Stefani v Ostle - [2010] WASC 350

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: STEFANI -v- OSTLE [2010] WASC 350

CORAM: MURRAY J

HEARD: 13 SEPTEMBER 2010

DELIVERED : 26 NOVEMBER 2010

FILE NO/S: SJA 1040 of 2010

BETWEEN: ROBERTO STEFANI
Appellant
AND
KENNETH OSTLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE LANE
Citation  :ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS -v- STEFANI
File No  :PE 64734 of 2008

Catchwords:

Appeal - Regulatory offence - Cruelty to animal - Interpretation of statutory definition of offence - Multiple grounds of appeal - Matter turns on own facts

Legislation:

Animal Welfare Act 2002 (WA), s 19

Result:

Leave to appeal refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: In person
Respondent: Mr D Markovich

Solicitors:

Appellant: In person
Respondent: Jarman McKenna

Case(s) referred to in judgment(s):

Anderson v Moore [2007] WASC 135

MURRAY J: This is an application for leave to appeal which was ordered to be heard at the same time as the appeal. When the matter came on for hearing, the appellant, who appeared in person, seemed, by reason of illness or some other cause, to be quite incapable of orally presenting argument in support of the appeal. I gave leave for written submissions to be filed and served by both parties.
The appellant ultimately filed and served two sets of written submissions. Both are dated 26 September 2010, but one was filed on 7 October, and the second set of submissions was filed on 20 October. For the respondent, I have before me, in amplification of matters that were canvassed orally, and in response to the first set of the appellant's submissions, an outline of submissions dated 8 October 2010. In addition, the papers include an outline of submissions by the respondent dated 13 August 2010. I have read these papers and the record of the proceedings in the Magistrates Court.

The prosecution and the relevant law

The appellant was charged that between approximately 1 December 2007 and 11 June 2008, a period of just over six months, at his home, being in charge of an animal, a male ginger domestic short‑haired cat named 'Ginger', he was cruel to the cat by allowing it to suffer harm which could have been alleviated by taking reasonable steps.
It is an offence against s 19(1) of the Animal Welfare Act 2002 (WA) to be cruel to an animal. The prescribed penalty is a minimum fine of $2,000 and a maximum fine of $50,000 and imprisonment for 5 years. The word 'cruel' is not generally defined in s 5(1) of the Act. But s 19(2) and (3) provide specific instances of behaviour or circumstances which will constitute cruelty to an animal. Section 19(3) is specifically concerned with the conduct of 'a person in charge of an animal'.
The term 'person in charge' is defined in s 5(1) to mean, among other things:
(a)the owner of the animal;
(b)a person who has actual physical custody or control of the animal;
The prosecution notice relied upon s 19(3)(h) which provides that:
a person in charge of an animal is cruel to an animal if the animal -
(h)suffers harm which could be alleviated by the taking of reasonable steps;
By s 5(1):
harm includes -
(a)injury;
(b)pain; and
(c)distress evidenced by severe, abnormal physiological or behavioural reactions;
It is important in this case to note that in the case of many of the examples provided in s 19(2) and (3) of the means by which a person may be established to be cruel to an animal, the law is concerned with the defendant's conduct. Section 19(2) provides that a person is cruel to an animal if the person tortures or otherwise ill‑treats it, uses a prescribed inhumane device on it, intentionally or recklessly poisons it, does any prescribed act to or in relation to the animal, or in any way causes it unnecessary harm.
So far as s 19(3) is concerned, as I have said, it applies to, 'a person in charge of an animal'. And I have mentioned the material parts of the definition of the term 'person in charge'. Some of the matters specifically constituting cruelty to an animal under s 19(3), like those matters dealt with in s 19(2), relate to the conduct of the defendant. For example, it is cruel if an animal is transported, confined, restrained, caught, worked, driven, ridden or otherwise used in a manner that causes or is likely to cause it unnecessary harm.
But other examples of cases when a person in charge of an animal may be found to be cruel to it are omissions. Examples include the failure to provide the animal with proper and sufficient food or water, shelter, shade or other protection from the elements, or where the animal is abandoned. Section 19(3)(h) falls into this category. A person will be held to be cruel to an animal if, however caused, the animal suffers harm as defined in s 5(1) which could be alleviated by the taking of reasonable steps.
In my opinion, that requires of a person in charge of an animal, that he or she takes steps to alleviate harm suffered by an animal in the person's charge, ie, relative to this case, an animal that the person owns or of which he or she has actual physical custody or control. It matters not, for the purpose of a judgment that a person in charge of an animal is cruel to it, within the meaning of s 19(3)(h), that the harm, the injury, pain or distress suffered by the animal, was not in any way caused by any act or conduct of the person in question.
The case of Anderson v Moore [2007] WASC 135 involved a flock of sheep owned by and under the control of the appellant. They suffered harm because, over a period, they were effectively allowed to starve, to the point that they were malnourished and unable to sustain normal activity. Some had died. It was, therefore, a case like this, where the substantive issue was that posed by s 19(3)(h), whether the harm could have been alleviated by the taking of reasonable steps.
Jenkins J discussed the legal framework for the charge at [49] ‑ [53]. I respectfully agree with her Honour, that where the charge of cruelty to an animal is framed as it was in that case and as it is in this case, the charge will be made out if the prosecution proves beyond reasonable doubt that:
(1)the accused was the 'person in charge' of the animal within the definition in s 5(1);
(2)from whatever cause, the animal suffered 'harm' as defined, ie, injury, pain or severe distress; and
(3)there were reasonable steps which the accused could have taken, but did not, which would have alleviated the harm.
As to the last mentioned element, it follows that it will be for the prosecution to identify those steps, to establish that they were reasonably available, but not taken, and to prove that the identified reasonable step or steps would have alleviated the harm suffered by the animal.
It is not necessary for the purpose of this judgment to attempt any list of circumstances such as cost, availability and the like, which might affect the court's judgment about whether the suggested steps were 'reasonable'. However, it is important to note that I have concluded that reasonableness is to be judged in relation to a person in the position of the accused. The question is what steps that person might reasonably have taken, but did not.
Further, the word 'alleviate' is not specially defined by the Act, but is a word of ordinary meaning. The Shorter Oxford English Dictionary defines the word, when used in the sense adopted in s 19(3)(h), to mean, 'make less burdensome or severe, relieve, mitigate, diminish'. In other words, to alleviate the harm does not mean to cure or take it away completely. It will be sufficient that the accused is established to have failed to take a step reasonably available to that person which could cure or remove the harm, or at least diminish or relieve it to some appreciable extent.
Finally, this was a case which had the potential to raise a defence to the charge under s 21. By that provision, it would be a defence if the appellant proved, on the balance of probabilities, the onus being upon him, that (so far as s 21 is material) he was:
acting on the instructions of a veterinary surgeon, and was providing the animal with veterinary care in accordance with generally accepted veterinary practices.

The proceedings in the Magistrates Court

The appellant defended the charge, which was heard in the Magistrates Court by Magistrate Lane on 10 November 2009. The prosecution called as witnesses, a Ms Power, an inspector with the RSPCA, a Ms Phillips, a veterinary nurse and shelter supervisor at the Cat Haven, and a Ms Robinson, the operations manager at the Cat Haven. The appellant gave evidence and called a Ms Gribble, who was with Silver Chain and was a regular visitor to his home. Her evidence was of her observation of the appellant and the way he treated his cat. She also gave character evidence for the appellant.
The appellant also called Dr Sherry, a veterinary surgeon who had examined the cat and provided a diagnosis. It seems that the prosecution sought an adjournment to call Dr De Souza, a veterinary surgeon employed at the Cat Haven, upon whose evidence they proposed to rely. But the application for the adjournment was not pursued in the light of Dr Sherry's evidence, and so the prosecution closed its case and no further evidence was called.
Her Honour reserved her decision, which she gave on 10 December 2009. She convicted the appellant, fined him $2,500 (remembering that the minimum penalty was a fine of $2,000) and after hearing evidence and receiving submissions on 23 December 2009, she awarded costs to the prosecution in the sum of $10,000. In addition, she acceded to the application made by the respondent, a general inspector of the RSPCA, that the appellant be prohibited from being in charge of any animal for five years, pursuant to s 55(2)(a) of the Act.
Finally, her Honour ordered the appellant to surrender any existing animals in his care to the RSPCA, pursuant to s 55(2)(b)(ii), whereupon he said that he would have cockroaches and rats available for collection.

The facts

In what follows I will set out the facts as found by her Honour the magistrate, and as incontrovertibly established by the evidence. The cat, Ginger, belonged to the appellant. He was in charge of the cat. He had had it as a pet for about 13 years.
The cat had a steadily progressing eroding nasal lesion. It had been getting worse for a period of about a year, and by the time the appellant took the cat to Dr Sherry, on 14 March 2008, it was very evident. Dr Sherry made a presumptive diagnosis of squamous cell carcinoma, a form of skin cancer. It had attacked the cat's nose. Dr Sherry advised the appellant that the diagnosis could be confirmed by a biopsy. But in any event he recommended surgery to excise the lesion and reconstruct the nose. Dr Sherry said that he advised the appellant that he anticipated that the cat was already in discomfort, that the disease would more rapidly worsen, that the cat's pain and discomfort would increase, and that action should be taken to treat the cat sooner rather than later.
The appellant rejected the treatment proposed. He said it was too expensive, and he could not afford it. He was told that in that case the cat should be euthanased. The appellant rejected that option also, and he left with the cat without undertaking any remedial treatment.
By about 28 May 2008, a couple of weeks before the cat was euthanased, the appellant had observed that the lesion was worsening. It had spread to the cat's chin. He then investigated the cost of euthanasia, but felt it was too high. Ultimately, on 11 June 2008, he took the cat to the Shenton Park Cat Haven and surrendered it to them for euthanasia for an agreed cost (after some disputation) of $25. This is where Dr De Souza came in. She was the veterinary surgeon on duty at the Cat Haven, and performed the euthanasia.
Ms Robinson photographed the cat before and after it had been put down. The photographs were exhibits. I have viewed them. It is perfectly evident that the lesion had progressed to the point where, as her Honour found, the cat had, 'one eye semi‑closed and a raw, gaping wound where his nose should have been, and an open wound in his right cheek' [14]. The photographs bear out that conclusion. There was evidence that the cat was in pain, and there were scabs where he had scratched the cheek area to ease the pain.
As I have mentioned, Dr De Souza was not called, but Dr Sherry was. He was shown the photographs and gave as his opinion that, by 11 June 2008, there was clear evidence that the condition had worsened quite rapidly after he saw the cat on 14 March 2008. There was evidence that the cat had been in pain, and significant pain would have been suffered for at least a week prior to the appellant's attendance at the Cat Haven.
On the basis of that evidence and those findings of fact, it was perfectly apparent that her Honour should find, as she did, that each element of the offence had been proved beyond reasonable doubt and the conviction was entered. In short, there was no dispute that at all relevant times the appellant had charge of the cat, in that he owned it and it was in his actual physical custody. The carcinoma constituted harm because it was an injury suffered by the cat. In addition, it quite evidently caused pain and distress, evidenced by the scratching and other abnormal behaviour of which the evidence spoke.
That was present to some degree in March 2008 and rapidly worsened thereafter, until by the end of May the appellant was inquiring about the expense which would be involved in having the cat euthanased. Nonetheless, it took him two weeks to get to the Cat Haven and actually have the operation performed, by which time the cat, according to Dr Sherry's opinion, accepted by her Honour, was showing all the signs of considerable pain and distress, and the injury constituted by the carcinoma was grave.
As to whether the harm suffered by the cat could be alleviated by the taking of reasonable steps, the evidence was clear. The operative procedure recommended by Dr Sherry, if carried out in a timely way without delay, might well have cured the problem. That was the evidence of Dr Sherry and the advice he gave to the appellant in March 2008. The evidence supported the conclusion that that step was reasonable. The appellant's objection to the cost was not elevated to the point of providing any indication that the appellant could not, rather than that he would not, bear the expense.
That step was reasonable, but not being taken, it became the case that the only reasonable step to alleviate the animal's suffering was to euthanase it, a course to which the appellant ultimately, if belatedly agreed. The appellant's guilt of the offence charged was clearly established beyond reasonable doubt.
For completeness, I observe that it will be evident that the evidence raised no capacity for the appellant to argue that his inactivity had anything to do with the instructions of a veterinary surgeon, and that he was providing the animal with veterinary care in accordance with generally accepted veterinary practices. Her Honour was right to hold that there could be no suggestion of a defence under s 21 of the Animal Welfare Act.

The appeal

The appeal in this matter was instituted on 20 April 2010. Rather than endeavour to summarise the grounds upon which leave to appeal is sought, I will set them out in full:
1.The Learned Magistrate made an error in stating that the prosecution proved each element of the offence beyond any reasonable doubt.
2. The Magistrate erred by disregarding my objections on the prosecution's witness that no witness had any admissible statement to make relevant to the case, aside than denigrate my good name, in what I believe to be character assassination.
3. The Learned Magistrate erred by not having considered the fact that at the visit of the RSPCA officer I became upset by the fact that she cautioned me by saying that anything I may say may be used in a court of law, a caution that prior to this I had only heard in American movies, and always related to criminal offences.
4.From the very start, the RSPCA classified me as a criminal by requesting my criminal and driving records. I don't have anything to hide but this upset me immensely.
5.The Learned Magistrate erred by allowing the prosecution ample irrelevant diatribes and was very antagonistic towards me. I felt that not only myself but my nationality was in question.
6.The Learned Magistrate erred by considering that I wasn't a credible witness when she granted an adjournment to the prosecution and at my objection cited my previous adjournment.
7.I am 72 years old and have never mistreated an animal. The charges made against me by the RSPCA made me believe that the RSPCA are a law on their own, making me a cruel criminal. It is beyond my comprehension.
8.I request an extension of time be granted in this matter as I have health issues and complications after having cataract operations.
As to ground 8 it is, of course, clear that the fine having been imposed, costs having been awarded, and the other orders having been made on 23 December 2009, the appeal was instituted considerably out of time. However, I think the most convenient course is to allow the extension of time so that the matter may be decided upon the merits, although it must be said that the affidavit filed by the appellant in support of the application for an extension of time merely makes the assertions to which the ground refers in general terms. No independent evidence is provided in support of those assertions and ordinarily the court would not extend time on the basis of such evidence alone.
Leave to appeal is sought against conviction, sentence and the orders made upon conviction, and costs.
No ground of appeal raises a specific challenge to the determinations of her Honour the magistrate in respect of her sentence. However, for completeness I should say that, given the penalty range applicable, the fine of $2,500 was, in the circumstances of this case, entirely within the bounds of a proper discretionary judgment. Indeed it was lenient.
The orders made directed to preventing the appellant from having charge of animals for a period of five years were clearly justified, because the appellant seemed to have little understanding of what was required by the Act of a pet owner caring for a small animal.
The costs order involved the exercise of the power to make an order as to costs, pursuant to s 58(1) of the Act. The respondent's application for costs was argued on 23 December 2009. An award of $17,000 was sought. As can be seen, her Honour reduced the award to $10,000, made up of the professional costs of the solicitors and counsel representing the respondent, and disbursements incurred.
The costs were, in my view, justifiably higher than might ordinarily have been expected for a trial in the Magistrates Court because the hearing of the matter involved three directions hearings, and getting up for and attendance at a trial listed to be heard in June 2009 which, as I understand it, was adjourned at the appellant's request. That made necessary the preparation of the case and attendance for the trial, lasting most of the day, on 10 November 2009, with the separate sentencing hearing being conducted, as I have said, on 23 December 2009, following the delivery of her Honour's reasons for decision on 10 December 2009. In my view, the costs were reasonable and no ground appears upon which they might be held to be unjustified to any degree.

The merits of the grounds of appeal

I shall deal with the grounds in the order in which they are set out in the notice of appeal.

Ground 1 is a general complaint that her Honour the magistrate erred in holding that each element of the offence was proved beyond reasonable doubt. It will be apparent from what I have written above that, in my view, the ground, expressed in those general terms, cannot be made out.
There was no dispute that the appellant was in charge of the cat or that for a period before it was euthanased it suffered harm, as defined. There was ample evidence that there were reasonable steps which the appellant could have taken, but did not, which would have alleviated the harm. The problem may have been remedied if surgery was undertaken in a timely way, as the appellant was told by Dr Sherry, and finally, the appellant delayed for an appreciable period in taking the cat to be euthanased so as to relieve its suffering.
If I understand ground 2 correctly, having regard to the amplification within the appellant's written submissions, his complaint is that the prosecution witnesses had no relevant testimony to give and were simply called, unjustifiably, to portray him in a bad light. I have carefully read the transcript of all the evidence. The evidence of the witnesses to whom I have referred above was relevant and admissible. The ground cannot succeed.
Ground 3 is concerned with a visit to the appellant's home by two inspectors with the RSPCA. They were investigating the cat's state, and they were there also to interview the appellant about his conduct and his connection to the cat. The evidence was that the officer conducting that interview cautioned the appellant that he need not say anything or answer any questions unless he wished to do so, and that he should understand that anything he did say may be given in evidence.
Whether or not such a statement of the appellant's rights was strictly required as a matter of law is not to the point. The statement was designed to inform the appellant that he was under no obligation to answer any questions put by the inspectors, and putting those matters to him meant that any admissions he made might be regarded as having been voluntarily made so as to be admissible in evidence against him at a subsequent trial.
The appellant appears to have regarded this exchange as tantamount to treating him as a criminal and says he had only heard of such a thing being said in relation to a criminal investigation 'in American movies'. The short point is that nothing that occurred in this connection wrongly conveyed to the court any imputation that the appellant was of relevantly bad character.
As to ground 4, the appellant has a criminal and traffic history, and the respondent concedes that as part of its preparation it obtained that document, but it does not seem to have been adduced in evidence or put to the appellant at the trial. Nor does it seem to have been put before her Honour the magistrate at the sentencing hearing. It appears that the appellant may have had a copy of the document to which, from time to time, he obliquely referred. However, there does not appear to me to have been any attempt by the respondent to prove that the appellant was a person of bad character in any manner which would involve a breach of s 8(1)(e) of the Evidence Act 1906 (WA). This ground is without merit.
Ground 5 appears from the amplification contained in the appellant's written submissions to be an allegation of bias on the part of her Honour the magistrate, and an allegation that by her conduct and her connivance at improper conduct by prosecuting counsel, she denied the appellant a fair trial. As I considered that this was the thrust of the ground, I read the transcript of the trial and the sentencing proceedings with particular care.
Suffice it to say that her Honour conducted the proceedings with meticulous care to ensure that the appellant had every opportunity to participate fully in the trial process despite the appellant's disruptive behaviour and the provocations that, from time to time, he offered to the court. Further, there is no indication that, at any time, prosecuting counsel, or any person involved with the prosecution, behaved unprofessionally or in any way engaged in, 'irrelevant diatribes'.
On the other hand, in her reasons at [19] her Honour said:
Mr Stefani became openly loud and abusive in the witness box towards the prosecutor and refused to answer questions or deliberately gave ridiculous answers to annoy the prosecutor. This was his general demeanour throughout the proceedings.
In my opinion, the observation is well justified.
Perhaps the way that the appellant behaved is exemplified by what happened when, having led a body of evidence, an application was made for Ms Robinson to be permitted to give evidence explaining the reasons why the veterinary surgeon, Dr De Souza, was unavailable to give evidence about the state of the cat when it was finally brought into the Cat Haven to be euthanased. The purpose appears to have been to pave the way for an application by the respondent to adjourn the trial until Dr De Souza was available. Ultimately, it appears that no evidence of that kind was led from Ms Robinson, who was confined to her own evidence about her observations at the relevant time.
The application for an adjournment was made by the respondent and opposed by the appellant. Her Honour the magistrate said she was minded to grant the application because she was satisfied that the witness was not able to come to the court. She said she was prepared to grant a very short adjournment to enable the witness to be present. Her Honour said that she considered that to do so was in the interests of justice because the evidence of the witness would appear to be of some importance (ts 37).
Her Honour then stood the matter down so that inquiries could be made by telephone to the witness as to her available dates, and as to the available dates otherwise of the prosecution and of the appellant, who said he had two witnesses to whom he had paid $1,000 to be present at the court. One of those witnesses may well have been Dr Sherry who was ultimately called and who gave evidence which led the prosecution to conclude that it need not pursue its application for an adjournment to call Dr De Souza. As I have mentioned, the other witness who gave evidence for the defence, apart from the appellant himself, was Ms Gribble. When her Honour said what she proposed to do, the appellant said, 'I will see you in the Supreme Court. I guarantee you.'
The court having risen, the transcript shows that her Honour had second thoughts and reconvened the court, with some difficulty because it would appear that the appellant had told Dr Sherry he could go and he was in the process of leaving the court himself. Apparently, he did not propose to stay to participate in the process of fixing another date. When they got the appellant back into court, he said that he thought her Honour ruled as she did because, 'you try to please the RSPCA' (ts 40).
Her Honour did not react to that, but said that she had decided that the best way to proceed was for the respondent to conclude the evidence of Ms Robinson and then for the appellant to open his case, give his evidence and call his witnesses. Having heard that evidence, the respondent could decide whether it wished to close its case or proceed with the application for an adjournment to enable Dr De Souza to be called. That was a process which her Honour thought would prevent inconvenience to the appellant and his witnesses. As I have said, ultimately he gave evidence and called both Ms Gribble and Dr Sherry. The respondent's case was then formally closed.
Ground 6 appears to relate to this incident. It matters not whether an error may have been made in relation to the grant of the adjournment initially. The case was not adjourned, but it proceeded in the way and with the content that the appellant desired, for better or worse in relation to the final outcome, having regard to the evidence given by Dr Sherry. There is no merit in ground 6.
Finally, ground 7 does not appear to be a ground of appeal at all, but rather an observation reflecting the appellant's incapacity to understand the nature of the proceedings, their justification and how to participate in them. As I have said, careful perusal of the transcript does not reveal any failure in the process of trial to deal fairly and justly with the appellant in the context of the need for the court also to have regard to the legitimate interests of the respondent to present his case.
So far as ground 7 has any content concerned with the nature of the prosecution and the legal framework in which the charge brought by the appellant was to be determined, I have discussed the relevant matters of law arising out of the statutory provisions and I have pointed out that in a case such as this, where reliance in support of the charge under s 19(1) is placed on s 19(3)(h), there is no need for the prosecution to prove that the defendant actively engaged in conduct which would enable it to be said that he 'mistreated' the animal. What is required to be proved beyond reasonable doubt is that the animal suffered harm while the accused was in charge of it and that the accused failed to take steps reasonably open to him which would have alleviated the harm.

Conclusion

None of the grounds of appeal can be made out. Nor is there any other matter not identified by the appellant's grounds of appeal which should lead this court to interfere to set aside the decision and orders made by her Honour the magistrate. Leave to appeal is refused, and the appeal is dismissed.
The costs of the appeal should follow the event. I order the appellant to pay the respondent's costs of the appeal to be taxed: Criminal Appeals Act 2004 (WA), s 14(1)(h).