Taylor v Royal Society for the Prevention of Cruelty to Animals (SA) Inc - [2016] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAYLOR v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2016] SASC 61
Judgment of The Honourable Justice Nicholson
6 May 2016
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES - MISCELLANEOUS OFFENCES
Appeal against conviction and sentence. The appellant was charged with the offence of ill treating an animal contrary to section 13(2) of the Animal Welfare Act 1985 (SA). In July 2014, the appellant was the owner of an adult dog for a period of approximately five days before selling it. It came to the attention of the subsequent buyer that the dog had a severe ear infection that needed to be treated. It was the prosecution’s case that the appellant failed to take reasonable steps to either seek or provide treatment for the dog’s severe ear infection. At trial, the appellant contended that he had not been aware the dog was suffering harm, as he had minimal contact with the dog when it was in his possession.
Following a trial on 4 January 2016, the appellant was convicted by a Magistrate of the offence and was sentenced that same day. The Magistrate entered a conviction and imposed a fine of $250. His Honour also made orders, pursuant to section 32A of the Animal Welfare Act 1985 (SA), that the appellant be forbidden from acquiring or having custody of any animal for a period of 12 months from the date of the order and that the appellant surrender any animals owned by him to an inspector within 14 days of the date of the order. The Magistrate further ordered the appellant to pay costs of $500.
The appellant lodged a Notice of Appeal against the conviction and sentence. With respect to the conviction, the appellant contends, inter alia, that: the evidence did not support the finding that the dog was suffering harm when in the appellant’s possession; the evidence did not support the finding that the appellant knew or ought to have known that the dog was suffering harm; and the Magistrate failed to alert the appellant, a self-represented litigant, of a potential defence available under section 13(5). With respect to the sentence, the appellant contends that the Magistrate erred in finding that the appellant had engaged in persistent ill treatment of animals and had failed to consider the detrimental effect of the orders made.
Held:
1. Appeal against conviction and sentence dismissed.
Animal Welfare Act 1985 (SA) s 3, s 13, s 32A; Criminal Law (Legal Representation) Act 2001 (SA); Evidence Act 1929 (SA) s 13B, referred to.
Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Horstmann [2010] SASC 103; Police v Chilton [2014] SASCFC 76, (2014) 120 SASR 32; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357, considered.

TAYLOR v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2016] SASC 61
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 4 January 2016, Gary Taylor was convicted by a Magistrate of the offence of ill treating an animal contrary to section 13(2) of the Animal Welfare Act 1985 (the AWA). The Magistrate sentenced Mr Taylor that same day by:
(i)entering a conviction;
(ii)imposing a fine of $250;
(iii)ordering, pursuant to section 32A of the AWA, that Mr Taylor be forbidden from acquiring or having custody of any animal for a period of 12 months from the date of the order; and
(iv)ordering, pursuant to section 32A of the AWA, that Mr Taylor surrender any animals owned by him to an inspector[1] within 14 days of the date of the order.
The Magistrate also ordered that the defendant pay costs in the amount of $500. According to the file endorsement this sum was made up of a Court fee of $295 and $205 towards the complainant’s legal costs.
[1] “Inspector” is defined in section 3 of the AWA to mean a police officer or a person holding an appointment as an inspector under Part 5 of the AWA.
Mr Taylor has appealed to this Court against both the conviction and the sentencing orders in (iii) and (iv) above.
Central to the charged offence is the asserted failure by the appellant to procure veterinary care or otherwise treat a severe ear infection from which a dog in the appellant’s possession was suffering. The basal facts, no longer in contest, are as follows.
The appellant is self-employed. He sells dogs, primarily puppies, from his house and has done so for approximately 20 years. The appellant, from time to time, had dealt with an “Iranian guy” from whom he had bought approximately five litters of puppies. This man asked the appellant to assist him to “get rid” of two adult dogs, including the dog in question, by finding them a new home. The appellant agreed to do this and took possession of the two dogs. The apparent understanding was that if the appellant sold the dogs he would retain the proceeds.
The appellant succeeded in selling one of the dogs, a male Cavoodle[2] known as DJ, to Ms Leah Raschella for $350. According to the appellant (and unchallenged) he had been in possession of DJ for only about five days prior to effecting the sale.
[2] A Cavoodle is a cross between a Cavalier King Charles Spaniel and a Poodle.
On or about 21 or 22 July 2014, Ms Raschella read the appellant’s advertisement in a newspaper relating to the sale of some puppies and an adult dog. She spoke to the appellant on the telephone and they exchanged text messages. Ms Raschella indicated that she was interested in acquiring DJ and arrangements were made for her and her family to look at DJ on Saturday, 26 July 2014. During the days leading up to the Saturday Ms Raschella also received a couple of photographs of DJ that had been transmitted by mobile phone to her by the appellant.
Ms Raschella attended the appellant’s premises at about 6.30pm on Saturday 26 July 2014. The parties negotiated and Ms Raschella took the dog away. On the following Monday the Raschella family took the dog to a veterinarian, Mr Andrew Spanner. Mr Spanner diagnosed the dog to be suffering from a mild infection in one ear and a very severe infection in the other. The dog was treated by Mr Spanner. It is still in the possession of the Raschella family and, whilst, by the time of trial and judgment (4 January 2016)[3] it appeared to have made a good recovery, it was at that time still receiving medication.
[3] RSPCA v Taylor, Judgment of Magistrate Davis, 4 January 2016, MCCHB-15-2608 (Reasons for Judgment).
The charged offence and relevant legislation
The complaint and summons filed in the Magistrates Court on 26 May 2015 described the offence charged and its particulars in the following terms.
Count 1
Between about 19 July 2014 and 26 July 2014 at Aldinga Beach in the State of South Australia, the defendant ill treated an animal, namely a male dog.
Section 13(2) of the Animal Welfare Act 1985.
Particulars
The defendant, being the owner of the animal, failed to take reasonable steps to mitigate harm suffered by the animal. The dog was suffering from a severe and chronic ear infection and should have received appropriate veterinary treatment.
Section 13(3)(b)(ii) of the Animal Welfare Act 1985.
Section 13 of the AWA, insofar as is relevant to the charge, provides as follows.
13—Ill treatment of animals
(1)...
(2)A person who ill treats an animal is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
(3)Without limiting the generality of subsection (1) or (2), a person ill treats an animal if the person—
(a) ...
(b) being the owner of the animal—
(i)...
(ii)fails to take reasonable steps to mitigate harm suffered by the animal; or
(iii)...
(iv)...
(c)-(j) ...
(4)...
(5)It is a defence to a charge of an offence against subsection (2) if the defendant proves that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
The elements of the charged offence are:
(i)that the appellant was the owner of DJ at the relevant time;
(ii)that DJ suffered harm at a time when the appellant was the owner; and
(iii)that the appellant, at a time when he was the owner, failed to take reasonable steps to mitigate that harm.
The Magistrate found that the appellant was the “owner” of DJ at least for the period from when he advertised the dog for sale until handing the dog over to the Raschellas.[4] The Magistrate also found that DJ suffered harm during the period of the appellant’s ownership. The term “harm” is defined in section 3 of the AWA to mean “any form of damage, pain, suffering or distress (including unconsciousness), whether arising from injury, disease or any other condition”. The evidence of Mr Spanner which was barely challenged by cross-examination, and with respect to which no expert evidence to the contrary was adduced by the appellant, was clearly to the effect that DJ, upon examination on the Monday, was suffering from an acute ear infection which was causing him pain and distress. Furthermore, he had been suffering from that acute ear infection for at least the past month which, of course, included the period of time during which the appellant was the “owner”. The issue of harm was not conceded but the Magistrate’s findings in this respect were properly arrived at and must stand.
[4] The issue of ownership was in dispute at the trial and the Magistrate made a finding of ownership. Initially, this was challenged in the notice of appeal but the ground was abandoned during the hearing of the appeal. Section 3 of the AWA, the interpretation provision, provides that “owner” includes “a person... who has the custody and control over the animal”. On the appellant’s own evidence he had the custody and control of DJ during the period in question, at least for the purpose of effecting the sale of DJ.
During the trial, most of the evidence and argument was directed to the question of whether or not the prosecution had established beyond reasonable doubt the element of the offence that the appellant had failed to take reasonable steps to mitigate the harm being suffered by DJ.
This gave rise to a consideration of the state of the appellant’s knowledge about DJ’s condition (if any) that the prosecution was obliged to prove, beyond reasonable doubt. On one reading of the statutory offence, once DJ was found to have had a severe ear infection, to have suffered harm and that reasonable steps to mitigate such harm would have required the appellant to seek some form of treatment, which the appellant failed to do, the offence would be made out. Such a reading would lead to the imposition of strict liability and it would not avail the appellant that he had not been aware of the harm. However, the case was conducted before the Magistrate on the basis that the requirement to take reasonable steps to mitigate harm only applied if the appellant knew that DJ was suffering the harm in question. The taking of DJ to the vet or otherwise attempting to treat the ear infection could only be characterised as a reasonable (and therefore required) step, if the appellant knew of the harm being suffered which gave rise to the need to take such a step.
The Magistrate incorporated a requirement of actual knowledge into the third element of the offence. His Honour found that:
[the appellant] failed to take reasonable steps to mitigate the harm suffered by DJ, because I find that he did realise that his dog was suffering.
It has not been suggested by the prosecution that the Magistrate was incorrect in having regard to the appellant’s state of knowledge or that the offence under section 13(2) should be regarded as imposing a form of strict liability.
The conviction appeal
The proper approach on an appeal against conviction from the Magistrate’s Court, where it is alleged that the evidence did not lend sufficient support to the conviction, is as described by White J in Martin v The Department of Transport, Energy and Infrastructure.[5]
[5] [2010] SASC 141 at [36]-[39].
As previously noted, the appellant’s first ground of appeal is that the Magistrate’s verdict was unsafe and unsatisfactory. A ground of appeal in these terms is commonly seen in appeals under s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It is, however, inapplicable to appeals under s 42 of the Magistrates Court Act 1991 (SA).
The present appeal is an appeal by way of rehearing.[6] The function of this Court in hearing and determining an appeal against conviction under s 42 of the Magistrates Court Act is quite different from that of the Court of Criminal Appeal in hearing and determining an appeal under s 353(1) of the CLCA. This point was made by Perry J in Taylor v Hayes:[7]
While I suppose that there is no harm in using words such as “unsafe, unjust or unsatisfactory” or “cannot be supported having regard to the evidence”, or the words “miscarriage of justice” in the expression of grounds in support of an appeal under the Justices Act, they are words which are of more particular significance in relation to appeals under s 353 of the Criminal Law Consolidation Act.
Grounds of appeal under the Justices Act when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the Magistrate’s findings. While it must give due weight to the advantage held by the Magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the Magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for hearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the Magistrate upon which it was open for him to reach the decision the subject of the appeal.[8]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[9]
Accordingly, although the appellant’s criticisms of the Magistrate’s decision are important, this Court must review the whole of the evidence put before the Magistrate.
[6] Magistrates Court Act 1991 (SA) s 42(1); Supreme Court Civil Rules 2006 (SA) r 286(1).
[7] (1990) 53 SASR 282.
[8] Ibid at 291-2.
[9] See generally Fox v Percy [2003] HCA 22 at [25]-[29]; (2003) 214 CLR 118 at 126-8; Warren v Coombes (1979) 142 CLR 531 at 551.
The evidence at trial
The Magistrate summarised the evidence of the two prosecution witnesses, Ms Raschella and Mr Spanner. He found each to have been truthful and reliable but for one aspect of Ms Raschella’s evidence. Ms Raschella said that when she collected DJ she took the view that he was generally in poor condition and was skinny with matted fur around its face. In this respect, his Honour preferred the evidence of Mr Spanner that DJ was, apart from the ear infections, in normal condition. Nothing turns on this difference of opinion and it was plainly appropriate for his Honour to prefer that of an experienced vet who had examined DJ in a professional capacity, as identified by his Honour.
In addition to describing the means by which she acquired DJ (referred to below) Ms Raschella described events after her family took DJ back to their family home. Her son slept with the dog that night in the lounge room. He told his mother the next day that the dog had been persistently scratching its ears during the night.[10] Ms Raschella observed DJ to scratch his ears throughout the next day. Ms Raschella kept the dog in her room the next night. She observed that it scratched its ears during the night. It was this observation that caused her sufficient concern to arrange for DJ to be seen by Mr Spanner on the Monday.
[10] This evidence can only have been admissible on the basis that it served to explain Ms Raschella’s later actions rather than for the truth of that which the son told his mother.
Ms Raschella said this.
AThe next morning I got up and my son said that he had itched his ears all night so that morning I bathed him and I couldn’t bathe anywhere around his face or his ears but I gave him a bath because he had quite a chemical smell to him like – I don’t know what it was but it was a very strong smell so after I bathed him just kept an eye on him and he just was pretty quiet and kept itching his ears a little bit.
QSo did you see the dog scratch his ears throughout the day.
AYeah, very much. And then that night he slept in our room on a little mat and all night he was itching his ears.
I interpolate here that the reason why Ms Raschella was, according to her evidence, unable to bathe anywhere around the face or the ears of DJ was not explored either in examination in chief or in cross-examination. Nevertheless, such an observation or experience on the part of Ms Raschella is consistent with the evidence given by Mr Spanner to the effect that any handling of the area near the ear would cause a reaction by the dog indicative of the pain it was suffering.
Ms Raschella also gave evidence concerning the circumstances surrounding her collection of the dog. The transaction occurred at the front of the appellant’s house. It was dark outside. Ms Raschella asked the appellant to turn the outside light on but the appellant said that “the light had blown out the front”. Ms Raschella and her daughter were able to look at the dog by the use of a “torch” on her mobile phone. She described it as difficult to see the dog but, and as earlier mentioned, she was unimpressed with the condition of the dog.
When they first arrived at the house they were greeted outside the front door by the appellant without the dog. The appellant said “I’ll go get the dog. If you open up your car I’ll put the dog inside”. It was then that Ms Raschella said she wanted to look at the dog first and the appellant went back inside the house, returned with the dog and brought it to Ms Raschella. Ms Raschella was told by the appellant that the dog had been immunised but that he had no immunisation records and no veterinary certificates of any type.

The evidence of Mr Spanner was central to the prosecution case. The Magistrate summarised it in his judgment in a manner which, on my reading of the transcript, fairly represents the evidence given.[11]
It is clear that [Mr] Spanner is an experienced vet. He has worked in a practice (for about the last 14 years) which specialises in ‘companion’ animals i.e. cats and dogs, which comprise approximately 95% of the animals seen in his practice. He gave evidence that ear infections are the most common reason for dogs being brought to see vets. He was surprised, when he went to put his hand to the base of the dog, that it attempted to bite him and this seemed, on his evidence, to be out of character with DJ’s demeanour immediately prior to this incident.
[Mr] Spanner examined DJ and took photographs P1, P2 and P3. He diagnosed DJ as suffering from hyperpigmentation, a condition in which the skin of the inside of its right ear had become black. Also, polyp-like nodules of skin had formed around the opening of its right ear and there was discharge from the infection in its right ear. His evidence was that these were markers of chronitis. He treated DJ with cortisone (Prednisolone). In his opinion, the condition that he observed was not only ‘striking’ in its severity, but had been there for at least one month.
DJ’s ear infection was secondary to an underlying skin disease atopic dermatitis, commonly known as an ‘allergy’. Consequently, a few days later [Mr] Spanner applied ointment and the dog (which is still owned by Ms Raschella) is still given tablets approximately every second day.
[Mr] Spanner noted in cross-examination by the defendant that DJ was otherwise in normal, physical condition. He agreed with the proposition that a dog in its condition would still eat and would not usually complain (that is, make an audible noise indicating it was suffering). He further agreed that if a dog in DJ’s condition was only fed twice a day for five days, with no other human contact, then its owner or the person looking after it would not, or might not, ‘pick up’ the problem. [Mr] Spanner also agreed that he had not found evidence of any previous treatment. He noted that a dog in DJ’s condition might have been scratching a lot, but as this was just supposition, I proceed on the basis that if the defendant had limited all his contact to simply feeding it twice a day, and nothing else then, he would not have ‘picked up’ the ‘problem’.
[Emphasis added]
[11] Reasons for Judgment at [8]-[11].
I interpolate here that the photographs, exhibits P2 and P3, show quite clearly an abnormal and nasty looking ear. Upon observing the ear in this condition, a concern would be raised that the ear was infected or otherwise diseased and that veterinary assistance would be required. However, the dog was a Cavoodle with long floppy ears that dangled over the ear canal.[12] Unless the long floppy ear, which in its normal position covered the infected part, was lifted, the problem with the ear would not be directly observed.
[12] Exhibit P1 (photograph).
Further, Mr Spanner agreed that a dog in DJ’s condition would still eat and usually would not complain, that is, make audible sounds to indicate it was in pain (unless provoked in some way). It was possible that the dog would scratch its ears (as observed by the Raschella family) but apart from that, unless the dog’s head or ear area was touched, there may be no observable or audible indication of any problem.
It was the defence case that the appellant was only ever interested in selling this dog and as quickly as possible. He did not want to bond with the dog or have the dog bond with him. Accordingly, the appellant engaged in only very limited contact with the dog during the five or so days it was in his possession. He kept the dog in the backyard and fed it twice a day but did not touch it.
The appellant gave evidence some of which has been summarised already. He was impressed with the Iranian man’s “immaculately clean” house and “nice family”. The appellant had previous satisfactory dealings with the Iranian man a number of times. In effect, he had no reason to think that the Iranian man had not looked after DJ whilst it had been in his possession. The appellant said that he did not handle DJ after DJ arrived at the appellant’s house, although he fed it twice a day. His job was simply to find DJ a new home. At no stage did the appellant become aware that DJ had an ear infection; he didn’t go near the dog other than to feed it and therefore didn’t observe anything. Further, he had no reason to be suspicious because of his previous satisfactory dealings with the Iranian man.
The appellant contrasted his approach to puppies. His business for the last 20 years has primarily involved the selling of puppies and not adult dogs. He said that puppies require quite intensive care which he provided. He would give them affection and have them vaccinated. However, there was no need to form and no point in forming an attachment to an adult dog which he hoped to sell as soon as possible. The appellant gave evidence that he usually does not sell and has no interest in adult dogs. He only sold this one as a favour to the Iranian man. His customers did not want adult dogs:
They eat more, they bark, you know, I got restrictions too, like I’m only allowed to have two dogs and that was a third one and you know, it either had to go or you know, I’d take it back to the guy.
The appellant collected DJ from the Iranian man’s house. He admitted that, in so doing, he picked up the dog to place it in a cage in order to drive it back to his house. He also picked up DJ in order to take it out of the cage when he returned home. However, he never saw DJ “flinch” and this was the only time he handled him.
The Magistrate’s findings
As previously identified, the Magistrate found that the appellant was, at the relevant time, the “owner” of DJ and that DJ suffered harm during the period of the appellant’s ownership. On the critical issue of whether the appellant failed to take reasonable steps to mitigate the harm, and with respect to the issue of whether or not the appellant was aware of the harm, the Magistrate reasoned and found as follows.[13]
I find that [the appellant] failed to take reasonable steps to mitigate the harm suffered by DJ, because I find that he did realise that his dog was suffering. In my view, [the appellant] must have. He was very experienced with dogs generally, and puppies in particular. He had, on his own admission, carried DJ from the Iranian’s house to his vehicle and then from his vehicle to his premises. The circumstances in which he sold the dog supports the inference that he knew there was something wrong with it. The street and the outside of his premises were dark and he immediately suggested putting DJ straight into Ms Raschella’s car before the deal had been “clinched”. I find that he must have made an initial assessment of DJ’s condition in order to determine his prospects of selling it, as well as the price that he could realistically ask and receive for it. It beggars belief that a person would try to sell a dog, placing an advertisement in a newspaper to do so, without having actually first examined it to having ensured that it was healthy and in saleable condition.
I find beyond reasonable doubt that it would have been reasonable for [the appellant] to have mitigated DJ’s harm. He should have (even if he did not) checked the dog to ascertain its health and general condition. He is, after all, to all intents and purposes a professional canine seller and both his livelihood and reputation were at stake. This would have been reasonable for anyone, let alone a professional seller.
Having ownership and/or care and control of the dog for five days was more than enough for any prudent, reasonable owner to check the dog’s welfare. I find the [appellant] to be unreliable and untruthful, both generally and in the specific topics that I have covered above, and I therefore find him guilty, beyond reasonable doubt, of the charge.
[13] Reasons for Judgment at [19]-[21].
Appellant’s contentions on the conviction appeal
The appellant’s first appeal ground is that the Magistrate erred in finding that the appellant had failed to take reasonable steps to mitigate harm suffered by DJ and raised a number of contentions in support of this ground.
First, it is contended that the evidence did not support the finding that DJ was suffering harm whilst in the custody or control of the appellant. However, the evidence given by the veterinarian, Mr Spanner, was clear to the effect that, two days after DJ had been collected by Ms Raschella from the appellant, he was suffering from a severe ear infection and that the ear infection had been in place for at least one month. The Magistrate accepted the evidence of Mr Spanner as being truthful and reliable and, on my review of his evidence, the Magistrate was correct to do so. He also had the photographs, exhibits P2 and P3, which clearly show the ear to have been diseased. The contention that it had not been proved that DJ was suffering harm during the appellant’s “ownership” is without any foundation.
Second, it is contended that the evidence did not support a finding that the appellant knew or ought to have known that DJ was suffering harm. In this respect, the appellant identified a number of matters supported by the evidence and with respect to which the Magistrate, it is said, gave no or insufficient weight, namely:
(i)that the animal was approximately seven years of age;
(ii)that the appellant had acquired the animal from a dog breeder -
(a)who had owned the animal for many years;
(b)with whom the appellant had dealt with on a regular basis for some years;
(c)who did not advise the appellant that the animal was suffering from an infection; and
(d)whom the appellant had no reason to suspect kept animals that were suffering from infections or were otherwise in poor health or suffering harm;
(iii)that the appellant only had custody and control for approximately five days;
(iv)that while in the appellant’s custody and control the animal had displayed no visible or other signs of being in pain or discomfort or requiring veterinary treatment.
As far as (i) is concerned, the relevance of the age of the animal is not immediately apparent, other than explaining or justifying the appellant’s evidence to the effect that he had no interest in bonding with the animal and therefore was not motivated to have any physical engagement with the animal.
As far as (ii)(a)-(d) is concerned, I am satisfied that the Magistrate took these matters into account to the extent they were supported by the evidence. In any event, taken individually or in combination they do not provide any particular support to the defence case. The central question before the Magistrate was whether or not it was to be inferred beyond reasonable doubt that the appellant, during the period he was in possession of the dog, became aware that DJ was suffering harm.
As far as (iii) is concerned, I am satisfied that the Magistrate was aware of and paid regard to the fact that the appellant had custody and control of the animal for only approximately five days.
The proposition in (iv) begs the ultimate question to be determined. The question is whether or not DJ displayed sufficient visible or audible signs of being in pain or discomfort such that the appellant did become aware of the issue. The Magistrate concluded that the appellant must have realised that the dog was suffering. The reasons for this conclusion have been set out earlier.[14]
[14] Reasons for Judgment at [19] quoted above.
The Magistrate rejected the defendant’s evidence as being untruthful. His Honour had the usual advantages of a trial judge when assessing the reliability and credibility of the witnesses he heard and observed. Of course, the mere rejection of the appellant’s evidence is not, of itself, sufficient to permit a finding of guilt. The prosecution still bears the onus of proving beyond reasonable doubt each element of the charge. In this respect, the prosecution relied, inter alia, on the evidence of Ms Raschella and Mr Spanner and the concessions made by the appellant as to his handling of the dog at the time he collected the dog and took it home.
If it were to have been a reasonable possibility that the appellant engaged with DJ only to the limited extent he had described, the prosecution would have failed to prove beyond reasonable doubt that the appellant was aware of the ear condition and harm being suffered. This would follow from the evidence of Mr Spanner and was recognised as so by the Magistrate.
The Magistrate rejected the appellant’s evidence to this effect and found him to be “unreliable and untruthful, both generally and in the specific topics” that his Honour canvassed in the judgment. His Honour made a positive finding that the appellant did realise DJ had been suffering and in so doing relied on the following matters.
(i)The appellant was very experienced with dogs generally.
(ii)The appellant had carried DJ from the Iranian man’s house to his vehicle and from his vehicle to his own premises.
(iii)The circumstances in which the sale transaction was effected evoked suspicion; they “[supported] the inference that he knew there was something wrong with [DJ]”.
(iv)The appellant must have made an initial assessment of DJ’s condition in order to determine prospects for sale, including the price he could ask.
(v)The appellant is a professional canine seller with a reputation and future livelihood to maintain.
(vi)The appellant had care of DJ for at least five days.
As far as (iv) above is concerned the language of the Magistrate, that the appellant must have made an initial assessment, is question begging. The better form of the inference, and one that is available on the evidence as a whole, is that the natural and ordinary expectation, given the circumstances and the nature of the appellant’s business (including the characteristics in (v) above) is that this appellant would have made such an initial assessment.
The matters in (i) to (vi) above find support in the evidence. In addition, it is intrinsically unlikely that at no time did the appellant touch the dogs head and notwithstanding the appellant’s reasons for not wishing to bond. When he first picked DJ up to take him away from the Iranian man or when he took DJ from the car and returned him to his premises, it is only natural that some attempt at patting on or near the head would occur if only to calm DJ and gain his trust. Such an intrinsic likelihood may have been one of the reasons why the Magistrate found the appellant to be untruthful in stating that at no time did he touch DJ during the five days.
Furthermore, the evidence of Ms Raschella was to the effect that DJ persistently scratched at his ear, including during the day. It stretches credulity unacceptably that, over the five day period, the appellant did not observe any such behaviour. Such behaviour, if observed, most likely would be investigated by an experienced canine seller.
It was open to the Magistrate on the evidence before him to draw the conclusion that the appellant must have been aware that the dog was in pain. The Magistrate was entitled to reject the appellant’s evidence as to his lack of handling of DJ and to find him untruthful in this respect. His Honour had the usual advantages in this respect that are not available to the Court on appeal.[15] I have reviewed all of the evidence and see no reason to disturb the Magistrate’s finding.
[15] Fox v Percy [2003] HCA 22 at [25]-[29]; (2003) 214 CLR 118 at 126-8.
The Magistrate also found beyond reasonable doubt that, once aware of the ear problem, it would have been reasonable for the appellant to have mitigated the harm of which he must have been aware. The obvious “reasonable step” was that which Ms Raschella took, a visit to the local vet. On my reading and assessment of the evidence, I agree with this conclusion.
The appellant also complains that the Magistrate did not alert him, as a litigant representing himself, of the potential defence available under section 13(5) of the AWA and, in any event, erred in not finding that that defence applied. In support of the contention that the defence under section 13(5) should have been found to apply to exonerate the appellant, he relies upon the same matters (i) to (iv) set out earlier.
Section 13(5) of the AWA is in somewhat obscure terms.
It is a defence to a charge of an offence against subsection (2) if the defendant proves that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.
The offence provided for by section 13(2) is in simple terms: “a person who ill treats an animal is guilty of an offence”. Section 13(3) provides for various factual circumstances which, if satisfied, will make out this offence. There are a number of the factual circumstances specified in section 13(3) with respect to which the defence in section 13(5) might potentially operate. However, the gravamen of the appellant’s offence, as particularised and as prosecuted, is that he was aware that the dog was suffering harm and failed to take reasonable steps to mitigate that harm. Once these two findings were made, it is difficult to see how the defence in section 13(5) can have any role to play. In the circumstances of this case, once the particulars of the offence alleged were to be proved, it was not open to argue that it did not result from any failure on the part of the appellant to take reasonable care to avoid the commission of the offence.
The appellant’s case was always to the effect that he did not know that DJ was suffering harm and, therefore, it could not be said that he had failed to take reasonable steps to mitigate harm of which he was unaware. This was rejected. In these circumstances, the potential defence under section 13(5) had no independent role to play but rather was subsumed within the prosecution obligation to prove the offence itself. Had, for example, the appellant been aware of the issue but his physical circumstances were such that he had no capacity to obtain veterinary assistance, different considerations might have applied.
There was no unfairness and no miscarriage of justice occasioned by the failure of the Magistrate to draw section 13(5) to the attention of the appellant.
Whilst not particularised in the grounds of appeal, the appellant also complains in his written outline of argument that the Magistrate failed to advise the appellant, as a self-represented litigant, “of his rights under the Criminal Law (Legal Representation) Act 2001”. At the outset of the hearing, the Magistrate offered the appellant an opportunity to obtain legal advice but this was declined. There is no evidence on appeal, by way of an affidavit by the appellant or otherwise, to support any contention that the appellant was not aware of his options in this respect, including the obtaining of private paying legal representation or applying for legal aid.
Rather, counsel at the appeal based his argument on section 13B(3)(b) of the Evidence Act 1929 and submitted that the appellant enjoyed (but had been deprived of) a legal entitlement to be informed that he may be entitled to legal assistance pursuant to the Criminal Law (Legal Representation) Act 2001 for the purpose of cross-examining the prosecution witnesses. A careful reading of section 13B would have revealed that it applies only to proceedings where an alleged victim of an offence to which section 13B applies is to be cross-examined. The offence under section 13(2) of the AWA is not an offence to which section 13B of the Evidence Act 1929 applies.[16] The reliance on section 13B is misconceived.
[16] See section 13B(5). Nor, for that matter, was DJ called to give evidence or presented for cross-examination.

None of the appellant’s grounds of appeal against conviction has been made and that appeal is dismissed.
The appeal against sentence
The Magistrate, when sentencing, exercised the powers available pursuant to section 32A of the AWA when making the orders in (iii) and (iv) of paragraph [1] above.[17] Orders in the form of (iii) and (iv) were expressly sought by the prosecution. Section 32A provides as follows.
[17] See RSPCA v Taylor, Remarks on Penalty, 4 January 2016, MCCHB-15-2608.
32A—Court orders on finding of guilt etc
(1)A court may, on finding a person guilty of an offence against this Act or on declaring a person charged with an offence against this Act liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935, make 1 or more of the following orders:
(aa)   an order requiring the person to care for any animal owned by the person (whether or not the subject of the offence) in accordance with the conditions of the order (which may include a condition that the care of any such animal be supervised or monitored by an inspector), either until further order, or for the period specified in the order;
(a)     an order directing the person to surrender an animal that is owned by the person and is the subject of the offence to an inspector;
(b)     an order directing the person to surrender any other specified animal owned by the person to an inspector;
(c)     an order directing that any animal owned by the person that has been surrendered or seized under this Act be forfeited to the Crown;
(d)     an order forbidding the person to acquire, or have custody of, any other animal or any other animal of a specified class, either until further order, or for the period specified in the order;
(e)     an order forfeiting to the Crown an object that is the property of the person and is the subject of the offence or used by the person in the commission of the offence.
(2)A person in relation to whom an order under subsection (1) is in force must comply with the order.
Maximum penalty: $5 000.
(3)The Minister may sell, destroy or otherwise dispose of an animal or object that has been forfeited to the Crown.
The only ground in the Notice of Appeal against sentence is in these terms.
(d)If it was correctly decided that the offence had been committed, the learned Magistrate erred in making the orders pursuant to section 32A of the Act in that:
(i)    The evidence did not support a conclusion that the appellant had engaged in persistent ill treatment of animals which may have indicated that he should not be trusted with the care of animals.
(ii)     The learned Magistrate failed to take into effect the potential for such an order to detrimentally affect he appellant’s capacity to earn a livelihood.
In his outline of argument and oral submissions the appellant placed emphasis on the “destructive” effect of the two orders complained of on the appellant’s business and financial circumstances. It was also contended that the Magistrate placed “too great a weight” on the appellant’s prior criminal record, the duration and seriousness of the present offending and the appellant’s admissions.
An appeal against a sentence in the Magistrate’s Court, like that from a single Judge to the Court of Criminal Appeal, is governed by the well recognised principles summarised in House v The King.[18] It is sufficient for the present to refer to the remarks of Kourakis J (as his Honour then was) in R v Horstmann.[19]
On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King[20]: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy).[21] I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere.
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.
[18] [1936] HCA 40; (1936) 55 CLR 499 at 504-5.
[19] [2010] SASC 103 at [36]-[38].
[20] (1936) 55 CLR 499 at 504-5.
[21] It needs to be emphasised that a failure to give adequate weight to a relevant matter is not in itself an appellable error; only a failure to have regard to it at all is an error which justifies interference with the discretion. On an appeal against the exercise of the sentencing discretion, a failure to give adequate weight to a matter is only of any significance if it has resulted in an outcome error.
The matters to which the Magistrate had regard included the following.
(i)The nature of the offence, the maximum penalty for the offence (two years imprisonment or a fine of $20,000) and the discretionary orders available under section 32A of the AWA.
(ii)The appellant’s age (60) and poor financial position.
(iii)The “dramatic” and “severe” effect that the orders, as sought, would have on the appellant “not only financially, but also in terms of his sense of identity and the way he spends a significant portion of his life”.
(v)The fact that previous offending, punishment and an awareness that he might be being monitored by the RSPCA does not appear to have deterred the appellant from further offending.
(vi)The appellant’s apparent lack of insight and remorse.
I need to say something about the appellant’s prior offending; which, clearly, was influential in the exercise of the Magistrate’s sentencing discretion. In 1996, the appellant was found guilty, after a trial, of: one count of ill-treating a number of kittens by failing to provide them with adequate food; one count of ill-treating a number of animals, including puppies, by failing to take reasonable steps to alleviate pain and suffering; and one count of neglect to the same animals in the second count, so as to cause pain and suffering. The appellant was fined and forbidden from acquiring or having custody of any animals for 12 months. An appeal against conviction and sentence was unsuccessful. Later that same year, the appellant pleaded guilty to six breaches of a court order to surrender animals and fined $700.
On 6 May 2014, the appellant pleaded guilty to one count of (basic) ill-treatment of a dog. The offence also related to an untreated ear infection in an adult dog. The appellant was fined $100 and ordered to undergo supervision by the RSPCA for 12 months. It was only two months into this period of supervision that the appellant committed the offence now under consideration.
The appellant submitted that the orders as sought by the prosecution would be extremely damaging to his business, were unwarranted and should be seen as reflecting the RSPCA’s intention to close down his backyard, cash in hand, business. The appellant also drew attention to the fact that the 1996 offending was now 20 years old, that the 2014 offences involved an adult dog not puppies, that his business involved the latter and that there had been no offending involving puppies since 1996. The appellant also submitted that all of his prior offending was relatively minor in nature judging by the penalties ordered.
The appellant has not pointed to any irrelevant considerations relied on by the Magistrate. That the RSPCA wanted to close down his unregulated business, if true, is a consideration irrelevant to sentencing for the offence committed. However, there is nothing in the Remarks on Penalty to suggest that this motivated the Magistrate in any way when passing sentence. The appellant has not pointed to any relevant consideration not taken into account by the Magistrate. To the contrary, the various mitigatory considerations raised on appeal were all expressly considered by the Magistrate. His Honour concluded in these terms.
Exercising my discretion, weighing up all matters, despite the financial cost and personal impact on the [appellant], I make [the orders under appeal].
It is not sufficient for the appellant to complain that the Magistrate placed too much weight on particular relevant considerations or too little weight on particular relevant considerations, at least insofar as a process error were to be alleged.[22] The appellant’s complaint here is really one to the effect that the Magistrate’s sentence was manifestly excessive; an outcome error. This calls for a consideration of whether the sentence was “unreasonable or plainly unjust”.[23] I am not satisfied that it was. The orders made by the Magistrate were well within the discretion available to his Honour, bearing in mind the nature and circumstances of the offending, the appellant’s criminal antecedents and his personal circumstances. This was a case where both personal and general deterrence were significant considerations.
[22] R v Horstmann [2010] SASC 103 at [36]-[38], Police v Chilton [2014] SASCFC 76 at [17]-[19]; (2014) 120 SASR 32 at 38, R v Lutze [2014] SASCFC 134 at [45]-[47]; (2014) 121 SASR 144 at 153-154.
[23] Markarian v The Queen [2005] HCA 25 at [25]; (2005) 228 CLR 357 at 370-371.
The appeal against sentence is also dismissed.