Mitchell v Marshall

Case [2014] TASSC 43

[2014] TASSC 43

COURT:  SUPREME COURT OF TASMANIA

CITATION:                Mitchell v Marshall [2014] TASSC 43

PARTIES:  MITCHELL, Roderic Neil
  v
  MARSHALL, Sue

BUXTON, Colin Henry
WALTERS, Lee-Anne Maree

FILE NO:  LCA 863/2013
DELIVERED ON:  18 August 2014
DELIVERED AT:  Hobart
HEARING DATE/S:  10, 11 June 2014
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Animals – Various statutory provisions – Prevention of cruelty to animals – Offences – Causing unnecessary pain and cruelly ill-treating – Proof and evidence – Whether criminal standard of negligence applicable.

Animal Welfare Act 1993 (Tas), ss7, 8(1), 9.
R v Lavender (2005) 222 CLR 67, distinguished.
Fehlberg v Gallahar [1957] Tas SR 286; He Kaw Teh v R (1985) 157 CLR 523, discussed.
Aust Dig Animals [43]

REPRESENTATION:

Counsel:
             Applicant:  A G Melick SC, T G Moloney
             Respondents:  H Virs
Solicitors:
             Respondents:  Acting Director of Public Prosecutions

Judgment Number:  [2014] TASSC 43
Number of paragraphs:  115

Serial No 43/2014

File No LCA 863/2013

RODERIC NEIL MITCHELL v SUE MARSHALL,
COLIN HENRY BUXTON, LEE-ANNE MAREE WALTERS

REASONS FOR JUDGMENT  BLOW CJ

18 August 2014

  1. This is a motion for the review of 140 convictions and a series of sentencing orders imposed by a magistrate, Mr R Marron, in a complicated animal cruelty case. 

  2. The applicant, Roderic Mitchell, owned and operated a dairy farm at Redpa, west of Smithton from about 2005 onwards.  The charges all related to offences that he was said to have committed on that farm between 3 April 2007 and 15 June 2009.  The respondents are three police officers who charged him with the offences in question.  The hearing before the learned magistrate related to 191 charges on seven separate complaints.  He found 184 of the charges proven, convicted the applicant on 140 of them, and imposed eight sentences of imprisonment.  He also ordered the applicant to pay $111,227.25 in relation to the costs and expenses of seizing and keeping animals and providing veterinary treatment, and disqualified the applicant from having the custody of livestock, including cattle, for 10 years. 

  3. Most of the charges alleged contraventions of ss7, 8(1) and 9 of the Animal Welfare Act 1993.

  4. Section 7 of that Act makes it an offence for a person who has the care or charge of an animal or group of animals to "use a method of management of the animal or group which is reasonably likely to result in unreasonable and unjustifiable pain or suffering to the animal or an animal in the group". I will refer to the s7 charges as mismanagement charges.

  5. Section 8(1) makes it an offence for a person to "do any act, or omit to do any duty, which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal". I will refer to the s8(1) charges as cruelty charges. Section 6 of the Animal Welfare Act imposes a duty that is relevant to those charges.  It provides that, "A person who has the care or…

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Mitchell v Marshall [2014] TASSC 43
Case
[2014] TASSC 43
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CaseChat Overview and Summary

The case of Mitchell v Marshall was heard in a court in Australia. The defendant, Mitchell, was charged with various animal cruelty offences under the Animal Welfare Act. The prosecution argued that Mitchell had failed to provide adequate care for a large number of animals on his property, resulting in malnutrition, sickness, and death. Mitchell contested the charges, and the case proceeded to a trial before a magistrate. The appeal focused on several legal issues, including the admissibility of expert evidence under section 137 of the Evidence Act, the sufficiency of fodder on the property, and the appropriateness of the sentence imposed.

The court was required to decide whether the magistrate had erred in admitting certain expert evidence from the prosecution. The defence argued that the expert evidence was unreliable and prejudicial, and should have been excluded under section 137 of the Evidence Act. The court also needed to determine if the magistrate had correctly assessed the amount of fodder available on the property and whether the sentence imposed was manifestly excessive. These issues were central to the appeal and required careful consideration by the court.

The court examined the magistrate's decision to admit expert evidence and found that there was no error. The magistrate had considered the probative value of the evidence and its potential prejudicial effect, and had concluded that the evidence was admissible. The court found that the magistrate had properly assessed the evidence and that there was no basis to interfere with his decision. Regarding the amount of fodder, the court found that the magistrate had not made the finding alleged in the appeal, and that his reasoning was adequate. Finally, the court considered the sentence imposed and found that it was not manifestly excessive, given the nature and circumstances of the offences.

The appeal was dismissed, and the convictions and sentences imposed by the magistrate were upheld. The court found no errors in the magistrate's assessment of the evidence, his determination of the amount of fodder, or the sentence imposed. The decision of the lower court was affirmed, and the defendant's appeal was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This ground, as amended, asserts that the learned magistrate erred:"In admitting into evidence the expert opinion and evidence of the prosecution witnesses in a criminal proceeding where the probative value of the evidence was outweighed the [sic] danger of unfair prejudice to the defendant (s 137 EA) and failing to provide adequate reasons for his rejection of the Defence application further to s 137 EA to exclude the expert evidence or any part of it." Section 137 reads as follows:"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." The basis upon which evidence can be excluded under s137 was explained most succinctly by McHugh J in Festa v R (2001) 208 CLR 593 at [51], as follows:"But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task." Those comments apply equally to the situation where the fact-finder is a magistrate rather than a jury. At the hearing before the learned magistrate, Mr Moloney did not take any objection based on s137 until after all the evidence had been given. The case was adjourned so that counsel for both sides could prepare written submissions. The first mention of any s137 objection was in the written submissions that were then provided by Mr Moloney. He submitted that all of the prosecution's expert opinion evidence should be excluded. He raised a number of arguments as to the weakness of that evidence. He argued that none of the prosecution witnesses was an expert in any forensic sense; that not one of them could be described as independent; that no prosecution eye-witness was in a position to accurately or at all make an assessment of the state of feed on the property; that there was no admissible evidence of there being no disease on the property; that lay witnesses of fact had given opinion evidence as to the issues of fodder and disease; and that there was an entangling of evidence of observations and purported expert opinion evidence. However his submission overlooked the requirements that, for the purposes of s137, it must be assumed that the impugned evidence will be accepted and that any reasonable inference favourable to the prosecution will be drawn: J v Tasmania (2011) 20 Tas R 425; R v Shamouil (2006) 66 NSWLR 228; R v Sood [2007] NSWCCA 214. On the issue of unfair prejudice, Mr Moloney's only argument to the learned magistrate appears to have been that his client was disadvantaged because prosecution expert witnesses had given a mixture of evidence of their observations and evidence of their opinions.

Decision

Reasons for decision

This ground, as amended, asserts that the learned magistrate erred:"In finding that there was in sufficient [sic] fodder on the property to maintain the cattle on the property and failing to provide adequate reasons for his reaching this conclusion." The learned magistrate did not make a finding that there was insufficient fodder on the property. It is clear from par[259] of his reasons, which I have set out in full when discussing ground 4, that he considered that the real question was not whether there was insufficient feed, but what the applicant did or did not do about the condition of his cows. The second sentence of that paragraph, whilst it is most unfortunately constructed, makes his position clear:"Even if it were the case however, that there was sufficient feed, it is what Mr Mitchell did or rather, did not do about the situation where the condition of a number of cows were said to be either malnourished or sick or both or dead." This ground asserts an error in relation to a finding that was not made. The conclusions of the learned magistrate in relation to the "insufficient fodder" issue were reasonably open to him. His reasons in relation to that issue were adequate. This ground must fail. This ground, as amended, asserts:"That the sentence imposed by the Learned Magistrate was manifestly excessive." As I have said, the learned magistrate imposed eight sentences of imprisonment on the applicant. Some related to groups of charges and others related to single charges. Some were concurrent. Some were cumulative. One was partly cumulative and partly concurrent. The eight sentences of imprisonment, and the charges that each related to, can be summarised as follows:(i)On complaint 50070/08, on three of the s7 mismanagement charges, the learned magistrate imposed a global penalty of one month's imprisonment. Each of those three charges related to groups of animals.(ii)In relation to all but one of the remaining s7 mismanagement charges, the learned magistrate imposed a global term of two months' imprisonment. Those charges comprised three counts on complaint 56832/07, one count on complaint 56833/07, and 43 counts on complaint 50070/08. One of the counts on that last complaint related to 55 animals, but the others, on all complaints, related to individual animals.(iii)On the s7 mismanagement charge on complaint 56629/09, the learned magistrate imposed a cumulative sentence of three months' imprisonment. He commented that he found that charge to be "aggravating in nature". (iv)On a single s8(1) cruelty charge on complaint 50070/08, the learned magistrate imposed a penalty of two months' imprisonment. That charge related to a Friesian cow that had suffered a hock injury.(v)On another single s8(1) cruelty charge on the same complaint, the learned magistrate imposed another penalty of two months' imprisonment. That charge related to a Friesian cow that had suffered a wire injury.(vi)On another single s8(1) charge on the same complaint, the learned magistrate imposed a penalty of four months' imprisonment. That charge related to 55 animals found on a bush block.(vii)On 44 aggravated cruelty charges under s9 of the Animal Welfare Act, the learned magistrate imposed a global penalty of nine months' imprisonment. Each of those 44 charges related to an individual animal. They were the s9 charges that were found proven on complaints 56832/07, 56833/07, and 50070/08.(viii)On the remaining charges, the learned magistrate imposed a global penalty of six months' imprisonment, specifying that three months thereof was to be cumulative and three months concurrent. Those remaining charges comprised all the charges of failing to comply with instructions, and all the charges found proven on complaints 50326/08 and 51087/08.

Ratio Decidendi

Legal Principle Established

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