Oliver v Simshauser - [2004] NSWSC 690

No judgment structure available for this case.

CITATION: Oliver v Simshauser [2004] NSWSC 690

HEARING DATE(S): 15 October 2003

JUDGMENT DATE:
23 August 2004

JUDGMENT OF: Dowd J at 1

DECISION: Appeal disallowed; summons dismissed; plaintiff to pay costs of appeal

CATCHWORDS: Appeal from Magistrate - standard of proof - elements of offences - mens rea - notice of contentions - how dealt with

LEGISLATION CITED: Evidence Act 1995
Justices Act 1902
Justices Legislation Amendment (Appeals) Act 1998
Stock (Chemical Residues) Act 1975
Stock Diseases (General Regulation) 1997
Stock Medicines Act 1989
Supreme Court Rules 1970

CASES CITED: Bressington v Commr for Railways (1947) 75 CLR 339
Cameron v Holt (1980) 142 CLR 342
He Kaw The v R (1985) 157 CLR 523
Holt v Cameron (1979) 27 ALR 315
Ianella v French (1968) 119 CLR 84
JMR (1991) 57 A Crim R 39
May v O'Sullivan (1995) 92 CLR 654
Morgan v Babcock (1929) 43 CLR 163
NAB v Rusu (1999) 47 NSWLR 309
Proudman v Dayman (1941) 67 CLR 536
R v Bilick 11 A Crim R 542
Reg v Guiren (1962) 79 WM 811
Sherras v de Rutzen (1895) 1 QB 918
Sweet v Parsley [1970] AC 132
R v Briggs (1987) 24 A Crim R 98

PARTIES :
Keith William Oliver
Scott Simshauser

FILE NUMBER(S): SC 13407/02

COUNSEL: Plaintiff: Mr M W Anderson
Defendant: Mr B Glennon

SOLICITORS: Plaintiff: I Knight, Crown Solicitors
Defendant: G Johnson, Bell & Johnson Solicitors

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : B Wilson

- 51 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

Monday, 23 August 2004

13407/02 Keith William Olivier v Scott Simshauser

JUDGMENT

1 DOWD J: On 20 December 2002 the Plaintiff appealed, by way of Summons pursuant to s104 of the Justices Act 1902, from a decision of Mr B Wilson, Magistrate, of the Gunnedah Local Court on 22 November 2002. The Plaintiff appeals the whole of the decision of the learned Magistrate and seeks orders pursuant to s109(a) of the Justices Act 1902 quashing te orders made dismissing informations laid against the Defendant for the following Counts:

Count 1:
An offence of Contravening an Order, under s46 of the Stock Medicines Act 1989;

Count 2:

An offence of Selling Stock Not Identified as Prescribed by cl16A of the Stock Diseases (General Regulation) 1997 (the “ Regulations”)

Count 3:

An offence of Selling Stock Knowing that a Transaction Identifier has been Removed from the Stock within the previous period of 28 days, in contravention of cl16G of the Regulations;

Count 4:

An offence of Providing False Information in Connection with a Sale of Stock in relation to whether the stock were chemically affected in contravention of s12D(2)(b) of the Stock (Chemical Residues) Act 1975.

2 The Plaintiff seeks declarations that the learned Magistrate erred in law in his interpretation of s46 of the Stock Medicines Act 1989, cl16(1) and cl16(G)(3) of the Stock Diseases (General Regulation) and s12(D)(2) of the Stock (Chemical Residues) Act 1975, in relation to Counts 1, 2, 3, and 4 respectively.

3 In relation to Counts 1, 2, and 3, the Plaintiff seeks a declaration that the Magistrate erred in law in finding no prima facie case in relation to those Counts. In respect of Count 4, in which the learned Magistrate did find a prima facie case, the Plaintiff seeks a declaration that the Magistrate erred in law in failing to find that that Count was proven beyond a reasonable doubt.

4 The Plaintiff also seeks in relation to each Count a declaration that the Magistrate erred in law in failing to give sufficient attention to all the evidence in the case so that there has been no determination of the matters on the real strength of the body of evidence presented.

Background Facts

5 On 13 February 2001 nine head of cattle as part of a larger herd were sold at the Roma saleyards in Queensland by the Fitzgerald family to the company Cramsie McRae Dalgetys (“CMD”). The cattle were treated with Hormone Growth Promotant, or “HGP”, a product used to increase the productivity of the cattle. The cattle were tagged with white ear tags which bore the name “Fitzgerald”, a phone number and a property identification number. The property identification number, “QEB 10746” was a reference to a property registered to the Fitzgeralds.

6 The cattle were transported to New South Wales on 14 February 2001, after being issued with a permit by the Department of Agriculture to be transported interstate. On 20 February 2001 the cattle were sold to a Helen Zilm, buying on the advice of her husband Andrew Zilm, as part of a purchase of a total of 44 cattle from Lots 23 and 24 at the Narrabri Saleyards. The bill from the transaction between CMD and the Zilms showed the cattle as being HGP-free. There is some dispute as to where the cattle were kept in the one week period between the sale at Roma and the sale at Narrabri, with the Defendant’s submission being that it is not certain that the animals which arrived at the Zilm’s property were the same that were sold by Fitzgerald to CMD.

7 The 44 cattle were transported to the Zilm’s property, where a Gary Brennard, a contractor on the property, noticed while processing the cattle, that some of them had triangular punches in their right ear, and that one of the animals with a triangular punch had a white tag on its ear with the identifier described above. The triangular ear punch on the right ear of the cattle was understood by Brennard to be an indication that the cattle were HGP treated cattle. Brennard informed Andrew Zilm of this fact, and both noticed that all of the cattle bought had pink tail tags, which are indicators of HGP-free cattle. The pink tail tags had the property identification code (“PIC”) NF 451910 marked on them.

8 The Defendant, Scott Simshauser, was the auctioneer at the Narrabri Sale Yard on 20 February 2004, according to the evidence of Helen Zilm, although there was some question as to what exactly his role was. On 13 February 2001 the Defendant signed an order for pink HGP-free “transaction identifiers”, or tail tags, through the Narrabri Rural Lands Protection Board with the code PIC NF 451910. The application showed the name of “Morris Simshauser” as being the applicant, the Defendant’s father. However, the signature on the order appeared to be that of the Defendant Scott Simshauser, who signed a declaration saying that the tags would only be attached to cattle that the he knows have not been treated with HGPs at any time in their lives.

9 On 15 August 2001 the informations were laid and summons was issued to the Defendant, with Keith William Oliver as the informant, for the charges as set out in para 1 above.

10 As to Count 1, the relevant order of the Director General under this section was exhibited before the learned Magistrate in the form of a copy of a NSW Gazette from 15 December 2001, which contained the following order in Sch 2 cl2 of Order No.2000/1 under the Stock Medicines Act:

Schedule 2:

1. …

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.

11 The relevant statutory and regulatory provisions are as set out below:

(a) Section 46

Stock Medicines Act

1989

s 46 Supply and use bans and recall orders

(1) The Director-General may make an order under this section if the Director-General believes on reasonable grounds that the administration or application of a stock medicine or of each stock medicine of a particular class is likely:

(a) to endanger the health of the public, consumers of food or produce derived from stock or persons administering or applying the stock medicine, or

(b) to cause undue hazard to the environment, or

(c) to make stock ill, or

(d) to have an adverse effect on trade in stock or a product derived from stock.

(2) An order under this section may:

(a) prohibit or regulate the supply of the stock medicine or stock medicines of the class, or

(b) require any person who has supplied the stock medicine or stock medicines of the class to take such reasonable steps as are specified in the order to recover any such stock medicine from other persons to whom it has been supplied by the person, or

(c) prohibit or regulate the use of the stock medicine or stock medicines of that class by any person in relation to any specified species of animal.

(2A) Without affecting the generality of subsection (2), an order under this section made in relation to a specified stock medicine or a stock medicine of a specified class 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, or

(b) the making and keeping of records relating to, and to the treatment given or not given by, the stock medicine, or

(c) the information or documentation required to accompany the stock medicine when sold, or to accompany stock when sold or consigned for sale, or

(d) the disposal of the stock medicine in accordance with requirements of the Director-General, or

(e) the holding of an authority for the purchase, sale or use of the stock medicine, the fixing of a fee for such an authority and the waiver of such a fee, or

(f) the prohibition of the use of the stock medicine for a particular purpose or for any purpose.

(3) Any such order:

(a) if it applies to any named person (whether or not it also applies in any respect generally or to a specified class of persons) is to be served on the person, and

(b) if it applies in any respect generally or to a specified class of persons, is to be published in at least one newspaper circulating generally throughout New South Wales, and

(c) may relate to a registered stock medicine or to an unregistered stock medicine.

(4) When the Director-General makes an order under this section, the Director-General is to ensure that it is published in the Gazette and at least one newspaper circulating generally throughout New South Wales.

(5) Any such order takes effect:

(a) in so far as it applies to a named person, when it is served on the person, and

(b) in so far as it applies generally or to a specified class of persons, when it is published in the Gazette or on any later date specified in the order.

(6) A person must not wilfully contravene an order under this section.

Maximum penalty: 200 penalty units or, for an offence by a corporation, 400 penalty units.

(b) Clauses 16 and 16A of the

Stock Diseases (General) Regulation

1997

(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.

Maximum penalty: 100 penalty units.

(a) to an abattoir for slaughter, or

(b) to a saleyard or other place for sale,

unless at the time the stock are so sent or delivered they are identified as prescribed by clause 16A.

Maximum penalty: 100 penalty units.

(3) For the purposes of this clause, stock that are offered for sale by auction are taken to have been sold at the fall of the hammer.

(4) This clause does not apply to:

(a) the sale of stud stock at, or the sending or delivery of stud stock to, an agricultural show or exhibition,

(b) the sale of stock as an incident of the sale of land or the sale of a business under which the stock will remain on the land or be retained as part of the business,

(c) the sale of stock (otherwise than at a saleyard) to a purchaser where the seller believes on reasonable grounds that the stock will travel directly to a holding occupied by the purchaser for the purpose of restocking that holding,

(d) the sale, or the sending or delivery to an abattoir, or to a saleyard or other place for sale, of stock:

(i) that have been purchased during the preceding period of 28 days (or, in the case of pigs, 7 days), and

(ii) that were identified as prescribed by clause 16A at the time of purchase, and still are so identified,

(e) the sale, or the sending or delivery to an abattoir, or to a saleyard or other place for sale, of stock:

(i) that have been introduced into New South Wales during the preceding period of 28 days (or, in the case of pigs, 7 days), and

(ii) that are identified in accordance with a law in force in the State or Territory from which they have been introduced, being a law whose provisions are similar to the provisions of this Division,

(f) the sending or delivery to an abattoir for slaughter of stock:

(i) that were purchased during the preceding period of 7 days, and

(ii) that were identified as prescribed by clause 16A at the time of purchase,

(g) the sending or delivery to an abattoir, or to a saleyard or other place for sale, of stock:

(i) for which, no later than the day before the sending or delivery, approval has been given by an inspector to their being so sent or delivered, and

(ii) that are identified as prescribed by clause 16A before slaughter or sale,

(h) the sending or delivery of stock directly to an abattoir for slaughter from the holding on which they were born, if the stock are identified by a permanent identifier in accordance with Division 3,

(i) the sending or delivery of stock from a holding to an abattoir that receives stock exclusively from that holding, where the sending or delivery is approved by the Director-General,

(j) the sending or delivery by a person of pigs to an abattoir under an agreement with that person for the slaughter of the pigs and the return of the carcasses to that person for personal consumption or use.

16A Manner of identification of stock

(1) For the purposes of clause 16, stock are to be identified by attaching to them, in the manner referred to in subclause (2):

(a) a transaction identifier that contains the property identification code for the appropriate holding, or

(b) a special tag, in the circumstances referred to in clause 16F.

(2) A transaction identifier or special tag is to be attached to stock:

(a) in the case of a tag (including a special tag)—in the manner prescribed by clause 16B, and

(b) in the case of a brand—in the manner prescribed by clause 16C, and

(c) in the case of any other transaction identifier, by applying, administering, inserting or otherwise using it in accordance with the manufacturer’s specifications.

(3) Except as provided by subclause (4), the appropriate holding, in relation to which stock sold or sent or delivered for sale or slaughter are to be identified, is:

(a) the last holding at which the stock were depastured for a period of more than 28 continuous days, if that period ended during the prescribed period, or

(b) the holding determined by an appropriate inspector.

(4) For stock that have previously been sold or sent or delivered for sale during the prescribed period, the appropriate holding is:

(a) the holding that was the appropriate holding at the time the stock were previously sold or sent or delivered for sale, if at that time of that previous sale they were identified in accordance with this clause, or

(b) the holding determined by an appropriate inspector.

(5) In this clause:

appropriate inspector

prescribed period

(c) Clause 16G Stock Diseases (General) Regulation

cl 16G Transaction identifiers or special tags not to be altered or removed

(1) A person must not remove a transaction identifier or special tag attached to any cattle, or cause or permit such a device to be removed, while the cattle:

(a) are being moved to an abattoir for slaughter, or

(b) are being moved to a saleyard or other place where they are to be kept for sale, or

(c) are being moved from a saleyard or other place where they have been kept for sale, or

(d) are being sold.

Maximum penalty: 100 penalty units.

(2) A person must not remove a transaction identifier or special tag attached to any cattle, or cause or permit a transaction identifier to be removed, if the cattle have been sold during the previous period of 28 days, unless the cattle have been taken to a holding where they are kept for the purpose of restocking that holding.

Maximum penalty: 100 penalty units.

(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 abattoir for slaughter or to a saleyard or other place for 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.

(5) In this clause, transaction identifier includes any means by which stock to which clause 16 (4) (e) applies are identified as required by the law of another State or Territory.

(d) Section 12D

Stock (Chemical Residues) Act

1975

(1) A person must not, in making a statement or providing information for the purposes of this Act, make a statement or provide information to the Minister or a person engaged in the administration of this Act, or to any other person, that is false or misleading in a material particular.

Maximum penalty: 100 penalty units.

(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.

(a) in the case of a Plaintiffin relation to making a false statement or providing false information, that the defendant reasonably believed that the statement or information was true, or

(b) in the case of a Plaintiffin relation to making a misleading statement or providing misleading information, that the defendant had no intention, in making the statement or providing the information, to mislead.

12 At the end of the Prosecution case, counsel for the Defendant sought an order that there was no case to answer. The Magistrate held that in relation to Counts 1-3 there was no prima facie case made out by the Prosecution; and although he found that there was a prima facie case made out in relation to Count 4, he held that the evidence did not allow the Court to be satisfied beyond reasonable doubt that the Defendant committed the offence.

The Evidence before the Magistrate

13 The Prosecution led evidence from Gary Brennard, a contractor hired to do some work on the Zilm’s property. On the day the cattle were delivered, he processed the cattle by removing their tail tags, giving them vitamin shots and ‘drenching’ them. His evidence was that while doing this, he noticed that all the cattle had pink tail tags, and that one had a white ear tag, with a property identification code, a Queensland phone number and the name of “Fitzgerald” on it, which number and name he wrote down in his diary. The diary entry, dated 22/2/01, recorded the property identification number as “QEV 10746”, and the phone number as “462 249 23”. That diary entry was exhibited before the Magistrate. Brennand also recorded the number on the tail tag of the animal, which read “NF 451 910”.

14 Brennand gave evidence that he also noticed that “about eight” of the cattle had a triangular punch mark in their right ear, of sides approximately a half an inch in length, which signified to him that they were HGP treated cattle. He searched inside the ear of the animals for plastics pellets, residue which sometimes may be found in HGP treated cattle, but did not find any. He gave evidence that he told the Zilms that he “thought there had been a slip up” and that he gave Andrew Zilm the white ear tag and suggested that he contact someone.

15 Brennand gave evidence that some time after that that when mustering for a William Hetherington, District Veterenarian for the Moree Rural Land Protection Board (“RLPB”), he told Hetherington about the cattle that he saw, saying that he had seen eight with clear triangular punches in the ear, but said that he noted in his diary entry from the previous day that there were 14 cattle in total that he noticed with either full triangular marks or what looked like “damaged” triangular marks on their ear.

16 In cross-examination, counsel for the Defendant relied on a statement made by Brennand on 24 March 2001, which was made over the phone with a person from the Rural Board, typed up and then faxed through to Brennand to be checked and signed, which contained a number of mistakes which were not corrected until later, when Brennand went over his statement with the lawyers for the Prosecution. The statement was exhibited before the Magistrate, with corrections written over the typed sheet in pen. In para 5 of Brennand’s, statement for example, the tail tag number appears as “WF451910”, which was crossed out to read “-NF451910. Brennand said in cross-examination that the “N” looked like a “W” in his notes, but when going over his statement, he discussed it with his wife, who said that it was an “N”. In re-examination, the witness stated he had no doubt that the letter was an “N”.

17 Brennard gave evidence that he had administered HGP treatment to cattle, saying that he believed that in Queensland cattle that is HGP treated must have a triangular hole punched in their ear, but that he could not be sure that the practice of the punching actually happened all the time. He gave evidence that a particular position of the ear is usually reserved for the triangular punch. He said that some of the punches that he observed in the cattle at the Zilm’s property had clear triangular markings, and others had markings which were not clear, and looked like triangles with the bottom pulled through the ear.

18 The evidence of Andrew Zilm was that the bill from the sale from CMD on 20 February 2001, a copy of which was exhibited before the Magistrate, showed that all the stock described in the invoice was described as bearing HGP-free tags at the point of sale.

19 Andrew Zilm said that he said that he saw triangular markings in the right ears of approximately nine of the cattle delivered to the property that day (there is some inaccuracy in the evidence as to whether it was the day after or two days after the cattle were purchased that they were delivered to the property), while processing them, and that all of the cattle had pink tail tags. He said that he did not know what the triangular marking meant, and that the cattle with the mark looked like “feminine… lankier, slavian type cows” (T29.26). He said he saw the white ear tag on one animal, with the name “Fitzgerald”, and two numbers on it. His evidence was that he kept the tag for some time and then gave it to a stock and station agent, a Andrew Pitman, in Moree. He said that he asked for the tag back at some point, but did not get it back.

20 Andrew Zilm gave evidence that he took the pink tail tags off and put his own tags on the cattle, and that he kept some of the pink tags somewhere at home, thought that the RLPB might have one, and that the stock agent in Moree might have one. Zilm said that after the cattle had been delivered, he rang the Defendant and discussed the cattle with the Defendant, mentioning the triangular markings and the white tag. He gave evidence that he, Zilm, did not remember the precise terms of the conversation with the Defendant, but that he conveyed to the Defendant that he was not happy with the situation. As a consequence of the conversation, Zilm’s evidence was that an agreement was reached whereby he would pay $100 or less per animal for the HGP treated cattle, once he had been notified by the RLPB that the matter had been reported. He paid for the cattle after acknowledgement by the RLPB had been received.

21 Zilm gave evidence that some weeks after the delivery of the cattle, William Hetherington came to his property to inspect the animals, although due to a flood they, as a consequence, were unable to muster all of the cattle and not all of the cattle were inspected.

22 In cross-examination, Zilm gave evidence that he remembered the name “Fitzgerald” after his statement was made, saying at T41.17 26/03/02:

“A. I believe I remembered that name when the statement was done, it is just a name that is a very familiar name with me, I know some people that are Fitzgerald and it stuck in my head”.

23 Zilm gave evidence that he could not say where the cattle had come from prior to being purchased in Narrabri. He gave evidence as to the tail tag identification numbers at T44.40-T45.33, 26/03/02:

Q. No indeed. Is it the position that as you sit there in the witness box you cannot be sure which lot these cattle were from? Can you be a hundred percent sure?

Interjection - Bench

24 In re-examination, Zilm then said that he was “better than 50 percent sure” (T47.28).

25 Helen Zilm gave evidence that she attended at the Narrabri saleyards on 20 February 2001, and chose the cattle to purchase, in conference over the phone with her husband. She gave evidence that that was the first time that she had purchased cattle and that she did not known the significance of different coloured tail tags. She said that she had known the Defendant and the Defendant’s father, Morris Simshauser, for a number of years, having sold sheep through them as agents, and that on that day the Defendant was the auctioneer at the saleyards. She said that she purchased the cattle from two pens, Lots 23 and 24, which were next to each other, and then asked Morris Simshauser to recommend someone who could transport the cattle to her property.

26 She gave evidence that at the time of the auction, she was not told anything about the cattle that “stood out in her mind”, and nothing specifically about them being HGP treated.

27 In cross-examination, the witness said that she did not know that a Michael Guest, who was a part of the company which the Defendant and his father were also part of, was the auctioneer that day. There is thus some question as to who was the auctioneer and as to the precise role of the Defendant at the auction that day. Mrs Zilm said that she did not know the origins of the cattle from the two Lots of cattle she bought, that she did not record the number on the tags, and could not be sure that the cattle that she bought were in fact the cattle that arrived at the Zilm property, according to her, the next morning. Mrs Zilm also gave evidence that the cattle, when they arrived, were unloaded into cattle yards and kept separately from the other cattle on the property, which numbered between a hundred and seventy to two hundred and fifty, and were kept segregated for some few weeks thereafter.

28 The Prosecution also led evidence from a Mr Robert Coveny, a Regulatory Specialist with New South Wales Agriculture, and an Inspector under the Stock Diseases Act, the Stock (Chemical Residues) Act, and the Stock Medicines Act who investigated the suspected breach of those Acts in this matter. He gave evidence that under the Regulations, HGP treated cattle must have 1) a triangle-shaped mark of 20mm sides punched into the right ear of the cattle, and 2) an orange ‘transactional identifier’ attached, in the form of an ear tag or tail tag, at the time of sale. The orange tag must have an individual identifying number and a property identifier code, which latter indicates that the animal is registered to a particular property registered through the RLPB. In the event that an owner wishes to sell an animal, an application must be made to the RLPB to buy transaction identifiers which the RLBP checks that the property identification code is correct and then puts an order in.

29 Coveny gave evidence that the Defendant had applied for transaction identifiers in around February 2001, with the property identification code NF451910.

30 Coveny gave evidence that in relation to HGP treated cattle, anyone who purchases such cattle must sign a declaration and can only purchase them from registered outlets. On the sale of the cattle, the vendor usually fills out a National Vendor Declaration Form, which is voluntary, but in which they are obliged to provide the correct information. These are printed by Meat and Livestock Australia and are usually provided to vendors by stock and station agents, who then collate the forms into a pre-sale catalogue which is made available to the buyers prior to a sale.

31 Coveny gave evidence that as part of his investigation, he went with a Mr Shawcross to the offices of CMD on 19 July 2001, where he spoke to the Defendant. The Magistrate ruled that under s6 of the Stock (Chemical Residues) Act the questions and answers of that conversation were inadmissibile.

32 In cross-examination, Coveny’s evidence was that in the course of his investigation he did not see the subject animals being transported; he did not track all of the cattle, aside from the nine suspect cattle; nor he did he photograph the cattle or take blood samples. He said that the animals, according to his recollection (which accords with the permit to introduce stock issued by the Department of Agriculture) were transported across from Queensland into New South Wales on 14 February 2001 and that they were tracked down some weeks after that, after Mr Zilm had contacted his agent and the agent had spoken to the Defendant. The following questions were asked, in relation to the knowledge of the witness that he was sure that the animals were the same (at T33.27 – T34.3 29/09/02):

And then, at T34.24 26/09/04, referring to the Delivery Advice from Roma Livestock Auctions Association upon purchase by CMD of the nine head of cattle from Mr Fitzgerald, which had been admitted before the Court:

[…]

Q. Your counsel can ask you questions in re-examination if he needs to.

33 Coveny’s evidence was that he did not obtain a statement from anyone in relation to the affixing of tags on the cattle.

34 The witness Phillip Davis, a drover who worked at the Narrabri saleyards in late February 2001, gave evidence that he had “probably” tagged some cattle, although could not say what type of tags or how many cattle he tagged. His evidence was that someone, either a “Matt”, “Luke” or “Scotty” – the latter name referring to the Defendant - would come around with a bag and say to tail tag the cattle. In a statement made on 10 August 2001, he said that he put pink tail tags on the cattle, and in examination in chief gave the following evidence at T39.39 – T39.55 26/09/02:

35 In cross-examination, Davis said that when he gave his statement the officers took down notes, but did not give him the statement to check, but instead they “just explained it and went through it with me”.

36 A witness Brendon Fitzgerald gave evidence that he attended the Roma saleyards on 13 February 2001 to sell the nine head of Hereford steers. He gave evidence that the cattle were HGP treated, as he treated all male cattle not intended for breeding, with hormone, and that he used different types of hormone depending on their price, as well as on other factors. He said that it was his practice to use a hormone implanter gun in the ear of the animal and punch a triangular mark on the “off” or right ear, and then attach a white ear tag with the property identifier code, and his name and phone number on it.

37 Fitzgerald said that he purchased cattle on behalf of his son, but that it was he who administered the HGP upon purchasing them, which was either the brand “Ralgro” or the brand “Revalor”. He said that no one had asked him before then what the name of the hormone might have been.

38 Fitzgerald gave evidence that his wife filled out the National Vendor Declaration Form with him overseeing it, prior to that sale, which accurately set out that the cattle were treated with HGP, and that he gave it to the agent when the cattle arrived at the saleyards.

39 A witness Shaun Slattery, District Veternarian of Narrabri RLPB, and an Inspector under the Stock Diseases Act and Stock (Chemical Residues) Act in relation to the subject investigations, said that he received a call from the Defendant around 7 March 2001, as a result of which he formed a belief that a number of offences had been committed, and after which Slattery referred the matter to Coveny, as the matter fell within Coveny’s district. As part of his investigations, he spoke with Hetherington and accompanied Shawcross to Davis’ home at Walla Lane, as a result of which interview he formed a view that there was relevant evidence in any likely prosecution. Slattery gave evidence in relation to the order for approved cattle transaction identifier, that the property identifier code noted on the order was registered to “Kakabo”, a holding owned by Morris Simshauser and signed by the Defendant, and that there had been no applications for tail tags from that property prior to 13 February 2001.

40 In cross-examination, Slattery said that he had not obtained a statement from Morris Simshauser in his investigations, and did not know for sure that the tags were supplied. He knew that a company called Ashbridge bought the steers at some stage, but said that he did not obtain a statement or speak with anybody from that company, and did not know whether any tags were put on them by Ashbridge. Slattery said that it was not he who led the investigation. He gave similar evidence in relation to the assertion by counsel for the Defence that he was aware of a suggestion that the cattle ended up at some stage at the McIntyre saleyards on the New South Wales side of the border near Goondiwindi, but did not speak to anyone there or visit those yards, and that similarly, he had no knowledge if anyone had tagged or removed tags from the cattle at those yards.

41 In re-examination Slattery said, in relation to the delivery of tags ordered from the RLPB, that the order forms are sent to the manufacturer, and then the tags are delivered express post to the person who ordered them, or sometimes they are returned to the RLPB office, from where they were delivered express or by post.

42 A witness Duane Shawcross, a ranger with the Narrabri RLPB who had been involved in the matter since 7 March 2001, gave evidence that he was present when the conversation between the Defendant, Slattery and a Simon Oliver took place at the RLPB; that he conducted some enquiries into the matter, including being present when the Defendant was interviewed by Coveny and when Davis was interviewed and his statement was taken.

43 In cross-examination, Shawcross said that he did not go to the McIntyre saleyards, or investigate the link to the company Ashbridge, saying that he “only did what he was directed to do” (T27.49 27/09/02). In relation to Ashbridge, he said that he thought that Ashbridge had held the steer for seven days. In relation to whether he thought it was appropriate for Davis to read and sign his statement when it was made, Shawcross said, “It didn’t cross my mind” (at T29.30 27/09/02).

44 Finally, William Hetherington, the District Veterinarian for the Moree RLPB, gave evidence that in around late February 2001 he received a call from Andrew Zilm, after which he went on 20 April 2001 to the property to examine some cattle when Zilm and Brennard were present. He examined around 100 cattle, including the cattle with the triangular punches in the ears which were pointed out by Brennard. He said that he did not see the tail tags while they were on the cattle.

45 Hetherington gave evidence that he palpated the ears of the specified cattle to see if there was a residual piece of plastic inside the ear, which can indicate that the cattle were HGP treated, although it is not necessarily always found, depending on what type of hormone was used. Hetherington gave evidence that the triangular punch mark is specifically reserved for cattle that have been treated with HGP, and that not all HGP treatments leave a trace such as a capsule in the ear, and that to his knowledge the variety of hormone called Ralgro did not leave any trace of a capsule.

46 Hetherington gave evidence that he saw 5 cattle with complete triangular markings, and some other ones with not full triangular markings. He was given a box of 29 pink tail tags, exhibited before the Court, by Zilm and Brennand, ostensibly being the tags taken from the cattle bought at Narrabri, which had two different property identification numbers. He then said that he made a report to Coveny, at the Narrabri RLPB.

47 In cross-examination Counsel for the Defendant put to Hetherington that according to his statement, he said that he received a phone call from Andrew Zilm on 5 February 2001, not in late February, which is some two and a half weeks before the subject cattle were bought by the Zilms. He said that he had taken notes from his inspections of the cattle on the Zilm property, including in relation to the 5 cattle with the triangular mark and the other with the ‘adulterated’ mark, but he did not have those notes with him in Court. He did not take photographs of the cattle, and said that Mr Zilm had given him the box of tags at the end of the day, which had two different numbers on them, and he had no way of knowing which tag came from which animal. He did not contact Ashbridge although he was aware of a link and that the animals had at some point been bought from that company, nor did he do a blood test on the animals.

The Magistrate’s Decision

48 The learned Magistrate found, in his decision of 22 November 2001, first, that the offences in the charges are all strict liability offences, and that therefore mens rea does not have to be established in relation to each of the prosecutions. He then went on to address the question of whether there was a prima facie case made out for each of the charges, citing the test as being “whether the prosecution case or cases is at its highest, capable of proving the elements of the offences in question beyond reasonable doubt” [T7.12-25 22/11/02].

49 In relation to Count 1, the charge under s46 of the Stock Medicines Act, the learned Magistrate, in finding no prima facie case, said at T10.6-23:

“…this is a matter where one of the elements and it is clearly one of the elements, require the prosecution to satisfy the court there was an approved transaction identifier as set out in the Government Gazette before the court. And despite there being ample evidence as to colour [of the transaction identifier]… The application [for the transaction identifiers] was in a name other than the defendant, and that application would appear to contain the signature Scott Simshauser and the inference could be drawn that is the defendant’s signature, though there is no evidence positively stating that it is his signature.

But in any event, at the end of the day, the prosecution faces the same problem that is they have no been able to prove that these transaction identifiers are actually approved as required under the legislation.

50 In relation to Count 2, for the charge of Selling Stock not Identified as Prescribed by cl16A of the Stock Diseases (General) Regulation 1997, the learned Magistrate held that in his view there was no prima facie case for the charge, saying, at T9.32-37 (22/11/02):

“...the fundamental evidence that the prosecution has to establish, even at a prima facie level, is that the tail tags are fixed to the cattle, sold at Narrabri on the respective date by the defendant, were indeed approved transaction identifiers (sic).”

“As I said, the fundamental difficulty the prosecution faces is that the requirements of the legislation are that these tags need to be approved, and that is approved as required by cl15A. In my view, despite very wide ranging evidence that has not been established even to a prima facie level, because the element of the offence, and that is one clearly important element of the offence, the court could not at the end of the day find that offence established.”

51 In assessing whether there was a prima facie case in relation to Count 3, that of Selling Stock Knowing that a Transaction Identifier has been Removed, the learned Magistrate considered the evidence of the white ear tag on one of the cattle which the Zilms purchased, which was traced to the Fitzgerald property; and the inference which the Prosecution sought to draw from the evidence of Brennard and Andrew Zilm that the tag had been removed prior to or at the time of the sale. He found that there was no evidence to suggest that at the time of the sale the cattle had any transaction identifiers removed, and removed within the knowledge of the Defendant within the 28 days, saying at T9.16 (22/11/02):

“Now whilst there are inferences which can be drawn from the evidence adduced 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.”

52 In relation to Count 4, the learned Magistrate found, after reviewing the evidence, that there was a prima facie case established in relation to the charge of Providing False or Misleading Information. The Magistrate reviewed the evidence of Fitzgerald that the nine head of cattle were treated by him with HGP; and the evidence that the cattle were sold, within 28 days, first at Roma saleyards to CMD and then at Narrabri to the Zilms; the evidence that the Defendant was involved in the sale of the cattle at Narrabri on 20 February 2001; and the evidence, unconvincing though it was held by the Magistrate to be, of Davis in relation to the Defendant giving directions to fit the subject cattle with pink tail tags prior to the sale. He considered the evidence by way of inferences that the nine head of cattle sold by Fitzgerald were the same as those which were purchased by the Zilms, and took into account the pre-sale catalogue, which identified the cattle as being HGP free. Finally, he reviewed the evidence of Andrew Zilm of the phone call to the Defendant, and Zilm’s evidence that the Defendant had agreed to accept a lesser price for the cattle as a result.

53 Although the learned Magistrate held that there was a prima facie case in relation to Count 4, he dismissed the charge on the basis that on the available evidence, the Court could not be satisfied beyond a reasonable doubt that the Defendant committed the offence. In coming to this conclusion, the Magistrate relied on the lack of evidence with regard to whether the pre-sale catalogue containing the misinformation that the subject cattle were HGP-free “was issued with the authority of or espoused by the Defendant on the day of the sale prior to those sales commencing”. He held at T11.28 (22/11/02):

There may have been of course evidence which could have been obtained to set that part of the evidence in a certain way but all the Court has is the exhibit… That is the company set out and claimed that those cattle were HGP free and of course they’re not being prosecuted here today. It is an employee or director or co-owner. There is no evidence to say on what basis Mr Scott Simshauser was employed by the company. If one looks at the reference material he would seem to be one of the chief persons of the company. Be that as it may without there being some linking evidence connecting the Defendant with the publication, an announcement and/or 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.

The Grounds of Appeal

54 The Grounds of Appeal as set out in the Summons are:

1. The Magistrate erred in law in finding no prima facie case in relation to Counts 1, 2, and 3, by failing to identify accurately those elements of the offences alleged which he held were essential. In addition, the Magistrate erred in failing to take the Prosecution evidence at its highest and not determining whether the Defendant could lawfully be convicted

2. The Magistrate erred in law in his interpretation of cll16(1) and 16(3) of the Stock Disease (General) Regulation by requiring additional evidence of the approval and use of issued pink tail tags as a “transaction identifier”. Additionally, cl16G(3) related to the removal of any form of “transaction identifier” which includes the ear tags affixed to cattle in Queensland. The Magistrate did not apply the correct legal principles to a consideration of the elements of those offences. The Magistrate misdirected himself as to the relevant issue. The Magistrate found that there was no evidence to suggest that the Defendant knew the transaction identifiers were removed in the previous 28 days, contrary to the findings made by the Magistrate in relation to count 4.

3. The Magistrate erred in law in his consideration of the elements of Count 1 as requiring the Prosecution to prove additional evidence as to the use of approved transaction identifiers. The elements of the offence were not correctly identified by the Magistrate. The Magistrate did not apply the correct principles to a consideration of the two elements of the offence. The Magistrate misdirected himself as to the relevant issue.

4. The Magistrate erred in law in his interpretation of the offence created by s12D(2) of the Stock (Chemical Residues) Act. The Magistrate correctly identified this as a strict liability offence the elements of which were established to a prima facie level. The defendant did not rely on the statutory defence provided in the section; the Magistrate erred in requiring further or additional proof of an additional element when all the elements had been proven.

Ground 1

The Magistrate erred at law in finding no prima facie case in relation to Counts 1, 2, and 3 by failing to identify accurately those elements of the offences alleged which he held were essential

55 The Plaintiff submitted that the learned Magistrate used the correct test, as set out in para 48 above, in determining whether the evidence in relation to Counts 1, 2 and 3 made out a prima facie case for those charges, consistent with the authorities in May v O’Sullivan (1995) 92 CLR 654; R v Bilick 11 A Crim R 542; R v Briggs (1987) 24 A Crim R 98; Bressington v Commr for Railways (1947) 75 CLR 339 at 353; JMR (1991) 57 A Crim R 39.

56 Similarly, the Defendant submitted, in relation to all offences, that the learned Magistrate applied the correct test in terms of assessing whether a prima facie case had been made out, and that he was conscious of the test in his deliberations regarding all offences.

57 The Plaintiff submitted under this ground, first, that the learned Magistrate was in error in holding that there should have been evidence of what an ‘approved’ transaction identifier was, additional to the evidence which was adduced before the learned Magistrate. This submission is set out in detail under Ground 3 below.

The Magistrate erred in failing to take the prosecution evidence at its highest and did not determine whether the Defendant could lawfully be convicted

Count 1 : Contravening an Order under s46 Stock Medicines Act

58 The Plaintiff submitted that the order, as set out in the Gazette, which was alleged to have been contravened in this charge was that:

“The Defendant attached, or caused or permitted to be attached to cattle pink transaction identifiers where the cattle have been treated in their lives with HGPs”.

59 The Plaintiff submitted that the following evidence was proven before the Magistrate in relation to the charge:

2) the evidence that the 29 tail tags in the box were the tail tags removed from the cattle by Mr Zilm upon receipt of the cattle;

60 The Defendant submitted in reply that there was no evidence put before the Magistrate that the transaction identifiers were approved identifiers (see Ground 3 below) and no evidence that the Defendant attached, or caused or permitted to be attached to cattle pink transaction identifiers.

Count 2 : Selling Stock not Identified as Prescribed by cl16A of the Regulations

61 The Plaintiff submitted that the learned Magistrate did not identify correctly the elements of the offence in cl16A, and that it is the absence of the correct transaction identifier which is relevant to determining whether there had been an offence committed (see Ground 3 below).

62 In reply, the Defendant submitted that the Magistrate correctly identified that the Prosecution had a fundamental difficulty in finding that the tags need to be ‘approved’ identifiers.

Count 3

Regulations

63 The Plaintiff submitted that the learned Magistrate overlooked the evidence of Davis in relation to the issue of whether the cattle had any transaction identifiers removed in the previous 28 days within the knowledge of the Defendant, and that the evidence was not “silent on the issue” as the Magistrate held at T9.12-14 (22/11/02).

64 In oral submissions, the Plaintiff relied on the following evidence in relation to the issue of whether the Defendant had that knowledge, and if not absolute knowledge, than at least constructive knowledge:

1) the evidence of Mr Davis;

2) the evidence of the conversation between Mr Zilm as evidence of knowledge post-factum; and of knowledge that it is an offence to cause or permit them to be sold. The Plaintiff submitted that the subsequent reduction in the sale price of the cattle reflected recognition from the Defendant that they were in fact HGP treated at the time of sale, contrary to their tags and invoice issued;
3) evidence from the documentation that the cattle were sold within the week of them being brought into New South Wales, which documentation should have been read or brought to the attention of the person selling them.

65 In oral and written submissions, counsel for the Defendant argued that there was no direct evidence that the Defendant was directly responsible for the tagging of the cattle at all. In relation to the evidence of Davis, the Defendant submitted that there were three persons, “Matt”, “Scotty” or “Luke” who may have given directions at some time to Davis, and that Davis’ evidence regarding the Defendant’s involvement was extremely vague, and correctly described by the Magistrate as “deplorable”.

66 The Defendant submitted further that in the evidence, there is a significant issue in terms of the continuity of the subject cattle, in light of the one week period after the sale by Fitzgerald at Roma in which the movements of the cattle are largely unaccounted for. There was evidence that the company, Ashbridge may have held them at some stage, and evidence as well that the cattle from Lots 23 and 24 intermingled in the truck during delivery to the Zilms property.

67 In relation to this Ground of Appeal, I consider that the element of mens rea, for the reasons set out below under the Contentions, is clearly part of the offences in Counts 1, 3, and 4, and this element has not been proven to the requisite standard. The evidence before me shows a discontinuity in proof of the handling of the animals and no evidence that the Defendant knew of the removal of any tags. I also consider, in respect of the argument that the learned Magistrate erred in requiring additional proof that the transaction identifiers were approved, that as these are criminal offences, proof of the correct tags being used is required. I would therefore dismiss this Ground of Appeal.

Ground 2

The Magistrate erred in law in his interpretation of cll16(1) and 16G(3) of the

Regulations

by requiring additional evidence of the approval and use of issued pink tail tags as a “transaction identifier”. Additionally, cl16G(3) relates to the removal of any form of transaction identifier which includes the ear tags affixed to cattle in Queensland. The Magistrate did not apply the correct legal principles to a consideration of those offences. The Magistrate misdirected himself as to the relevant issue.

68 The Plaintiff submitted that the elements of the offence in cll16(1) and 16G(3) of the Regulations require the Prosecution to prove that the cattle did not have attached to them a transaction identifier which identifies the last holding at which the stock were depastured for a period of more than 28 continuous days or a transaction identifier that identifies the holding which was the appropriate holding at the time the stock were previously sold or sent during the period of 28 days prior to that sale.

69 The Plaintiff further submitted that the learned Magistrate erred in his interpretation of the requirements of cll16A and s16G(3), in that the requirements set out in cl16A for the manner of identification are not met by any other identifier than that identifying the Fitzgerald’s property in Queensland, whether that identifier is an approved one or not.

70 The Defendant submitted in reply that it was open to the learned Magistrate on the evidence to find that there was no evidence that the Defendant knew that the transaction identifiers had been removed within the 28 days prior to the sale, and that there had been no evidence adduced that went to the Defendant’s knowledge.

71 The Defendant submitted that the Prosecution did not point to any relevant Queensland legislation to support this argument, but that even if this were overcome, the Prosecution could not overcome the lack of evidence as to the Defendant’s knowledge.

The Magistrate found that there was no evidence to suggest that the Defendant knew the transaction identifiers were removed in the previous 28 days. This is contrary to the findings made by the Magistrate in relation to Count 4.

72 The Plaintiff relied on the finding of the learned Magistrate at T8.6 (22/11/02), where he held in relation to Count 4, based on the evidence of Davis, that:

“There is 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 Sales Yards of 20 February 2001.”

73 The Plaintiff submitted that this finding goes to the essence of the offence in cl16(G)(3), that the Defendant sold or caused or permitted stock to be sold knowing that the identifiers had been removed, and that the finding, made in relation to Count 4, should apply to Counts 2 and 3 as well. The Plaintiff submitted that the finding of no prima facie case in relation to Counts 2 and 3 are contrary to the findings on a prima facie basis made by the Magistrate in relation to Count 4.

74 The Defendant submitted that according to the evidence, Davis’s evidence was that he could not remember who told him to tail tag the cattle.

75 As set out under Contention 3 below, I consider that this is a matter in which cl16(4)(e) applies, and thus this information cannot succeed, and a ruling that no prima facie case should be found would be correct.

Ground 3

The Magistrate erred in law in his consideration of the elements of Count 1 as requiring the prosecution to prove additional evidence as to the use of approved transaction identifiers. The elements of this offence were not correctly identified by the Magistrate. The Magistrate did not apply the correct principles to a consideration of the two elements of this offence. The Magistrate misdirected himself as to the relevant issue

76 The Plaintiff submitted that the Prosecution is required to prove: 1) that the cattle had attached to them pink identifiers, and that the cattle had been treated in their lives with HGPs, and 2) that the Defendant attached, or caused or permitted to be attached those pink identifiers. It was submitted that the Magistrate misdirected himself as to the legal requirements of the offence, and additionally, consequently made a finding contrary to the weight of evidence adduced.

77 The Plaintiff submitted that the learned Magistrate mistook a requirement that the Prosecution had to prove that the transaction identifiers attached to these particular cattle were of a type approved by the Director-General. Mr Anderson, counsel for the Prosecution, argued in oral and written submissions that the offence which is created by s46 of the Stock Medicines Act is the attachment of the wrong coloured transaction identifiers, rather than whether there is an approved transaction identifier or not. He submitted that it was not a requirement of the offence to have proven that there was a transaction identifier of the approved type attached, and that, “the absence of the correct transaction identifier is the essence of the offence at least to a prima facie level (T.8 15/10/03) in relation to Count 1, contravention of the order made under s46”.

78 The Plaintiff also submitted that at the very least a favourable inference should have been drawn from the provisions and implications of the Regulations, and the exhibits before the learned Magistrate, that the pink tail tags were approved transaction identifiers and were attached to cattle which had been treated with HGPs.

79 In it written submissions, the Plaintiff outlined the regulations dealing with approval for transaction identifiers and by reference to those provisions, argued that the meaning of “transaction identifier” includes tail tags with an allocated property identification number which are made by authorised manufacturers. Clause 15A of the Regulations defines “transaction identifier” as “an identifier of a type approved by the Director-General under Division 2. Clause 16 provides that the stock is to be identified at time of sale and delivery, and cl16A prescribes the manner of identification. Clause 16D provides that the cattle must be identified in an appropriate manner with the holding to which they were depastured in the previous 28 days. Clause 16E contains provisions relating to approval of transaction identifiers. Clause 16F contains provisions in relation to special tags.

80 The Plaintiff submitted that there is no suggestion that the subject pink transaction identifiers were other than the approved version, made by an approved manufacturer, and ordered in accordance with the Regulations.

81 In addition, the Plaintiff argued that Exhibits 5 and 7 – the order for the transaction identifiers and the box of pink tail tags – as well as the oral evidence of Brennand, Zilm, Coveny, Slattery and Hetherington all identify the pink tail tags in evidence as being approved transaction identifiers.

82 The Defendant submitted that it was open to the learned Magistrate that the Prosecution case could not prove beyond reasonable doubt that certain transaction identifiers had in fact been approved. It was submitted in oral argument that the term “approved” in relation to “approved transaction identifiers” in the Regulations is an essential term.

83 The Defendant submitted that there was no evidence placed before the Magistrate that the transaction identifiers had been approved by the Director-General, as required under the Regulations, such as for example, a Gazette showing a description of any such identifiers, and that in the absence of such a description, no person should be convicted when it is unclear exactly what it meant by “transaction identifier”. It was submitted that that there was no evidence before the Court regarding the term “pink”, which comes in different shades, e.g. “pantone 203”, “pantone 204”, “pantone 205”, which are specified in the Gazette, and that if the term “pink” was considered important enough to define, it must therefore be an important element in any charge under the section.

84 In relation to the submissions of the Plaintiff outlined in para 80 above, the Defendant submitted that that assertion is not supported by the evidence, in that none of the witnesses named identified the transaction identifiers as approved identifiers, although it was submitted that even if this question were put to the witnesses, that would not cure the problem as outlined in paras 81 and 82 above.

85 The Defendant submitted further that the Plaintiff’s submission that there is no suggestion that the pink transaction identifiers are other than the approved version “misses the point”, the point being that the Prosecution failed to call evidence that the identifiers were approved. On this point, the Defendant compares the Regulations with the Australian Road Rules legislation, which provides drawings and diagrams to explain clearly what is expected, saying that there are no such depictions Gazetted with regard to transaction identifiers.

86 For the reasons set out in Ground 1, I would dismiss this Ground of Appeal, as a ruling of no prima facie case would be appropriate.

Ground 4:

The Magistrate erred in law in his interpretation of the offence created by s12D(2) of the

Stock (Chemical Residues) Act

(Count 4). The Defendant did not rely on the statutory defence provided in the section. The Magistrate erred in requiring further or additional proof of an additional element when all the elements had been proven.

87 The Plaintiff submitted that while the learned Magistrate was correct in holding that this offence was a strict liability offence, the elements of which were established to a prima facie level, the learned Magistrate erred in requiring further proof of an additional element of the offence in coming to his decision that the evidence did not satisfy the Court beyond reasonable doubt that the Defendant committed the offence.

88 The Plaintiff referred the Court to the statutory defence to a charge under this offence, as set out in s12(D)(3), and above, noting that the Defendant did not raise that defence in answer to this charge.

89 It was submitted by the Plaintiff that s12D(2) refers to the provision of information “in connection with a sale or proposed sale”, and that this covers the activities of an auctioneer, in this case, the Defendant. The Plaintiff relied on the following evidence in support of this contention:

1) the finding of the learned Magistrate at T8.34 (22/11/02) that the Defendant was the auctioneer at the sale;

2) the evidence that the Defendant was the person with whom Mr Zilm negotiated after the discovery of the triangular hole punches in the cattle, also as found by the Magistrate;
3) the invoice for the sale to the Zilms, from CMD, stating that the cattle were HGP-free, which also bears the statement:

“The stock described as (HGP free) on this invoice all bore HGP free tags at the point of sale/delivery. These were applied by the vendor or their representative according to the requirements under legislation in each State/Territory that complies with Federal/ Aquis requirements.”

The Defendant, it was submitted, was either the vendor or its representative if he authorised, directed, or sold the cattle with the information conveyed by the attachment of pink HGP-free tail tags;

4) the order for the pink HGP-free tail tags, property identification code NF 451 910, bearing the declaration that the tags would only be attached to cattle that the undersigned (the Defendant) knows have not been treated with HGPs at any time in their lives.

90 In oral submissions the Plaintiff referred the Court to T11.15 (22/11/02) of the Magistrate’s decision, as set out at para 53 above, at which point the learned Magistrate held that on the evidence, and specifically, the pre-sale catalogue, it was the company CMR that made the claim that the cattle were HGP free, and there was no evidence in relation to on what basis the Defendant was employed by the company. The Plaintiff submitted that the Magistrate “missed the point” by focusing on this, whereas in fact he should have been looking at the evidence in relation to the auctioneer/ the Defendant allowing or permitting the cattle to be sold with a false representation as to their status, i.e. that they were represented as being HGP free by the affixing of the pink tail tags.

91 The Plaintiff submitted that the learned Magistrate’s finding in relation to the Defendant’s role in the sale - as to he being the auctioneer, or the person with whom the Zilms dealt with - was against the weight of the evidence and contrary to his previous findings of fact

92 The Defendant relied in oral submissions on the case of May v O’Sullivan (1955) 92 CLR 654 in respect of the argument in relation to the failure of the Defendant to have given evidence in light of the statutory defence to the charge, where at p659 the Court held:

“A magistrate who has decided that there is a “case to answer” may quite consistently, if no evidence is called for the defendant, refuse to convict on the evidence for the prosecution. The prosecution may have made a “prima facie case”, but it does not follow that in the absence of a “satisfactory answer” the defendant should be convicted”.

93 (see also Morgan v Babcock (1929) 43 CLR 163; Reg v Guiren (1962) 79 WM 811).

94 The Defendant submitted that in this case, where the learned Magistrate had before him detailed submissions from both parties, and ample material, this approach was clearly open to the Magistrate, and that it was open for the learned Magistrate to find that there was no evidence linking the Defendant with the pre-sale catalogue and that given that, the standard of beyond reasonable doubt could not be met.

95 Counsel for the Defendant further submitted that there is no evidence that Helen Zilm was given any false information by the Defendant; the evidence was that the invoice from the sale was generated by CMD, not the Defendant; there was no evidence as to when the pink HGP-free tags had been attached, and by whom; no evidence as to whose handwriting appeared on the declaration in the order form for the pink tags; and that accordingly it was open to the Magistrate to come to his findings.

96 The Defendant further submitted that it was the company CMD which was responsible for the sale of cattle to the Zilms, and that it was the company which made the false statement that the cattle sold were HGP-free. The Defendant submitted that an auctioneer who did not himself publish the pre-sale catalogue, selling on behalf of CMD, does not fall within the definition of the section, because if a company sells, for example, a vast number of steer per week, it would not be reasonable to expect the auctioneer to individually check each animal.

97 In respect of this Ground of Appeal, I agree with the submissions of the Defendant, as set out above. There has been a failure to show intention on the part of the Defendant and on the evidence before me there has not been shown an appropriate link with the Defendant. In a criminal prosecution, proof of signature, for example, is essential, particularly where people quite often sign on behalf of other people. I would dismiss this Ground of Appeal as the evidence did not establish a prima facie case.

Further Submissions - Defendant

98 The Defendant made further submissions in relation to Charge 4, specifically that the offence as defined require that the Prosecution prove that the stock were in fact “chemically affected”, as defined in s3 of the Stock (Chemical Residues) Act. I have dealt with this submission below, under the Contentions.

Contentions

99 The Defendant filed a Notice of Contention (amended) on 8 April 2003 (pursuant to Pt51B r18SCR), contending that the decision of the learned Magistrate should be affirmed, but varied to take into account several points.

100 The Plaintiff submitted that the Notice of Contention should be dismissed, as insofar as it raises matters not raised before the leaned Magistrate, those matters can not be matters of reply or in support of the notice of contention, unless specifically addressed in the amended notice of contention. In particular, the Plaintiff cited that the issue that the term “chemically affected” under the Stock (Chemical Residues) Act 1975 may not include the cattle treated with HGPs was raised by the Defendant for the first time in the Notice of Contention.

101 The Defendant submitted in reply that that argument is without foundation, as pursuant to the Justices Legislation Amendment (Appeals) Act 1998 and Pt51B SCR, the Defendant is entitled to have his contentions heard by the Court.

102 Part 51B r 18 SCR is as set out below:

Rule 18 Notice of contention
Where a defendant wishes to contend that the decision of the tribunal below should be affirmed on grounds other than those relied upon by the tribunal below but does not seek a discharge or variation of any part of the decision of the tribunal below, the defendant need not file a notice of cross-appeal but, within the time limited by rule 17 (2), the defendant must:

(a) file notice of that contention stating, briefly but specifically, the grounds relied upon in support of the contention, and

(b) serve the notice of contention on each other party to the appeal.

103 It seems to me that matters may arise subsequent to a hearing, which a party is entitled to have further considered. This does mean that where there is a discretionary judgment, that there will necessarily be a re-hearing of that matter, but it is clear that some matters need to be addressed, and therefore I will deal with the contentions below.

104 Contentions 1, 2, 3, 5

That the learned Magistrate should have found that the four informations laid against the Defendant pursuant to s 46 of the Stock Medicines Act 1989 (“Count 1”), cl 16A of the Stock Diseases (General) Regulation 1997 (“Count 2”), cl 16G of the Regulation and s12D(2)(b) of the Stock (Chemical Residue) Act 1975 (Count 4) were all matters which required mens rea as a vital element of the said provisions;

That the learned Magistrate should have found that upon all the available evidence the Prosecution had not established that the Defendant had the mens rea , or guilty knowledge, required to substantiate the said four counts;

That the learned Magistrate should have found that upon a correct construction of the Regulations , Count 2 had not been made out at law, on the basis that upon all the available evidence the Prosecution’s case was that the relevant cattle came into New South Wales from Queensland, and in such circumstances, it was submitted, cl16(4)(e) of the Regulations applied and not cl16(1), as was relied upon by the Plaintiff;

That the learned Magistrate should have found that upon a true construction of cl16G of the Regulations , the clause required it be read with regard to cl16(4)(e) of the Regulations

105 The Defendant submitted that each of the four Counts in this matter are offences requiring mens rea, and that in determining whether an offence is one of strict liability or requiring mens rea, a Court should look at the whole of the relevant legislation. The Defendant relied on the authorities of Sweet v Parsley [1970] AC 132, and He Kaw The v R (1985) 157 CLR 523 at 529 for the proposition that mens rea is an essential element in every offence, unless some reason can be found for holding that it is not necessary, and quoted Sherras v de Rutzen (1895) 1 QB 918 at 921 that:

mens rea

106 Count 1: The Defendant submitted that the presence of the word “wilfully” in s46(6) of the Stock Medicines Act is an indication that the Legislature intended that mens rea should apply, citing Ianella v French (1968) 119 CLR 84, where Barwick CJ said at 95:

“But in truth, in my opinion, the word [wilfully] contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something… If, as I think is the case, wilfully in relation to an offence means intentionally and knowingly…”

107 Count 2: In submissions in relation to Count 2, the Defendant referred to cl16G(3) of the Regulations, although the relevant sections in respect of that count are cll16 and 16A, and the offence itself is found in cl16(1):

(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.

108 The Defendant submitted that the Stock Diseases Act, the enabling legislation to the Regulations, displays a clear intention that mens rea is a necessary ingredient in any prosecution under that Act or the Regulations, and gave the example of s20N of the said Act, which uses the term ‘knowingly’ in relation to offences by officers of corporations.

109 The Defendant further submitted that cl16(1) in fact does not apply to this case, and that the relevant clause is cl16(4)(e). That clause is in the following terms:

(i) that have been introduced into New South Wales during the preceding period of 28 days… and

(ii) that were identified in accordance with a law in force in the State or Territory from which they have been introduced, being a law whose provisions are similar to the provisions of this Division.

110 The Defendant’s submission was that if the evidence that the cattle were introduced into New South Wales within the 28 day period was accepted, then by virtue of cl16(4), cl16(1) does not apply and the information should be dismissed.

111 Count 3: The Defendant submitted that it is implicit in cl16G of the Regulation that the element of mens rea must be proved by the Prosecution for this offence, the offence being:

“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 a saleyard…

knowing

112 Citing P. Gilles, Criminal Law, Fourth ed. The Law Book Company, 1997, at p726, the Defendant submitted that a statutory offence which uses the terms “knowing” or “knowingly” requires that intention be shown by the Prosecutor in order to prove its case, and that the Prosecution did not, in this case, adduce any evidence that the Defendant breached this clause knowingly.

113 Count 4: In relation to the offence under s12D(2)(b) of the Stock (Chemical Residues) Act, the Defendant submitted that the relevant words in that section are “false and misleading”:

s12D(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:

…

(b) whether stock are chemically affected…

false or misleading in a material particular

114 The Defendant relied on the cases of Holt v Cameron (1979) 27 ALR 315 and Cameron v Holt (1980) 142 CLR 342, in which the Court held, in relation to the Social Services Act 1947 (Cth), the combination of the terms “false” and “misleading” as requiring mens rea, and on the case of Ling v Munn, unreported, [1995] SASC 13/09/95.

115 The Defendant further submitted that in the alternative, this section required that the Prosecution prove, as an element of the offence, that the stock were chemically affected as defined under ss3 and 4 of that Act.

116 The Plaintiff argued, first, that the matters raised in Contentions 1 and 2 above are not matters for a notice of contention, but an appeal point not raised in the appeal.

117 In relation to the issue of whether the offences required the element of mens rea to be proved, the Plaintiff submitted that the subject matter of the legislation, being the protection of public health and trade, indicate that the offences are of strict liability, and referred to the wording of the Order in the Gazette set out in para 10 above. Additionally, the Plaintiff submitted, in reliance on He Kaw The (supra), that the penalties attached to the offences are not so serious as to require the element of intention to be proven.

118 In relation to the wording of s46(6) of the Stock Medicines Act, the Plaintiff conceded that the word “wilfully” implied some mental element, but. In relation to cll16A and 16G of the Regulations, the Plaintiff submitted that because of the subject matter of the clause, the references in cll32 and 34 of the Regulations, which deal with the offence being a penalty notice offence, and taking into account the penalty provided, the offences under these clauses are of strict liability.

119 In relation to s12D of the Stock (Chemical Residue) Act, the Plaintiff submitted that aside from the subject matter of that Act, the specification in s12D(3) of a statutory defence available to this offence, which is in similar terms to the defence in Proudman v Dayman (1941) 67 CLR 536 reserved for strict liability offences, makes this a strict liability offence.

120 In response to the Defendant’s submission that the provisions of cl16(4)(e) of the Regulations applied, the Plaintiff argued that the cattle were not properly identified as having come from any property other than a NSW property in the 28 days prior to sale. In relation to the issue of what the false or misleading statement was, in terms of the charge under s12D(2)(b), the Plaintiff relied on the evidence that pink tail tags had been attached to the cattle, who had been treated with HGPs; that the sales invoice from CMD was also false in that regard, and the Defendant sold the stock so falsely or misleadingly identified.

121 The first duty of the Court is to consider the words of the legislation. Where the legislation is silent, there is a presumption that in order to give effect to the Legislature, it must be read as requiring mens rea, but the words of the statute must be examined in order to see whether expressly or by necessary implication they displace that general rule (Sweet v Parsley, supra at pp148,152). The language and the subject matter of the legislation are matters which the Court must examine.

122 Having said that, in looking at the legislation, it is clear that in relation to Count 1, that the action must have occurred “wilfully” is, in my view, a clear indication that an element of mens rea was contemplated by the Legislature as required to prove this offence.

123 In Count 2, the Defendant referred to other sections of the Regulations in its contention in support for its argument that the offence under cl16 is one requiring mens rea. The fact that the drafters of a statute may in some offences put in the word “knowingly”, does not, by itself, mean that any other section where “knowingly” is not included, is therefore automatically a strict liability offence. Each offence should be looked at in its terms, as well as the nature of the statute. I consider that the framing of cl16, with the use of the words “must not”, makes it clear that the stock must be identified, and that as there is nothing in this section which therefore requires an element of an intention, this offence is therefore one of strict liability. In any event, in looking at the legislation, it appears to me that cl16(4)(e) was the correct section to apply, and it was not dealt with. I consider for that reason that a ruling of no prima facie case would be correct.

124 In relation to Counts 3 and 4, the presence of the words “knowing” and “false or misleading” is, is my view, a clear indication that the element of intention is required to prove those offences. Both of these counts, therefore, require mens rea. The fact that there is a defence proposed for the offence under Count 4 does not thereby make that offence one of strict liability.

Contention 4:
That the learned Magistrate should have found upon all the available evidence that the alleged false statement relied upon by the prosecution in respect of Court 4 laid under the Stock (Chemical Residue) Act related to an invoice allegedly sent by CMD.

125 The Defendant submitted that the learned Magistrate should have found, on the evidence, that the Prosecution had not produced any evidence of any false statement made by the Defendant, or specifically, that the Defendant had said or produced anything to any person about the cattle relevant to the informations laid. In respect of this argument, the Defendant relied on its submissions to Ground 3 of the Appeal above.

126 I do not consider this contention as made out, as the sending of an invoice does not have any bearing on the elements of the offence. The invoice is not evidence of the making of a false statement, because the offence is either made out at the time of the acts constituting the events or not all.

Contention 6:

127 In relation to this argument, the Defendant relied on the assertion that the actual transaction was between CMD and the Zilms, supported by the sales invoice which purported to come from CMD.

128 It is my view that this submission raises an issue which is of no concern to what this Court has to look at, namely, the appeal in respect of this prosecution of this Defendant. The issue before the Court is whether the Defendant has committed an offence. An offence by any other person or entity is irrelevant to that determination.

Contention 7:
That the learned Magistrate should have found upon all the available evidence that the prosecution had not satisfied him beyond a reasonable doubt that the said cattle had in fact been subjected to HGP, on the basis that no scientific test were ever carried out upon any of the cattle to determine whether or not they had been subjected to HGP.

129 The Defendant based this contention on the assertion that on the evidence, no proper scientific analysis of the cattle was carried out.

130 The Plaintiff submitted in relation to the Defendant’s contention that the Prosecution must prove, as an element of the offence under s12D(2)(b), that the stock were chemically affected, that this was done so by way of the evidence of Fitzgerald as to the ear tag and triangular punch marks; the evidence of Brennard and Zilms; and the documents relating to the sale and purchase of the cattle. The Plaintiff submitted that there was no need for chemical analysis.

131 I do not find that the evidence of scientific analysis on the subject cattle was necessary to be adduced. There was evidence from Brennard, Zilm, and Hetherington about the triangular ear markings, and evidence from Coveny as to the significance of those marks as well as that the Regulations themselves which specify that cattle treated with HGP must be marked with the triangular punch. The offence can be proved without scientific evidence.

Contention 8

That the learned Magistrate should have found upon all the available evidence that the Prosecution had not established the continuity of the relevant cattle subject to the informations laid.

132 The Defendant submitted that the evidence in relation to this issue does not establish a chain of continuity of the cattle beyond a reasonable doubt, and relies on the following in support of this contention:

1) that Fitzgerald gave no evidence as to who bought the cattle from him, and therefore there is no evidence as to whose possession the cattle were in after leaving him;

2) the evidence of Coveny that the cattle may have intermingled in the truck;

3) the evidence of Shawcross and the evidence of Hetherington at T40.36 (27/09/02) of their knowledge that the cattle may have been in the control of the company Ashbridge for some seven days;

133 The Plaintiff submitted in response that it is contrary to the weight of the evidence to say assert that there was no evidence to satisfy the Magistrate as to continuity.

134 I find that on the evidence before me in the light of the imprecision of the evidence by the Prosecution witnesses as to how the cattle were dealt with and appropriately recorded, I find that it was not open to the learned Magistrate to find that there was continuity, which was an essential element of the offence. I would, in any event, have found a reasonable doubt as to this aspect of the evidence.

Contention 9:

135 The Defendant submitted that the Plaintiff had not laid a proper foundation to adduce this document as evidence, in that the evidence of Coveny at T23.10 (26/09/02) was effectively hearsay evidence, or merely his assertions of what he knew about the document, which he was not the author of. The document was not, it was submitted, a business record of Coveny. The Defendant relied on the principle as held by Bryson J at para 17 of NAB v Rusu (1999) 47 NSWLR 309, that the authenticity of records need to be proven, and that in this case the test as set out in Rusu was not met:

“Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding that it is what it purports to be. Documents are not ordinarily taken to prove themselves or accepted as what they purport to be… At the simplest, the authenticity of a document may be proved by the evidence of the person who made it or one of the persons who made it, or a person who was present when it was made, or in the case of a business record, a person who participates in the conduct of the business and compiled the document or found it among the business’ records, or can reorganise it as one of the records of the business”.

136 The Plaintiff maintained that the evidence was properly admitted as a business record.

137 In my view, the Magistrate’s ruling in relation to this document was a discretionary decision of Magistrate, and this contention does not have any bearing on the appeal. In terms of s55 of the Evidence Act 1995, the document is clearly relevant, and in my view would not be excluded under Pt3.11 of that Act.

Contention 10:

138 The Defendant made the submission that costs should have been awarded against the Prosecution, as despite being put on notice by the defence after certain evidentiary rulings by the learned Magistrate that the matter “was unlikely to succeed”, the Prosecution chose to continue the proceedings leading to an unnecessary use of time and to unnecessary expense. The Defendant submits that costs should be awarded in those circumstances to the days ‘thrown away’.

139 The Plaintiff argued that this point in relation to costs is not a matter for a Notice of Contention, but for the Magistrate’s discretion, and that the Defendant did not point to any error in the exercise of that discretion.

140 In my view, costs are a matter within the discretion and power of the Magistrate. No error has been shown in the exercise of that discretion, and I dismiss this contention.

Costs

141 In the light of the failure of the Plaintiff to make out its case on the appeal, it seems to me that costs should follow the event.

Orders

142 In accordance, I make the following orders:

i. Appeal disallowed;

ii. Summons dismissed;

iii. Plaintiff to pay the Defendant’s costs of this appeal

**********

Last Modified: 08/23/2004

Actions

Download as PDF Download as Word Document

Citations

Oliver v Simshauser [2004] NSWSC 690

Cases Citing This Decision

0

Cases Cited

14

Statutory Material Cited

7

Easton v Griffiths [1995] HCA 38

Bressington v Commissioner for Railways (NSW) [1947] HCA 47

R v Briggs [2011] QSC 337

CITATION:	Oliver v Simshauser [2004] NSWSC 690
HEARING DATE(S):	15 October 2003
JUDGMENT DATE:	23 August 2004
JUDGMENT OF:	Dowd J at 1
DECISION:	Appeal disallowed; summons dismissed; plaintiff to pay costs of appeal
CATCHWORDS:	Appeal from Magistrate - standard of proof - elements of offences - mens rea - notice of contentions - how dealt with
LEGISLATION CITED:	Evidence Act 1995 Justices Act 1902 Justices Legislation Amendment (Appeals) Act 1998 Stock (Chemical Residues) Act 1975 Stock Diseases (General Regulation) 1997 Stock Medicines Act 1989 Supreme Court Rules 1970
CASES CITED:	Bressington v Commr for Railways (1947) 75 CLR 339 Cameron v Holt (1980) 142 CLR 342 He Kaw The v R (1985) 157 CLR 523 Holt v Cameron (1979) 27 ALR 315 Ianella v French (1968) 119 CLR 84 JMR (1991) 57 A Crim R 39 May v O'Sullivan (1995) 92 CLR 654 Morgan v Babcock (1929) 43 CLR 163 NAB v Rusu (1999) 47 NSWLR 309 Proudman v Dayman (1941) 67 CLR 536 R v Bilick 11 A Crim R 542 Reg v Guiren (1962) 79 WM 811 Sherras v de Rutzen (1895) 1 QB 918 Sweet v Parsley [1970] AC 132 R v Briggs (1987) 24 A Crim R 98
PARTIES :	Keith William Oliver Scott Simshauser
FILE NUMBER(S):	SC 13407/02
COUNSEL:	Plaintiff: Mr M W Anderson Defendant: Mr B Glennon
SOLICITORS:	Plaintiff: I Knight, Crown Solicitors Defendant: G Johnson, Bell & Johnson Solicitors

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER :	B Wilson