Murillo v Slivkoff
[2020] WASC 479
•24 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MURILLO -v- SLIVKOFF [2020] WASC 479
CORAM: HILL J
HEARD: 16 DECEMBER 2020
DELIVERED : 16 DECEMBER 2020
PUBLISHED : 24 DECEMBER 2020
FILE NO/S: SJA 1029 of 2020
BETWEEN: JONATHAN CHRISTIAN YACO MURILLO
Appellant
AND
IAN JAMES WILLIAM SLIVKOFF
Respondent
ON APPEAL FROM:
For File No: SJA 1029 of 2020
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S SHARRATT
File Number : MI 4560 of 2019
Catchwords:
Criminal law - Appeal against conviction - Whether appellant criminally responsible for the conduct of his co-offender under s 8 of the Criminal Code - Whether there was a common intention to prosecute an unlawful purpose - Whether findings of learned magistrate inconsistent - Appeal allowed
Legislation:
Animal Welfare Act 2002 (WA), s 19(1)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 8
Result:
Leave to appeal on ground 1 be granted
Appeal allowed
Conviction set aside and judgment of acquittal entered
Category: B
Representation:
Counsel:
| Appellant | : | S B Watters |
| Respondent | : | L W Geddes |
Solicitors:
| Appellant | : | Chris Baker & Associates |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
Ruthsalz v The State of Western Australia [2018] WASCA 178
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Seiffert v The Queen (1999) 104 A Crim R 238
HILL J:
On 14 February 2020, the appellant was convicted after trial of one count of animal cruelty contrary to s 19(1) of the Animal Welfare Act 2002 (WA) (Act).
The learned magistrate found the appellant criminally responsible under s 8 of the Criminal Code (WA) (Code) for his co-offender's actions in attempting, unsuccessfully, to euthanise a kangaroo by beating it with the wooden handle of an axe. The appellant was convicted on the basis that he and his co-offender had formed a common intention to prosecute an unlawful purpose, being to euthanise the kangaroo with an axe handle, and that the cruelty to the kangaroo that eventuated was a probable consequence of the common unlawful purpose.
The appellant seeks leave to appeal against his conviction on two grounds. First, the learned magistrate erred in finding him criminally responsible pursuant to s 8 of the Code. Second, he was denied procedural fairness as neither party referred to s 8 of the Code in opening and this was only mentioned by his Honour for the first time during closing addresses.
At the hearing before me, the respondent conceded that the appeal should be allowed on the basis that the learned magistrate erred in law in finding the appellant was criminally responsible pursuant to s 8 of the Code. In my view, that concession was appropriate. The learned magistrate’s finding that the unlawful purpose was to euthanise the kangaroo with an axe handle was inconsistent with his Honour's finding that the appellant's own blows to the kangaroo, which killed the kangaroo, were not cruel. The effect of his Honour’s finding was that it is possible to euthanise a kangaroo with an axe handle without committing an offence contrary to s 19(1) of the Act. Accordingly, the common intention to euthanise the kangaroo with an axe handle was not necessarily unlawful. Without an unlawful purpose, it was not possible for his Honour to find the appellant criminally responsible for the offence of animal cruelty under s 8 of the Code.
As a consequence, at the conclusion of the appeal hearing, I granted the appellant an extension of time within which to appeal and leave to appeal on ground 1. I allowed the appeal, set aside the appellant's conviction and entered a judgment of acquittal. I said I would publish my reasons for doing so at a later date. These are my reasons.
Notice of appeal, extension of time and leave to appeal
The appellant filed his notice of appeal on 3 April 2020 and consequently needs an extension of time to appeal. The appellant's solicitor filed an affidavit explaining the delay, stating it was due to a delay in obtaining the transcript of the trial and because of issues arising from the COVID-19 pandemic.[1] At the hearing before me, the respondent did not oppose the extension of time being granted. In my view, the delay has been adequately explained and the appeal has merit, so I would grant an extension of time.
[1] Affidavit of Melissa Ann Williams filed 3 April 2020.
The appellant appeals against his conviction on two grounds. Ground 1, as amended at the hearing of the appeal, contends that the learned magistrate erred in law in finding that the appellant was criminally responsible pursuant to s 8 of the Code. Ground 2 contends, in essence, that the learned magistrate's reliance on s 8 of the Code denied the appellant procedural fairness.
The appellant requires leave to appeal.[2] Leave to appeal must not be given unless the ground has a rational and logical prospect of succeeding.[3] Pursuant to orders made by Principal Registrar Strk on 25 June 2020, the application for leave to appeal was heard together with the appeal.
[2] Criminal Appeals Act 2004 (WA), s 9(1).
[3] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Factual background
The factual circumstances of the incident which was the subject of the charge were largely agreed between the parties at trial.
On a date between 1 and 7 March 2019, at approximately midnight, the appellant and a friend were driving along Ridge Hill Road in Helena Valley. The friend was driving the vehicle and the appellant was in the passenger's seat. The co-offender, BG, was driving along the same road a short distance ahead of them. BG's car hit a large kangaroo. The kangaroo was injured in the collision and immobilised on the road.
The two vehicles stopped at the scene. The appellant and BG got out of their vehicles to consider what injuries had been sustained by the kangaroo. They discussed the matter and decided to euthanise it. BG retrieved a wooden axe handle from his car, which appeared to them to be the heaviest object that they had to hand.
At about this stage, their friend started filming the events on his phone from his car. The video shows BG striking the kangaroo with the axe handle three times to the head. These blows did not kill the kangaroo. BG then passed the axe handle to the appellant, who swung it once, hitting the kangaroo in the head. The footage, which lasted about 10 seconds, concluded at this point.
The appellant then hit the kangaroo with the axe handle a second time, following which the kangaroo died.
Legislative scheme
Section 19 of the Act creates the offence of animal cruelty. Relevantly, it provides:
19.Cruelty to animals
(1)A person must not be cruel to an animal.
Penalty:Minimum - $2,000.
Maximum - $50,000 and imprisonment for 5 years.
(2)Without limiting subsection (1) a person, whether or not the person is a person in charge of the animal, is cruel to an animal if the person -
(a) tortures, mutilates, maliciously beats or wounds, abuses, torments, or otherwise ill-treats, the animal; or
(b) uses a prescribed inhumane device on the animal; or
(c) intentionally or recklessly poisons the animal; or
(d)does any prescribed act to, or in relation to, the animal; or
(e)in any other way causes the animal unnecessary harm.
Section 8 of the Code relevantly provides:
8.Offence committed in prosecution of common purpose
(1)When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
Section 8(1) requires proof of three matters. First, a common intention to prosecute an unlawful purpose. Second, an offence was committed in the prosecution of the common unlawful purpose. Third, the offence actually committed was of such a nature that its commission was a probable consequence of the prosecution of the common unlawful purpose.[4] It is the first of these matters that is of primary importance in these proceedings.
[4] Ruthsalz v The State of Western Australia [2018] WASCA 178 [68]; Birdsall v The State of Western Australia [2019] WASCA 79; (2019) 54 WAR 418 [115].
Overview of the cases at trial
The essential dispute at trial was in relation to whether the appellant's actions were 'cruel' within the meaning of s 19(1) of the Act.
The State's case was that the appellant's two blows to the kangaroo, having regard to the large size of the kangaroo and the appellant's description of the axe handle as 'light', caused the animal unnecessary harm and were cruel within the meaning of that term in s 19(2)(e) of the Act.[5] The State's case was confined to the two blows made by the appellant; it did not assert that the appellant was criminally responsible for BG's blows to the kangaroo on the basis of s 8 of the Code.
[5] ts 58 (Primary Proceedings).
The defence case was that the actions of the appellant were not cruel; the kangaroo needed to be euthanised after being hit and that is what the appellant did, using the only instrument available to him at the time.[6] In the alternative, the defence contended that the appellant was not criminally responsible for his actions on the basis that (i) they were done in an emergency (for the purposes of the defence in s 25 of the Code) or (ii) he was acting in accordance with a relevant code of practice under s 25 of the Act.[7]
[6] ts 3 (Primary Proceedings).
[7] ts 3 (Primary Proceedings).
Reasons of the learned magistrate
The magistrate found that the steps taken by the appellant and BG to euthanise the kangaroo were not motivated by malice and did not involve abuse or torment of the kangaroo. In his Honour's view, the real question was whether the appellant and BG caused the animal unnecessary harm within the meaning of s 19(2)(e) of the Act.[8]
[8] ts 66 (Primary Proceedings).
The magistrate found that the appellant's second blow to the kangaroo was what killed the animal.[9] The magistrate found that the appellant's blows to the kangaroo did not cause the animal unnecessary harm. His Honour found that the unnecessary harm was instead caused by BG. Nevertheless, his Honour found that the appellant was criminally responsible for what BG did by virtue of s 8 of the Code.[10]
[9] ts 68 (Primary Proceedings).
[10] ts 68 - 69 (Primary Proceedings).
His Honour explained it in the following way:[11]
I'm of the view that section 8 has been made out. That what they did is the very definition of section 8. And he's a party to what [BG] did. The two did it together. And so he's responsible for what [BG] did and [BG] is responsible for what he did because they have both formed a common intention. Now, whether it's an unlawful purpose or not is up to me to decide. But they've definitely, at this stage, formed a common purpose and intention to prosecute - to euthanise, with the axe handle, that animal.
…
They just made a decision to do it. And I don't think that it was done with any malice to the animal. They just wanted to see it out of its way. But he's guilty for what his co-accused did as well as what he did. And when I look at it at a whole, it's obvious that animal suffered unnecessarily. That other bloke hit it three times, before he took over. Perhaps, once they've made the decision to euthanise it by bashing it with an axe handle, he [the appellant] should have got his big body going before the little skinny kid [BG] was let loose on it. In those circumstances, I think the charge is proven in this way.
[11] ts 67 - 69 (Primary Proceedings).
Consequently, the magistrate found the appellant guilty of the offence of animal cruelty contrary to s 19(1) of the Act.[12]
[12] ts 69 (Primary Proceedings).
Procedural background of appeal
The appeal notice filed by the appellant on 3 April 2020 contained two grounds:
1.There was a miscarriage of justice when the learned Magistrate found the appellant's criminal responsibility arose pursuant to s 8 of the Criminal Code.
2.There was a miscarriage of justice when the learned Magistrate followed a pathway to guilt pursuant to s 8 of the Criminal Code that had not been relied on by the prosecution such that the defence were denied an opportunity to adequately address that in presenting their case.
The respondent filed submissions on 16 July 2020, before the appellant. The respondent did not concede either of the appellant's grounds,[13] but conceded that the appeal should be allowed on the basis of a ground not raised; namely that the magistrate erred in law in finding that the appellant was criminally responsible pursuant to s 8 of the Code.[14]
[13] Respondent's submissions [3].
[14] Respondent's submissions [4].
The appellant filed submissions on 23 July 2020, making submissions in support of both grounds and asserting that the ground conceded by the respondent was encapsulated by ground 1 of the appeal notice.[15]
[15] Appellant's submissions [1].
At the commencement of the hearing of the appeal, the appellant applied to amend ground 1 in a manner substantially in accordance with the ground proposed by the respondent. In my view, that amendment was appropriate and necessary. At the risk of stating the obvious, there is a significant difference between a ground alleging a miscarriage of justice and a ground alleging an error of law. In these circumstances, I granted the appellant leave to amend ground 1.
As amended, ground 1 of the appeal is in the following terms:
There was an error of law when the learned Magistrate found the appellant's criminal responsibility arose pursuant to s 8 of the Criminal Code.
Ground 1: error of law in finding appellant criminally responsible under s 8 of the Code
Appellant's submissions
The appellant submits that the magistrate erred in law in finding that the common intention to euthanise the kangaroo with a wooden axe handle was an unlawful purpose.[16] He submits that the decision to euthanise an animal injured accidentally late at night in a remote location was not an unlawful purpose, nor was that part of the State's case.[17] As there was no unlawful purpose, s 8 of the Code could not be made out and the appellant could not be convicted of the offence of animal cruelty.[18]
Respondent's submissions
[16] Appellant's submissions [49].
[17] Appellant's submissions [50].
[18] Appellant's submissions [52].
The respondent submits that the magistrate defined the common unlawful purpose as being to euthanise the kangaroo with an axe handle. The difficulty with that finding, in the submission of the respondent, is that it conflicts with his Honour's finding that it is not necessarily unlawful to euthanise a kangaroo with an axe handle.[19]
[19] Respondent's submissions [22].
In the respondent's submission:[20]
(1)The magistrate concluded that the kangaroo was not caused any unnecessary harm when the appellant hit it with the axe handle, and nor was the appellant cruel on any of the other bases set out in s 19(2) of the Act.
(2)It is implicit in that finding that it is possible to euthanise a kangaroo with an axe handle without cruelty.
(3)If that is the case, a common intention to euthanise a kangaroo with an axe handle is not necessarily unlawful.
(4)As a consequence, the requirement in s 8 of the Code that there be an unlawful purpose is not satisfied and the appellant could not be criminally responsible for the offence of animal cruelty by virtue of s 8.
[20] Respondent's submissions [23].
The respondent submits that it is unclear whether the magistrate erred by (i) misdirecting himself as to the meaning of the technical legal term 'unlawful purpose' or (ii) having properly construed that term, finding that the facts as found fell within the meaning of that term.[21] However, whichever is the case, the respondent submits that the magistrate's error is properly characterised as an error of law.[22]
[21] Respondent's submissions [25].
[22] Respondent's submissions [26].
The respondent submits that, save for his Honour's application of s 8 of the Code, the appellant would have been acquitted entirely. For that reason, the respondent contended that the appropriate order was to enter a verdict of acquittal.[23]
Disposition
[23] Respondent's submissions [28] - [29].
In my view, the respondent's submissions should be accepted.
An essential element of s 8 of the Code is that there is an unlawful purpose which two or more persons form a common intention to prosecute. An unlawful purpose is a criminal purpose in the sense that it contravenes the criminal law.[24] That is, in the context of s 8 of the Code, two or more persons must form a common intention to prosecute a criminal offence.
[24] Seiffert v The Queen (1999) 104 A Crim R 238, 246; see also R v Keenan [2009] HCA 1; (2009) 236 CLR 397 [102].
The unlawful purpose identified by the magistrate in this case was to euthanise the kangaroo with the wooden axe handle.[25] The real question in this appeal is whether that purpose was unlawful.
[25] ts 67.
The magistrate found that the appellant's two blows to the kangaroo, made in his attempt to euthanise the kangaroo with the wooden axe handle, did not cause the kangaroo unnecessary harm and was not cruel in any other sense described in s 19(2) of the Act. That is, the magistrate found that the appellant's blows did not amount to animal cruelty in the sense proscribed by s 19(1) of the Act. There is no suggestion in this case that the appellant's blows amounted to any other offence.
The effect of the magistrate's finding that the appellant's blows did not amount to an offence is that it is not necessarily unlawful to euthanise a kangaroo with a wooden axe handle. That is, on the magistrate's own findings, euthanising a kangaroo with a wooden axe handle is not necessarily an unlawful purpose.
As I have said, the presence of an unlawful purpose is an essential element of s 8 of the Code. In the absence of a purpose that, on the magistrate's findings, could properly be characterised as unlawful, the appellant could not be found criminally responsible on the basis of s 8 of the Code.
The magistrate did not suggest that there was any basis other than s 8 of the Code for finding that the appellant was guilty of the offence of animal cruelty. Having concluded that the magistrate erred in law in finding that the appellant was criminally responsible under s 8 of the Code, the only appropriate order is for the conviction to be set aside and a judgment of acquittal entered.
For these reasons, I ordered that the appeal be allowed, the conviction be set aside and a judgment of acquittal substituted.
Ground 2
The result of the success of ground 1 is that the conviction should be set aside and a judgment of acquittal substituted. It is therefore unnecessary to resolve ground 2. This is particularly so in circumstances where, even if the appellant was successful on ground 2, it could only result in an order for a retrial. In these circumstances, I would refuse leave to appeal on ground 2.
Costs
At the hearing of the appeal, the appellant sought the costs of the proceeding in the Magistrates Court, which the respondent conceded should be granted. Having regard to the relevant scale items, adjusted to take into account that a junior practitioner had carriage of the matter in the Magistrates Court, I fixed costs in the sum of $6,957.
The appellant also sought his costs of the appeal, fixed in the sum of $6,000. The respondent submitted that there should be no order as to costs on the basis that the respondent had conceded the appeal at an early stage and had done most of the 'heavy lifting' in the case. While I accept that the respondent conceded the appeal at a relatively early stage of the proceeding, it is still necessary for this court to make a judgment as to whether the concession is appropriate and whether the appeal should be allowed. For that reason, I consider that it was necessary for the appellant to have incurred costs. However, I consider that the sum sought by the appellant was more than is appropriate. For that reason, I fixed costs of the appeal in the sum of $5,000.
Conclusion and orders
For these reasons, I made the following orders at the conclusion of the appeal hearing:
1.The application for an extension of time be granted and there be leave to amend appeal ground 1 by deleting the words 'a miscarriage of justice' and inserting in their place 'an error of law'.
2.Leave to appeal on ground 1 be granted.
3.Leave to appeal on ground 2 be refused.
4.The appeal be allowed, the conviction of the appellant on charge MI 4560 of 2019 is quashed, and a judgment of acquittal is entered.
5.The sum of $2,000 paid by way of a fine be returned to the appellant.
6.Pursuant to s 5 and s 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA), the appellant is entitled to the costs of the Magistrates Court proceedings fixed in the sum of $6,957.00.
7.Pursuant to s 5 and s 9 of the Official Prosecutions (Accused's Costs) Act 1973 (WA), the appellant is entitled to the costs of the appeal fixed in the sum of $5,000.00.
Finally, for the avoidance of doubt, nothing in these reasons should be taken as establishing that attempting to euthanise an adult kangaroo by striking it with a wooden handle cannot amount to animal cruelty contrary to s 19(1) of the Act. The basis on which this appeal has been successful is narrow and is focused on the specific findings of the magistrate in this particular case. In another case, and indeed in BG's case, attempting to euthanise a kangaroo by striking it with a wooden handle may well amount to animal cruelty.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill24 DECEMBER 2020
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