Turner v Cole - [2005] TASSC 72

[2005] TASSC 72

CITATION: Turner v Cole [2005] TASSC 72

PARTIES:  TURNER, James George
  v
  COLE, Robert James

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 35/2005
DELIVERED ON:  9 August 2005
DELIVERED AT:  Hobart
HEARING DATE:  25 July 2005
JUDGMENT OF:  Blow J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Respondent:  F C Neasey
Solicitors:
             Applicant:  In Person
             Respondent:  Director of Public Prosecutions

Judgment Number: [2005] TASSC 72
Number of paragraphs: 24

Serial No 72/2005
File No LCA35/2005

JAMES GEORGE TURNER v ROBERT JAMES COLE

REASONS FOR JUDGMENT BLOW J

9 August 2005

The applicant is aggrieved by orders made by a magistrate on 3 May 2005 whereby he was convicted of omitting to do a duty which resulted in the serious disablement of an animal, contrary to the Animal Welfare Act 1993 ("the Act"), s9, fined $4,000 plus $263.82 costs, and ordered pursuant to the Act, s43(1)(d), not to have the possession or care of any more than 20 horses for a period of five years, with effect from 1 August 2005. The applicant contends that he was wrongly convicted, and that the penalties were manifestly excessive.

Under the Act, s6, a person who has the care or charge of an animal has a duty to take all reasonable measures to ensure the welfare of that animal. The prosecution case was that the applicant had the care or charge of a horse that needed veterinary attention; that he therefore had a duty under s6 to ensure that the horse received veterinary attention; that he omitted to obtain veterinary attention for the horse; and that the horse became seriously disabled as a result, to such an extent that it needed to be shot. The applicant's case was that the horse did not need veterinary attention; that it was not seriously disabled; and that it did not need to be shot.

The hearing extended over five days in the first half of this year: 12 January, 21 February, 21 and 22 March, and 3 May. The prosecutor called four witnesses: a constable named Sargent, two RSPCA inspectors named Lewis and Wyld, and a veterinary pathologist, Dr Pyecroft. He also tendered five photographs, and a video said to have been filmed on 19 and 21 May 2003. The evidence against the applicant was essentially as follows. On 12 May 2003 Mr Lewis went to the applicant's property at Garden Island Creek, but the applicant was not home. Mr Lewis saw two thin horses. He filmed a video of one of them, which was in a worse condition than the other, but that video was not available at the hearing, possibly as a result of having been taped over. Mr Lewis left a card with a message asking the applicant to call him. Mr Lewis spoke to the applicant by telephone on 15 May 2003. He told the applicant to have the animals attended to by a veterinarian, but the applicant said that he knew what he was doing.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Turner v Cole

Details

AGLC: Turner v Cole [2005] TASSC 72
Case: [2005] TASSC 72
Decision Date: 9 August 2005

CaseChat Overview and Summary

The appellant, James George Turner, was aggrieved by a conviction and penalty imposed by a magistrate under the Animal Welfare Act 1993. Turner was found to have omitted his duty to provide veterinary attention to a horse under his care, resulting in the animal's serious disablement, for which he was fined $4,000 and ordered not to have more than 20 horses in his possession or care for five years. Turner appealed to the Supreme Court of Tasmania, raising several grounds for review, including procedural fairness, admissibility of evidence obtained by RSPCA officers, the expertise of Dr Pyecroft, the cause of death of the horse, and the penalties imposed.

Turner argued that he was denied procedural fairness, but the court found that he was afforded a sufficient opportunity to inspect and consider the witness statements, autopsy report, and photographs on the first day of the hearing. Turner also contended that evidence obtained by RSPCA officers should have been excluded, but the court held that the learned magistrate could not make a finding that any of the evidence had been illegally obtained. The court also dismissed Turner's argument that Dr Pyecroft was not qualified to give expert evidence about horses. Regarding the cause of death of the horse, the court found that it was reasonably open to the magistrate to accept the evidence of the RSPCA inspectors. Lastly, the court held that the penalties imposed were not manifestly excessive, considering Turner's prior convictions and the seriousness of the case.

In conclusion, the motion to review was dismissed. The Supreme Court of Tasmania found no merit in Turner's grounds of appeal and upheld the conviction and penalty imposed by the magistrate.

Orders