Sutcliffe v RSPCA (SA) Inc - [2016] SASC 125

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 of Cruelty to Animals (SA) Inc v O’Loughlan [2007] SASC 113; Ryan v The Queen (1967) 121 CLR 205; Walton v Gardiner (1993) 177 CLR 378; Williams v Spautz (1992) 174 CLR 509, considered.

SUTCLIFFE v RSPCA (SA) INC
[2016] SASC 125
Magistrates Appeal:
BLUE J:

This is an appeal against conviction.
The respondent, the Royal Society for the Prevention of Cruelty to Animals (SA) Inc (the RSPCA) issued a complaint in the Magistrates Court against the appellant, Glynne Sutcliffe, alleging two counts of ill treating cats on 2 September 2011[1] and between 3 September and 17 October 2011 in contravention of sections 13(2) and (3)(b)(i) of the Animal Welfare Act 1985 (SA) (the Act).
[1] The complaint originally charged that count 1 was committed between 2 May and 2 September 2011 but was amended during trial to confine it to 2 September 2011.
A Magistrate found both counts proved and recorded convictions.
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).
Ms Doudle attended again at the premises on 7 September 2011 to serve a second animal welfare notice and on 14 September 2011 to monitor compliance with the animal welfare notices.
On 29 September 2011, a second 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 30 September 2011, officers of the RSPCA attended at the premises to execute the search warrant. Ms Doudle attended in company with RSPCA inspector Paul Venn, another RSPCA staff member 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.
On 15 October 2011, the RSPCA received information that there was a high level of mortality amongst newborn kittens at the defendant’s property, with deceased bodies placed in bins and in the freezer inside the house.
On 17 October 2011, officers of the RSPCA attended at the premises to undertake a further search. Ms Doudle attended in company with Dr Ward and two other RSPCA officers and two police officers. The search was recorded by video camera and the audio-visual recording was tendered in evidence at trial. Ms Sutcliffe was not present on this occasion. 40 cats and kittens were seized.
On 10 May 2012, a complaint was laid against Ms Sutcliffe alleging various breaches of the Act.
On 20 May 2013, a fresh complaint was laid against Ms Sutcliffe alleging two breaches of section 13(2) of the Act (the complaint).
On 5 September 2013, Ms Sutcliffe filed a document in which she applied inter alia for an order that the charges be dismissed as an abuse of process. The document attached lengthy submissions why the proceedings were an abuse of process because inter alia they were brought for improper purposes.
On 14 January 2014, the Magistrate heard Ms Sutcliffe’s abuse of process application. The Magistrate treated the application as an application to permanently stay or dismiss the proceedings. Ms Sutcliffe tendered the 5 September 2013 document, transcripts of what was said during the RSPCA’s attendances on 2 and 30 September and 17 October 2011 and 12 other documents generated by Ms Sutcliffe and/or others.
On 3 February 2014, the Magistrate dismissed Ms Sutcliffe’s permanent stay/dismissal application, giving reasons for his decision.
Between June 2014 and July 2015, the trial proceeded over various dates to accommodate Ms Sutcliffe’s health. The prosecution adduced evidence from Ms Doudle, Mr Venn and Dr Ward. The prosecution tendered the audio-visual recordings of the searches together with various other exhibits.
At the end of the prosecution case, Ms Sutcliffe made a no case to answer submission. The submission was based partly on a contention that the RSPCA had no right to prosecute for offences under the Act. The Magistrate ruled that the RSPCA had a right to prosecute criminal offences at common law or under section 42 of the Acts Interpretation Act 1915 (SA). The Magistrate found that there was a case to answer.
Ms Sutcliffe gave evidence and tendered various exhibits.
The charges
The complaint alleged ill treatment of the cats in contravention of subsection 13(2) by failing to provide the cats with adequate living conditions within the meaning of section 13(3)(b)(i).
The complaint was in the following terms:
Count 1
On the 2nd day of September 2011 at Chandlers Hill in the State of South Australia, the defendant ill-treated animals, namely cats in that being the owner of such animals she failed to provide the animals with adequate living conditions.
Sections 13(2) and (3)(b)(i) of the Animal Welfare Act 1985
Particulars
A. As to approximately 30 animals located in a shed on the 2^nd of September 2011:
(1) On 2 September 2011
(2) Failed to provide:
i.Any or any adequate bedding material.
ii.Any or any adequate litter management.
iii.An environment free from an accumulation of faeces.
iv.Any or any adequate ventilation.
v.Adequate conditions for mothers with babies.
vi.Clean conditions including the removal of spider webs and an accumulation of waste.
vii.Any or any adequate separation of cats.
viii.Adequate space to live with appropriate population density.
B. As to approximately 4 animals located in an aviary on the 2^nd of September 2011:
(1) On 2 September 2011[2]
[2] The complaint had not been properly amended in that this part still reflected “between 22 July 2011 and 2 September 2011” but it is clear from the order for amendment that the complaint was to be read as confined to 2 September 2011.
(2) Failed to provide:
i.Any or any adequate bedding material.
ii.Any or any adequate litter management.
iii.An environment free from an accumulation of faeces.
iv.Clean conditions including the removal of rotting waste.
v.Any or any adequate separation of cats.
vi.Adequate space to live with appropriate population density.
vii.Adequate shelter from the weather.
C. As to approximately 20 animals located in a bathroom (“bathroom one”) on 2 September 2011:
(1) On 2 September 2011
(2) Failed to provide:
i.Any or any adequate bedding material.
ii.Any or any adequate litter management.
iii.An environment free from an accumulation of faeces.
iv.Any or any adequate ventilation.
v.Clean conditions.
vi.Any or any adequate separation of cats.
vii.Adequate space to live with appropriate population density.
viii.Any or any adequate temperature control of the environment.
D. As to approximately 6 animals located in a bathroom (“bathroom two”) on 2 September 2011:
(1) On 2 September 2011
(2) Failed to provide:
i.Any or any adequate bedding material.
ii.Any or any adequate litter management.
iii.An environment free from an accumulation of faeces.
iv.Any or any adequate ventilation.
v.Clean conditions including the removal of an accumulation of waste.
vi.Any or any adequate separation of cats.
vii.Adequate space to live with appropriate population density.
Count 2
Between about the 3^rd day of September 2011 and the 17^th day of October 2011 at Chandler’s Hill in the State of South Australia, the defendant ill-treated animals, namely cats in that being the owner of such animals she failed to provide the animals with adequate living conditions.
Sections 13(2) and (3)(b)(i) of the Animal Welfare Act 1985
Particulars
A. As to approximately 22 animals located in a shed on 17 October 2011:
(1) Between about 3 September 2011 and 17 October 2011
(2) Failed to provide:
i.Any or any adequate bedding material.
ii.Any or any adequate litter management.
iii.An environment free from an accumulation of faeces.
iv.Any or any adequate ventilation.
v.Clean conditions including the removal of an accumulation of waste.
vi.Any or any adequate separation of cats.
vii.Adequate space to live with appropriate population density.
viii.Adequate food for nursing cats.
B. As to approximately 2 animals located in an aviary on 17 October 2011:
(1) Between 3 September 2011 and 17 October 2011
(2) Failed to provide:
i. Any or any adequate bedding material.
ii.Any or any adequate litter management.
iii.An environment free from an accumulation of faeces.
iv.Adequate shelter from the weather.
Reasons for judgment
The Magistrate summarised the history of the proceedings and the evidence. The Magistrate reiterated that he had dismissed Ms Sutcliff’s applications for a permanent stayed or dismissal of the charges on the ground that they comprised an abuse of process
The Magistrate gave reasons for overruling objections by Ms Sutcliffe to the admission of evidence of the three searches on the ground that the searches were illegal. The Magistrate held that there was no basis to go behind the first and second warrants in respect of the first and second searches. The Magistrate held that the third search was authorised by the second warrant in the special circumstances in which the RSPCA received fresh information on 15 October 2011 and in any event would have been authorised in the absence of a warrant under section 30(2)(b) of the Act.
The Magistrate admitted evidence of Ms Doudle, Mr Venn and Dr Ward as to their observations during the searches. The Magistrate admitted the audio-visual recordings of the three searches, disregarding any commentary or observations by persons who did not give evidence at trial. The Magistrate admitted various exhibits to which Ms Sutcliffe had objected on the ground that the searches were unlawful. The Magistrate admitted six other documents tendered by the RSPCA to which objection had been taken by Ms Sutcliffe.
The Magistrate summarised the evidence given by the three RSPCA witnesses and by Ms Sutcliffe. The Magistrate preferred the evidence of the RSPCA witnesses over the evidence of Ms Sutcliffe where there was a conflict.
The Magistrate identified that there were two elements of the offences, namely that the defendant is the owner of the animal during the relevant period and that the defendant failed to provide the animals with adequate living conditions. The Magistrate identified that both elements needed to be proved by the prosecution beyond reasonable doubt. The Magistrate summarised and analysed the competing contentions by the RSPCA and Ms Sutcliffe.
The Magistrate said:
Where the evidence of the defendant and the three prosecution witnesses differ, I accept beyond reasonable doubt the evidence of the latter, in particular, Ms Doudle and Dr Ward. There was some inconsistency in the evidence of Ms Doudle and Dr Ward, concerning the exact number of cats seized from Ms Sutcliffe’s premises… On this issue, I accept the evidence of Ms Doudle …
Without qualification, I find as proven beyond reasonable doubt the evidence of the three prosecution witnesses and the various exhibits, in particular the recordings of the searches on 2 September, 30 September and 17 October 2011 concerning the circumstances of the living conditions for the cats and the cats’ physical and medical conditions at Ms Sutcliffe’s premises on 2, 7, 14 and 30 September and 17 October 2011.
I accept Ms Sutcliffe’s evidence as to some of the circumstances – poor health, deteriorating finances and lack of help – which contributed to the decline in living conditions in her cattery during 2010/11. However, I reject Ms Sutcliffe’s evidence placing blame or responsibility on the RSPCA and others as, at best, an exculpatory rationalisation for the declining conditions in her cattery.
…
Whilst the defendant is not required to prove or disprove anything, Ms Sutcliffe made a number of points in evidence and argument, stating the prosecution evidence did not prove the alleged inadequate living conditions.
First, it was argued that the ‘distressed’ behaviour by her cats described by Ms Doudle and Dr Ward was caused by the presence and conduct of the RSPCA staff (and police) during the searches. I accept the presence of strangers in relatively confined spaces with the cats may well have distressed them (as conceded by Dr Ward in evidence). Secondly, Ms Sutcliffe maintained the cats in the aviary area were not exposed to the elements as she left the area open so the cats could move to the fully covered section of the aviary or shed as they wished. I accept the cats may not have always been as confined in a shed or aviary areas as when the RSPCA searches were in progress. Thirdly, Ms Sutcliffe stated the dirt floor of the aviary and the use of cardboard and Styrofoam boxes for litter trays provided adequate litter management for the cats in the outbuildings. Similarly, she argued the baths in Bathrooms 1 and 2 provided an adequate and easy method of litter management and cleaning.
However, the evidence, overwhelmingly, suggests the litter management and clean-up methods used by Ms Sutcliffe, at least by the period 2 September – 17 October 2011, were manifestly inadequate. This is demonstrated by both the evidence of Ms Doudle and Dr Ward and the recordings of the three searches, the latter of which show an extraordinary quantity and distribution of faeces and other refuse in the main areas occupied by the cats.
Fourthly, Ms Sutcliffe stated the RSPCA arranged the searches at times just prior to her regular clean-ups of the cattery. In other words, the RSPCA did not see the cattery either at its best, or in its usual state. Certainly, the cattery would be cleaner just after a clean-up, than just before. However, the evidence does not support Ms Sutcliffe’s claim. Ms Doudle attended the defendant’s premises on 2, 7, 14 and 30 September and 17 October (i.e. on three different days of the week – Friday, Wednesday and Monday). As well, whether the searches took place just before a clean-up or later, and living conditions (including refuse collection) had to be maintained at an adequate standard of hygiene at all times.
Certainly, some improvement and cleaning was visible on 30 September and 17 October. However, large amounts of faeces and refuse were still visible. Some of the faeces was fresh, some old. As well, Ms Sutcliffe, in her own evidence, stated that, due to lack of help and her poor health, she was cleaning the outbuildings only once every ‘two or three weeks’ and that was not sufficient (664, 11 – 24). Given the number of cats at Ms Sutcliffe’s property (even after the first seizure of cats on 2 September), the cleaning regime was, by this time, too little and too infrequent.
Fifthly, Ms Sutcliffe argued the conditions at her cattery were, at least, adequate as her cats were in ‘good condition’. However, some cats were visibly not in good condition (see P19 and P20), whilst more than 40% of those seized were found to suffer from feline AIDS. As well, a few of the cats seized were underweight suggesting that the living conditions were not providing some of the cats with adequate, regular sustenance.
Finally, Ms Sutcliffe argued the RSPCA investigation of her cattery was not motivated by care or concern for the cats, but to close her cattery and seize the best, most valuable of her cats. Where Ms Sutcliffe conceded conditions at her cattery had deteriorated, she maintained it was the fault or responsibility of the RSPCA (and others). The assertion of ‘persecution’ by the RSPCA made and with much conviction, but no evidence. The conditions at Ms Sutcliffe’s cattery during September/October 2011 not only justified RSPCA intervention, they required it.
The evidence is overwhelming. The evidence establishes beyond reasonable doubt that by the first RSPCA search of Ms Sutcliffe’s property on 2 September 2011 the living conditions for the cats, whether inside the house, in the outbuildings or elsewhere, were in some parts of the cattery, appalling, and in all parts well short of adequate. There was over-crowding, inadequate enclosures, inadequate bedding and unhygienic conditions arising from poor and irregular cleaning and rubbish removal. While some food and water was being regularly provided, I am satisfied beyond reasonable doubt the amounts and frequency were inadequate for the number of cats in the various areas inside the house, outbuildings, enclosures and those free-ranging outside. Clearly, these conditions existed before 2 September 2011, but it is not possible to identify to the requisite degree (beyond reasonable doubt) at what time Ms Sutcliffe ceased to provide adequate living conditions for the cats. Consequently, count 1 was amended at the end of the prosecution case.
Although there was some cleaning and improvement in conditions between 2 September (partly occasioned by the first seizure of cats by the RSPCA) and the final search on 17 October 2011, I am satisfied beyond reasonable doubt that at all times from 2 September to 17 October 2011 the living conditions in all parts of Ms Sutcliffe’s cattery were completely inadequate. The presence of a large number of deceased kittens located during the 17 October search is one reflection of the dire state of conditions in Ms Sutcliffe’s cattery.
In short, there were too many cats and, by September/October 2011, Ms Sutcliffe had neither the personal nor financial resources to provide adequate living conditions at the cattery. As the owner of the cats, the failure to do so was Ms Sutcliffe’s responsibility alone.
For the reasons given, I find the prosecution have proven both charges of ill-treating animals by failing to provide adequate living conditions beyond reasonable doubt. I find Ms Sutcliffe guilty of both counts.

After delivery of reasons for judgment, the Magistrate heard submissions on penalty. The Magistrate proceeded under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose a single penalty for both counts of a fine of $7,000. The Magistrate ordered that Ms Sutcliffe pay $6,830 (reduced from $10,467 by proceeds of sale of seized cats) for veterinary and boarding costs incurred by the RSPCA in respect of the cats seized; $9,500 for legal costs; court costs; and victim of crime levies. The Magistrate ordered Ms Sutcliffe to surrender all cats currently in her care and control to the RSPCA within 14 days (under section 32A(1)(b) of the Act) and prohibited her from acquiring, or having care or control of, any animal until further order (under section 32A(1)(d) of the Act).
Notice of appeal
Ms Sutcliffe, who appeared in person at the trial and on appeal, filed a notice of appeal in which she appealed against the orders for surrender and prohibiting her acquiring an animal made under section 32A of the Act. She sought urgent relief in respect of the order for surrender. She foreshadowed an intention later to amend the notice of appeal to appeal against the convictions and other penalties. The urgent relief was refused by another Judge.
Ms Sutcliffe did not subsequently amend her notice of appeal. However, she made written and oral submissions in support of an appeal against the convictions. The appeal was argued on the basis that the grounds of appeal were identified by Ms Sutcliffe in those submissions as those listed at [4] above.
Abuse of process: improper purpose
The third ground argued on appeal by Ms Sutcliffe is that 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.
On 14 January 2014, the Magistrate heard an application by Ms Sutcliffe to stay or dismiss the proceeding as an abuse of process. The primary ground advanced in support of the application was that the prosecution was brought for an improper purpose. While Ms Sutcliffe relied on other grounds before the Magistrate, the only ground advanced on appeal is improper purpose.
On 3 February 2014, the Magistrate delivered reasons for refusing Ms Sutcliffe’s application for a permanent stay. The Magistrate gave the following reasons insofar as the application relied upon improper purpose:
Ms Sutcliff (sic) argues the RSPCA is acting against her from an improper purpose. The court has power to ensure its processes are not employed for ulterior or improper purpose, or in a way that brings the administration of justice into disrepute – Williams v Spautz, ibid, 3; Ashby v Commonwealth of Australia (2012) No. 4 FCA 1411.
Ms Sutcliff argues the improper purpose of the RSPCA is evident not only in their search, seizure of cats and prosecution of these and earlier charges, but also in their historical harassment of her since 2000. These actions, Ms Sutcliff submits, are typical of the organisation’s general failure to properly protect animal welfare in South Australia, elsewhere in Australia and in the United Kingdom.
Ms Sutcliff also submits that part of that failure is evidenced by the fact that RSPCA charges are overly brought against either vulnerable or socially isolated persons within the communities.
The articles, cases and documents providing a general critique of the RSPCA do not, in my view, assist Ms Sutcliff’s case. Regardless of the alleged shortcomings of the RSPCA in South Australia or elsewhere, in its welfare and prosecutorial roles, the issue to be proven is a specific one – are these charges brought by the RSPCA for an improper purpose? Whilst the documents and submissions made by Ms Sutcliff provide much detail and a context for the application, I do not consider that she has established this.
Whilst there is no doubt Ms Sutcliff genuinely believes she has been subject to long term harassment by the RSPCA and the South Australian Police, her views are subjective and uncorroborated by independent evidence.
Ms Sutcliff’s assertion that the searches of her premises and seizure of a large number of valuable cats were illegal or motivated by improper considerations can only be properly tested by the trial process. The legality of those actions can be challenged at trial and the admissibility of the consequential evidence decided without prejudice to the defendant, as the court has a wide discretion to exclude such evidence.
Whilst I accept the defendant’s firm belief concerning the conduct and motivations of the RSPCA, Ms Sutcliff has not proved the RSPCA has brought this prosecution for an improper purpose.
Ms Sutcliffe renewed her application on 2 June 2014 and 27 January 2015. The Magistrate also dismissed the renewed applications.
Ms Sutcliffe contended before the Magistrate, and contends on appeal, that the RSPCA instituted and prosecuted the proceeding for improper purposes including that the prosecution was brought:
1.for and at the instigation of the South Australian Police Department (SAPOL) as a reprisal for Ms Sutcliffe’s threatening to bring into public knowledge their role in organising a housebreak of her home in January 1995, to protect SAPOL’s reputation, to destroy or diminish her own reputation, and to create opportunities for SAPOL to search her house for its own purposes;
2.to strengthen bonds between the RSPCA and SAPOL;
3.to prevent or discourage Ms Sutcliffe exposing corruption of SAPOL and the RSPCA;
4.to augment the RSPCA’s pretensions to being a real police force, raise its profile in the community and improve its monopoly status in relation to animals;
5.to profit the RSPCA through the seizure of Ms Sutcliffe’s valuable cats;
6.to harm Ms Sutcliffe, her reputation, her property and her finances;
7.to bully Ms Sutcliffe;
8.to maintain employment of RSPCA officers and staff;
9.to deter others minded to criticise the RSPCA.
Improper purpose
Superior courts possess inherent power to stay proceedings on the ground of abuse of process.[3] Inferior courts may have implied power in similar terms. I assume, without deciding, that the Magistrates Court has power to stay a prosecution on the ground that it is an abuse of process.
[3] Jago v District Court(NSW) (1989) 168 CLR 23 at 28-30 per Mason CJ, 57-58 per Deane J and 74-77 per Gaudron J; Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ.
One established category of abuse of process is when a proceeding is brought for an improper purpose.[4]
[4] Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ.
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.
I accept that as a matter of statutory interpretation there is a presumption that the legislature intends to incorporate a mental element apposite to the physical element of a statutory offence and it requires a clear manifestation of a contrary intention, by express language or necessary intendment, to displace that presumption.[8] I turn to the interpretation of subsection 13(2) which is to be construed by reference to its text, context and evident purpose.[9]
[8] Cameron v Holt (1980) 142 CLR 342 at 346-347 per Barwick CJ (with whom Aickin J agreed) and 348 per Mason J; He Kaw Teh v The Queen (1985) 157 CLR 523 at 528-529 per Gibbs CJ (with whom Mason J agreed), 549-554 per Wilson J and 565-568 per Brennan J.
[9] Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28, (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ.
Subsection 13(2) needs to be understood in the context of section 13 as a whole. Section 13 provides:
13—Ill treatment of animals
(1)If—
(a)     a person ill treats an animal; and
(b)     the ill treatment causes the death of, or serious harm to, the animal; and
(c)     the person intends to cause, or is reckless about causing, the death of, or serious harm to, the animal,
the person is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 4 years.
(2)A person who ill treats an animal is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
(3)Without limiting the generality of subsection (1) or (2), a person ill treats an animal if the person—
(a)     intentionally, unreasonably or recklessly causes the animal unnecessary harm; or
(b)     being the owner of the animal—
(i)fails to provide it with appropriate, and adequate, food, water, living conditions (whether temporary or permanent) or exercise; or
(ii)fails to take reasonable steps to mitigate harm suffered by the animal; or
(iii)abandons the animal; or
(iv)neglects the animal so as to cause it harm; or
(c)     having caused the animal harm (not being an animal of which that person is the owner), fails to take reasonable steps to mitigate the harm; or
(f)    causes the animal to be killed or injured by another animal; or
(g)     kills the animal in a manner that causes the animal unnecessary pain; or
(h)     unless the animal is unconscious, kills the animal by a method that does not cause death to occur as rapidly as possible; or
(i)    carries out a medical or surgical procedure on the animal in contravention of the regulations; or
(j)    ill treats the animal in any other manner prescribed by the regulations for the purposes of this section.
(4)A person charged with an offence against subsection (1) (the aggravated offence) may be convicted of an offence against subsection (2) (the lesser offence) if the court is not satisfied that the aggravated offence has been established beyond reasonable doubt but is satisfied that the lesser offence has been so established.
(5)It is a defence to a charge of an offence against subsection (2) if the defendant proves that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
(6)In this section—
cause—a person's act or omission causes the death of, or harm to, an animal if the act or omission substantially contributes to the death or harm.
If subsection 13(2) stood alone and comprised the entirety of section 13, it might well be construed as requiring proof of intention to ill treat an animal as an element of the offence created by the subsection. However, as observed above, statutory provisions must be construed by reference not only to their text but also to their context and evident purpose.
Subsection 13(1) creates a different and more serious offence to that created by subsection 13(2). A comparison of the two subsections shows that they both have in common as an element of the respective offences created by them ill treatment by a person of an animal, but the offence created by subsection (1) contains two additional elements, namely:
1.the ill treatment causes the death of or serious harm to the animal (a physical element); and
2.the person intends to cause or is reckless about causing the death of or serious harm to the animal (a mental element).
It is clear from the respective maximum penalties, namely imprisonment for four years or a fine of $50,000 compared to imprisonment for two years or a fine of $20,000, that the offence created by subsection (1) is a more serious offence than the offence created by subsection (2). This is reinforced by subsection (4), which treats the offence created by subsection (1) as an aggravated form of the offence created by subsection (2). The fact that intention of recklessness is expressed to be an element of the offence created by subsection (1), and not of the offence created by subsection (2), strongly suggests that intention or recklessness is not an element of the offence created by subsection (2).
In addition, without being exhaustive, subsection (3) identifies 13 types of conduct that comprise ill treatment of an animal for the purposes of subsections (1) and (2). The first type of conduct the subject of section 13(3)(a) is “intentionally, unreasonably or recklessly” causing the animal unnecessary harm. This suggests that it cannot be an element of the offence created by subsection (2) that the defendant intends to ill treat the animal because mere negligence suffices to amount to ill treatment under section 13(3)(a). Section 13(3)(b)(i) stands in contrast to section 13(3)(a) in not including intention, recklessness or negligence as a component of failing to provide appropriate and adequate food, water, living conditions or exercise. This suggests that intention, recklessness or negligence do not form an element of this particular species of ill-treatment.
In addition, subsection 13(5) creates a defence to a charge of an offence against subsection (2) if the defendant proves that the offence did not result from any failure on her or his part to take reasonable care to avoid the commission of the offence. This is inconsistent with intention, recklessness or negligence being an element of the offence the onus of proof of which would lie on the prosecution.
The evident purpose of subsection 13(2) is to create a lesser offence than the offence created by subsection 13(1), containing only the first of the three elements of the more serious offence and without the causation or intention or recklessness elements of the more serious offence. Section 13 proceeds on the basis that the owner of an animal has an affirmative responsibility to look after it.
The mental element of the offence created by subsection 13(2) varies depending on the type of ill treatment referred to in subsection 13(3). In some cases, there is a specific mental element, such as under paragraph (a) which requires intention, recklessness or unreasonableness. In other cases, such as under paragraph (b), there is no specific mental element required.
Nevertheless, it is commonly an element of common law and statutory offences that the conduct of the defendant comprising or forming part of the physical element of the offence be voluntary, ie deliberate conduct by the defendant.[10] Some of the types of ill treatment referred to in subsection 13(3) involve acts by the defendant, such as killing the animal or causing the animal to be killed referred to in paragraphs (f), (g) and (h). It is an element of the offence of ill treating an animal in contravention of subsection 13(2) in those cases that the act of killing the animal or causing animal to be killed is a voluntary (or deliberate) act. This does not require proof that the defendant intended to kill or cause the animal to be killed but it does require that the act which resulted in the death of the animal was a voluntary act as opposed, for example, to an accident or involuntary movement by the defendant.
[10] Ryan v The Queen (1967) 121 CLR 205 at 209 per Barwick CJ and 244-245 per Windeyer J; Murray v The Queen (2002) 211 CLR 193 at 207 per Gummow and Hayne JJ.
Other types of ill treatment referred to in subsection 13(3) involve omissions by the defendant, such as failing to take steps to mitigate harm suffered by an animal after it has been caused harm by the defendant referred to in paragraph (c). It is an element of the offence of ill treating an animal in contravention of subsection 13(2) in that case that the omission to take mitigatory steps comprise voluntary (or deliberate) conduct. This is suggested by the use of the word “fail” together with the general presumption that voluntariness is an element of a statutory offence.
The Oxford English Dictionary includes the following definitions of the word “fail”:
III. To fall short in performance or attainment.
9. a. intr To make default; to be a defaulter; to come short of performing one’s duty or functions.
…
10. a. trans To leave undone, omit to perform, miss (some customary or expected action).
…
11. a. intr To be at fault; to miss the mark, go astray, err[11]
[11] Oxford English Dictionary 2^nd (1989) vol V.

Turning to paragraph (b)(i) of subsection 13(3), it is an element of a failure to provide an animal with appropriate and adequate food, water, living conditions or exercise that the conduct comprising the omission to so provide be voluntary. This does not require that the defendant intend to provide inappropriate or inadequate food, water, etc or know that it is inappropriate or inadequate but it does require that the conduct of the defendant be voluntary, ie be deliberate conduct. This conclusion is reinforced by the inclusion in paragraph (b) of abandonment and neglect which both connote voluntary conduct.
The distinction between voluntariness and intent to cause a particular consequence (such as intent to cause harm) is sometimes articulated at common law as a distinction between “basic intent” and “specific intent”, although the terminology referring to “basic intent” is apt to mislead.[12] The distinction is articulated in the Commonwealth Criminal Code (the Criminal Code), enacted by the Criminal Code Act 1995 (Cth), by sections 4.1 to 4.3, 5.1 to 5.6 and 6.1 to 6.2. The Criminal Code treats voluntariness as part of the physical element, rather than the mental element, of an offence, which also is apt to mislead. However, the prima facie requirement that conduct be voluntary enacted by section 4.2(1) to (5)[13] of the Criminal Code essentially reflects the common law and is a concise summary of common law principles of voluntariness. Section 4.2(1) to (5) provides:
[12] See the articulation of voluntariness, basic intent and specific intent by Brennan J in He Kaw Teh v The Queen (1985) 157 CLR 523 at 568-571.
[13] Subsections (6) and (7) provide that voluntary intoxication cannot be considered in determining whether conduct is voluntary.
4.2Voluntariness
(1)Conduct can only be a physical element if it is voluntary.
(2)Conduct is only voluntary if it is a product of the will of the person whose conduct it is.
(3)The following are examples of conduct that is not voluntary:
(a)     a spasm, convulsion or other unwilled bodily movement;
(b)     an act performed during sleep or unconsciousness;
(c)     an act performed during impaired consciousness depriving the person of the will to act.
(4)An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
(5)If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.
The construction of subsections 13(2) and (3)(b)(i) of the Act that voluntariness is an element of the offence but specific intent, recklessness or negligence is not an element of the offence is consistent with authority. There do not appear to be any relevant decisions on the construction of these specific provisions.[14] Legislation in other jurisdictions differs considerably from the provisions of the Act but decisions on such legislation provide some very general guidance.
[14] In Royal Society for the Prevention of Cruelty To Animals (SA) Incorporated v O'loughlan [2007] SASC 113 at [11], David J addressed the previous version of section 13 under which a similar offence was created by subsections 13(1) and (2)(b)(i). There was in that previous version no equivalent of the offence now created by subsection 13(1). David J said “There are two elements of the offence. The first was whether the respondent was the owner of the horse during the relevant period. ... The second element was whether the respondent failed to provide the horse with appropriate and adequate food.” However, there was no issue in that case relating to voluntariness or specific intent and David J was not called on to address those matters.
In McEwen v Roddick,[15] section 7(1)(a) of the Police Offences Act 1927 (NZ) created an offence of, inter alia, “wantonly or unreasonably doing or omitting to do any act [that] causes any unnecessary suffering … to any animal”. FB Adams J held that voluntariness was an element of the offence but no specific intent to cause suffering was required. FB Adams J said:
On the question of mens rea, Mr Dickson suggested that there must be intentional cruelty.… No doubt the act must be an intended act, or the omission one for which the mind is responsible; but, beyond this, the subsection contains its own definition of the requisite mens rea in the words “wantonly or unreasonably”. There must be volition, positive or negative (as the case may be), in the act or omission that causes the unnecessary suffering, and it must be a wanton or unreasonable act or omission. No other intent is required.[16]
[15] [1952] NZLR 938.
[16] At 941.
In Morgan v Masters,[17] section 5(1)(a) of the Prevention of Cruelty to Animals Act 1936 (SA) created an offence of ill treating an animal. Matheson J held that voluntariness was an element of the offence but no specific intent to cause unnecessary pain was required. Matheson J said:
Mens rea of course means literally “guilty mind”, but it is used by judges and academics with a variety of meanings. I think the learned Special Magistrate has used in the sense of what has frequently been called, if not satisfactorily called, “a specific intent”. I think he was implying (and rightly so) that the prosecution did not have to prove that the appellant intended unreasonably to cause the dog unnecessary pain but that it was sufficient for the prosecution to prove that he merely intended the acts which were found to cause pain and that such pain, judged objectively, was both “unreasonably caused” and “unnecessary”.[18]
[17] (1980) 25 SASR 128.
[18] At 132.
In Bell v Gunter,[19] subsection 5(1) of the Prevention of Cruelty to Animals Act 1979 (NSW) created an offence of committing an act of cruelty upon an animal, which was defined by subsection 4(2) to include “any act or omission as a consequence of which the animal is unreasonably, unnecessarily, or unjustifiably… inflicted with pain”. Subsection 6(1) created an offence of committing an act of aggravated cruelty which was defined to comprise committing an act of cruelty that resulted in death, deformity or serious disablement of the animal. Dowd J held that it was not an element of the aggravated offence that the defendant intend to cause pain. Dowd J said:
I consider therefore that the examination of the wording of the section and the wide range of acts and omissions that are covered in the legislative context of protecting animals in all circumstances, that because of the general wording used, the offences created do not require a component of intent and that mens rea is not a part of the offences created which need to be proved.
[19] Unreported, Supreme Court of New South Wales, Dowd J, 24 October 1997 BC 9708066.
In Fleet v District Court of NSW,[20] the New South Wales Court of Appeal endorsed the conclusion reached by Dowd J. Mason P, Priestley and Handley JJA said:
Before this Court the claimant chanced his arm and contended that the prosecution had to prove mens rea in the sense of a positive state of mind such as intent, knowledge or recklessness. There is no merit in this submission (see Bell v Gunter, Supreme Court, Dowd J, 24 October 1997, unreported).[21]
[20] [1999] NSWCA 363.
[21] At [48].
In Mitchell v Marshall,[22] subsection 8(1) of the Animal Welfare Act 1993 (Tas) created an offence for a person to "do any act, or omit to do any duty, which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal". Blow CJ held that voluntariness is an element of that offence but intention, knowledge or foresight of causing pain or suffering was not. Blow CJ said:
If one … analyses s8(1), it would appear that the prosecution would need to prove (1) that the defendant either did an act or omitted to do a duty; (2) that that act or omission caused or was likely to cause pain or suffering to an animal; and (3) that that pain or suffering was unreasonable and unjustifiable. If the defendant were charged with doing an act, the prosecution would no doubt have to prove beyond reasonable doubt that the act was voluntary and intentional. If the defendant was charged on the basis of an omission, there is nothing in the subsection to suggest that the prosecution would need to prove beyond reasonable doubt that the defendant knew he or she had a duty, or that he or she knew that he or she was omitting to perform that duty. And there is nothing in the subsection to suggest that the prosecution would need to prove beyond reasonable doubt that the defendant intended, knew or foresaw the results or likely results of his or her act or omission.[23]
[22] [2014] TASSC 43.
[23] At [39].
The text and context of each of the legislative provisions the subject of these decisions was materially different to those of section 13 of the Act. Great caution must be exercised in applying decisions concerning different provisions in the interpretation of a legislative provision. However, in very general terms, the reasoning adopted in those decisions applies to the interpretation of section 13 of the Act.
Voluntariness
The Magistrate ought to have identified voluntariness as an element of the offence and addressed the question whether it was established on the evidence. However, on the evidence before the Magistrate, no issue arose that Ms Sutcliffe’s conduct was not voluntary. At all material times, Ms Sutcliffe exercised control over the care of her cats. Whatever acts or omissions she committed in the care of her cats were deliberate.
Ms Sutcliffe contends that, if and to the extent that her cats did not enjoy appropriate and adequate living conditions, this was not her fault but the result of the conduct of the RSPCA in making the December 2010 search coupled with financial and physical constraints upon her ability to care for her cats. These matters do not go to the element of voluntariness. In any event, an owner of an animal retains responsibility to care for the animal notwithstanding financial or physical constraints. If an owner is unable to care effectively for an animal, the owner is obliged to sell or give away the animal to someone who can care effectively for it, including in the last resort an animal shelter or the RSPCA itself.
Defence: no failure to take reasonable care
Subsection 13(5) of the Act creates a defence to a charge for an offence against subsection (2) if the defendant proves that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
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
The complaint alleged that Ms Sutcliffe failed to provide appropriate and adequate living conditions for her cats on 2 September 2011. Particulars of the failure identified the following aspects:
1.failure to provide clean conditions, adequate litter management and keep the environment free from an accumulation of faeces for cats in the shed, aviary, bathroom one and bathroom two;
2.failure to provide adequate space and adequate separation of cats for the same cats;
3.failure to provide adequate bedding material for the same cats;
4.failure to provide ventilation for cats in the shed, bathroom one and bathroom two;
5.failure to provide adequate conditions for mothers with babies for cats in the shed;
6.failure to provide adequate shelter from the weather for cats in the aviary; and
7.failure to provide adequate temperature control of the environment for cats in bathroom one.
The Magistrate found that it was proved beyond reasonable doubt that Ms Sutcliffe failed to provide appropriate and adequate living conditions in each of these respects with the exception of items 5, 6 and 7 as to which the Magistrate made no finding one way or the other.
Ms Sutcliffe concedes on appeal that the cleanliness of the living conditions of her cats was inadequate on 2 September 2011. She disputes the other particulars of inadequate living conditions alleged by the RSPCA and found proved by the Magistrate.
Ms Sutcliffe does not identify specific errors allegedly made by the Magistrate in arriving at his findings other than contending that the result was erroneous. I have reviewed the evidence adduced before the Magistrate, and in particular the transcript of evidence of the witnesses and the audio-visual recording of the search, to ascertain whether the Magistrate’s primary factual findings were glaringly improbable, contrary to compelling inferences, unreasonable or incapable of being supported having regard to the evidence and the Magistrate’s conclusions were erroneous.[24]
Cleanliness, litter, faeces
[24] In accordance with the approach identified by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at per Gleeson, Gummow and Kirby JJ.
The Magistrate found that Ms Sutcliffe failed to provide clean conditions, adequate litter management and keep the environment free from an accumulation of faeces for the cats in the shed, aviary, bathroom one and bathroom two on 2 September 2011.
In relation to the shed, the Magistrate accepted Ms Doudle’s evidence that there was a strong smell of ammonia and faeces and that there were many flies present. There was a large stretch of cat faeces along the floor (some of which was diarrhoea), which appeared to be a mixture of fresh and old faeces. Cobwebs were present along the walls of the shed. The shed contained boxes and rubbish which are also visible in the audio-visual recording. There were cat faeces in the few litter trays available, which were soggy and wet and smelt bad. Some enclosures within the shed did not contain litter trays. Some of the cats were roaming outside of the small enclosures and did not have access to litter trays.
Dr Ward described the shed as “very dirty” with a “very noxious atmosphere” due to accumulated faeces and urine and said that there were no litter trays present. Dr Ward expressed the expert opinion that the high ammonia content from the cat urine could cause respiratory diseases, conjunctivitis and eye irritations. Dr Ward expressed the expert opinion that such poor hygiene in the shed would have been stressful for the cats as cats are naturally very clean and fastidious.
Ms Doudle gave evidence that the aviary contained multiple cat faeces on the ground and in a corner. The smell was “quite overwhelming”. Many flies were present, particularly around the faeces. There were Styrofoam and cardboard boxes in the area that were soggy from cat urine and covered in cat hair.
Dr Ward gave evidence that the grassed area in the aviary was badly contaminated with old and new faeces and that the ground generally was too compacted for cats to bury their faeces. There were no litter trays, only cardboard boxes.
In relation to bathroom one, the Magistrate accepted Ms Doudle’s evidence that the room had a very strong smell of faeces and ammonia. The bathtub contained multiple cat faeces, which are also visible from the audio-visual recording. Also visible from the audio-visual recording are two litter trays full of a “liquid brown substance.” The Magistrate accepted Ms Doudle’s evidence that the two trays looked like they were filled with a mixture of water and faeces. There were flies in the room and cobwebs in the corners of the ceiling. Dr Ward’s evidence was consistent with Ms Doudle’s, also noting the two plastic containers that contained a “foul sort of liquid waste material” which was assumed to contain urine and faeces.
The Magistrate accepted Ms Doudle’s evidence that bathroom two smelt of cat faeces and urine, although it did not smell as badly as bathroom one. Cat faeces were scattered across the floor and there were cat biscuits mixed with cat faeces in large white plastic flat trays. This is visible in the audio-visual recording.
Adequate space and separation
The Magistrate found that Ms Sutcliffe failed to provide adequate space and separation between cats for cats in the shed, aviary and bathroom one on 2 September 2011.
Ms Doudle estimated that that the shed’s measurements were 15 x 20 x 15 metres and gave evidence that the 30 cats located therein were “crowded and appeared distressed.” Ms Doudle estimated the size of the enclosures within the shed to measure 5 x 7 metres. Dr Ward expressed the opinion that there were too many cats in the shed with inadequate provision for litter, eating, drinking and shelter. It is apparent from the audio-visual material that the shed was crowded by boxes and rubbish that appeared unstable.
The Magistrate accepted Ms Doudle’s evidence that in bathroom one the cats were either in or on top of the bathroom cupboard. This is visible from the audio-visual material, in which the cats are lying very close together if not partially on top of each other. It was Dr Ward’s evidence that the cats appeared “very agitated”. To that end, it could be inferred in conjunction with the numerous faeces and condensation on the walls that there was inadequate space and separation of the cats.

In relation to the aviary, the Magistrate accepted Dr Ward’s evidence that it was overcrowded, promoting aggression and stress.
Adequate bedding material
The Magistrate found that Ms Sutcliffe failed to provide adequate bedding material for cats in the shed on 2 September 2011.
The Magistrate accepted Dr Ward’s evidence that there was no bedding in the shed, only cardboard boxes.
Adequate ventilation
The Magistrate found that Ms Sutcliffe failed to provide adequate ventilation for cats in bathroom one and bathroom two on 2 September 2011.
In relation to bathroom one, the Magistrate accepted Ms Doudle’s evidence that the room was humid and sticky with condensation on the walls. The room smelt strongly of faeces and ammonia. Ms Doudle said there was no ventilation. It was Dr Ward’s evidence that bathroom one did not have any ventilation.
The Magistrate accepted Ms Doudle’s evidence that bathroom two was really hot and sweaty with condensation on the walls and no open windows or doors, although the smell was not as strong as bathroom one.
Living conditions between 3 September and 17 October 2011
The complaint alleged that Ms Sutcliffe failed to provide appropriate and adequate living conditions for her cats between 3 September and 17 October 2011. Particulars of the failure identified the following aspects:
1.failure to provide clean conditions and adequate litter management for cats in the shed and aviary;
2.failure to keep the environment free from an accumulation of faeces for cats in the shed;
3.failure to provide adequate space and adequate separation for the same cats;
4.failure to provide adequate ventilation for the same cats;
5.failure to provide adequate food for nursing cats in the shed;
6.failure to provide adequate bedding material for the cats in the shed; and
7.failure to provide adequate shelter from the weather for cats in the aviary.
The Magistrate found that it was proved beyond reasonable doubt that Ms Sutcliffe failed to provide appropriate and adequate living conditions in each of these respects with the exception of items 6 and 7 as to which the Magistrate made no finding one way or the other.
Ms Sutcliffe disputes that it was proved that there were inadequate living conditions in any of the respects alleged by the RSPCA and found proved by the Magistrate.
Ms Sutcliffe does not identify specific errors allegedly made by the Magistrate in arriving at his findings other than contending that the result was erroneous. I have reviewed the evidence adduced before the Magistrate, and in particular the transcript of evidence of the witnesses and the audio-visual recordings of the searches, to ascertain whether the Magistrate’s primary factual findings were glaringly improbable, contrary to compelling inferences, unreasonable or incapable of being supported having regard to the evidence and the Magistrate’s conclusions were erroneous.
Cleanliness, litter, faeces
The Magistrate found that Ms Sutcliffe failed to provide clean conditions or adequate litter management for cats in the shed and the aviary and failed to keep the environment free from an accumulation of faeces for cats in the shed between 3 September and 17 October 2011.
The Magistrate accepted Ms Doudle’s evidence that on the 30 September 2011 search the shed contained two litter trays overflowing with faeces and a strong smell of ammonia. On the 17 October 2011 search, there were 22 cats in the shed but no litter trays, only cardboard boxes. Again there was a strong smell of ammonia with visible cat urine, faeces and diarrhoea on the floor. It was Ms Doudle’s evidence that the shed was messy and unhygienic. Dr Ward gave evidence that the conditions had improved as at 17 October 2011; however there were still no litter trays, and the shed still smelt strongly of ammonia and contained cat faeces on the ground and in cardboard boxes.
Ms Doudle gave evidence that the aviary appeared cleaner on the 30 September 2011 search; however the cardboard boxes were still dirty and wet. Again there were no litter trays. The conditions were much the same on 17 October 2011 but with a scattering of faeces and cat biscuits on the floor. Dr Ward expressed the opinion that the aviary had been significantly cleaned up with far less faeces present, but there were still no litter trays.
Adequate space and separation
The Magistrate found that Ms Sutcliffe failed to provide adequate space and separation between cats in the shed between 3 September and 17 October 2011.
The Magistrate accepted Ms Doudle’s evidence that the conditions on 17 October 2011 were overcrowded and unhygienic. Ms Doudle gave evidence that crowded conditions could prompt aggression and fighting amongst the cats.
Adequate ventilation
The Magistrate found that Ms Sutcliffe failed to provide adequate ventilation for cats in the shed between 3 September and 17 October 2011.
The Magistrate accepted Dr Ward’s evidence that there was poor ventilation in the shed as at the 17 October 2011 search.
Adequate food for nursing cats
The Magistrate found that Ms Sutcliffe failed to provide adequate food for nursing cats in the shed between 3 September and 17 October 2011.
The Magistrate accepted Dr Ward’s evidence that there was inadequate food for nursing mothers as nursing cats generally require two to three times more food to graze on.
Conclusion
This ground of appeal fails.
Conclusion
I dismiss the appeal.