Pires v Edwards
[2022] TASSC 31
•18 May 2022
[2022] TASSC 31
COURT: SUPREME COURT OF TASMANIA
CITATION: Pires v Edwards [2022] TASSC 31
PARTIES: PIRES, Paulo Antunes
v
EDWARDS, Lisa
FILE NO: LCA 2678/2021
DELIVERED ON: 18 May 2022
DELIVERED AT: Hobart
HEARING DATES: 10, 16 May 2022
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against finding of guilt on three counts of cruelty to an animal – Finding of guilt reasonably open to the magistrate.
Animal Welfare Act 1993 (Tas)
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21, applied.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: J Pedder
Solicitors:
Respondent: Pedder Schuh Lawyers
Judgment Number: [2022] TASSC 31
Number of paragraphs: 26
Serial No 31/2022
File No LCA 2678/2021
PAULO ANTUNES PIRES v LISA EDWARDS
REASONS FOR JUDGMENT PEARCE J
18 May 2022
The applicant, Paulo Pires, moves to review the decision of a magistrate, Mrs T Jago (now a judge of this Court), to find him guilty of charges brought against him under the Animal Welfare Act 1993 (the Act). The respondent is an officer of the RSPCA.
The applicant is unrepresented. He prepared the motion to review himself. It contains two grounds. The first raises the issue of his legal representation. The second asserts, in substance, that he should not have been found guilty. Neither ground succeeds. Subject to correction of one issue concerning the finding of guilt on some of the charges the motion will be dismissed.
The charges and the hearing
The applicant was charged on complaint with three counts of cruelty to an animal under the Act, s 8(1), and three counts of what was stated as a "continuing offence" of cruelty to animals under s 48D of the Act. All of the charges related to a female Shetland pony called Pebbles which was observed on 4 September 2020 by two RSPCA inspectors, one of whom was the respondent, Ms Edwards, when they attended a property at Kimberleys Hill Road, Milabena. For the charges under s 8 to be proved it was necessary for the prosecution to establish beyond reasonable doubt that the applicant did an act, or omitted to do a duty, which caused or was likely to cause unreasonable and unjustifiable pain or suffering to the pony. By s 8(2) a person commits an offence under s 8 if he or she has possession or custody of a sick or injured animal and fails to provide veterinary or other appropriate treatment for the animal. Under s 6, a person who has the care or charge of an animal "has a duty to take all reasonable measures to ensure the welfare of the animal."
The prosecution case was that between 1 March 2018 and 4 September 2020 the applicant had care or charge of the pony and "omitted to do a duty which was likely to cause unreasonable pain or suffering" to it. The charges related to three aspects of the pony's health, and alleged that the applicant:
·for count 1, "failed to ensure that the pony's hooves were properly trimmed and otherwise cared for;
·for count 3, "failed to ensure that the pony's teeth were regularly inspected and properly cared for"; and
·for count 5, "failed to ensure that the pony received proper treatment for parasites, in particular intestinal worms."
Counts 2, 4 and 6 on the complaint were each entitled "Continuing offence – cruelty to animals." Those counts alleged that the applicant's breach, for each aspect of the pony's welfare, continued over a period and was "in breach of s 48D of the Act." The period specified in the complaint ended on 4 September 2020, the date of the inspection. It was alleged that the failure to care for the pony had continued since 1 March 2018. Section 48D provides:
"(1) A person who commits a continuing offence against this Act is liable, in addition to the penalty otherwise prescribed, to a further penalty, not exceeding one-fifth of the maximum penalty otherwise prescribed, for each day during which the offence continues.
(2) For the purposes of this section, an obligation to do an act continues until the act is done, notwithstanding that any period within which, or time before which, the act is required to be done has ended or passed."
The complaint against the applicant was heard at the same time as a complaint against two other persons, David Boyd and Nicole Boyd. Mr and Mrs Boyd were the applicant's neighbours, and were also charged with offences under the Act concerning the same pony during the same period as persons who also had a duty to care for it. The hearing before the learned magistrate took place over two days. It commenced on 10 May 2021. The hearing resumed and concluded on 26 June 2021. The magistrate reserved her decision. On 24 September 2021 the magistrate delivered written reasons for finding each count of the complaint against the applicant proved. The charges against and Mr and Mrs Boyd were also found proved. Her Honour proceeded to sentence on 13 October 2021. In relation to the applicant, she imposed a fine and disqualified the applicant from having possession of a horse or pony for five years.
The respondent contends that the motion was filed out of time. The contention depends on whether time commences on the date that the charges were found proved or when her Honour made final sentencing orders. Her Honour did not, when announcing sentence, state that the applicant was convicted on any or all of the counts on the complaint she had found proved. However for reasons which will become apparent, I find it unnecessary to determine the question.
Ground 1 – Legal representation
The first ground of the motion reads: "Technically I had no legal representation. My lawyer…never presented evidence or made a defense (sic). And he abandoned the case in the end".
The ground cannot succeed. For both days of the hearing the applicant was represented by a legal practitioner who made submissions and cross-examined witnesses. He was represented on 10 May 2021. On 26 June 2021 the applicant was again represented, albeit by a different legal practitioner. The reason for the change of counsel was not explained to the magistrate, but on both days of the hearing counsel representing the applicant made submissions and cross-examined prosecution witnesses. At the conclusion of the evidence the magistrate permitted the prosecutor and defence counsel to make submissions before reserving her decision. There is no basis for any assertion that counsel who appeared for the applicant conducted the hearing in any way which may have resulted in injustice to the applicant. Before me the applicant complained that he was not able to give what he considered to be relevant evidence. However he also stated that he took the advice of his counsel before making his election to not give or adduce evidence.
Ground 2 – Should the charges have been found proved?
The second ground reads: "Every witness has lied against me and I will prove it in court in the future." It misapprehends the role of this Court in reviewing a decision of a magistrate. The principles to be applied were reviewed and summarised by Crawford CJ in Phillips v Arnold [2009] TASSC 43, and have been applied in countless cases since then including Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Cuthbert v Coates [2018] TASSC 7; JJMH v Bonde [2020] TASSC 24. The applicant is not entitled to a rehearing. It is not for me to weigh the evidence and reach my own conclusions. The question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. The applicant sought to place further evidence before this Court in the nature of documents and affidavits. Because this Court's jurisdiction on a motion to review is confined to reviewing circumstances where it can be shown that there has been an error or mistake on the part of the magistrate on a matter of fact or law, any application to receive further evidence must be refused: Traynor v McCullough [2011] TASSC 41.
Although it involves an interpretation of the ground which is generous to the applicant, it is appropriate that I consider it as if it alleged that the decision to find all of the counts on the complaint proved was not one which the magistrate, as a reasonable person, might have come to. Even so viewed the ground must fail.
At the hearing there was no challenge to the evidence concerning the state of the pony's health. The pony was examined by a veterinarian, Dr Phoebe Cahill, on 4 September, 7 September, 29 September and 6 December 2021. Dr Cahill gave evidence that when she first saw the pony all four of its hooves were severely overgrown, by between 16 and 29 centimetres, and curling upwards and back. The left hind limb was the most severely affected and curled back so far that it touched the pony's fetlock. Each hoof was inflamed. The pony was lame in all four legs and could not support her weight on three limbs. It had difficulty walking which led to an inability to properly graze. In Dr Cahill's opinion the overgrowing and inflammation of the hooves had developed over at least 12 to 18 months and the pony would have been in pain throughout that period. Dr Cahill trimmed the hooves and administered medication following which there was a marked improvement.
Subsequent testing and examination of the pony disclosed that it was heavily infested with intestinal worms to such an extent that it prevented proper absorption of nutrients. Evidence of a dental examination undertaken by another veterinarian, a Dr Wissman, revealed that the pony's teeth had been neglected for at least three years. Sharp hooks had developed on the teeth which prevented proper chewing and caused mouth lacerations and ulcers. Left further untreated they would have led to an inability to eat and malnourishment.
On the basis of the evidence the learned magistrate was, as a reasonable person, entitled to conclude that a person with a duty to take reasonable measures to ensure the welfare of the pony had breached that duty, and that the breach was likely to cause unreasonable and unjustifiable pain or suffering.
The principal issue at the hearing was whether the prosecution had proved that the applicant had a duty to ensure the pony's welfare. By operation of s 6, whether that duty existed depended on whether the prosecution proved beyond reasonable doubt that the applicant had "care or charge" of the pony. Section 3A of the Act was relevant to that issue. It provides that certain persons are taken to have the care or charge of an animal, including, relevant to this case, the "owner" of an animal and a person who has "control, possession or custody of the animal." The learned magistrate found that Mr and Mrs Boyd were the owners of the pony, and therefore had a duty to it under the Act. However the magistrate also found that the pony was in the applicant's control, possession and custody, and he also had a duty under the Act to ensure the pony's welfare. The evidence entitled the magistrate to reach that conclusion.
Ms Edwards gave evidence that when she arrived at the Milabena property on 4 September the pony was in a paddock about 100 metres from the house. She decided to organise a float to remove the pony and when she returned later the same day the applicant was present. He admitted that he owned the property and, under caution, told her:
·it's not my horse … the gates were down and that's why she ended up here, I only just felt sorry about the animal;
·I was always a city guy … I don't really know much about agriculture stuff;
·I felt I didn't have the right to touch his horse, especially after he had accused me of stealing two of his horses; and
·the horse just came onto my property.
The applicant was interviewed by Ms Edwards again on 15 October 2020. On this occasion the statements made by the applicant included:
·I called the pony Mum;
·when I first came to the property the pony was already up on this property with the babies;
·for the past three years she has been here all the time;
·the pony is not mine, I never agreed to take ownership;
·I would try to send the pony back but because there were no gates it was pointless;
·David Boyd was sick and I felt sorry for him;
·I told them the horse is up here and I don't mind it staying … because what else could I do anyway;
·I didn't say the horse could stay on the property … I didn't agree…it just happened;
·I say I will look after her, she has plenty of food;
·David hasn't been back to the property since February 2018 … I haven't seen Nicole for a while;
·I was waiting for Boyd to come up again and we were going to do the hooves;
·David owned the horse, I didn't want to touch the horse on my own. Basically I needed someone to help with it and secondly it was his so he could very well stay and help … I was waiting for him to come up;
·There wasn't any conversation as such about them leaving her here … she wasn't supposed to be here at all;
·He [Mr Boyd] didn't come up much, he disappeared for practically a year or more and I didn't see him again;
·It's his horse, I wanted him to be here (to do the hooves )… I'm not here to do anyone a favour, I felt sorry about the bloke but you know I was just trying to help, not to get involved;
·I didn't have a conversation about them leaving Pebbles here … I never wanted a horse.
The evidence of the admissions contained in those statements entitled the magistrate, without more, to conclude that the horse was, and had been for at least many months prior to September 2020, in the applicant's control, possession or custody, even if the horse was owned by Mr and Mrs Boyd. In addition, however, there was evidence from a veterinarian, Dr Gavin Kaiser, that during the first half of 2020 he met the applicant socially. Dr Kaiser's evidence was that the applicant asked him for help to trim a pony's overgrown hooves. Dr Kaiser told the applicant that he should engage the assistance of a farrier. That evidence was also probative of the contention that the applicant had custody or control of the pony.
As I have already noted, the applicant did not give or adduce evidence. Mr and Mrs Boyd both gave contentious evidence about ownership of the pony. The learned magistrate, in her reasons, stated that she was "not impressed" with the evidence of Mr and Mrs Boyd, and found that there had not been a transfer of ownership of the pony to the applicant, as was their case at the hearing. That finding does not affect the findings concerning the applicant which her Honour expressed as follows:
"… in my view there can be no question that he also had care or charge of Pebbles. Clearly Pebbles had been on his property for a considerable period of time. He had control, possession and custody of her. It does not matter whether ownership of Pebble vested elsewhere.
Mr Pires may have held a belief that it was the owners' responsibility to ensure her welfare was maintained, but that belief could not be said to be a reasonable one, given Pebbles was being housed in a paddock immediately adjacent to his residence, and he must have been able to observe her declining health
Pebbles was on his property, he was in possession of her, and he therefor had an obligation to ensure all reasonable measures were taken to ensure her welfare. He failed in this regard. If he could not manage it himself he needed to contact the owners or make alternate arrangements to ensure the protection of her well-being.
Mr Pires had, in my view, taken on the role of carer of Pebbles. He had an obligation to look after her properly. Over the period of three years that Pebbles was on Mr Pires' property he must have appreciated that her condition was deteriorating. It is impossible to accept that he did not appreciate what was happening to her hooves in particular. He owed her a duty to take proper care of her and he failed in that duty."
The conclusions just expressed were ones which the learned magistrate was entitled to reach. For that reason this ground of the motion must fail. Although I am not entitled to receive further evidence, there is one matter I would address from fairness to the applicant. Before me he stated that he could not have had the pony since 2018 as was alleged, because it did not come to his property until 2019. Leaving aside the question of whether that is consistent with what he told Ms Edwards, to find the charge proved it was not necessary for the magistrate to be satisfied that the pony was in the possession, custody or control of the applicant for the whole period alleged in the complaint. It was sufficient if the pony was in his possession, custody or control for some of that time if, during that period, he breached his duty to take all reasonable measures to ensure the welfare of the animal. The matter was expressly dealt with by the magistrate when hearing sentencing submissions for the prosecutor. She indicated that she was not prepared to "find a continuing offence beyond a 12 month period." That could only mean that her Honour found that the pony was in in the applicant's possession, custody or control for that limited period, or that his breach of duty extended only for that period. Either way, the magistrate did not sentence on the basis that the breach was for a period beyond 12 months prior to 4 September 2020.
An offence under s 48D?
Although neither ground of the motion is made out, another matter should be addressed before the motion is finally determined. The applicant was separately charged with, and found guilty of, three counts of what was expressed in the complaint to be a separate offence under s 48D. The issue is not raised by either ground of the motion but, in fairness to the applicant, was raised by me with counsel for the respondent. Written submissions were made addressing the issue. In my respectful view the learned magistrate should not have found the applicant guilty of a separate offence under s 48D. The respondent does not submit to the contrary. That is because s 48D does not create a separate offence.
In the course of the hearing, counsel for Mr and Mrs Boyd, who were also charged with separate offences expressed to be under s 48D, submitted that the charges were "duplicitous". Her Honour accepted that the prosecution must prove an offence under s 8 "to enliven the opportunity to prosecute under s 48D." Then, immediately prior to the decision being reserved, counsel for the applicant raised the issue of duplicity again. Her Honour stated:
"It seems to me that shat s 48D really is, is a penalty provision. You can't be guilty of a s 48D offence if you're not guilty of the s 8 offence. It seems to me, because you have to establish you're guilty of an offence first, and then the offence has to continue and then you become liable to a greater fine in effect, it seems to me is the effect of s 48D."
To the extent that the learned magistrate referred to s 48D as a penalty provision, her Honour was correct. To the extent that she referred to s 48D as creating a separate offence, she was not. Section 48D is a provision which empowers a court to impose an additional penalty in the event that the offence of which an accused person is found guilty is a continuing offence. Whether an offence is or is not a continuing offence involving acts, or a failure to act, over a period of time, may be a matter for determination. It is not appropriate, in this motion, to examine that issue further. However, s 48D does not give rise to a separate offence. The proposition is illustrated in this case because the particulars of the charge said to be brought under s 48D(1) refer to precisely the same conduct which is particularised in the counts brought under s 8(1).
This motion to review is brought under the Justices Act 1959, s 107. The powers of this Court when determining the motion are stated in s 110(2). By subs (ab) I may, if no substantial miscarriage of justice has occurred even though a cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion. When proceeding to sentence on 13 October 2021 the learned magistrate recognised the "overlap" and a "degree of duplicity" and took it into account in determining sentence. Her Honour took into account the length of time during which the animal suffered and "the time frame over which the deterioration is said to have occurred." Those were proper matters to take into account when considering the sentence to be imposed under s 8 for breach of duty to care for the animal, independently of whether the offence was a "continuing offence." Notably however, her Honour did not purport to impose a further daily penalty which s 48D(1) empowers. There is no miscarriage of justice.
The final issue is as to the form of order I should now make. The learned magistrate did not, when sentencing the applicant, order that a conviction be recorded. It is usual for a sentencing court, when an accused person pleads guilty or is found guilty, to state whether a conviction is or is not to be recorded. Her Honour said nothing one way or another. The Magistrates Court documents available to me say nothing about a conviction having been recorded and refer only to the finding of guilt, and the imposition of a fine and disqualification order. It is possible that her Honour intended to record convictions but omitted to say so. It is not now appropriate for me to further speculate as to her intention. The issue is not raised by the motion. There is no challenge to the sentencing orders. It would be wrong to order recording of convictions against the applicant when none have been previously ordered. Under the Sentencing Act 1997, s 7(e), it was open to her Honour, with or without recording a conviction, to order that the applicant pay a fine. Accordingly, it is sufficient to deal with the matter by setting aside the finding that counts 2, 4 and 6 on the complaint were "found proved" but otherwise dismissing the motion.
Result and orders
I order:
(a)The finding made by the learned magistrate on 24 September 2021 that counts 2, 4 and 6 of complaint 80190/2020 were found proved is set aside;
(b)The motion is otherwise dismissed.
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