Singer v Dart
[2011] QMC 37
•7 November 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Singer v Dart & Ors [2011] QMC 37
PARTIES:
Clifford SINGER
(complainant)
v
FREDERICK WILLAIM DART
(defendant)
SYDNEY DART
(defendant)
MEGAN ANN HAJRIDIN
(defendant)
FILE NO/S:
MAG8419/09(4), MAG8386/09(9), MAG19531/09(1), MAG19534/09(0), MAG60498/09(1), MAG71806/09(0), MAG92512/10/(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint - Summary Hearing (heard conjointly)
ORIGINATING COURT:
Magistrates Court at Townsville
DELIVERED ON:
7 November 2011
DELIVERED AT:
Townsville
HEARING DATE:
24 January 2011, 25 January 2011, 27 January 2011, 28 January 2011, 13 April 2011, 14 April 2011, 15 April 2011
MAGISTRATE:
Ryan KA
ORDER:
Frederick William DART
Complaint – Sworn & Summons 6 January 2009 – Charges 1, 2 and 3 – Guilty
Complaint – Sworn & Summons 23 January 2009 – Charges 1, 2, 3 and 4 – Guilty
Sydney DART
Complaint – Sworn & Summons 9 March 2009 – Charges 1, 2, 3, 4, 5 and 6 – Not Guilty
Megan Ann HAJRIDIN
Complaint – Sworn & Summons 22 December 2008 – Charges 1 and 2 – Guilty
Complaint – Sworn & Summons 6 January 2009 – Charges 1, 2 and 3 – Guilty
Complaint – Sworn & Summons 23 January 2009 – Charges 1, 2, 3 and 4 – Guilty
Complaint – Sworn & Summons 10 May 2010 – Charge 1 – Guilty
CATCHWORDS:
CRIMINAL LAW – CRUELTY TO ANIMALS – whether defendants breached Prohibition Order on keeping animals - whether animals kept for purposes of trade or commerce - whether defendants breached duty of care to animals - whether defendants possessed a seized animal
COMMERCIAL LAW – whether proper transfer of business name made - whether such transfer effected transfer of ownership of animals the subject of the business
RESIDENTIAL TENANCY – whether Residential Tenancy Agreement drafted pursuant to legislation - whether enforceable lease of real property in existence
EVIDENCE – leading of evidence of prior criminal convictions - issues of credit
CORPORATION – whether RSPCA Qld is a corporation in trade or commerce
Animal Care and Protection Act 2001, s 17(2), s 187
Residential Tenancies Act 1994
Justices Act 1867, s 47
Trade Practices Act 1974
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) [2002] FCA 860
The Queen v Federal Court of Australia: Ex parte W.A. National Football League [1979] HCA 6
The Queen v Trade Practices Tribunal: Ex parte St George County Council [1974] HCA 7
The Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21
E v Australian Red Cross Society (1991) 27 FCR 310
United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (1998) 83 FCR 346
Quickenden v O’Connor [2001] FCA 303
Marshall v Averay [2006] QDC 356
Bunning v Cross (1977-78) 141 CLR 54
Ridgeway v R (1995) 184 CLR 19
Mealey v R (1974) 60 Cr App R 59
COUNSEL:
A Morris QC for complainant
Moloney (direct brief) for defendants and defendants on own behalf
SOLICITORS:
Roberts Nehmer McKee for complainant
Defendants on own behalf
Seven complaints encompassing twenty-one charges brought against three defendants were heard together before me over seven days on 24, 25, 27 and 28 January 2011 and 13, 14 and 15 April 2011.
History
On 4 December 2008, two of the present Defendants Frederick William DART and Megan Ann Hajridin pleaded guilty in the Magistrates Court at Townsville to a total of 131 offences under s 17(2) of the Animal Care and Protection Act 2001 (“the Act”).
On 12 December 2008, each of them was sentenced. The following orders were made –
1. two years’ probation with a special condition that from time to time as thought necessary, inspectors from the RSPCA would have an entitlement to attend at the appellants’ property and to search and inspect those premises to ensure compliance with the terms of the sentence;
2. fined $12,500 each;
3. the defendants pay costs of $57,161.30 for seizure and accommodation costs payable to RSPCA pursuant to s189 of the Act;
4. the animals seized by the RSPCA on 31 July 2008 be forfeited to the RSPCA;
5. the defendants be restrained from purchasing or otherwise acquiring or taking possession of any dog or rat for trade or commerce for a period of two (2) years; and
6. no conviction was recorded against either defendant.
On appeal, the sentence was only disturbed with regard to the fines imposed and costs ordered to be paid by the defendants.
Present charges
Ms Hajridin now faces ten charges – four breaches of the Prohibition Order, five breaches of duty of care and one possession of a seized animal under the Act. Mr Frederick Dart was charged conjointly with Ms Hajridin in relation to one breach of the Prohibition Order, five breaches of duty of care and one possession of a seized animal under the Act. Mr Sydney Dart (Mr Frederick Dart’s father) was also charged conjointly with Mr Frederick Dart and Ms Hajridin with regard to five breaches of duty of care and one possession of a seized animal.
The current charges against the defendants were brought by the RSPCA following information received from members of the public about their activities. As a result, a “sting” operation was carried out by RSPCA officers on 22 December 2008, a warrant to enter was executed at 294 Dingo Park, Calcium (the home of Mr Frederick Dart and Ms Hajridin) on 30 December 2008 and a further warrant to enter was executed at 8 Buchanan Street, Mount Louisa on 14 April 2010.
All charges (except those which arose out of the execution of the warrant to enter on 14 April 2010) had been adjourned on numerous occasions in the past after first being mentioned in this court on 8 April 2009. The defendants were at first legally represented, but withdrew those instructions. Adjournments had been granted to enable the appeal against the original sentence of 12 December 2008 to be heard by the Court of Appeal.
At the commencement of the hearing, the defendants were not legally represented and Mr Frederick Dart was authorised by the other two defendants to conduct the defence on their behalf. Both Ms Hajridin and Sydney Dart were given the opportunity (which they both took at one stage) to cross examine the prosecution witnesses.
On the third morning of the hearing, the defendants arrived at court with Mr Moloney, counsel from Victoria, who was appearing on a direct brief from the defendants. Given the history of the present charges, a further application for adjournment was denied, but Mr Moloney was given the opportunity to listen to the court recording of some of the evidence given on Voir Dire.
At the end of the hearing I gave directions with regard to written submissions given Mr Maloney’s late involvement in the proceedings. However, communications were received from the defendants advising that due to certain circumstances, they were again unrepresented and they would be attending to their own submissions and sought an extension of time in which to provide these. Such an extension was granted.
Preliminary Matters
The defendants have submitted that I should find that the Royal Society for the Prevention of Cruelty Queensland (RSPCA Qld) is a “corporation” pursuant to the Trade Practices Act 1974 (Cth) and within the meaning of section 51(xx) of the Commonwealth Constitution in accordance with a decision of Mr Justice Weinberg in the Federal Court case of Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic)[1].
[1][2002] FCA 860
The defendants submit that RSPCA Qld is a corporation, its inspectors are paid employees of the RSPCA and accordingly –
1. They are not public servants or directly employed by a public sector authority;
2. They are not subject to regulation or control by legislation or regulations similar to the Police Powers and Responsibilities Act and Regulations[2]
[2] Paragraph 5, Page 2 defendants’ submissions
They seek this court to declare that –
It is an anomaly of Law, anathema to norms of law enforcement since time immemorial, for employees of a privately owned commercial trading corporation to be appointed to investigate, enforce and prosecute Law.[3]
[3] Paragraph 23(i), Page 40 defendants’ submissions
and that the Court recommend –
that in the better interests of Administration of Justice the Queensland State Government repeal section 114(2)(a)(ii) of the Animal Care and Protection Act 2001 and, revoke appointments of RSPCA employees.[4]
[4] Ibid
They seek this declaration on the basis that they argue the RSPCA Qld “demonstrated vindictive intent, abuse of authority, lack of training, knowledge and expertise, lack of respect of privacy, contempt for Queensland Law…..to investigate, enforce and prosecute, by appointment under section 114(2)(a)(ii)” of that Act and that they (the RSPCA) have shown “contempt for provisions of the Queensland Criminal Code 1995, contempt for the Justices Act 1886, contemptuous abuse of process of the Court and, contemptuous waste of time and resources of the Court”.[5]
[5] Ibid.
In the Orion Pet Products Case the applicants had brought an action in the Federal Court against the RSPCA Victoria for damages based on breaches of Sections 52 and 53(a) of the Trade Practices Act 1974 relating to alleged misleading and deceptive statements published by the RSPCA (Vic). It is settled law that the mere fact that a corporation engages in trade is not enough to constitute it a “trading corporation”.[6] It was argued (before Justice Weinberg that a corporation will be a trading corporation only if trading represents a substantial aspect of its corporate activities. In The Queen v Federal Court of Australia: Ex parte W.A. National Football League[7] it was held that trading which is merely a peripheral aspect of those activities will not be sufficient to render it a trading corporation. His honour stated –
Whether a corporation’s trading activities are substantial and not merely peripheral, is a question of fact and degree.[8]
[6]The Queen v Trade Practices Tribunal: Ex parte St George County Council [1974] HCA 7
[7][1979] HCA 6
[8]Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) [2002] FCA 860 at 148
Justice Weinberg was provided with the annual report of the RSPCA (Vic) which set out the various departments of that organisation, its income earned and expenditure. It was found that the RSPCA (Vic) trading activities generated an annual revenue in excess of $5.5 million which was more than half the total revenue earned being $9,940,377 for the relevant financial year.
His Honour referred to the decision of the High Court in The Commonwealth v Tasmania (The Tasmanian Dam Case)[9] and stated –
In considering whether a corporation’s trading activities are significant or peripheral it is irrelevant that those activities do not constitute the predominant part of its overall activities.[10]
[9][1983] HCA 21
[10] Ibid at 162
The applicants in that case relied upon E v Australian Red Cross Society[11] where the relevant corporate entity’s motives and objectives were entirely altruistic, and not with a view to making a profit. It was found in that case by Justice Wilcox that –
The scale of the Division’s trading activities amply meets any of the tests annunciated in [R v Federal Court of Australia; Ex parte W.A. National Football League].[12]
[11](1991) 27 FCR 310
[12] Ibid at 343
This approach has since been followed in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board[13] and adopted in Quickenden v O’Connor[14] where the Full Court of the Federal Court held that the University of Western Australia was a trading corporation.
[13](1998) 83 FCR 346
[14][2001] FCA 303
After taking into account the authorities and the evidence before him, Justice Weinberg found that the RSPCA (Vic) was a corporation for the purposes of the Trade Practices Act 1974.
In this case, I have no evidence before me as to the income and expenses of the RSPCA (Qld) and indeed no evidence on which a decision can be made that RSPCA (Qld) is a corporation. I acknowledge that this court is bound by decisions of superior courts, including the Federal Court of Australia, but in the absence of any evidence as to the trading activities of RSPCA Qld, I am unable to make a declaration that RSPCA Qld is a corporation.
Even if such a declaration was made, the Queensland Parliament has enacted the Animal Care and Protection Act 2001 to promote the responsible care and use of animals, to provide standards for the care and use of animals, protect animals from unjustifiable, unnecessary or unreasonable pain and to ensure the use of animals for scientific purposes is accountable, open and responsible.
The Act sets out a framework as to how these purposes are to be achieved. Chapter 16 of the Act sets out the framework for investigation and enforcement. It provides in section 114 for the appointment of inspectors under the Act. Section 114(2) states –
(2) However, an individual may be appointed as an inspector only if –
(a) the individual is –
(i) a public service officer or employee; or
(ii) employed by the Royal Society for the Prevention of Cruelty to Animals Queensland Incorporated; or
(iii) included in a class of individuals declared under a regulation to be an approved class of persons for this section…….
This section in itself confirms the defendants’ submissions that RSPCA inspectors are not public servants – indeed they are not. However, they are properly appointed inspectors employed by the RSPCA for the purposes of enforcing the purposes of the Act and that Act also sets out conditions and limits on powers and otherwise regulates their activities.
The defendants refer in their submissions to “findings in relation to invalid warrants as declared by Honourable Magistrates Smid and Ryan, transcripts of sworn testimony and evidence adduced before His Honour Magistrate Howard Osbourne in appeals against seizures, heard at Townsville during November 2010, transcripts of proceedings in these matters and any intrinsic or extrinsic material relevant to issues.”[15]
[15]Paragraph 11, Page 3 defendants’ submissions
The only matter which can be taken into account in these proceedings is the evidence given before the court in this prosecution, and any reference to other matters forming part of other proceedings, not contained in a judgment of the court, will be disregarded.
Complaints – Sworn and Summonses
The defendants have submitted that each of the Complaints – Sworn and Summonses brought by the prosecution are “fatally defective, misleading and deceptive”.
Firstly, they submit that they were “denied a procedural right to be fully informed” when four of the seven Complaints and Summonses were amended by consent on the first day of the hearing. It is pertinent that the details of those amendments be mentioned.
By Complaint - Sworn and Summons made on 9 March 2009, Sydney Ronald Dart was charged conjointly with Megan Ann Hajridin and Frederick William Dart with six charges, five relating to breaches of duty of care to animals and one to the possession of a seized animal. On the morning of the first day of hearing, Mr Morris QC for the prosecution sought leave to amend the corresponding Complaints and Summonses both issued on 23 January 2009 against Megan Ann Hajridin and Frederick William Dart by including the words “and Sydney Ronald Dart” as being charged conjointly with each of them.
The defendants, who were self represented at that stage, were asked if they had any objections to the amendments, and they consented to these being made. Prosecuting counsel advised that these amendments were flagged some 18 months ago at a mention of these matters when the defendants were legally represented and no issue was taken with the proposed amendments at that stage. It is noted that these amendments merely regularised the Complaints – Sworn and Summonses brought against Megan Ann Hajridin and Frederick William Dart and did not add any cause of action or otherwise alter any of the charges brought against them.
The two Complaints – Sworn and Summonses brought against Megan Ann Hajridin and Frederick William Dart on 6 January 2009 (where they were charged conjointly) were amended by including the following words in the description of the “First Offence” –
…on 30th December 2008, at Calcium in the Magistrates Court District of Townsville in the State of Queensland, one…
This amendment brought the wording of the “First Offence” into line with the wording contained in both the “Second Offence” and “Third Offence” appearing on those Complaints – Sworn and Summonses. Again, these amendments were made with the consent of the defendants and did not introduce a further cause of action, or alter any of the charges brought against either of them.
More forceful submissions have been made that the complaints were fatally defective, misleading and deceptive. The defendants submit[16] that they –
[16] Paragraph 1, page 5 defendants’ submissions
(1) Were not informed by the complaints in regard to:
(a) essential factual ingredients of alleged offences;
(b) particulars necessary to enable preparation of a defence or defences;
(2) Were not arraigned by the Court before a trial commenced;
(3) Were denied particulars of alleged complaints proceeding against them;
(4) Were denied opportunity to plead to alleged complaints;
(5) Were not served with amended complaints;
(6) Were denied opportunity to object to defective complaints;
(7) Were denied procedural rights, procedural fairness and, natural justice.
The defendants submit that the complaints, even after amendment at hearing, remained defective in that they did not identify “essential factual ingredients of alleged offences, or supply particulars necessary, to enable the defendants to prepare a defence or defences”.
They have referred me to the decision of His Honour Judge McGill in Marshall v Averay[17] in which His Honour stated that for “a complaint to be valid it must identify the essential factual ingredients of the actual offence” and that the words contained in the complaint “must be sufficiently similar to the words of the Act creating the offence for it to be clear that what is being alleged is the offence created by those particular words of the Act”.
[17] [2006] QDC 356
The defendants have submitted the same argument with regard to each of the complaints and summonses issued against each of them[18] –
[18] Pages 7, 8, 9 & 10 defendants’ submissions
“1. The words of the complaints are not sufficiently similar to words of an Act or section of an Act relied on to make a prohibition order or sufficiently similar to words of a prohibition order alleged to have been contravened, to satisfy the test of s 47(1).
2. An Act, under which a prohibition order was allegedly made, is not identified;
3. A section of an Act under which a prohibition order was allegedly made is not identified.
4. A prohibition order alleged to have been contravened is not identified or particularised;
5. A phrase “for the purpose of trade or commerce” repeatedly relied on by the complainant in complaints alleging contravention of a prohibition order is not identifiable;
(i) As part of an Act relied on to allege contravention of a prohibition order
(ii) As part of a section of an Act relied on to allege contravention of a prohibition order;
(iii) As part of a prohibition order alleged to have been contravened;
(iv) As part of a section of a prohibition order alleged to have been contravened.
6. An Act that relies on the phrase, “for the purpose of trade or commerce” to ground alleged contravention of a prohibition order, is not and cannot be identified.
7. A section of an Act that relies on the phrase, “for the purpose of trade or commerce” to ground alleged contravention of a prohibition order, is not and cannot be identified;
8. A magistrate or other person of authority who relied on the phrase “for the purpose of trade or commerce” to ground a prohibition order is not, and cannot, be identified;
9. A prohibition order that relied on the phrase “for the purpose of trade or commerce” is not, and cannot, identified;
By repetitive use of the phrase “for the purpose of trade or commerce” the complaints are fatally defective in that they do not comply with s 47(1) of the Justices Act, in that the phrase “for the purpose of trade or commerce”:
(i) Is not part of a prohibition order allegedly contravened;
(ii) Is not part of an Act under which a prohibition order was allegedly made;
(iii) Is not part of a section of an Act or part of a section of an Act, under which a prohibition order was allegedly made;
(iv) Distorts meaning and interpretation of a section of an Act that grounded a prohibition order;
(v) Distorts content, meaning and interpretation of a prohibition order alleged to have been contravened;
(vi) Is clearly misleading, deceptive and, obfuscating.
It is reasonable to conclude that RSPCA Inspector Clifford Singer was:
(i) Ignorant of an Act or section of an Act under which a prohibition order was made;
(ii) Ignorant of a prohibition order alleged to have been contravened;
(iii) Did not understand a prohibition order alleged to have been contravened or;
(iv) Deliberately and maliciously, misquoted an Act, and Order, alleged to have been contravened, to cause detriment to the defendants and, mislead, deceive and obfuscate the Court, to vindictively pursue unfounded prosecutions.
Complaints made against the defendants generally, are fatally defective in that they do not identify essential factual ingredients vital to allegations of offences, sufficient to enable preparation of a defence or to adequately inform the Court in regard to identifying an address or addresses where offences are alleged to have been committed, or identifying an offence or offences alleged to have been committed;
(i) “at Townsville” is manifestly insufficient to identify
(a) a place, places, address, or addresses where criminal offences are alleged to have been committed;
(b) A property, building or other alleged scene of an alleged offence or offences;
(c) Time of day that an alleged offence or offences are alleged to have been committed.
(ii) “at Calcium” is manifestly insufficient to identify:
(a) A place, places, address or addresses where and when criminal offences are alleged to have been committed.
(b) A property, building or other alleged scene of an alleged crime or crimes;
(c) Time of day that an alleged crime or crimes are alleged to have been committed.
(iii) Dates and times that the defendants are alleged to have purchased, acquired or otherwise taken possession of dogs, vital to proving alleged contravention of a prohibition order, are not identified;
(iv) The person, business or other entity from whom the defendants are alleged to have purchased, acquired or otherwise taken possession of dogs, is not identified;
(v) The location or address of the person, business or other entity from whom the defendants are alleged to have purchased, acquired or otherwise taken possession of dogs, is not identified.
(vi) Nature of offences alleged to have been committed are not identified or particularised;
(vii) Manner that offences were alleged to have been committed are not identified or particularised;
(viii) Living conditions alleged to be inappropriate are not identified or particularised;
(ix) Diseases allegedly not treated are not identified or particularised;
(x) Injuries allegedly not treated are not identified or particularised;
(xi) Information disclosed by complaints does not;
(i)Provide sufficient information for the Court to identify or understand offences alleged to have been committed;
(ii)Identify essential factual ingredients of alleged offences;
(iii) supply particulars necessary to enable preparation of a defence.”[19]
[19] Pages 7 to 10, Defendants’ submissions
I have set out the submissions made on this particular subject in full, so that each point may be addressed.
First, with regard to His Honour Judge McGill’s decision in Marshall v Averay[20], this was an appeal with regard to a complaint and summons brought under the Integrated Planning Act 1997 and in particular section 4.3.5 of that Act with regard to the “lawful use” of premises for “entertainment purposes”. His Honour sets out the complicated wording of that section which, in reality, founds two possible offences.
[20] [2006] QDC 356
He states[21] –
In the present case, the complaint in relation to Count 1 identifies what it is that the appellant is alleged to have done, but that is not only the factual ingredient of the offence. If s 4.3.5 of the Act made it an offence to carry on the use of outdoor recreation on premises, the position would be different, but it does not. What it prohibits is any use which is not a "lawful use" as defined, and which is not a use in accordance with the applicable planning scheme. Whether or not something is a "lawful use" is, because of the definition of that term in s 1.3.4, something which depends on factual matters. In order to show that the use is not a lawful use, it is necessary to show that it is not the result of a material change of use which has been authorised under the Act.
[21] At paragraph [17]
The subject Complaints – Sworn and Summonses in these proceedings are also brought pursuant of the Justices Act 1886 (as amended). Section 47(1) of that Act states –
“The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words shall be sufficient in law.”
In Marshall v Averay[22] McGill DCJ partially allowed the defendant’s appeal with regard to the wording of the charge in the complaint and summons and stated[23] –
In my opinion, for a description of the offence to be sufficient in law on the basis that it is in words which are similar to the words of the Act, the words used must be sufficiently similar to the words of the Act creating the offence for it to be clear that what is being alleged is the offence created by those particular words of the Act.
[22] Ibid.
[23] Ibid. at paragraph [26]
I have had regard to the wording of the relevant sections of the Animal Care and Protection Act 2001 relied on in the present proceedings, and find that those sections, (unlike the obvious ambiguity of section 4.3.5 of the Integrated Planning Act 1971 dealt with by McGill DCJ in Marshall’s case), have been drafted in terms which are easily understood.
I will turn to each of the complaints and summonses filed and served in these proceedings to ascertain whether they contain words “sufficiently similar to the words of the Act creating the offence for it to be clear that what is being alleged is the offence created by those particular words of the Act.”
The Complaint – Sworn and Summons made on 22 December 2008 against Megan Ann Hajridin sets out two offences, the first stating –
That MEGAN ANN HAJRIDIN, being a person against whom a prohibition order has been made, unlawfully contravened a prohibition order contrary to Section 187 of the Animal Care and Protection Act 2001.
PARTICULARS
That MEGAN ANN HAJRIDIN unlawfully contravened a prohibition order that was made on the 12th day of December 2008 in the Townsville Magistrates Court by purchasing or otherwise acquiring or taking possession of any dog, namely a golden retriever puppy (BT 4896) for the purpose of trade or commerce.
Section 187 of the Animal Care and Protection Act 2001 states –
A person against whom a prohibition order has been made must not unlawfully contravene the order.
Not only does the Complaint – Sworn and Summons use the words of the section, it also gives particulars of the date of the prohibition order and the date of the alleged breach, together with using the words of the prohibition order – “purchasing or otherwise acquiring or taking possession of any dog……..for trade or commerce”. The particular dog is identified by a number allocated to it by the RSPCA when the dog was seized. This process is undertaken by issuing each seized animal with a tag on which a number is displayed and this number is entered into a register.
The second offence on this Complaint – Sworn and Summons is identical except for the description of the dog, being “a golden retriever puppy (BT 4897).
The second Complaint – Sworn and Summons made on 6 January 2009 contains three charges and states –
That on the 30th December 2008 at Calcium in the Magistrates Court District of Townsville, in the State of Queensland, MEGAN ANN HAJRIDIN, being a person against whom a prohibition order has been made, unlawfully contravened a prohibition order contrary to Section 187 of the Animal Care and Protection Act 2001.
PARTICULARS
That MEGAN ANN HAJRIDIN, unlawfully contravened a prohibition order that was made on the 12th day of December 2008 in the Townsville Magistrates Court by purchasing or otherwise acquiring or taking possession of 37 dogs of various breeds, [here the BT numbers allocated by the RSPCA are listed] for the purpose of trade or commerce
The wording of this charge is similar to that referred to above at paragraphs [47] to [49].
The second offence on this Complaint states –
That on the 30th December 2008, at Calcium in the Magistrates Court District of Townsville, in the State of Queensland, one MEGAN ANN HAJRIDIN, being the person in charge of an animal, namely 567 Rats, (BT4219) did breach her duty of care by failing to take reasonable steps to provide appropriate living conditions contrary to Section 17(2) of the Animal Care and Protection Act 2001.
The third offence is in identical terms as the second, except for the description of the animal/s being “272 Mice, (BT 4220)”.
The relevant provision of the Animal Care and Protection Act 2001 is section 17, which states that a person in charge of an animal owes a duty of care to it and the person must not breach the duty of care. Subsection (3) states that a person breaches that duty “only if the person does not take reasonable steps to – (a) provide the animal’s needs for the following in a way that is appropriate – and there follows a list including food and water; accommodation or living conditions for the animal; and the treatment of disease or injury.
The third Complaint and Summons sworn against the defendant Megan Ann Hajridin contains four charges. The first three charges allege that the defendant breached her duty of care to one Rat (BT4218), one Dog (BT4472) and one Dog (BT4496) by failing to take reasonable steps to provide appropriate treatment for disease or injury contrary to Section 17(2) of the Animal Care and Protection Act 2001. I have commented above[24] on the relevant wording of section 17 and can see no deviation in the wording contained in the Complaint – Sworn and Summons from the wording of the section.
[24] At paragraph [50]
The fourth charge on this Complaint – Sworn and Summons charges that the defendant, Megan Ann Hajridin without reasonable excuse had possession of an animal seized under Part 2 of the Animal Care and Protection Act 2001 namely one Dog (BT4448) contrary to Section 149(2)(d) of the Animal Care and Protection Act 2001. This wording is analagous to that contained in Section 149 (2)(d) of the Animal Care and Protection Act 2001.
The fourth Complaint - Sworn and Summons sworn against Megan Ann Hajridin contains only one charge – that of having (on 14 April 2010) unlawfully contravened a prohibition order that was made on the 12th Day of December 2008 in the Townsville Magistrates Court by purchasing or otherwise acquiring or taking possession of any dogs, for the purpose of trade or commerce.
I have commented earlier[25] on similar wording in the Complaint – Sworn and Summons issued on 22 December 2008 and note the Complaint uses the same words as the section.
[25] At paragraphs [44] and [45]
Two Complaints - Sworn and Summonses were sworn against Frederick William Dart on 6 January 2009 and 23 January 2009. These Complaints - Sworn and Summonses were in identical terms to those sworn against Megan Ann Hajridin and indeed they were charged conjointly.
The one Complaint – Sworn and Summons was sworn against Sydney Ronald Dart on 9 March 2009. It uses the exact wording of the Complaints and Summonses sworn against both Megan Ann Hajridin and Frederick William Dart on 23 January 2009.
Much has also been submitted by the defendants with regard to the use of the phrase “for the purpose of trade or commerce” in the various Complaints – Sworn and Summonses. They submit that the inclusion of the words “the purpose of” somehow renders the Complaints – Sworn and Summonses void. This is a nonsense. I find that the inclusion of those words merely emphasises the use of the words “trade or commerce” and does not change the meaning of those words.
All three defendants were legally represented for at least the first 11 months following service of the Complaints – Sworn and Summonses and well knew the particulars, such as alleged time, date, place and activity the subject of those complaints. I am satisfied that all the Complaints – Sworn and Summonses comply with section 47 of the Justices Act 1886 (as amended) and are properly before the court.
Warrants of Entry
The legality of the Warrants of Entry to both the Calcium property and that at Mount Louisa and the admissibility of evidence obtained pursuant to the execution of the warrants were the subject of Voir Dires conducted on the first day of the hearing whilst the defendants were not legally represented.
At that stage, I found that the warrants were deficient, but exercised my discretion pursuant to the decision of the High Court in Bunning v Cross[26], to include evidence obtained under the warrants. However, I ruled that only evidence the subject of the Prohibition Order was admissible.
[26] (1977-78) 141 CLR 54
I also ruled during the hearing that evidence obtained by RSPCA officers (with regard to alleged breaches of duty) once they had entered the property was admissible due to the operation of Chapter 6 Part 2 Division 3 (Powers for entry to all places) of the Animal Care and Protection Act 2001, even though the Warrant to Enter the Calcium property had been found to be invalid.
The defendants now seek to submit on the legality of the Warrants to Enter. This issue was dealt with during the hearing and can not now be revisited by the defendants in their submissions relating to their defence at the hearing.
Conspiracy
The defendants have submitted that the charges against Megan Ann Hajridin arising out of what has been referred to in proceedings as a “sting” operation should be dismissed on the grounds that officers of the RSPCA acted as “volunteer agents provocateurs”. In that guise, they state that RSPCA officers duped Megan Ann Hajridin into taking two golden retriever puppies for a veterinary examination in order to entrap her and charge her with possessing a dog for trade or commerce in contravention of the prohibition order.
It is settled law that where the involvement of a police officer in criminal conduct induces a principal offender to commit an offence, that circumstance does not relieve the offender of criminal responsibility.[27] There is no substantive defence of entrapment in Australian law.[28]
[27]Ridgeway v R (1995) 184 CLR 19
[28]Mealey v R (1974) 60 Cr App R 59
I note that in this instance, an RSPCA inspector used a fictitious name in negotiating a purchase of a puppy from Megan Ann Hajridin. He did not participate in any breach of the law. I therefore confirm my ruling made during the course of the hearing that the “sting” operation was a legitimate operation by the RSPCA.
Agreements
On 19 November 2008, the defendants purportedly entered into a number of agreements between each other by which Mr Frederick Dart attempted to lease his property at Calcium to Sydney Dart, and allow for Ms Hajridin’s and Frederick Dart’s tenancy at the property. Another of the agreements was said to transfer Ms Hajridin’s business Topdogzdownunder to Sydney Dart.
All defendants gave evidence that they entered into these agreements on 19 November 2008 (before the making of the court order of 12 December 2008) as they were unsure as to what was to happen and they wanted to prepare for the “worst case scenario”. All defendants stated they were concerned for the safety of the animals and feared that they would be destroyed by the RSPCA.
(a) Lease document
Evidence was given by Frederick Dart that he entered into an agreement (Exhibit 30) purporting to lease the land and improvements located at [address] to Sydney Dart. Frederick Dart is the registered proprietor and the land is the subject of a mortgage. The agreement was dated 19 November 2008 and was witnessed by a “S Dart” who I presume was Sydney Dart’s wife Shirley (although this was not canvassed with the witnesses). The agreement does not set out the term of the lease, nor does it contain any details of rent or lease payments to be made as required by Part 8 of the Property Law Act 1974 or Schedule 3 of that Act. Further, no stamp duty was paid as required in accordance with Chapter 2 Part 3 of the Duties Act 2001, the subject property being dutiable property as defined in that Act. Neither was the mortgagor advised or permission obtained for the transaction as required by law.
The parties to the agreement gave evidence that they were ignorant of the need to do this and thought that the payment of stamp duty was not required as the agreement was made as between family.
Given that the purported agreement is uncertain (indeed silent) as to the most important terms of a lease (being the term and rental payable), I find that the agreement has no affect at law and is not binding on either party.
(b) General Tenancy Agreement
Also forming part of Exhibit 30 is a further document entitled “General Tenancy Agreement (Residential Tenancies Act 1994)” which was signed by Sydney Dart and Frederick Dart on 21 November 2008 also relating to the property located at [address]. This document was also witnessed by “S Dart”. This document states that a tenancy in Sydney Dart’s favour is to run from 19 November 2008 to 18 November 2011 at a rental of $100 for the first year with rent for the second and third year to be negotiated.
In cross examination, Sydney Dart conceded that he never intended to reside on the property on a permanent basis, but that part of his intention was to undertake the business (of breeding and selling dogs and rats) on the property, such business he said was transferred to him by Ms Hajridin.
The purported General Tenancy Agreement is poorly drafted to the extent that it is deficient with regard to matters required to be included pursuant to the (as it then was) Residential Tenancies Act 1994 including, but not limited to, the rent payable for the second and third years of the tenancy. The standard terms as prescribed by section 39 of that Act were not included. I therefore find the agreement has no affect at law.
(c) Transfer of Business
There is a further agreement[29] dated 19 November 2008 between Ms Hajridin and Sydney Dart purporting to “transfer” the business name Topdogzdownunder from Ms Hajridin to Sydney Dart for the “purposes of his retirement hobby ventures at [address]”. The agreement is not stamped (as required by law) and is again witnessed by “S Dart”.
[29] Exhibit 32
One of the clauses in the Agreement states that “Megan Ann Hajridin is the owner of a business name Topdogzdownunder that is not being actively used for trade or commerce at this time.” (my emphasis) Ms Hajridin, in her evidence, also stated that she had transferred the business name and the operation to Sydney Dart on 19 November 2008. I note that among documents seized at the time of the execution of the warrant to enter at Calcium on 30 December 2008, was an Application for a Permit to use Premises as a Kennel or Cattery to be lodged with the Townsville City Council. The document, which was never lodged, states that the applicant’s name is Megan Hajridin and the business address as “Topdogzdownunder [address]”.
Further evidence from independent witnesses Ms Fussell and Ms Christine Jackson that they had business dealings with Ms Hajridin after 19 November 2008 (the nominated date of transfer of the business) clearly shows the content of the clause in the purported agreement and Ms Hajridin’s evidence to be untrue or a distortion of the facts at best.
Ms Hajridin admitted in cross examination that she did not advise the Office of Fair Trading of the change in ownership of the business name as she said that she did not know she had to do this. Sydney Dart said the agreement was that he would use the name in operating his “hobby undertaking” at the property as he saw fit.
I have inspected the content of Exhibit 31, being the Townsville City Council file with regard to complaints relating to Ms Hajridin’s keeping of animals, the proposed Permit to use Premises as a Kennel or Cattery and an application for a Material Change of Use (dated 10 December 2008) to enable the premises at Calcium to be used as a breeding facility. This file shows that Ms Hajridin, in her role as the owner of the business Topdogzdownunder, dealt with the Council through correspondence (sporting the business name), emails and telephone calls from the time the application for Material Change of Use was lodged until the present time. At times, Frederick Dart was a co-signatory on correspondence with the Council. Frederick Dart, as stated above, is the registered owner of the property.
The fact that Ms Hajridin continued to deal with parties such as the Townsville City Council, Ms Fussell and Ms Jackson under the business name Topdogzdownunder and her evidence, together with that of Sydney Dart, that she never told anyone that the business had been transferred, clearly reveals that the purported transfer of the business was a sham designed to circumvent any order which the court would make and indeed did make upon sentence on 12 December 2008.
(d) Credibility
All of the agreements were drafted by Sydney Dart who, I understand, has had legal training to a certain extent and some experience in appearing in courts, including the Court of Appeal. Unfortunately, this appears to be a case where the maxim “a little knowledge is a dangerous thing” applies. Each of the defendants in cross examination, tended to evade questions put by Counsel for the prosecution, on occasions trying to second guess what point Mr Morris was trying to prove to the court.
The credibility of each of the defendants was brought into question and I found that their evidence was at best self serving. Ms Hajridin was obdurate and aggressive, Mr Frederick Dart and Mr Sidney Dart appeared cynical of the questions asked by the prosecution.
On the basis of the evidence given to the court with regard to these three agreements, I find that they were brought into existence and signed by the defendants in a somewhat amateurish attempt to circumvent the effect of the Magistrate’s order of 12 December 2008.
Possession
The prohibition order made by the court on 12 December 2008 stated, inter alia, that “the defendants be restrained from purchasing or otherwise acquiring or taking possession of any dog or rat for trade or commerce for a period of two (2) years”.
It is argued that until the decision of the court and the prohibition order was made on 12 December 2008, neither Megan Ann Hajridin nor Frederick William Dart were constrained from “purchasing or otherwise acquiring or taking possession of any dog or rat for trade or commerce”. This is conceded. However, following the making of the order, these defendants were at immediate risk of breaching the order, should they continue to possess any dog or rat for trade or commerce.
The defendants argue that “possession” as stated in the prohibition order should be interpreted other than as contained in the dictionary of the Animal Care and Protection Act 2001. That definition states that “possession includes control and custody”. This is an inclusive definition. In those circumstances, the ordinary meaning of “possession” should be used. The Australian Concise Oxford Dictionary meaning of “possession” is “actual holding or occupancy; visible power of exercising such control as attaches to (but may exist apart from) lawful ownership”.
I have already found that the purported transfer of the business Topdogzdownunder and the purported transfer of ownership of the animals previously owned by Megan Ann Hajridin and Frederick William Dart to Sydney Dart were shams. Added to this the fact that Megan Ann Hajridin was the person left in charge of, and in Sydney Dart’s clear evidence, she was in possession of the animals and the animals resided in the same building as Ms Hajridin and Mr Frederick William Dart, I am satisfied that Megan Ann Hajridin and Frederick William Dart had possession of the animals.
THE CHARGES
Discussion
I will now deal with each defendant and the charges they face separately.
Evidence was given by ten witnesses for the prosecution. Of these six were inspectors (or previous inspectors) with the RSPCA, one was a veterinary surgeon contracted to the RSPCA and three were lay witnesses, Ms Lisa Fussell, Ms Christine Jackson and Ms Helen Osterman who had all had business dealings with Ms Hajridin. The three defendants also gave evidence on their own behalf and in support of each other.
All of the RSPCA officers were ex-police or ex-army officers with experience in investigation and law enforcement. They gave their evidence in a straightforward and honest manner, as did Dr Lomax (the veterinary surgeon). Notably, she testified that in comparison with her previous observations of the conditions in which the subject animals were being kept by the defendants Ms Hajridin and Mr Frederick Dart, there had been a marked improvement in those conditions since her previous contact with them in July 2008. However, her evidence was that whilst the conditions had vastly improved, they still failed to comply with the expected standards.
Ms Hajridin
Ms Hajridin faces the most charges.
Breaches of Prohibition Order – 22 December 2008
Ms Hajridin faces two charges of breaching the Prohibition Order made by Magistrate Smith on 12 December 2008. It is alleged that on 22 December 2008, she attended at a veterinary clinic with two golden retriever puppies to meet a prospective purchaser of those puppies.
The background to this event was provided by Ms Fussell in her evidence. Ms Fussell gave her evidence in an honest and forthright manner and told the court she wanted to buy a golden retriever puppy for her daughter. A friend placed an online advertisement on her behalf and on 19 November 2008 she received a message on her mobile phone from the defendant Megan Hajridin who advised that she had some golden retriever puppies for sale.
Ms Fussell exchanged a number of emails and texts with Ms Hajridin while at the same time having purchased a puppy from someone more local. Tragically, that puppy had to be put down as it developed pneumonia as a result of not being properly wormed. It was at this time, in late November or early December that Ms Hajridin again contacted Ms Fussell asking whether she still wished to purchase the puppy. On 2 December 2008, Ms Fussell made a payment by direct debit of $200 into Ms Hajridin’s bank account, being a deposit for a puppy.
Having been through the heartbreaking situation of the first puppy, out of an abundance of caution, Ms Fussell did a Google search of Ms Hajridin’s name and discovered the news reports setting out details of the sentencing orders made by Magistrate Smith on 12 December 2008 relating to charges of animal cruelty. It was at this time that Ms Fussell contacted the RSPCA and spoke with Inspector Tracey Jackson.
Thereafter, Ms Fussell co-operated with the RSPCA by advising Ms Hajridin that an acquaintance also wished to purchase a puppy and she put her in contact with “John” who was an RSPCA officer posing as a prospective purchaser. Arrangements were made that “John” would meet Ms Hajridin at a veterinary surgery in Townsville where both puppies would undergo a vet check and then he would pay the balance of monies owing on both puppies, thus affecting the sale.
This was the basis on which RSPCA officers and police were waiting in a car park opposite Bayside Veterinary Clinic at Belgian Gardens in Townsville at the time appointed for Ms Hajridin to meet “John” for the veterinary checks.
In her evidence, Ms Hajridin first stated that she commenced negotiations with Ms Fussell before purportedly transferring the business to Sydney Dart on 19 November 2008. She said that she asked Ms Fussell to pay the deposit to her account as she had not had a chance to make appropriate arrangements with Sydney Dart for the money to be paid direct to him. She further stated that she gave the $200 deposit to Sydney Dart in cash – thus there are no records of this payment. Ms Hajridin and Sydney Dart gave evidence that the puppies were Sydney Dart’s, having come into his possession on 19 November 2008 as a result of another purported transfer (this time verbal) of the animals to him from Ms Hajridin. Sydney Dart further stated that Ms Hajridin had been asked by him to take the puppies to the veterinary clinic for the check ups.
Ms Hajridin stated that she did not know what was going to happen to the puppies after that. This evidence is blatantly untrue, as she was the person who had discussions with “John” as to what was to occur after the veterinary checkups. Further, Ms Hajridin had paperwork relating to each puppy to be given to the new owner with her in the car. She stated in evidence that she did not know anything about that paperwork, that it was merely in the car she was driving, which was not hers.
At the time evidence was given in relation to the “sting” operation, the defendants were not legally represented. An objection was raised as to the admissibility of evidence obtained by “entrapment” of Ms Hajridin. As the incident was not caused by the illegal activity of the RSPCA officers, I found that the “sting” operation was valid.
I have already made a finding against the credit of Ms Hajridin, with regard to the agreement to transfer the business, based on her evidence which was directly refuted by independent evidence. Mr Morris also introduced further evidence of prior criminal convictions for dishonesty and fraud during cross examination, which was allowed on the basis that Ms Hajridin was put forward as a witness of honesty which left her open to attacks on her credit. I have also had the opportunity to view the video taken at the time of the “sting” operation and the execution of both warrants to enter. Frankly, Ms Hajridin’s behaviour as shown on the recordings does nothing to support her creditworthiness before the court. When approached by the RSPCA inspectors and police, she has shown belligerence and continually mocked Mr Singer and other inspectors for doing their job.
The prohibition order provides that the defendants be restrained from purchasing or otherwise acquiring or taking possession of any dog or rat for trade or commerce for a period of two (2) years. Even if I found that the puppies belonged to Sydney Dart (in accordance with the purported verbal agreement), Ms Hajridin obviously took possession of the puppies for the purposes of the veterinary check and the subsequent planned purchase by “John”. Sydney Dart confirmed in cross examination that he had asked Ms Hajridin to take the puppies for the check, thereby giving her possession of them.
For the reasons set out, I find that the prosecution has proved its case beyond a reasonable doubt and I find the defendant Ms Hajridin guilty of these offences.
Breach of Duty of Care to Animals – 30 December 2008
Ms Hajridin is charged conjointly with Mr Frederick William Dart and Sydney Ronald Dart with failing to take reasonable steps to provide appropriate treatment for disease or injury to one rat (BT4218), one dog (BT4472) and one dog (BT4496).
S 17(1) of the Animal Care and Protection Act 2001 provides that “a person in charge of an animal owes a duty of care to it”. In proving its case, the prosecution must prove, beyond reasonable doubt, that the person charged, in this case Ms Hajridin, was “in charge” of the animals.
I have already found that the purported transfer of the animals and the business Topdogzdownunder from Ms Hajridin to Sydney Dart had no legal effect.[30] The animals therefore were still owned by Ms Hajridin and she was at law, “in charge” of them. I have also found[31] that Megan Ann Hajridin was in possession of the animals. Even if I had found otherwise with regard to the ownership of the animals, Sydney Dart confirmed in evidence that he left Ms Hajridin “in charge” of the animals at the Calcium property. I am therefore satisfied that Ms Hajridin was “in charge” of the animals that were found on the Calcium property on 30 December 2008.
(a) Rat BT4218
[30] At paragraph [80]
[31] At paragraph [87]
Dr Lomax was the RSPCA veterinarian who accompanied RSPCA inspectors and police when the warrant to enter was executed at Calcium on 30 December 2010. She gave evidence that she examined this rat after it was transported back to RSPCA headquarters in Townsville from the Calcium property. She stated that the rat was very quiet and she saw that it had a very large lesion measuring about 7 cm x 2.5 cm on its body. The lesion tapered off, was very smelly and infected. She said the rat was obviously unwell and was euthanased on humane grounds.
It was put to her in cross examination that the lesion had almost healed and had been treated by Ms Hajridin applying Betadine. Dr Lomax reiterated her opinion that the lesion was infected and the rat very sick.
Evidence given by both Ms Hajridin and Frederick Dart was that Ms Hajridin had separated the rat from the main cage and placed it in with a mother and babies so it could recover. They stated that Ms Hajridin had been treating the lesion with Betadine for several days and that the wound was pink and healing and that it only needed for the hair to grow back.
A short excerpt of video of this particular rat was placed in evidence by Frederick Dart[32] and I have had the opportunity of examining the lesion for myself. It appears very large and deep. The quality of the video makes it difficult to see whether the lesion is healing or not.
[32] Exhibit 33
Dr Lomax has been a veterinary surgeon for 40 years and worked for the RSPCA for some time, more latterly on a contract basis. She has had vast experience with regard to the treatment of animals over this period. She gave her evidence forthrightly and with competence, referring to notes she had made at the time with regard to the various animals, the subject of these charges. I accept her evidence in preference to that of the defendants.
Whilst I accept that Ms Hajridin had been treating this rat with Betadine for several days, this was clearly not the treatment which should have been given by a responsible pet owner.
I find that the prosecution has proved its case beyond a reasonable doubt and I find the defendant, Ms Hajridin, guilty.
(b) Dog BT4472
It was ascertained at hearing that Dog BT4472 was named Poshi. Poshi had recently whelped and was found with her puppies in the shed (which they shared with Ms Hajridin and Frederick Dart) at the Calcium property during the exercise of the Warrant of Entry on 30 December 2008.
In her evidence, Dr Lomax stated that when she examined Poshi, she found that the dog had a pus infection to the ear. She described the appearance of the ear when she first saw it as looking like a black irregular crust covering the ear canal. When the crust was removed, it revealed the entire canal to be blocked by pus. She could only presume that the black crust was the result of dirt accumulating on top of the infection. She said this was rare and that the more common infections were a brown, yeasty infection found in dogs with floppy and hairy ears.
It was her opinion that it would have taken approximately 2 weeks for such an infection to build up and that any infection would have been discovered if regular daily checks were made of the dog’s ears. Photographs of Poshi and her infection are in evidence.[33]
[33] Exhibit 26
Ms Hajridin said that she did examine the animals on a regular basis and that she did not notice anything wrong with Poshi’s ear. She said also that she was reluctant to handle Poshi too much as she had just whelped and she needed to be careful of her. She said she did not smell any odour from Poshi’s ear and the dog did not exhibit any behaviour such as scratching her ear or turning her head to the side to indicate any problems. She also emphasised that Poshi had upright ears, and intimated that any infection would be readily visible.
When shown the photographs of Poshi’s ear, Ms Hajridin (as did Sydney Dart) stated that whatever dog was in the photograph certainly did need treatment, but that dog was not Poshi. Their inference was that the RSPCA had substituted the dog in the photograph because, as Sydney Dart put it, the RSPCA was persecuting them.
Such a suggestion I find to be unfounded. The animal was photographed with a serial number which had been issued to it and I find that this animal was indeed found at the Calcium property and identified as Poshi. Ms Hajridin was in charge of Poshi and, on the evidence, I find that she breached her duty of care to Poshi by not taking reasonable steps to treat the infection. I find Ms Hajridin guilty of the charge.
(c) Dog BT 4496
At the hearing, this dog was identified as being named Carlin. Ms Hajridin readily admitted that she was aware of his dental problems. She says she recognised these shortly before Christmas and brought it to Sydney Dart’s attention. She says he directed her to make an appointment to have Carlin treated by a vet and Ms Hajridin says because of the Christmas holiday period, the first available appointment was the first Wednesday in January 2009, and she made an appointment for that day.
Unfortunately, no evidence was put before the court from the veterinary surgery involve d that such an appointment was made. Ms Hajridin said, as did Sydney Dart, that the vet involved advised he would need to be recompensed hundreds of dollars for the time spent away from his practice to give evidence and they could not afford this. Mr Morris graciously conceded that he would be happy for the vet to give evidence by telephone and to have that evidence interposed to enable the defendants to put their case. This offer was not taken up. I have the evidence of Ms Hajridin and Sydney Dart that arrangements had been made to have Carlin treated as soon as practicable.
I have had reference to the photographs of Carlin’s teeth which illustrate the advanced stage of the problem with his teeth which Dr Lomax told the court, were infected. I can only conclude, especially in light of the findings on credit which I have found, that Ms Hajridin had not taken reasonable steps, that is timely steps, to arrange treatment for Carlin.
I therefore find that the prosecution has proved its case beyond reasonable doubt and I find the defendant guilty of this charge.
Possession of a seized animal – 30 December 2008
Ms Hajridin is charged conjointly with Frederick William Dart and Sydney Ronald Dart with possessing an animal seized under Part 2 of the Animal Care and Protection Act 2001 – namely one dog (BT4448).
This dog was seized during the execution of the Warrant to Enter at the Calcium property on 30 December 2008 and was identified by RSPCA inspectors through a microchip as being an animal which had previously been seized by the RSPCA from the same property in July 2008. This animal was also one of the animals forfeited to the RSPCA pursuant to the order of this court made on 12 December 2008.
Ms Hajridin has given evidence that she saw the animal roaming on the side of the road on Riverside Drive on a date sometime in late November 2008. She says she was on her way to Mr Sydney Dart’s house and took the animal there. She further says that she placed advertisements in the newspaper’s lost and found column, but no owner came forward. She then took the animal to the Calcium property where it was found when the RSPCA attended on 30 December 2008 to execute the warrant.
The court was not provided with any evidence that the advertisements were placed. The only evidence I have before me is that of Mr Frederick Dart and Mr Sydney Dart that they were aware Ms Hajridin had placed the advertisements.
In cross examination it was put to Ms Hajridin that she had arranged for a person named Rosemary Grant (the mother of one of Ms Hajridin’s friends) to foster this dog after it was seized by the RSPCA in July 2008 and gave her a similar dog of the same age and type in a swap arrangement. This was hotly denied by Ms Hajridin.
Notably, the prosecution did not call any evidence from Ms Grant to support this contention, nor did they present positive evidence as to how this seized dog came to be back in Ms Hajridin’s possession when the Warrant to Enter was exercised on 30 December 2008.
This offence is set out in s 149(2) of the Act. Subsection (2) states –
A person, other than an inspector or a person authorised by an inspector for the purpose, must not do, or attempt to do, any of the following unless the person has a reasonable excuse – (the possession of a seized animal is one of a number of activities then listed).
This is a mandatory section and unless Ms Hajridin can provide a reasonable excuse for possessing this dog, she must be found guilty of the offence. It would appear that the onus is on the defendant to provide a reasonable excuse. Given my earlier finding with regard to the credit of the defendants’ evidence and the failure by Ms Hajridin to provide positive evidence to support her story, I reject her version of events and find her guilty of the charge.
Breach of Prohibition Order – 30 December 2008
Ms Hajridin has been charged jointly with Frederick William Dart of breaching the prohibition order made by Magistrate Smith on 12 December 2008. The charge arises out of the evidence found by the RSPCA when they executed the Warrant of Entry at the Calcium property on 30 December 2008.
To succeed in relation to this charge, the prosecution must prove beyond a reasonable doubt that Ms Hajridin purchased, acquired or took possession of any dog or rat for trade or commerce.
I have already found that Ms Hajridin was “in charge” of animals at the Calcium property on 30 December 2008. Ms Hajridin (together with Frederick Dart) resided in a shed at the property. The vast majority of the animals (37 dogs, 567 rats and 272 mice) were housed in the same shed, albeit with a partition between their living quarters and the various rodent cages.
Evidence was led by the Defence that Ms Hajridin and Frederick Dart did not acquire dogs and rats for trade or commerce between the raid which took place in July 2008 and that of 30 December 2008. Evidence was given by the defendants that not all animals were taken on the first occasion and that the ones that were on the property as at 30 December 2008 were as a result of dogs whelping and rats and mice giving birth. Some “rescue dogs” (those which had been rescued), were also on the property, but not housed in the shed.
Mr Singer when he gave evidence, stated that only one dog was left on the property after July 2008 and that all rodents had been seized. This is in contrast to each defendant’s evidence. I note that whilst Ms Hajridin and Frederick Dart were subsequently charged as a result of the July 2008 “raid”, they had not been convicted of those charges until Magistrate Smith passed sentence on 12 December 2008. It was therefore legally open to them to acquire and possess animals until the prohibition order was made on 12 December 2008.
Frederick Dart gave evidence that following the decision on 12 December 2008, it was not clear as to what they were to do with the animals that were then on the property. Indeed, the defendants lodged an appeal against the magistrate’s decision and it would appear that the defendants did not seek any legal advice as to their position with regard to the remaining animals.
As discussed above[34], it would appear that they took steps to circumvent the orders made by entering into the rather dubious agreements between themselves. Whether such agreements were entered into after the order was made on 12 December 2008 and backdated is of no import, given my decision relating to their legal effect.
[34] Paragraphs [67] to [83] above
When the Warrant to Enter was executed on 30 December 2008, neither Sydney Dart nor Frederick Dart was present. Ms Hajridin was there and was in possession of all the animals. This was admitted by Sydney Dart who was quick to emphasise that she only possessed the animals on his behalf.
Sydney Dart told the court that he allowed Ms Hajridin and Frederick Dart to remain on the Calcium property he had “leased” from Frederick Dart in the role of caretakers. As already found, I am satisfied that the defendants set up a “sham” to circumvent the court’s orders and then continued to carry out what they have tried to convince the court was a legitimate business owned and operated by Sydney Dart.
They now argue that the prosecution has not proved that the animals were kept for “trade or commerce”. I note that there were some thirty seven dogs, and the subject rats and mice housed in the shed, with other animals including poultry, housed outside. There were present in the shed dog carriers with the logo and name of “Topdogzdownunder” emblazoned on them. There was also paperwork for the animals and correspondence between Ms Hajridin and the Townsville City Council.
It appears to me that the sheer number of animals strongly suggests that Ms Hajridin was in possession of the animals for “trade or commerce”
I will now comment on the evidence of Ms Osterman. She had dealings with Ms Hajridin when she purchased a dog from her in about August 2008. When that dog had puppies in about July 2009, she contacted Ms Hajridin for assistance in selling the puppies. Ms Hajridin advised her that she would find owners for the puppies. She paid Ms Osterman for the puppies.
Sydney and Shirley Dart, together with Ms Hajridin and Frederick Dart travelled to Cairns to pick up the dogs from Ms Osterman. Later when Ms Osterman’s daughter wished to sell her dog called Comet (the puppies’ father), Ms Hajridin offered to find an owner for him. Ms Hajridin later advised that she had been able to sell the dogs on her (Ms Osterman’s) behalf and transferred money into her and her daughter’s bank accounts. These transactions are recorded in Exhibits 11 and 12.
All of these transactions occurred between April and October 2009, a period within that prescribed by the prohibition order.
It is also interesting to note that despite Ms Hajridin advising Ms Osterman that Comet had gone to a good home with an elderly couple, he was one of the dogs seized from the Calcium property on 30 December 2008.
This evidence goes to emphasise Ms Hajridin’s continued conduct in ignoring the order of the court by conducting “trade or commerce” and her general lack of credit before the court.
For these reasons, I find that the prosecution has proved its case beyond a reasonable doubt and I find the defendant guilty of breaching the prohibition order.
Breach of Duty of Care to Animals – 30 December 2008
Ms Hajridin was charged conjointly with Frederick William Dart with 2 offences of breaching her duty of care to 567 Rats and 272 Mice found on the Calcium property on 30 December 2008.
During the execution of the Warrant to Enter on 30 December 2008, the RSPCA inspectors found numerous cages housing rodents, both rats and mice.
Evidence was given by each of the inspectors involved in the execution of the Warrant and all described to the court the overwhelming smell of ammonia in the shed where the dogs, mice and rats were housed. Video was taken of the entry into that part of the shed where the rodents were housed and Mr Singer, Mr Buswell, Mr Towers-Hammond, and Mr Stageman all gave evidence of the number of mice and rats confined in cages and the conditions they found.
In particular Mr Towers-Hammond stated that when he and other inspectors entered the Calcium property, he saw a large number of cages, the vast majority of which contained rats. He stated that there appeared to be “literally chaos” in the cages and that some of the rodents had bites on them. He says he saw one animal motionless on the bottom of a cage.
He also said that he saw what he estimated to be a couple of hundred mice in a 3 tier cage which had only one small water container attached, which was empty. He estimated that there were about 90 mice on each tier of the cage and there was no food. He said the animals were obviously stressed and it appeared that they had not been attended to for some time.
He also observed about 18 dogs in the building, but apart from commenting that a few of the puppies appeared lethargic, he could see no other major problems with the rest of the animals.
Mr Stageman confirmed the strong ammonia smell in the shed and also gave evidence that he observed that one of the rodents had been cannabilised. He said that he did not investigate this any further. He with the other inspectors, assisted in loading the cages into vehicles and transporting the rodents back to the RSPCA shelter for inspection.
There was much evidence given as to the recommended requirements for the keeping of rodents and indeed the number of rodents alleged to have been kept by the defendant.
Dr Lomax gave evidence with regard to the minimum standard requirement for the keeping of laboratory rats and mice in Victoria and a copy of that standard forms Exhibit 24. She said that there was no overall nationwide compulsory standard for the keeping of rodents, but that standards such as the Victorian one, should be followed as this sets a basis for the responsible keeping of rodents.
The Victorian standard states that mice weighing up to 30 grams require an area of 60 cm2, a group between 31 grams and 40 grams require an area of 70 cm2 and over 40 require 100 cm2. With regard to rats, the standard for animals weighing between 250 grams and 550 grams require an area of 700 cm2 and more than 550 grams require 800 cm2. Where kept as a group of between 150 and 350, the animals require 225 cm2 per animal, between 351 and 550 they require 300 cm2 and over 550, they require 450 cm2. A breeding female with a litter requires 800 cm2.
It was Dr Lomax’s evidence that not more than 5 adult rats should be housed together in cages, otherwise they would fight. This is because rats are hierarchical animals which have a “pecking order”. With regards to mice, Dr Lomax stated that not more than 25 should be housed together in one cage.
Dr Lomax also stated that rats require 10 mls of water per 100 grams of body weight, while mice require 15 mls per 100 grams of body weight. She stated that when she entered the area of the shed in which the rats and mice were housed, she saw that there was barely enough water in any of the water bottles.
The size of the respective cages was measured by Mr Towers-Hammond. The three tier cage in which the mice were housed measured 53 cm x 68 cm. To calculate the room each mouse had, the calculation was 53 x 68 x 3 (being the number of tiers) ¸ number of mice – here reportedly 272. If indeed there were 272 mice in the three tier cage, the area available for each animal would be 39.75 cm2, well under the recommended standard.
It was put to Dr Lomax during cross examination that there were different standards in keeping animals for scientific experimentation and those being kept, say, for domestic consumption such as beef cattle and sheep. Whilst I accept that this is probably so, I reject the argument that because the rats and mice the subject of the present charges were being kept for sale as reptile food (which appears to be the evidence of the defendants), it is acceptable that they can be treated in a sub-standard way. This is the whole point of having legislation such as the Animal Care and Protection Act under which the current charges have been brought.
Mr Frederick Dart, in his evidence, went to great lengths to play and describe extracts from video footage shot by himself (and/or Ms Hajridin) on 30 December 2008 when the Warrant of Entry was executed at Calcium. The point of this being to emphasise that there were far less mice and rats being housed in the cages than those counted by the RSPCA after the animals were seized and when they were euthanazed at the RSPCA shelter.
Excerpts of video film taken by Mr Frederick Dart and Ms Hajridin during the execution of the Warrant of Entry on 30 December 2008 were tendered as exhibits in the defendants’ case. [35] I have viewed that film extensively and found it difficult to ascertain the number of mice on any given level at any one time, due to the consistent motion of the mice.
[35] Exhibit 33
I have already drawn conclusions with regard to the credit of the Defendants and, after giving consideration to the evidence of the very experienced RSPCA inspectors and that of Dr Lomax, I accept their evidence over that given by the Defendants.
I therefore find that the prosecution has proved its case beyond reasonable doubt and I find Ms Hajridin guilty of the offences.
Breach of Prohibition Order – 14 April 2010
As a result of an anonymous tip off that Ms Hajridin was in the possession of dogs for the purpose of trade or commerce, officers of the RSPCA attended at 8 Buchanan Street, Mount Louisa on 14 April 2010 with a Warrant to Enter.
On arrival, the inspectors (Mr Singer and Ms Tracey Jackson) knocked on the door which was not opened to them. They could however hear a female talking on the telephone inside the premises. Both Mr Singer and Ms Tracey Jackson gave evidence that they recognised the voice as that of Megan Hajridin, having had dealings with her in the past.
At this time, Ms Christine Jackson had arrived at the property and spoke to Ms Tracey Jackson, the RSPCA inspector. Ms Jackson had left two of her puppies with Ms Hajridin to look after, whilst she took her mother to the hospital. Ms Jackson had arrived to collect her pets. She was advised what was occurring and asked to wait. She subsequently collected her puppies once the RSPCA had executed the Warrant to Enter.
Despite a number of warnings, Ms Hajridin would not answer the door and let the inspectors in, Mr Singer and Ms Jackson (with police assistance), entered the property from the rear in accordance with their powers pursuant to the Animal Care and Protection Act 2001.
Once inside the property they found Ms Hajridin attempting to flee out the front door with a number of small dogs which she had placed in a large bag which she was carrying on her shoulder. She was detained by police who were stationed at the front of the property and who were supporting the execution of the Warrant to Enter by the RSPCA.
After removing the dogs from the large bag and a discussion between Ms Hajridin and the inspectors, Ms Hajridin then tried to run from them. She was chased into her neighbour’s yard and apprehended by police and handcuffed. As she was complaining of pain in the chest, the ambulance was called.
Under strenuous cross examination, Ms Hajridin gave evidence that of the estimated fifteen to twenty dogs found at the premises at Buchanan Street, Mount Louisa, two belonged to Ms Christine Jackson, two were her parents’ (who owned the property), two were Sydney Dart’s (purchased in Cairns) and some were “rescue dogs” (dogs which had been rescued as strays). She said at first in her evidence that the dogs were all from the Calcium property and then later in cross examination that she did not know where the dogs had come from. She repeatedly stated that she was just looking after them.
When she gave evidence, Ms Christine Jackson stated that she knew Ms Hajridin was keeping dogs at her (Ms Hajridin’s) mother’s house at Mount Louisa. When Ms Jackson was dropping off her puppies to be looked after, Ms Hajridin had asked her to go inside as she didn’t want the neighbours seeing her receiving the puppies.
Ms Hajridin kept repeating that the dogs were Mr Sydney Dart’s dogs and she knew nothing about them.
Mr Sydney Dart gave evidence that he had made arrangements with his friend Wayne Hannen (Ms Hajridin’s step father) to keep some dogs at his house. He stated that he made these arrangements instead of keeping the dogs at his own house, because he and his wife were afraid that the RSPCA would come and take the dogs away.
He told the court that Ms Hajridin was merely looking after the dogs for him, pursuant to their earlier agreement.
Given my earlier decision that the entering into that agreement was a sham put in place to circumvent the order of the court, I find that without any corroborating evidence from Mr Wayne Hannen or his wife Naomi, the evidence of the defendants’ cannot be relied upon.
I therefore find that Ms Hajridin is guilty of the charge of breaching the prohibition order made on 12 December 2008, by having in her possession dogs for the purpose of trade or commerce.
Frederick Dart
It is accepted that at the relevant time, Mr Frederick Dart and Ms Hajridin had been in a de facto relationship and had so been for some 19 years. I understand from the evidence given in court that this relationship is now tentative, although Ms Hajridin still resides at the Calcium property which is owned by Mr Frederick Dart.
It is also accepted that before the prohibition order was made on 12 December 2008, Mr Frederick Dart and Ms Hajridin jointly bred, possessed, purchased and sold dogs and rats for trade or commerce. There is nothing before me to show that Mr Frederick Dart divorced himself from the activities at the Calcium property. Indeed, he was called by Ms Hajridin on the 22 December 2008 (during the ‘sting’ operation), on the 30 December 2008 (when the warrant to enter was executed at the Calcium property) and on 14 April 2010 (when the warrant to enter was executed at Mount Louisa).
The Townsville City Council file relating to the application for rezoning and change of use which forms exhibit 31, contains correspondence written by Mr Frederick Dart as one of the applicants. In evidence, Mr Frederick Dart admitted that he had written some correspondence with regard to the application as the registered owner of the property at Calcium. I therefore find that Mr Frederick Dart was jointly engaged with Ms Hajridin in possessing and acquiring dogs and rats for trade and commerce.
Breach Duty of Care to Animals – 30 December 2008
1. Rat BT4218
2. Dog BT4472
3. Dog BT4496
Now Rat BT4218 is the rat which has been identified as the one which had a deep laceration to its back and which Ms Hajridin had been treating with Betadine. Dog BT4472 was named Poshi, which animal had a badly infected ear, while Dog BT4496 was named Carlin and had rotten teeth.
I will not here repeat the evidence given with regard to these particular animals, other than to reiterate that these animals suffered as a result of a breach of duty of care. The question is whether Mr Frederick Dart was “in possession” or “in charge” of those animals along with Ms Hajridin. If he was, then he will also be guilty of the charges brought against him. Given my decision that the purported agreement leasing the property to Mr Sydney Dart was a sham, that Mr Frederick Dart was residing with Ms Hajridin at the Calcium property in the very shed which housed the animals and where documentation relating to the business Topdogzdownunder was found and his participation in the application to Council for a rezoning, I find that Mr Frederick Dart was therefore “in possession” or “in charge” of those animals.
I therefore find that the prosecution has proved its case beyond reasonable doubt and I find Mr Frederick Dart guilty of the charges.
Possess Seized Animal – 30 December 2008
Breach of Prohibition Order – 30 December 2008
Mr Frederick Dart was jointly charged with Ms Hajridin with these offences. I refer to my discussion of the evidence with regard to these charges above[36] and will not repeat it here.
[36] Paras [124] to [131] and [132] to [148] respectively
Given my decision with regard to the Defendants’ onus to provide a reasonable excuse for possessing a seized animal and Mr Frederick Dart’s involvement with the activities at the Calcium property, I find him guilty of these charges.
Breach of Duty of Care to Animals – 30 December 2008
1. 567 Rats
2. 262 Mice
A lot of evidence was led on behalf of the Defendants with regard to the housing provided for both the rats and the mice at the Calcium property. Mr Frederick Dart described to the court the research undertaken by both he and Ms Hajridin on the internet and the construction of enclosures sufficient to keep the animals.
As noted above[37], evidence was given by the prosecution witnesses as to what was observed on entering the area where the rats and mice were housed. Dr Lomax also gave succinct evidence as to the minimum requirements for the keeping of rodents. On the basis of that evidence which I accept, I find Mr Frederick Dart guilty of the charges.
[37] Paras [151] to [155]
Sydney Dart
Breach Duty of Care to Animals – 30 December 2008
1. Rat BT4218
2. Dog BT4472
3. Dog BT4496
Possess Seized Animal – 30 December 2008
Mr Sydney Dart is Mr Frederick Dart’s father. He was not the subject of the prohibition order made on 12 December 2008. He did however purport to enter into various agreements with Mr Frederick Dart and Ms Hajridin in an attempt to circumvent the order of this court. He is not charged with such an offence.
If I had found that Mr Sydney Dart had possession, was in charge of or acquired animals, then on the findings already made with regard to the breach of duty of care above[38], Mr Sydney Dart would be guilty of breaching a duty of care to Rat BT4218, Dog BT4472 (Poshi) and Dog BT4496 (Carlin), as well as to 567 rats and 272 mice.
[38] Paras [113], [119], [123] & [166]
There would be the same outcome with regard to the having possession of a seized animal.
However, given my decision that the purported agreements between the parties were a sham, I find that Mr Sydney Dart did not have possession, nor was he in charge of any of the animals, the subject of these charges. This is not to say that he did not own some of the dogs found at the Calcium property, in relation to which no charges were brought. I therefore find Mr Sydney Dart not guilty of the charges brought against him.
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