SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SUTCLIFFE v RSPCA (SA) INC
[2016] SASC 125
Judgment of The Honourable Justice Blue
11 August 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - STATUTORY OFFENCES
Appeal against conviction.
The appellant was charged on complaint with two counts of ill-treating cats on 2 September 2011 and between 3 September and 17 October 2011 in contravention of s 13(2) of the Animal Welfare Act 1985 (SA).
A Magistrate found both counts proved and recorded convictions.
The defendant appeals against her convictions on the grounds that:
1. The Magistrate erred in not staying the proceedings as an abuse of process.
2. The Magistrate erred in holding that mens rea was not an element of the offence.
3. The Magistrate erred in finding that the appellant failed to provide appropriate and adequate living conditions for her cats.
Held:
1. The appellant did not adduce any evidence capable of supporting a finding that the respondent was prosecuting the proceeding for an improper purpose (at [49]).
2. Voluntariness is an element of the offence created by subsections 13(2) and (3)(b)(i) of the Act but specific intent, recklessness or negligence is not an element (at [59]-[67]).
3. The Magistrate ought to have identified voluntariness as an element of the offence. However, on the evidence no issue as to voluntariness arose (at [76]-[77]).
4. The Magistrate ought to have addressed the defence created by subsection 13(5) but on the evidence no issue as to the defence arose (at [79]).
5. The Magistrate did not err in finding that it was proved beyond reasonable doubt that the appellant failed to provide her cats with appropriate and adequate living conditions (at [92]-[121]).
6. Appeal dismissed (at [122]).
Acts Interpretation Act 1915 (SA) s 42; Animal Welfare Act 1985 (SA) s 13, s 30, s 32A; Animal Welfare Act 1993 (Tas) s 8; Criminal Code Act 1995 (Cth) s 4, s 5, s 6; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Police Offences Act 1927 (NZ) s 7; Prevention of Cruelty to Animals Act 1936 (SA) s 5; Prevention of Cruelty to Animals Act 1979 (NSW) s 4, s 5, s 6, referred to.
Bell v Gunter unreported, Supreme Court of New South Wales, Dowd J, 24 October 1997; Fleet v District Court of NSW [1999] NSWCA 363; McEwen v Roddick [1952] NZLR 938; Mitchell v Marshall [2014] TASSC 43; Morgan v Masters (1980) 25 SASR 128, discussed.
Cameron v Holt (1980) 142 CLR 342; He Kaw Teh v The Queen (1985) 157 CLR 523; Jago v District Court (NSW) (1989) 168 CLR 23; Murray v The Queen (2002) 211 CLR 193; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Royal Society for the Prevention…
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CaseChat Overview and Summary
The case of Sutcliffe v RSPCA (SA) Inc involves an appeal against Ms Sutcliffe's convictions, brought by the Royal Society for the Prevention of Cruelty to Animals (SA) Inc. Ms Sutcliffe was found guilty of failing to provide appropriate and adequate living conditions for her cats. The legal issues in the case revolve around the interpretation of the statutory offence, the applicability of mens rea, and the assessment of Ms Sutcliffe's living conditions provided to her cats. The court was required to decide whether the Magistrate erred in declining to stay or dismiss the proceeding as an abuse of process, whether mens rea was an element of the offence, and if Ms Sutcliffe indeed failed to provide her cats with appropriate and adequate living conditions.
The court found that the Magistrate did not err in declining to stay or dismiss the proceeding as an abuse of process. The court held that there was no evidence provided by Ms Sutcliffe to support her claim that the RSPCA brought the proceeding for an improper purpose. Additionally, the court concluded that the Magistrate was correct in finding that mens rea was not an element of the offence created by the relevant subsections of the Act. The court also rejected Ms Sutcliffe's argument that the Magistrate should have identified and addressed the defence of honest and reasonable mistake of fact, as there was no evidence to suggest that such a defence would have been successful.
The court found that the Magistrate's decision that Ms Sutcliffe failed to provide her cats with appropriate and adequate living conditions was supported by the evidence. The court held that the Magistrate was entitled to accept the evidence of the RSPCA witnesses, despite their interest in the proceeding, and that there were no inconsistencies or implausible aspects in their evidence to warrant setting aside the findings of credit. The court also noted that Ms Sutcliffe did not point to any specific issues with the witnesses' evidence to support her argument.
The final orders of the court were to dismiss the appeal and uphold the convictions of Ms Sutcliffe for failing to provide appropriate and adequate living conditions for her cats.
The court found that the Magistrate did not err in declining to stay or dismiss the proceeding as an abuse of process. The court held that there was no evidence provided by Ms Sutcliffe to support her claim that the RSPCA brought the proceeding for an improper purpose. Additionally, the court concluded that the Magistrate was correct in finding that mens rea was not an element of the offence created by the relevant subsections of the Act. The court also rejected Ms Sutcliffe's argument that the Magistrate should have identified and addressed the defence of honest and reasonable mistake of fact, as there was no evidence to suggest that such a defence would have been successful.
The court found that the Magistrate's decision that Ms Sutcliffe failed to provide her cats with appropriate and adequate living conditions was supported by the evidence. The court held that the Magistrate was entitled to accept the evidence of the RSPCA witnesses, despite their interest in the proceeding, and that there were no inconsistencies or implausible aspects in their evidence to warrant setting aside the findings of credit. The court also noted that Ms Sutcliffe did not point to any specific issues with the witnesses' evidence to support her argument.
The final orders of the court were to dismiss the appeal and uphold the convictions of Ms Sutcliffe for failing to provide appropriate and adequate living conditions for her cats.
Orders
Orders of the court
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Background
Background to the litigation
The defendant appeals against her convictions on the following grounds:1.The Magistrate erred in declining to stay or dismiss the proceeding as an abuse of process because the prosecution was brought for an improper purpose.2.The Magistrate erred in holding that mens rea was not an element of the offence created by subsections 13(2) and (3)(b)(i) of the Act.3.The Magistrate erred in finding that Ms Sutcliffe failed to provide appropriate and adequate living conditions for her cats.Background In 1983, Ms Sutcliffe and her family moved to her current property at Chandlers Hill (the premises). During the 1980s, Ms Sutcliffe commenced breeding Ragdoll cats. She commenced advertising them for sale. In the mid-1990s, Ms Sutcliffe constructed a purpose-built shed to function as a cattery at a cost of about $16,000. When the females became pregnant, they were brought into a bathroom in the house, where they remained while nursing kittens. The number of cats varied between about 20 and about 50, increasing with the birth of kittens and decreasing with the sale of kittens or cats. The population was relatively stable within these parameters until 2010. On 17 December 2000, officers of the RSPCA attended at the premises and seized Ms Sutcliffe’s kelpie, subsequently euthanasing him. The RSPCA prosecuted Ms Sutcliffe in the Magistrates Court and she was found guilty and ordered to pay the RSPCA’s costs. In 2010 and 2011, several events occurred which resulted in increasing numbers of, and difficulties experienced by Ms Sutcliffe in looking after, her cats. There were domestic disturbances at home which made it more difficult for her to spend time selling cats and kittens. Her health deteriorated. She found it more difficult to obtain regular help. She also experienced financial difficulties. On 16 December 2010, officers of the RSPCA attended at the premises and conducted a search authorised by a search warrant. No proceedings were instituted as a result of this search. Ms Sutcliffe had previously employed a high school student, Alex, to help her clean out the cattery every Saturday morning. Later, she employed various other persons to help her with cleaning, the last of whom was Stewart, who also helped her mop the floors inside the house. This help stopped before August 2011. By Easter 2011, Ms Sutcliffe reached the end of her line of credit with her bank. By this stage, she was aged 71 years and suffering from arthritis and was only able to clean the cattery and the house every two to three weeks. In August 2011, the RSPCA received a complaint concerning the cats at the premises. On 31 August 2011, a warrant was issued by a Magistrate under sections 30 and 31D of the Act authorising officers of the RSPCA to enter and search the premises. On 2 September 2011, officers of the RSPCA attended at the premises to execute the search warrant. Cheryl Doudle, an RSPCA inspector, attended in company with an RSPCA veterinarian, Dr Bradley Ward, seven other RSPCA officers or staff members and two police officers. Ms Sutcliffe was present on this occasion. The search was recorded by video camera and the audio-visual recording was tendered in evidence at trial. There were approximately 160 cats at the premises, of which the RSPCA seized 62 cats. The RSPCA issued to Ms Sutcliffe an animal welfare notice under section 31B of the Act directing her, inter alia, to: ·Provide appropriate and adequate food for each cat and kitten to maintain a body condition score of 5/9 as per the attached Purina body condition system chart.·Ensure each cat and kitten has access to fresh, clean kitty litter on a daily basis.·That each aviary cage shed and dwelling or any other enclosure is cleaned daily to maintain an acceptable level of hygiene.·That each aviary, cage or any other enclosure is not over crowded with cats and/or kittens so as to prevent inadequate exercise (this includes the dwelling).
Evidence
Evidence Before The Court
The purposes alleged by Ms Sutcliffe, if they represented the RSPCA’s purposes in instituting and prosecuting the proceedings, were improper purposes. The issue is whether the Magistrate ought to have been satisfied that the proceeding was instituted and prosecuted for one or more of those purposes.Evidence to justify finding of purposes Ms Sutcliffe produced to the Magistrate various documents prepared by others relating to the conduct interstate and overseas of sister organisations of the RSPCA. She did not adduce evidence that the RSPCA was acting in concert with those sister organisations to bring proceeding for improper purposes and, as the Magistrate held, none of that material assisted her in proving improper purpose by the RSPCA. Ms Sutcliffe produced documents prepared by herself and others relating to the conduct of the RSPCA or SAPOL in relation to other persons. None of this material was capable of proving that the RSPCA instituted and prosecuted the proceedings against Ms Sutcliffe for an improper purpose or that the RSPCA was collaborating improperly with SAPOL. Ms Sutcliffe did not adduce any evidence capable of supporting a finding that the RSPCA was prosecuting the proceeding for any of the improper purposes she alleged. This ground of appeal fails.Mental element of the offence The first ground argued on appeal by Ms Sutcliffe is that the Magistrate erred in law in relation to the mental element of the offence created by subsection 13(2) of the Act. The Magistrate identified two elements of the offence, namely that the defendant is the owner of the animal and that the defendant failed to provide the animal with adequate living conditions. The Magistrate went on to hold that the test for the second element is an objective one:I consider the test to be applied is an objective one. In other words, the court must consider what, in the particular circumstances, would constitute minimum adequate living conditions. This may vary according to the type and number of animals, locality, weather and any other external, variable circumstances. Sometimes, extraordinary external circumstances (e.g. bushfire) may reduce or alter, at least for a short time, what otherwise would be ‘adequate living conditions’. However the circumstances may vary, an owner is under a continuing obligation to provide, at the least, minimum adequate living conditions for the animal(s). Ms Sutcliffe contends that the Magistrate erred in proceeding on the basis that the offence created by subsection 13(2) of the Act is an offence of strict liability and does not require mens rea. Ms Sutcliffe contends that there is a common law presumption, part of “the rule of law”, in the interpretation of statutes that mens rea forms an element of any statutory offence, which presumption is only to be rebutted by clear expression or necessary intendment.Elements of the offence There is not a simple dichotomy between offences of “strict liability” and offences in which mens rea is required. As to the former, a distinction is often drawn between offences of so-called “absolute liability” in respect of which it is said that there is no mental element[5] and offences of so-called “strict liability” in respect of which it is said that the defence of honest and reasonable mistake of fact is a defence.[6] As to the latter, where a fault element is required, different offences require different types of fault ranging from intention through knowledge and recklessness to negligence.[7] More fundamentally, because the subject matter of offences is almost invariably human conduct, it is difficult, and overly simplistic, in the case of many offences to draw a sharp line between the physical and mental elements of the offence. [5] See, for example, the definition of “absolute liability” in section 6.2 of the Criminal Code comprising the Schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code).[6] See, for example, the definition of “strict liability” in section 6.1 of the Criminal Code.[7] In He Kaw Teh v The Queen (1985) 157 CLR 523 at 530-531, Gibbs CJ described the expression mens rea as “ambiguous and imprecise”. See also 568-570 per Brennan J.
Decision
Reasons for decision
The Magistrate ought to have identified this defence and addressed the question whether it was established on the evidence. Ms Sutcliffe did not raise or rely upon the defence at trial, but as she was not represented by a solicitor or counsel her failure to do so was not fatal. However, on the evidence before the Magistrate, no issue arose that the defence had any application. If it was proved beyond reasonable doubt by the prosecution that Ms Sutcliffe failed to provide her cats with appropriate and adequate living conditions, there was no basis in the evidence for any contention that she took reasonable care to avoid the commission of the offence, ie that she took reasonable care to provide her cats with appropriate and adequate living conditions.Conclusion This ground of appeal fails.Appropriate and adequate living conditions The second ground argued on appeal by Ms Sutcliffe is that the Magistrate erred in finding that it was proved beyond reasonable doubt by the RSPCA that she failed to provide her cats with appropriate and adequate living conditions.Findings as to witnesses As noted above, the Magistrate found the evidence of Ms Doudle, Mr Venn and Dr Ward to be honest and reliable. Essentially, the Magistrate accepted the evidence of fact given and expert opinions expressed by the three prosecution witnesses. The Magistrate did so in preference to the evidence given by Ms Sutcliffe in those limited cases in which there was a conflict. Ms Sutcliffe contends that the Magistrate ought to have rejected the evidence of the three prosecution witnesses because they were all officers or employees of the RSPCA and therefore not neutral or objective. In relation to evidence of fact, the mere fact that a witness has an interest in a proceeding, whether civil or criminal, does not render the witness’s evidence inadmissible or preclude acceptance of it by the Court. This is exemplified by the fact that parties to proceedings are often witnesses. In relation to evidence of expert opinion, the mere fact that a witness has an interest in a proceeding does not render the witness’s evidence inadmissible or preclude acceptance of it by the Court. In both cases, the Court should have appropriate regard to the interest of the witness in the proceeding before accepting the witness’s evidence. In the present case, it is evident that the Magistrate did so. Ms Sutcliffe complains more generally that the Magistrate ought not to have accepted the evidence of Ms Doudle, Mr Venn and Dr Ward. Ms Sutcliffe does not point to any particular aspect of their evidence in this regard. I have reviewed the transcript of the evidence. The Magistrate saw and heard the witnesses give evidence and was in a superior position to assess their evidence. There is nothing inherently implausible and there were no irreconcilable inconsistencies in their evidence so as to render this one of the rare cases in which findings of credit ought to be set aside on appeal.Living conditions on 2 September 2011
Ratio Decidendi
Legal Principle Established
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