RSPCA v Gray No. Scgrg-97-1704, Scgrg-98-301 Judgment No. S6792

ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SOUTH AUSTRALIA) INCORPORATED v GRAY
[1998] SASC 6792

Magistrates Appeal
Mullighan J

The respondent was charged on the complaint of the appellant, the Royal Society for the Prevention of Cruelty to Animals (South Australia) Incorporated with ill treating a dog. The particulars of that offence are that on 4th June 1996 at Burnside he ill treated a German Shepherd dog by deliberately or unreasonably causing the animal unnecessary pain: contrary to s13(1) of the Prevention of Cruelty to Animals Act 1985.
The complaint came to trial on 9th April 1997 before a learned Magistrate upon the respondent having pleaded not guilty. The trial was completed on 12th December 1997 when the respondent was found not guilty and the complaint was dismissed. On 29th January 1998 the learned Magistrate made an order that the appellant pay to the respondent his costs which were fixed at $2,600. The appellant appeals against the finding of not guilty and the order dismissing the complaint and seeks a finding of guilty and a conviction of the offence. The respondent cross-appeals against the order for costs claiming that the amount awarded is inadequate.
Before considering the grounds of the appeal and the cross-appeal, it is appropriate to briefly describe the incident which gave rise to the charge. The learned Magistrate, in his reasons for judgment, did not feel that it was necessary to set out all of the events which led up to the incident which is the subject of the charge although he, no doubt, had regard to them. I mention those which are important. I have taken them from the evidence of the witnesses, including the respondent, which was not in dispute. The dog was aged about four years and was owned by a young woman by the name of Miss Bishop and her mother Ms Mugnier. At the time of the alleged offence they lived at John Street, Burnside. Miss Bishop was the girlfriend of the respondent and by that time they had been going out together for about six months. By the time of the trial, they were living together at another address. John Street is near Hazelwood Park.
The respondent went to the house at John Street at about 10.30 pm on 4th June 1996. Miss Bishop was out attending a course but Mrs Mugnier was home. The respondent was familiar with the dog and was affectionate toward it. Usually when the dog saw him, it became excited but on this occasion it lay quietly on the floor of the lounge room.
He suggested to Mrs Mugnier that he take the dog for a walk. She agreed. The respondent used a rope to which was attached a choker chain which was commonly used when walking this dog. The respondent had walked the dog before on about five occasions with Miss Bishop and on about the same number of occasions alone. On the occasion in question, he walked the dog along John Street and other streets and into Hazelwood Park. The respondent allowed the dog to run around in the park for about fifteen minutes and he then walked the dog back to Greenhill Road and into premises known as The Precinct which is near the intersection of Greenhill Road and Glynburn Road. There is a car park at the premises both underground and on ground level. The underground section of the car park adjoins John Street with access by a ramp. The respondent walked the dog in that direction as a direct route to Miss Bishop’s house. The respondent walked the dog down a ramp to the underground level of the car park. It was then that the incident occurred which is the subject of the charge.
Thus far this narrative has been taken from the evidence of the respondent.
Occupants at premises at 515 Glynburn Road, Hazelwood Park heard a noise at about 11 pm which caused them to go outside to investigate. Ms Oosterom was living at house premises owned and occupied by Mr March and his wife at that address which is adjacent to The Precinct. Ms Oosterom had a bedroom on the first floor. She was in her bedroom, the window of which faces that building and permits a view of the car park both underground and at ground level. There was little, but some, artificial light illuminating the ground level of the car park but the underground level was well lit by fluorescent lights. She heard what she described as very loud screaming from a dog in the car park which lasted for about two or three minutes. Upon looking out of the window, she saw a young man, who was the respondent, with a German Shepherd dog in the underground part of the car park. She saw the man hitting the dog and “playing tug of war with him, pulling with him” on a rope which appeared to be around the neck of the dog. She was about 20 metres away from the man and the dog. The dog was pulling in the opposite direction. She said that he hit the dog two or three times with his open hand on the head between the ears just above his eyes. She said that the blows were “quite hard because the dog was screaming and crying”. According to her, the respondent raised his hand on each occasion and appeared to strike the dog. He was not patting it. The dog then flopped to the ground and the respondent let go of the rope. The learned Magistrate had a view of relevant locations, including of the car park from this bedroom at about 11.00 pm. He concluded that Ms Oosterom was easily able to see into the car park as she claimed.
Ms Oosterom then left the bedroom and went downstairs and out of the premises where she encountered other occupants of the same house. She, and some of them, then went to the ramp of the car park. The respondent and the dog were on the ramp. The dog was lying motionless on the ground and appeared to be short of breath.
The respondent denied that he hit the dog as asserted by Ms Oosterom or at all. According to him, when he and the dog had reached, and were walking through, the underground car park, the dog barked. He pulled the dog a few times to calm him and coaxed it along the car park. When they reached the ramp, the dog collapsed and the right side of its head hit the ground. He said that he regarded the barking to be unusual and that is why he coaxed the dog along the car park. The dog did not help or make any other noise apart from this barking. The collapse of the dog was sudden. After the collapse, the respondent said that he dragged the dog to a kerb away from the path of traffic intending to get help. He went to the house of Miss Bishop after being confronted by some of the residents of the building in which Ms Oosterom lived. Miss Bishop and her mother, Mrs Mugnier, arrived with a motor car. The dog was taken to a veterinary surgeon. According to the respondent, he had never experienced any difficulty with the dog before this occasion and had always enjoyed a good relationship with it which involved mutual affection. That relationship continued after the incident.
At the relevant time on the night in question, Mr and Mrs March were at home. He ran a security business at the time. There were four of his employees attending a meeting in his home at the time. Mr March heard what he described as a yelling noise from a dog. He heard the noise a second time and then went outside. He saw the respondent in the car park with the dog which was in a sitting position. The respondent was about an arm’s length from the dog which appeared to be cowering. Mr March then saw the respondent walk off with the dog leading it with the rope. He lost sight of them. When he next saw them, the respondent was pulling the dog which was off its feet and being dragged. The effect of his evidence is that the respondent must have dragged the dog a distance of about 50 feet. He ran into the car park to near the respondent and the dog which was lying on its side. It had blood in its mouth. He asked the respondent, in strident terms, what he thought he was doing. The respondent said that he did not know what was wrong with the dog. The assertion that the dog was dragged 50 feet appears to be an assumption by Mr March. He did not see that happen. The distance between the position when he first saw the dog motionless and when he next saw it is 50 feet. He said it would be unreasonable to expect the dog to walk that distance. The evidence does not disclose any explanation for blood in the mouth.
Mrs March was in bed but not quite asleep. She heard what she described as distressed sounds by a dog. She further described them as “a very loud screaming sound” from a dog which was constant. She dressed and went to investigate. She went to the car park. She saw the dog lying on the ground and the respondent from a distance of about twelve metres. She asked what had happened and someone in the group which had gathered said, in the presence of the respondent, that the dog had been beaten or hurt by the respondent.
Mr Casey was one of the persons at the home of Mr March at the relevant time. He heard what he described as a dog yowling which he said lasted for about 15 to 20 seconds. When he heard the noise a second time, he thought he should investigate. After he went outside, he saw the respondent and the dog in the underground car park. They were about 50 metres away. He saw the respondent attempting to walk the dog which was unwilling. The respondent dragged the dog for a short time which stood up and went with him. The dog was languishing behind. He lost sight of them and next saw them at the ground level. He heard the respondent say, “I don’t know what’s wrong. I don’t know what’s wrong with him, I’m just trying to get him home”. Along with others, he went to the ground level of the car park and saw the dog lying on its side. It was motionless. Mr March said to the respondent that he had beaten the dog and the respondent replied, “I wouldn’t hurt him, I love him”. Mr Casey asked why the dog was bleeding from the mouth and the respondent said that he had an infection. After Miss Bishop and Mrs Mugnier arrived, the respondent returned and said, “I don’t know what is wrong with him, he wouldn’t walk”. At no time did the respondent say that he had hit the dog. Mr Casey did not at any stage see the respondent hit or drag the dog.
The learned Magistrate accepted the version of events given by these witnesses and he rejected the evidence of the respondent that the dog had merely been barking. He found that all of these witnesses heard the dog bark or cry in a distressed and alarming way and that Ms Oosterom saw the respondent hit the dog two or three times with an open hand with his arm at shoulder height prior to “descending his hand on to the dog’s head”. He also found that the respondent dragged the dog for a distance in excess of six feet or so. He could not be more precise, but it appears that he rejected the assumption that he dragged the dog for about 50 feet. He found that the dog fell on to its side and at one stage was on its back with all four legs in the air.
Miss Bishop and Mrs Mugnier took the dog to Dr Robinson, a veterinary surgeon, at the Veterinary Emergency Centre at Kurrulta Park. They arrived at about midnight. Dr Robinson examined the dog immediately. He noted that the dog had difficulty in walking and was collapsing as he entered the consultation room. He went into a comatose state. He was in shock and was treated accordingly with drugs and a drip. Dr Robinson believed that the dog was in pain at this time. He noticed that the white part of the right eye was badly bruised. There had been a haemorrhage and the tissue surrounding the eye was swollen. It had the appearance of a recent injury most likely having been caused within the previous hour. Dr Robinson expressed the opinion that the injury had been caused by blunt trauma as opposed to sharp trauma. It was consistent with having been caused by the area having been struck with an open hand two or three times. This injury could have caused the condition of shock but he did not think that only the injury to the eye would have caused the shock. He could not find any evidence of injury elsewhere and consequently assumed that there could have been what he calls blunt trauma elsewhere. Signs of such trauma may not be visible on the body because this type of dog has a thick coat.
The dog survived and was much improved by the next morning. However, he did have tenderness in the cranial abdomen area which is just below the rib cage. The liver is in this area. This tenderness could have been caused by trauma. Dr Robinson did not see the dog again. He expressed the opinion that the tenderness in the cranial abdomen area could have been caused by blows in that area at about 11.00 pm but at the time of the examination he did not think that the injury to the eye would have caused the condition of shock.
Dr Robinson also expressed the opinion that the eye injury was consistent with other causes. He accepted that this injury could have been caused by the dog falling on to something hard if there was direct contact between the hard surface and the eye. It will be remembered that various witnesses had seen the dog lying on its right side. He agreed that the abdominal pain was consistent with other causes such as certain diseases. Also, he acknowledged that there were various other causes of shock, including acute stress, but he thought that all other causes could be excluded except internal bleeding. He expressed the opinion that the reason the dog was in shock was because of a combination of trauma causing stress and internal bleeding.
A considerable body of further veterinary evidence was called at the trial. Before turning to that evidence, I mention, in brief terms, the evidence of Miss Bishop and Mrs Mugnier. Miss Bishop was called by the respondent. According to her, the respondent and the dog got on well together and were, and remain, mutually affectionate. She had never seen the respondent ill treat the dog. She confirmed that the respondent took the dog out for a walk on some occasions with her and on other occasions alone before 4th June 1996. She could not remember anything about the condition of the dog during the day on 4th June 1996 before she had gone out in the evening. The respondent told her that the dog had collapsed and at various times he told her that he had not abused the dog.
Mrs Mugnier said that she could not recall noticing anything unusual about the dog on 4th June 1996 before the respondent took him out for a walk, including whether the dog had an injury to an eye. She first noticed that injury when at the veterinary surgery. The dog had been inside the house and sleeping and she had gone to bed. When the respondent returned, he was very upset and he said that the dog had collapsed. The dog was not returned to her the day after the treatment by Dr Robinson. The appellant intervened and took the dog to Dr Tinkler. Mrs Mugnier was aware of the condition of heartworm which the dog had suffered before the night in question. According to Mrs Mugnier and the dog was always excited when it saw the respondent, including after 4th June 1996. The respondent and the dog got on well together and she had never seen the respondent behave aggressively to the dog. The respondent appeared to like to play with the dog. Mr Mugnier gave the following description of the dog:
“Q....... I think you said in evidence that the dog gets very excited.
AYes, he’s a very excitable dog and he makes a lot of noise when he gets excited.
Q...... Can you describe the noise the dog makes.
ASort of like a whining noise.
Q...... Like a whining noise.
AYes.
Q...... High pitched noise.
AYes.
Q...... Does the dog tire after getting excited.
AYes, he gets excited. When he does get tired, he seems to be sort of puffing a lot.
Q...... Runs out of breath.
AYes, sort of, yes. You could say he’s - yes.
Q...... Then comes calmer.
AYes.”
It is also convenient at this stage to mention the evidence of Mr Russell who is a grandfather of the respondent and was called by him. He has a close relationship with the respondent and sees him regularly about once a week. He had been a member of the German Shepherd Dog Obedience Club and had owned dogs of that breed. He gave evidence that the respondent had been in company with dogs over the years since he was a small child and had always treated and inter-related with them well. He had taken an interest in other kinds of animals owned by Mr Russell and had shown kind consideration for them. On one occasion he had seen the respondent and the dog, which is the subject of these proceedings, together about three months after 4th June 1996. The dog had interest only in the respondent and wanted to be with him. He said that because of his experience with German Shepherd dogs over the years, if the respondent had ill treated the dog as alleged, it would have nothing to do with him. The respondent and Miss Bishop care for his dog which he would not allow unless he was satisfied that the respondent would look after the dog properly.
The respondent was questioned by an officer of the appellant on 12th July 1996 and denied that he had hit the dog or ill treated it in any way. He gave a version of events which is consistent with his evidence. The dog unexpectedly collapsed.
I now turn to the further veterinary evidence.
The appellant called Dr Rahaley who is a specialist veterinary pathologist with an organisation called Veterinary Pathology Services. He has extensive qualifications, including a Master of Veterinary Science and a Doctorate of Philosophy in pathology, which I expect is veterinary pathology. Tests were carried out under his supervision on a blood sample taken from the dog by Dr Tinkler of whom mention is made shortly. There was some abnormality in the test results. Dr Rahaley expressed the opinion that the moderate elevation in urea level could be due to two causes, dehydration or muscle damage, or a combination of both. Other results indicated that the degree of dehydration was relatively mild and which would not have had any real clinical effect on the dog. The muscle damage could have been caused by physical trauma. However, he went on to say that the blows to the head with an open hand as earlier described would not have caused the increase in the urea even if they caused the injury to the eye. Also, he rejected trauma to the abdominal area as the cause of elevated urea.
The next abnormality in the test results was an elevation in the level of aspartate amino transferase which is an enzyme found in muscle and liver skeleton. An elevation in the level would indicate either muscle and liver damage or either of them. He discounted the blows to the head of the dog as causing this elevation. Trauma necessary to cause this condition would have to be more severe than hitting the dog with an open hand.
There was also an increase in alanine amino transferase. Dr Rahaley described the increase as quite a “traumatic” elevation which indicated quite severe liver damage. He said that tenderness or abdominal palpitations is consistent with physical trauma to the liver. In addition there was an increase in what Dr Rahaley called creatine kinase (“CK”) which is a muscle enzyme. The increase was moderate to severe and could indicate some significant muscle damage in the dog. The site of that damage is not specified by the test.
Also, there was an increase in alanine amino transferase (“ALT”) which, according to Dr Rahaley, indicated quite severe liver damage.
Dr Rahaley summarised these findings by saying that they specifically indicate both liver damage and muscle damage which could have been caused simultaneously or independently. It was more likely that there was a common cause for both in which case blood trauma would be the most likely cause. Other possible causes include severe vascular accident such as thromboembolsim where there is an occlusion of the blood vessel to the liver and the muscles at the same time or possibly a toxin. However, he said that he was not aware of a toxin which would affect the liver and the muscle simultaneously. He thought trauma was the likely cause and that it would have occurred within the 48 hours prior to the blood being taken (blood taken 3.15 pm, 6th June 1996).

The haematology results also showed abnormality which indicated the presence of inflammation which is consistent with tissue damage which could be caused by trauma to the head or anywhere. It could be caused by blood trauma which was not explained by Dr Rahaley. Also, the fact that the dog recovered supported the conclusion of the cause being trauma according to Dr Rahaley. If the cause was trauma, he would expect the dog to recover in a few days as none of the results were severe enough to indicate irreversible damage to any of the organ systems.
Dr Rahaley also expressed the opinion that if the dog was bright and alert when taken for a run at about 10 pm on the day in question, then whatever caused the liver and muscle damage occurred subsequent to that time. He excluded heart attack, heartworm and primary kidney disease as causes of the condition of the dog. Also, he excluded vascular accident as the cause because the dog recovered relatively quickly.
Dr Tinkler is a veterinary surgeon who has been in private practice for over 36 years. His practice is confined to dogs and cats. He has treated German Shepherd dogs over the years. Dr Tinkler first saw the dog on 3rd September 1993 and thereafter on occasions. Generally the dog was in good health but in May 1995 he tested positive for heartworm and was treated appropriately. In September 1995 he was again tested but there was no sign of heartworm. On 5th June 1996 he examined the dog at the request of the appellant. He noted that the dog was depressed and was reluctant to stand for long and flopped to the floor. He observed the injury to the right eye which he described as a haemorrhage. He noted that the dog was tender in the abdomen and was a little congested in the lungs. The eye injury was recent which could have been caused by blows to the area of eye by forceful or hard blows with an open hand. Dr Tinkler observed that the dog was tender all over, including over the whole abdominal area. The dog had an elevated temperature and was feeling pain. Dr Tinkler formed the view that the dog had clearly been subjected to some external trauma.
Dr Tinkler has had considerable experience of heartworm in dogs, well over 100 cases. According to him, heartworm may cause a dog to collapse. Usually a collapse will occur within a few weeks but it is possible for the collapse to occur later. Particles of the worm can be left in the body of the animal and become a hazard to circulation. He has seen a few cases where reactions have occurred some months after treatment. His evidence continued:
“Q....... And certainly the presentation of symptoms, is that of a dog that just collapses is reluctant to move, breathes heavily or laboured and is distressed.
AAll those things could happen post heartworm treatment, yes.
........... .....
They are associated with what you have described now as the breakdown of the worms and blood clots getting [blocking] some vessels, whether they be coronary vessels or vessels in the brain.”

He excluded damage to the liver as having been caused in this manner. He said that he stood by his opinion that the dog had been subjected to some form of trauma. He said that he had no doubt that the dog was suffering from some form of trauma. He went on to say that he had not suspected heart attack but he acknowledged that he could not completely exclude heart attack based upon the test results. However, he said that when he saw the dog there was nothing to suggest that his heart was involved. He went on to say that when he saw the dog, its colour was good, the circulation was alright and yet it was very, very tender, reluctant to stand and walked stiffly. He said the dog did not suffer a heart condition. He did have an opinion that the tenderness to the abdomen had been caused by trauma or that the dog had been kicked. With respect to the eye injury, Dr Tinkler expressed the opinion that it was hardly likely to cause shock.

The respondent called Dr Irving, who is also an experienced veterinary surgeon, and had, by the time of the trial, been in private practice for about 29 years. Over 80 per cent of his work relates to dogs. He has considerable experience with German Shepherd dogs and with the condition of heartworm.
Before he gave evidence, Dr Irving read the reports of Dr Robinson, Dr Rahaley and Dr Tinkler, the pathology test results and a transcript of the evidence of each of those witnesses. Having considered the test results and the observations of the dog by Dr Robinson, Dr Irving accepted that it was possible that the dog had a number of conditions at the time. He took into account the evidence of the dog having been taken for a walk shortly before the collapse and that it had been running. His evidence was:
“Q....... Given the history of the heartworm condition, is it reasonably possible, in your opinion, that the condition contributed to the collapse of the dog.
AI believe it was almost certainly a prime contributing factor, not the heartworms themselves, but the residual effect of the heartworm disease.
Q..... Can you explain what you mean by the residual effect of heartworm disease.
AOne of the things with a dog with heartworms, it’s not like you have a broken leg and you fix the broken leg and it’s mended. The heartworm is the very nature of treating the heartworm disease, posing some hazards for the dog itself, in that the worms lie within the pulmonary artery and the right ventricle. The method of treating it is to inject an arsenic compound into the dog, which kills the worms and then these dead worms go through into the pulmonary arterioles. They fragment and it’s like junk going into the blood supply system into the lungs. That affects the flow of blood through to the lungs, and therefore affects the oxygenation of the blood. So in the body, in trying to clear all this debris, responds by blood cells coming in to try to chew up the junk. There is a present allergy that goes on, congestion - walls thicken and the process that goes on for the next week is the dog has a repaired respiratory system. An analysis [sic] to it is, if you have very dirty washing up and you pull the plug in the sink and all the junk runs into the sink, some gets caught in the S-bend and the grill. Okay, the water gets through, but there is an impaired drainage system. That would be the analogy with the pulmonary arterioles. They become fibrosed and thick ends, they lose the elasticity. You have a set of lungs in a dog that can’t perform like it was a pup, or before the heartworm or disease. This is something that I’ve come to know over a long period, because people have said to me after treatment of their dogs with heartworm, that the dog is never the same. There’s loss of stamina, loss of life and loss of zest of life and it’s simply an impaired - the dog loses it’s ability to oxygenate it’s blood during activity.”

He went on to say that exercise would affect a dog in this condition because of the restriction in the pulmonary arterioles. The consequence is that the lungs can no longer get the blood to flow and oxygenation of the blood is impaired. The extreme situation is that the dog would faint. The kidneys and brain suffer lack of oxygen. The dog becomes hypoxic. If the dog had no other problems once the hypoxic state was over, the dog could return to normal. He expressed the opinion that the dog was suffering from other conditions, including disease of the liver which is revealed by the pathology tests. When taken to Dr Robinson, the dog was suffering a fever. According to him, reports indicated that the temperature of the dog was 40 degrees centigrade which is extremely high and a fever of that magnitude does not come on within an hour. He also expressed the opinion that it is common for dogs to be ill and the illness is not noticed by the owner.

It was established that only one blood sample was analysed. Without being critical of Dr Tinkler and Dr Rahaley, further blood tests should have been undertaken on a weekly basis to accurately determine the questions which arose because hypoxia renders tests which were undertaken unreliable.
In summary, Dr Irving was of the opinion that the dog collapsed because of hypoxia which could not have been caused by trauma to the abdomen or the head. He also expressed an opinion about the situation for the handler of a dog with this condition once the animal collapses due to hypoxia. If the handler was not accustomed to this situation, he may be reluctant to carry the dog, particularly because of its breed. If a dog in this condition was pulled along by a lead with a choker chain, the condition of hypoxia could be worsened and could slow down the recovery of the dog. Also, this activity could be the course of the subscleral haemorrhage which occurred in the dog, the subject of these proceedings but not necessarily because that condition could happen spontaneously. He went on to say that it could have occurred when the dog fell to the hard surface of the car park if the eye came into contact with a stone or a small ridge.
When cross-examined, Dr Irving discounted liver damage caused by trauma because if that had occurred, he would have expected other liver parameters in the pathology test results to be present and there were not. If the liver had been damaged by trauma, some of the test results should have been elevated and they were not. The ALT and bilirubin are examples. These results, in his opinion, were normal which is contrary to the opinions of Dr Rahaley. Also, it was his opinion that some of the test results were from blood taken too early. If the blood had been taken later, the results would have been more reliable and significant. As to the elevated CK level, Dr Irving said that the dog being taken for a run, becoming hypoxic and the use of a choker chain, presumably to drag the dog, would cause the elevation of that level. However, he did acknowledge that trauma could also cause that result.
One matter which could have told against the accuracy of opinions of Dr Irving about this dog, is the evidence of the owners that the dog appeared normal. According to Dr Irving, dogs with residual disability from heartworm are not normal. He went so far as to say that any dog who suffers from heartworm does not return to normal after treatment. However, he went on to say that he did not think that the owner would be able to tell the difference. All dogs with heartworm suffer disability and the extent varies among breeds and from animal to animal. Another matter of significance could be that if the dog, after heartworm treatment, had reduced incapacity, it may be expected to slow upon exercise. Dr Irving explained that dogs with this condition tend to limit their own activity. Whether the owner would detect a problem was doubtful unless the dog had been driven to the point of collapse.
Dr Irving doubted that the condition of the dog’s eye could have been caused in the manner postulated by the prosecution. The haemorrhage could occur naturally and he considered it unlikely that it could be caused by a blow or blows with an open hand. He thought that it was much more likely that the eye condition was caused by the fall to the ground in a hypoxic state and being dragged a short distance because that would raise venous pressure in the head area and the relevant blood vessel could easily let go and bleed. Also, this activity would cause the peribulbar swelling. Dr Irving was of the opinion that only the condition of hypoxia would explain the sudden collapse of the dog, not trauma. He thought the elevated temperature of the dog is not indicative of the condition of shock. If it had been subject to trauma and suffered shock, he would not have expected the temperature to be elevated, but depressed. He thought the elevated temperature existed before the collapse because the dog was sick due to chronic liver disease. He said that trauma to the area of the right eye would not cause an elevation in temperature in the short term. Later in his evidence he said that the injury to the right eye and that area would be caused by a blow, or a series of blows, with a hand if it, or they, were forceful over a small surface area such as if the force had been applied by a closed fist. In that case the knuckles would contact a small area. It would have to be a hard blow for the damage to be done by the palm of the hand.
Dr Irving was asked to address the question of why the dog had not collapsed on an earlier occasion if the resultant fibrosis following heartworm had caused the dog to collapse on the occasion in question. He said that the dog would have collapsed earlier if the exercise was the same and the dog was prevented from getting second wind. Dr Irving was not asked to address the yelping or “screaming” which is said to have come from the dog in the context of his opinion as to the cause of the collapse but it appears that he was of the opinion that it would be unlikely that blows to the head would cause the dog to react in that way. According to him, dogs vary but dogs of this breed tend to cower and they are not a “yelping” dog. However, he did say that if the dog had been running, walking and barking, as occurred according to the respondent, the collapse could occur.
The description of the dog, as given by Mrs Mugnier and earlier mentioned, was put to Dr Irving and he said that it is a classic description of a post heartworm diseased dog.
Dr Robinson was recalled by the appellant at a hearing subsequent to the occasion Dr Irving gave evidence. He said that if the dog had suffered physical trauma, it would be incorrect to say that it would not have an elevated temperature. However, he did agree that in cases of shock, the temperature could be elevated or depressed and later in his evidence he said that in most cases a dog with traumatic shock will have a temperature that is either normal or depressed. He disputed that the dog had chronic liver disease because it was not jaundiced and the recovery of the dog was too quick.
It may be seen from this recitation of aspects of the veterinary evidence that completely different hypotheses as to the nature and cause of the dog’s condition were being advanced by the prosecution and the defence. The learned Magistrate found that he was unable to resolve this conflict in favour of the prosecution. Although he did not say so, he had to consider all of this evidence against the background of the evidence of the respondent having an affectionate disposition towards the dog and of his good character in that respect. Also, the only evidence that the respondent struck the dog came from Ms Oosterom. No-one else claimed to have seen him hit the dog. Ms Oosterom assumed that the blows were hard because of the yelping, but the dog had made those noises before she saw the blows. It follows that it is reasonably possible that the cause of the yelping was not the respondent hitting the dog. The learned Magistrate said in his reasons for decision:
“The veterinary evidence in this matter however causes me more concern and is not as clear cut as it might be. I find it difficult to accept the Complainant’s assertion that the condition in which the dog presented at Dr Robinson’s surgery and the ailments displayed in the blood test resulted from any act perpetrated on the dog by the defendant.
All the veterinary witnesses conceded that it was highly unlikely that two to three hits on the head with an open hand would cause the apparent injuries sustained by the dog. There was either some other physical disorder with the dog, or he had been previously beaten by the defendant.
The defence would have me believe that the dog was probably suffering from after-effects of a previous heartworm condition.
There is conflict between the evidence of Dr Robinson and Dr Irving and to some extent, with Dr Tinkler on this point, but the medical witnesses for the complainant, do not exclude the possibility of other causes for the dog’s condition.
Mr Sykes has provided a summary of the veterinary evidence which succinctly points to those possibilities. The dilemma I am left with is determining whether, having accepted the defendant is lying about hitting the dog and the extent to which he dragged the dog, whether I can, as a result, find that he must have lied about not having previously hurt the dog resulting in injuries noted by Dr Robinson.
On the evidence before me, I am not satisfied beyond reasonable doubt that I can draw that inference. His lying could be attributable to panic caused by the predicament he finds himself in.
The veterinary evidence is such that I cannot discount the possibility and I do find that there is a possibility, especially taking into account Dr Irving’s evidence, that the dog was suffering from some other condition which caused the dog to be as sick as it was on the night it was taken to Dr Robinson.
This possibility gains more momentum when I take into account Mrs Mugnier’s evidence that the dog does seem to puff and pant and tire very quickly and then recover. This too in Dr Irving’s evidence is typical of a dog suffering the after-effects of a heartworm condition. Further, Dr Irving’s evidence about the dog’s fever causes me to find that there is a distinct possibility that the dog was sick from other causes.”
The learned Magistrate then directed his attention to the injury to the right eye and the surrounding area. He said:
“I must say that I have had some difficulty on the issue of the injury to the eye, but given that the dog seemed to collapse and fall on to it’s back, it may well have been that in the process, he did injure his eye, perhaps hitting it on something sharp. Perhaps the pulling on the chain may have also contributed to that injury especially whilst the dog fell over.
I am not satisfied that the eye injury was as a result of the hitting on the head or any other previous act committed by the defendant.”

He found the respondent not guilty of the charge.

I now turn to the grounds of the appeal by the appellant.
The first ground is, in effect, that having found that the respondent hit the dog in the head and dragged the dog by a rope, the learned Magistrate erred in concluding that such conduct was not sufficient to make out the charge.
Section 13(2) of the Act sets out various circumstances which constitute ill treatment of an animal. Of these circumstances, s13(2)(a) is relevant. It provides that without limiting the generality of the offence of ill treating an animal, a person does so if that person “deliberately or unreasonably causes the animal unnecessary pain”. “Pain” is defined in s3 of the Act to include “suffering and distress”.
If the two or three blows struck by the respondent with an open hand to the head of the dog, as found by the learned Magistrate to have occurred, were unreasonable and caused the dog unnecessary pain, the charge would be made out although on a much more restricted basis than was the prosecution case at the trial. That case was that the respondent had severely injured the dog by trauma to the abdomen which had caused it to collapse due to shock.
There is probably difference of opinion as to whether a dog should be struck on the head with an open hand in any circumstances, including discipline. However, such conduct is not an offence unless it is unreasonable and causes unnecessary pain. In the present case it is clear that something unusual happened to the dog. It behaved in a very unusual manner before it collapsed. The noises it made, however it is appropriate to describe them, were so loud and sustained as to attract the attention of the various witnesses in the nearby house. Although the learned Magistrate made the finding that the respondent hit the dog two or three times with an open hand, he made no finding about the cause of the dog behaving as Ms Oosterom described. It will be recalled that she heard what she described as very loud screaming from the dog which lasted for about two or three minutes. Then she saw what she described as the respondent in the tug of war and then she saw the blows. It was then she said that the dog flopped to the ground.

Of course, it is possible that the respondent was violent to the dog before Ms Oosterom saw him, but there is no direct evidence to that effect and the proven circumstances do not permit such a finding by the drawing of an inference. It must be concluded that it is a reasonable possibility that the noise made by the dog was not due to any blows struck by the respondent.
The evidence establishes the blows with the open hand to the head. Whilst Ms Oosterom was some distance away when she saw this conduct, she described it very precisely, including that he struck the dog on the head between the ears and above the eyes. They were not direct blows to the eyes. Yelping is consistent with a dog being in pain or otherwise suffering or being in distress. Because the dog was yelping before these blows, it cannot be established that the blows caused the dog to behave in that way. None of the expert witnesses thought that the blows with the open hand would cause the condition of shock or hypoxia, whichever was the case. The experts called by the prosecution expressed the view that the eye injury was consistent with having been caused by the blows, but Dr Irving expressed a contrary opinion. As has been mentioned, he suggested other likely causes of the condition of the eye and the surrounding area. Clearly, the learned Magistrate did not reject Dr Irving as a witness on his evidence. Indeed, he appears to have accepted his opinion as a reasonable possibility.
The learned Magistrate saw and heard the witnesses. He was entitled to reach his own conclusion about which witness and evidence he would accept. He accepted the opinion of Dr Irving as a reasonable possibility.
In view of those matters, the learned Magistrate was entitled to the view that it had not been proved beyond reasonable doubt that in hitting the dog with an open hand he caused pain, suffering or distress as those conditions were already evident.
The dragging of the dog by the rope and choker chain was undoubtedly inappropriate. However, conduct of that nature does not constitute an offence unless it unreasonably causes unnecessary pain. The evidence falls short of establishing that matter. There is evidence, including from Dr Irving, that dragging the dog in that manner could have caused the haemorrhage in the right eye, but that matter is, at best, no more than a reasonable possibility.
In my view, the appellant failed to prove beyond reasonable doubt that in hitting and dragging the dog, the respondent committed the offence as charged and the first ground fails.
The second ground of appeal is that the learned Magistrate erred in taking judicial notice that large reluctant dogs are not uncommonly handled in the manner in which the respondent was found to have treated the dog. The matter does not admit of taking judicial notice. This conduct is not so generally known that every ordinary person may be reasonably presumed to be aware of it, but that is a matter of no consequence as it was not proved beyond reasonable doubt that the conduct of the respondent towards the dog had the consequence required by s13.
The third ground is that the learned Magistrate erred in dismissing the charge or finding “all veterinary witnesses conceded it highly unlikely two or three hits on the head with the open hand would cause the apparent injuries sustained”. It is said that this finding is contrary to the evidence. Dr Irving expressed that opinion with respect to the condition of the dog in every respect. The other veterinary witnesses expressed the view that the blows to the head could not have caused the collapse of the dog, but they were of the opinion that they could have caused the condition to the eye. The generalised observation of the learned Magistrate is in this sense wrong but it is, in my view, a matter of no significance because, as has been seen, the learned Magistrate accepted the opinions and conclusions of Dr Irving as a reasonable possibility.
By the fourth ground, the appellant contends that the learned Magistrate erred in considering other possibilities of the cause of the condition of the eye when the opinion of Dr Robinson was not challenged. There is no substance in this ground. Whilst it is true that some of the opinions of Dr Irving were not put to Dr Robinson and the other experts called by the prosecution, it is likely that the cross-examiner was not aware of them at the time. Dr Irving was not instructed until April or May 1997. It is reasonable to assume that many of his opinions about specific matters were communicated to the respondent’s legal adviser after he had read the transcript of the evidence of the other expert witnesses. Nevertheless, in essence, the respondent’s case was put to those witnesses. Dr Robinson was recalled but only for the limited purpose of giving evidence about whether the temperature of the dog would be elevated or depressed if the subject of trauma, an issue which arose during the evidence of Dr Irving. When recalled, he could presumably have given evidence in rebuttal about all of the opinions of Dr Irving. There was no procedural unfairness to the appellant and, at all events, the learned Magistrate having heard all of the evidence was not prepared to reject the opinions of Dr Irving.
The fifth ground is that in view of the learned Magistrate’s findings of fact it was not reasonable to find that the dog collapsed due to a disorder. The learned Magistrate did not make such a finding. As has been seen, he found that there is a possibility that the dog was suffering from some other condition which caused it to be sick and collapse. That finding was open on the evidence and justified and he accepted the evidence and opinions of Dr Irving as a reasonable possibility.
The sixth ground of appeal is that the finding that the dog may have collapsed due to a disorder was inconsistent with the evidence of Dr Rahaley and the learned Magistrate failed to have regard to his evidence. It is correct to say that the evidence of Dr Irving in this regard was inconsistent with the evidence of Dr Rahaley. Indeed, it was contrary to his evidence in important respects. However, it cannot be said that the learned Magistrate erred in not accepting the evidence of Dr Rahaley. He was confronted with conflicting expert testimony and he resolved important issues in favour of the respondent having, as I have said, accepted Dr Irving’s opinions as a reasonable possibility.
The seventh ground is that the learned Magistrate erred in making no finding as to the accuracy or reliability of the evidence of Dr Rahaley. The reasons for decision of the learned Magistrate were relatively brief. He did not express any findings about the accuracy or reliability of any of the expert witnesses. It may be said that in a case such as the present, where there is dispute among the experts, specific findings about what evidence is found to be acceptable, and what is not, is desirable. However, it may easily be discerned from the reasons of decision that the evidence of Dr Robinson, Dr Rahaley and Dr Tinkler did not persuade the learned Magistrate that the respondent was guilty and that the opinions and observations of Dr Irving were untenable. Consequently, it must be accepted that he found that the evidence of them and, in particular, Dr Rahaley was not established to the required degree as accurate and reliable. This ground also fails.
The eighth ground of appeal is that on the finding that the dog was dragged, the learned Magistrate erred in not finding the charge proved. This ground has, in effect, been considered in the context of the first ground. The ninth ground of appeal raises a related matter and that is that the learned Magistrate erred in his understanding of the evidence of the respondent that he agreed that he should have reacted to the dog differently. In his evidence the respondent was referring to dragging the dog over a shorter distance than that found by the learned Magistrate. This is a matter of no significance as it was not established that the dragging of the dog constituted an offence for the reasons mentioned.
The tenth ground of appeal raises the issue of lies told by the respondent. It is contended that in saying that the dog was only barking, that he did not hit the dog and that he dragged it over only a short distance, he told lies and that such lies are positive evidence of his guilt. It seems that the respondent may have told a lie or lies on three occasions; when at the car park when he said he did not know what was wrong with the dog in view of the finding that he had struck the dog the blows to the head, and when he was questioned by the officer of the appellant in the witness box when he told the story which was rejected by the learned Magistrate. As to the first, I do not think it was established that the respondent told a lie on that occasion. It is reasonably possible that the dog was unexpectedly distressed and reluctant to move and that it collapsed for reasons unknown to the respondent. As has been seen, the learned Magistrate found that the respondent told lies when he denied hitting the dog and dragging it a distance in excess of six feet. He concluded that those lies could not permit a finding that the respondent had previously injured the dog. In my view, that conclusion was correct. There was no direct evidence that the respondent had hit or kicked the dog at an earlier stage so as to cause the yelping. There was no evidence from which such an inference could safely be made. Lies cannot be a make weight for lack of evidence On the second and third occasions, the respondent told his story which, in some respects, was rejected.
There is no basis to draw the inference of guilt from the lies found to have been told by the respondent. It appears that the learned Magistrate did not consider whether the lies were, in themselves, positive evidence of guilt. The lies could only be used in this way if they proceeded from a consciousness of guilt. However, cases in which lies may be used in that way must be rare: see Harris v The Queen (1990) 55 SASR 321 and Edwards v The Queen (1993) 178 CLR 193. As is pointed out in those cases, a suspect may tell a lie for reasons other than a consciousness of guilt. Also, in the present case, the lies are not capable of assisting the prosecution case in any additional way. The learned Magistrate found that the respondent hit and dragged the dog having accepted the evidence of the eye witnesses and rejected the evidence of the respondent. The lies add nothing to that matter. The issue became whether this conduct amounted to ill treating the dog. The lies could add nothing to that matter in view of the veterinary evidence. The appellant was simply unable to prove that the respondent ill treated the dog before it began yelping. The lies could not assist on that issue. In my view, the learned Magistrate was correct in his approach to the lies of the respondent.
The last ground of appeal is that the dismissing of the charge was, in all the circumstances, unreasonable. I do not agree. Once the learned Magistrate found that he could not dismiss the opinions and theories of Dr Irving as a reasonable possibility, the conclusion that the appellant was not guilty was inevitable.
The appeal against the dismissed of the charge is dismissed.
I now turn to the appeal and cross appeal as to costs.
After the complaint was dismissed, the respondent made an application for costs which was opposed by the appellant. The learned Magistrate heard argument and later made an order that the appellant pay the costs of the respondents which were fixed at $2,600. He did not give reasons for his decision. In all, the trial and submissions about costs occupied the equivalent of six days before the learned Magistrate. The award of the learned Magistrate was in a lump sum. The basis of the amount of the award was not stated. The sole ground of appeal is that the award of costs is inadequate.
In order to appreciate the position of the respondent on costs, it is also necessary to mention the hearing of the complaint by another Magistrate whom I shall refer to as “the first Magistrate”. The date for trial on 16th January 1997 was fixed on 21st November 1996. The respondent was represented by a solicitor. Two days before the matter came to trial that solicitor wrote to the appellant and informed him that he had to pay $2,500 in addition to the fees he had already paid prior to 18th February 1997, which was reserved for the second day of the trial. The respondent was unable to raise such a large sum of money in that time. The respondent engaged another solicitor, Mr Sykes. Apparently he could not appear at the trial on such short notice and an application was made on 16th January 1997 to adjourn the trial.
The first Magistrate refused that application and the trial proceeded on that day. The respondent was not represented.
On 18th February 1997, Mr Sykes appeared for the respondent and applied for a mistrial which was granted. On the first day of the trial, veterinary evidence was led by the appellant and the respondent was unable to cross-examine. The first Magistrate was unable to undertake that task himself. The first Magistrate made an order that the respondent should pay the costs of the appellant for the two days the trial had been before him but reserved the amount of the costs until the conclusion of the matter and directed that this matter be brought back before him. I am informed that the first Magistrate said that he had in mind that should the respondent be successful and obtain an order for costs, the costs due to the appellant could be set off against the costs due to the respondent.
The appellant opposed the claim of the respondent for the costs of the trial and has appealed against the order made by the learned Magistrate. The first ground of the cross-appeal is that it was not just and reasonable to order any costs against the appellant because he had brought the prosecution upon himself by lying to witnesses, including the officer of the appellant, that he failed to raise or notify any defence based upon the opinion of Dr Irving until the trial was well advanced and that he unreasonably prolonged the proceedings by his continued denial of conduct observed by prosecution witnesses. This ground may be rejected promptly. The respondent did not bring the prosecution upon himself by lying to witnesses. As has been seen, a corner stone of the prosecution case was that the appellant had struck the dog and dragged it in the car park. If the respondent had admitted those matters, the prosecution would have continued and merely have been strengthened.
There is no rule which obliges a defendant to disclose his defence: Ling v Police (1996) 90 ACrimR 376. In that case it was held that to interpret r26 of the Magistrates Court Rules 1992 as requiring disclosure of the defence case would be to deny the availability of the privilege against self incrimination: see Doyle CJ at p378. Also, it was held that the right to silence would be infringed. In that case the Court was concerned with the validity of r26 which imposes an obligation upon the prosecution and the defence to ascertain the precise matters in issue and to undertake certain action. Insufficient compliance with the Rule must be taken into account on the question of costs: see r26.04. However, it was decided in Ling that this rule did not extend to the failure to disclose the defence. Also, as a matter of fact, as has been mentioned, the respondent may not have been aware of all of the opinions of Dr Irving until well into the trial and the evidence of the other veterinary witnesses had been completed, except for the recalling of Dr Robinson, and the prosecution case had been completed.
The respondent did not unreasonably prolong the proceedings as alleged. Cross-examination by defence counsel, Mr Sykes, was at all times relevant and pertinent. The respondent was entitled to contest the issues upon which he failed and perusal of the transcript reveals that he did so economically and appropriately. This ground fails.
It is now accepted that even though the discretion to award costs is a wide one. A successful defendant may expect to recover costs: Hamdorf v Riddle [1971] SASR 398 at p402, Latoudis v Casey (1990) 170 CLR 534 and Ling at p384. However, as Doyle CJ pointed out in Ling, at p384, there may be circumstances in which the successful defendant should be denied costs altogether or should be awarded a lesser sum than would otherwise be recovered. In the present case the only matter which could possibly justify other than the usual order for costs is the “defence” disclosed in the evidence by Dr Irving. I have rejected that reason. However, when Dr Irving’s opinions were known, they were contested by the appellant. They did not, and in the circumstances could not have, brought the proceedings to an end or shortened the trial. Indeed, if this evidence had been available before the trial, it is highly unlikely that it would have persuaded the appellant not to proceed.
In my view, the learned Magistrate was correct in ordering costs against the appellant and the first ground of the cross appeal must fail.
The appeal by the respondent against the order for costs and the second ground of the cross appeal may be considered together. The respondent complains that the award is inadequate and the appellant claims that it is excessive.
I am informed that the learned Magistrate approached questions on the basis that in cases of this nature an amount of $650 should be allowed by way of solicitor’s costs and $650 per day by way of counsel fees. In addition, the respondent incurred out of pocket expenses for Dr Irving, being $150 for his report and $300 for a witness fee. Also, it appears reasonable to allow a witness fee for the respondent for a full day, namely $100 and for Mr Russell for half a day. No allowance may be made for the attendance of the respondent at Court each day when he was not giving evidence because there is no evidence or agreement that he actually suffered a loss or incurred expense. On that basis the amount awarded to the respondent should have been $5,150. The appellant also complains that the learned Magistrate was in error in failing to give reasons for his decision as to costs. Plainly, he should have done so. The basis of his award is not known. It is necessary to approach the matter afresh.
As I have said, there is no reason to reduce the amount of costs awarded to the respondent and that ground of the appeal of the respondent must succeed and the cross appeal must fail. The appropriate award is $5,150.
The second ground of the appeal by the respondent relates to the order made by the first Magistrate. The respondent seeks an extension of time in which to appeal against that order with a view to establishing that the costs of the entire proceedings, including before the first Magistrate, should follow the event and be paid by the appellant. If I thought there was merit in the contention that the order of the first Magistrate could not stand, I would extend the time within which to appeal so that justice could be done. However, I do not think that aspect of the appeal could succeed.
The trial before the first Magistrate commenced on the appointed day which had been fixed for some time to the knowledge of the appellant and the respondent. The appellant was ready for trial. Counsel and seven witnesses attended on the appointed day. The respondent was not ready. He did not have counsel. It may well be the case that he is not to blame. As has been mentioned, his solicitors did not write to him until two days before the trial. Counsel had not been briefed at that time. It appears that his solicitor had only just returned from leave. It is possible that the solicitor was at fault in the respondent not being ready for trial. The information available upon this appeal does not permit a finding as to who is to blame. However, the blame lies with the respondent’s camp not the appellant.

It was argued that the appellant unreasonably opposed the adjournment when the matter was called on for trial. It soon became apparent that the trial should not proceed because the respondent could not adequately conduct his defence which the appellant should have anticipated. Consequently, the appellant should not have its costs of these two days. I reject that contention. The trial was aborted because the respondent was unrepresented and unprepared. The trial had to begin again. It is not a case of a delay and the trial continuing. The first Magistrate was fully justified in the exercise of his discretion in ordering the respondent to pay the costs thrown away.
On this appeal there is no jurisdiction to fix the costs thrown away. The appellant may apply to the first Magistrate. However, I have chosen to express the view about the matter. If the parties accept my view, they may reach agreement. If they do not, the appellant may, as I say, apply to the first Magistrate.
I was informed that the witness fees thrown away amounted to $1,000. There were other fees for reports of the veterinary witnesses but the obtaining of these reports was part of the preparation for the trial which proceeded to conclusion. No allowance should be made for those expenses in the costs thrown away. Also, no allowance of $650 for preparation should be made as it was also preparation for the second trial. One full day was lost and one half day. Reasonable counsel fees for those days would seem to be $650 and $325 respectively. In my view, the costs thrown away should be $1,975. It seems appropriate that those costs be set off against those to be paid by the appellant leaving a balance of $3,175.
I dismiss the appeal against the dismissal of the complaint. I allow the appeal of the respondent against the order for costs made by the learned Magistrate. I vary the amount of the costs to $5,150. I dismiss the cross appeal of the appellant as to costs. I refuse the application of the respondent to extend the time within which to appeal against the order for costs of the first Magistrate.

[1998] SASC 6792

14 August 1998