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Song v Coddington

Song v Coddington

Case [2003] NSWSC 1196 17 December 2003

Appeal

Criminal Liability

Legitimate Expectation

Criminal Law

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Reported Decision:
59 NSWLR 180

Supreme Court

CITATION: SONG v. CODDINGTON [2003] NSWSC 1196 revised - 17/12/2003

HEARING DATE(S): Wednesday 24 September 2003

JUDGMENT DATE:
17 December 2003

JURISDICTION:
Civil

JUDGMENT OF: Greg James J at 1

DECISION: All convictions quashed and each information dismissed.

CATCHWORDS: Criminal law - appeal on law from magistrate's decision - elements of offences under Regulation made under Prevention of Cruelty to Animals Act 1979 - consideration of definition of person in charge - whether applicable to Australian Quarantine and Inspection Service veterinarian performing functions under Commonwealth law.

LEGISLATION CITED: Prevention of Cruelty to Animals (General) Regulation 1996
Prevention of Cruelty to Animals Act 1979
Commonwealth Places (Application of Laws) Act 1970
Justices Act 1902
Export Control Act 1982 (Cth)
Export Contorl (Orders) Regulations 1982 (Cth)
Export Controls (Animals) Orders 1987 (Cth)
Judiciary Act 1903 (Cth)
Public Service Act 1999 (Cth)

CASES CITED: Porter (2001) 53 NSWLR 354
Australian Gas Light Co. v. Valuer General (1940) 40 SR(NSW) 126
Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321
DPP v. Brooks [1974] AC 862
He Kaw Teh (1985) 157 CLR 523
Dib (1991) 52 A. Crim. R. 64
Moors v. Burke (1919) 26 CLR 265
McKenzie v. Administrative & Clerical Officers Association, Commonwealth Public Service (1962) FLR 342
Bank of NSW v. The Commonwealth (1948) 76 CLR 1
Federal Commissioner of Taxation v. ANZ Banking Group Limited & ORs (1979) 23 ALR 480

PARTIES :
SONG, Fook Yan Hee v. CODDINGTON, Christine, THE ATTORNEY-GENERAL FOR THE COMMONWEALTH INTERVENING

FILE NUMBER(S): SC No. 13355 of 2002

COUNSEL: Plaintiff: S. Gagler, SC./J, Kirk
Defendant: R. Sutherland/P. O'Donnell
Cth AG: H. Bermeister, QC./Ms. H. Chisolm
NSW AG: N. Perran

SOLICITORS: Plaintiff: Minter Ellison
Defendant: Smyth Mallam
Cth AG: Australian Government Solicitor
NSW AG: Crown Solicitors Office

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : D.J. Pearce

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

WEDNESDAY 17 DECEMBER 2003

No. 13355 of 2002

FOOK YAN HEE SONG v. CHRISTINE CODDINGTON & THE ATTORNEY GENERAL FOR THE COMMONWEALTH INTERVENING

JUDGMENT

1 HIS HONOUR: The plaintiff, Dr. Song, by summons seeks orders that his convictions in a number of proceedings instituted by Inspector Coddington in the Local Court at Sutherland for offences involving a number of goats be quashed and the informations in each case dismissed.

2 The first defendant, Inspector Coddington on behalf of the RSPCA, sought an order for costs if successful. The other parties sought no order for costs in the event the convictions were overturned and provided no argument as to why, in the event that the summons should be dismissed, an order for costs in favour of the defendant should not be made.

3 Dr. Song was convicted of some eight offences, each under clause 5(1)(b) of the Prevention of Cruelty to Animals (General) Regulation 1996 (NSW) (“the Regulation”), a regulation made under the Prevention of Cruelty to Animals Act 1979, (NSW) (“the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Song v Coddington

Details

AGLC: Song v Coddington [2003] NSWSC 1196
Case: [2003] NSWSC 1196
Decision Date: 17 December 2003

CaseChat Overview and Summary

In the case of Song v Coddington, the defendant, Coddington, appealed against a magistrate's decision which found him guilty of three offences under regulations made under the Prevention of Cruelty to Animals Act 1979. Coddington had been found guilty of failing to provide food, water, and shelter to three dogs that were in his care. The dispute centred on whether a veterinarian from the Australian Quarantine and Inspection Service, who was performing functions under Commonwealth law, could be considered a "person in charge" as defined by the regulations. The case was heard in the District Court of New South Wales.

The legal issue before the court was whether the definition of "person in charge" under the regulations could apply to a person performing functions under Commonwealth law. The court was required to determine if the definition of "person in charge" was limited to those who had direct responsibility for the animals or if it also included those who had oversight or control over the animals under Commonwealth law. The court needed to interpret the phrase "person in charge" in the context of the Prevention of Cruelty to Animals Act 1979 and the relevant regulations.

The court held that the definition of "person in charge" under the regulations was not limited to those who had direct responsibility for the animals. The court found that the phrase "person in charge" included those who had oversight or control over the animals under Commonwealth law. The court noted that the purpose of the regulations was to prevent cruelty to animals and that the definition of "person in charge" should be interpreted broadly to achieve this purpose. The court found that the veterinarian from the Australian Quarantine and Inspection Service was a "person in charge" of the dogs and therefore liable under the regulations.

The court dismissed the appeal and upheld the magistrate's decision. The court found that the evidence was sufficient to establish that Coddington had failed to provide food, water, and shelter to the three dogs. The court ordered Coddington to pay a fine and costs.

Orders