MAGISTRATES COURT OF QUEENSLAND
| CITATION: | QPS v McElliggott [2020] QMC 1 . |
| PARTIES: | Qld Police Service (Complainant) v Patrick Joseph McELLIGOTT (Defendant) |
| FILE NO/S: | SOUT-MAG-00010803/19 MAG-00100927/19(5) |
| PROCEEDING: | Criminal proceeding for Animal Cruelty charged under Animal Care and Protection Act 2001, section 18. |
| ORIGINATING COURT: | Southport Magistrates Court |
| DELIVERED ON: | 4 February 2020 |
| DELIVERED AT: | Southport |
| HEARING DATE: | Heard on 24 September and 12 November 2019. Prosecution submissions received on 26 November 2019. Defence submissions received on 11 December 2019. |
| MAGISTRATE: | JJ Costanzo |
| ORDER: | Guilty Verdict |
| CATCHWORDS | Animal Cruelty – Statutory Interpretation – Whether intent is an element of the offence – What is the meaning of “cruel”; “beats”; “so as to cause the animal pain”; “abuses”; “terrifies”; “torments” or “worries”. |
| STATUTES | Acts Interpretation Act 1954, ss 14A, 14B. Animal Care and Protection Act 2001, s 18. Criminal Code, s 69. |
| CASES and ARTICLES | Ashcroft v R (1989) 38 A Crim R 237. Bulsey & Anor v State of Queensland [2015] QCA 187. Hyder v Commonwealth of Australia [2012] NSWCA 336. John v Police (2002) 219 LSJS 228; [2002] SASC 112. Morgan v Graham [2019] WASC 68. R v AJB [2019] QDC 169. R v Bennett [2000] 2 Qd R 174. R v Green (No.3) [2019] ACTSC 96. Smith v Corrective Services Commission of NSW (1980) 147 CLR 134. J Aberdeen: “What is “Going Armed” (1998) 19 Qld Lawyer 57 |
| REPRESENTATION: | Acting Senior Constable Butterfield and Mr Freeman, Solicitor, for the prosecution. Ms DR Quadrio, Solicitor, Gatenby Criminal Law, for the defendant. |
REASONS FOR JUDGMENT
The defendant was charged with one count under section 18(1) of the Animal Care and Protection Act 2001 (the Act) namely, that on the second day of May 2019 at Oxenford he was cruel to an animal, the animal being a German Shephard dog. To that charge the defendant entered a plea of Not Guilty.
I have given myself the general directions which would usually be given by a trial judge to a jury before they retire to consider their verdict.
General Directions
The defendant is entitled to a fair trial according to law. The defendant is presumed to be innocent unless and until the prosecution proves he is guilty beyond reasonable doubt.
While I am judging the facts and the law, it is my duty to have regard to all of the evidence and to find the facts, and to draw relevant inferences from the facts, as well as to apply what law is relevant to the proven facts.
I must deliver my verdict according to the evidence.
The onus of proving that the defendant committed relevant acts or made relevant omissions rests with the prosecution from start to finish.
There is no onus on the defendant to prove anything.
It is for the prosecution to prove each and every element of the offence. I do not have to resolve every single little issue or inconsistency raised by the parties if, at the end of…
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Details
- AGLC
- QPS v McElliggott [2020] QMC 1
- Case
- [2020] QMC 1
- Decision Date
CaseChat Overview and Summary
The case of QPS v McElliggott involves an animal cruelty charge brought against the defendant by the Queensland Police Service. The defendant was accused of abusing a German Shepherd dog by kicking it in the head and threatening to beat it if it did not find his car. The matter was heard in the Magistrates Court of Queensland, where the primary legal issue was whether the defendant's actions constituted animal cruelty under the Animal Care and Protection Act 2001 (Qld). The court had to interpret the meaning of the term "cruelty" and associated actions such as "beats", "so as to cause the animal pain", "abuses", "terrifies", "torments" or "worries".
The court examined the statutory definition of cruelty in the context of the evidence presented. Although the definitions provided in the statute were not exclusive, the prosecution's case was brought under specific subsections detailing particular acts of cruelty. The evidence included witness statements from Bunnings employees who observed the defendant's conduct, a video recording of the incident, and a veterinary assessment of the dog's condition. The defendant chose to exercise his right to silence. The court found that the witnesses' accounts were clear and consistent, leaving no reasonable doubt about the defendant's threats and actions towards the dog. Notably, the video footage was deemed of limited relevance due to its poor quality.
The court concluded that the defendant's actions clearly met the statutory definition of cruelty. The defendant's threats and physical assault on the dog, along with the dog's evident fear and attempts to avoid the defendant, were sufficient to establish the offence. The court dismissed the minor observations of the dog's behaviour in the car park as not directly relevant to the specific incident in question. Based on the evidence, the court found the defendant guilty of animal cruelty.
The final order of the court was a guilty verdict against the defendant for the offence of animal cruelty.
The court examined the statutory definition of cruelty in the context of the evidence presented. Although the definitions provided in the statute were not exclusive, the prosecution's case was brought under specific subsections detailing particular acts of cruelty. The evidence included witness statements from Bunnings employees who observed the defendant's conduct, a video recording of the incident, and a veterinary assessment of the dog's condition. The defendant chose to exercise his right to silence. The court found that the witnesses' accounts were clear and consistent, leaving no reasonable doubt about the defendant's threats and actions towards the dog. Notably, the video footage was deemed of limited relevance due to its poor quality.
The court concluded that the defendant's actions clearly met the statutory definition of cruelty. The defendant's threats and physical assault on the dog, along with the dog's evident fear and attempts to avoid the defendant, were sufficient to establish the offence. The court dismissed the minor observations of the dog's behaviour in the car park as not directly relevant to the specific incident in question. Based on the evidence, the court found the defendant guilty of animal cruelty.
The final order of the court was a guilty verdict against the defendant for the offence of animal cruelty.
Orders
Orders of the court
Guilty Verdict
Background
Background to the litigation
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Evidence
Evidence Before The Court
Although, for the purposes of subsection (1) under which the charge is brought, the definitions of cruelty to an animal in subsection (2) do not limit subsection (1) and are not exclusive or exclusionary, the prosecution has particularised its case against the defendant under subsection (2)(b) and (c) underlined above.Relevant Evidence The Prosecution called:-·Lawrence Hausmann (a Bunnings employee) (transcript from page 1-4);·Richard Smith (another Bunnings employee) (transcript from page l-14);·Alison Smith (a Vet employed by the RSPCA) (transcript from page pl- 40);·Nicky Wright (Constable of Police); and·Drew Bevan (Senior Constable of Police) The defendant elected to exercise his Right to Silence (discussed above). No onus shifted to him at all. With the consent of the defence the prosecution tendered a video taken in the carpark. It showed me the police interactions with the defendant and interactions between the defendant and the dog. In the end I find the video is of limited relevance or assistance because:- Having considered all of the evidence and submissions I make the following findings of fact: On 2 May 2019 the defendant walked past Bunnings at Oxenford at about 3.30pm. The defendant walked with a dog on a leash. The dog is a german shephard. The defendant, at a distance of only a metre away from Hausmann, asked “Is there any cameras in the car park?’ The defendant looked at the dog and said “If you don’t find my effing car I’m going to beat you”. The defendant’s manner was that he was screaming at the dog. Hausmann heard the defendant make the threat to the dog about 3 times. Hausmann’s evidence, the circumstances in which he made his observations, and the results of the cross examination of that witness, leave no room for any reasonable doubt that he heard “specifically what he (the defendant) was going to do to that dog.” He also demonstrated how the words were spoken, and with confidence that he could do so accurately. It was loud, clearly audible at such a distance (I was sitting in a courtroom at a distance which is further than he would have been from the defendant on the Second of May, and I noted it was “stark” in my notes at the time. Richard Smith saw the defendant and the dog on a lead and the dog was pulling away from the defendant. Smith then went to the bathroom and heard yelling. He came out and saw the defendant had returned, screamed and yelled at the dog “where’s my effing car.” The defendant walked on, some 50 metres, but Smith had an unobstructed view of him and his actions. He had a direct line of sight. He saw the defendant lay into his dog with his foot. The dog was kicked to the head two to three times. That dog then cowered, bowed his head, bowed down and also tried to get away or stay away from the defendant. In arriving at these conclusions I have not relied on the evidence of Constable Nicky Wright about the dog not walking freely or appearing “quite frightened” in the car park. I have ignored it because:
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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