TT-Line Company Pty Ltd v Burrows
[2023] TASFC 4
•3 July 2023
[2023] TASFC 4
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | TT-Line Company Pty Ltd v Burrows [2023] TASFC 4 |
| PARTIES: | TT-LINE COMPANY PTY LTD (ACN 061 996 174) |
| v | |
| BURROWS, Rae (DPIPWE) | |
| FILE NO: | FCA 3138/2022 |
| DELIVERED ON: | 3 July 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 17 April 2023 |
| JUDGMENT OF: | Estcourt J, Martin AJ, Porter AJ |
| CATCHWORDS: |
Animals – Prevention of cruelty to animals – Offences – Offence to use a method of management of animals reasonably likely to result in unreasonable and unjustifiable pain or suffering – Charge relating to transport of horses contained in a trailer within a ship's hold –Allegations that the method of management included failures to take certain measures – Where legislation imposed general duty on persons with care and control of animals to take all reasonable measures to ensure their welfare – To the extent a method of management includes omissions, the omitted measures must be reasonable ones to have been taken in the circumstances.
Animal Welfare Act 1993 (Tas), ss 6, 7.
TT-Line v Burrows [2021] TASFC 3, 33 Tas R 163, Mitchell v Marshall [2014] TASSC 43, R v Iannelli
[2003] NSWCCA 1, 56 NSWLR 247, considered.
DPP (Cth) v Poniatowska [2011] HCA 43, 244 CLR 408, applied.
Aust Dig Animals [43]
Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – General matters – Procedural fairness and natural justice – Magistrate found charge made out on a basis not particularised in the complaint – Magistrate failed to raise the issue as potential basis for liability and to hear and determine any application to amend complaint – Procedural unfairness made out.
Aust Dig Magistrates [1122]
Criminal Law – Criminal liability and capacity – Defence matters – Ignorance and mistake of fact – Availability of defence of honest and reasonable mistake – Particular cases – Evidential burden on a corporate defendant to raise the ground of exculpation – Whether mistaken belief on the part of a corporation sufficiently raised – Whether finding that defence negatived reasonably open of the whole of the evidence.
Animal Welfare Act 1993(Tas), s 3A(3)(a).
Brambles Holdings Ltd v Carey (1976) 15 SASR 270, GJ Coles & Co Ltd v Goldsworthy [1985] WAR
183, considered.
Aust Dig Criminal Law [2065]
Criminal Law – Criminal liability and capacity – Defence matters – Ignorance and mistake of fact –
Availability of defence of honest and reasonable mistake – Generally – Mistaken belief in a state of affairs which if true would make an accused's actions "innocent" – Where applicant faced primary charge and sought to raise mistake of fact – Where applicant had pleaded guilty to related regulatory offences but irrelevant to strict consideration of primary charge – Observations on the meaning of "innocent".
CTM v The Queen [2008] HCA 25, 236 CLR 440, Bell v Tasmania [2021] HCA 42, 96 ALJR 22, considered.
Aust Dig Criminal Law [2064]
REPRESENTATION:
Counsel:
Applicant: D Neal SC and K Grinberg Respondent: M Wilson SC
Solicitors:
Applicant: HFW Australia Respondent: Director of Public Prosecutions
| Judgment Number: | [2023] TASFC 4 |
| Number of paragraphs: | 288 |
Serial No 4/2023
File No FCA 3138/2022
TT-LINE COMPANY PTY LTD (ACN 061 996 174) v RAE BURROWS (DPIPWE)
| REASONS FOR JUDGMENT | FULL COURT |
| ESTCOURT J |
MARTIN AJ (Dissenting)
PORTER AJ
3 July 2023
Orders of the Court:
1 Motion allowed.
2 Finding of guilt made on 22 October 2022 set aside.
3 Matter remitted for re-hearing by a different magistrate.
Serial No 4/2023
File No FCA 3138/2022
TT-LINE COMPANY PTY LTD (ACN 061 996 174) v RAE BURROWS (DPIPWE)
| REASONS FOR JUDGMENT | FULL COURT |
| ESTCOURT J |
3 July 2023
4 Between the hours of about 7.30pm on 28 January 2018 and 4.00am on 29 January 2018, 16 out of 18 horses loaded inside a truck in the hold of the Spirit of Tasmania I, died of respiratory failure caused by high environmental temperatures during transit which were likely to have increased the respiratory demand and effort of the horses immediately prior to their death. The horses were alive when they were loaded onto the ship and accordingly it is clear that they died whilst being transported across Bass Strait.
5 As a result of the deaths, the applicant, TT-Line Company Pty Ltd, was charged and was later convicted by a magistrate of the offence of using a method of management that was reasonably likely to result in unreasonable and unjustifiable pain and suffering to animals contrary to s 7 of the Animal Welfare Act 1993 (the Act).
6 The applicant lodged a notice to review that conviction pursuant to s 107 of the Justices Act 1959. Under the provisions of r 692 of the Supreme Court Rules 2000, the notice to review was referred to this Court for determination.
7 The applicant was also charged and convicted by the magistrate of 28 other counts which alleged that the applicant was a person transporting a horse across Bass Strait and that it failed to ensure that the horse was individually stalled contrary to r 34(6) of the Animal Welfare (Land Transport of Livestock) Regulations 2013 (the Regulations).
8 No review of those convictions was sought.
9 The first ground of review before the Court is that the magistrate erred in law in determining the elements of an offence under s 7 of the Act by finding that it was not an element, where the alleged method of management included an omission to take a measure, that the measure was a reasonable measure.
10 Section 6 of the Act provides:
"6 Duty of care to animals A person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of the animal."
11 Section 7 of the Act provides:
"7 Management of animals A person who has the care or charge of an animal or group of animals must not use a method of management of the animal or group which is reasonably likely to result in unreasonable and unjustifiable pain or suffering to the animal or an animal in the group."
12 Under the Act, the owner of an animal, a person who has control, possession or custody of the animal, and the operator or manager of premises where an animal is held for commercial purposes, each have the "care or charge" of the animal, and premises include a vessel.
2 No 4/2023
13 The interpretation of ss 6, 7, 8 and 9 of the Act was considered by Blow CJ in Mitchell v Marshall [2014] TASSC 43, 27 Tas R 1. The question before his Honour in that case was whether s 7 required proof of criminal negligence. He concluded that it did not, saying at [27]:
"It should be noted that s7, unlike ss 8(1) and 9, does not prohibit any sort of omission. It only prohibits the use of a method of management that is reasonably likely to have certain results. There is therefore no reason why cases about criminal negligence should have any relevance to that section. By contrast, the offences created by ss 8(1) and 9 can be constituted either by the doing of acts or by omissions to do duties. It must be remembered that s 6 creates a duty whereby 'A person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of the animal.' That section does not create an offence. It simply imposes a duty whose breach can be the subject of a prosecution under s 8(1) or s 9, depending on the consequences of the breach."
14 However, in TT Line Company Pty Ltd v Burrows [2021] TASFC 3 at [54]-[55] Martin AJ, with whom Porter AJ agreed, said of Mitchell v Marshall:
"54 In observing that s 7 does not prohibit any sort of omission, Blow CJ was simply drawing a comparison between s 7 and the express prohibitions contained in ss 8(1) and 9 which included omissions to do a duty. His Honour made a general observation in the context of the issues before the court concerning the mental element of the offences. His Honour was not asked to determine whether an omission to act could comprise a method of management or be an aspect of such method. Nor was his Honour endeavouring to analyse 'method of management' in any respect. 55 The decision of Blow CJ is not an authority for the proposition that an omission to perform an act cannot be regarded as an aspect of a method management for the purposes of s 7…"
15 And at [93], Marshall AJ, with whom Porter AJ also agreed, said:
"… The argument in support of the proposed ground of appeal seeks to argue that in Mitchell v Marshall [2014] TASSC 43, 27 Tas R 1, Blow CJ considered that s 7 of the Act did not comprehend any omission to act, but only punished overt acts. In my view such an approach is inconsistent with the concept of a method of management which may include positive acts which may be alleged to be harmful to animals, as well as failure to take certain actions which result in harmful consequences to animals, and be part of one method of management. In any case I agree with the submissions of counsel for the respondent that Blow CJ's judgment in Mitchell v Marshall does not exclude the possibility of an omission being part of a method of management. The question in that case concerned whether there was a specific mental element attached to overt acts. The case does not stand for the proposition that omissions cannot form part of a method of management and, if it did, with respect, it would have been wrongly decided."
16 In purporting to follow Blow CJ in Mitchell v Marshall, the magistrate said in her reasons for
decision at [81]-[83]:
"81
In line with, and following His Honour's reasoning, I am satisfied the Defendant does not need to intend, know or foresee the likely result of the chosen method of management. The onus is on the Prosecution to prove that the acts were voluntary and intentional, and there is no need to prove any other mental element. I am satisfied that s 7 requires the Prosecution to prove a method of management existed, and that by act or omission, the Defendant exposed animals or an animal in the group to unreasonable and unjustifiable pain and suffering.
82
The Defendant must not use such a method of management, and by implication, this provision is mandatory. Consistently with Blow CJ's
3 No 4/2023
comments in Mitchell at [30], it does not import a consideration of whether the measures adopted in the method of management were reasonable or conversely unreasonable.
83 The unreasonableness in s 7 attaches to:
1) The degree of likelihood the prohibited result will occur stemming from the method of management employed-it has to be reasonably likely; and
2) The degree of pain and suffering to the animal and animals in the group." (Emphasis added.)
17 With respect, I disagree.
18 I respectfully adopt the observations of Martin and Marshall AJJ in TT Line v Burrows set out above and having done so I see no reason why the words "all reasonable measures" set out in s 6 of the Act ought not to be taken, in the legislative scheme of the Act, as stating the extent of the duty required by s 7 in the case of an omission or omissions forming part of a method of management. Section 6 imposes the duty which the law has long required before criminal liability will lie in the case of an omission to act. If that is not so in relation to s 7, then an accused individual or company could be criminally convicted and fined or imprisoned for failing to take a wholly unreasonable or even absurd measure. (I should add that I am conscious that reliance by the applicant on the consignor's declaration as to the adequacy of the ventilation inside the truck was not an omission but an act. However such reliance, without more, embraces, by so acting, any consequent omission to take a particular measure.)
19 It follows that I accept the submission of the applicant that in reaching the findings she did on this issue, the magistrate erred in law.
20 In reaching the conclusion that the charge against the applicant was proved, her Honour ought to have considered whether the applicant, in relying in the manner in which it did, and without more, on the consignor's written declaration as to the adequacy of the ventilation of the truck on which the horses were loaded, had fulfilled its duty to take "all reasonable measures", or whether that duty included an obligation on the applicant to itself ensure that the truck's ventilation was suitable for the horses being transported in the circumstances they were, and to itself ensure that the truck was fitted or designed in a way that it had effective and appropriate airflow for the horses. It was substantially those failures that her Honour relied upon at [141] of her reasons to find the charge against the applicant had been made out. I say substantially, because those omissions flowed, in effect, from the act of placing sole reliance on the consignor's declaration and her Honour found that the act and the omissions, either individually or in combination, resulted in unreasonable suffering. Her Honour said:
"141 I find that TT Line's method of management so far as it consisted of:
(a) relying on the consignor's declaration as to the adequacy of the ventilation; (b) failing to ensure the ventilation of TA27PF [the truck] was suitable for the horses being transported, and fitted or designed in a way that had effective and appropriate airflow for the horses being transported; (c) failing to inspect the transport and trailer unit prior to the voyage to ensure they were individually stalled, either individually or in combination was reasonably likely to result in unreasonable and unjustifiable pain or suffering to 16 horses, which travelled across Bass Strait on the Spirit of Tasmania 1 on 28 January 2018."
4 No 4/2023
21 In my view, in failing to consider what measures might have been taken by the applicant in order to prevent the pain and suffering to the horses and then considering whether such measures were reasonable measures in all of the circumstances, her Honour erred in law in her application of ss 6 and 7 of the Act and the applicant's first ground of review succeeds.
22 The applicant's second ground of review is that the magistrate erred in law in failing to afford procedural fairness when she found the charge against the applicant proven on a ground that was not particularised in the complaint, namely, the applicant's reliance on the consignor's declaration as to the adequacy of the ventilation for the horses in the truck.
23 The magistrate observed at [68] of her reasons:
"68 Ultimately, very little factually is in dispute in these proceedings. The question is whether the mismanagement charge under s 7 of the Animal Welfare Act is proven. It was the Defendant's clear position that it accepts that the ventilation of TA27PF was inadequate, that TT Line is not guilty of the charge because it was reasonable of it, as a non-expert, to accept the declaration of the consignor truck driver that the ventilation characteristics of the truck were adequate. It is my view that it would have been more accurate for the Prosecution to have alleged that TT Line's reliance on the consignor's declaration that the consignment complied with all regulatory ventilation and all other requirements was part of the method of management of TT Line. However this was not specifically referred to by either Prosecution or Defence and I refer if necessary, to s 31 of the Justices Act 1959 and will make any appropriate amendments to the particulars of the charge."
24 However, whilst her Honour did not amend the particulars of the charge, she found it proven, as set out at [15] above, on particulars that included the applicant's reliance on the consignor's declaration.
25 In its written submissions, the applicant submits as follows:
"Had it been a particular of the charge, the onus would have been on the prosecution to prove beyond reasonable doubt that reliance on the consignment note, either individually or in combination, was reasonably likely to result in unreasonable and unjustifiable pain and suffering to the horses in the horse truck. The prosecution would have presumably led evidence to that effect and the defence would have had the opportunity to test that evidence, either through cross-examination or through its own evidence. This would have increased the focus on and exploration of this issue as a particular to the charge. The defence could have called additional expert evidence in relation to the level of expertise and resources required to verify the declaration by assessing the ventilation capability of horse trucks, noting that the prosecution called an expert in computational fluid dynamics in order to prove its case and the evidence of the Regulator that it did not expect the TT-Line to have that expertise (see below). Further, the Applicant could have called evidence about industry standards and practice regarding reliance on consignment and passenger declarations."
26 Had I not reached the view that I have in respect of the first of the applicant's grounds of review, I would have held that the failure to hear and determine an application to amend the complaint amounted to procedural unfairness. As Martin AJ said in Smith-Towns v Tasmania [2019] TASCCA 22 at [86]-[87], (Porter AJ agreeing) :
"86
As a matter of principle and fairness, an accused is entitled to be informed 'of the particular act, matter or thing alleged as the foundation of the charge' (per Dixon J in Johnson v Miller). The starting point in this process is the indictment and, specifically, the necessary information is provided by the allegations set out in the particulars section of the indictment.
5 No 4/2023
87 Speaking generally, the Crown is bound by the allegations set out in the indictment. If the evidence departs from those allegations, and particularly where the allegations are as specific as those provided in the indictment under consideration, if the Crown wishes to press for a conviction on a basis not encompassed by those allegations, it is incumbent upon the Crown to seek an amendment to those allegations. Similarly, if a trial judge considers that the evidence leaves open a conviction on a basis different from the allegations stated in the indictment, the trial judge should raise the question of amendment in order to provide the parties with a reasonable opportunity to make submissions as to whether an amendment should be made." (Emphasis added.)
27 However, given that, in my opinion, her Honour failed to correctly construe and apply ss 6 and 7, of the Act, her failure to advise the applicant of her intention to include its reliance on the consignor's declaration, without more, as part of its method of management, was at once a procedural irregularity and an irrelevance.
28 In my view, there is no need to further consider the second ground of review, as assuming I am correct about the validity of the first ground, the appeal must succeed and there will have been no operative denial of natural justice.
29 The applicant's third ground of review is that magistrate erred in law in finding that the defence of honest and reasonable mistake was not made out.
30 The applicant's case was that it relied on the declaration signed by the consignor which makes a number of representations, including showing that he was aware of and understood the animal welfare provisions contained in the Marine Orders Part 43 (Cth) and the applicant's conditions of Carriage of Livestock Policy and believed that the animals to be shipped had been selected and transported according to those requirements. The conditions of carriage for horses required that vehicles used for the transport of horses were to provide adequate airflow through ventilation; that vehicles which have inadequate airflow through ventilation capability when stationary are not be used for sea freight; and that horse trucks are to have an opening in both front and rear or both sides of not less than 1.5 metres horizontally and 0.3 metres vertically. The applicant says that these representations proved to be wrong and that in relying upon them it made an honest and reasonable mistake.
31 The applicant submitted to the magistrate that the mistake was honest and reasonable because the consignor, who was the driver of the truck and the owner of some of the horses, was highly experienced in caring for and transporting horses and had used the horse truck for many years, including nine previous uneventful trips on the Spirit of Tasmania during the summer months. He was mistaken about the ventilation capacity of the truck and in this situation, it was submitted it was unreasonable to expect the applicant, a shipping company, to have known any better.
32 The applicant asserts a number of errors on the part of the magistrate. They are that she erred in finding that the applicant had a non-delegable duty; that she failed to apply the criminal burden of proof to the requirement that the prosecution exclude the defence of honest and reasonable mistake of fact and that it in concluding that the applicant's mistake was unreasonable she failed to take into account the "highly material consideration" of the consignor – the driver of the truck – being the "primary duty holder" under the 15(1)(b) of the Regulations.
33 Of these three asserted errors, I am of the view that the second of them subsumes the other two, or at least renders consideration of them academic. Had the magistrate approached the question of the onus of proof in an orthodox fashion, the question of duty and in particular its delegability, may not have been to the forefront of her reasoning. Given that she did not, it is difficult, if not impossible, to unravel her Honour's determinative reasoning on these issues.
6 No 4/2023
34 This is particularly so given that her overarching error in construing ss 6 and 7 of the Act as to the fact of the relevant duty, and its content, namely, "all reasonable measures", was the foundation on which all of her subsequent reasoning rested. And, as was submitted on behalf of the applicant, "the extent of the [properly identified] duty must at least be balanced against the statutory scheme which explicitly places responsibility on the driver of the truck for its ventilation." Whilst I fail to see the relevance of the law as to non-delegable duty, it is clear at least that the applicant claims reliance upon the consignor in performing its own legal duty.
35 Pearce J summarised the principle of honest and reasonable mistake in Director of Public Prosecutions v J S P [2020] TASCCA 3 at [73] as follows:
"A mistake by an accused as to a matter of fact which, if true, would excuse criminal responsibility for the act, may operate as a ground of exculpation by virtue of s 14 of the Criminal Code, or pursuant to the common law: Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523; CTM v The Queen [2008] HCA 25, 236 CLR 440 at [8]; Bell v Tasmania [2019] TASCCA 19. In this State the 'defence' of honest and reasonable mistake applies to the issue of consent to sexual intercourse in a charge of rape: Snow [1962] TASStRp 26; [1962] Tas SR 271. By extension, it also applies to a belief about consent to the acts which are alleged to constitute indecent assault. Although mistake is commonly referred to as a defence, it is a ground of exculpation. Once an accused person satisfies the evidentiary onus to raise honest and reasonable mistake, the prosecution bears the legal burden of proving beyond reasonable doubt that the accused person did not have an honest and reasonable but mistaken belief: CTM v The Queen [2008] HCA 25, 236 CLR 440; Hindrum v Lane [2014] TASFC 5." (Emphasis added.)
36 In closing submissions before the magistrate, the applicant relied on the principle of honest and reasonable mistake of fact, citing, as already noted the declaration signed by the consignor, and also security camera footage of him preparing to board the Spirit of Tasmania and providing that declaration. That was clearly enough to raise the issue. Her Honour appears to have accepted that.
37 However, in her reasons at [103]-[104], her Honour said, relevantly:
"103 There was nothing in the interview to indicate TT Line made any specific inquiries as to Mr Williams' competence on the question of ventilation, nor that it had any idea who Mr Williams was. … 104 In this case, nothing was done portside or during the voyage to ensure the consignments complied with the conditions of carriage. There is no evidence Mr Williams was asked any questions about his competence as a carrier, or experience carrying horses. There is no evidence that TT Line knew anything about Mr Williams or his capacity to determine the adequacy or otherwise of the ventilation. It made no independent enquiries as to whether the horses were individually stalled in accordance with the requirements of the regulations." (Emphasis added.)
38 In so saying, her Honour appears to place a legal burden of proof on the applicant and failed to address the question she ought to have been considering, namely, the applicant having raised the issue of honest and reasonable mistake, had it discharged its evidential burden and had the prosecution discharged its legal burden of proving beyond reasonable doubt that any mistake was not honest or was not reasonable.
39 I do not accept the respondent's submission that it should be inferred that her Honour approached the issue correctly. In my view a fair reading of her Honour's reasons does not demonstrate that she applied her mind to the question. I note the respondent's submission that the applicant may have had no relevant belief at all and that if it did it may not have been a belief that would render it innocent of the charge, which included failures which were distinct from reliance on
7 No 4/2023
the consignor's declaration. However those issues should have been considered by the magistrate in the context of findings as to what measures constituted "all reasonable measures" for the purposes of s 6 of the Act and then a consideration of the issue of causation and then, assuming it remained necessary after that analysis, an orthodox approach to the exculpatory principle of honest and reasonable mistake.
40 In my view, her Honour's failure to properly address the onus of proof was an error of law. However, the question arises as to the ultimate materiality of that error.
41 Since preparing these reasons I have had the advantage of reading the reasons of both Martin AJ and Porter AJ in draft form. As noted by Porter AJ at [240], the respondent submits that it is open to find that applicant did not discharge its evidentiary burden. However, even if the magistrate wrongly took the view that the applicant's burden was not discharged, that error is of no consequence if it was nonetheless open to the magistrate to conclude that the applicant's mistake was unreasonable. As Porter AJ points out at [240], it would not be an error which vitiates the decision itself: Hindrum v Lane [2014] TASFC 5, 24 Tas R 290 at [65].
42 For the reasons expounded by Porter AJ and summarised by his Honour at [271] and [285], I agree that the absence of an honest and reasonable mistake was the only reasonable inference open to the magistrate on the whole of the circumstances. It follows that, taken as a whole, ground 3 must fail.
43 The applicant's fourth and fifth grounds of review are that the magistrate erred, first, in fact and second, in law, in determining there was a sufficiently significant causal connection between the double stalling of 16 of the horses inside the truck and the risk of the horses overheating.
44 As noted at [15], above, the magistrate found that as well as relying on the consignor's declaration and failing itself to ensure the adequacy of the ventilation and airflow inside the truck, the applicant's failure to inspect the transport and trailer unit prior to the voyage to ensure that the horses were singly stalled, either individually or in combination with the other acts and or omissions, was "reasonably likely to result in unreasonable and unjustifiable pain or suffering" to 16 of the horses.
45 I am satisfied that in so finding, her Honour erred in fact by not acting on the evidence before her and not reaching a conclusion based on her own finding of fact on the issue.
46 At [118]-[120] of her reasons, her Honour said:
"118
Dr Stacey's evidence was essentially that the degree of heat stress suffered by the ponies was a result not only of the ventilation in the trailer but the number of ponies in it. He stated: 'it's a combination of the total heat that's being emitted within the trailer which is the number of ponies, and the restriction presented by the window vents.' (Transcript 435.)
119
When he ran a simulation in relation to reduce the number of ponies with a vent configuration as it existed on 28 January 2018 it was better. He said 'I still wouldn't have wanted to be one of those ponies probably, but I may not have died.' His modelling also indicated that the larger ventilation in the unaffected transport driven by Mr Martin, meant that it was unlikely that the ponies in that transport would have experienced any heat stress. He agreed that his modelling did not include the stalls that were in place on board the trailer and that the barriers made no difference to the outcome.
120
Dr Grull also gave evidence that the stall dividers were an open mesh design rather than solid walls and that they allowed air to flow through the trailer. I am satisfied that whether the 18 horses were individually stalled or double- stalled, would not have made any discernible difference to the conditions inside the affected truck with regard to any risk of heat stress or asphyxiation." (Emphasis added.)
8 No 4/2023
47 The very clear expert evidence was that, had there been additional partitions in the truck to allow single stalling, the result would have been the same. Indeed the transcript of the evidence of the expert for the prosecution, Dr Stacey shows that when asked, "[t]hat means, does it not, that in the event that there were barriers between each horse, the conclusions that you have reached would remain the same?", he answered, "[s]o the barriers make no difference to the outcome".
48 Nor is the question of factual causation advanced in my view by the magistrate's postulation at [122] of her reasons, that:
"122 If TT Line had opened the tailgate and looked into the truck before Mr Williams boarded Spirit of Tasmania 1, it would have seen the horses were double-stalled and to comply with its legal obligations, presumably refused to allow TA27PF to board the ship. Mr Williams' options would have been to offload some horses and take two trips or potentially modify the trailer so that 18 horses could go on the ship individually stalled. The horses may have survived the trip or at least been exposed to less risk if the temperatures had been lower as they had survived previously."
49 The evidence was that the floor space of the truck was sufficient to allow for the single stalling of 18 horses but that single stalling would have made no difference to the outcome.
50 Ground 4 of the amended notice to review succeeds, although in my view it is not a vitiating error, given that the magistrate found that the failure to ensure single stalling of the horses was only one of three particulars which, either individually or in combination, established factual causation.
51 A consideration of ground 5 becomes wholly academic as there cannot be a causal connection in law, whatever the test for causation, between a non-existent fact and an event.
52 At [130], after considering a number of authorities on the test for causation in a case such as the one before her, the magistrate said:
"130 In this case while the wording of the legislation is not identical to the WH&S legislation, s 7 is however a risk-based offence, and in my view the question to be asked is whether the failure to individually stall on 28 January 2018 was reasonably likely to result in unreasonable and unjustifiable pain or suffering to the horse or horses in TA27PF. Whether the words 'causation', 'nexus' or 'connection' are used, I am satisfied that there was sufficient strength in the relationship between the breach and the risk of pain and suffering to the horses required to found criminal liability. This is so because it requires an assessment by reference to the particularised measures and the relevant events that actually occurred on that particular occasion."
53 Whether or not that is correct, there was no relationship in fact between the particularised measure of failing to single stall the horses and their overheating and asphyxiation. There cannot therefore have been a relevant legal relationship. Ground 5 of the notice to review succeeds, although as with grounds 3 and 4, it was not a vitiating error in my view.
54 In the final analysis of the hearing of the alleged offence against s 7 of the Act, the only viable particular of the offence remaining at the end of the prosecution case was, in my view, in substance, the assertion that the applicant failed to carry out its own assessment of the adequacy of the ventilation and airflow in the horse compartment of the truck. For my part at least, I fail to see how that could, on any view, have been a reasonable measure to have been required of the applicant. However ground 1 of the notice to review related only to a point of law and this Court was not asked, if that ground or any other ground or combination of grounds succeeded, to set aside any finding on fact on the basis that it was not reasonably open to the magistrate. It may well be that on my analysis (and that of Porter AJ), a submission that there was no case for the applicant to answer, if made to the magistrate,
9 No 4/2023
ought to have succeeded. That however, is not a basis on which this Court should order an acquittal as
opposed to a rehearing, notwithstanding that might prove to be the outcome of any rehearing.55 Whilst it is strictly speaking unnecessary for me to do so, I should also add that I do not regard the applicant's convictions for transporting horses across Bass Strait and failing to ensure that the horses were individually stalled contrary to r 34(6) of the Regulations as having any impact on the success or failure of ground 3 of the amended notice to review, given my conclusion that there was no factual or legal causal connection between the facts on which those convictions were based and the event the subject offence with which the applicant was charged under s 7 of the Act.
56 In Bell v Tasmania [2019] TASSCA 19, 33 Tas R 95, in considering the question of what was required for an honest and reasonable mistake of fact to render conduct "innocent" Brett J said at [22] :
"22 Subsequent common law cases have not provided support for the proposition that "innocent" extends as far as meaning "free from moral wrong". However, it is also apparent that the cases have not come to grips directly with the meaning of the word "innocent". Does it mean innocent of any legal wrongdoing, innocent of any wrongdoing of a criminal nature, or innocent of the crime charged?"
57 At [31] his Honour said:
"31 Taken to the extreme, if 'innocent' means not guilty of any offence whatsoever, a person would not be excused from criminal responsibility for a serious criminal offence committed under a mistaken belief in a state of affairs that would render him guilty only of a minor regulatory breach. The proposition that an accused person can be held criminally responsible for a serious offence, despite acting under an honest and reasonable belief in a state of affairs which would render him or her innocent of that crime, notwithstanding that another less serious crime may have been committed, is difficult to reconcile with fundamental concepts relevant to criminal justice, such as the presumption of innocence."
58 On an appeal to the High Court in that case in Bell v Tasmania [2021] HCA 42, 96 ALJR 22, the majority of the Court held that an accused person's act, as honestly and reasonably believed by them, must render the person innocent of any offence. However in that case there was no dispute that the appellant's conduct amounted to offences against two separate sections of the Misuse of Drugs Act 2001, only one of which was charged, and the other of which was not capable of being the subject of any mistaken belief. In the present case the applicant's conduct in failing to ensure that the horses were individually stalled amounted to an offence against r 34(6) of the Regulations, but absent any causal connection, either factual or legal, between that conduct and the pain, suffering and death of the horses, the conduct did not amount to an offence against s 7 of the Act. At best that conduct was asserted by the respondent as an ill-conceived particular of such an offence.
59 I would allow the appeal, set aside the finding of guilt and remit the matter for re-hearing by a
different magistrate.
10 No 4/2023
File No FCA 3138/2022
TT-LINE COMPANY PTY LTD (ACN 061 996 174) v RAE BURROWS (DPIPWE)
| REASONS FOR JUDGMENT | FULL COURT |
MARTIN AJ (Dissenting)
3 July 2023
Introduction
60 During the evening of 28 January 2018, 30 horses, in two transport units, were transported from Devonport to Melbourne on the Spirit of Tasmania, a vessel operated by the applicant. During the journey, 16 horses died.
61 The applicant was charged with using a method of management with respect to the transport of the horses that was reasonably likely to result in unreasonable and unjustifiable pain and suffering to the horses, contrary to s 7 of the Animal Welfare Act 1993 (the Act). Other charges were brought alleging failure to comply with relevant regulations of the Animal Welfare (Land Transport of Livestock) Regulations 2013 (the Regulations).
62 The applicant pleaded not guilty to all charges. After a lengthy trial, her Honour Magistrate Topfer found the charges proven. The applicant seeks a review of the finding of guilt of the offence against s 7, and submits that the Court should quash that finding and find the charge not proven.
63 For the reasons that follow, I would allow the appeal.
| Background |
64 The essential facts relating to the transport and deaths of the horses were not in dispute, and the findings of the learned magistrate in this regard are not challenged. The learned magistrate summarised the facts:
"4
At all material times TT Line operated a vessel, Spirit of Tasmania I, which transported passengers, cargo and livestock carried in mobile transport units across Bass Strait between Devonport and Melbourne.
5
On the 28 January 2018 Andrew Williams (Mr Williams) directed the loading of 30 horses onto two transport units at Barnbougle in Northern Tasmania following completion of a polo tournament which had been held in the preceding weeks.
6
A total of 18 horses were loaded onto a semi-trailer/transport unit. The semi- trailer was registered as CE96CK. The trailer was registered as TA27PF ('TA27PF'). The semitrailer/transport unit was registered to Mr Williams.
7
Sixteen of the horses were loaded two per stall. This trailer, which will be referred to as TA27PF, was driven by Mr Williams.
8
A total of 12 horses was loaded onto another transport unit. The transport unit was driven by Thomas Martin.
9 The horses in this second unit were also loaded two per stall. 10
The two units had different configurations. The unit driven by Mr Martin had a continuous vent along the sides, front and back and was relatively easy to see into.
11 No 4/2023
11 TA27PF was a converted refrigeration trailer which had been bought by Mr Justin Couper, modified by him, and subsequently sold to Mr Williams. On each side were six permanently barred vents directly opposite each other at similar height. Its configuration is further described in paras 35-40.
12 Mr Williams and Mr Martin left Barnbougle at approximately 4 pm and drove their respective transports to the port of Devonport to board Spirit of Tasmania I.
13 They arrived at Devonport at approximately 7:08 pm. Both Mr Williams and Mr Martin completed declarations relating to their consignment of horses, which was required by the Defendant. The documents were given to the Defendant.
14 Both vehicles were loaded onto deck 3 of Spirit of Tasmania I. Both Mr Williams and Mr Martin left their transport units and proceeded to the passenger decks.
15 Conditions of carriage by the Defendant did not permit inspection by passengers of animals on the vehicle decks of the Spirit of Tasmania I during a voyage, pursuant to the requirements of Chapter II-I Part B – 4 Regulation 23(3) and 23(6) of the International Convention for the Safety of Life at Sea (SOLAS) which is given effect to in Australia through the general regulation making power under the Navigation Act 2012 (Cth) by Marine Order 12.
16 Spirit of Tasmania I departed Devonport at approximately 7:40 pm and arrived at Melbourne at 5:40 am the following morning, the 29 January 2018.
17 On arrival at Port Melbourne Mr Williams and Mr Martin returned to their respective transport units. They left the ship and the port complex at approximately 5:59 am bound for Yarra Glen, Victoria, where the horses were intended to be rested at a property belonging to Mr Simon Wincer. They did not inspect the horses until they reached Yarra Glen. They arrived at Yarra Glen at approximately 7:15 am.
18 Upon arriving and opening of TA27PF it was discovered that 16 of the 18 horses had died. They had been double stalled.
19 The two surviving horses were single stalled and were closest to the access ramp at the rear of the trailer.
20 The 12 horses in the unit driven by Mr Martin were unaffected.
21 The carcasses of the 16 horses in TA27PF were taken by Mr Williams to Charles Sturt University at Wagga Wagga for post mortem examination.
22 The surviving horses were unloaded into the paddock on the Yarra Glen property.
23 There was no issue with respect to ventilation on deck 3 of the Spirit of Tasmania I and the ventilation fans operated as required under SOLAS.
24 Inspection rounds of the vehicle deck where the horses were located were undertaken five times during the voyage between 19:05 pm and 2:00 am on the 28-29 January 2018.
25 TA27PF had been used to transport horses across Bass Strait between 2014 and 2018 on nine previous occasions.
26 The trips always took place in December or January and there were no reported incidents in relation to any journeys of TA27PF prior to the 28 January 2018.
12 No 4/2023
Death of the horses
27 Three of the deceased horses were examined by the veterinary pathologist, Associate Professor Shane Raidal, together with his colleagues at Charles Sturt University.
28 His preliminary investigations showed all 16 horses had very similar gross findings, so he chose three horses to do a more comprehensive post-mortem. The three necropsy reports were tendered by consent.
29 The uncontroversial findings of Associate Professor Raidal were that the gross and histological findings of the three horses were consistent with sudden death due to peracute respiratory failure. He proceeded on the basis of high environmental temperatures during transit which were likely to have increased respiratory demand and effort immediately prior to death. He put the most likely time of death at a minimum of 12 hours and a maximum of 24 hours prior to post-mortem, which was conducted between 2pm and 4pm on the 29 January 2018.
30 No other cause of death was able to be identified or was consistent with the circumstances.
31 The horses were alive when they were transported onto the ship and accordingly the evidence established that the horses died whilst being transported across Bass Strait.
32 Dr Debra Grull was a veterinary officer with Biosecurity Tasmania, a division of the Department of Natural Resources and Environment Tasmania. She was an experienced vet and I am satisfied also had considerable expertise in relation to horse transportation. She was appointed an inspector within the meaning of s 8 of the Animal Health Act 1995 and an officer within the meaning of s 13 of the Animal Welfare Act 1993. She was assigned to investigate the case.
33 She gave evidence that she agreed with the conclusion that the cause of the horses' death was peracute respiratory failure because:
'Based on the environmental conditions that the horses were in, and ruling out the cause of infectious disease, ruling out presence of a toxin, observing the differences between the affected and unaffected horse transport, it appeared to me that the horses suffocated in transport (page 327 of transcript).'"
65 The magistrate dealt in detail with the measurements and ventilation of the transport units, and a simulation undertaken to assess the ventilation. In a finding not challenged by the applicant, her Honour found that the ventilation of the unit in which the horses died was inadequate.
| 66 | In finding the charge proven, the magistrate expressed her ultimate conclusions: "Conclusion | |
|
13 No 4/2023
141 I find that TT Line's method of management so far as it consisted of:
a) relying on the consignor's declaration as to the adequacy of the ventilation; b) failing to ensure the ventilation of TA27PF was suitable for the horses being transported, and fitted or designed in a way that had effective and appropriate airflow for the horses being transported; c) failing to inspect the transport and trailer unit prior to the voyage to ensure they were individually stalled, either individually or in combination was reasonably likely to result in unreasonable and unjustifiable pain or suffering to 16 horses, which travelled across Bass Strait on the Spirit of Tasmania 1 on 28 January 2018.
142 I make that finding in the context of a warm evening where there was a clearly inadequately ventilated transport unit, stationary for 10 hours on the Spirit of Tasmania 1, where there were too many horses in the unit and 16 horses were exposed to the risk of acute heat stress and asphyxiation and died from peracute respiratory failure.
143 Accordingly I am satisfied beyond reasonable doubt that TT Line is guilty of the S7 mismanagement charge, as amended."
67 In addition to those essential findings, the magistrate found that although the "defence" of honest and reasonable mistake of fact was available in respect of an offence against s 7, the applicant had failed to make out a basis for the application of that principle.
Grounds of appeal
68 The notice of review contained five grounds upon which the applicant relied:
(1) The learned magistrate erred in law in determining the elements of an offence under section 7 of the Animal Welfare Act 1993 (Act) by finding that it was not an element of the offence that where the alleged method of management includes an omission to take a measure, that it was a reasonable measure.
a
Charge 1 against the Applicant alleged that it had committed an offence under section 7 of the Act by using a method of management that involved the omission to take certain measures. This included omitting to ensure the horses were double stalled and omitting to ensure the vehicle being used to transport the horses was suitable for the horses being transported and had effective and appropriate airflow for the horses being transported.
b
Section 6 of the Act states that a person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of the animal.
c
The learned magistrate found that it was not an element of the offence that, where the charge alleges the offence was committed by way of a method of management that involved an omission to take a measure, that the omitted measure was a reasonable measure: [81– 82].
(2) The learned magistrate erred in law in failing to afford the Applicant procedural fairness.
a The learned magistrate found charge 1 proven on a basis that was not
particularised in the charge.14 No 4/2023
b The learned magistrate observed that the prosecution did not particularise in charge 1 that the Applicant's reliance on the consignor's declaration was part of the method of management of the applicant: [68]. c The learned magistrate referred to section 31 of the Justices Act 1959
as permitting the Court to amend the particulars of the charge: [68].d The learned magistrate did not amend the particulars of the charge. e The learned magistrate found the charge proven on particulars that included the Applicant's reliance on the consignor's declaration and, in doing so, found the Applicant guilty of the charge in a way that was not particularised in the charge: [141].
(3) The learned magistrate erred in law in finding that the defence of honest and reasonable mistake was not made out.
a The learned magistrate erred in finding that TT-Line had a non-
delegable duty: [106].b The learned magistrate failed to apply the criminal burden of proof to the requirement that the prosecution exclude the defence of honest and reasonable mistake of fact. c It was not open to the learned magistrate to conclude that the
applicant's mistake was unreasonable.
(4) The learned magistrate erred in fact in determining there was a sufficiently significant causal connection between double stalling and the risk of the horses overheating.
a The evidence before the learned magistrate did not establish, beyond reasonable doubt, that the double stalling of the animals was reasonably likely to result in unreasonable and unjustifiable pain or suffering to the animals.
(5) The learned magistrate erred in law in finding that there was a sufficiently significant causal connection between double stalling and the risk of unreasonable and unjustifiable pain or suffering to the animals.
a
The learned magistrate erred in failing to apply the criminal standard of proof - beyond reasonable doubt- in relation to factual findings regarding the impact that double or single stalling would have had on the likelihood of unreasonable or unjustifiable pain or suffering.
b The learned magistrate erred in determining the legal test of causation
to be applied."
Ground 1
69 In summary, the written submissions of the applicant advanced the following propositions:
•
Section 7 of the Act should be interpreted in light of s 6 which creates a duty owed by a person who has care or charge of an animal to take "all reasonable measures to ensure the welfare of the animal". Where the prosecution alleges a failure to take a measure, the prosecution "is required to establish, as an element of the offence, that the measure is a reasonable measure".
15 No 4/2023
• This approach is in keeping with the duty found in s 6 and with the "accepted legal principle that criminal liability for an omission to act should only apply where there is a legal duty to act". • The particulars provided by the prosecution referred to the s 6 duty as relevant to ensuring that the horses were individually stalled and that the transport unit provided effective and appropriate airflow. However, having particularised the s 6 duty in this way, the prosecution sought to argue that the s 6 duty did not apply to a charge under s 7, and was only relevant to ss 8 and 9. "There is nothing in the Act that limits the applicability of the duty found in s 6 to only ss 8 and 9." • It follows from the decision of the Full Court in TT-Line Company Pty Ltd v Burrows [2021] TASFC 3 that the proposition of Blow CJ in Mitchell v Marshall [2014] TASSC 43 that the s 6 duty did not apply to a s 7 offence should not be followed. • The magistrate erred in law in relying upon the decision of Blow CJ and "failed to see that Blow CJ's decision was premised on a case 'when a defendant was charged on the basis of a positive fact'". • As a result of the error, the magistrate did not consider whether the prosecution had proved that the measures alleged were "reasonable". There was no consideration of why the applicant should have assessed the ventilation of the horse truck, particularly in view of reg 15(1)(b) of the Regulations which "squarely casts the obligation to ensure the adequate ventilation of the truck on the driver of the truck." • There was no consideration of how the applicant "should have assessed the truck's ventilation and whether such a measure was reasonable", particularly in the absence of any Australian standards, guidance in legislation or regulations and research as to the requirements for adequate ventilation. In addition, the truck had previously taken nine uneventful trips during the summer months. • Further, 12 months after the deaths of the horses, the Regulator endorsed the applicant's existing specifications with respect to ventilation and accepted that the applicant did not possess the expertise to assess the ventilation of horse trucks. 70 The respondent submitted that s 6 creates a "general duty", not an offence. The observation was made that ss 8(1) and 9 refer to breaches of duty, but s 7 does not contain reference to a breach of duty.
71 In these circumstances, the respondent argued there is no basis for importing a duty to act in a particular way into the offence created by s 7. "Proof of the offence requires an analysis of what the method of management was and whether it gave rise to the relevant risk to the animal; it does not give rise to broader considerations of duties owed." Further, "An omission to act is simply a particular of the method of management and is not dependent upon proof of a distinct legal duty to act."
72 The respondent also contended that the question of reasonableness "attaches to the consequences of the method of management." The words "unreasonable and unjustifiable" are used only "to describe a degree of pain or suffering" that the prosecution must prove in order to establish an offence against s 7. Those words do not refer to the act or omission comprising the method of management.
73 In these circumstances, the respondent contended that there was no occasion for the magistrate to consider whether the applicant should have assessed the adequacy of the ventilation, or whether such a measure was reasonable or otherwise. "All that was required was an assessment of
16 No 4/2023
whether the method of management that was employed … was one which was reasonably likely to
result in unreasonable and unjustifiable pain and suffering …".74 In her reasons the magistrate correctly identified the point that is now the subject of the applicant's first ground. Her Honour referred to ss 6 and 7, and to the applicant's contention that where the alleged method of management is alleged to have omitted a measure, such measure must be a reasonable measure. After discussing the decisions of Blow CJ in Mitchell v Marshall (above), and the Full Court in TT-Line Company Pty Ltd v Burrows (above), her Honour found:
"[81] In line with, and following His Honour's reasoning, I am satisfied the Defendant does not need to intend, know or foresee the likely result of the chosen method of management. The onus is on the Prosecution to prove that the acts were voluntary and intentional, and there is no need to prove any other mental element. I am satisfied that s 7 requires the Prosecution to prove a method of management existed, and that by act or omission, the Defendant exposed animals or an animal in the group to unreasonable and unjustifiable pain and suffering.
[82] The Defendant must not use such a method management, and by implication, this provision is mandatory. Consistently with Blow CJ's comments in Mitchell at [30], [s 7] does not import a consideration of whether the measures adopted in the method of management were reasonable or conversely unreasonable".
75 As to the concept of "unreasonable", the magistrate found:
"[83] The unreasonableness in s 7 attaches to: 1) the degree of likelihood the prohibited result will occur stemming from the method of management employed – it has to be reasonably likely; and
2) the degree of pain and suffering to the animal and animals in the group."
76 In arriving at her decision, the magistrate rejected a submission by the applicant that she should not follow the decision of Blow CJ in Mitchell v Marshall. In her Honour's view the question before Blow CJ was whether s 7 required proof of criminal negligence, and his Honour "was not asked to consider whether civil negligence, based on the duty of care set out in s 6, applied."
Discussion
77 Section 7 operates in the context of the Act, the purpose of which is described in the long title as "to prevent neglect of, and cruelty to, animals, to ensure the welfare of animals, to repeal the Cruelty To Animals Prevention Act 1925 and for related purposes." At the forefront of the Act is Part 2 headed "Welfare of Animals", which begins with s 6 creating a general duty of care to animals. Section 6 is followed by a number of provisions directed to prohibiting specific treatment of animals, including ss 7, 8 and 9:
"6 Duty of care to animals A person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of the animal.
7 Management of animals
A person who has the care or charge of an animal or group of animals must not use a method of management of the animal or group which is reasonably likely to result in
17 No 4/2023
unreasonable and unjustifiable pain or suffering to the animal or an animal in the
group.
Penalty: In the case of –
(a) a body corporate, a fine not exceeding 1 000 penalty units; or (b) a natural person, a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 6 months, or both. 8 Cruelty to animals
(1) A person must not do any act, or omit to do any duty, which causes or is
likely to cause unreasonable and unjustifiable pain or suffering to an animal.Penalty: In the case of –
(a) a body corporate, a fine not exceeding 500 penalty units; or (b)
a natural person, a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 12 months, or both.
(2) Without limiting the generality of subsection (1), a person is guilty of an
offence under that subsection if the person –
(a) wounds, mutilates, tortures, overrides, overdrives, overworks, abuses, beats, torments or terrifies an animal; or (b) overloads or overcrowds an animal; or (c) drives, conveys, carries or packs an animal in a manner or position or in circumstances that subjects or may subject it to unreasonable and unjustifiable pain or suffering; or (d) works, rides, drives or uses an animal when it is unfit for the purpose; or (e) has possession or custody of an animal that is confined, constrained or otherwise unable to provide for itself and fails to provide the animal with appropriate and sufficient food, drink, shelter or exercise; or (f) abandons an animal of a species usually kept in a state of confinement or for domestic purposes; or (g) has possession or custody of a sick or injured animal and fails to provide veterinary or other appropriate treatment for the animal; or (h) administers to or otherwise uses in respect of an animal an injurious drug or a toxic or noxious substance except for–
(i) medical curative purposes; or
(ii) scientific research purposes; or
(iii) normal management procedures; or
(iv) euthanasia; or
(v) the purposes of controlling a List A disease as defined in the Animal Health Act 1995; or
18 No 4/2023
(vi) the purposes of controlling a pest animal in accordance with the pest register; or
(i) in the course of any sport or public performance or in the training for any sport or public performance, applies or exposes an electronic device to an animal; or
(j)
uses a spur, or other like appliance, with sharpened rowels on an animal; or
(ja) uses a pronged collar, or a similar collar, on an animal; or (k) does any other prescribed act.
…
9 Aggravated cruelty
(1) A person must not do any act, or omit to do any duty, referred to in section 8, if the person knows that, or is reckless as to whether, the act or omission will, or is reasonably likely to, result in –
(a) the death, deformity or serious disablement of an animal; or (b) harm to an animal that endangers the life of the animal; or (c)
an injury to an animal that, either alone or in combination with the health of the animal at the time of the injury, results in a significant and longstanding injury to the animal.
Penalty: In the case of –
(a) a body corporate, a fine not exceeding 1000 penalty units; or (b)
a natural person, a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 60 months, or both.
(2) It is not a defence in proceedings for an offence under this section if an
animal is euthanised before –
(a) the animal dies as a result of an act or omission referred to in subsection (1); or (b) the full extent of the deformity, disablement, harm or injury to the animal as a result of that act or omission is known. (3) If a person is charged with, but not found guilty of, an offence under this section, the person may be convicted of an offence under section 8 if the evidence in the proceedings on the charge under section 9 establishes that the person committed an offence under section 8." (My emphasis.)
78 Section 10 of the Act is concerned with the baiting and shooting of animals, and s 11 is directed to the use of animals for the purpose of training other animals. Rodeos are dealt with in s 11A, and the trapping of animals by leg hold trap, glue board trap or snare is prohibited by s 13 unless the Minister grants an exemption.
79 In Mitchell v Marshall, Blow CJ was concerned with alleged contraventions of ss 7, 8 and 9 of the Act, and whether the magistrate had been correct in determining that the offences were offences of strict liability in respect of which prosecution was not required to prove a particular state of mind (unless the issue of honest and reasonable mistake of fact was raised). In finding that the magistrate was correct, Blow CJ made the following observations:
19 No 4/2023
"27 It should be noted that s 7, unlike ss 8(1) and 9, does not prohibit any sort of omission. It only prohibits the use of a method of management that is reasonably likely to have certain results. There is therefore no reason why cases about criminal negligence should have any relevance to that section. By contrast, the offences created by ss 8(1) and 9 can be constituted either by the doing of acts or by omissions to do duties. It must be remembered that s 6 creates a duty whereby 'A person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of the animal.' That section does not create an offence. It simply imposes a duty whose breach can be the subject of a prosecution under s 8(1) or 9, depending on the consequences of the breach. … 32 The long title to the Animal Welfare Act is, 'An Act to prevent neglect of, and cruelty to, animals, to ensure the welfare of animals, to repeal the Cruelty to Animals Prevention Act 1925 and for related purposes'. 33 In the relevant second reading speech (House of Assembly, 19 May 1993) the then Minister for Primary Industry and Fisheries, Mr Gray, said the following: 'The Animal Welfare Bill has been prepared to replace the Cruelty to Animals Prevention Act which was introduced nearly seventy years ago. Community attitudes have changed significantly in that time to the extent that modern legislation needs not only to provide the means of preventing cruelty but also to ensure that animals are treated with consideration and care.
The motivation to give the replacement of the Cruelty to Animals Prevention Act the highest priority possible arose in 1989, as a direct result of the discovery of 107 diseased and starving dogs in cages near New Norfolk. It was one of the worst cases of animal cruelty in recent years and the old act was totally inadequate to ensure that proper penalties were applied.
...
The bill has been developed after extensive community consultation and with formal representation of community groups via the Animal Welfare Advisory Committee.
...
The bill preserves the basic provisions of the Cruelty to Animals
Prevention Act but adds many new features:A 'duty of care' for the welfare of animals is imposed on animal keepers and is an indicator of the philosophy behind the bill.
A managerial method 'reasonably likely' to result in cruelty, can be brought to court without waiting for the inevitable cruelty to occur.
Cruelty resulting in death or serious disablement of an animal is regarded as 'aggravated cruelty' and attracts heavy penalties.
Powers are provided to authorised persons to take possession of and care for animals which are at risk of serious, ongoing cruelty and a court may disqualify a person convicted of animal cruelty from the right to keep animals.
Throughout this speech I will refer often to community attitudes and standards. As much as possible, the bill avoids provisions which may
20 No 4/2023
be difficult to modify in line with future changes in community norms. The emphasis is on flexible, dynamic legislation which can move with the times. One example of this is the definition of cruelty itself.
Many practices clearly constitute cruelty and the bill makes reference to a wide range of these. However there will always be a degree of subjectivity in assessment of particular incidents and under this act courts will often have the opportunity to rule on the basis of their view of current community attitudes and standards.'
34 The provision referred to by the Minister as imposing a duty of care is now s6 of the Animal Welfare Act, to which I have referred.
35 Each of the provisions in question imposes a prohibition. Section 7 imposes a prohibition on the use of any method of management that is reasonably likely to have certain results. Sections 8(1) and 9 each prohibit both the doing of acts, and omitting to do duties. None of the relevant prohibitions are qualified by adverbs which refer to an offender's state of mind, such as 'knowingly', 'intentionally' or 'wilfully'. The absence of any such adverbs is not conclusive, but tends to weigh against the applicability of the common law presumption that mens rea is an ingredient of every offence.
36 Each of the relevant prohibitions is imposed by the use of the words 'must not'. These provisions were enacted before the introduction of s 10A of the Acts Interpretation Act, which requires the word 'must' in subsequent legislation to be treated as imposing a mandatory requirement. However the use of the words 'must not' in the relevant sections still tends to indicate that each relevant prohibition applies even in the absence of a guilty mind.
37 It should also be noted that the words 'unreasonable and unjustifiable' in ss 7 and 8(1) are used only to describe the degree of pain or suffering that is necessary for an offence to have been committed. They do not refer to the act or omission of an offender or alleged offender. The duty imposed by s6 is a duty 'to take all reasonable measures'. But there is nothing in the legislation to suggest that, when a defendant is charged on the basis of a positive act, the prosecution needs to prove that the act was unreasonable or unjustifiable.
38 If one gives the words of s 7 their ordinary meaning, it would appear that the prosecution needs to prove (1) that the defendant had the care or charge of an animal or group of animals; (2) that the defendant used a method of management of the animal or group; (3) that that method of management was reasonably likely to result in pain or suffering to the animal or an animal in the group; and (4) that that likely pain or suffering was unreasonable or unjustifiable. No doubt the prosecution would need to prove beyond reasonable doubt that the second of those elements – the use of a method of management – was voluntary and intentional. However there is nothing in the wording of the section to suggest that the prosecution would need to prove beyond reasonable doubt that the defendant intended, knew or foresaw the likely result of the use of the chosen method of management.
39 If one similarly analyses s 8(1), it would appear that the prosecution would need to prove (1) that the defendant either did an act or omitted to do a duty; (2) that that act or omission caused or was likely to cause pain or suffering to an animal; and (3) that that pain or suffering was unreasonable and unjustifiable. If the defendant were charged with doing an act, the prosecution would no doubt have to prove beyond reasonable doubt that the act was voluntary and intentional. If the defendant was charged on the basis of an omission, there is nothing in the subsection to suggest that the prosecution would need to prove beyond reasonable doubt that the defendant knew he or she had a duty, or that he or she knew that he or she was omitting to perform that duty. And there is nothing in the subsection to suggest that the prosecution would need to prove beyond reasonable doubt that the defendant
21 No 4/2023
intended, knew or foresaw the results or likely results of his or her act or
omission.40 Similarly, the words of s 9 suggest that, to prove a contravention of that section, a prosecutor would need only to prove (1) that the defendant did an act or omitted to do a duty, and (2) that the act or omission resulted in the death or serious disablement of an animal. Once again, there is nothing in the section to suggest that the prosecutor would need to prove awareness of the duty on the defendant's part, consciousness of omitting to do the duty, intention, knowledge or foresight."
80 As to the observation by Blow CJ that, unlike ss 8 and 9, s 7 "does not prohibit any sort of omission", in TT-Line Company Pty Ltd v Burrows, the Full Court found that his Honour was drawing a comparison between s 7 and the express prohibitions in ss 8 and 9 which included omissions to fulfill a duty. It was a general observation in the context of the issues before the Court, and his Honour was not determining whether an omission to act could comprise a method of management, or be an aspect of such method, for the purposes of s 7.
81 It should also be noted in identifying the elements to be proved on a prosecution under s 7, Blow CJ had not been asked to consider the point now being made by the applicant that if the prosecution was based on an omission in the method of management, it was necessary for the prosecution to prove that the omitted measure was a "reasonable measure". That issue simply did not arise for consideration.
82 Similarly, this issue was not the subject of consideration by the Full Court in TT-Line Pty Ltd v Burrows. The Full Court was concerned with the particulars relied upon by the prosecution and the issue of duplicity. However, the Court considered the operation of s 7 in the context of the statutory scheme. In a judgment with which Porter AJ generally agreed, I said:
"38 Section 7 is to be considered in the context of the statutory scheme. The Act is concerned with ensuring the welfare of animals, and s 6 imposes on a person who has the care or charge of an animal a duty 'to take all reasonable measures to ensure the welfare of the animal'. 39 Section 7 is directed specifically at the manner in which a person, who has the care or charge of an animal or group of animals, manages those animals. Section 7 is concerned with 'a method of management' used by the person in charge of the animals. 40 Section 8(1) contains a prohibition against doing any act, or omitting to do any duty, which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal. Section 8(2) identifies specific acts which will offend against s 8(1). 41 Section 7 prohibits the use of 'a method of management' which is reasonably likely to bring about a particular result, namely, 'unreasonable and unjustifiable pain or suffering' to an animal. However, s 7 does not identify any aspect of the method of management which is prohibited; nor does s 7 identify any form or manner of management, or any aspect of management, relevant to the question to be determined. The method of management used is a question of fact to be determined by the magistrate. Once the facts of the method of management are determined, the magistrate is in a position to address the question whether the method of management was reasonably likely to bring about the prohibited result."
83 Porter AJ emphasised that the conduct in issue was the "use" of a particular method of management which might involve a number of aspects capable of contravening other provisions of the Act or Regulations:
22 No 4/2023
"124 Section 7 of the Animal Welfare Act is concerned with the use of a method of management reasonably likely to bring about a particular result. The proscribed act or conduct is that of using such a method of management. The conduct alleged is the use of a certain method of management on the particular occasion. The incident of use is unambiguously identified by date, voyage, vessel and truck/trailer unit. The controversial particulars set out in the complaint, and the plethora of further particulars, go to the method of management. As Martin AJ has said, a method of management will almost inevitably have different features or aspects, and be likely to encompass a period of time. 125 The appellant submitted that each individual particular would amount to an offence if it was reasonably likely to result in unreasonable and unjustifiable pain or suffering. That submission must be rejected. It may well be that one particularised aspect of the method of management could be the subject of a charge of using a method of management under s 7, but to say that each feature or aspect must necessarily be the subject of a separate charge is to adopt an unrealistic and unnecessarily restrictive construction of the provision. It would impose a high degree of artificiality. The 'use of a method of management' is to be construed as 'one activity': Walsh v Tattersall at 107; Truegrain at [50]. 126 Some aspects of the method of management might fall foul of other provisions of the Act or of regulations but that is of no consequence. The references in the further particulars to relevant regulations are merely descriptive of what is alleged. The exercise could have been easily done by way of setting out the thrust of the particular regulation, without express reference to it."
84 The applicant relied upon the general legal principle that "there can be no criminal liability for an omission unless the alleged conduct constitutes a failure to perform a legal obligation".[1] Such general principle is not in dispute. The critical question is whether the applicant is correct in its submission that the general duty imposed by s 6 is imported into s 7 such that the duty defined in s 6 applies to the method of management under consideration pursuant to s 7. In particular, the applicant urged that when the method of management involves an omission to act, if s 6 is not imported into the operation of s 7, a person might be convicted on the basis of an omission to take an unreasonable measure as part of the method of management.
[1] Poniatowska v DPP (Cth) [2010] SASCFC 19 at [13]; Commonwealth Director of Public Prosecutions v Poniatowska85 In Poniatowska, the Commonwealth legislation under consideration concerned a charge of engaging in conduct and, as a result of that conduct, obtaining an advantage that the defendant knew or believed she was not eligible to receive. The definition of "engaging in conduct" included doing an act or omitting to perform an act. The issue was whether the omission to perform an act could form a physical element of the offence if the person was not under a legal obligation to perform the act.
86 In the High Court, the majority observed that under the law of the Commonwealth, "the omission to perform an act cannot be a physical element of an offence unless the law creating the offence makes it so, expressly or impliedly, in the manner provided by s 4.3 [of the Commonwealth Criminal Code]" [32]. The reasons continued with the observation that the Criminal Code adopted a "more restrictive approach to liability for the omission to act than does the common law".
87 The critical context is the statutory scheme and the wording of the section creating the offence, namely, s 7. As to the immediate context of s 7, s 6 does not create an offence. It establishes a general duty of care on the part of a person who has the care or charge of an animal. Such duty of care has a role to play with respect to offences against ss 8(1) and 9(1). Those sections specifically
23 No 4/2023
provide that a person must not "omit to do any duty" which causes or is likely to cause unreasonable and unjustifiable pain or suffering to an animal. In the context of the Act, plainly the duty imposed by s 6 is encompassed by the specific reference to omitting to do any duty found in ss 8(1) and 9(1).
88 By way of contrast, s 7 is not expressed in terms of breaching a particular duty. Section 7 does not create an offence of omitting to do an act or perform a duty. The point made by Porter AJ is important in this regard; at the heart of s 7 is a prohibition against the "use" of a prohibited method of management. The prohibition is against the use of a method of management which is "reasonably likely to result in unreasonable and unjustifiable pain or suffering" to an animal. Liability is created on the basis of a positive act, namely, the use of a prohibited method of management. It is not to the point that the prohibited method of management might involve an omission to act. The content of the legal duty is found in s 7, not in s 6.
89 Applying these principles to the circumstances under consideration, and s 7 necessarily drawing attention to the method of management, although the prosecution led evidence concerning a number of aspects of the management, at the heart of the case were two features:
1 The applicant allowed the horses to be brought on board, and transported, without checking the adequacy of the ventilation and without failing to ensure that the ventilation was suitable and fitted and designed in a way that provided effective and appropriate airflow for the horses.
2 The applicant allowed the horses to be brought on board, and transported, without inspecting the trailer unit in which the horses were stored to ensure that they were individually stalled.
90 Leaving aside the impugned particular discussed later in these reasons, those two particulars of the method of management were found proven by the magistrate who held that either individually, or in combination, they resulted in the method of management being reasonably likely to bring about the prohibited result. The criminal liability does not attach to the individual omissions by way of an offence to omit to do an act or perform a duty. The prohibited conduct is the use of the method of management reasonably likely to bring about the prohibited result, and the omissions comprised aspects of the method of management which the prosecution alleged caused the method of management to breach s 7.
234 Leaving that to one side for the moment, as I noted earlier this ground was argued on the basis of 'House v King' errors. Quite why the case was put on that particular basis escapes me. In any event, the applicant primarily says the magistrate failed to take into account a number of factual matters, some of which involve unchallenged evidence. Those matters are more fully set out in the judgment of Martin AJ and I need not provide any detail point. Suffice it to say, the applicant asserts failures to take into account some aspects of the evidence and to give "sufficient weight" to particular evidence.
235 In written submissions, the consequence of a finding that the magistrate made "House-type errors" in the reasoning process was not identified. However, during oral argument and on specific questioning from the Bench as to the outcome if the ground were upheld on this basis, senior counsel for the applicant "invited" the Court not to remit the matter, it being clear form the exchange that the Court was being asked to resolve the factual question for itself, set aside the finding of guilt and dismiss the complaint.
56 No 4/2023
Acquittal by this Court?
236 A long line of authority establishes that a motion to review is not in the nature of an appeal by way of rehearing, and the principles set out in Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate on the facts, the question is whether on the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did: see for instance: Richardson v Ship [1970] Tas R 105 at 117, Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 per Crawford CJ (with whom Blow J and I agreed) at [46], Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173 per Blow J at [59] (Crawford CJ and Evans J agreeing) and Wheaton v Wilson [2018] TASFC 1, 28 Tas R 11.
237 Where a motion to review challenges a finding of guilt, it should only be allowed if the court is satisfied that on no reasonable view of the evidence could the magistrate have failed entertain a reasonable doubt as to guilt; that is, the finding was not reasonably open. See Leonard v Newell [1983] Tas R 78 at 81.
238 I will take the applicant's arguments accordingly. That means all of the evidence that relates to all aspects of the issue of honest and reasonable mistake of fact needs to examined, not just whether "the applicant's mistake was unreasonable." Because of the outcome of grounds 4 and 5, the matter needs to be approached, as Martin AJ has done, on the basis that the only issue as to the method of management is that relating to airflow/ventilation.
239 I should make it clear that this Court was not, in respect of any other ground of review, asked to consider an acquittal on the basis the finding of guilt was not reasonably open. There was no suggestion by the applicant that in the event any other ground or combination of grounds succeeded, the Court should determine the fate of the complaint on the whole of the evidence.
240 As I have alluded to, the respondent submits it is open to find that applicant has not discharged its evidential burden. Whether or not the issue was sufficiently raised on the evidence is a matter of law. The question can be determined by this Court: CTM v The Queen [2008] HCA 25, 236 CLR 440 at [36]-[39]. If it was not raised, in strict terms there is no need to go further. If it was, the ultimate issue is one of fact. If the magistrate wrongly took the view that the evidential burden was not discharged, then any such error is of no consequence. It is not an error which vitiates the decision itself: Hindrum v Lane [2014] TASFC 5, 24 Tas R 290 at [65].
241 In this case, there was no direct evidence in relation to the issue of mistake in any respect. The issue can be sufficiently raised and ultimately determined by a process of inference: Jiminez v The Queen (1992) 173 CLR 572 at 583-584. Determining the ultimate issue in the present context involves an assessment of whether the evidence is reasonably capable of excluding all rational hypotheses consistent with innocence. Ultimately, the applicant needs to show that it was not reasonably open for the magistrate to have found that an absence of an honest and reasonable mistake was the only rational inference to be drawn from all of the circumstances.
An underlying issue – corporate attribution
242 In the context of the evidential burden, the respondent argues that the evidence failed to support any conclusion that the applicant held an actual positive mistake and belief. The applicant points out there was no evidence from the employee or employees who received the consignor declaration as to their belief or reliance, and in particular submits "the evidence fails to establish whose belief was that to be imputed upon the Applicant as a company." [My emphasis]
57 No 4/2023
243 The charge under s 7 seeks to make the applicant directly liable, and the question of imputation of a belief to the applicant as a body corporate is one that needs to be addressed. Corporations can only act through human agency. In determining a corporate state of mind it is necessary to look at the question of attribution to it of a human state of mind. This was not a matter that seems to have been mentioned at all during the lower court hearing.
244 In the course of the argument in the Court, senior counsel for the applicant was questioned about the extent of the evidence said to discharge the evidential burden or create a reasonable doubt, in the course of which he was asked how the consignor declaration induced in the corporation a mistaken belief. The answer was to the effect that by providing the document to the employees, their knowledge is the company's knowledge; "… the general rule in relation to corporate criminal liability of these things is always in that way, the knowledge of the corporation is imputed through the knowledge of its employees."
245 In fact, s 3A(3)(a) of the Act provides that for the purposes of proceedings for an offence under the Act, the conduct and state of mind of an officer, employer or agent of a body corporate acting within the scope of his or her actual, usual or ostensible authority will be imputed to the body corporate (the "attribution provision"). There is no reason to think that "state of mind" does not include belief.
246 At common law, in order to fix liability on a company it was determined that the "directing will and mind" of the company is to be ascertained, and that person or person's state of mind is attributed to the company. This approach was later said not to be universal; the rules of attribution could relate to other persons depending on the circumstances of the case and the construction of the statute involved. See Tesco Supermarkets Ltd v Nattrass [1972] AC 153, Hamilton v Whitehead (1988) 166 CLR 121, Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, ABC Developmental Learning Centres v Wallace [2006] VSC 171, 161 A Crim R 250 and in particular, the discussion in Commonwealth Bank of Australia v Kojic [2016] FCAFC 186, 249 FCR 421 per Edelman J at [94]-[100].
247 Section 3A(3)(a) is shorter form of s 84 of the Competition and Consumer Act 2010 (C'th).[8] In Kojic at [109], Edeleman J described that provision as being "supplemental" to the general rules of attribution and not replacing them; it extends rather than limits the liability of corporations for the actions of others.
[8] For another, more relevant, example of an attribution provision see Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2) [2020] NSWLEC 98 at [36]-[39].
248 It must be accepted that because s 7 of the Act is a strict liability[9] offence with the mens rea being the absence of an honest and reasonable mistake of fact, a mistaken belief in relation to that element would be a "state of mind" within the meaning of the attribution provision.
[9] There was no argument for the proposition that s 7 of the Act creates an offence of absolute liability.
249 A question of whether a person has the requisite state of mind said to be attributed to the company is one of fact. Ordinarily it would be expected that when mistake of fact is sought to be raised, the particular person said to have the requisite state of mind to be imputed to the corporation would at least be identified so as to establish the relationship with the company in order to determine the application of the attribution provision. In this case it might be reasonably inferred that that it was an employee or contractor. (It appears from what was said in the interview of the TT-Line's Mr Michael and Mr Davis on 14 January 2019 that "officers or contractors" could have been relevantly involved.)
58 No 4/2023
250 The issue of corporate mistaken belief arose in GJ Coles & Co Ltd v Goldsworthy [1985] WAR 183. The Court recognised the different evidential and ultimate burdens. At 188, Burt CJ noted that for the purposes of the case it was necessary to identify the "person who" did the relevant act, "and that person having been identified it is his belief which must be considered." [Original emphasis.]
251 His Honour went on to note that the only relevant person called did not say that he had any belief one way or the other, and that it was his belief with which the Court was concerned so that he could be identified with the company. At 193-194, Smith J said that where a corporation wished to set up the defence, the belief of the company may be the belief of a single officer or it may be a belief compounded of the knowledge of various of its officers.
252 There is no great difficulty in the application of the attribution provision where it is asserted the one "officer, employee or agent" acting within the relevant scope of authority had the requisite state of mind. On the hearing of this motion, the applicant includes in the consideration of whether the mistake was honest and reasonable, the fact that before this particular voyage, Mr Williams had used the same trailer to transport horses by TT-Line ship on nine occasions, with no reported incidents. This was the subject of agreed facts, the date range being from approximately January 2014 to 10 December 2017.
253 This might raise the issue of knowledge of those known trips by the one person, or by several persons. That in turn raises the legal question of the aggregation of knowledge or states of mind of individuals for the purposes of corporate attribution. Broadly speaking, the circumstances in which it is appropriate to use aggregation are limited: see generally Kojic (above) at [66], [78]-[80], [106] and following; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 28) [2022] VSC 13 at [2622] and following.
254 The issue of aggregation of beliefs of several persons relevant to mistake of fact on the part of a corporation arose in Brambles Holdings Ltd v Carey (1976) 15 SASR 270 . At 275, Bray CJ observed that it was a fallacy to say that any state of mind to be attributed to a corporation must always be the state of mind of one particular officer alone, but "hastened" to add this did not mean that a corporation "can know or believe two contradictory things at once." (That issue did arise on the facts of the case.)
255 At 282, Mitchell J acknowledged there were cases in which it was necessary to consider the information of individual officers as a composite, but found in the case at hand, that because of the contrary knowledge by one employee, the mistaken belief of another could not be attributed to the company. See the analysis of this case by Edelman J in Kojic at [127]-[133].
The evidential burden
256 An evidential burden might be discharged where there is evidence of a reasonably possibility of the existence of the defence; that is, where the evidence taken at its highest in favour of an accsued could lead a tribunal of fact to have a reasonable doubt: R v Youssef (1990) 50 Crim R 1 at 3; Braysich v The Queen [2011] HCA 14, 243 CLR at [36]. In the context of the 'defence' of self-defence it has been said that the issue should be raised in "a meaningful way", with the evidence capable of supporting a reasonable doubt as to whether the defence has been excluded. The evidence must be capable of doing this as a matter of legitimate reasoning, and not mere speculation. See Colosimo v Director of Public Prosecutions [2006] NSWCA 293 at [19]; Douglas v The Queen [2005] NSWCCA 419 per Simpson J (Adams and Hoeben JJ agreeing) at [99]-[101].
257 Discharge of the burden may require that an accused person lead evidence in a defence case; the burden may be discharged by way of cross-examination of prosecution witnesses, and "in rare
59 No 4/2023
cases it may be discharged by reference to evidence adduced by the by the prosecution in chief":
Momcilovic v The Queen [2011] HCA 34, 245 CLR 1 at [665] per Bell J.
What the law requires for a "belief"
258 There must be an affirmative belief about a fact or factual situation in question. Inadvertence, a mere absence of knowledge, not turning one's mind to the issue or having an absence of concern about the matter are not sufficient: He Kaw Teh v The Queen (1985) 157 CLR 523 per Brennan J at 575; CTM v The Queen [2008] HCA, 236 CLR 440 at [7]; Von Lieven v Stewart (1990) 21 NSWLR 52 at 66-67; State Rail Authority (NSW) v Hunter Water Board (1992) 28 NSWLR 721 at 725, Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485, 189 A Crim R 23 at [98]; Hindrum v Lane (above) at [14].
259 In GJ Coles v Goldsworthy (above) at 194, Smith J said it was incumbent on those who seek to rely on the issue to put "cogent evidence" of a relevant belief before the tribunal of fact, and "state clearly and unequivocally what they believed the true facts to be and the grounds of that belief", citing Brambles Holdings Ltd v Carey (above) per Bray CJ at 274. However, as Bray CJ had there observed, evidence of belief can be "gathered by inference."[10]
What the law requires for a "reasonable" belief
[10] His Honour went on to say it could be argued in the case before the Court that no individual had any belief sufficient to invoke the defence, "quite apart from what beliefs of individuals might be imputed to the company."
260 The word '"reasonable" in the context of an honest and reasonable mistake does not involve a hypothetical ordinary or reasonable person test. It is the respondent's belief that must be looked at but it must also be objectively reasonable, that is to say it must be, "based on his appreciation of primary objective fact which is in reason capable of sustaining belief": G J Coles & Co Limited v Goldsworthy (above) per Burt CJ at 187; Hindrum v Lane (above) per Tennent J (with whom Pearce J agreed) at [26]. Put another way, consideration of the reasonableness of a belief must be based on the circumstances as the accused perceived then to be: R v Mrzljk [2005] Qd R 308 at [81]. See also Gibbon v Fitzmaurice [1986] Tas R 137 per Nettlefold J at 154.
261 In Hindrum v Lane at [27], Tennent J went on to set out a lengthy analysis conducted by Reeves J in Su v Australian Fisheries Management Authority (No 2) (above) at [104]-[106]. The analysis of Reeves J concluded at [106] with the statement that it is apparent the word "reasonable":
"(a) does not involve the hypothetical, ordinary or reasonable person test; (b) requires that the belief be that of the accused; (c) requires that the accused belief be objectively reasonable, i.e. rational, based on reason, or capable of sustaining belief; and
(d) requires the objective reasonableness of the accused's belief to be assessed by reference to the subjective circumstances in which the accused was placed, including the accused's personal attributes and the information available to him or her at the time."
262 Adapting the words of Bray CJ in Brambles Holdings (above) at 274, the belief must be a product of reason rather than of faith. A mistake carelessly made is not a reasonable one: GJ Coles v Goldsworthy (above) per Burt CJ at 188.
263 I think of further significance in the present case is a comment made by Rowland J in Pearce v Stanton [1984] WAR 359 at 363, to the effect that in assessing whether an accused's belief was
60 No 4/2023
reasonable, regard should be had "to the policy thrown up by the statute". This was adopted in Hindrum v Lane at [28]. The need for consideration of "highly protective" legislation in this context was also noted in Bailey v Doncon [2007] WASC 252, 178 A Crim R 358 at [40] and Whelan v Kallane [2021] WASC 75, 288 A Crim R 368 at [19]. In this case, the policy is clearly a protective one essentially as expressed in s 6 of the Act, and as explained by the Minister in the Second Reading speech referred to earlier.
The state of the evidence
264 In relation to the issue of an affirmative mistaken belief, the applicant relies on the particular consignor declaration. That states:
"I hereby declare that I am aware of and understand the Animal Welfare provisions contained in the Marine Orders Part 43 and the TT-Line Pty Ltd Carriage of Livestock Policy and after due enquiry believe that the animals to be shipped have been selected and transported according to these requirements." [My emphasis.]
265 While the conditions of carriage are set out in the declaration, there is nothing from Part 43 of the Marine Orders. The particularly relevant part of the conditions is that"
"Vehicles used for the transport of horses are to provide adequate flow through
ventilation".
266 The applicant also relies on the nine previous uneventful trips undertaken by Mr Williams, and the similar consignor declarations signed on each of those occasions.
267 In relation to the consignor declaration, there was an agreed fact that "prior to carriage", Mr Williams completed a consignor declaration "which was required by the defendant and was returned to the defendant." At the top of the document there is a direction that the completed declaration is to be returned to "Terminal Services" at a specified email or fax number and it was to be returned 48 hours before departure. Senior counsel for the applicant conceded in argument that this was not the practice; the practice was that it was "submitted at the barrier in the office and signed on the day of travel."
268 The only other evidence concerning the use of the particular declaration came about in the cross-examination of Dr Grull who was asked in cross-examination (without objection) to interpret some CCTV footage of what happened with Mr Williams when he reached the barrier to the loading dock. Dr Grull agreed with the suggestion that the footage showed that both Williams and Martin were not allowed to get onto the boat until they had gone in the office and completed the declarations. That Mr Williams would not have been allowed through in order to board if he had not signed the declaration, is a reasonable inference to draw. With respect, I think anything beyond that inference is speculation and guesswork.
269 An examination of the detail reveals the following:
(a)
There is no evidence of who it was who physically received the consignor declaration signed by Mr Williams, or what relationship that person or persons had with the applicant as a corporation.
(b)
There is no evidence whether it was that person or someone else to whom the declaration was immediately given who was responsible for making the decision to raise the barrier and allow Mr Williams onto the loading dock.
61 No 4/2023
(c) There is no evidence as to whether whoever received the declaration, read it and formed any view about the ventilation based on it and if so what that view was, or whether they simply received it as a mere procedural pre-condition for allowing the truck/trailer through the gate.[11] (d) There is no evidence of who in the applicant corporation or as its agent, on the night of 28 January 2018, had knowledge of the previous nine trips; it may have been one person with knowledge of all nine, or nine separate people who knew of one each. (e) There is no evidence that any such knowledge had any role to play in forming a belief about the adequacy of the ventilation and allowing Mr Williams onto the vessel that night. (f) There is no evidence that any person within the applicant corporation or acting as its agent, having anything to do with allowing Mr Williams to board the vessel, knew anything of his relevant experience or expertise, or that any such knowledge had any effect in inducing a positive belief about the effectiveness of the trailer ventilation. [11] In this respect, it should be noted that there was an error on Mr Williams' consignor declaration, in that the number of livestock is shown as 21, whereas in fact it was 18.
270 In terms of reliance placed on the consignor declaration it might be noted, at the risk of engaging in semantics, that – as noted above – in fact the consignor is declaring a belief (after due enquiry) that the animals are being shipped according to the requirements. Accordingly, any asserted material belief arising from the declaration is one based on someone else's belief.
271 Mere assertions that the applicant had a mistaken belief are simply insufficient. In my respectful opinion, I have grave doubts the applicant discharged the evidentiary burden. There was an absence of evidence from which it could be inferred that a person in a relevant relationship with the applicant – giving rise to the application of s 3A(3)(a) – had formed an actual belief about the state of ventilation in the trailer that would make innocent the applicant's conduct. In any event, I take the view that the evidence is not capable of creating a reasonable doubt about the issue. On my assessment, the absence of an honest and reasonable mistake was the only reasonable inference open. That is, it was reasonably open on the whole of the evidence to the magistrate to find the 'defence' negated.
272 It follows that there is, in strict terms, no need to consider the question of the reasonableness of the asserted mistake. However, it is appropriate to make some remarks about it. The question is whether, assuming the reasonable possibility of a relevant mistaken belief, the mistake was a reasonable one to make in all of the circumstances.
273 The primary difficulty I see with this issue is one that flows on from the deficiencies in the evidence. That problem flows on to the question of the grounds of any belief. It will be recalled that an aspect of the assessment of the reasonableness of a mistake includes consideration of the accused's personal attributes and the information available to that person at that particular time. The belief must be based on that person's appreciation of primary objective facts. In this case, there is not only no evidence about who the relevant person was, or persons were, but no evidence about what particular information was relied on. I do not believe it reasonable to draw inferences from generalised assertions about collective knowledge.
274 In any event, I will set out the matters relied on by the applicant and make some comments. They are, in effect, what is also put in relation to whether the alleged omissions involve measures that ought reasonably to have been taken. First, there is reg 15 of the Animal Welfare (Land Transport of Livestock) Regulations 2013 which imposes an obligation on the driver of the vehicle being used to transport livestock, to ensure the vehicle has the effective and appropriate airflow for the type of
62 No 4/2023
livestock being transported. The applicant claims that Mr Williams was highly experienced in caring for and transporting horses, and have used the trailer for many years without incident and "he was mistaken about the ventilation capacity…"
275 There is also the issue of "standard industry practice" in relation to the acceptance of consignor declarations in these types of circumstances. The only evidence about this comes from a passage in the Michael/Davis interview. It is what Mr Michael said that it is relied on. In this Court, the passage was referred to as unchallenged and uncontradicted evidence about the industry practice. Mr Michael was responding to a question whether there was a reason the applicant's officers or contractors did not (as had been admitted) assess horse carrying units for compliance with the conditions of carriage and specifications in the declaration.
276 The passage is set out in the judgment of Martin AJ but it is convenient if I repeat it, and to be fair, add part of a subsequent answer that was identified to the magistrate as part of the relevant response:
"On the basis of the generalised carriage of many items aboard a roadpacked vessel, no different to our vessels, whether it be certain grades of hazardous casting – hazardous cargo, personal use, pets, livestock etcetera etcetera etcetera the industry standard is such that it will do its best in all respects to expose the applicable requirements to those that are intended carriage, right but the onus of that transport is to put back to them as they as seen as a greater authority than any individual in TT Line. So for us to assess – and I'm using an example here – for us to then put one of our people in position where they would go into a horse transport unit, check the stalling arrangement, check the amount of water, check the amount of feed, size up the ventilation, etcetera etcetera etcetera etcetera which are all part of the carriage requirements, and all the applicable wording around that, whether it be the Tasmanian regulations, Marine Orders, it comes down to a competent authority. Competent authority requires an onus of proof on that competence. Now we're not carrying a vet which you would say is a competent authority to go into that thing. So from that point of view, whilst TT Line responsibly portrays all the requirements of carriage the onus of responsibility, and hence the competent in this area. … So when we're receiving dangerous goods, just as you asked (indistinct word) right, what we are taking is the information off the consignment that has also gone to Australian Maritime Authority. So no road packs owner or container ship owner or whatever else can be in a position where it can individually require that we check the contents of every container to verify what they're being told is correct. So the principle remains the same throughout. "
277 What can be drawn from this passage seems to have been significantly elevated in its effect. In submissions to the magistrate, senior counsel for the applicant put that the TT-Line did "what every shipping line in the world and airlines do all the time with all of their passengers and all of their cargo and not only you can imagine if there had to be detailed searches of everybody getting on the ship or all of the cargo, it's simply inconceivable that that would be the case. Hence, the system on declarations is operative across the board."(sic). (Reference to standard industry practice of airlines seems to have been first introduced into the hearing in these submissions.)
278 In oral argument, the evidence of reliance was said to that described by Mr Michael but that description was put to the Court, "chapter and verse", as follows:
"This is the industry practice. It is the practice to rely on declarations because of the volume of cargo and the practicalities of operating that is the only real way we can do it. Moreover, the expertise of those who are packing these goods exceeds the expertise that we have got at dockside or even generally to be able to make those assessments."
63 No 4/2023
279 Next, there are the post-incident responses from the Department of Primary Industries Parks Water and Environment in 2019 and Department of Natural Resources and Environment Tasmania in 2022. The relevance of these later matters is doubtful.
280 First, the applicant says that in February 2019 DPIPWE "endorsed the use of substantially the same declaration form in the same openings for horse trucks as those in place prior to the incident." That has to be looked at in light of the facts. There was a change that consisted of the insertion at the start of the document of four "boxes" to be ticked. They related to the reading and understanding of, and compliance, with Marine Orders par 43, the TT-Line Company Pty Ltd conditions of carriage for horses, and the requirements of the relevant Animal Welfare Regulations. There is also a box to be ticked acknowledging that horses and livestock cannot be inspected by accompanying passengers.
281 On 7 March 2022, the Acting Secretary of the DNRET wrote to the applicant not, as claimed by the applicant in argument, acknowledging that it would be unreasonable to expect TT-Line to have been able to assess ventilation of horse trucks, but advising that the minimum expectation (among other things) was that TT-Line may rely on the signed "Horse Welfare Declaration" without the need to conduct independent veterinary assessments. A further "minimum expectation" was that TT-Line may rely on the signed "Vehicle Suitability Declaration" provided by the accompanying passenger to be satisfied of the vehicle suitability, but it was recommended that staff check that the vehicle has vents that are open. (The relevant passage from the letter is set out in full in Martin AJ's reasons.)
282 Further minimum expectations were that TT-Line staff undertake a visual inspection of horse transport units to verify the number of horses they contain and to ensure they are individually stalled. If the reference to a "Vehicle Suitability Declaration" was intended to mean a different document than the consignor declaration, then that particular document does not seem to have been in evidence. The same applies to a "Horse Welfare Declaration".
283 Assuming the fact of a mistaken belief by a relevant person, and assuming that person can be said to have based that belief on the factors outlined that existed at the time, I do not see the cumulative effect of those things would assist the applicant. Going back to the discussion about "belief", the factors that were operative at the relevant time merely suggest a general understanding or an assumption that a system or set of procedures in place would produce a certain result in the form of compliance with requirements.
284 A mistaken belief based on mere understandings and assumptions that systems and processes are sufficient in that respect cannot be said to be reasonable: G J Coles & Co Pty Ltd v Goldsworthy (above) per Smith J at 194; McKenzie v G J Coles & Co Pty Ltd [1986] WAR 224 per Smith J at 234. In this case, I think that is particularly so given the legislative purpose underpinning the Act and the consequences that might flow from a breach of s 7.
Resolution
285 For all of the above reasons, it was reasonably open to the magistrate to find that the only reasonable inference to be drawn from the whole of the circumstances was the absence of an honest and reasonable mistake of fact to be attributed to the applicant. It is not necessary for me to go any further, but I should add that if I am a wrong about that, I would respectfully agree with what Martin AJ has written about the possible consequences of mistake of fact not being negatived – that is, where the belief may not make an accused's actions "innocent" – and his Honour's discussion of Bell v Tasmania [2021] HCA 42, 96 ALJR 22.
286 It follows that ground 3(c) fails, and so the entire ground fails.
Grounds 4 and 5 – double stalling
64 No 4/2023
287 I agree with Martin AJ as to this issue. Put in very brief terms, the state of the evidence left the respondent in the position of arguing that the method of management of 18 horses was to ensure that there was only 11. That has the difficulties attached to it explained by Martin AJ.
Outcome
288 I would allow the motion, set aside the finding of guilt and remit the matter for re-hearing. In all of the circumstances, it is appropriate to also order that it be re-heard by a different magistrate.
[2011] HCA 43, 244 CLR 408.
[104].
Phillips (1971) 45 ALJR 467 at 477.
(1) An objection shall not be taken or allowed to a complaint in respect of –
(a) an alleged defect therein, in substance or in form; or
(b) a variance between it and the evidence in support thereof.
(2) Notwithstanding the provisions of subsection (1) , where –
(a) a complaint fails to disclose an offence or matter of complaint; or
(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection –the justices shall, unless the complaint is amended as provided in subsection (3) , dismiss the complaint.
(3) If it appears to the justices that the complaint –
(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect –
the justices may amend the complaint upon such terms as may be just.
…"
2
33
1