Ryan v RSPCA of SA Inc - [2020] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RYAN v RSPCA OF SA INC
[2020] SASC 176
Judgment of The Honourable Justice Livesey
21 September 2020
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES - CAUSING UNNECESSARY PAIN AND CRUELLY ILLTREATING
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - DUPLICITY, AMBIGUITY AND UNCERTAINTY
Appeal against conviction.
On 3 May 2017 inspectors appointed pursuant to s 28 of the Animal Welfare Act 1985 (SA) (“the Act”) attended the appellant’s property. The respondent suspected breaches of the Act. Accompanying the inspectors was a veterinarian. The attendance was authorised by a warrant under s 30 of the Act.
During the inspection, a dog was euthanised on site and 26 dogs and 23 chickens were seized. Three of the dogs were later euthanised pursuant to s 34B of the Act.
A complaint was subsequently filed in the Magistrates Court and a trial proceeded in relation to 27 charges of ill-treatment as follows:
1. Counts 1 to 4 alleged a failure to provide appropriate and adequate veterinary care to four German Shepard dogs;
2. Counts 5 to 27 alleged a failure to provide appropriate and adequate living conditions and water to 23 Pomeranian dogs.
Following the trial, the Magistrate delivered a verdict of guilty in relation to all 27 counts.
In this Court the appellant appeals against her convictions on four grounds:
1. In relation to counts 5 to 27, the Magistrate erred in not finding that the charges were bad for duplicity because they alleged two or more offences in a single charge.
2. The Magistrate failed to properly exercise his discretion by failing to exclude the evidence that was obtained under the search warrant because the warrant did not bear the seal of the Magistrates Court and because it was not obtained or executed in good faith.
3. The Magistrate did not give proper weight to the evidence given by the appellant.
4. The Magistrate did not give proper weight to the appellant’s evidence and improperly dismissed what the appellant had said in evidence and in writing.
Held, dismissing the appeal:
1. Counts 5 to 27 are not bad for duplicity, whether patent or latent duplicity. The charged offences are each of ill-treatment of a specified animal, the particulars of which comprised the matters specified.
2. The Magistrate did not exercise the discretion described in Bunning v Cross (1978) 141 CLR 54 and did not err in finding that the seal was not required and that there was no impropriety in connection with the obtaining or use of the warrant.
3. The Magistrate did not err in his fact finding, and, in particular, was entitled to reject the appellant’s evidence.
Animal Welfare Act 1985 (SA) s 13, s 28, s 30, s 31A, s 31D; Crimes Act 1941 (Cth) s 79; Criminal Procedure Act 1921 (SA) s 76B, s 181, s 182; Fisheries Management Act 2007 (SA); Justices Act 1921 (SA) s 182, s 185; Magistrates Court Act 1991 (SA) s 6, s 42, s 49; Magistrates Court Rules 1992 (SA) r 3.01, 3.03; Native Vegetation Act 1991 (SA) s 26; Supreme Court Civil Rules 2006 (SA) r 286, referred to.
Brinkworth v Dendy (2007) 97 SASR 416; Bunning v Cross (1978) 141 CLR 54; Corbett v NSW [2006] NSWCA 138; CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Dietman v Feast (2016) 126 SASR 165; Director of Public Prosecutions v Merriman [1973] AC 584; Fox v Percy (2003) 214 CLR 118; Holberry v Police [2020] SASC 62; George v Rockett (1990) 170 CLR 104; Liberato v The Queen (1985) 159 CLR 507; Johnson v Miller (1937) 59 CLR 467; Johnson v The Queen (2018) 266 CLR; Lee v Lee (2019) 93 ALJR 993; Mullins v Police [2013] SASC 148; New South Wales v Corbett (2007) 230 CLR 606; Pell v The Queen (2020) 94 ALJR 394; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; R v Traino (1987) 45 SASR 473; Romeyko v Samuels (1972) 2 SASR 529; S v The Queen (1989) 168 CLR 226; Smethurst v Commissioner of Police (Cth) (2020) 94 ALJR 502; Smith v NSW Bar Association (1992) 176 CLR 256; State of Queensland v Masson (2020) 94 ALJR 785; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306; Sutcliffe v RSPCA (SA) Inc (2016) 260 A Crim R 255; Vakauta v Kelly (1989) 167 CLR 568; Walsh v Tattersall (1996) 188 CLR 77, considered.

RYAN v RSPCA OF SA INC
[2020] SASC 176
Magistrates Appeal: Criminal
LIVESEY J:
Introduction

The appellant appeals against convictions on 27 counts relating to the ill‑treatment of 27 dogs, contrary to s 13(2) of the Animal Welfare Act 1985 (SA) (the Act).
The charges arise out of an attendance at the appellant’s property on 3 May 2017 by inspectors appointed pursuant to s 28 of the Act and employed by the respondent, the RSPCA. The respondent’s inspectors suspected breaches of the Act. They were accompanied by a veterinarian employed by the respondent. The attendance followed complaints earlier made to the respondent.
The attendance was apparently authorised by a warrant earlier taken out under s 30 of the Act. That warrant is challenged. During the attendance on 3 May 2017 a dog named Heyley was euthanised on site. Additionally, 26 dogs and 23 chickens were seized. Three of the dogs were later euthanised pursuant to s 34B of the Act at the direction of another veterinarian employed by the respondent.
On 29 September 2017 a complaint was filed in the Port Pirie Magistrates Court naming the appellant as defendant and particularising 28 counts of ill- treatment. Many of those counts are said to be bad for duplicity. Ultimately, the trial between 18 and 21 November 2019 proceeded in relation to 27 charges of ill-treatment relating to 27 dogs. In essence:
1Counts 1 to 4 alleged a failure to provide appropriate and adequate veterinary care to four German Shepherd dogs.
2Counts 5 to 27 alleged a failure to provide appropriate and adequate living conditions and water to 23 Pomeranian dogs.
On 31 March 2020 the trial Magistrate delivered a verdict with written reasons, finding that there was “voluntariness” in the sense explained by this Court in Sutcliffe v RSPCA (SA) Inc, and concluding that the appellant was guilty on all 27 counts.[1] The appellant challenges various aspects of the fact-finding undertaken by the trial Magistrate, particularly in so far as her own evidence was rejected.
[1] Sutcliffe v RSPCA(SA) Inc (2016) 260 A Crim R 255 (Blue J).
The appellant was unrepresented at trial and on this appeal, but has previously appeared before this Court following the seizure of her animals during the attendance on 3 May 2017.[2]
[2] Ryan v RSPCA SA Inspectorate Inc [2018] SASC 53 (Kourakis CJ), seeking the return of 23 Pomeranian dogs seized on 3 May 2017, and Ryan v Doudle; Ryan v Clough; Ryan v Ward; Ryan v RSPCA [2019] SASC 155 (Doyle J), regarding the stay of private prosecutions brought by the appellant against each of four respondents.
The appeal grounds
On 22 April 2020 the appellant filed a Notice of Appeal containing seven grounds. When this matter was first called over on 23 June 2020 the appellant sought more time. I granted the appellant an extension of time to file her written outline and deferred the hearing of the appeal until 31 August 2020.
By her written outline delivered on 26 August 2020 the appellant abandoned appeal grounds 5, 6 and 7. The remaining appeal grounds are:
1.   Said Magistrate made numerous errors in Law, disregarding Supreme court rulings and Legislation or appeared to have interpreted them incorrectly.
2.   Said Magistrate failed to use his discretionary power by making numerous materially harmful and arbitrary judgement errors in fact, contrary to, but not limited to Justice, Common Law Maxims, Natural Law principles etc.
3.   Said magistrate made numerous Unreasonable, Fanciful and Prejudicial decisions in his judgement based on him dismissing all my evidence as “lies” (in his own written words) but accepted the prosecution evidence as reliable, even after I clearly showed the inconsistencies and untruthful or misleading statements in their witnesses cross examinations.
4.   Said magistrate allowed the court process, purpose and function to be used for Oppression and Injustice, by making this trial Unfair and predetermining my supposed guilt instead of giving me a Fair hearing and consideration of everything I was saying or writing.
These appeal grounds are difficult to understand and appeal grounds 1 and 2 are unintelligible. The respondent delivered an outline which endeavoured to respond to the appeal grounds on 25 August 2020.
What the appellant intended has become a little clearer in her outline delivered the following day. The appellant told me that she is pursuing the following reformulated appeal grounds:
Ground One: The learned Magistrate failed to find the charges improperly laid on account of duplicity.
Ground Two: The learned Magistrate failed to properly exercise his discretion by failing to exclude the evidence which was obtained under the search warrant.
Ground Three: The learned Magistrate did not give proper weight to the evidence which was given by me.
Ground Four: The Magistrate did not give proper weight to my evidence and improperly dismissed what I had said in evidence and in writing.
The appeal is available as of right under s 42(1) of the Magistrates Court Act 1991 (SA) and is by way of rehearing,[3] with this Court required to reconsider the materials before the trial court and “make up its own mind”, albeit without disregarding the judgment under appeal.[4] Though the Magistrate had the considerable advantage of seeing the witnesses and of assessing their demeanour, that is not necessarily decisive, still less determinative, of this appeal.[5] An appeal court is not obliged to, and ought not, allow an appeal unless some miscarriage of justice is demonstrated.[6]
[3]    Supreme Court Civil Rules 2006 (SA), r 286(1). See generally, Police v Cadd (1997) 69 SASR 150, 189 (Lander J); Sharman v Police [2015] SASC 159, [15] (Vanstone J).
[4]    R v Taylor [2014] SASCFC 112, [18] (Stanley J, with whom Kelly and Peek JJ agreed) regarding s 42(5) of the Magistrates Court Act 1991 (SA). See also Fox v Percy (2003) 214 CLR 118; Lee v Lee (2019) 93 ALJR 993.
[5]    Fox v Percy (2003) 214 CLR 118, [31]-[32] (Gleeson CJ, Gummow and Kirby JJ); Pell v The Queen (2020) 94 ALJR 394, [37]-[38] (the Court).
[6]    Gazepis v Police (1997) 70 SASR 121.
Disposition of the appeal
After hearing the appeal, on 4 September 2020 I announced my decision to the parties as follows:
1Counts 5 to 27 are not bad for duplicity, whether patent or latent duplicity and I reject appeal ground 1;
2The warrant was valid, there was no occasion to exercise the discretion described in Bunning v Cross[7] and I reject appeal ground 2; and
3The trial Magistrate did not err in his fact-finding and I reject appeal grounds 3 and 4.
[7] Bunning v Cross (1978) 141 CLR 54.
In consequence, I dismissed the appeal. After hearing from the parties, I awarded the respondent costs fixed in the amount of $500. I said that I would soon provide my reasons. These are my reasons.
Appeal ground 1 — duplicity
In order to understand the appellant’s first complaint, it is necessary to set out s 13 of the Act:
13—Ill treatment of animals
(1)     If—
(a)     a person ill treats an animal; and
(b)the ill treatment causes the death of, or serious harm to, the animal; and
(c)the person intends to cause, or is reckless about causing, the death of, or serious harm to, the animal,
the person is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 4 years.
(2)     A person who ill treats an animal is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
(3)Without limiting the generality of subsection (1) or (2), a person ill treats an animal if the person—
(a)intentionally, unreasonably or recklessly causes the animal unnecessary harm; or
(b)     being the owner of the animal—
(i)fails to provide it with appropriate, and adequate food, water,        living conditions (whether temporary or permanent) or exercise; or
(ii)fails to take reasonable steps to mitigate harm suffered by the animal; or
(iii)    abandons the animal; or
(iv)    neglects the animal so as to cause it harm; or
(c)     having caused the animal harm (not being an animal of which that                  person is the owner), fails to take reasonable steps to mitigate harm;               or
(f)    causes the animal to be killed or injured by another animal; or
(g)     kills the animal in a manner that causes the animal unnecessary pain;
        or
(h)unless the animal is unconscious, kills the animal by a method that does not cause death to occur as rapidly as possible; or
(i)carries out a medical or surgical procedure on the animal in contravention of the regulations; or
(j)ill treats the animal in any other manner prescribed by the regulations for the purposes of this section.
(4)A person charged with an offence against subsection (1) (the aggravated offence) may be convicted of an offence against subsection (2) (the lesser offence) if the court is not satisfied that the aggravated offence has been established beyond reasonable doubt but is satisfied that the lesser offence has been so established.
(5)It is a defence to a charge of an offence against subsection (2) if the defendant proves that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
(6)     In this section—
cause—a person’s act or omission causes the death of, or harm to, an animal if the act or omission substantially contributes to the death or harm.
The appellant invokes authorities such as S v The Queen[8] and Walsh v Tattersall[9] to assert that the prosecution alleged two or more offences in a single charge. It is a little unclear whether the appellant is asserting explicit or latent duplicity, or both. Regardless, the essence of the complaint is that the charges contain more than one particular and, in so doing, they are each said to comprise more than one offence.
[8] S v The Queen (1989) 168 CLR 226, 284-285 (Gaudron and McHugh JJ).
[9] Walsh v Tattersall (1996) 188 CLR 77, 106 (Kirby J).
The appellant’s duplicity complaint only concerns counts 5 to 27 which relate to the Pomeranian dogs. It is sufficient to set out counts 5 and 6:
Count 5
On or about 3 May 2017 at Baroota in the State of South Australia, the defendant ill-treated an animal, namely a female cream and white small breed Pomeranian type of dog, known as Annie (with animal identification number 125978).
Section 13(2) of the Animal Welfare Act 1985.
This is a Summary Offence.
Particulars
The defendant being the owner of the animal failed to provide appropriate and adequate food, water, living conditions (whether temporary or permanent) or exercise, to the female small breed Pomeranian type of dog Annie.
Section 13(3)(b)(i) of the Animal Welfare Act 1985.
Count 6
On or about 3 May 2017 at Baroota in the State of South Australia, the defendant ill-treated an animal, namely a female cream and white small breed Pomeranian type of dog, known as Cheeky (with animal identification number 125979).
Section 13(2) of the Animal Welfare Act 1985.
This is a Summary Offence.
Particulars
The defendant being the owner of the animal failed to provide appropriate and adequate food, water, living conditions (whether temporary or permanent) or exercise, to the female small breed Pomeranian type of dog, Cheeky.
Section 13(3)(b)(i) of the Animal Welfare Act 1985.
The appellant asks, rhetorically, “given these are all “or” alternatives, which case am I meeting? If I am found guilty, on what basis was that finding made?”. The appellant says that the particulars did not enable her to know “precisely which conduct would constitute the offence”. An associated complaint is “the duration over which the offending needed to be committed”. The appellant says that it remained unclear whether she was alleged to have failed to provide appropriate and adequate living conditions on a permanent basis or a temporary basis.
The appellant submits that the Magistrate was wrong to dismiss the argument she made about duplicity.
The trial Magistrate rejected the appellant’s duplicity argument,[10] finding that there was no apparent defect in the summons or the particulars and that these were “to be readily understood”.[11] The trial Magistrate found, apparently relying upon Mullins v Police, that the charges were not duplicitous and were properly laid. They were not rolled up and they separately addressed each animal the subject of charges.[12]
[10] Reasons [47]-[50].
[11] Reasons [48] referring to ss 5 and 22 of the Summary Procedures Act 1921 (SA).
[12] Mullins v Police [2013] SASC 148 (Peek J).
It is apparent from the trial Magistrate’s analysis of the elements of the offences that the prosecution case was, ultimately, that counts 5 to 27 were only concerned with allegations of inappropriate and inadequate water and living conditions.[13]
[13] Reasons [51]-[58], citing Sutcliffe v RSPCA (SA) Inc (2016) 260 A Crim R 255, [67]-[69] (Blue J) regarding the requisite “mental element” of voluntariness, namely, that it was sufficient that the defendant’s conduct be deliberate in the sense that it was conscious and voluntary though it need not be proved that she intended to provide inadequate water or inadequate living conditions.
On the hearing of the appeal the respondent emphasised that this was indeed how the case was pressed at trial. After the opening, and by the time of the “no case to answer” argument and final addresses, the prosecution case had narrowed to allegations of inappropriate and inadequate water and living conditions, albeit that the prosecution contended that these elements could be satisfied individually or in combination in relation to each count. That is, on each count the Magistrate could find that there was either or both inappropriate and inadequate water and living conditions.
Whilst it may be inferred that all other particulars were abandoned, and not proved, in relation to each count, no application was made to amend the complaints to reflect the conduct of the case.
Ultimately, the trial Magistrate found it proved beyond reasonable doubt that the appellant failed to provide appropriate and adequate water and living conditions to the Pomeranian dogs on 3 May 2017.[14] The Magistrate expressed his findings in the following terms:
I find the evidence is overwhelming and it is proof beyond a reasonable doubt evidence of the squalid, dirty, improperly maintained and unkempt conditions which were present on 3 May 2017. Those interior living conditions were inappropriate and inadequate for the Pomeranian dogs to live in, let alone any dogs at all. I find as fact that the dirt floor in each was coved in varying degrees of dog faeces, urine, rotten or rotting bones and that the bedding was inadequate and dirty.
Objectively viewed, any cage for dogs should be free of faeces, urine, rotten and rotting bones and bedding should be clean and adequate. This is simple maintenance for the welfare of the dogs which is easily achievable. I find proved beyond a reasonable doubt that it was absent here in each count. Of the exhibits showing photographs of the pens B9 to B14 consecutively, I accept Dr Ward’s evidence as an expert, that the pens had not been cleaned on a regular basis for many weeks or months in his experience. I do accept some were worse than others but objectively, the conditions were inappropriate and inadequate for any dog to live in.
…
Dr Ward described and I accept that in his experience and expert opinion, the living conditions were “very poor” in the pens and of a very low standard. I concur as the trier of fact in this matter. I find that the conditions were appalling, unfit for any animal to live in.
Accepting the evidence of Cheryl Doudle, I also find beyond a reasonable doubt that the quality of each water source in each pen was inadequate and inappropriate for consumption by the Pomeranian dogs. Again, I find that her failure to act was voluntary given Ms Ryan’s answers in cross examination. I reject the assertion by Ms Ryan that she checked the water in the days before the raid. Objectively, I find that the ability to clean the cages and provide fresh consumable water could have, and should have been easily met. The task was not onerous but a clean floor, a floor free of faeces and rotting bones and a clean, drinkable water source are the bare minimum standards one would expect of any prudent dog owner. On the evidence and on the facts as I have found them, Ms Ryan fell far short of achieving even the minimum standards one would expect. The condition of the pens was squalid and unliveable, leading to a conclusion that these charges are made out and I find her guilty of counts 5 to 27.
[14] Reasons [210]-[215].

Whilst there had been a defence mounted pursuant to s 13(5) of the Act, that was rejected.[15]
[15] Reasons [180]-[203] and [218]-[219].
In finding that the “evidence is quite frankly, overwhelming”, the trial Magistrate relied on a combination of video footage and photographs, as well as the evidence of the veterinarian surgeon, Dr Bradley Ward “that the pens had not been cleaned on a regular basis for many weeks or months”, and on the evidence of Inspector Cheryl Doudle that the quality of each water source in each of the pens B9 to B14 (where the Pomeranians were kept) was “inadequate and inappropriate for consumption by the Pomeranian dogs”.
The trial Magistrate particularly relied on the following passage in the cross-examination of the appellant:
Q.    You said that the mess that the mess in the enclosures could be easily cleaned. Do you recall that just now.
A.    Yes, I said that.
Q.    Do you agree that it need cleaning.
A.    Yes, needed cleaning.
Q.    You said that the water could be easily cleaned or changed, do you recall that.
A.    Yes, could be.
Q.    Do you accept that it needed changing.
A.    Yes, needed changing.
Q.And in terms of dogs living in farm environments, do you agree the Pomeranian is really a domesticated dog and does not usually live in a farm environment.
A.Not really by different experiences of mine. In New Zealand I had a Pomeranian dog which was better working dog than my German Shephard. While bringing the dairy cows in, the cows didn’t pay any attention to the German Shephard, but when I put the Pomeranian on the ground and he barked, the cows shot like a rocket back to the shed. I never seen a rule, a law, or anything which is saying that little dogs are strictly for town living. They cannot be looked after in living and enjoying life on a farm.
Q.You said before that the mess in the enclosures needed cleaning. By the mess, do you mean, you include the faeces.
A.    Yes.
Q.    Do you include the bones,
A.    Yes.
Q.    Do you include the bedding.
A.    Yes.
Q.So the faeces needed cleaning, the bones needed cleaning, the bedding needed cleaning and the water needed changing. Do you agree that in total, those living conditions were inadequate for a dog.
A.I don’t agree that they are inadequate for a dog. I agree that they needed to be addressed.
Count 5 comprises an allegation of ill-treatment of the dog known as Annie, particularised by the appellant’s failure to provide appropriate and adequate food, water, living conditions or exercise. These particulars replicate s 13(3)(b)(i) of the Act. My preliminary view is that the charged offence is one of ill-treatment of a specified animal, the particulars of which comprise all of the matters specified. They are not true alternatives, except in so far as there are allegations of temporary or permanent living conditions.
As for the relevant timeframe, that is clearly alleged as being “[o]n or about 3 May 2017”, when the respondent’s inspectors attended the appellant’s property.
This same analysis can be applied to count 6, as well as the other counts.
The appellant seems to be contending that, notwithstanding my preliminary view, the proper way to read the particulars is that they allege a number of different failures, namely, to provide appropriate and adequate: (1) food (whether temporary or permanent), or (2) water (whether temporary or permanent), or (3) living conditions (whether temporary or permanent), or (4) exercise (whether temporary or permanent). Read in this way, the appellant contends that there were a number of different offences impermissibly alleged in each count.
Though it may be that the complaints now being made were not all made before the trial Magistrate, that apparently does not preclude the point about duplicity now being raised on appeal.[16]
[16] R v Traino (1987) 45 SASR 473, 475 (King CJ, with whom Jacobs and Millhouse agreed).
Certainly, it does not appear that particulars were sought by the appellant, whether before the case was opened, or subsequently.
In Johnson v Miller Evatt J explained the rule against duplicity:[17]
It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court’s inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.
[17] Johnson v Miller (1937) 59 CLR 467, 497-498 (Evatt J).
Lord Diplock explained the approach in Director of Public Prosecutions v Merriman (Merriman):[18]
The rule against duplicity, viz. that only one offence should be charged in any count of an indictment … has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.
[18] Director of Public Prosecutions v Merriman [1973] AC 584, 607 (Lord Diplock).
The rule against duplicity was described as a “rule of strictness” by Kirby J in Walsh v Tattersall,[19] and he suggested that the High Court had not applied the rule “in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence” as Lord Diplock had suggested in Merriman.[20] However, it is doubtful the High Court has ever taken a view at odds with the approach taken in Merriman. In Brinkworth v Dendy Doyle CJ doubted whether there was any difference in approach.[21]
[19] Walsh v Tattersall (1996) 188 CLR 77, 110 (Kirby J).
[20] Walsh v Tattersall (1996) 188 CLR 77, 104 (Kirby J).
[21] Brinkworth v Dendy (2007) 97 SASR 416, [16] (Doyle CJ, with whom Debelle and Anderson JJ agreed): “Mr Peek appeared to submit that a stricter approach to the application of the relevant principles has been taken in Australia than has been taken in England. I can find nothing in the reasons of the members of the High Court in Walsh v Tattersall to support that submission”.
The explanation of the rule given by Gaudron and McHugh JJ in S v The Queen does not suggest a difference, particularly in so far as they accept that “the degree of unfairness or prejudice involved will vary from case to case”:[22]
The rule against duplicitous counts in an indictment originated as early as the seventeenth century. See, e.g., Smith v. Mall; R. v. Stocker. It may be, as suggested by Salhany in “Duplicity — Is the Rule Still Necessary?”, Criminal Law Quarterly, vol. 6 (1963) 205, at pp. 206-207, that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. See, generally, R. v. Sadler; R. v. Hollond, per Lord Kenyon C.J. See, as to the need for distinct consideration in relation to penalty, R. v. Stocker; R. v. Sadler; R. v. Morley; Cotterill v. Lempriere, per Lord Coleridge C.J. See, as to the availability of a plea in bar, R. v. Robe; Davy v. Baker ; R. v. Wells; Ex parte Clifford; R. v. Surrey Justices; Ex parte Witherick.
The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. See, e.g., R. v. Robe where it was said “this is so general a charge, that it is impossible any man can prepare to defend himself on this prosecution … ” See also R. v. Hollond, per Lord Kenyon C.J.; R. v. North; R. v. Morley; and Cotterill v. Lempriere, per Lord Esher M.R. Of course, the degree of unfairness or prejudice involved will vary from case to case, and it may be, as suggested by Professor Glanville Williams in “The Count System and the Duplicity Rule” [1966] Criminal Law Review 255, at p. 264, that on occasions the uncertainty is not “such as to disable the defendant from meeting the charge”.
The matters which go to the orderly administration of justice are not unrelated to the consideration that a duplicitous count may be productive of prejudice. If the matter proceeds to trial, there is the possibility that evidence will be wrongly admitted or that incorrect directions will be given to the jury. There is also the possibility that a jury, no matter how carefully directed, may reason from the number of offences charged that the accused must be guilty of at least one. However, it may be going too far to equate prejudice with the difficulty of raising a defence of autrefois acquit or autrefois convict, and, in any event, such problems as there are in that area may be of less significance in those jurisdictions where the criminal law is codified than in common law jurisdictions. See, in relation to s. 17 of the Criminal Code (W.A.) (“the Code”), O'Halloran v. O'Byrne , especially per Wickham J..
The problems which attend duplicitous counts also attend proceedings in which the prosecution seeks to lead evidence of multiple offences answering the description of the offence or offences charged. Two such problems were made explicit in Johnson v. Miller. In that case one offence was charged, but the prosecution announced its intention of calling evidence of some thirty possible offences. Dixon J. pointed out that, unless similar fact evidence were admissible, the admission of “evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule” The second problem identified in that case concerned the different defences that might be available to the different offences in respect of which it was proposed to call evidence. In relation to that problem Evatt J. said that the course proposed by the prosecution would convert “a strictly judicial function — that of determining guilt or innocence of a single offence — into an administrative commission of inquiry into the question whether … when there were thirty possible occasions when an offence might have been committed, the defendant could exculpate himself in respect of all thirty occasions”.
(Footnotes omitted.) (Emphasis in original.)
[22] S v The Queen (1989) 168 CLR 266, 284-286 (Gaudron and McHugh JJ) a case of latent duplicity.
It is difficult to regard Walsh v Tattersall as taking issue with what Lord Diplock had said in Merriman.[23] There the High Court, by a majority, allowed an appeal against the Full Court’s rejection of the appellant’s complaint that an offence of “obtain[ing] by dishonest means a payment or other benefit” charged under s 120(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) was bad for duplicity because the amount of $21,891.20 referred to in the complaint was the subject of nine separate payments, during a time when the appellant claimed to be unfit for work, but when he was working, it was said, in a legal practice in the role of an office manager.
[23] Walsh v Tattersall (1996) 188 CLR 77.
Though in the minority, Dawson and Toohey JJ cited Lord Diplock’s speech in Merriman without criticism and explained:[24]
The proscription against duplicity is succinctly stated by Archbold:[25]
“The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences … This rule though simple to state is sometimes difficult to apply … Duplicity in a count is a matter of form, not evidence.”
The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation.[26] That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield.[27] For this reason S v The Queen is, in our view, not a case of duplicity.[28]
[24] Walsh v Tattersall (1996) 188 CLR 77, 84 (Dawson and Toohey JJ).
[25] Archbold, Criminal Pleading, Evidence and Practice (1995, 44^th ed, vol 1) 75.
[26] R v General Medical Council; Ex parte Gee [1986] 1 WLR 226, 238-239. The need for the rule has been questioned by Professor Smith: [1993] Criminal Law Review, p 141.
[27] Greenfield, Barker, Creek, Mendleson (1973) 57 Cr App R 849, 855-856.
[28] See S v The Queen (1989) 168 CLR 266, 280-281.
Though part of the majority, Gaudron and Gummow JJ did not decide the case on whether the appellant was charged with more than one offence in a single count and was therefore bad for duplicity:[29]
It turns upon an anterior question. This is whether the appellant was charged with any offence created by the Workers Rehabilitation and Compensation Act 1986 (SA). In our view, the appellant was not so charged and his appeal succeeds.
…
Section 120(1)(a) fixes upon the obtaining of a payment or other benefit under the statute, where that payment or benefit was obtained “by dishonest means”. In a particular instance, the dishonest means by which this result is achieved may comprise a number of untrue statements or wilful non-disclosures, identified as a course of conduct extending over a period. But, once a payment or benefit is first so obtained an offence then has been completed. Where there is a temporal sequence of payments or benefits allegedly obtained by dishonest means, the ascertainment of the essential element of dishonesty will be tested at different times. That is not to deny, in the particular circumstances of a case, that the same untrue statements or wilful non-disclosures may have the necessary operative effect in relation to more than one act of obtaining. But there is no offence created of “[obtaining] by dishonest means payments or benefits under [the Act]”. Yet count 1 was so expressed.
[29] Walsh v Tattersall (1996) 188 CLR 77, 87, 89 (Gaudron and Gummow JJ).
Their finding was that the appellant was not charged with an offence created by the relevant statute. Later, Gaudron and Gummow JJ contrasted cases:[30]
… dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond.[31] There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact suffices by itself.
Further, the offence created by s 120(1)(a) of the Act may be compared with that with which this Court was concerned in Montgomery v Stewart. There the statute fixed upon the single act of giving authority to issue a prospectus containing an untrue statement or wilful non-disclosure, and the character of that act did not depend upon or vary with the number of untrue statements or wilful non-disclosures to be found in the prospectus. Again, Johnson v Miller[32] turned upon the creation by s 209 of the Licensing Act 1932 (SA) of, as Dixon J put it, a distinct liability as for a separate offence in respect of each person seen coming out of licensed premises, unless, perhaps, a number of persons acting in combination were seen to come out of the premises at the same time.[33]
[30] Walsh v Tattersall (1996) 188 CLR 77, 91-92 (Gaudron and Gummow JJ).
[31] Loftus v Woodworth [1936] VLR 279.
[32] Johnson v Miller (1937) 59 CLR 467.
[33] Johnson v Miller (1937) 59 CLR 467, 483.
Only Kirby J decided the case favourably to the appellant on the duplicity point, and only he suggested that the approach outlined in Merriman by Lord Diplock was at odds with the approach adopted by the High Court. Kirby J explained:[34]
The rule against duplicity in common law procedure may be traced to decisions of the courts in England at least as early as the seventeenth century.[35] But in this century, and in this Court, it has been upheld and stringently applied in a consistent series of decisions.[36] The same strictness has been evident in the Federal Court of Australia.[37] It may also be seen in a number of decisions of State Supreme Courts and Courts of Criminal Appeal.[38]
[34] Walsh v Tattersall (1996) 188 CLR 77, 93.
[35] R v Stocker (1695) 5 Mod 137; 87 ER 568.
[36] Johnson v Miller (1937) 59 CLR 467; Ianella v French (1968) 119 CLR 84; S v The Queen (1989) 168 CLR 266.
[37] Dillon v Chin (1988) 34 A Crim R 286, 287 (Pincus J).
[38] See Byrne v Baker [1964] VR 443; R v Traino (1987) 45 SASR 473. See also South Australian Police v Durbridge (1993) 61 SASR 22; R v McMullen (1990) 54 SASR 55; Stanton v Abernathy (1990) 19 NSWLR 656.
After an extensive review of the history, debate, principles and policies concerning duplicity, Kirby J concluded with the proposition that s 120 was intended to create a separate offence for each payment or benefit.
Much earlier, the Full Court of this Court in Romeyko v Samuels[39] considered duplicity in the context of a charge of having knowingly sent by post a postal article containing “words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character”, contrary to s 107 of the Post and Telegraph Act 1901-1970 (Cth). Replicating portions of s 107(c), the complaint alleged that the defendant “on about the 7th day of April 1971, at Marden in the said State knowingly sent by post a postal article which had therein words, marks or designs of an indecent, obscene, blasphemous, libellous or grossly offensive character”.
[39] Romeyko v Samuels (1972) 2 SASR 529.
Bray CJ commenced by addressing the nature of the offence created by the relevant statute:[40]
If the postal article in question has more than one objectionable word, mark or design, if it has some of such words, marks or designs thereon and some therein and some on its envelope and some on its cover, nevertheless only one offence, in my view, is created. If there are words to which all the five adjectives can be applied, or a collection of words to some of which each of the five adjectives can be applied separately, still, in my view, only one offence is created. Were it otherwise, for example, if a man knowingly sent by post a postal article which contained one word both indecent and obscene, another indecent word, another blasphemous word and another libellous word, and if all of those words were grossly offensive as well, he would commit ten offences. The principles adopted by this Court in R. v. O’Loughlin; Ex parte Ralphs might save the defendant from being convicted more than once in respect of the same word, but could not on this interpretation save him from several convictions for several different words. I cannot think that Parliament intended anything like this. I think that the case falls into the line of authorities represented by Smith v. Perry; Hedberg v. Woodhall; Moore v. Allchurch; per Napier J., as he then was, at p. 119; Thomson v. Knights; R. v. Naismith; and O’Sullivan v. Truth and Sportsman Ltd.. I agree with Mr. Cox that the observations of the learned Judges of the High Court in the last-mentioned case at p. 224 are practically conclusive on this point.
The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact posssses [sic] one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow. See, for example, Bastin v. Davies.
(Citations omitted.)
[40] Romeyko v Samuels (1972) 2 SASR 529, 551-552 (Bray CJ, with whom Bright and Sangster JJ agreed).

Although there was, therefore, only one charge, Bray CJ rejected the view that the complaint was otherwise properly drawn:[41]
In my view, if it is intended to allege that the postal article in question possesses more than one of the forbidden characteristics, then they should be mentioned conjunctively, not disjunctively, and if any of those characteristics is not intended to be alleged it should not be mentioned at all. I could, perhaps, conceive of a rare case where the prosecutor was really in doubt as to which of the forbidden characteristics was present but thought that he could prove that at least one of them must have been, as if, for example, he was not really sure whether an inability to exercise effective control over a car was due to drink or to drugs but was sure that it must have been due to one of them. Even then I should have thought it might ordinarily be better to allege the two conjunctively instead of disjunctively. This usage is hallowed by antiquity. There are early examples of pleadings where “or” in the statute is changed to “and” in the information; see the Crown Circuit Companion (1790) pp. 149-151. I am, of course, referring to what I consider to be the proper method of pleading in the abstract, not to any laxity allowed by statute.
[41] Romeyko v Samuels (1972) 2 SASR 529, 545, 552 (Bray CJ, with whom Bright and Sangster JJ agreed).
Bray CJ held that “the pleader faltered”.[42] There was, on the evidence, no occasion to refer to “marks or designs” in addition to “words”. Only words were relevant. Likewise, having regard to the words used, there was no intention to allege blasphemous or libelous words. Rather, the pleader intended, and should only have pleaded, that the defendant “knowingly sent by post a postal article which had therein words of an indecent, obscene and grossly offensive character”.[43] The use of the disjunctive “or” in the complaint was inappropriate:[44]
Probably, in strictness, counts improperly joined conjunctively are bad for duplicity and counts improperly joined disjunctively are bad for uncertainty; see Bastin v. Davies, per Lord Goddard C.J. at p. 581. So, in more recent times in England, it has been held that a charge of driving recklessly and negligently and at a speed dangerous to the public is good (at least, as I held in Timms v. Van Diemen, when only one act of driving is in question), but a charge of driving recklessly or negligently or at a speed dangerous to the public is bad (see the cases summarised by R. v. Clow). The question of one or more offences and the question of disjunctive joinder are liable to be confused. When Avory J. said in R. v. Surrey Justices; Ex parte Witherick, in a passage much criticised by Mr. Cox, that if a person may do one thing without the other an information which charges him in the alternative is bad, he may have had in mind the question of disjunctive joinder rather than the question of whether the statute created more than one offence.
Nevertheless, there is some, though scanty, authority for the view that a disjunctive joinder is bad even in the case of a single offence which may be committed in any of several different ways (Smith v. Perry, per Lord Alverstone C.J. at p. 265), unless, of course, the word “or” is not a true disjunctive but is to be read as meaning “otherwise called” (R. v. Hall). It is nothing to the point that disjunctive joinders in complaints, and indeed in convictions, have often passed per incuriam when the point has not been raised.
[42] Romeyko v Samuels (1972) 2 SASR 529, 553.
[43] Romeyko v Samuels (1972) 2 SASR 529, 553 (emphasis added).
[44] Romeyko v Samuels (1972) 2 SASR 529, 553-554 (Bray CJ, with whom Bright and Sangster JJ agreed).
The conviction that was overturned in Romeyko v Samuels was regarded as unsafe because the proceedings were thought to have miscarried in a number of respects, not confined to the form of the complaint. These included the refusal to order particulars, the failure by the prosecution to supply adequate particulars and, importantly, the form of the ultimate finding which incorporated the use of the word “or”, making it quite unclear what the trial Magistrate had actually found. In addition, there were misgivings expressed about what might be described as an ostensible bias issue, whether the trial Magistrate had applied the correct test when determining guilt and whether the relevant words were capable of coming within the statutory proscription of being “indecent”, “obscene” and “grossly offensive” having regard to prevailing community standards:[45]
… the trial miscarried. I do not think that a new trial should be ordered. The defendant has been put to the trouble, expense and peril of a trial and two appeals. He has been subjected to a compulsory psychiatric examination and has suffered the indignity of detention in custody for a few hours. All he has done, in my view, is to let off a certain volume of malodorous steam which has done no real harm to anyone. Enough is enough. But since Mr. Wilson’s attitude has been so clearly defined, the defendant would be well advised to leave him off his mailing list in the future or a subsequent charge of sending a postal article of a grossly offensive character might have some prospects of success.
[45] Romeyko v Samuels (1972) 2 SASR 529, 566-567 (Bray CJ, with whom Bright and Sangster JJ agreed).
Nonetheless, the Full Court seems to have decided that the complaint only charged one offence, concerning one act, although the requisite words might have been characterised in a number of the ways proscribed by the relevant statute, that is, “the act under consideration … possesses one or several of such characteristics”.[46]
[46] Romeyko v Samuels (1972) 2 SASR 545, 552 (Bray CJ, with whom Bright and Sangster JJ agreed).
The complaint was ultimately bad, not because it was duplicitous, but probably because it was uncertain.[47] However, even then the complaint or the conviction or both might have been cured but for the uncertain terms in which the ultimate finding of guilt was made: “[a]t the end I am left in doubt what he really meant to find”.[48]
[47] Romeyko v Samuels (1972) 2 SASR 545, 553 (Bray CJ, with whom Bright and Sangster JJ agreed).
[48] Romeyko v Samuels (1972) 2 SASR 545, 555-557 (Bray CJ with whom Bright and Sangster JJ agreed).
When Bray CJ referred to the “laxity allowed by statute”, in Romeyko v Samuels,[49] he was drawing a distinction between the common law which he described in some detail and the effect of various provisions of the former Justices Act 1921 (SA). Some of these provisions have been recast and may now be found in the Criminal Procedure Act 1921 (SA). Examples include ss 76B, 181 and 182 of the Criminal Procedure Act 1921 (SA), which may be compared with ss 182 to 185 of the former Justices Act 1921 (SA) which were considered by Bray CJ and Sangster J in Romeyko v Samuels.
[49] Romeyko v Samuels (1972) 2 SASR 545, 552 (Bray CJ with whom Bright and Sangster JJ agreed).
To this point, some similarities between the complaint considered in Romeyko v Samuels and the complaints pleaded in this case can be seen.
Counts 5 to 27, which are the subject of this first appeal ground, simply restate as particulars a portion of the Act (s 13(3)(b)(i)), including the Act’s use of the disjunctive, “or”: viz, “… being the owner of the animal … fails to provide it with appropriate, and adequate, food, water, living conditions (whether temporary or permanent) or exercise”.[50]
[50] Animal Welfare Act 1985 (SA), s 13(3)(b)(i).
This technique was adopted notwithstanding that the case was narrowed to living conditions and water. Why the complaint was not amended to remove the superfluous particulars, at least once the ambit of the prosecution case was narrowed at the time of the “no case” submission, is unclear. It is of course also unclear whether the pleader had access to the proofs by which evidence was ultimately led from the respondent’s witnesses and which required that the case be narrowed to inappropriate and inadequate living conditions and water.
Nonetheless, and subject to what I shall say about whether the counts were duplicitous in form, there does not appear to have been any unfairness or prejudice to the appellant by reason of these matters, and the basis upon which she was convicted was clearly identified by the trial Magistrate.
The respondent contended on appeal that this case can be distinguished from Romeyko v Samuels because the pleaded characteristics in that case comprised “elements of the offence” and so, it was said, this case is “one step removed” from that case. I reject that contention. One must start with the statute. The statute creates the offence of “ill-treatment” of an animal at s 13(2) and then defines the many ways or limbs by which that might be demonstrated in s 13(3), including the limb relied on in this case, s 13(3)(b)(i). Though these limbs are definitional, they are not exhaustive, “[w]ithout limiting the generality …”.[51] As in Romeyko v Samuels the pleader drew on the statute in order to particularise the offending.
[51] Animal Welfare Act 1985 (SA), s 13(3).
However, unlike Romeyko v Samuels, this case is not concerned with a single act which may have a number of characteristics. Rather, the counts in this case were each concerned with what might be characterised as proscribed conduct, or a proscribed state of affairs, or a proscribed activity, being “ill-treatment”. This “ill‑treatment” was alleged to have been brought about by various particularised acts or omissions being, ultimately, inappropriate and inadequate living conditions and water in respect of each dog, having regard to the proved conditions of each of the pens in which the various dogs were kept. Accordingly, this case concerned what Gaudron and Gummow JJ had described in Walsh v Tattersall as:[52]
… an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond.[53] There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact suffices by itself.
[52] Walsh v Tattersall (1996) 188 CLR 77, 91 (Gaudron and Gummow JJ) and 107-108 (Kirby J) (citation omitted): “conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment and trafficking in drugs”.
[53] Loftus v Woodworth [1936] VLR 279.
The issue of duplicity was again considered by the Full Court of this Court in Brinkworth v Dendy.[54] The appeal challenged the counts in two of three complaints as duplicitous where it was alleged that the defendants had cleared native vegetation from land, contrary to s 26 of the Native Vegetation Act 1991 (SA). The relevant allegation which was attacked as duplicitous was expressed as follows:
Native vegetation was cleared from 27 separate areas of the subject land. The total of all areas cleared was 7.32 hectares.
[54] Brinkworth v Dendy (2007) 97 SASR 416 (Doyle CJ, with whom Debelle and Anderson JJ agreed).
The duplicity argument was based on a concession by the prosecutor that a separate charge could have been laid in respect of each of the 27 areas alleged to have been cleared. The prosecution case was based on aerial photographs showing areas within a large fenced paddock and the fact that native vegetation could be seen in the paddock before 22 March 2002, but not after 1 November 2002. Doyle CJ explained that “[t]he relevant principles are clear enough” but:[55]
The difficulty with the principles lies in their application to the facts in a case like this. It is attributable to the difficulty (perhaps impossibility), of producing “a technical verbal formula of precise application which constitutes an easy guide … as to whether the common law rule has been infringed”: Stanton v Abernathy (1990) 19 NSWLR 656 at 666 Gleeson CJ, cited by Kirby J in Walsh v Tattersall (at 108).
[55] Brinkworth v Dendy (2007) 97 SASR 416, [25]-[26] (Doyle CJ, with whom Debelle and Anderson JJ agreed).
Doyle CJ emphasised that the statute in that case was concerned with “clearance” and this necessarily involved a number of steps as well as many different plants, amounting to what he described as “a single activity of clearance”:[56]
In short, once it is accepted (as it must be) that a charge of clearing native vegetation can be laid alleging the clearance of an area containing native vegetation (and not identifying individual plants), it must follow that a charge in that form is not on its face bad for duplicity merely because the particulars disclose that the native vegetation was not scattered across the whole of the area, but was found in a number of separate locations within the area.
…
As Gleeson CJ said in Stanton v Abernathy, there is no verbal formula which will give an easy guide. And, as Kirby J said in Walsh v Tattersall

(at 107), what is presented to the court is a question of fact and degree for decision in each case.
To so conclude is not to abandon the rule against duplicity. It is to recognise that because a charge may properly be laid alleging the clearance of native vegetation from an area of land, the question of whether a charge so laid is duplicitous is unlikely to be able to be decided by reference to the form of the charge, and will turn upon whether, when the relevant circumstances are known, a consideration of the area identified and the other circumstances discloses that the conduct alleged cannot be regarded as one or a single activity of clearance.
[56] Brinkworth v Dendy (2007) 97 SASR 416, [38], [42]-[43] (Doyle CJ, with whom Debelle and Anderson JJ agreed).
This left open the possibility of latent duplicity, depending upon whether the evidence showed one or more activities of clearance.[57] In the course of his concurrence, Debelle J explained:[58]
While easy to state, the rule against duplicity may on occasions be difficult to apply. The rule is that no one count in an indictment should charge the defendant with having committed two or more separate offences. The rule is grounded on a basic consideration of fairness, namely, that an accused should know what case he has to meet: S v The Queen (1989) 168 CLR 266 at 285. The rule is to be applied in a practical, rather than a strictly analytical way: Director of Public Prosecutions v Merriman [1973] AC 584 at 607 per Lord Diplock. There is no technical verbal formula of precise application which constitutes an easy guide as to whether the rule against duplicity has been infringed: Gleeson CJ in Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 at 666 applied by Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 108. The court has a discretion. Subject to the individual circumstances of each case, it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act: Director of Public Prosecutions v Merriman (at 593) per Lord Morris. For the reasons which follow, the appellants’ contention that the complaint was bad for duplicity failed to have adequate regard to the nature of the offence constituted by s 26 of the Native Vegetation Act 1991 (SA).
[57] Brinkworth v Dendy (2007) 97 SASR 416, [48]-[51] (Doyle CJ, with whom Debelle and Anderson JJ agreed).
[58] Brinkworth v Dendy (2007) 97 SASR 416, [55] (Debelle J).
Relatively recently, the Full Court again considered duplicity in Dietman v Feast,[59] and discussed Romeyko v Samuels and Brinkworth v Dendy in the context of offences against the Fisheries Management Act 2007 (SA). Kourakis CJ emphasised that the analysis of duplicity is not made in the abstract and must be undertaken by reference to the relevant statutory offence. The Chief Justice held:[60]
[59] Dietman v Feast (2016) 126 SASR 165, [88]-[99] (Kourakis CJ, with whom Blue and Stanley JJ agreed).
[60] Dietman v Feast (2016) 126 SASR 165, [71], [100]-[101] (Kourakis CJ, with whom Blue and Stanley JJ agreed).
On a literal construction of s 120(3) of the Act, the elements of the offence it enacts are:
(1) the defendant is the registered owner of a boat, and
(2) the boat is used in, or in connection with, the commission of an offence
against the Act.
…
The decision of the judge that the counts charged in this matter were bad for uncertainty and duplicity was premised on his Honour’s construction of s 120 of the Act to the effect that the identity of the offender against s 71 of the Act was an element of the s 120 offence. For the reasons I have given, that construction of s 120(3) is erroneous.
Section 120(3) of the Act creates a single offence. An offence against s 120(3) of the Act is committed by the use of a single registered boat in or in connection with a single offence against another provision of the Act. To allege in the one count of an offence against s 120(3) of Act that the boat was used to commit offences against several different provisions of the Act, whether conjunctively or disjunctively, would be bad for duplicity. However, on each of the counts of which the respondent was convicted in the Magistrates Court, only one referential offence is alleged with respect to a single occasion of offending.
In this case each count was concerned with only one dog and it was supported by particulars concerning what was alleged to be the ill‑treatment of that dog, drawing on one provision of the Act. There was no room for confusion about which limb of s 13(3) was relied on for the purposes of s 13(2) of the Act. In my opinion, this case concerns what was described in Walsh v Tattersall as “a course of conduct or state of affairs”[61] and in Brinkworth v Dendy as “an activity”, that is “ill-treatment” under s 13(2) of the Act, which was particularised and proved by evidence of inappropriate and inadequate living conditions and water on 3 May 2017.
[61] Walsh v Tattersall (1996) 188 CLR 77, 91 (Gaudron and Gummow JJ).
Accordingly, the counts were not duplicitous on their face merely because they were particularised by reference to various matters, each of which depended upon, or were the result of, various acts and omissions. I am reinforced in my preliminary view earlier outlined. These particulars did not comprise separate charges. They furnished the basis for a finding of guilt regarding a single offence on each count that there was “ill-treatment” of each animal contrary to s 13(2) of the Act. That conclusion is not altered by the fact that some of the particulars were superfluous and, ultimately, neither pressed nor proved.
These counts were not bad for latent duplicity, either, because those same particularised matters, although proved by reference to each pen in which a number of dogs were kept, separately applied to each specified dog. Ultimately, each count concerned the same proscribed conduct, or state of affairs, or activity, but in respect of each dog under each count, being “ill-treatment” on or about 3 May 2017.
I reject the complaint of duplicity concerning counts 5 to 27.
Appeal ground 2 — the warrant
By this ground the appellant complains that the Magistrate erred in the exercise of his discretion by failing to exclude the evidence obtained during the search of the premises.
The appellant in fact contended in her outline on appeal that there was an error of law rather than an erroneous exercise of discretion. Given this way of putting the case, if there had been an error of law and the warrant should have been found to be invalid, or associated with impropriety, there would then be a question whether the discretion described in Bunning v Cross should have been exercised so as to exclude the evidence obtained under the warrant.[62]
[62] Bunning v Cross (1978) 141 CLR 54, 74-75 (Stephen and Aickin JJ) citing Wendo v The Queen (1963) 109 CLR 559, 562 (Dixon CJ).

The objection made by the appellant at the trial, and determined against her on the voir dire, was that the warrant was invalid because it did not contain the Magistrates Court seal. In addition, the appellant maintained that Inspector Doudle, who obtained and held the warrant, acted improperly and not in good faith in applying for the search warrant because she had no intention of conducting an inspection and, only after then determining the conditions, deciding what she would do. The appellant maintained that, under cross-examination, Inspector Doudle admitted that she had “pre-determined that she was going to enter my property to seize my animals” and that this was reflected in emails exchanged within the respondent before the inspection which were headed “planned seizure”.
The appellant relied upon Corbett v New South Wales for the proposition that there needed to be strict compliance with the legislation under which the warrant was issued.[63] The appellant also relied upon what was said by the High Court in George v Rockett:[64]
A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property.
[63] Corbett v NSW [2006] NSWCA 138. Although the High Court allowed an appeal, finding that there was no invalidity, New South Wales v Corbett (2007) 230 CLR 606.
[64] George v Rockett (1990) 170 CLR 104, 110 (the Court).
One might add the recent decision of the High Court in Smethurst v Commissioner of Police (Cth) where a warrant was invalidated by a misstatement of the substance of s 79(3) of the Crimes Act 1941 (Cth) as well as by the failure to state the offence to which it related with sufficient precision. Nonetheless, by a majority, that which was taken under the authority of the invalidated warrant was not to be returned.[65]
[65] Smethurst v Commissioner of Police (Cth) (2020) 94 ALJR 502.
This issue was canvased at some length by the trial Magistrate.[66] The trial Magistrate found on the voir dire that the Magistrates Court seal did not appear on the warrant, which was exhibit P3. The Magistrate also found that there were two red “original” stamps on the top-right corner of the warrant (one of which covered a red “copy” stamp) and that it was executed (signed) in green pen by a Magistrate within the Adelaide Magistrates Court. That earlier Magistrate did not print a name upon the warrant.
[66] Reasons [61]-[75].
The trial Magistrate found that there was no legal requirement that the warrant contain the Magistrates Court seal upon it. He referred to the absence of any requirement in the Act, as well as in the Magistrates Court Act 1991 (SA), the rules of the Magistrates Court or any relevant practice direction that a warrant under the Act be stamped with the seal of the Court.
The Magistrate found that the warrant was “valid on its face”.
Accordingly Inspector Doudle, and such others as that inspector considered necessary to exercise the powers conferred by s 31(1)(a) of the Act, were authorised to enter the appellant’s property and exercise the powers available to them under the Act. On the Magistrate’s findings, neither Inspector Doudle nor the veterinarian or other RSPCA officers who attended could be regarded as trespassers.
It followed, the trial Magistrate found, that any evidence obtained, whether by seizure, photographs and video recording or interview, was not obtained unlawfully. Accordingly, no question of the application of any discretion, such as that described in Bunning v Cross, applied.[67] The trial Magistrate said, in effect, that there had been no impropriety or illegality by the RSPCA.
[67] Bunning v Cross (1978) 141 CLR 54.
The trial Magistrate made further specific findings that the interview of the appellant on video and audio during the attendance was preceded by a caution at the accusatory stage but the appellant chose to answer questions. The trial Magistrate also found that the appellant clearly understood English throughout the course of the trial and, at one point, admitted “I confirm I do understand and speak English quite properly”.[68]
[68] Reasons [74].
Accordingly, the trial Magistrate admitted the evidence challenged on the voir dire as part of the trial.
This review of the Magistrate’s reasons demonstrates that there was no purported exercise of any discretion. There was a challenge to the propriety of the warrant and the Magistrate ruled that the warrant was valid. Likewise, the challenge to the exercise of power under the warrant was rejected.
The appellant has not identified any particular statute, provision or principle which applies so as to suggest invalidity of the warrant because it was not sealed by the issuing Court.
The requirement for a seal can be traced to the common law’s ancient concern with the means by which acts, agreements or processes of various kinds could be authenticated. For example, in the realm of company law, the use of the company’s seal was the “expression of the body corporate itself”:[69]
The seal alone is the unequivocal and original external expression of the body corporate itself. When it appears, there is some evidence, independently of human action, of a corporate mental act. It is the common seal which provides the first basis for saying, in relation to the early registered companies, that an outsider is entitled to infer internal regularity—to presume that that was regularly done, which might, consistently with certain public documents, have been regularly done. Historically, it was the positive corporate seal rule at common law which was applied to the registered company in Turquand’s case.
(Footnote omitted.)
[69] K E Lindgren, ‘The Positive Corporate Seal Rule and Exceptions Thereto and The Rule In Turquand’s Case’ (1973) 9 Melbourne University Law Review 192, 219 cited in Registrar-General v Northside Developments Pty Ltd (1988) 14 NSWLR 571, 587 (McHugh JA): “[a]t common law an individual was prima facie bound by the affixing of his seal. He could overcome the presumption by proving that the seal was affixed by duress, mistake or fraud. But he could not avoid the effect of his seal if he was guilty of negligence”.
In the case of the courts, the affixation of the seal operates as a mode of proving validity and authority. Historically, the Chancellor would affix the Great Seal to original writs and judicial writs from the common law benches, with the exception of writs in relation to the pleas of the Exchequer.[70] The affixation of the Great Seal carried with it the sanction of the sovereign.[71] Eventually, further royal seals were issued to indicate the sovereign’s sanction. The first government department to obtain a royal seal which operated in the same manner as the Great Seal was likely the Exchequer.[72] It was only under the reign of Edward III, in 1344, that the King’s Bench and the Common Bench obtained their own royal seals.[73] Judicial seals have since functioned as a means of authentication and proof of the origin of judicial pronouncements and documents, and accordingly of the valid exercise of judicial power.
[70] B Wilkinson, ‘The Seals of the Two Benches under Edward III’ (1927) 42(167) English Historical Review 397, 398.
[71] Sir William Searle Holdsworth, A History of English Law (Methuen & Co Ltd, 5^th ed, vol 1, 1931) 196-197.
[72] John A McEwan, ‘Does Size Matter? Seals in England and Wales, ca. 1200-1500’ in Laura J Whatley (ed), A Companion to Seals in the Middle Ages (Brill, 2019) 103, 165-166.
[73] B Wilkinson, ‘The Seals of the Two Benches under Edward III’ (1927) 42(167) English Historical Review 397, 398-399.
Whilst one might assume that a warrant issued with the authority of the Magistrates Court pursuant to s 31D of the Act should bear the seal of the Magistrates Court, that is not explicitly required. As will be seen, though the Magistrates Court Act 1991 (SA), and various rules and practice directions made under that Act, each assume that there is a “seal of the Court” and that it may be affixed to various documents, or that these may be “authenticated by specified electronic means rather than having the seal physically affixed”,[74] there is no explicit requirement that the seal of the Magistrates Court must be affixed to a warrant under the Act. The only statutory requirement is, by s 31D(4)(f) of the Act, that “the warrant is to be taken to have been issued, and comes into force, when signed by the magistrate”.
[74] Magistrates Court Rules 1992 (SA), r 3.04.
On the findings by the trial Magistrate, that was done in this case. Exhibit P3, on its face, was signed by a Magistrate on 28 April 2017 and stamped by the “Adelaide Magistrates Court” as the registry of issue.
Section 6 of the Magistrates Court Act 1991 (SA) provides that the Court “will have such seals as are necessary for the transaction of its business” and that a “document apparently sealed with a seal … will, in the absence of evidence to the contrary, be taken to have been duly issued under the authority of the Court”.
Section 49(1)(b) of the Magistrates Court Act 1991 (SA) confers power to make rules regulating the custody and use of seals. Rule 3.01 of the Magistrates Court Rules 1992 (SA) states that the Magistrates Court “shall have a seal bearing the name of the Court”, and by rule 3.03, the seal is to be affixed on such process or orders as the Chief Magistrate may direct. However, under section B, “Rules Relating to the Criminal Jurisdiction”, no explicit provision is made for warrants under the Act. Likewise, under clause 4.01 of the Consolidated Criminal Practice Directions 2015 of the Magistrates Court the obligation that the seal be placed on various types of summons, warrants or orders does not extend to a warrant under the Act.
The warrant relied on in this case was required by s 30(2)(b) of the Act. Section 30 provides:
30—General powers
(1)     An inspector may—
(a)     enter and search and, if necessary, use reasonable force to break into


or open—
(i)    premises or a vehicle to which this section applies; or
(ii)     part of, or anything in or on, premises or a vehicle to which


this section applies; and
(b)give directions with respect to the stopping or movement of a vehicle to which this section applies; and
(c)require a person to produce a document, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process; and
(d)examine, copy or take extracts from a document or information so produced or require a person to provide a copy of any such document or information; and
(e)     take photographs, films or audio, video or other recordings; and
(f)    seize and retain any animal or other thing that the inspector


reasonably suspects has been used in, or may constitute evidence of,


a contravention of this Act; and
(g)identify, by marking, tagging or otherwise, an animal or other property in respect of which powers have been exercised under this Act; and
(h)require a person who the inspector reasonably suspects has committed, is committing, or is about to commit, a contravention of this Act to state the person’s full name and usual place of residence and to produce evidence of the person’s identity; and
(i)require a person who the inspector reasonably suspects has knowledge of matters in respect of which information is required for the administration or enforcement of this Act to answer questions in relation to those matters; and
(j)require a person holding or required to hold a licence, permit or approval under this Act to produce it for inspection; and
(k)give a direction required in connection with the exercise of a power conferred by this Act or otherwise in connection with the administration or enforcement of this Act.
(2)     An inspector—
(a)     may only exercise the powers conferred by subsection (1) as


reasonably required for the administration and enforcement of


this Act; and
(b)may only exercise the power to use force under subsection (1)(a) on the authority of a warrant issued by a magistrate or in circumstances in which the inspector reasonably believes that urgent action is required in order to prevent or mitigate serious harm occurring to an animal.
(3)An inspector may be assisted in the exercise of powers under this Act by such persons as the inspector considers necessary in the circumstances.
(4)An inspector may require an occupier of premises or a person apparently in charge of a vehicle, animal or other thing to give to the inspector or a person assisting the inspector such assistance as is reasonably required by the inspector for the effective exercise of powers under this Act.
…
It can be seen that an inspector is authorised by s 30(1)(a) to “enter and search and, if necessary, use reasonable force to break into” premises only if the exercise of these powers is “reasonably required for the administration and enforcement of this Act”[75] and, where the power to use force under s 30(1)(a) is exercised, that is done “on the authority of a warrant issued by a magistrate or in circumstances in which the inspector reasonably believes that urgent action is required in order to prevent or mitigate serious harm occurring to an animal”.[76]
[75] Animal Welfare Act 1985 (SA), s 30(2)(a).
[76] Animal Welfare Act 1985 (SA), s 30(2)(b).
As a corollary, an inspector may by s 30(1)(f) “seize and retain any animal or other thing that the inspector reasonably suspects has been used in, or may constitute evidence of, a contravention of this Act”.
In addition, an inspector may by s 31A(1)(c) “seize and retain the animal for treatment and care” where the inspector has examined an animal and its living conditions and “suspects on reasonable grounds that the animal is suffering or may if urgent action is not taken suffer unnecessary harm”.
In the circumstances of this case, no seal was required on the warrant and, by virtue of s 31D(4)(f) of the Act, the warrant was valid and effective when signed by a Magistrate.
I now turn to the contention that the warrant was not obtained or used in good faith or in accordance with the Act. When one considers the evidence given by Inspector Doudle, two features are clear. The first is that the email correspondence on which the appellant relies was not tendered by her and did not emanate from the respondent. In the circumstances, it is difficult for the appellant to show a failure to exercise properly the powers and discretions conferred by the Act for, as Inspector Doudle explained:
The headline ‘planned seizure’ was not from the inspectorate as far as I was aware there had been an earlier complaint made. There have - I know over time when I was doing research and planning to attend your property that there had been many other reports that had come in about animals that you have sold that we haven’t attended. I had not dealt with that property before. The inspectorate would not say ‘planned seizure’ or ‘planned seizure of animals’. We had planned the operation to attend and that headline was not from the inspectorate.
The second feature is that it was never put to Inspector Doudle that she in fact had a pre-conceived plan to seize animals regardless of what she discovered during her attendance on 3 May 2017. Rather, and as the respondent contends, the evidence showed that the attendance was made as the result of complaints received and there was planning, including by obtaining a warrant, to cover a range of potential outcomes. That there were around 80 dogs on the property, and not all were taken, demonstrated, it was submitted, that those attending exercised the judgement and decision-making required under the Act. As the Magistrate found:[77]
Ms Doudle denied any ulterior motive in obtaining the warrant and its execution or any subsequent investigation. Ms Doudle gave evidence in a calm manner and seemed unsurprised by this allegation. Having heard all the evidence both for the prosecution and defence, I find Ms Ryan’s attack upon Ms Doudle to be without any hint of foundation.
[77] Reasons [96].
The argument that the warrant was not obtained, or used, in good faith must be rejected. Insofar as there is said to be an error of law associated with the finding that the warrant under the Act was valid, I have rejected that contention.
Insofar as there is said to have been a flawed exercise of discretion, the Magistrate did not purport to exercise any discretion. Having said that, it is difficult to see how any exercise of the discretion recognised in Bunning v Cross[78] would have required the exclusion of the evidence which was taken in the circumstances proved before the trial Magistrate.
[78] Bunning v Cross (1978) 141 CLR 54.
I reject appeal ground 2.
Appeal ground 3 — the appellant’s evidence
The appellant complains that the Magistrate failed to give proper weight to her evidence.
In the course of a very carefully prepared set of reasons the trial Magistrate was at pains to direct himself about a number of important matters. These included:[79]
1.   In finding facts, I am not bound to accept or reject the evidence of a witness in total. I can accept part of a version told by one witness and part of a story told by another witness even on the opposite side to come to a conclusion and finding of fact. I can accept part of a witness’ evidence, and reject the rest.[80]
2.   An accused person does not have to give evidence on oath to support their own defence. However, if she does so and enters the witness box, she does not have to prove her innocence. …[81]
3.   Where the defendant has put herself forth as a witness she is to be assessed as any other witness and is not to be given any consideration different from that.[82]
4.   Her evidence is to be assessed as any other witness and if I believe the evidence of the accused, I must acquit. Secondly, if I have difficulty accepting the evidence of the accused, but think it might be true, I must acquit. Third, if I do not believe the accused, then I should put her testimony to one side. The question will remain however, has the Crown, upon the basis of evidence that I accept, prove the guilt of the accused beyond a reasonable doubt?[83]
[79] Reasons [21]-[36].
[80] Reasons [31].
[81] Reasons [33].
[82] Reasons [34].
[83] Reasons [35] (emphasis in original).
It might be said, with respect, that the first and second sentences in the fourth of the directions set out above did not necessarily meet all of the issues that arose on the evidentiary contest in this case. Having said that, it was nonetheless entirely appropriate for the trial Magistrate to direct himself formally in these terms.
The strength of the respondent’s case really lay in the objective record provided by the video and photographs which depicted the condition of the animals, and the pens in which they were kept, during the attendance on 3 May 2017. On this evidence, it may not have mattered whether the Magistrate did believe the appellant’s evidence. Of course, as it turned out, the appellant made various concessions under cross-examination which were not only accepted, but which were probative of her guilt. I refer by way of example to the passage set out at paragraph 26 of these reasons. Quite apart from the objective evidence to which I have referred, there was also expert opinion evidence (summarised below). To some extent that conflicted with the appellant’s evidence, but in other respects that expert evidence stood alone.

In so far as some findings depended upon the resolution of a direct clash between the oral evidence called by the parties, the approach of the High Court as described in Johnson v The Queen could be applied:[84]
The jury was correctly directed to consider each count separately; that it was not incumbent on the appellant to prove anything; and that if it did not accept his evidence in some respects, or at all, it did not follow that he should be found guilty of the charge under consideration. Consistently with those directions, the jury must have been satisfied of the truthfulness and reliability of VW’s account of each of the offences. Necessarily, that satisfaction required the jury to exclude the reasonable possibility that the appellant's evidence in respect of each offence was true.
[84] Johnson v The Queen (2018) 266 CLR 106, [63] (the Court).
That is not simply a direction based on what Wells J described in R v Calides:[85]
As the former Chief Justice, Sir Mellis Napier, used to say many times in this Criminal Court, [in cases where there are two versions of events] … there are really, for all practical purposes, three possibilities: the jury may be completely satisfied with the evidence led from the Crown, in which case, assuming all other matters to be properly established, the verdict will be guilty; the jury may be perfectly satisfied with the version presented by the accused, in which case there will inevitably be a verdict of not guilty; and there is a third possibility, which must never be overlooked, and that is that the jury, after a full and careful consideration, may arrive at the result that they are unable to say where the truth lies, or that they are unable to say who is telling the truth. If that is the situation then, of course, the verdict must also be not guilty.
[85] R v Calides (1983) 34 SASR 355, 358-359.
It is much closer to what Brennan J (with whom Deane J agreed) explained in Liberato v The Queen:[86]
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification”.
[86] Liberato v The Queen (1985) 159 CLR 507, 515. On whether a Liberato direction is required as a matter of law in every case of conflicting testimony, see R v Smith [2008] SASC 135, [11]-[12] (Doyle CJ, with whom Anderson and David JJ agreed); R v Molloy (2008) 102 SASR 452, [4]-[5] (Anderson J); Azarian v Western Australia (2007) 178 A Crim R 19, [110] (Miller JA); Salmon v The Queen [2001] WASCA 270; Leyshon v Western Australia [2006] WASCA 132; Koushappis v WesternAustralia (2007) 168 A Crim R 51.
That is to say, simply asking “who is to be believed?” does not determine guilt. [87] In order to determine guilt in a case involving a direct conflict in testimony, even if the trier of fact disbelieves an accused[88], the trier of fact must still consider whether there is otherwise proof of guilt beyond reasonable doubt.[89]
[87] R v Lavery (2013) 116 SASR 242, [41]-[55] (Nicholson J, with whom Kelly and Peek JJ agreed).
[88] Beyond reasonable doubt, DL v The Qu4en (2018) 266 CLR 1, [85] (Bell J).
[89] R v Lavery (2013) 116 SASR 242, [50] (Nicholson J, with whom Kelly and Peek JJ agreed).
There can be no suggestion that the Magistrate misunderstood his task, or that he overlooked the burden of proof, when addressing the appellant’s evidence.
The trial Magistrate observed that, in closing submissions, the appellant spoke of “victimisation” as well as “pre-planning to steal her dogs”. She mounted an attack on the credit of all witnesses called as part of the respondent’s case. The trial Magistrate emphasised that his judgment was far lengthier then it might otherwise have been, so as to consider everything the appellant raised and to explain his decision.[90] The trial Magistrate did so having formed a seriously unfavourable view of the appellant’s evidence:[91]
I find that Ms Ryan was an unreliable witness who would embellish her evidence to suit the topic and in her favour. However, taking the position soon unravelled in cross examination and when considering the whole of the evidence. In my view, Ms Ryan has no credit as a witness and lied to the court on a number of topics, but especially about walking the dog Heyley on 3 May 2017.
[90] Reasons [202].
[91] Reasons [201]. See also [18], [97] and [191].
Respectfully, it may be doubted whether it really was necessary to make a broad finding that the appellant “lied to the court on a number of topics”. In Smith v NSW Bar Association Deane J cautioned:[92]
There are many circumstances in which a trial judge — and the Court of Appeal in the present case was effectively sitting as a court of first instance — is required to consider whether a party or a witness has been deliberately untruthful in the course of giving evidence before it. An obvious example of such a case is where there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake. Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made.
[92] Smith v NSW Bar Association (1992) 176 CLR 256, 271 (Deane J).
In many cases it will be sufficient to identify the specific conflict between the evidence of the defendant and prosecution witnesses, and then briefly explain why the evidence of one party is preferred and the evidence of the other is rejected.[93] In many cases it will not be necessary to take the further step of finding that there was deliberate deceit when giving evidence on a particular topic, or generally. However, whether a finding of dishonesty in the giving of evidence is necessary will invariably depend on the particular circumstances of any case.[94]
[93] DL v The Queen (2018) 266 CLR 1, [82] (Bell J).
[94] See generally, DL v The Queen (2018) 266 CLR 1, [32]-[33] (Kiefel CJ, Keane and Edelman JJ), [130]-[131] (Nettle J).
Nonetheless, this was not a criticism made on this appeal. The appellant simply urged that the Magistrate should have preferred her evidence. It is well accepted that an appeal court must exercise restraint when asked to consider setting aside a trial Judge’s finding of fact based upon the credibility of a witness. As was recently emphasised in State of Queensland v Masson:[95]
A good deal has been said by this Court about the propriety of an appellate court setting aside a trial judge’s finding of fact based on the credibility of a witness.[96] For present purposes, it is enough to repeat the observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy[97] that, at least where the trial judge’s decision might be affected by his or her impression about the credibility of the witness, whom the trial judge sees and hears but the appellate court does not, the appellate court must respect the attendant advantages of the trial judge. If, making proper allowance for such advantages, the appellate court concludes that an error has been shown, it is authorised and obliged to discharge its appellate duties in accordance with the statute conferring appellate jurisdiction.[98] In particular cases, it may be demonstrated that the trial judge’s conclusions are erroneous, despite being based upon or said to be based upon an assessment of credibility. That will be so where the trial judge’s findings of fact are contrary to “incontrovertible facts or uncontested testimony”[99], “glaringly improbable”[100], or “contrary to compelling inferences”.[101] But where, as here, that is not so, it is no justification for appellate intervention that the appellate court might consider that the trial judge did not give sufficient weight to matters that the appellate court considers assist the plaintiff’s case. In this matter, it was not open to the Court of Appeal to reject the primary judge’s analysis of Mr Peters’ oral evidence.
[95] State of Queensland v Masson (2020) 94 ALJR 785, [119] (Nettle and Gordon JJ).
[96] See, eg, Edwards v Noble (1971) 125 CLR 296, 308-309 (Menzies J); Jones v Hyde (1989) 63 ALJR 349, 351-352 (McHugh J, with whom Brennan, Deane, Dawson and Toohey JJ agreed); Abalos v Australian Postal Commission (1990) 171 CLR 167, 179 (McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed); Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ) and 482-483 (Deane and Dawson JJ); Fox v Percy (2003) 214 CLR 118, [26], [29] (Gleeson CJ, Gummow and Kirby JJ), and [65]-[93] (McHugh J); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, [43] (the Court); Lee v Lee (2019) 93 ALJR 993, [55]-[56] (Bell, Gaegler, Nettle and Edelman JJ).
[97] Fox v Percy (2013) 214 CLR 118, [26]-[29].
[98] Warren v Coombes (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs and Murphy JJ).
[99] Fox v Percy (2003) 214 CLR 118, [28] (Gleeson CJ, Gummow and Kirby JJ).
[100] Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842, 844 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ).
[101] Chambers v Jobling (1986) 7 NSWLR 1, 10 (Kirby P) and 20 (Samuels JA).
Absent demonstrable error of the kind described on many occasions by the High Court, it is not open to this Court on appeal to disregard the adverse credit findings made by the trial Court. Though it is true that this consideration is “not necessarily decisive, still less determinative” of an appeal,[102] the appellant is unable to point to any matter which warrants appellate intervention.
[102] Holberry v Police [2020] SASC 62, [4] citing Fox v Percy (2003) 214 CLR 118, [31]-[32] (Gleeson CJ, Gummow and Kirby JJ) and Pell v The Queen (2020) 94 ALJR 394, [37]-[38] (the Court).
For example, appellate intervention may be warranted where the credit findings are inconsistent with other evidence which was accepted, or where the evidence of the witness who was disbelieved is supported by other evidence which is “incontrovertible … or uncontested”. As Kirby J explained in CSR Ltd v Della Maddalena:[103]
It may sometimes justify reversal of a decision by a primary judge who has “failed to use or has palpably misused his advantage” or where “incontrovertible facts or uncontested testimony” demonstrates the findings to be erroneous; or where they are “glaringly improbable” and “contrary to compelling inferences”.[104]
[103] CSR Ltd v Della Maddalena (2006) 80 ALJR 458, [21]-[22] (Kirby J, with whom Gleeson CJ agreed).
[104] Fox v Percy (2003) 214 CLR 118, [28]-[29], [66] and [148]. Cases treated as turning on credibility findings include Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306; Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599.
There is nothing glaring or improbable about the prosecution evidence, and there is nothing to which the appellant has invited attention which demonstrates that the adverse findings were made contrary to incontrovertible or uncontested or otherwise compelling objective evidence.[105]
[105] State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306.
On the contrary, in addition to the objective evidence produced in support of the prosecution case, the trial Magistrate was impressed by the witnesses called as part of the respondent’s case:
1Before the trial Magistrate Inspector Cheryl Doudle gave evidence of observations of the appellant’s property on the day of the search, including about the enclosures housing the many Pomeranian dogs the subject of counts 5 to 27. She described her observations of the problems suffered by the German Shepherds the subject of counts 1 to 4 in connection with their mobility. Inspector Doudle was found to be honest and credible who gave impartial evidence which was accepted.[106] The appellant’s attack upon her was found to be without “any hint of foundation”.[107]
2Dr Chelsea Smart was a veterinarian employed by Yorke Peninsula Vets who also attended the appellant’s property on the day of the search. She described the four German Shepherds the subject of counts 1 to 4 suffering from varying levels of lameness. She told the Court that it was her decision to euthanise Heyley. The witness Smart was found to be a credit‑worthy witness. She held sufficient experience and expertise as a veterinarian to warrant acceptance of every aspect of her evidence as being “truthful, honest and objective”.[108]
3Dr Emma Kilgour (at times referred to as Emma Clough) was a veterinarian previously employed by the RSPCA. She described the treatment she gave to the 26 dogs following their seizure and which were the subject of counts 2 to 27. She performed a post mortem on the four German Shepherds that needed to be euthanised and she gave detailed evidence about their condition and her treatment of each of the dogs. The witness Kilgour was regarded as having given evidence in a “forthright and professional manner” which left “no doubt as to her expertise, experience and diagnoses”.[109]
4Dr Bradley Ward was a senior veterinary surgeon employed by the RSPCA. He gave opinion evidence about the inadequacy of the living conditions for the Pomeranian dogs the subject of counts 5 to 27. His evidence was based upon the photographs that comprised exhibits P4 through to P9. He did not attend the property on the day of the inspection. The witness Ward was found to be “compelling and persuasive” and he gave his evidence in a “professional and forthright manner with no hint of bias or favouritism” with the result that Dr Ward’s evidence was accepted because he was found to be a witness “of great professional integrity and hence, of credit”.[110]
5Mr Ryan Anderson was an inspector previously employed by the RSPCA. He too was at the property on the day of the attendance. The appellant required him for cross-examination. He gave evidence about the chain of evidence as concerned the seized dogs.
[106] Reasons [85]. See also Reasons [133] (living conditions) and [158], [170] defence (water).
[107] Reasons [96].
[108] Reasons [104].
[109] Reasons [173].
[110] Reasons [160].
In my opinion, the appellant has failed to establish any error in connection with the process of fact-finding. It was perfectly open to the trial Magistrate to accept the evidence of the prosecution witnesses and to reject the appellant’s evidence.
The appellant complained that little weight was given to her long experience and expertise with dogs, as well as her intimate knowledge of her own dogs. However, even if that were so, the appellant has not explained how or why that has led to error.
Counts 5 to 27 — ill-treatment of the 23 Pomeranian dogs
In so far as the appellant emphasised that she believed the Pomeranian dogs were generally “well”, there was no issue under counts 5 to 27 that the particularised ill-treatment had necessarily caused identifiable “harm”. The question of “serious harm” is an element of the offence under s 13(1) but not necessarily of the offence under s 13(2) of the Act. As has been seen, the s 13(2) case was particularised by reference to s 13(3)(b)(i), and not by reference to s 13(3)(a), which requires proof of “unnecessary harm”, or s 13(3)(c), which concerns proof of “harm” which has been caused but not mitigated.
The appellant complains that the RSPCA case on counts 5 to 27 included allegations that there were bones within the enclosures which contributed to the contention that the living conditions were inappropriate. The appellant contends that this was a “subjective matter” and that the prosecution did not lead “any cogent evidence which demonstrated that the number of bones in the enclosure actually impacted upon the animals detrimentally”. I have already explained that proof of “harm” was not relevant to this part of the case. In so far as the appellant says that she took a different view of what was appropriate and adequate, or that this was a matter of subjective impression, that view of the case is undermined by the concessions she made under cross-examination (earlier set out), and the evidence given by Dr Ward who explained:
The dirty, filthy bones would certainly be a problem for dogs chewing. … Dirt can certainly, is quite a significant abrasive in the oral cavity and can cause gum trauma and excessive teeth wear, both of which conditions were seen in these dogs …
The appellant also complains about the failure to give preference to her evidence on the question whether the dogs were provided with inappropriate and inadequate water. In substance, the appellant contends that the water was not “of such poor quality that I should be held criminally liable”. Nonetheless, the fact remains that the appellant’s evidence was rejected and the evidence of Inspector Doudle was preferred regarding the filthy and unsanitary state of the water seen in the enclosures in which the dogs were held at the appellant’s property. Little need be said about the flea infestations, a comparatively minor issue.[111]
[111] Reasons [129].
Counts 1 to 4 — the lack of veterinary care of the four German Shepherd dogs
The appellant contended that, in connection with counts 1 to 4 regarding the lack of veterinary care of the four German Shepherd dogs, the trial Magistrate failed to find that she had complied with the directions of her veterinary surgeon, Dr Absalom, because she followed his advice and had taken her dogs to the vet within three months of 3 May 2017.
However, this contention represents both an oversimplification and a misunderstanding of the case which was presented at trial. The case the appellant needed to answer was not merely whether, in respect of each German Shepherd dog, she procured some veterinary care. The prosecution case was that she failed to take reasonable steps to mitigate harm by failing to provide adequate and appropriate veterinary care in respect of each German Shepherd dog.
The evidence called by the prosecution started with the condition of the four German Shepherd dogs on 3 May, but extended to the condition of the surviving dogs on 4 May and subsequently.[112] This evidence was relevant as tending to show the condition of the dogs when in the care of the appellant. The investigation and treatment of each dog after 3 May 2017 was relevant because it disclosed that the conditions that required veterinary care were of longstanding (generally six months or longer), that they had not been appropriately investigated and treated, and that this had caused each dog pain and harm which could have been mitigated with appropriate veterinary care.
[112] About which the appellant cross-examined Dr Kilgour, Reasons [124]-[126].
Thus, in the case of the dog Heyley, count 1, the evidence was that she was undoubtedly suffering from a degenerative condition and was very old.[113] She had only three legs. Although there was evidence that Heyley had been seen by the appellant’s veterinary surgeon, Dr Absalom, on 2 March 2017 for the removal of a growth, Dr Kilgour gave evidence that the dog was likely in pain before she died and was unable to use one of her remaining legs because of quite severe degenerative disease. She also had very worn teeth.
[113] Reasons [100]ff.

The veterinary surgeon who took the decision to euthanise Heyley, Dr Smart, explained that Heyley was, in her assessment on 3 May 2017, “four to five out of [five] lame” and did not appear to be able to stand at all. Dr Smart explained that Heyley was not of the appropriate weight for a dog of her size and she lacked appropriate muscle condition. As to the decision to euthanise:
A. I felt that her quality of life was not sufficient. I felt that we were in a position where we couldn’t leave her at the property and we would either have to seize her or euthanise her, but in order to seize her we would somehow need to move her on to the truck and have her transported to Lonsdale and that sort of thing and I felt that all of that stress for her was not fair or right.
Q.What would you regard as appropriate veterinary care for a dog that is in that condition.
A.So a dog in that condition would require ongoing management and assumedly arthritis management and that would be multi-modal treatment, so anti-inflammatories, stronger pain relief, joint supplements … arthritis supplements to ensure that … the dog was having a sufficient quality of life.
On the findings of the Magistrate, none of that veterinary care was procured by the appellant, and there is no suggestion from the appellant, or in the evidence that she led, that it was.
So far as the dog named Nick is concerned, count 2, he was unable to use his hind legs.[114] During the hearing of the appeal before me the appellant suggested that, in fact, Nick was able to use his legs on 3 May 2017. The Court was given an opportunity to view the relevant video footage. The portion of the video footage played for the Court showed that Nick did not use his hind legs, as was explained to the appellant who appeared by telephone.
[114] Reasons [114]ff.
The evidence led by the appellant demonstrated that Nick had been prescribed medication on 2 March 2017, which was to last 28 days. However, there is no evidence of any further care. Dr Smart gave evidence that there was a gait deficit in Nick, and the other German Shepherd dogs, attributable to osteoarthritis: “those dogs were geriatric”.
As with Heyley, the other German Shepard dogs, including Nick, were lacking muscle condition on their hips and hind limbs and back. As with Heyley, Dr Kilgour said that these other dogs required ongoing arthritis management “as I previously described” and “we’d have to assess if their quality of life was improved once that management was started” otherwise “perhaps they would be euthanised”. Again, there was no evidence that appropriate veterinary care of this kind was ever procured. Dr Kilgour gave evidence about Nick as follows:
When Nick was led into the examination room, he was dragging his right hind limb. His right hind paw was knuckling. So normally a dog would walk with his pads to the floor, but this dog had the top of his foot dragging on the floor. He had quite severe reactions on the top of his ears, so lots of skin bleeding and very sensitive flicking ears. We often associate that sort of dermatitis with perhaps an insect bite to the ears. His teeth were quite worn like nearly down to the gumline and he had a couple of lumps on him as well. He had one lump just at the back of his head and one sort of the spine, near his tail. Then we also noticed that on the right hid leg had like quite a bit of muscle wasting on it as well.
Dr Kilgour described that basic neurological tests showed that the dog Nick was unable to move his foot into a normal position. When a pinch test was conducted to see whether Nick could actually feel pain and withdraw his limb, he could not withdraw his limb, indicating that his spinal nerve had been affected. An X-ray confirmed the initial diagnosis of lumbosacral disease, which was painful.
Dr Kilgour expressed the opinion that Nick had been suffering from painful symptoms for at least six months, “if not more”. Dr Kilgour provided pain relief by way of Gabapentin as well as anti-inflammatory medication. Nick was trialled on Tramadol for a week as a form of opioid pain relief. After this, a decision was taken to euthanise Nick because he had lost control of his bowels and both hind legs.
According to Dr Kilgour, on 4 May 2017 Nick required appropriate veterinary care by way of close monitoring and a regular pain regime, presumably, in addition to the matters identified by Dr Smart. There was no suggestion from the defendant that this form of veterinary care was provided.
So far as count 3 and the dog Summer is concerned, the evidence showed that she had been seen by the appellant’s veterinary surgeon between February and March 2017 but her care had not been followed up.[115] According to Dr Kilgour:
The most remarkable thing about her was that she couldn’t use her left hind leg as she walked into the examination room, so she was carrying the left hind leg. As we examined her, we could feel that the knee on that side was very swollen, probably twice its normal size. We couldn’t do any flexion or extension or any kind of examination of that joint because she was too painful.
[115] Reasons [117]ff.
X-rays and blood tests were undertaken by Dr Kilgour and, as Dr Smart indicated, there was severe osteoarthritis. It was necessary to anesthetise Summer as to examine her joints properly which revealed ruptured cruciate ligaments. These required surgery so as to stabilise the joints. Dr Kilgour explained that some try to manage the knee with pain relief until it is stabilised by surgery, though this is not as successful with larger dogs. Dr Kilgour expressed the opinion that it was likely that Summer’s cruciate ligaments had ruptured more than six months before her examination. Dr Kilgour explained that the ruptured cruciate ligaments would have been painful.
In addition, Summer had hip dysplasia which is an incongruence between the ball and the hip socket joint, common in German Shepherds. Whilst this can sometimes not be painful, there are flare-ups which must be managed with weight management, diet and pain relief, as well as joint supplements. As Dr Kilgour explained, it is a “multi-modal management process”.
Dr Kilgour attempted a trial of pain relief medication by way of a Fentanyl patch, a strong opioid. A trial of the anti-inflammatory Carprofen was also undertaken. However, even with these measures Summer could only just touch her toes to the ground and could not fully weight bear.
After these failed measures, the decision was taken to euthanise Summer as well.
Finally, as for count 4 and the German Shepherd dog Reya, she too had been seen by the appellant’s veterinary surgeon on 2 March 2017, for an abscess in her groin.[116] However, Dr Kilgour gave evidence that:
Raya [sic] had a very abnormal gait, so that her walking pattern on the way in to the examination room … [s]he displayed a very low drop stance on her four limbs. Normally dogs will kind of walk high on their toes, whereas Raya [sic] was almost walking on her wrists. She was kind of dragging those back feet as well and knuckling with the hind feet as well. She also had quite extreme tooth wear as well, so her teeth were quite worn down.
[116] Reasons [121]ff.
According to Dr Kilgour, Reya had arthritis in both of her “elbow joints” as well as hip dysplasia, with her right hip showing such severe distortion that it almost looked “like a triangle within the hip socket”. As with the other German Shepherd dogs, she had lumbosacral disease and degenerative changes. Dr Kilgour expressed the opinion that these conditions were painful, revealed by the fact that:
Raya [sic] could not walk very far at all. She had to attend a couple of examinations by external vets and she couldn’t walk after them. She was very - she just didn’t want to stand up for most of the day. It was very difficult for her to remain on her feet at any time which suggests to me that it was painful for her to do so.
As with the other German Shepherd dogs, Dr Kilgour expressed the view that Reya’s painful arthritic condition would have been there for “quite some time, so over six months”. There was a trial on anti-inflammatory medication, as well as Tramadol, before a switch to Gabapentin. Reya did not respond well to any of this medication. As with the other German Shepherd dogs, a decision was taken to euthanise.
Dr Kilgour explained that an appropriate veterinary care regime for Reya should have involved a multi-modal pain management regime as well as regular reviews by a veterinary surgeon, quite apart from soft bedding, anti-inflammatory medication and joint supplements.
In the circumstances, the appellant’s attempt to rely upon her own evidence, as well as the records of the attendances on her own veterinary surgeon two or three months before, came nowhere near meeting the case advanced against her by the prosecution experts.
It followed that there was no prospect that the appellant’s evidence and her veterinary surgeon’s records could demonstrate a defence within s 13(5), namely, “that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence”.
I reject this ground of appeal.
Appeal ground 4 — improper dismissal of the appellant’s evidence
This appeal ground now appears to be merely a variation on appeal ground 3, which I have rejected.
Appeal ground 4, as originally drafted, seemed to raise an allegation of bias which had not been raised at the trial. The failure to take the objection at the trial ordinarily leads to the conclusion that the point has been waived and it cannot later be pursued.[117] The appellant now contends as follows:[118]
I maintain that I did not lie on oath, but when working through the logic applied by the Magistrate, we see the following. The Magistrate on the one hand acknowledges that the comment was made initially when I was flustered and panicked, and then most likely maintained because I thought I was obliged to, and yet although this relates to a confined issue in confined circumstances, uses this to cast aspersions over the rest of my evidence and my credibility as a whole.
It is submitted that the Magistrate failed to properly follow his own direction to himself by rejecting my evidence as a whole, rather than just that part. I acknowledge that it is a matter for the Magistrate to determine how much to reject or accept but when assessing the reasoning for the decision the problem emerges.
[117] Vakauta v Kelly (1989) 167 CLR 568.
[118] Appellant’s Written Submissions [86]-[87].
Insofar as the appellant simply reactivates her complaint about the approach of the trial Magistrate to her evidence, generally, I again reject it.
Conclusion
Whereas the appellant maintains that on 3 May 2017 the respondent found at her property “alert, bright dogs, with proper body scores, of proper weight” with “no evidence of the requisite distress required for the charges” that assertion was irrelevant regarding the Pomeranian dogs and is contrary to the evidence regarding the German Shepherd dogs and the findings actually made following a full and fair trial of the issues.
In my opinion the appellant’s four grounds of appeal, as reformulated, must be rejected and the appeal dismissed with costs.