Oliver v Simshauser

[2005] NSWCA 262

CITATION:	Oliver v Simshauser [2005] NSWCA 262
HEARING DATE(S):	28/06/2005
JUDGMENT DATE:	12 August 2005
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 2; Bryson JA at 3
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	STOCK - branding and earmarking of cattle - Hormonal Growth Promotant HGP - four prosecutions against auctioneer relating to sale of stock treated with HGP without tags failed for lack of identification of stock in sale with stock to which evidence of HGP treatment related - charges under Stock Medicines Act 1989 s 46 (wilfully contravene order) and Stock Diseases (General) Regulation cl 16A (sell stock not identified as prescribed) failed for lack of proof of approval by Director General of type and specification of transaction identifiers - charge under SD(G) Reg cl 16G (sell stock knowing transaction identifiers removed) failed for lack of proof of participation of auctioneer in removal - charge under Stock (Chemical Residues) Act 1975 s 12D(2)(b) failed for lack of proof that auctioneer gave false or misleading information - decision of Dowd J on appeal under Justices Act 1902 s. 102 (4) affirmed.
LEGISLATION CITED:	Justices Act 1902 Stock (Chemical Residues) Act 1975 Stock Diseases Act 1923 Stock Diseases (General) Regulation 1997 Stock Medicines Act 1989
PARTIES:	Keith William Oliver Appellant Scott Simshauser Respondent
FILE NUMBER(S):	CA 40795/2004
COUNSEL:	Mr M W Anderson Appellant Mr A J Bellanto QC with Dr B Glennon Respondent
SOLICITORS:	I V Knight Appellant Bell & Johnson Respondent

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	13407/2002
LOWER COURT JUDICIAL OFFICER:	Dowd J

CA 40795/2004
SC 13407/02


BEAZLEY JA
IPP JA
BRYSON JA

Friday 12 August 2005

KEITH WILLIAM OLIVER v SCOTT SIMSHAUSER

Judgment

1 BEAZLEY JA: I agree with Bryson JA.

2 IPP JA: I agree with Bryson JA.

3 BRYSON JA: This appeal arises out of the decision of Mr P Wilson, Magistrate, in the Local Court, initially at Narrabri, on four Informations laid by the appellant Mr Oliver (an officer of the Department of Agriculture and an inspector under the Stock Diseases Act 1923) charging the respondent Mr Simshauser, who is an auctioneer, with offences which allegedly arose out of the sale of nine steers at Narrabri Saleyards on Tuesday 20 February 2001.

4 The four offences charged all relate to the sale at the Narrabri Saleyards Store Cattle Sale on Tuesday 20 February 2001 of Lot 23, 21 steers which, according to the prosecution case, included 9 steers which had been sold at a Sale at Roma, Queensland on 13 February 2001: those 9 steers had been treated with Hormonal Growth Promotant (HGP) and were marked to indicate that this was so when sold at Roma, but (again according to the prosecution case) were not so marked when sold at Narrabri. Proceedings on the four Informations were heard together, apparently without objection by either party.

5 The sale is recorded in a Stock Purchase Invoice dated 20 February 2001 rendered by Cramsie McRea Dalgety, Auctioneers and Agents of Narrabri and Wee Waa, to Mr A Zilm who conducted cotton farming and some grazing at The Retreat, Bellata. (Combined Book 30). The respondent is one of the principals of Cramsie McRea Dalgety. The invoice recorded details of the sale in which Mrs Helen Zilm on her husband’s behalf bought steers in two Lots, Lot 23 containing 21 head and Lot 24 containing 23 head, at auction. On the invoice Lot 23 is referred to under “extra information” as “HGP free” with the identification number NF451910, which is the property identification code of the respondent’s property “Cucabo”, Narrabri. The respondent gave this code reference in an application which he made to the Narrabi Rural Lands Protection Board on 13 February 2001 for a supply of 500 pink HGP free approved cattle identification tags.

6 On 22 November 2002 the learned Magistrate dismissed all four Informations, and gave reasons. The appellant appealed to the Common Law Division of the Supreme Court in one appeal against all four decisions; his right of appeal was conferred by the Justices Act 1902 s 104(2), which has since been repealed but still operates for present purposes. The relevant parts of sub (2) are as follow:

Appeals by informants
“An informant may appeal under this division to the Supreme Court against the following, on a ground that involves a question of law alone ;
……………….
(b) An order made by a Magistrate in summary proceedings dismissing an information or complaint,
……………………..”.

I have emphasised some words. The appeal was heard by Dowd J on 15 October 2003 and his Honour dismissed the appeal on 23 August 2004, in a lengthy judgment then published. The appellant now brings a further appeal as of right.

7 At all stages there have been difficulties arising from the complexity of the proceedings. The Informations and the particulars incorporated in the Informations state the matter of the charges in very brief terms, although the legislation and subordinate legislation under which the charges were laid opens up numbers of possibilities about what facts may constitute an offence; retrospectively there appears to have been a need for particulars which was insufficiently met, and the observations made by the Magistrate in disposing of the proceedings indicate what actually was treated as in issue. Each of the charges related to the whole parcel of 9 steers, which according to the theory of the facts on which the prosecution relied could be identified and the movement of which could be traced from “Croydon” near Roma in Queensland where grazing was conducted by Mr Brendon Fitzgerald. The documentary tracing of what are alleged to be movements of the same cattle ends with the invoice dated 20 February 2001.

8 A number of documents in evidence were produced on subpoena by an officer of the Shire of Narrabri, which conducts the Narrabri Saleyards. These include the document headed “Store Cattle Sale” (CB33 – 34) which records that Lot 23 of 21 cattle and Lot 24 of 23 cattle were purchased by H Zilm on 20 February 2001. There is also a document entitled “Buyer Detail” which on 37 pages records names of buyers and the cattle purchased at the sale on that day, but makes no reference to Mr Zilm or Mrs Zilm as a purchaser. The page headed “Buyer Details” which relates to Lot 23 of 21 steers with the tail tag NF451910 does not give the name of a purchaser. None of the “Buyer Details” gives tail tag reference QEBI 0746 for any cattle which could be the parcel of nine in question; that tail tag number appears only on a record of “Buyer Details” for sale of Lot 63, 13 heifers to Mr P Davis and there is no reason to think that this relates to the relevant cattle. Another business record produced by the Shire of Narrabri headed “Agent’s Sale” refers to Lot 23 sale of 21 steers NF451910 and does not give the name of a buyer. For Lot 24 the sale of 23 steers marked ND451837 recorded on the invoice as purchased by the Zilms, the purchasers are said in the “Agent’s Sale” record to have been Alley BN & DA.

9 A National Vendor Declaration dated 12 February 2001 (CB 37) completed by Mrs W Fitzgerald identifies the cattle by reference to property identification code QEBI 0746 and gives a number of items of information about the cattle on the occasion of their being sent to Roma Saleyards. Among other information the cattle are identified as nine males, and a printed statement is completed to state “9 cattle have treated with an HGP or their status is unknown.” A number of other items about the history of the cattle are also given. The prosecution then contended that these cattle are identical with nine Hereford steers with ear tags marked QEBI 0746 sold to Cramsie McRea Dalgetys on 13 February 2001 referred to in Roma Saleyard delivery advice dated 13 February 2001 (CB 28). That delivery advice is endorsed with a permit dated 14 February 2001 for the introduction of the stock (that is, into New South Wales) and for their movement to Wee Waa. No evidence dealt in any clear way with handling or movement of the stock until what, according to the prosecution case, were the same nine cattle appeared in the Vendor Pre-Sale Catalogue for the Narrabri Saleyards Store Cattle Sale for Tuesday 20 February 2001 (CB 82, 83). The catalogue (CB 83 H - I) indicates with words and code that the sale includes nine head of cattle tail tagged QEBI 0746; another code indicates that the cattle have not been treated with HGP. In all later records in evidence the cattle are either indicated as not having been treated with HGP, or there is no reference to the subject

10 Oral evidence given by Mr Brendon Fitzgerald shows that he attended the sale at Roma Saleyards on 13 February 2001 when he presented nine head of Hereford steers for sale on behalf of his son Rory Fitzgerald. Mr Fitzgerald’s evidence (CB 188) showed that it was his practice to treat all male cattle that were not intended for breeding with a hormone; the hormone was implanted mostly likely in the near ear with a hormone implanter gun, and a triangular punch is punched out of the off ear. It is his practice to put a white ear tag with his property number QEBI 0746 and his telephone number on cattle treated in this way; he identified an example of an ear tag. He uses white ear tags for HGP treated cattle and pink ear tags for cattle not treated with HGP. He identified the National Vendor Declaration which was signed by his wife, and he produced the copy in evidence. He said that all the cattle that went to the Sale were marked with ear tags with his registration number QEBI 0746 and all had punch holes in their off ears. Mr Fitzgerald gave no evidence of communicating whether the cattle were HGP treated, or communicating in any way at all, to Cramsie McRea Dalgety or to the respondent.

11 The order for approved cattle identification tags which on its face was made by the respondent and dated 13 February 2001 (CB 29) is not specific to any particular cattle; it is an order for 500 tags. The order is marked “processed” so that it constitutes evidence as a business record that tags were delivered to the respondent not long after the date of the order. It should also be understood that these tags showed his property identification code NF451910, which is referred to in the order. In oral evidence Mr Phillip Davis, a drover who attended the sale at Narrabi saleyards in late February 2001, said that he tagged cattle at the Narrabri saleyards but he was unable to give any specific evidence identifying the cattle which he tagged, or the colour of the tail tags which he attached to them, and he was unable to say whether the respondent gave him directions to tail tag cattle: he said (CB 184) to the effect that he could not remember who it was who told him to tail tag cattle, and it could be either Matt or Scotty or “ … Luke might go and get them, like it could be anyone”. It appears from the Magistrate’s reasons that he did not regard Mr Davis’s evidence as a basis for a finding that the respondent gave any direction for tail tagging cattle.

12 Mrs Helen Zilm who attended the sale and bought cattle on her husband’s behalf was unable to give any evidence identifying tags, or any evidence showing what tags were fixed to the cattle she bought at the time of sale. Mr Gary Brennand, a contract stockman, from time to time did contract work on cattle for Mr & Mrs Zilm. His statement (CB 86) based on his diary record, shows that 44 cattle were inducted to the Zilms’ property on 22 February 2001. Induction included giving the cattle injections and drench, inserting Andrew Zilm’s ear tag, removing other ear tags and replacing them with new management tags. His evidence shows that he observed first one animal which had a clear triangular ear punch mark which he associated with hormone treatment, then eight others similarly marked, and all nine had pink tail tags, which ordinarily indicates HGP-free cattle. He searched for but did not find traces of HGP pellets in the ears of these cattle; it is not invariable that such pellets can be found. One of these nine animals had a white Queensland ear tag showing property number QEBI 0746 with Mr Fitzgerald’s surname and telephone number, and also tail tag number NF451910. Mr Brennand’s observations led to the cattle being inspected by the District Veterinarian for the Moree Rural Lands Protection Board, and to Mr Andrew Zilm contacting the respondent and renegotiating the price of the cattle. Several other persons gave oral evidence to which it does not seem necessary to refer.

13 One source of complexity in the proceedings has been that although the Informations did not all say so in terms, they all related to offences with respect to the whole parcel of nine cattle, and the proofs that the cattle had been treated with HGP depended on tracing the whole parcel of nine cattle together from the Fitzgerald’s property at Roma through a chain of movements to the sale at Narrabri. Mr Fitzgerald’s evidence shows that all nine bore white ear tags indicating (in Queensland) that the cattle were HGP treated when he parted with them at Roma Saleyards; the only other reference to a white ear tag is in the evidence of Mr Brennand which shows that one of the nine had such an ear tag when it reached Mr Zilm’s property on 22 February. The Vendor Pre-Sale Catalogue refers to a parcel of nine head and gives the tail tag as QEBI 0746; those cattle are there said not to be not HGP treated. (Note that the Catalogue refers to tail tags and not ear tags). There is a slight basis for an inference that the beast which Mr Brennand found on 22 February to have a white ear tag QEBI 0746 was one of the nine cattle referred to in the Vendor Catalogue; there is no evidence showing that the parcel of nine cattle were kept together, where they were kept, how they were transported or what happened to them between 13 February at Roma and 20 February at Narrabri. In my opinion the evidence does no more than raise the possibility that the beast which had the white ear tag on 22 February was one of the parcel which Mr Fitzgerald sold at Roma, and does not, in the context of proof to the criminal standard of proof, warrant any finding relating to identifying that beast, still less the other eight, with the parcel of nine that Mr Fitzgerald sold at Roma.

14 (I incidentally notice that no objection ever appears to have been taken to any of the Informations on the technical ground that each Information charges more than one offence; at all stages it has seemed right to the parties to treat the offences charged as relating to the whole parcel. As the parties do not seem to have found this inconvenient it would have passed without any observation by me except that the proof of identity of one of the cattle is different to and (it may be) a little stronger than the proof of the identity of the other eight. If any technical point had ever been taken on this subject it would probably have been dealt with under s 30 of the Justices Act 1902 relating to immaterial defects and variances.)

15 It is necessary to give a ruling on the questions of law which gave rise to the appeals. However those questions are not the only questions which came under consideration in the proceedings before Dowd J, where the parties appear to have presented their cases in very complex ways, or in the Court of Appeal, where the Court directed its attention to the question of the identification of the cattle which were purchased by Mrs Zilm at the Narrabri saleyard with the parcel of nine cattle sold at the Roma Saleyards to which the evidence relating to HGP treatment related. In my opinion the prosecution’s evidence does not show a case upon which reasonable persons could find, applying the criminal standard of proof, that the cattle sold to the Zilms were identical with the cattle which were proven to have been treated with HGP, and the prosecution should not succeed for that reason. If any inference is available upon which the conclusion that the cattle are identical could be drawn, that conclusion could only be reached by relying on distant and uncertain inferences, which show no more than the possibility that the whole chain of proofs of identification is correct, although it may raise a probability, to a slight degree, at some parts of it. In my opinion it would not be correct to submit a case of that kind to a jury for decision upon the criminal standard of proof, and for that reason, if there were no other reason, the appeal should not be allowed so as to return the proceedings to the Magistrate for further consideration.

16 The first Information charges that the respondent:

DID wilfully contravene an order under s 46 of the Stock Medicines Act 1989.

Particulars:
Order: Order No. 2000/1 published in the NSW Government Gazette No. 162 of 15 December 2000 at pages 13217 - 13219
Contravention: of clause 2, Schedule 2 of Order No. 2000/1

Section 46 authorises the Director-General of the Department of Agriculture to make orders relating to stock medicines, and the power extends (sub (2A)) to power to make an order which:

“….may make provision for or with respect to:
(a) The identification or marking of stock to indicate whether or not stock has been treated with the stock medicine, including the use of particular colours of tags required under the Stock Diseases Act 1923 …….”

17 Sub-section 46(6) provides: “(6) A person must not wilfully contravene an order under this section” and fines are provided for. In the Gazetted Order under s 46 (CB 24 – 26) the Director General among other things ordered:

I hereby:

3. prescribe the manner in which cattle that have not at any time in their life been treated with HGPs may be identified – as specified in Schedule 2.

18 Schedule 2 provided:

Identification of cattle not treated with HGPs
1. Cattle that have not at any time in their life been treated with HGPs may be identified with a pink or lime green transaction identifier in compliant with the Stock Diseases (General) Regulation 1997.
2 A person must not attach, or cause or permit to be attached to cattle, pink or lime green transaction identifiers unless the cattle to which the transaction identifiers are attached have not at any time in their life been treated with HGPs.

19 The Order also contained a Dictionary which defines HGPs by identifying a number of commercial stock medicines which are hormonal growth promotants. Among other things the Dictionary contains this definition: “transaction identifier” means a transaction identifier as defined in the Stock Diseases (General) Regulation 1997.

20 The Stock Diseases (General) Regulation 1997 contains the following definition in Clause 15A:

Transaction identifier means an identifier of a type approved by the Director-General under Division 2.

Division 2 contains Clause 16E(1) as follows:

Approval of transaction identifiers
(1) an identifier to be used for the purposes of this Division must be of a type and comply with specifications approved by the Director-General.

21 It can thus be seen that the burden of the facts charged in the Information is that Mr Simshauser caused or permitted pink transaction identifiers to be attached to the nine cattle, and that those transaction identifiers were within the definition in the Stock Diseases (General) Regulation cl 16E, that is, that they were of a type and complied with the specifications approved by the Director-General. There was no evidence dealing directly with what type and specification of identifiers have been approved by the Director-General, if any have been. The ground on which the Magistrate dismissed the first Information when ruling on a contention that there was no case to answer appears from his observations (CB 243) to be that as one of the elements of the offence the prosecution was required to satisfy the Court that there was an approved transaction identifier, and that the prosecution had not been able to prove that the transaction identifiers spoken of by Mr Brennand were actually approved as required under the legislation.

22 The Magistrate expressed the view that the offence under s 46 was an offence of strict liability, that is, not involving the proof of mens rea or of a specific intent. This finding was challenged by the respondent in a Notice of Contention and the challenge relies principally on the word “wilfully” in sub-section 46(6). I would think that the use of the word “wilfully” indicates that the prosecution must prove a specific intent to do whatever acts constitute contraventions of an order made by the Director-General, including, in relation to the order now in question, an intention to attach, cause or permit to be attached the transaction identifiers referred to, and must also prove knowledge that the cattle had been treated with HGPs. However it is not necessary to come to a conclusion or to dispose of the appeal on the first Information on this basis. Even if the offence is one of strict liability, it is quite clear on the terms of the Order that the transaction identifiers which may not be attached to cattle are transaction identifiers of which the Director-General has approved under cl 16E; the Order does not forbid the attachment of irregular or non-approved transaction identifiers. Following the terms of cl 16E(1), if it is to be shown that there has been a contravention of Sched. 2 cl 2 there must be proof of an approval by the Director-General of a type and specification to which transaction identifiers attached to the cattle conform. There is simply no evidence dealing with any approval by the Director-General at all.

23 Counsel for the appellant contended that it could and should be found that the pink tags which Mr Brennand spoke of were of the approved type because it should be inferred that the pink tags which the respondent ordered and obtained from the Rural Lands Protection Board not long before the sale would have been of the approved type. Counsel also referred to Mr Brennand’s familiarity with the type of pink tags which he found on the cattle. In the context of proof to the criminal standard this is not a line of reasoning upon which in my opinion a reasonable person could find that tags supplied by the Rural Lands Protection Board conformed with some approval of the Director-General. They may well have, and to the civil standard of proof this conclusion would probably be appropriate and would lead to the conclusion which the prosecution seeks, based on reasoning to the effect that the Rural Lands Protection Board probably supplied the right kind of tags. There are other deficiencies in the proofs, as there is really no basis for finding that the respondent provided the pink tags that were affixed to the nine cattle in question, or that if he did he used tags which he had recently obtained from the Rural Lands Protection Board for that purpose. However that may be, my view is that the Magistrate’s conclusion was correct.

24 The second Information charges an offence under s 16A of the Stock Diseases (General) Regulation 1997. Again the particulars are very bare. The Information charges that the respondent:

DID sell stock when at the time of sale the stock were not identified as prescribed by clause 16A of the Stock Diseases (General) Regulation Act 1997
Particulars:
Stock: 9 Cattle
Sale: at Narrabri Saleyards

25 Clause 16(1) creates an offence in these terms:

1 A person must not sell any stock, or cause or permit any stock to be sold, unless at the time of the sale the stock are identified as prescribed by clause 16A.

Clause 16A makes a number of provisions requiring that stock be identified by attaching to them a transaction identifier. Sub-clauses (1) to (4) of cl 16A deal with various circumstances in which transaction identifiers are to be affixed. Clause 15A contains the definition of “transaction identifier” to which I have referred. Division 2 contains cl 16E to which I referred earlier. Thus the prosecution encounters the same need as in the first Information to show approval by the Director-General of a type and specification of transaction identifier; there is no such evidence, the prosecution encounters the same difficulties as in the first Information, and the appeal fails for a similar reason.

26 The third Information charges an offence under cl 16G(3) of the Stock Diseases (General) Regulation in these words:

DID sell stock knowing that a transaction identifier has been removed from the stock, in contravention of clause 16G of the Stock Diseases (General) Regulation 1997, within the previous period of 28 days.
Particulars:
Stock: 9 head of cattle
Sale: at Narrabri Saleyards
Transaction identifier: QEBI0746

27 Clause 16 G(3) is as follows:

(3) A person must not:

(a) sell any stock, or cause or permit any stock to be sold, or

(b) send or deliver any stock, or cause or permit any stock to be sent or delivered, to an abattor for slaughter or to a saleyard or other place of sale,
knowing that a transaction identifier or special tag has been removed from the stock, in contravention of this clause, within the previous period of 28 days.
Maximum penalty: 100 penalty units.

28 With respect to one of the parcel of nine cattle, if it is assumed that the cattle delivered to the Zilm’s property on or by 22 February included all those nine cattle, there is a plain basis for an inference that the white transaction identifier QEBI 0746 had not been removed at the time of sale. With respect to the other eight the prosecution was required to prove that the cattle had white transaction identifiers, that is that they were part of the parcel of which Mr Fitzgerald’s evidence spoke, that the transaction identifiers had been removed by the time of the auction sale, and that the respondent knew that they had been removed. The Magistrate in disposing of this ground said:

“However, in my view there is no evidence to suggest that at the time of sale of the subject cattle at Narrabri on 20 February 2001, that those cattle did or in fact did not have any transaction identifiers removed and removed within the knowledge of the defendant with the last 28 days, that is the evidence on my view thereof is silent on that issue. Now whilst there are inferences which can drawn and there’s ample inferences which can be drawn from the evidence educed in this proceeding, it is not a situation where in my view the prosecution has established even to a prima facie level, an offence by the defendant as set out within the information. That is, did sell stock knowing that a transaction identifier has been removed from the stock in contravention of clause 16G of the Stock Diseases (General) Regulation 1997 within the previous period of 28 days. And it is the same subject nine head of cattle. THAT MATTER IS MARKED NO PRIMA FACIE CASE, AND DISMISSED.”

29 In my view these reasons were correct, and the Court of Appeal has not been referred to any evidence which would establish, assuming that the cattle were identified with those of which Mr Fitzgerald’s evidence spoke, whether, when or by whom white transaction identifiers were removed from eight of them, and there is no evidence which would establish whether the respondent had any involvement in their removal or knew of it. If the identity of the cattle were established, the evidence leaves it at least equally possible that the white transaction identifiers were removed after the time of sale as that they were removed beforehand. In practical terms there is no evidence dealing with the subject, except for the very faint indication that the reference QEBI 7046 is given (for tail tags, not ear tags) for a parcel of nine head in the Vendor Pre-Sale Catalogue. When and how eight beasts lost their tags is simply not dealt with by evidence..

30 The fourth Information charges an offence under the Stock (Chemical Residues) Act 1975, s 12D(2)(b) which creates an offence in these terms.

Providing false or misleading information

(2) A person must not, in connection with a sale or disposition or proposed sale or disposition of stock, make a statement or provide information in relation to:
(a) the presence or absence of chemicals in stock, carcasses or land, or
(b) whether stock are chemically affected, or
(c) any matter relevant to an assessment of the likelihood of chemical residues in stock, or
(d) any other matter prescribed by the regulations,
that is false or misleading in a material particular.
Maximum penalty: 100 penalty units.
Again there were brief particulars as follows:


DID, in connection with a sale of stock, provide information in relation to whether the stock were chemically affected that was false.

Particulars:
Stock: nine head of cattle
Sale: at Narrabri Saleyards
Chemical: Hormonal growth promotant

These particulars did nothing to indicate what was alleged about when, in what manner and to whom the respondent provided false or misleading information, or what that information was.

31 The Magistrate disposed of the fourth Information in two stages. After review of the evidence he held (CB 241) that the prosecution had established the offence at a prima facie level; in his observations he referred to the identification of the cattle as being HGP free in the Pre-Sale Catalogue. However he also referred to the need for evidence

“………..that Mr Simshauser gave directions to persons or well knew that pink tail tags were to be fitted to the subject cattle at the Narrabri saleyards at 20 February 2001”

and went on to refer to the evidence of Mr Davis about the circumstances in which he affixed the pink tail tags; at the same time the Magistrate made severely adverse observations on Mr Davis’s credibility. At a later stage after hearing further submissions on the facts the Magistrate found (CB 244)

“……without there being some linking evidence connecting the defendant with the publication [of the pre-sale catalogue], an announcement and/or announcement of those conditions at the time of the auction commencing the court cannot be satisfied beyond a reasonable doubt that Mr Scott Simshauser has committed the offence as set out in the information.”

At that later stage the Magistrate’s reasons do not refer to Mr Davis or his evidence, from which I conclude that, in the Magistrate’s understanding, he was not asked to base findings of facts on Mr Davis’s evidence to the effect that Mr Davis affixed the pink tail tags in conformity with a direction from the respondent. In view of the Magistrate’s earlier observations and further in view of the imprecision and unsatisfactory nature of Mr Davis’s evidence, which is obvious to me from the transcript, I do not find it surprising that the Magistrate did not understand that his attention was again directed to what Mr Davis had said.

32 Counsel for the appellant complained that the two rulings of the Magistrate were inconsistent; to my mind, bearing in mind that what was under consideration at the first stage was a contention that there was no prima facie case, there is no inconsistency. On appeal it was further contended that the Magistrate’s findings to the effect that there was no evidence that the Pre-Sale Catalogue was issued at the authority of or espoused by the respondent were not justified. It was contended to the effect that the respondent as auctioneer must have had available to him information in the documents which are in evidence including the documents produced on subpoena by the Narrabri Shire; and counsel also referred to the National Vendor Declaration produced by Mr Fitzgerald.

33 There is however, no evidence showing that the National Vendor Declaration was available to the respondent; the copy in evidence was a copy produced by Mr Fitzgerald, and no copy of that document was among the documents produced by Narrabri Shire and tendered. The Vendor Pre-sale Catalogue produced by the Narrabri Shire is not shown by evidence to have been communicated by the respondent to Mrs Zilm or to any other person. It could be supposed, as a matter of probabilities, that the respondent as auctioneer probably knew of the contents of the Vendor Pre-Sale Catalogue; but what is required is evidence that he communicated its contents to Mrs Helen Zilm or to some other person, and further, evidence that he knew that the statement in it to the effect that the cattle marked QEBI 0746 were not treated with HGP was false. There is no basis for either conclusion.

34 Many other issues were dealt with in argument before Dowd J, in his Honour’s judgment, in written submissions and in a Notice of Contention put before us by the respondent. However I am of the opinion that the appeal should be disposed of upon the grounds which I have stated. Several matters which are important in the abstract and were the subject of argument and judicial observations at earlier stages do not call for conclusions on appeal. One is whether the offences charged are offences of strict liability which may be answered in the manner referred to in Proudman v Dayman (1941) 67 CLR 536 at 541 – 542 by Dixon J or of absolute liability which may not even be answered in that way: or whether on the other hand they are offences in which a specific intent must be proved, or in which mens rea must be proved. The prosecutions have failed on the objective facts and not on any element of intention. As views have been earlier expressed that some of the offences charged are offences of strict liability I will say that I regard this as doubtful, particularly as to cl16A(3) of the Stock Diseases (General) Regulation which uses the word “wilfully” and subs. 12D(3) of the Stock (Chemical Residues) Act which uses the word “knowingly”. Another issue which I have not disposed of is the operation of cl 16(4)(e) of the Stock Diseases (General) Regulation Act which Dowd J regarded as conclusive against the prosecution. It is not clear to me that cl 16(4) has that effect. It may be that if it appears from evidence that stock have recently been brought into the State the prosecution must establish whether or not cl 16(4) applies when alleging a charge under cl 16(1). However I am not called on or a concluded opinion.

35 In my opinion the Court of Appeal should order.

Appeal dismissed with costs.

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