/2002
JUDGMENT
21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
HIS HONOUR: This is an appeal against the conviction of the appellant in the Magistrates Court at Townsville on the 16th of November 2001, on the following charge:

"4.(1)	It shall be an offence against this Act for any person to -
(ba)	being the owner of any animal - fail to provide treatment for injury, disease or illness with which that animal may at any time be afflicted."

(a)	it will cause or contribute to the death of the animal in circumstances of suffering; and
(b)	there is no other reasonable means of healing or curing such injury, disease or illness or of avoiding its consequences;

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
and anti-inflammatory and antibiotic drugs. The horse was confined to a stable.
She re-examined the horse on the 31st of January, changed the dressing and continued the drug treatment and confinement. On the 5th of February she changed the dressing again, replaced a splint, and prescribed an antiseptic spray to clean the wound and encourage proud flesh or exuberant granulation tissue growth, which she said is the first stage of healing. The proud flesh fills the wound to allow the skin or scar tissue to grow over. She examined the horse again on the 9th of February and the 13th of February and continued the treatment.

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
her by phone that the granulation tissue was "growing rapidly". She recommended the application of bluestone or copper sulphate powder to the wound. This was designed to burn or kill off the top layer of cells of the proud flesh, because if it extended above the skin level, that would slow the healing process because the skin would not be able to grow across the wound.
Dr Preston next examined the horse on the 4th of April, at which time she was satisfied that bluestone had been applied to the wound. She observed excess granulation tissue. Further treatment was prescribed. On the 9th of April, she spoke to the appellant on the phone. He told her that the granulation tissue was still increasing. She instructed him to continue with the treatment she had prescribed.
Dr Preston examined the horse again on the 14th of April. She concluded that the granulation tissue "was growing far too rapidly". She prescribed a powder known simply as "Black Powder" which has bluestone in it and is caustic on proud flesh as well as being an antiseptic. Dr Preston re-examined the horse on the 20th of April. The Black Powder had been "completely unsuccessful" but the horse, she said, was "very well in herself". She prescribed arsenic trioxide, a "very poisonous arsenic to burn away the proud flesh". She did so because she said the "proud flesh was basically developing a life of its own and was taking over the wound", and she felt "we had to use something pretty caustic to burn it away".

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
By the 26th of April when she next examined the horse, the filly's overall condition was deteriorating, but not to a level of concern. She continued with the arsenic rather than further surgery, because at that stage, the proud flesh was not "enormous". In her evidence she mentioned "enormous" in the context of "the photographs", and here I think she meant the photographs Exhibits 1 and 5, taken by the respondent on the 2nd and 3rd of July respectively. She thought the amount of proud flesh was then mild compared to what is shown in the photographs.
The appellant rang Dr Preston on the 30th of April, saying that the proud flesh appeared to be dying. Dr Preston prescribed continuing with the drug treatment. She then saw the appellant at the races on the 3rd of May, when he told her the horse was "much brighter".
She re-examined the horse on the 9th of May. She observed "definite weight loss" in the horse, however, her vital signs were normal and the appellant reported she was "eating better now". Dr Preston "decided to leave the leg at this point in time".
On the 19th of May, Dr Preston received a phone call telling her that the proud flesh was "bigger than a football", (which Dr Preston agreed it was - page 86), so she decided to operate

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
again, which she did on the 21st of May. She then gave this evidence:

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
there was some improvement. Penicillin was continued to stop any more infection.
On the 24th of May, Dr Preston rang the appellant, who said the horse had "begun eating and was acting brighter".
Dr Preston returned to the horse on the 31st of May. She gave the following evidence about this occasion:

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
Before considering the evidence in relation to that period, I should mention the evidence of Dr Preston about her next and last examination of the horse. This was on the 3rd of July at the request of the respondent. The horse was still thin and was then "probably a bit too light to operate". She did not think the horse was yet in a condition to handle further surgery. The horse was not showing any pain and appeared quite content. The regrowth of proud flesh was "absolutely enormous, larger than at the second operation". The growth would not have been painful "because there's no nerve endings in proud flesh". She was disappointed but not surprised at the extent of the regrowth (page 91).
Dr Preston thought the horse would not survive further surgery because of the blood loss she would incur. She said, "I felt we'd come to a point where we couldn't save her any more. We couldn't fix that leg". She had known proud flesh to "double itself in probably seven to 14 days once it has started to grow rapidly". She said, "You can see proud flesh will stop growing for a couple of weeks and then it'll start growing again". She was satisfied that the horse had been receiving the treatment she had prescribed over the phone on the 14th of June 2001. She said that between the 31st of May and when she next observed the horse on the 3rd of July, the condition of the leg, but not the condition of the horse, got significantly worse (pages 87 to 88). The condition of the horse had in fact improved over that period (page 88). She euthanased the horse. In her notes, Exhibit 6, she refers to "obvious

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
pressure from Mr Holland" to do so. See also her evidence at page 92.
Dr Preston said (page 88), that between the 14th of June and the 3rd of July the horse would have been "in no condition to handle any more treatment" in relation to the proud fresh regrowth. She said (page 89), there was an "enormous risk" in using arsenic trioxide because the horse "still hadn't regained all her weight from the surgery." Any other treatment involving cutting the flesh back and skin grafting would have required surgery, and the horse "was in no condition to handle an anaesthetic at that stage" (pages 89 to 90). She had no experience of laser surgery and whether that could have been undertaken without anaesthetic. There was no treatment that she knew of apart from Black Powder and Cetrigen that she would have prescribed, notwithstanding the fast regrowth of the proud flesh (page 91).
She gave this further evidence in cross-examination:

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
With reference to the photographs, Exhibits 1 and 5, Dr vital signs on the horse".
Dr William Keast, a veterinary surgeon gave evidence for the respondent before the Magistrate. He had not examined, treated or seen the horse at all. He was shown only the photographs, Exhibits 1 and 5. He thought the horse would have been in distress because of the growth. This opinion must be taken subject to that of the treating vet, Dr Preston.
He said the proud flesh growth shown in the photographs could only be removed by surgery, followed by pinch graft. As long as the skin cannot grow over it, the condition gets worse. He
agreed that unless the owner otherwise requests, it is normal practice for the treating vet to "see the animal through its entire treatment" (page 42). He agreed with Dr Preston that surgery on "these types of granulated tissue" can lead to an extremely large amount of blood loss. He could see nothing unusual in the treatment carried out by Dr Preston (page 43).

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
reference only to the photographs. The alternative was to euthanase the horse.
because it was not specifically put to Dr Keast in cross- examination, that Dr Preston's view was that the horse was in no condition for further surgery, Dr Preston's evidence to that effect should not be relied upon. In my view, there is no substance in this submission. Dr Preston's view is clear from the notes, Exhibit 6, which Dr Keast had perused. Dr Keast did not criticise Dr Preston's treatment of the horse, and his evidence about surgery must be read as being subject to the condition of the horse. Dr Preston, the treating vet, said the horse was not fit enough for surgery. In addition, the respondent made no application as he could have done, after Dr Preston's evidence, to recall Dr Keast. I cannot conclude that any unfairness has resulted to the respondent over this aspect. See R v Birks (1990) 19 NSWLR 677 at 690 and Seymour v ABC (1977) 19 NSWLR 219 at 236-7. Further, the fact that Dr Keast said he would have been available to see the horse in June leading up to the 3rd of July cannot assist the respondent, because on the evidence, there was clearly nothing more he or anyone could have done for the horse.
It was submitted by Mr O'Sullivan for the respondent, that matters not that the appellant was understandably concerned about the extent of proud flesh growth during its last seven to 10 days.

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
The Magistrate correctly concluded that the credibility of the witnesses was not in question. That is clearly so. In these circumstances, it is difficult to understand and impossible to accept as open on the evidence, the Magistrate's conclusion that in the seven to 10 days prior to the 2nd of July, "the horse required further veterinary treatment" and "the defendant failed to provide such treatment." The fact is that on the evidence, the only course open to pursue was further surgery, and the horse was in no condition to undergo surgery, or to undergo any more treatment.
In the alternative, Mr O'Sullivan submitted to me that the appellant should have, in that seven to 10 days period, arranged for the horse to "be killed humanely as an alternative to providing treatment" pursuant to section 4(2B).

21032002 T2-3/JPP M/T TSVDC1/2002 (Wall DCJ)	1
notwithstanding the size of the proud flesh regrowth. Apart from greatly increasing in size over this period at an accelerated rate, nothing else had changed.
In this sense, there is substance in the submission of Mr Riethmuller for the appellant, that the horse had undergone very lengthy and ongoing treatment between the 28th of January and the 2nd of July, and it was wrong of the Magistrate effectively to isolate and consider in isolation, a short period at the end of the longer period. The situation in the seven to 10 day period chosen by the Magistrate was taken out of context, and an interpretation was placed on it, which was not justified when considered in the overall context of the extensive and continuing treatment provided to the horse. Effectively, the horse was under the care and treatment of Dr Preston for the entire period, including the seven to 10 days' period relied on by the Magistrate.
that during this period the appellant was continuing to provide the horse with treatment prescribed by Dr Preston. In addition, the appellant was trying to contact her, which was mentioned by the Magistrate.
Likewise, the Magistrate appears to have overlooked the fact and again on the 3rd of July. The appellant said the horse injured herself when she got caught in the top wire of a fence. He immediately called Dr Preston. Thereafter, whatever she told him to do, he did. He said "it" (presumably