Tasovac v Veterinary Surgeons' Board of Western Australia
[2021] WASC 407
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TASOVAC -v- VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA [2021] WASC 407
CORAM: HILL J
HEARD: 24 FEBRUARY 2020 & WRITTEN SUBMISSIONS, 13 MARCH 2020, 20 MARCH 2020
DELIVERED : 23 NOVEMBER 2021
FILE NO/S: SJA 1106 of 2019
BETWEEN: ANITA TASOVAC
Appellant
AND
VETERINARY SURGEONS' BOARD OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E CAMPIONE
File Number : PE 42836 OF 2017, PE 42837 of 2017, PE 42839 of 2016, PE 42840 of 2017, PE 42841 of 2017, PE 42842 of 2017
Catchwords:
Criminal law - Appeal against conviction for six counts of practising as veterinary surgeon whilst not registered - Whether convictions unreasonable - Whether acquittal on one count inconsistent with conviction on remaining counts
Criminal law - Unregistered veterinary surgeon - Whether conduct was practise of veterinary surgery - Whether conduct involved requisite level of skill - Whether conduct was first aid - Whether defence of emergency applied
Criminal law - Significance of date in prosecution notice - Whether conduct of trial unfair
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA), s 25
Criminal Procedure Act 2004 (WA), s 78
Magistrates Court Act 2004 (WA), s 31
Veterinary Surgeons Act 1960 (WA), s 26
Veterinary Surgeons Regulations 1979 (WA), reg 45
Result:
Leave to appeal on grounds 3, 8, 12, 15, 18, 24 and 28 granted
Leave to appeal on all other grounds refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | RK Williamson & KJ Louden |
| Respondent | : | S Vandongen SC & AJC Mossop |
Solicitors:
| Appellant | : | Ross K Williamson Barrister & Solicitor |
| Respondent | : | Tottle Partners |
Case(s) referred to in decision(s):
AK v The State of Western Australia [2006] WASCA 245
Busby v Barrow [2012] WASC 58
CB v The State of Western Australia [2006] WASCA 227; (2006) 175 A Crim R 304
DPJB v The State of Western Australia [2010] WASCA 12
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
JCC v The State of Western Australia [2017] WASCA 146
Meyer v Solomon [2021] WASCA 168
Muggleton v Hall; ex parte Hall [1991] 1 Qd R 26
Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sawa Pty Ltd v Swift [2016] WASC 331
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136
Wells v The State of Western Australia [2017] WASCA 27
HILL J:
On 6 July 2017, the appellant was charged with seven counts of practising veterinary surgery without a licence, pursuant to s 26(1) of the Veterinary Surgeons Act 1960 (WA) (Act). The conduct giving rise to the charges occurred between 29 September 2016 and 19 January 2017 and concerned seven different animals: Teddy (a newfoundland dog), Roxy (a terrier cross), Macca (a kelpie), Anton (a bull terrier cross), Nimbus (a standardbred horse), Hooley (a thoroughbred gelding) and Eagle Rock (a corgi).
Following a seven day trial in 2018 and 2019[1] and the filing of written closing submissions by the parties,[2] the learned magistrate delivered written reasons for her decision on 21 June 2019 (Primary Reasons), convicting the appellant in relation to six charges and acquitting her of the remaining charge (in relation to Macca).
[1] 24 - 26 October 2018 and 12 - 15 February 2019.
[2] Filed on 29 March 2019 (respondent) and 23 April 2019 (appellant).
On 26 July 2019, the magistrate sentenced the appellant, imposing a global fine of $8,000 and ordering her to pay costs of $40,000.
The appellant appealed against her convictions. For the reasons that follow, it is my view that while I would grant leave to appeal on grounds 3, 8, 12, 15, 18, 24 and 28, the appeal should be dismissed.
Notice of Appeal and Leave to Appeal
The appellant filed her notice of appeal on 23 August 2019 which was within time.[3]
[3] Criminal Appeals Act 2004 (WA) s 10(3).
The original appeal notice contained 28 separate grounds of appeal, some of which contained sub-grounds. The grounds were amended on 28 January 2020 to, among other things, remove ground 19, and further amended both during and after the hearing before me. The reason for the lengthy grounds of appeal is that there are several grounds of appeal against each conviction, although not all grounds of appeal are raised in respect of each conviction.
The appellant requires leave to appeal.[4] The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a rational and logical prospect of succeeding.[5]
[4] Criminal Appeals Act 2004 s 9(1).
[5] Criminal Appeals Act 2004 s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
The appeal is by way of a rehearing. It is to be determined on the evidence and material that was before the learned magistrate,[6] subject to the exceptions set out in the Criminal Appeals Act 2004 (WA), none of which are relevant for the present appeal.
[6] Criminal Appeals Act 2004 s 39(1).
In reviewing the record of the trial, the court is required to make its own assessment of the evidence. In doing so, the court must make due allowance for the 'natural limitations' that occur, including that typically, the appellate court does not get taken to or read all of the evidence received in the trial and that the court at first instance had the benefit of seeing and hearing the witnesses and was entrusted with the primary responsibility of determining guilt or innocence.[7]
[7] Murphy v Spencer[2013] WASC 256; (2013) 232 A Crim R 74 [63] - [64] (Corboy J) citing AK v The State of Western Australia [2006] WASCA 245 [37] (Pullin JA) (I note that this decision was reversed by the High Court of Australia, but not on this point of law).
Even if the appellant succeeds in establishing a ground of appeal, the court can dismiss the appeal if it considers no substantial miscarriage of justice has occurred.[8]
[8] Criminal Appeals Act 2004 s 14(2).
Factual Background
It was not in dispute that at the time of the alleged offences, the appellant was not registered as a veterinary surgeon. The appellant's name was removed from the register on 5 February 2015.[9]
[9] Primary reasons [10].
Prior to her removal from the register, the appellant owned and ran a veterinary practice called Edgewater Veterinary Hospital ('EVH'). EVH is owned by Tasovac Investments Pty Ltd, who is trustee of the Tasovac Family Trust. The appellant was the sole shareholder and director of that company and the primary beneficiary of the trust. EVH's principal place of business is at 639 Wanneroo Road, Wanneroo. These premises are owned by Edgewater Investment Properties Pty Ltd, of which the appellant is the sole director and shareholder.
Following the appellant's removal from the register in 2015, Dr Rita Perry became the sole director and shareholder of Tasovac Investments Pty Ltd and the appellant's mother, Kata Tasovac, became the beneficiary of the Tasovac Family Trust. This occurred because under the Act, a controller of an entity who owns a veterinary practice is required to be registered as a veterinary surgeon.[10] Documents evidencing these transactions were admitted in evidence at the hearing.[11]
[10] Veterinary Surgeons Act 1960 s 24A(2)(b).
[11] Exhibit 35; Exhibit 43.
In September 2016, Dr Yung Yi (Eva) Lau, a graduate veterinary surgeon with limited prior experience, began working as a veterinary surgeon at EVH.
On 6 July 2017, the appellant was charged with seven counts of practising veterinary surgery while not being a registered veterinary surgeon, in breach of s 26(1) of the Act. The charges were particularised as follows:
1.The appellant who was not a registered veterinary surgeon (as defined in the Act) practised veterinary surgery by performing a surgical treatment, alternatively, a surgical operation, on a Newfoundland dog named Teddy owned by Nicola Hastle, by putting her hands into Teddy's abdomen to locate and exteriorise an undescended testicle during an intra‑abdominal bilateral cryptorchid castration. This offence was alleged to have been committed on 29 September 2016;
2.The appellant who was not a registered veterinary surgeon (as defined in the Act) practised veterinary surgery by performing a surgical treatment alternatively a surgical operation on a dog known as Roxy owned by Brad Morgan, by inserting haemostats into a draining sinus underneath Roxy's left eye (popped sinus) and removing a grass seed from Roxy. This offence was alleged to have been committed on 17 October 2016;
3.The appellant who was not a registered veterinary surgeon (as defined in the Act) practised veterinary surgery by performing a surgical operation on a kelpie dog named Macca owned by Desperate for Love Rescue, by excising a large mass (later revealed as a Grade 3 malignant sarcoma) from the right side of Macca's chest. This offence was alleged to have been committed on 29 November 2016;
4.The appellant who was not a registered veterinary surgeon (as defined in the Act) practised veterinary surgery by providing advice on the luxating patella surgery being performed on a bull terrier cross dog named Anton owned by Brian Sheldrick. This offence was alleged to have been committed on 29 November 2016;
5.The appellant who was not a registered veterinary surgeon (as defined in the Act) practised veterinary surgery on a Standardbred named Nimbus owned by Rebecca Battersby by:
(a)performing medical treatment by the administration of Detomidine and Phenylbutazone to Nimbus;
(b)performing a surgical operation on Nimbus by removing a flap of skin from Nimbus’ left rear leg;
(c)providing advice on the medial treatment and post‑operative care of the wound;
(d)providing surgical treatment of a wound on Nimbus' left rear leg (Wound) by placing a clamp on the damaged vessel; and
(e)providing surgical treatment of the Wound by ligating the damaged vessel.
This offence was alleged to have been committed on 8 December 2016;
7.The appellant who was not a registered veterinary surgeon (as defined in the Act) practised veterinary surgery on a thoroughbred gelding named Hooley owned by Lisa Dwyer by:
(a)examining Hooley for the purpose of making a diagnosis of an injury;
(b)diagnosing Hooley with a damaged tendon sheath (Diagnosed Injury);
(c)providing advice and treatment options for the Diagnosed Injury; and
(d)providing medical treatment of the Diagnosed Injury.
This offence was alleged to have been committed on 19 December 2016;
8.The appellant who was not a registered veterinary surgeon (as defined in the Act) practised veterinary surgery by performing a surgical operation (castration) in stripping the tunic from the testicle of a corgi dog named Eagle Rock owned by Mrs Renwick. This offence was alleged to have been committed on 19 January 2017.
At the trial, the prosecution called seven witnesses: Dr Lau; Lisa Dwyer, the owner of Hooley; Kaylene Cartledge, a friend of Ms Dwyer; Rebecca Battersby, the owner of Nimbus, and her father, Desmond Battersby; Alice Harper, a student veterinary nurse at EVH; and Christoper Lloyd, lead inspector for the Veterinary Surgeons' Board of Western Australia (Board). The prosecution also tendered a number of documents, including certain banking records of the appellant.[12]
[12] Exhibit 47; Exhibit 48.
The appellant elected to give evidence at trial and called three other witnesses: Professor Coutts, a telecommunications expert (whose evidence related to Macca, the charge on which the appellant was acquitted); Malcom McQuoid, who gave alibi evidence for the appellant on the charge concerning Macca; and Dr Duncan Hargest, a veterinary surgeon, who gave evidence in relation to the charge concerning Eagle Rock. The appellant's case at trial was that on the charges on which she was convicted, her conduct did not amount to practising veterinary surgery; she merely provided advice or assistance to Dr Lau as an inexperienced veterinary surgeon. In respect of Macca, the appellant denied she was at EVH on the date of the surgery.
At the conclusion of the trial on 15 February 2019, the learned magistrate reserved her decision. Written closing submissions were filed by the parties on 29 March 2019 (respondent) and 23 April 2019 (appellant). On 21 June 2019, the learned magistrate convicted the appellant on six of the charges she faced and acquitted her of the remaining charge.
Prosecution's case at trial
The prosecution contended the appellant was present at EVH or, in relation to Nimbus and Hooley, at the location the animals were treated, from time to time over the relevant period (September 2016 to January 2017) and carried out various tasks which constituted veterinary surgery. The prosecution called seven witnesses at trial.
Dr Lau
Dr Lau was the first witness called by the prosecution. Dr Lau was employed by EVH across the relevant time period of the charges.
Dr Lau graduated from Murdoch University in 2015 with a Bachelor of Veterinary Medicine and Surgery. She started work as a veterinary surgeon in January 2016 in a mixed animal practice in a semi-rural area in New south Wales. She later left New South Wales to move back to Perth and worked at EVH between September 2016 and April 2017.[13]
[13] ts (24 October 2018) 23 - 24.
Dr Lau originally thought her role at EVH would be that of a graduate veterinary surgeon. However, on meeting the Board in order to register as a veterinary surgeon in Western Australia, Dr Lau became aware that her name would be put on the manager roll for EVH.[14] Dr Lau was told at this time that the appellant was not registered. She understood this meant the appellant could not be responsible for any work but that if she needed an extra hand, the appellant was there to help.[15] She described the appellant's help as, '[i]t could be verbal or she can take over and show me things like as in how she would have done, you know, certain procedures and things like that'.[16] Dr Lau's evidence was that the appellant reviewed the invoices that were issued in relation to each of the animals the subject of the charges. The only animal for which an invoice was not issued was Roxy.
[14] ts (24 October 2018) 27.
[15] ts (24 October 2018) 28.
[16] ts (24 October 2018) 30.
Teddy came to EVH for treatment of bilateral retained testicles, which is where the testicles remain inside the animal's abdomen and have not descended. To treat this condition, Dr Lau advised that Teddy needed to be desexed. As a result, abdominal cryptorchid surgery was carried out on Teddy. Dr Lau gave evidence that she was present for this procedure, along with the appellant and one of EVH's veterinary nurses.
Dr Lau administered the anaesthetic, made the incision on Teddy's abdomen and then placed her hands into the cavity to locate the retained testicles. She initially had difficulty in locating the testicles so the appellant put on gloves and located the testicles for Dr Lau, who then completed the procedure. Dr Lau agreed the appellant did not clamp or ligate the testicle, that this was done by Dr Lau, and the appellant had only shown her where to ligate.[17]
[17] ts (24 October 2018) 67 - 68.
Under cross-examination, Dr Lau agreed that the procedure, if done by an experienced surgeon, would possibly take 30 minutes whereas Teddy's operation took 1.5 hours.[18] She agreed it took approximately 30 minutes for her to locate the first testicle, that it was possible she told the appellant she was having difficulty locating the testicle and that there were increased risks for Teddy if he remained under anaesthetic for a lengthy period of time.[19]
[18] ts (24 October 2018) 144.
[19] ts (25 October 2018) 144 - 146.
Roxy was the dog of the appellant's then partner. Dr Lau's evidence was that she treated him twice for a draining sinus on his face, which she described as an opening filled with pus.[20] On the first occasion, Roxy had a tooth root abscess and Dr Lau extracted a tooth. On the second occasion, Roxy was anaesthetised and, ultimately, grass seeds were found in the opening. Dr Lau stated that the appellant and Monique Van Kempen, a vet nurse, were present during this operation.[21] During the operation, the appellant inserted haemostat forceps into the opening on Roxy's face and removed some grass seeds.[22] The wound was then flushed, although Dr Lau could not recall who did this.
[20] ts (25 October 2018) 73.
[21] ts (24 October 2018) 74.
[22] ts (24 October 2018) 75.
Macca presented at EVH with a 'massive lump' on his chest (about 10 ‑ 15 cm), which had continued to grow.[23] Dr Lau recommended a surgical resection, or essentially, lump removal. The lump was removed and sent off for analysis. Dr Lau's evidence was that during the surgery, the appellant and one of the veterinary nurses, most likely to be Ms Van Kampen, were present. After administering the anaesthetic and making the first incision, the appellant provided some assistance to Dr Lau. Dr Lau was uncertain how much she could cut out of the lump. The appellant made a wider cut on Macca's skin, placed her fingers and hands around the lump to free it and placed it in a kidney dish.[24] Dr Lau could not remember the date the surgery was conducted and relied on the clinical record as the basis for her evidence as to when it occurred.[25] The clinical record stated 28 November 2016 was the date the surgery occurred.[26] In cross-examination, Dr Lau was shown telephone records of the appellant and that a phone call was made by the appellant to EVH during Macca's surgery. Dr Lau did not accept she made a mistake as to whether the appellant was present during Macca's surgery.
[23] ts (24 October 2018) 77 - 78.
[24] ts (24 October 2018) 79 - 80.
[25] ts (24 October 2018) 81 - 82.
[26] ts (24 October 2018) 81; Exhibit 8.
Anton presented to EVH with a luxating patella (slipping kneecap) that required surgery to stabilise it. The recommended procedure is a trochlear wedge osteotomy. Dr Lau's evidence was that she, the appellant and Ms Van Kempen were present at the surgery and the appellant guided her through the surgery as it was her first time attempting the procedure. Dr Lau said there were no aspects of the procedure she completed without the appellant's verbal assistance.[27] In cross-examination, Dr Lau agreed she x-rayed Anton on the afternoon of 28 November 2016 and the surgery took place the following day. Dr Lau could not recall whether the appellant was present when she performed the x-ray. Her evidence was that she would not have booked in the procedure for Anton if the appellant had been unavailable to guide her through it.[28]
[27] ts (24 October 2018) 94.
[28] ts (25 October 2018) 111.
In relation to Nimbus, Dr Lau's evidence was that Nimbus' owners called EVH close to the end of the day saying there was an emergency and she had driven to their property with the appellant in the appellant's car. When they arrived, Nimbus was bleeding heavily from a wound on his leg and was agitated. Dr Lau drew up sedation medication which was administered by the appellant to Nimbus' jugular.[29] An anti‑inflammatory injection was administered in the same manner, although Dr Lau could not recall whether this was done by her or the appellant. Dr Lau's evidence was that the appellant physically assessed the wound by touching it and clamping the bleeding vessel before the appellant performed a ligation to stop the bleeding. The appellant then cut away the skin around the wound and washed and bandaged Nimbus' leg. Dr Lau handed instruments to the appellant during the procedure. Subsequently, Dr Lau demonstrated to Ms Battersby how to administer antibiotics to Nimbus.[30] Nimbus also received a tetanus shot, although Dr Lau could not recall who administered this.[31]
[29] ts (24 October 2018) 85 - 86.
[30] ts (24 October 2018) 87 - 89.
[31] ts (24 October 2018) 91.
Dr Lau's evidence in relation to Hooley was that the clinic received a call saying a horse had a cut on one of his back legs and there was yellow fluid coming out.[32] Dr Lau and the appellant drove to the property in the appellant's vehicle. When they arrived, Dr Lau introduced herself to the owners of the horse. Both the appellant and Dr Lau inspected the horse’s injury which was a cut on one of his back legs. Dr Lau discussed the extent of the horse's injury with the appellant. Dr Lau believed the appellant first expressed the view that Hooley had damaged his tendon sheath but had not completely severed it, an opinion with which Dr Lau agreed. The appellant spoke to the owner about the injury and the treatment options. The owner opted for the conservative treatment of the injury of bandaging the wound and antibiotics. Dr Lau recalled that the appellant washed and bandaged the wound and that she (Dr Lau) demonstrated to the owner how to administer the antibiotics.[33] Under cross-examination, Dr Lau agreed the injury to Hooley's leg looked more than 24 hours old and that it was a serious injury which required immediate attention. Dr Lau's evidence was that the appellant did not put her fingers into the wound but touched it on the surface.[34]
[32] ts (24 October 2018) 97.
[33] ts (24 October 2018) 100 - 101.
[34] ts (25 October 2018) 155 - 159.
Eagle Rock was a 10-year-old corgi who was in surgery at the time representatives of the Board arrived at EVH on 19 January 2017.[35] Both Dr Lau and the appellant were present in the theatre room at that time. Eagle Rock was a relatively old dog who still had his testicles. Dr Lau diagnosed him as having an enlarged prostate and recommended castration. Dr Lau's evidence was that after Eagle Rock was anaesthetised, she made the first incision to exteriorise the testicle so it could be clamped, sutured and then removed. In order to do this, it was necessary to strip the connective tissue around the testicle (tunic). In older dogs, the connective tissues can be quite tough. Her evidence was that the appellant assisted in stripping the tunic as she did not have enough strength to remove it.[36] Specifically, Dr Lau deposed that the appellant used her hand to apply 'traction force to strip the tunic' while Dr Lau stood next to her. On the arrival of the representatives of the Board, the appellant moved away from the operating table and dropped whatever she was holding. Dr Lau then completed the procedure on Eagle Rock.[37]
Kaylene Cartledge
[35] ts (24 October 2018) 33 - 34.
[36] ts (24 October 2018) 36, (25 October 2018) 161.
[37] ts (24 October 2018) 37 - 38.
Ms Cartledge gave evidence remotely, by way of video link from the Hobart Magistrates Court. Ms Cartledge is a friend of Ms Dwyer and was present at the treatment of Hooley. Ms Cartledge has considerable experience in working with horses and, at the time of the hearing, was qualified as an instructor with the Horse Safety Council of Australia for more than 25 years.
On 19 December 2016, Ms Cartledge received a call from Ms Dwyer asking if she could come to do the feet of a couple of her horses. On her way there, she received a further call from Ms Dwyer saying that Hooley had hurt himself. Ms Cartledge offered to pick up some medical supplies on her way.[38]
[38] ts (24 October 2018) 41 - 42.
Ms Cartledge arrived at the property where Hooley was kept just after lunch. On seeing Hooley's injury, Ms Cartledge said she 'was horrified' and told Ms Dwyer that Hooley 'needed a vet immediately'.[39] Ms Cartledge deposed she had not heard of EVH or the appellant prior to this event and assumed a vet would need to come from Gingin. About half an hour later, two women (the appellant and Dr Lau) arrived in a blue four-wheel drive with Edgewater Vet written on the back or side of the vehicle. On meeting the appellant and Dr Lau, Ms Cartledge assumed the appellant was the veterinarian, due to her professional manner, and Dr Lau was her student.[40]
[39] ts (24 October 2018) 44.
[40] ts (24 October 2018) 46.
Ms Cartledge said the appellant inspected Hooley's wound first, while Dr Lau spoke with Ms Dwyer. After the appellant inspected the injury, she showed Dr Lau. The appellant told Ms Dwyer that Hooley's injury was serious but not life-threatening if treated properly, which aligned with Ms Cartledge’s opinion. Dr Lau explained what was required to treat Hooley, namely daily injections and regular changes of the dressing.[41]
[41] ts (24 October 2018) 49 - 50.
Ms Cartledge's evidence was that Dr Lau gave Hooley the injections, while the appellant dressed the injury. On Ms Cartledge's request, the appellant adjusted the bandage and extended it further down Hooley's leg.[42] Ms Cartledge expressed the opinion that the appellant 'did a great job' and that she was 'a bit blown away' as she had been unaware there was a capable equine vet in the area.[43]
[42] ts (24 October 2018) 51.
[43] ts (24 October 2018) 52.
Under cross-examination, Ms Cartledge agreed the appellant cleaned the wound when she arrived. She also accepted that during the conversation between the appellant, Dr Lau and Ms Dwyer, there was a pattern of communication in that the appellant would relay information to Dr Lau, who would communicate this to Ms Dwyer. Ms Cartledge's evidence was that Hooley did not seem distressed or in a lot of pain from the injury. This assessment was based on her extensive experience in treating horses with similar injuries in remote areas. In re-examination, Ms Cartledge confirmed there was no immediate threat to Hooley's life from the injury.[44]
Lisa Dwyer
[44] ts (24 October 2018) 58.
Ms Dwyer is the owner of Hooley and gave evidence about what she witnessed during the treatment of her horse. Ms Dwyer did not know the appellant or Dr Lau and had not previously used EVH.[45] On their arrival, the appellant told her that both she and Dr Lau were vets.[46] On being shown Hooley's injury, the appellant felt the wound and then invited Dr Lau to feel the wound and confirm the tendon was still intact.[47] Dr Lau administered the antibiotics to Hooley and the appellant dressed the wound.
Rebecca Battersby and Desmond Battersby
[45] ts (25 October 2018) 182.
[46] ts (25 October 2018) 183.
[47] ts (25 October 2018) 183 - 184.
Ms Battersby, the owner of Nimbus, and her father, Mr Battersby, both gave evidence on what they witnessed of Nimbus' treatment.
Nimbus was agisted at a property leased by Mr Battersby. Ms Battersby's evidence was that at about 5.00 pm on 8 December 2016, while she was on the phone to her father, her father said he heard a loud bang. He went out to the paddocks and told her that Nimbus had blood pouring out of the back of his leg.[48] She immediately drove out to the property. Mr Battersby and a friend of hers, Stacey Mackay, were with Nimbus when Ms Battersby arrived. Nimbus was tied up in the wash bay at the property. Ms Battersby described the injury to Nimbus' leg as 'pretty bad'.[49]
[48] ts (26 October 2018) 204.
[49] ts (26 October 2018) 206.
When the appellant and Dr Lau arrived about 25 minutes later, the appellant immediately gave Nimbus an injection and then assessed the wound on his leg.[50] The appellant cleaned the wound and told her she would have to cut off a flap of skin. The appellant clamped the bleeding vessel, gave Nimbus another injection, cut away the flap of skin around the wound, cleaned the wound and then bandaged it. Ms Battersby's evidence was that Dr Lau was just standing and watching the appellant as this was going on.[51] In evidence-in-chief, Ms Battersby said the appellant gave her a bottle of penicillin and instructions on how it was to be administered. She also provided her with sachets of medication for pain relief for Nimbus.[52]
[50] ts (26 October 2018) 208 - 209.
[51] ts (26 October 2018) 209 - 210.
[52] ts (26 October 2018) 213 - 214.
In cross-examination, Ms Battersby confirmed she was pretty sure that Dr Lau had not given instructions to her on the antibiotics and pain relief but was not 100% sure.[53]
[53] ts (26 October 2018) 217 - 218.
Mr Battersby's evidence was that he was at the property on the afternoon of 8 December 2016. After hearing a loud bang, he went over to Nimbus and saw he had cut his back leg. He rang his daughter and tried to stem the bleeding until the vet arrived. When the appellant arrived, she introduced Dr Lau as a trainee vet.[54] His evidence was that the appellant inspected Nimbus' injury and gave him an injection prior to cutting away the flap of skin on Nimbus' leg. The appellant then cleaned and bandaged the wound. He described Dr Lau's role as watching and handing instruments to the appellant as required.[55] In examination-in-chief, his evidence was that he believed it was the appellant who discussed Nimbus' ongoing treatment with Ms Battersby, although he was not certain as he was walking away at this time. In cross-examination, Mr Battersby agreed Dr Lau had given the medication and demonstrated its administration to Ms Battersby.[56]
Alice Harper
[54] ts (26 October 2018) 223.
[55] ts (26 October 2018) 224 - 225.
[56] ts (26 October 2018) 228.
Ms Harper worked at EVH on an unpaid basis as a student veterinary nurse from June 2015 until May 2016 and then again from September 2016 until the end of that year or the beginning of 2017.[57] She was at EVH during the treatment of Teddy, Roxy and Macca.
[57] ts (12 February 2019) 39 - 40.
In respect of Teddy, Ms Harper monitored Teddy during his surgery. Her evidence was that both Dr Lau and the appellant were present during the surgery. When Dr Lau had difficulty locating the testicles, she asked Ms Harper to call the appellant in for advice. Her evidence was that the appellant had only given instructions to Dr Lau and had not physically assisted in the procedure.
Ms Harper's evidence in relation to Roxy was that she assisted Dr Lau and the appellant in removing grass seeds from Roxy. In this regard, she stated the appellant did not penetrate Roxy's skin in order to do this; she simply pulled the grass seeds off his body.[58]
[58] ts (12 February 2019) 48.
Finally, in relation to Macca, Ms Harper's evidence was that she was on reception when Macca was operated on and appellant was not there at the time of his surgery.[59]
Christopher Lloyd
[59] ts (12 February 2019) 47 - 48, 53.
The final witness for the prosecution was Christopher Lloyd, who was the lead inspector for the Board's investigation into the appellant. He gave evidence about the business structure of EVH both before and after the appellant was removed from the register as well as entities associated with the appellant. Relevantly, his evidence was:
(a)Dr Rita Perry replaced the appellant in November 2015 as company director and secretary of Tasovac Investments Pty Ltd, the company that owned EVH;[60]
(b)Edgewater Investment Properties Pty Ltd (of which the appellant was the sole shareholder and director) owned the buildings occupied by EVH;[61] and
(c)Tasovac Investments Pty Ltd is the trustee of the Tasovac Family Trust No. 2. At the time of the trial, the appellant's mother (Kata or Kathy Tasovac) was the primary beneficiary of the trust.[62]
[60] ts (12 February 2019) 65.
[61] ts (12 February 2019) 66 - 67.
[62] ts (12 February 2019) 69 - 70, 72; Exhibit 43.
Mr Lloyd also gave evidence that notices had been issued to the National Australia Bank for production of the bank statements of both Tasovac Investments Pty Ltd and the appellant. These documents were admitted into evidence.[63]
[63] Exhibit 27; Exhibit 48.
Appellant's case at trial
The appellant elected to give evidence and also called three witnesses.
Professor Reginald Coutts is a telecommunications expert who gave expert evidence in relation to the appellant's telephone records, which were tendered in evidence.[64] This evidence related specifically to whether the appellant was present at the time of Macca's surgery.
[64] Exhibit 24.
Malcolm McQuoid is the appellant's brother in law and gave alibi evidence in relation to the charge concerning Macca.
Dr Duncan Hargest is an experienced veterinary surgeon and friend of the appellant. He gave evidence in respect of the treatment of Eagle Rock.
The appellant
The appellant graduated from Murdoch University in 2001 with a Bachelor of Science/Bachelor of Veterinary Medicine and Surgery[65] and worked as a veterinary surgeon until 2014. At the time of the hearing, she was registered as a veterinary surgeon in the Northern Territory and was working in Darwin.
[65] ts (13 February 2019) 80.
The appellant confirmed she remained the owner of the land and buildings where EVH operated after she lost her registration in February 2015. The premises were rented to Dr Perry under an oral agreement. Her evidence was that the terms of this agreement were that Dr Perry was to use the premises and take over any loans associated with the business.[66] In cross-examination, the appellant agreed that Dr Perry did not pay anything to her when the business was transferred to her.[67]
[66] ts (13 February 2019) 81.
[67] ts (13 February 2019) 183.
The appellant's evidence was that the regular payments she received from EVH were rental payments. These payments were made to a loan account in her name. The loan was for equipment for EVH.[68] The appellant denied she received any payment for the work she did at EVH. Her evidence was that she volunteered at EVH and other veterinary practices in order to keep up to date with her knowledge and to assist in regaining her registration.[69]
[68] ts (13 February 2019) 81.
[69] ts (13 February 2019) 83 - 84.
In cross-examination, the appellant said that after she lost her registration, she received Centrelink benefits and had no income. She withdrew some money from her superannuation and relied on her mother for financial assistance. Her evidence was that her mother paid her home loan and contributed to her day-to-day expenses by giving her cash.[70] The appellant was not able to estimate how much she received from her mother but said she owed her mother 'thousands' and expected to repay this money as she (the appellant) considered it a loan.
[70] ts (13 February 2019) 172 - 173.
The appellant denied she had any particular understanding of the legal documents which effected the transfer of her interests to Dr Perry and her mother following her removal from the register. Her evidence was that she left it to her accountants and lawyers to draft the necessary documents to satisfy the Board.[71] One of the documents signed by the appellant was an undertaking to the Board in the appellant's capacity as beneficiary of the trust. In the undertaking, the appellant assigned her beneficial interest in the trust to her mother, which was irrevocable 'until such time as I am re-registered as a veterinary surgeon under the Veterinary Surgeons Act'.[72]
[71] ts (13 February 2019) 176 - 185.
[72] Exhibit 42.
In relation to Teddy, the appellant agreed Ms Harper had come to fetch her to assist Dr Lau.[73] When she came into the operating room, she realised Dr Lau had made the incision in the wrong place, as it was too far forward. The appellant instructed Dr Lau to extend the incision down and then hook her finger to feel for the testicle along the inside of Teddy's abdomen.[74] Dr Lau found the testicle within 10 minutes. The appellant's evidence was that she did not touch Teddy and merely gave Dr Lau advice on the procedure. The appellant was concerned at the length of time that Teddy had been under anaesthetic, as it was longer than anticipated. The appellant denied it was her hands in the photograph of the surgery as they were too small to be her hands. Her evidence was that they were the hands of a friend of Dr Lau's, who was studying veterinary science.[75]
[73] ts (13 February 2019) 87.
[74] ts (13 February 2019) 88 - 89.
[75] ts (13 February 2019) 92 - 94.
In relation to Roxy, the appellant agreed she took Roxy to EVH on two occasions. On the first occasion, Roxy had a draining sinus. The appellant stayed with Roxy while he was sedated and then left. Approximately five weeks later, Roxy was accidentally let out and rolled in grass seeds which stuck to his whole face, particularly to the wound which was still wet or 'an oozy area'.[76] After attempting to pull off the grass seeds herself at home, the appellant took Roxy to EVH. Dr Lau sedated Roxy before Dr Lau, Ms Harper, Ms Van Kempen and the appellant pulled grass seeds off Roxy 'everywhere'.[77] The appellant agreed she used haemostats in this process but denied they were used to pull grass seeds out of a draining sinus, or that there was a draining sinus at that time. She accepted they were used to remove grass seeds off the open wound and that the seeds were on the surface of Roxy's skin. After this was done, Dr Lau removed the granulation tissue on the wound and inserted a stitch under Roxy's eye.[78]
[76] ts (13 February 2019) 105.
[77] ts (13 February 2019) 106.
[78] ts (13 February 2019) 107 - 108.
The appellant's evidence in relation to Macca was that she was not at EVH on the day of the procedure. She spent the day with family preparing for her sister's birthday dinner which was held at the appellant's home that night. The appellant said she missed a call from EVH that day and when she returned the call, Dr Lau asked for her assistance as to what should be done with the lump removed from Macca during surgery.[79]
[79] ts (13 February 2019) 136.
In relation to Anton, the appellant's evidence was that Dr Lau advised her Anton was booked for a luxating patella surgery and that she had decided to do a trochlear groove wedge osteotomy. The appellant was surprised Dr Lau was going to attempt an advanced procedure and referred her to a textbook. Dr Lau called her into the operating room after the surgery had commenced to ask whether the groove she had made was deep enough.[80] The appellant left the operating room after this conversation and did not see the operation completed.
[80] ts (13 February 2019) 112.
Turning to Nimbus, the appellant deposed that at about 6.00 pm she received a call from Dr Lau saying there was an emergency and asking if she could attend with her. The appellant agreed that, when they arrived, Nimbus had lost a significant amount of blood and that 'it was like nothing I had seen in my 18 years'.[81] Her evidence was that Dr Lau prepared a sedation injection for Nimbus which she asked the appellant to administer while Dr Lau examined Nimbus' leg. The appellant agreed she gave Nimbus the anaesthetic.[82] After Mr Battersby removed the towel from the wound, blood was pouring out and 'everyone was panicking'.[83] Dr Lau asked her what to do and the appellant told her to put a tourniquet on Nimbus' leg. When Dr Lau did not know what a tourniquet was, the appellant began to treat Nimbus by wrapping a bandage above the wound to act as a tourniquet and cleaned the wound with betadine. The appellant denied she cut off any skin around the wound and said any skin that had come away from the wound had come away during cleaning. She agreed both she and Dr Lau clamped the wound and that she bandaged the leg while Dr Lau spoke with Ms Battersby. The appellant said Dr Lau demonstrated to Ms Battersby how to inject the penicillin into Nimbus' muscle.
[81] ts (13 February 2019) 141.
[82] ts (13 February 2019) 142.
[83] ts (13 February 2019) 143.
In relation to Hooley, the appellant gave evidence that she received a call while working at the reception of EVH requesting that someone come out to inspect a cut on a horse’s leg. The appellant told Dr Lau, who was at the clinic at the time, and they drove out to the property. On arrival, Dr Lau introduced herself as the vet. Dr Lau and the appellant looked at the wound and the appellant gave Dr Lau a list of referring practices that could treat the injury. Dr Lau examined the wound. The appellant agreed she cleaned the wound while Dr Lau spoke with Ms Dwyer and retrieved medication for Hooley. The appellant denied she inserted her fingers into the wound.
In relation to Eagle Rock, the appellant's evidence was that Eagle Rock was undergoing a routine castration procedure when the inspectors from the Board arrived. The appellant's evidence was that she was in the office (near the treatment room) when a veterinary nurse came into the treatment room and told Dr Lau the Veterinary Surgeons' Board was here to see her. Dr Lau panicked at the arrival of the inspectors. The appellant went into the treatment room, placed her hand over Dr Lau's hand, picked up a pair of forceps and demonstrated what needed to be done without touching the dog. When the inspectors came into the room, she put the clamp down.[84] The appellant disagreed with the evidence of Dr Lau that the tunic had already been stripped from the testicle prior to the inspector's arrival.[85] Under cross-examination, the appellant conceded it was inevitable she would have touched the testicle but did not recall specifically doing so.
Malcolm McQuoid
[84] ts (13 February 2019) 121.
[85] ts (13 February 2019) 131.
Mr McQuoid is the appellant's brother-in-law. His evidence was that the appellant collected him and her father on the morning of 28 November 2016 and took them back to her home where she prepared a birthday dinner for her sister, Mr McQuoid’s now wife. Mr McQuoid's evidence was that he remained at the appellant's home until approximately 8.00 pm and the appellant remained at her house throughout this time.[86]
Reginald Coutts
[86] ts (13 February 2019) 155 - 156.
Professor Coutts is an emeritus professor of telecommunications at the University of Adelaide. It was accepted at trial that Professor Coutts was an expert witness and could give opinion evidence.[87]
[87] ts (14 February 2019) 197 - 198.
Professor Coutts gave evidence about the origin of a telephone call from the appellant's mobile phone to EVH at 3.46 pm on 28 November 2016. Professor Coutts' evidence-in-chief was that, based on the appellant's phone records,[88] the phone call is likely to have originated at Carabooda,[89] close to the appellant's home. Under cross-examination, Professor Coutts agreed cell towers could not always be used to accurately pinpoint an individual's location and that specialist data would be required to conclude the call was made within the vicinity of the Carabooda cell tower.[90]
Duncan Hargest
[88] Exhibit 24.
[89] ts (14 February 2019) 217.
[90] ts (14 February 2019) 221 - 222.
Dr Hargest is an experienced veterinary surgeon and the owner of the Mundaring Veterinary Hospital. He gave evidence in relation to the video footage and photographs of the operation on Eagle Rock. Dr Hargest explained the steps in a castration procedure but was unable to identify from the photographs which testicle had been stripped.[91]
[91] ts (14 February 2019) 282.
Reasons of the learned magistrate
On 21 June 2019, the learned magistrate delivered written reasons for her decision. After summarising the charges the appellant faced and the standard of proof, her Honour made some brief observations on each of the witnesses called at trial.
The learned magistrate made three general observations about the witnesses:
(a)it was clear from the evidence of both Ms Harper and the appellant that neither viewed Dr Lau as confident or competent. Her Honour found the weight of evidence supported a conclusion that Dr Lau was an inexperienced vet who looked to the appellant for advice and support;[92]
(b)Ms Cartledge presented as a quasi-expert witness due to her considerable experience with horses and her evidence carried considerable weight;[93] and
(c)the evidence of Dr Hargest was general and of little assistance in relation to Eagle Rock. Her Honour placed no reliance on his evidence.[94]
[92] Primary reasons [23] - [24].
[93] Primary reasons [28] - [29].
[94] Primary reasons [38].
After considering the evidence in relation to each of the charges, her Honour made findings in relation to the credibility of the witnesses. Her Honour found that Dr Lau was an honest and reliable witness, despite the findings in relation to Macca, and a truthful witness. Her Honour specifically noted that her evidence was corroborated by the owners of the horses and others who were present.[95]
[95] Primary reasons [139] - [140].
In contrast, the learned magistrate found that the appellant was not a credible or reliable witness and was evasive, vague and implausible at times. Her evidence in relation to the horses was contradicted by the independent eye-witnesses. The manner in which the appellant gave her evidence was consistent with the description of the appellant given by these eye-witnesses as dominant, assuming control and in charge. Given the appellant viewed Dr Lau as incompetent, it was not realistic to accept the appellant would have held back as she claimed.[96]
Charge 1 - Teddy[97]
[96] Primary reasons [141].
[97] Primary reasons [39] - [54].
The learned magistrate summarised the evidence of each of Dr Lau, Ms Harper and the appellant who gave evidence in relation to this charge. Her Honour expressed the view that it was 'notable that both the accused and Ms Harper used largely the same words' in describing what the appellant said to Dr Lau regarding the incision Dr Lau had made.
The learned magistrate accepted Dr Lau's evidence as to what occurred and made the following findings. First, Dr Lau's friend was not present during the operation and the appellant was called into the operating room after Dr Lau was struggling. Second, given the appellant's own evidence about her concern for Teddy due to the extended length of the surgery, it was implausible the appellant would have given advice only and stood back calmly to allow Dr Lau to complete the surgery. Third, if the appellant was only offering advice, she would not have put on surgical gloves. Fourth, the appellant's denial that it was her gloved finger in the photograph taken of the surgery lacked credibility. Fifth, the blood on the glove depicted in the photograph was evidence Teddy was, at least, touched by the appellant.
The learned magistrate found that Ms Harper was not a reliable witness and was 'clearly aligned' with the appellant.[98] This was on the basis of the difference in the way she gave answers in evidence in chief as opposed to the answers she gave in cross-examination. Her Honour noted Ms Harper did not recall Dr Lau's friend being present and considered this was something she would have been likely to remember. Despite saying she knew it was wrong for the appellant to perform an act of veterinary surgery, Ms Harper did not consider there was any issue in the appellant giving advice to Dr Lau.
[98] Primary reasons [52].
Her Honour accepted Dr Lau was performing the surgery incorrectly and too slowly but found there was no evidence of any imminent risk to Teddy. On this basis, the learned magistrate was satisfied the appellant did not hold a belief it was an emergency situation.
The learned magistrate was satisfied beyond reasonable doubt the appellant had placed her hands into Teddy's abdomen to locate at least one testicle and bring it to the surface, and had given advice regarding the conduct of the procedure on Teddy, both of which were acts of veterinary surgery.
Charge 2 - Roxy[99]
[99] Primary reasons [55] - [68].
The learned magistrate summarised the evidence of each of Dr Lau, Ms Harper and the appellant who gave evidence in relation to this charge.
Her Honour made the following findings in relation to this charge. First, the appellant pulling off grass seeds from Roxy's wound at home was first aid to relieve the dog's pain and suffering, especially given the seeds were stuck to an open wound. Pulling seeds off Roxy's coat was grooming. Second, Dr Lau anaesthetising Roxy at EVH changed the characterisation of the treatment given to Roxy. Once Roxy was under anaesthetic, the dog required the attention of a veterinary surgeon. Third, it was not disputed that Roxy's wound had not completely healed, seeds had adhered to the 'oozy' wound and that haemostats were used. Fourth, haemostats are a surgical instrument and the removal of seeds lodged in the wound required the insertion of the haemostats under the skin. Fifth, grass seeds were removed by the appellant by inserting this instrument into the wound on Roxy's face.
The evidence of both Dr Lau and the appellant contradicted Ms Harper's evidence that the wound was healed and closed. Her Honour repeated her finding that Ms Harper was not a credible or reliable witness and rejected her evidence.
Her Honour was satisfied beyond reasonable doubt that the appellant had performed an act of veterinary surgery by inserting the haemostats into Roxy's draining sinus to remove the grass seeds.[100] Her Honour held that the appellant could not rely on a defence of first aid when the procedure was being performed by a registered veterinarian within a clinic.
Charge 3 - Macca[101]
[100] Primary reasons [65] - [67].
[101] Primary reasons [69] - [82].
The learned magistrate summarised the evidence of each of Dr Lau, Ms Harper, the appellant, Mr McQuoid and Professor Coutts, all of whom gave evidence in relation to this charge.
While the learned magistrate considered that, overall, Dr Lau was a witness of truth, the weight of the evidence supported a finding that she was mistaken in her evidence that the appellant removed the lump.
The learned magistrate did not make any specific findings of fact in relation to this charge. Her Honour largely accepted the evidence of Mr McQuoid that the appellant remained at home for the afternoon. While she accepted that Mr McQuoid did not keep track of the appellant's movements all afternoon, her Honour found it implausible the appellant would have left without notifying her father or brother-in-law.[102] In addition, while her Honour noted there were issues with the reliability of the evidence of Professor Coutts, she could not reject the possibility his evidence was correct and the call to EVH was made from Carabooda.
[102] Primary reasons [79].
The learned magistrate was not persuaded beyond reasonable doubt that the appellant was present at EVH at the time of Macca's surgery. On this basis, the magistrate acquitted the appellant of this charge.
Charge 4 - Anton[103]
[103] Primary reasons [83] - [87].
The learned magistrate summarised the evidence each of Dr Lau and the appellant who gave evidence in relation to this charge.
For the following reasons, her Honour found that the appellant provided extensive advice throughout the surgical procedure on Anton. First, the appellant admitted she at least gave advice to Dr Lau. Second, the evidence of Dr Lau as to the extent of the advice provided by the appellant regarding Anton's surgery was compelling. It was consistent with her presentation as an inexperienced vet and the evidence of both the appellant and Dr Lau that this surgery was advanced surgery. Third, Dr Lau's evidence was that she only booked Anton's surgery based upon the appellant's reassurance she would talk Dr Lau through the procedure. Fourth, it was implausible the appellant would have left midway through Anton's surgery while the bone was exposed. Fifth, the provision of advice was consistent with the appellant's mentoring of Dr Lau.
The learned magistrate held that giving advice during a surgical procedure was an act of veterinary surgery as defined in the Act and was satisfied beyond reasonable doubt that this advice was given by the appellant. Her Honour rejected the submission there was any evidence to support a conclusion it was an emergency.
Charge 5 - Nimbus[104]
[104] Primary reasons [88] - [113].
The learned magistrate summarised the evidence of each of Dr Lau, Ms Batterbsy, Mr Battersby and the appellant who gave evidence in relation to this charge.
The learned magistrate held that Dr Lau's evidence was corroborated by the evidence of both Ms Battersby and Mr Battersby. She preferred the evidence of the prosecution witnesses, and found the appellant was not a credible witness.
Her Honour made the following findings of fact in relation to this charge. First, the appellant accompanied Dr Lau to the property because Dr Lau did not have a four-wheel drive, it was getting dark and Dr Lau did not know where she was going. Second, the appellant administered Detomidine to Nimbus' jugular vein, which is a schedule 4 drug only available on prescription. Third, the appellant assessed the wound and treated it by clamping and ligating the vessel. Fourth, the appellant excised a flap of skin using either a scalpel or scissors. In this regard, she accepted the appellant's evidence that the wound was jagged and not straight but rejected her evidence that this meant it could not have been cut with scissors or a scalpel. Fifth, while it was a serious situation, there was no evidence that only the appellant was capable of treating Nimbus or there was no other course of action reasonably open if Dr Lau was unable to treat the horse. Sixth, while Dr Lau was inexperienced and only had one prior similar experience, she was capable of attending to the treatment of Nimbus.
The learned magistrate was not persuaded beyond a reasonable doubt that the appellant had given advice on Nimbus' aftercare as there was an inconsistency in the evidence of the prosecution witnesses.
The learned magistrate was satisfied beyond reasonable doubt that the appellant had performed acts of veterinary surgery on Nimbus.
In relation to the defence of emergency, her Honour accepted there was evidence before the court that this was an emergency as the call came into EVH on that basis, Nimbus was distressed and bleeding profusely, and the life of the horse was in jeopardy if not treated immediately. However, given her findings of fact on Dr Lau's competency, her Honour found the situation was not an emergency and this defence was not available to the appellant.[105]
Charge 6 - Hooley[106]
[105] Primary reasons [111] - [112].
[106] Primary reasons [114] - [126].
The learned magistrate summarised the evidence of each of Dr Lau, Ms Dwyer, Ms Cartledge and the appellant who gave evidence in relation to this charge.
The learned magistrate accepted the evidence of Ms Dwyer, Ms Cartledge and Dr Lau as honest and reliable. Dr Lau's evidence was supported by the two independent eyewitnesses. Her Honour considered Ms Cartledge was a particularly compelling witness who had good recall of the incident.
Her Honour made the following findings in relation to this charge. First, the appellant was 'calling the shots' and took control of Hooley's treatment. Second, the appellant examined and diagnosed Hooley's injury as a damaged tendon sheath and inserted her fingers into the wound. Third, the appellant provided treatment options and advice. Fourth, the appellant then cleaned and bandaged the wound. Fifth, each of these acts required specialist knowledge and skill to avoid doing greater damage to the injury and on this basis were held to be acts of veterinary surgery. Sixth, while the situation was serious, there was no immediate risk to Hooley's life.
For these reasons, the learned magistrate was satisfied beyond reasonable doubt that the appellant had performed acts of veterinary surgery on Hooley. She also concluded it was not an emergency as there was no imminent risk of mortality to Hooley.
Charge 7 - Eagle Rock[107]
[107] Primary reasons [127] - [138].
The learned magistrate summarised the evidence of each of Dr Lau and the appellant who gave evidence in relation to this charge.
Her Honour rejected the appellant's commentary on a video of her performing a castration on another dog, finding it to be self-serving and of no probative value and did not accept the appellant's interpretation of the video or the photos taken by the inspector. Her Honour found the evidence of the appellant was not plausible for two main reasons. First, it was 'extremely unlikely' the appellant would have gone into the operating room to assist Dr Lau knowing the Board had just arrived at EVH. Second, there was not time for the events to occur in the manner described by the appellant.
Her Honour preferred the evidence of Dr Lau, which was consistent with the Board finding the appellant in the treatment room and Dr Lau’s established propensity to call on the appellant for assistance.
Her Honour made the following findings in relation to this charge. First, it was not contentious that both Dr Lau and the appellant were next to Eagle Rock on the operating table at the time the inspectors entered EVH. Second, the photos were taken after the inspectors entered the treatment room and after the appellant ceased any treatment of Eagle Rock. Third, the appellant provided advice and stripped a testicle using a clamp.
On this basis, the learned magistrate was satisfied beyond reasonable doubt that the appellant had performed acts of veterinary surgery on Eagle Rock. These acts could not constitute first aid as they were conducted at a vet clinic with a registered vet present and Eagle Rock was anaesthetised and not in pain.
Defences
The learned magistrate then turned to consider whether any defences applied. Her Honour expressed the view that s 26(2) of the Act was very wide in its scope and captured any payment, remuneration or consideration whatsoever deriving from the practice. Specifically, she held that the prosecution was not required to establish whether the benefit attached to any particular invoice or payment.
Her Honour found that the appellant did not divest herself of any interest in the business while she was not registered as a veterinary surgeon and rejected the appellant's evidence that she was a volunteer, including on the basis that she reviewed invoices prepared by Dr Lau. The 'overwhelming inference' her Honour drew from the whole of the evidence was that the appellant expected to resume managing EVH once she was able to seek registration.[108]
[108] Primary reasons [142], [145].
The learned magistrate referred to the payments made by Tasovac Investments Pty Ltd into the appellant's loan account and found she was receiving a payment directly from EVH. On this basis, her Honour held the appellant could not avail herself of the defence under s 26(2) of the Act.
Her Honour also concluded, for the reasons set out in relation to each of the charges, that the defences of first aid and emergency under the Act were not available to the appellant given the availability of Dr Lau.[109] On this basis, the learned magistrate concluded the prosecution had negated the defence of emergency beyond a reasonable doubt.[110]
[109] Primary reasons [148].
[110] Primary reasons [149].
Statutory background
The Act concerns the regulation of veterinary surgeons. It establishes a Veterinary Surgeons' Board (pt II), the powers of investigation of the Board (pt II and pt II), the registration and qualifications of veterinary surgeons (pt III and pt IV) and the regulation of veterinary practice (pt V).
Section 26 of the Act is in pt V of the Act, which is titled 'Veterinary practice, and offences'. It provides that:
(1)Except as otherwise provided in this section, only the following persons shall practise veterinary surgery -
(a) a registered veterinary surgeon; or
(b)an association or body of persons comprised wholly of persons who are registered veterinary surgeons.
Penalty: $2 000.
(2)Nothing in subsection (1) shall extend to make any person liable to any penalty if he satisfies the court that he has not directly or indirectly been paid or remunerated or received any other valuable consideration, or been promised or expected any such pay, remuneration or consideration for or in relation to the practice of veterinary surgery or any other directly or indirectly related matter arising out of or connected with the relevant circumstances.
(3)Nothing in subsection (1) applies to or prohibits the performance, whether or not for reward, by a person -
(a)of first aid for the purpose of saving the life of an animal or relieving pain suffered by an animal;
…
(e)of such veterinary services as may be prescribed for the purposes of this paragraph.
Three terms in s 26(1) are defined in s 2 of the Act, namely 'practise', 'veterinary surgery' and 'registered veterinary surgeon'.
'Practise' is defined, in relation to veterinary surgery, as including:
the doing or performing, whether on one occasion or on more than one occasion, of any act, matter, procedure, or thing that is included within the interpretation of the term veterinary surgery; and practice shall be construed accordingly.
'Veterinary surgery' is defined as meaning:
the art and science of veterinary surgery and veterinary medicine, and, without limiting the generality of the foregoing, includes -
(a)the examination of any animal for the purpose of the diagnosis of disease in, or injury to, that animal, or the conduct of tests, whether physiological or pathological, on any animal for diagnostic purposes; and
(b)the provision of advice based upon diagnosis of disease of, or injury to, any animal; and
(c)the surgical or medical treatment of any animal; and
(d)the giving of any anaesthetic to, or the performance of surgical operations on, any animal; and
(e)the doing or performing of any act, matter, procedure, or thing that is prescribed pursuant to section 31 as forming part of the practice of veterinary surgery.
Finally, a 'registered veterinary surgeon' is defined as:
(a)person who is registered as a veterinary surgeon or as an honorary veterinary surgeon under section 17; and
(b)a person who holds a certificate of provisional registration as a veterinary surgeon under section 20B.
Two other provisions of the Act are relevant to the issues raised on this appeal. The first is s 26(6) which provides that:
Subject to subsection (7), no person other than a registered veterinary surgeon shall carry on the business of a veterinary surgeon, whether alone or in association with any other person or persons or association of persons, or own or have any pecuniary interest in any business which consists of or includes the practice of veterinary surgery; but nothing in this subsection prohibits a person from permitting premises owned or occupied by him to be used for the purposes of a veterinary clinic or a veterinary hospital under the provisions of this Act.
The second is s 31 of the Act which gives power to the Governor to make regulations for a wide range of matters including prescribing veterinary services that may be lawfully performed pursuant to s 26 (s 31(1)(j)); and prescribing that any act, matter, procedure, or thing shall be deemed to form part of the practice of veterinary surgery for the purposes of the Act (s 31(1)(k)).
Pursuant to s 31 of the Act, the Veterinary Surgeons Regulations 1979 (WA) (Regulations) were promulgated on 21 December 1979. Regulation 2(2) prescribes a number of matters as forming part of the practice of 'veterinary surgery'. None of these are relevant to this matter.
Part 6 of the Regulations is entitled 'Practising veterinary surgery'. Regulation 45 prescribes a number of veterinary services that may be provided by any person for the purpose of s 26(3)(e) of the Act. Relevantly, these include:
(a)dressing and suturing wounds;
…
(f)medicating an animal with a registered vaccine or medicament.
Part 6 also prescribes the services that may be performed by veterinary students (reg 46) and authorised persons (reg 47). Part 7 of the Regulations prescribes the work that may be done by veterinary nurses (reg 65) and trainee veterinary nurses (reg 66).
Grounds of Appeal
At the time of the hearing, there were 27 separate grounds of appeal - one of which has two parts. Three grounds of appeal concern the conviction in relation to Teddy, five are in relation to Roxy, four concern the conviction for Anton, seven are in relation to Nimbus, five concern Hooley and four the conviction in relation to Eagle Rock.
The grounds of appeal can be broadly summarised as follows:
(a)the learned magistrate erred in finding that the appellant's conduct constituted the practice of veterinary surgery within the meaning of s 26(1) of the Act (grounds 1, 6, 10, 16, 23 and 26) (all animals);
(b)the learned magistrate erred in finding that the appellant's conduct constituted the practice of veterinary surgery within the meaning of s 26(1) of the Act in respect of charges 2 and 4 to 7 on the basis that the prosecution had not established that the appellant's conduct met the requisite level of skill (grounds 5, 9, 13, 20 and 25) (all animals except Teddy);
(c)the verdicts in respect of charges 1, 2, 4, 5 and 7 were unreasonable on the basis that the learned magistrate relied on the testimony of Dr Lau (grounds 2, 7, 11, 17 and 27) (all animals except Hooley);
(d)there has been a miscarriage of justice in convicting the appellant on charge 2, as the conduct relied upon occurred on a date other than the date alleged in the prosecution notice (ground 4) (Roxy);
(e)the learned magistrate erred in holding the appellant had not discharged her onus in respect of the defence under s 26(2) of the Act (grounds 3, 8, 12, 18, 24 and 28) (all animals);
(f)the learned magistrate erred in failing to give reasons in respect of the convictions on charges 5 and 6 as to why the appellant's conduct did not fall within reg 45 of the Regulations (grounds 14(1) and 22) (Nimbus and Hooley);
(g)the learned magistrate erred in failing to acquit the appellant on the basis that her conduct constituted 'first aid' within the meaning of s 26(3)(a) of the Act (grounds 14(2) and 21) (Nimbus and Hooley); and
(h)the learned magistrate erred in law in finding that the defence of emergency was not available to the appellant in respect of charge 5 (ground 15) (Nimbus).
Broadly speaking, the appellant's submission was that the factual matters giving rise to the charges were instances of the appellant, as an experienced but unregistered vet, helping a registered but inexperienced vet to provide veterinary services.[111] The appellant submitted that in all instances her conduct led to a better outcome for the animal than would otherwise have been the case.[112]
[111] ts 2.
[112] ts 3.
In considering the grounds of appeal, I have addressed them in the order they were addressed by counsel for the appellant.
Was the appellant remunerated for the services provided (s 26(2) of the Act)? (Grounds 3, 8, 12, 18, 24 and 28)
Parties' submissions
The appellant submitted that her Honour's reasons misconstrued the legal characterisation of the payments received by the appellant. In her submission, the only evidence in respect of the payments she received was that they were automatic periodic payments for rent, which do not fall within the terms of s 26(2) of the Act. This is because there is a further exception to payments that can be made under the Act, namely s 26(6). Section 26(6) of the Act, as outlined above at [115], prohibits any person other than a registered veterinary surgeon to have any pecuniary interest in a veterinary surgery practice unless the payments are made for the occupation of premises for the purposes of a veterinary clinic or hospital.
The appellant submitted the learned magistrate erred in holding the prosecution did not have to establish that the benefit received by the appellant attached to any particular invoice or payment. In her submission, the defence available to an accused under s 26(2) of the Act refers to the specific offence under s 26(1) of the Act. As a result, any direct or indirect payment or consideration must refer to or relate to the specific transaction or allegation.
While the appellant accepted Dr Lau's evidence was that she (the appellant) reviewed the invoices issued in respect of each of the animals the subject of the charges (except Roxy), counsel for the appellant submitted this evidence was not relevant. This was because, in the appellant's submission, the question was whether the payments made to the appellant related to the specific animal that was the subject of the charges. The appellant contended there was no evidence the appellant had received any reward in respect of any of the invoices issued for the animals the subject of the charges or any specific invoice rendered by EVH. On this basis, the appellant submitted her Honour should have held the appellant had established this defence on the balance of probabilities.
In respect of the submission that the appellant was involved in every aspect of the business of EVH, counsel for the appellant submitted that 'no amount of immersion in this veterinary hospital could undo the legal effect of the documents' that had been executed by the appellant divesting her of her legal interests in the business.[113]
[113] ts 8 - 9.
Finally, the appellant submitted the learned magistrate erred in holding that s 26(2) was relevant only to penalty and not conviction. Counsel for the appellant submitted this was inconsistent with the purpose of the Act.
In response, the respondent noted that s 26(2) of the Act is in very broad terms and requires the appellant to prove a negative.[114] Senior counsel for the respondent submitted that s 26(2) extends to the 'promise' or 'expectation' of any pay, remuneration or consideration. The respondent contended that a broad reading of this section supported the purpose of the Act and the purpose of the Act would be frustrated if an individual was allowed to perform acts of veterinary surgery if they did not receive any remuneration, payment or consideration related to that specific act.
[114] ts 113.
In relation to the proper construction of the words 'liable to my penalty' in s 26(2) of the Act, the respondent submitted that first, the comments of the learned magistrate were obiter dictum and second, in any event, were correct. Senior counsel for the respondent submitted that, on their ordinary meaning, the words 'liable to any penalty' meant immunity from punishment as opposed to conviction. This construction was said to be consistent with other provisions in the Act, as well as the purpose of the Act.
Disposition
Before turning to consider the evidence before the learned magistrate, it is necessary to first address the question of statutory construction that arises on these grounds of appeal. The principles which govern the proper construction of a statute are well known. The focus is on the text of the relevant provision having regard to its context and apparent purpose.
The approach to be taken by the court was recently summarised by Buss P in Meyer v Solomon as follows:[115]
The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.
Section 18 of the Interpretation Act 1984 (WA) provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. (citations omitted)
[115] Meyer v Solomon [2021] WASCA 168 [77] - [81].
Section 26 is in pt V of the Act which is headed 'Veterinary practice, and offences'. The text of s 26(1) and s 26(2) is set out at [110] of these reasons. From the text of these provisions, it is clear that the purpose of s 26(1) is to protect animals and their owners by ensuring that veterinary surgery is only performed by people who have suitable training and qualifications and who are registered as veterinary surgeons.
The offence under s 26(1) of the Act is a simple offence.[116] Section 26(2) creates an exception to this offence. For this reason, s 26(2) does not apply unless the appellant proves, on the balance of probabilities, that it does. On its face, s 26(2) of the Act requires the appellant to prove a negative and requires three things to be negatived on the balance of probabilities. First, the appellant has not directly or indirectly; second, been paid, remunerated or received any other valuable consideration, or been promised or expected any pay, remuneration or consideration; and third, any payment, remuneration or consideration is not for or in relation to the practice of veterinary surgery or any other directly or indirectly related matter arising out of or connected with the relevant circumstances.
[116] Interpretation Act 1984 (WA) s 67.
Apart from 'practice' and 'veterinary surgery', none of these terms are defined in the Act and, as such, bear their ordinary and natural meaning. It is apparent from the first two requirements that the section is very broad and extends beyond the payment of wages or salary to any valuable consideration that is received by or on behalf of an accused.
In relation to the third requirement, there are two limbs, namely 'the relevant circumstances' and 'the practice of veterinary surgery'. In my view, 'the relevant circumstances' is a reference to the particular offence under s 26(1) or animal the subject of the charge. The second limb, in my view, is not limited to the particular offence or animal but extends to any payment received from the practice of veterinary surgery. Accordingly, it is not sufficient for a person accused of a breach of s 26(1) to satisfy the court on the balance of probabilities that they did not receive any direct or indirect remuneration from the treatment of the particular animal or circumstances which gave rise to the offence. The accused must also satisfy the court they did not receive any direct or indirect remuneration from the practice of veterinary surgery at the time of the offence more broadly.
In my view, this construction promotes the purpose or object of s 26 of the Act, viewed in its statutory context. That context includes the provisions of the Act which prevent any party from deriving a financial benefit from the practice of veterinary surgery (subject to the exception that I address at [139]), as well as the provisions which require professional standards to be maintained and set out the consequences to those who practice veterinary surgery if those standards are not met.
For these reasons, I reject the appellant's submission that the payment in s 26(2) must be referable to the facts of the specific offence under s 26(1) of the Act.
The Act does provide an exception to the requirement that only a registered veterinary surgeon can receive any financial benefit from a veterinary practice. This exception is contained in s 26(6) of the Act which allows a party to receive rental payments from the lease of land and buildings for use as a veterinary practice.
I accept that on a proper construction of s 26 of the Act in its entirety, if an accused establishes on the balance of probabilities that the only payments they received were for the occupation of the premises used as a veterinary surgery and there was no evidence of any other direct or indirect benefit they received from the practice of veterinary surgery, the accused would have a defence under s 26(2) to a charge under s 26(1) of the Act.
I turn then to consider whether the appellant established on the balance of probabilities the matters in s 26(2). The learned magistrate made a number of findings that are relevant to this aspect of the case. First, the learned magistrate found the appellant was not a credible or reliable witness. Second, the learned magistrate found that the appellant did not divest herself of any interest in the business while she was not registered; she immersed herself in the practice, including reviewing the invoices prepared by Dr Lau, in a manner that was over and above what would be expected of a volunteer.[117] Third, there was no formal lease agreement with Dr Perry. Dr Perry paid rent by paying business loans in the name of the appellant (for equipment).[118] Her Honour drew the 'overwhelming inference' from the whole of the evidence that the appellant expected to resume the reins of the practice when she was able to seek re-registration.
[117] Primary reasons [145].
[118] Primary reasons [146].
Counsel for the appellant contended there was no evidence that contradicted the effect of the legal documents the appellant had signed disposing of her legal interest in EVH and that the prosecution, at trial, had not contended these documents were a sham. On this basis, the appellant submitted there was no evidence to support these findings. I do not accept these submissions. At trial, the prosecution opened on this aspect of the case by referring to the documents that had been entered into and saying that Dr Perry became the 'ostensible' manager of the practice, which satisfied the Board at that time.[119] The use of the word 'ostensible' indicates the prosecution contended the documents appear to be true but are not necessarily so. In closing submissions, the prosecution referred to the appellant's denial in cross-examination that she remained the 'boss of the business' and contended it was clear the appellant intended to take back control of the business if and when she was re-registered as a veterinary surgeon. For these reasons, I do not accept that the prosecution case at trial accepted the appellant had divested herself of any interest in the business.
[119] ts (24 October 2018) 20 - 21.
The only witness that was called by the appellant in relation to the defence under s 26(2) of the Act was herself. She did not call Dr Perry or any administrative employee of EVH. Given the onus of establishing the defence was on the appellant, I accept the submission of senior counsel for the respondent that it was for the appellant to call all relevant witnesses.
There was documentary evidence before the court that the appellant received a weekly payment from the veterinary practice of $500.[120] The learned magistrate accepted these payments were part of the loose agreement between the appellant and Dr Perry for the payment for rent.[121] In accepting these payments were for rent, I consider the appellant discharged her onus under s 26(2) of the Act in relation to these payments. For this reason, it is my view that the learned magistrate erred in holding the payments the appellant received from EVH did not evade the capture of the wide reach of s 26(2).
[120] Exhibit 27; Exhibit 48.
[121] Primary reasons [146].
However, this is not the only finding relied upon by her Honour which was relevant to the defence under s 26(2) of the Act. The learned magistrate also relied on the evidence in relation to the corporate structures and entities mentioned at [48] above and specifically found that the appellant had not divested herself of any interest in the business while she was not registered, the appellant's conduct was not consistent with that of a volunteer, and she expected to regain ownership of the practice when she was able to be re-registered. The only factual finding that is challenged by the appellant's grounds of appeal is the finding the appellant had not divested herself of any interest in the business. The appellant's grounds of appeal did not challenge the other factual findings made by her Honour. I accept the submission of senior counsel for the respondent that these other unchallenged facts, by themselves, support a conclusion that the appellant received an indirect benefit from the practice of veterinary surgery at EVH over the relevant period and the appellant had not proved on the balance of probabilities she did not.
Senior counsel for the respondent emphasised the appellant had not challenged the factual findings made by the learned magistrate. For this reason, the question raised by these grounds of appeal was whether the acts as found constitute the practise of veterinary surgery. The respondent submitted this ground of appeal was, in essence, a question of statutory construction and the appellant's construction of 'practise' was not supported by a plain reading of the Act.
In any event, the respondent contended that on the facts found by the learned magistrate, the appellant's conduct went beyond assistance or help and, in respect of some of the counts, supported a finding that it was the appellant who took the lead in the treatment or surgery and Dr Lau was assisting the appellant.[141]
Disposition
[141] Respondent's submissions [27] - [28].
I accept these grounds of appeal raise a question of statutory construction, namely whether doing an act in the course of veterinary surgery of itself constitutes the practise of veterinary surgery within the meaning of the Act.
The starting point is to observe that the definition of 'veterinary surgery' in the Act is very broad and encompasses 'the examination of an animal, diagnosis, treatment of any kind and the provision of advice'.[142] It is clear from both the definition of 'practise' and (e) of the definition of 'veterinary surgery' that it extends to the doing or performing of any act, matter, procedure or thing (emphasis added).
[142] Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136 [13].
In my view, for the following reasons, it is not necessary for a person to have performed the whole of the act, matter, procedure or thing for the conduct to constitute the practise of veterinary surgery and it is sufficient if they have performed an act in the treatment of the animal. First, this construction is consistent with the use of the word 'any' as opposed to 'the' in the definitions of 'practise' and (e) of 'veterinary surgery'. Second, this construction is supported by the sub‑paragraphs of the definition of 'veterinary surgery' which contemplate that certain acts involved in the treatment of an animal constitute separate acts of 'veterinary surgery'. By way of example:
(a)the examination of any animal for the purposes of diagnosis of disease in or injury to the animal is veterinary surgery (par (a)) and the provision of this advice is separately an instance of veterinary surgery (par (b)); and
(b)the giving of an anaesthetic is veterinary surgery (par (d)) and surgical treatment is separately an instance of veterinary surgery (par (c)).
Third, this construction is consistent with the Regulations which prescribe veterinary services which can be performed by any person (reg 45), by veterinary students under the supervision of a registered veterinary surgeon (reg 46), by authorised persons (reg 47), veterinary nurses (reg 65) and trainee veterinary nurses (reg 66). It is clear from the terms of these regulations that certain actions within the overall act of treatment of an animal can be performed by other parties (with or without supervision). These regulations support a construction that the treatment of an animal is not considered to be one act of veterinary surgery but a series of acts of veterinary surgery.
In my view, this construction promotes the purpose or object of s 26(1) of the Act viewed in its statutory context. This context includes the purpose summarised at [133] of these reasons.
This construction is also supported by the evidence that was led at trial in relation to, for example, the castration of an animal. There are several steps involved in this process including the anaesthetising of the animal, the preparation of the animal for surgery, incision with a surgical instrument, ligation, and suturing. Each of these steps is a separate incident of veterinary surgery, some of which can be done by others as provided for in the Regulations and some of which can only be performed by a veterinary surgeon.
In relation to the appellant's submission that a critical element of veterinary surgery was whether the person doing the act had responsibility for the act performed, I accept the submission of senior counsel for the respondent that there is no textual footing for this submission. The definition of 'veterinary surgery' focuses on the act or acts that are performed and not who bears legal responsibility for those acts.
For these reasons, I do not accept the construction contended for by the appellant that there is only one act of veterinary surgery in relation to the treatment of an animal or that the focus of the Act is on who is responsible for the procedure. On the facts as found by the learned magistrate in respect of each of the charges on which the appellant was convicted, there were acts of the appellant that constitute 'veterinary surgery'. Accordingly, I do not consider these grounds of appeal have any merit and each should be dismissed.
Did the appellant's conduct require the requisite level of skill? (Grounds 5, 9, 13, 20 and 25)
Parties' submissions
The appellant submitted there was no evidence that the conduct of the appellant as found by the learned magistrate required the use of special skill and knowledge.
Specifically, in relation to each of the counts on which the appellant was convicted, she contended that:
(a)in relation to Roxy, there was no evidence that the use of haemostats, which is like using tweezers, required the use of special skill and knowledge;
(b)in relation to Anton, the provision of advice to a registered vet is not within the definition of veterinary surgery as the appellant was not providing advice based on 'diagnosis of disease of, or injury to, any animal'. A discussion between people with specialised knowledge did not fall within the conduct proscribed by the Act. In the context of the Act, advice was required to be given to the owner of the animal;
(c)in relation to Nimbus, the evidence before the court was that experienced horse owners without formal qualifications could treat their own animals in this way and, as a consequence, there was no evidence the acts found to have been done by the appellant had the requisite level of skill to constitute veterinary surgery.
(d)in relation to Hooley, there was no evidence that cleaning and bandaging the wound was conduct falling within the definition of 'veterinary surgery';
(e)in relation to Eagle Rock, there was no evidence that 'stripping the tunic' was an act requiring any special skill or expertise. On the evidence of Dr Lau, it was a matter of strength only and not skill.
Senior counsel for the respondent emphasised the appellant had not challenged the factual findings made by the learned magistrate. Once again, the only question raised by these grounds of appeal is whether the particular conduct found by her Honour involved sufficient skill or knowledge such as to constitute the practice of 'veterinary surgery'.[143]
[143] ts 78.
The respondent rejected the contentions advanced by the appellant in respect of each of the charges and submitted that in considering whether the conduct in question was the 'practise' of veterinary surgery, it was necessary to consider the circumstances in which the relevant act took place as well as the nature of the alleged conduct. In relation to the provision of advice, the respondent contended that first, the identity of the recipient of the advice was not relevant to the question of whether a person had engaged in 'veterinary surgery' and second, the ultimate recipient or beneficiary of the advice was the owner of the animal. Senior counsel for the respondent submitted the limitation of the provision of advice to being advice given to the owner or person responsible for the animal was not a limitation that was contained in the text of the definition of 'veterinary surgery'. The respondent contended there was nothing in the statutory text which would support this conclusion.
Disposition
As noted at [181], the starting point is that the definition of 'veterinary surgery' is very broad and encompasses a wide range of matters. This is reinforced by the Regulations which specify acts of veterinary services that can be performed by others, including, where appropriate, under supervision of a registered veterinary surgeon. In determining whether an act is 'veterinary surgery', it is necessary to consider whether the appellant was using 'skill and knowledge of the same kind, if not necessarily of the same quality, as those used by a veterinary surgeon'.[144] If the appellant used skill and knowledge of the same kind as that of a veterinary surgeon, it follows that the act or procedure was in relation to the ‘art and science’ of veterinary surgery.
[144] Muggleton v Hall; ex parte Hall [1991] 1 Qd R 26, 27 - 28 (McPherson J with de Jersey J concurring).
In assessing whether the acts as found by the learned magistrate involved the necessary skill and knowledge of a veterinary surgeon, I consider the circumstances in which the act took place is relevant, as is the nature of the act performed or conduct alleged. By way of example, the use of haemostats to remove grass seeds from a dog's coat is likely to constitute grooming where the dog is conscious and not in any distress, whereas a different conclusion might arise if the dog is distressed or under anaesthetic. Similarly, the application of a bandage to a wound is more likely to constitute dressing of the wound where the wound is an insignificant surface injury and sedation of the animal prior to treatment is not required.
In relation to the provision of advice, for the following reasons, I do not accept the appellant's submission that the advice must be provided to the owner of the animal. First, there is no textual footing for this submission. Second, it is the content of the advice that contains the skill and knowledge of the veterinary surgeon. This is what causes the advice to be veterinary surgery, not the person who is the recipient of the advice.
I turn then to the findings made by her Honour in relation each of the animals and consider whether the acts as found contain the necessary skill and knowledge to constitute veterinary surgery.
In relation to Roxy, the relevant circumstances are that the appellant attempted to remove grass seeds from Roxy's face at home but was unable to complete the task because Roxy was distressed and grass seeds were stuck to the wound, which was described as 'wet' or 'oozy'. As a consequence, the appellant brought Roxy into EVH where he was anaesthetised and haemostats were used to remove the grass seeds from the wound. In my view, using haemostats to remove grass seeds which are stuck to an open wound, so as to not further injure the animal, requires the use of special skills and knowledge of a veterinary surgeon.
In relation to Anton, the provision of advice by the appellant on the surgical technique of Dr Lau and, in particular, whether the depth of the groove was sufficient, was advice given by the appellant using her special skills and knowledge as a veterinary surgeon. The provision of the advice was given by the appellant in relation to the injury to Anton and, as such, falls within the definition of veterinary surgery.
In relation to Nimbus, the learned magistrate made several findings of fact as to the acts performed by the appellant. These acts included the administration of a schedule 4 drug into the jugular vein, as well the assessment and treatment of the wound. Each of these acts requires special skill and knowledge of a veterinary surgeon. In relation to the injection, the identification of the location of the jugular vein and the safe administration of the injection into that vein is, in my view, an act that can only be done by a person with specialist skills and training. I do not accept the appellant's submission that the evidence before the court was that experienced horse owners can treat their horses in this way. The evidence of Ms Cartledge was that the injury 'needed a vet'[145] and that owners were capable of giving intramuscular injections (as opposed to injecting into the jugular vein).[146] Similarly, in relation to the assessment or examination of the horse, these acts were for the purpose of diagnosis, which falls within par (a) of the definition of 'veterinary surgery'.
[145] ts (24 October 2018) 44.
[146] ts (24 October 2018) 52.
In relation to Hooley, the learned magistrate made several findings of fact as to the acts performed by the appellant. This included the examination of Hooley and diagnosis of his injury. As set out above at [198], the examination and diagnosis of an injury is specifically included in par (a) of the definition of 'veterinary surgery'.
Finally, in relation to Eagle Rock, while I accept that 'stripping the tunic' requires strength, this does not mean it does not require any special skill or knowledge. Identifying the particular tissue to be stripped and the technique to be used to do this without injuring the animal is, in my view, an act requiring special skill and knowledge. It is an act that forms part of the surgical treatment of the animal which is specifically defined to fall within veterinary surgery.
For these reasons, I consider that on the facts as found by the learned magistrate, the appellant's conduct in respect of each of these charges involved the requisite level of skill and knowledge. Accordingly, I do not consider these grounds of appeal have any merit and leave should not be granted.
Was the appellant's conduct within reg 45 of the Regulations? (Grounds 14(1) and 22)
Parties' submissions
The appellant contended the learned magistrate failed to deal with the submission that reg 45 applied to the appellant's conduct in relation to Nimbus and Hooley, nor give any reasons for this. The appellant submitted this was an error of law.
The appellant's written submissions assert that the respondent's closing submissions at trial suggested the regulation did not exist.[147] I do not accept this submission as it does not take account of [161] of the respondent's closing submissions, which refers to this regulation, albeit briefly.
[147] Appellant's submissions [130].
Counsel for the appellant submitted the appellant's conduct in relation to Nimbus amounted to 'dressing and suturing' the wound, and medicating Nimbus. These acts were said to fall within the conduct set out in reg 45(a) and (f) as being able to be performed by any person. In relation to Hooley, the appellant contended that cleaning and bandaging Hooley's leg fell within 'dressing and suturing' wounds, which under reg 45(a), could be done by anyone.
The respondent emphasised that pursuant to s 31 of the Magistrates Court Act 2004 (WA), the learned magistrate was not required to canvass all legal and factual arguments or issues in her Primary Reasons.[148] Senior counsel for the respondent submitted that given the factual findings made by her Honour on charges 5 and 6, it was clear why reg 45 had not been canvassed in any detail.
[148] Respondent's submissions [101] - [102].
Senior counsel for the respondent contended the matters set out in reg 45 are exceptions to s 26(1) of the Act. On this basis, by reason of s 78 of the Criminal Procedure Act 2004 (WA), the appellant bore the onus of proof in establishing reg 45 applied.[149]
Disposition
[149] ts 121.
Section 31 of the Magistrates Court Act sets out the requirements of the contents of reasons for a judgment in the Magistrates Court in the following terms:
Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c) need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
In Sawa Pty Ltd v Swift, Martino J summarised the content of this duty in the following terms:[150]
The content of the duty of a Magistrate to give reasons was explained by Martin CJ in Strahan v Brennan [2014] WASC 190 [88] ‑ [92]. Magistrates must give adequate reasons for their decision. The content of that obligation and whether that obligation has been satisfied in a particular case depends on considerations elucidated in the Magistrates Court Act and the relevant case law. Magistrates Courts are summary courts and Magistrates are to conduct their work with expedition and a degree of informality appropriate to the disposition of the large volume of cases brought before the Magistrates Court. It is not appropriate to scrutinise a Magistrate's Primary reasons with a fine tooth comb or with an eye keenly attuned to the identification of error, or to infer error from infelicity of language. Nevertheless a Magistrate's reasons must disclose the underlying intellectual process which has given rise to the conclusions. The adequacy of those reasons is to be assessed by looking at the reasons as a whole, including findings expressly made and findings to be inferred from findings expressly made and in the context of the particular case in which the reasons have been given.
[150] Sawa Pty Ltd v Swift [2016] WASC 331 [28].
Regulation 45 of the Regulations sets out the veterinary services that may be performed by any person, for the purposes of s 26(3)(e) of the Act. This regulation provides that:
The following veterinary services are prescribed for the purposes of section 26(3)(e) of the Act as services that may be performed by any person -
(a)dressing and suturing wounds;
(b)immobilising a fractured limb by external fixation;
(c)treating milk fever or postparturient paresis;
(d)relieving bloat;
(e)assisting a female animal at parturition;
(f)medicating an animal with a registered vaccine or medicament;
(g)rasping teeth;
[(h)deleted]
(i)vivisection and other experiments or operations on animals (including giving any necessary anaesthetic) if performed in accordance with the Animal Welfare Act 2002 by a person who is authorised under that Act to do so;
(j)implanting in a cat a microchip as defined in the Cat Act 2011 section 3(1);
(k)implanting in a dog a microchip as defined in the Dog Act 1976 section 3(1).
I note from the outset that the term 'veterinary services' is not defined in the Act or the Regulations. The term 'services' is generally considered to have a wide meaning. The Macquarie Dictionary defines it as 'an act of helpful activity’ and ‘the performance of any duties or work for another'.
In my view, 'veterinary services' has a broader meaning than 'veterinary surgery' although some 'veterinary services' will be 'veterinary surgery'. This is consistent with the Regulations which contemplate some veterinary services being performed by persons other than a registered veterinary surgeon.
Turning first to the exception in reg 45(f), there is no suggestion that the appellant injected Nimbus with a registered vaccine. Accordingly, this exception will only apply if the appellant medicated the animal with a 'medicament'. The ordinary meaning of 'medicament' is 'a substance used for medical treatment'.[151] I accept this is a broad definition, which, in my view, extends to prescription medications. This construction is consistent with the actions of Dr Lau in providing instructions to the owners of the horses as to how to administer antibiotics, as well as Ms Cartledge’s evidence.
[151] Oxford English Dictionary.
However, I do not accept that 'medicament' extends to the injection of sch 4 drugs. Regulation 46(3) of the Regulations sets out the exemptions that apply to veterinary students. These include at reg 46(3)(a) the administration of 'scheduled drugs'. This supports a construction that ‘medicament’ does not extend to scheduled drugs. If it had been intended by the legislature to allow any person to administer schedule 4 drugs, reg 45 would have used the same language as reg 46. By using different language in reg 45, I consider the legislature intended to restrict reg 45(f) to something other than scheduled drugs.
On this basis, I reject the appellant's submission that the appellant's conduct in injecting Nimbus with Detomidine fell within the terms of reg 45(f).
Turning to the exception in reg 45(a), the terms 'dressing' and 'suturing' are also not defined terms and accordingly bear their natural and ordinary meanings. Dressing means 'to clean, treat, or apply a dressing to a wound or sore'[152] or 'an application for a wound'.[153] Suturing means 'to secure with a suture, to sew or stitch up'[154] or 'joining of the lips or edges of a wound or the like by stitching or some similar process'.[155] I accept the submission of senior counsel for the respondent that, given the context and purpose of the Act, 'dressing' does not cover all treatment of a wound or that, where it is done by a veterinary surgeon, it cannot comprise veterinary surgery.
[152] Oxford English Dictionary.
[153] Macquarie Dictionary.
[154] Oxford English Dictionary.
[155] Macquarie Dictionary.
In relation to Nimbus, the acts of the appellant as found by the learned magistrate extended beyond the cleaning of the wound, securing with a suture and application of the dressing, although I accept the appellant did these acts as well. Relevantly, the learned magistrate found the appellant assessed the wound and treated it by clamping and ligating the vessel and excising a flap of skin using either a scalpel or scissors. None of these acts constitute 'dressing or suturing' the wound but are individual acts of veterinary surgery.
In relation to Hooley, the learned magistrate found that the appellant examined and diagnosed Hooley's injury, inserted her fingers into the wound and provided treatment options and advice. Each of these acts are individual acts of veterinary surgery which do not fall within the exception in reg 45(f) of the Regulations. In particular, the finding that the appellant inserted her fingers into the wound of Hooley cannot, in my view, constitute 'dressing and suturing wounds'.
In this case, the learned magistrate found the appellant engaged in multiple acts, any one of which could constitute an act of veterinary surgery. On this basis, even if some of the acts constituted 'dressing and suturing', this would only excuse some of the appellant's conduct. The appellant's diagnosis and provision of treatment options would still constitute 'veterinary surgery' and reg 45 would not excuse the entirety of the appellant's conduct.
While I accept the learned magistrate did not, in her reasons, address reg 45 or why she did not consider it applied, I do not consider this is an error of law. While it might have been preferable for her Honour to address the issue, given her factual findings as to the acts of veterinary surgery in respect of both Nimbus and Hooley, reg 45 would not have excused all of the conduct found by her Honour.
Even if I am wrong in this regard and her Honour's failure to consider these matters was an error of law, I do not consider the appeal should be allowed on this ground. For the reasons I have set out above, I do not consider all of the appellant's conduct came within reg 45 and accordingly no substantial miscarriage of justice has occurred.
For these reasons, I do not consider there is any merit in these grounds of appeal and they ought be dismissed.
Was the appellant's conduct first aid? (Grounds 14(2) and 21)
Parties' submissions
The appellant submitted the learned magistrate erred in finding the appellant's conduct in cleaning and bandaging the wounds of Nimbus and Hooley was not 'first aid for the purpose of saving the life of the animal or relieving pain suffered by the animal'. Counsel for the appellant contended that Dr Lau's evidence was the conduct was first aid done for the purpose of reducing the pain and suffering of the animals.
The respondent rejected these submissions and said there was no error in the analysis of the learned magistrate. The respondent submitted that if the appellant's construction was accepted, virtually every treatment provided to an animal would constitute first aid, which could not have been intended by the Act. Senior counsel for the respondent submitted that any one or a combination of the acts as found by the learned magistrate fell within the 'art and science' of veterinary surgery.[156]
Disposition
[156] ts 89.
The term 'first aid' is not defined in the Act and, accordingly, bears its ordinary and natural meaning. 'First aid' is defined as 'emergency aid or treatment given to persons suffering accident, injury, etc., until the services of a doctor [or in this case veterinary surgeon] can be obtained'.[157] That is, on its ordinary and natural meaning 'first aid' does not encompass the entire treatment of an animal when a registered veterinary surgeon is present. Rather, it covers the treatment of the animal until the veterinary surgeon arrives.
[157] Macquarie Dictionary.
In the case of Nimbus, first aid was administered by Mr Battersby while he was waiting for the arrival of Dr Lau and the appellant. Once Dr Lau, as a registered veterinary surgeon, and the appellant arrived, the horse was examined, the medical issue with the horse diagnosed and the horse treated. Each of these acts constitutes 'veterinary surgery' and not 'first aid'.
In the case of Hooley, on the arrival of Dr Lau and the appellant, the horse was examined, the medical issue with the horse diagnosed and the horse treated. Each of these acts constitutes 'veterinary surgery' and not first aid.
For these reasons, I do not consider there is any merit in these grounds of appeal and they should be dismissed.
Was the defence of emergency made out? (Ground 15)
Parties' submissions
Counsel for the appellant submitted that her Honour's conclusion that 'the situation was not an emergency' was inconsistent with the evidence and the findings of fact that the call to EVH in relation to Nimbus was made on the basis it was an emergency and his life was in jeopardy if not treated immediately.
The appellant relied on s 25 of the Criminal Code Act 1913 (WA) which relevantly provides that:
(2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3)A person does an act or makes an omission in an emergency if -
(a) the person believes -
(i)circumstances of sudden or extraordinary emergency exist; and
(ii)doing the act or making the omission is a necessary response to the emergency;
and
(b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
In the appellant's submission, the prosecution at trial did not negate each of these matters beyond a reasonable doubt.[158]
[158] Appellant's submissions [136].
Counsel for the appellant submitted the learned magistrate erred in failing to explain why her finding that Dr Lau was capable of attending to the horse negated the defence. Specifically, the appellant submitted the learned magistrate erred in not considering the appellant's beliefs.
At the conclusion of the hearing, the appellant sought leave to amend this ground of appeal to include a challenge to the finding of fact that Dr Lau was capable of attending to the horse herself. On 27 February 2020, orders were made by consent granting leave to the appellant to amend this ground of appeal and for the filing of further written submissions. In relation to the amended ground 15, the appellant submitted that, even if the evidence of Dr Lau were accepted, the learned magistrate's finding that Dr Lau was capable of attending to the horse was not reasonably justified by the evidence.
The respondent rejected the contentions advanced by the appellant and submitted the analysis of the learned magistrate was both sound and correct. Senior counsel for the respondent submitted it does not follow from a finding the situation was an emergency that the prosecution failed to negate this defence. This is because s 25 of the Criminal Code does not concern the general situation or circumstances but focuses on the specific acts of the appellant, the belief of the appellant in relation to those acts and whether there are reasonable grounds for the appellant's belief.[159]
Disposition
[159] ts 77.
Section 25 of the Criminal Code relieves a person of criminal responsibility for an act or acts for which they would otherwise be criminally responsible in an emergency.
In this regard, I accept the submission of senior counsel for the respondent that the focus of s 25 is on the specific acts of the appellant as found by the learned magistrate to constitute the offence and not the overall situation as contended for by the appellant. In this regard, I consider the learned magistrate erred in focussing on the situation and not the specific acts of the appellant.
I turn then to consider the specific acts of the appellant and whether the appellant is relieved of criminal responsibility under s 25 of the Criminal Code.
The learned magistrate found the appellant performed the following acts: first, the administration of Detomidine in Nimbus' jugular vein; second, the assessment of the injury and its treatment by clamping and ligating the vessel; third, the excise of a flap of skin by using either a scalpel or scissors.
In relation to these acts, the appellant's evidence was that she administered the injection after being asked to do so by Dr Lau. She denied removing any flap of skin from Nimbus. I accept the respondent's submission that there was no evidence from the appellant that she believed each of these acts was a necessary response to an emergency. In these circumstances, at least in relation to these acts, the appellant did not discharge her evidentiary burden to adduce evidence which the prosecution was required to negative beyond a reasonable doubt.
For this reason, even if the appellant believed she was required to assess Nimbus' injury and treat it because Dr Lau was not able to do so and there were reasonable grounds for this belief, this would not result in an acquittal of the appellant on this charge. The conviction would be upheld on the basis of the other acts for which no defence of emergency could apply.
In relation to the assessment and treatment of Nimbus, the appellant's evidence at trial was that she believed she needed to step in to assess and treat Nimbus, because 'everyone was panicking' and Dr Lau asked her what to do and did not know what to do. In adducing this evidence, the appellant discharged her evidentiary burden which the prosecution was then required to negative at trial beyond a reasonable doubt. I accept the prosecution did so. The appellant's evidence was not accepted by the learned magistrate. Instead, the learned magistrate accepted the evidence of the prosecution witnesses that the appellant assumed control of the treatment of Nimbus from the time she and Dr Lau arrived. In doing so, it is clear that, even if the appellant held the belief it was an emergency, by assuming control at the start, when a registered veterinary surgeon was present, her Honour did not consider the appellant's acts were a reasonable response to the situation or there were reasonable grounds for this belief.
At the hearing before me, counsel for the appellant submitted the question as to whether Dr Lau was capable of attending to the horse was not relevant to the defence. I do not accept this submission. In considering whether the act (or omission) of the appellant was a reasonable response to the emergency and whether there were reasonable grounds for that belief, it is relevant to consider the alternatives that were then available and whether there was any other party present who was capable of treating the animal.
In respect of the challenge to the factual finding of her Honour that Dr Lau was capable of attending to the horse, the evidence before the court was that Dr Lau was a qualified vet who was a registered veterinary surgeon in Western Australia. Dr Lau had worked in a mixed animal practice in a semi-rural area for approximately nine months prior to commencing at EVH. In cross-examination, Dr Lau's evidence was:[160]
And you're not used to dealing with horses in this situation, that is, severe bleeding?---When I was working in New South Wales I actually had treated a horse with similar injuries.
So one horse only?---Not just one horse, but in general. Like, I remember that one case but I did deal with horses.
But you weren't confident dealing with these large animals in this sort of situation?---I wouldn't say I wasn’t confident.
[160] ts (25 October 2018) 153.
In re-examination, Dr Lau's evidence was:[161]
Had Ms Tasovac not did what she did, on your evidence - what would you have done regarding the treatment of Nimbus had she not been there?---Same thing: put on the clamps, ligate it, trim of (sic) any excessive dead tissues, bandage it up, give it the same amount of drugs that I would have done.
And why wasn't it that you didn’t do that at the time?---Is a very chaotic situation and I didn't think too much back then that, you know, like, she’s not allowed to do certain things, and I guess at that point we just want to make sure the horse is all right.
[161] ts (25 October 2018) 174.
The learned magistrate accepted Dr Lau as a witness of truth and rejected the appellant's evidence, as she was entitled to do. In my view, the findings of fact made by her Honour were open on the evidence of Dr Lau.
For these reasons, while I would grant leave to appeal, I consider this ground of appeal ought be dismissed.
Conclusion
For these reasons, while I would grant leave to appeal on grounds 3, 8, 12, 15, 18, 24 and 28, I consider the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill
23 NOVEMBER 2021
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