Rosily v RSPCA

Case [2022] QDC 32

DISTRICT COURT OF QUEENSLAND

CITATION:

Rosily v RSPCA [2022] QDC 32

PARTIES:

GILA GOLDA ROSILY

(appellant)
v
RSPCA
(respondent)

FILE NO:

1322 of 2021

DIVISION:

District Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Beenleigh  

DELIVERED ON:

3 March 2022

DELIVERED AT:

Brisbane  

HEARING DATE:

29 November 2021

JUDGE:

McDonnell DCJ

ORDER:

1.   The Notice of Appeal is amended.

2.   The application for leave to adduce additional evidence is dismissed.

3.   The appeal is dismissed.

4.   The orders made in the Magistrates Court are confirmed.

5.   The appellant pay $6,043.32 costs and disbursements to the Registrar of the District Court at Brisbane within 28 days in order that such sum be paid over to the respondent.

CATCHWORDS:

CRIMINAL LAW – APPLICATION – LEAVE TO AMEND NOTICE OF APPEAL – where appellant brought oral application to amend notice of appeal – where application by consent – where appeal judge has discretion to grant leave to amend notice of appeal – where application allowed

CRIMINAL LAW – APPLICATION – LEAVE TO ADDUCE ADDITIONAL EVIDENCE – where appellant sought to issue numerous subpoenas to adduce additional evidence during appeal proceeding – whether sufficient special grounds exist for court to exercise direction to allow additional evidence – whether evidence available at first instance – whether evidence credible – whether admission of evidence likely to change outcome at first instance – whether it would be manifestly unjust to dismiss additional evidence – where application dismissed

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – APPEAL AGAINST SENTENCE – where appellant charged with multiple counts under Animal Care and Protection Act – where charges proceeded to trial over three days – where appellant convicted and sentenced on all counts to enter into recognisance to be on good behaviour – where learned Magistrate also imposed prohibition order in respect of possession, purchasing or acquisition of poultry – where appellant sought to appeal conviction, sentence and prohibition order – where appeal dismissed

LEGISLATION:

Animal Care and Protection Act 2001 (Qld) ss 12, 17, 183, 185, Schedule

Justices Act1886 (Qld) ss 222, 224, 225, 226, 232, 232A

Justices Regulation 2014 (Qld) Schedule 2

Penalties and Sentences Act 1992 (Qld) s 12

CASES:

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Fuller v RSPCA [2021] QDC 94

House v The King (1936) 55 CLR 499

Pavlovic v The Commissioner of Police [2006] QCA 134; [2007] 1 Qd R 344

R v Lawley [2007] QCA 243

Scanlon v Queensland Police Service [2011] QDC 236
COUNSEL:

The appellant appeared on her own behalf

Mr N Boyd for the respondent

SOLICITORS:

The appellant appeared on her own behalf

RSPCA Prosecutions for the respondent

Introduction

  1. Following a 3-day hearing in the Beenleigh Magistrates Court, on 27 May 2021, Gila Golda Rosily was convicted of animal welfare offences. She was found guilty of five (5) counts of failure to provide appropriate accommodation or living conditions under ss 17(2) and 17(3)(a)(ii) of the Animal Care and Protection Act 2001 (Qld) (

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AGLC
Rosily v RSPCA [2022] QDC 32
Case
[2022] QDC 32
Decision Date

CaseChat Overview and Summary

The case of Rosily v RSPCA involved an appeal by Miss Rosily against her conviction and sentencing by a Magistrate under the Animal Care and Protection Act. Miss Rosily was convicted on multiple counts and sentenced to enter into a recognisance to be of good behaviour, with a prohibition order in respect of the possession, purchasing, or acquisition of poultry. Miss Rosily sought to appeal both the conviction and the sentence, as well as the prohibition order. The central issues in this appeal were whether the appellant was granted leave to amend the notice of appeal and whether leave was granted to adduce additional evidence during the appeal proceedings.

The court addressed the appellant's application to amend the notice of appeal, noting that the appeal judge has discretion to grant such leave. The application by consent was allowed, thus permitting the amendment of the notice of appeal to include the prohibition order. Regarding the application to adduce additional evidence, the court examined whether there were special grounds for allowing new evidence. The court considered factors such as whether the evidence could have been produced at the trial, its credibility, and whether it might have led to a different outcome. The court found that the evidence was not credible and was available at the first instance, and thus dismissed the application for leave to adduce additional evidence.

The appeal was ultimately dismissed, and the orders of the learned Magistrate were confirmed. The court ordered Miss Rosily to pay $6,043.32 in costs and disbursements to the RSPCA within 28 days. This amount was to be paid to the Registrar of the District Court at Brisbane for onward payment to the RSPCA. The orders of the court finalised the case, upholding the original conviction and sentencing, as well as the prohibition order imposed by the Magistrate.

Orders

Orders of the court

1. The Notice of Appeal is amended.

2. The application for leave to adduce additional evidence is dismissed.

3. The appeal is dismissed.

4. The orders made in the Magistrates Court are confirmed.

5. The appellant pay $6,043.32 costs and disbursements to the Registrar of the District Court at Brisbane within 28 days in order that such sum be paid over to the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The notice of appeal dated 31 May 2021 indicated that the order that Miss Rosily sought was “prohibition order, disposal”. No grounds of appeal were stated in the notice of appeal. In written submissions in support of her application to adduce further evidence, Miss Rosily said she intended to rely upon this new evidence to prove her innocence. The RSPCA prepared for the hearing of the appeal on the basis that the appeal was against the conviction, the sentence and the prohibition order. Following a discussion Miss Rosily’s notice of appeal was amended pursuant to s 224(1)(c) of the Justices Act. The appeal proceeded on the basis that it was against the conviction, the sentence and the prohibition order. Admission of new evidence on an appeal An appeal initiated under s 222 of the Justices Act is by way of rehearing on the original evidence given in the substantive proceeding before the learned Magistrate.[1] In an appeal proceeding such as this, the judge hearing the matter is able to make their own determination on the evidence. However, in making a determination, the appeal judge ought to have regard to the decision of the learned Magistrate and bear in mind any advantage the learned Magistrate, being the trial judge, had in seeing and hearing the witnesses give evidence at first instance.[2] [1]Justices Act 1886 (Qld) s 223(1).[2]Fox v Percy (2003) 214 CLR 118,124 – 129. However, the court may give leave to adduce fresh, additional or substituted evidence if the court is satisfied there are special grounds for giving leave.[3] The issue of what amounts to special grounds was considered by the Court of Appeal in the decision of Pavlovic v Commissioner of Police.[4] In that matter the Court observed that the considerations relevant to the existence of special grounds for granting leave included:(a) whether the evidence relied on could, with reasonable diligence, have been produced by the defendant at the trial;(b) whether the evidence was apparently credible or at least capable of belief; and(c) whether the evidence, if believed, might reasonably have led the tribunal of fact to return a different verdict.[5] [3]Justices Act s 223(2).[4][2007] 1 QdR 344.[5]Ibid, 344. Where leave has been granted by the court, the appeal is then by way of rehearing on the original evidence and on the new evidence adduced.[6][6]Justices Act s 223(3). On 2 November 2021, Miss Rosily filed an application seeking leave to adduce additional evidence. She asked the court to issue subpoenas to seven witnesses to adduce additional evidence and also filed four affidavits in her name on 2 November 2021, 8 November 2021, 10 November 2021 and 16 November 2021. The parties provided written and oral submissions in relation to the application to adduce additional evidence. This application was dealt with prior to the substantive appeal proceeding. In her affidavit filed on 2 November 2021 Miss Rosily refers to an application for a claim for compensation for poultry removed from her property by the RSPCA, for injuries she claims to have suffered as a result of the RSPCA’s entry to her property with an expired warrant and for payment for witnesses.

Decision

Reasons for decision

I consider an order that Miss Rosily pay the RSPCA’s costs of the appeal fixed at $2,100 and disbursements of $3,943.32 is just and reasonable. In those circumstances, I exercise my discretion to order Miss Rosily pay the RSPCA’s costs and disbursements. Pursuant to s 232(1) of the Justices Act I direct that the sum of $6,043.32 shall be paid by Miss Rosily to the Registrar of the District Court of Brisbane within 28 days in order that such sum be paid over to the RSPCA. Conclusion For the reasons outlined above, the appeal is dismissed. The orders of the learned Magistrate are confirmed. I order Miss Rosily pay $6,043.32 to the Registrar of the District Court at Brisbane within 28 days in order that such sum be paid over to the RSPCA.

Ratio Decidendi

Legal Principle Established

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