Verhagen v RSPCA
[2025] QDC 55
•17 April 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Verhagen v RSPCA [2025] QDC 55
PARTIES: Elizabeth Alice VERHAGEN (Appellant)
v
RSPCA (Respondent)
FILE NO/S
Appeal No 19 of 2023
DIVISION:
Appellate
PROCEEDING:
Appeal pursuant to s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:
Magistrates Court at Ipswich
DEVIVERED ON:
17 April 2025
DELIVERED AT:
Ipswich
HEARING DATE:
5 September 2024
JUDGE:
Lynch KC DCJ
ORDERS: 1. In respect of charge 3 of the complaint sworn on 1/7/2020, and charges 8, 14 and 15 of the complaint sworn on 19/8/2020, the verdicts of guilty are set aside and instead verdicts of not guilty are entered. The appellant is discharged in respect of those charges.
2. In respect of the appeals against conviction of charges 1, 10 and 30 of the complaint sworn on 19/8/2020, the verdicts of guilty are confirmed, subject to the factual findings as set out in these reasons.
3. In respect of charges 3, 7, 9, 13, 26 and 28 of the complaint sworn on 19/8/2020, the verdicts of guilty are confirmed.
CATCHWORDS: ANIMALS – ANIMAL CARE AND PROTECTION ACT – PREVENTION OF CRUELTY TO ANIMALS – OFFENCES – GENERALLY – FAILING TO COMPLY WITH DUTY OF CARE – FAILING TO COMPLY WITH COMPULSORY CODE REQUIREMENT FOR BREEDING DOGS – FAILING TO PROVIDE APPROPRIATE TREATMENT FOR AN ANIMAL – FAILING TO PROVIDE APPROPRIATE FOOD OR WATER FOR AN ANIMAL – FAILING TO PROVIDE APPROPRIATE ACCOMODATION FOR AN ANIMAL – whether a person to whom a compulsory code of conduct applied – whether caused pain to an animal that was unjustifiable, unnecessary or unreasonable – whether failed to take reasonable steps to provide for animals’ needs in a way appropriate for food or water, or accommodation, or treatment of disease or injury
ANIMAL CARE AND PROTECTION ACT – PROCEEDINGS FOR OFFENCES – whether prosecution authorised by responsible Department – whether a private prosecution – whether evidence obtained by ex-employee admissible upon trial – whether search and seizure authorised by Act – whether warrant properly issued - whether search and seizure lawful
ANIMAL CARE AND PROTECTION ACT – PROCEEDINGS FOR OFFENCES – whether evidence sufficient to satisfy charges – whether proceedings commenced within time limit – whether documentary evidence of treatment of animals admissible
JUSTICES ACT – SECTION 222 APPEAL – APPEAL A REHEARING ON THE EVIDENCE PLUS ANY ADDITIONAL EVIDENCE – whether fresh evidence admissible – whether special reason demonstrated – whether defendant denied opportunity to introduce evidence at trial
TRIAL OF CRIMINAL OFFENCES – SCOPE AND PURPOSE OF PARTICULARS – whether prosecution bound by particulars – whether open to court to convict upon basis different to that particularised – whether prosecution sought to amend or alter the particulars
LEGISLATION: Animal Care and Protection Act 2021 ss 12, 15, 17, 18, 178
Evidence Act 1977 s 93Justices Act 1886 ss 222, 223, 225
CASES: Fox v Percy (2003) 214 CLR 118
Lee v Lee (2019) 266 CLR 129
Pavlovic v Commissioner of Police (2007) 1 Qd R 344
R v BEO [2025] QCA 40
R v Campbell [2019] QCA 127R v Murdoch [2017] QCA 239
COUNSEL:
The appellant appeared in person
N Boyd for respondent RSPCA
SOLICITORS:
The appellant appeared in person
RSPCA as respondent
Appeals
Elizabeth Alice Verhagen was convicted after a trial before the Magistrates Court at Ipswich of 13 offences against the Animal Care and Protection Act 2001 (ACPA). Ms Verhagen was placed on probation for 18 months with no convictions recorded. Ms Verhagen was ordered to pay an amount for investigation, professional and summons costs, prohibited from possessing dogs for the purpose of breeding for five years, and an order was made for disposal of one animal. Ms Verhagen appeals the convictions and sentence.
The appeals against conviction assert various errors by the learned acting Magistrate in the conduct of the proceedings and contend the findings were contrary to the evidence.
For the reasons that follow, I have concluded the appeals regarding some charges should be allowed, those convictions set aside and verdicts of not guilty entered. In particular I would acquit the appellant of charge number 3 on the complaint sworn on 1/7/2020, and charges numbered 8, 14 and 15 on the complaint sworn on 19/8/2020. The appeals against conviction for the remaining charges should be dismissed, albeit the basis upon which the appellant is found guilty of some of those charges differs from that found by the learned acting Magistrate.
Because the appellant has been convicted of fewer charges, the basis of some convictions has altered, and in light of the appellant’s having effectively served the sentence imposed below, it seems to me appropriate I hear the parties regarding sentence and any ancillary orders.
Proceedings before the Magistrates Court
The prosecution of the appellant concerned dogs she owned which were kept on her property. In essence the prosecution alleged the appellant mistreated dogs under her care by failing to take reasonable steps to provide them with water, maintain clean accommodation or living conditions, and treat disease; by causing an animal pain that was unjustified, unnecessary or unreasonable; and by failing to comply with a compulsory code of conduct requiring she maintain housing that was clean and appropriate for the dog’s health and welfare.
The trial of the charges took place before an acting Magistrate at Ipswich. Evidence was taken over seven sitting days; namely, 11, 15 & 16 August, 9 & 13 September, 24 & 25 October 2022. A short hearing regarding making of written submissions took place on 13 January 2023. The acting Magistrate delivered oral reasons for decision on 13 April 2023 and sentenced the appellant on 18 July 2023. Counsel, instructed by the RSPCA, appeared for the prosecution. The appellant conducted her own defence. The learned acting Magistrate was informed at the outset that an earlier ruling had declared the appellant a “special witness” on account of medical conditions which required regular breaks. Due allowance was made for the appellant’s health conditions; on some days the appellant was unable to attend at all, while other hearing days were shortened because the appellant was unable to continue.
The appellant was initially charged upon two separate complaints with a total of 35 charges alleging offences contrary to ACPA. The prosecution withdrew 21 of these charges at the commencement of the trial and those charges were dismissed. Other charges were amended. Ultimately, the appellant was convicted of 13 charges and acquitted of one charge (charge 31). The appellant was charged and tried conjointly with her daughter Tiana Daniels in respect of charges numbered 26, 28 and 31. Ms Daniels, who also self-represented, was found not guilty of each charge.
Before the appellant was called upon to enter pleas to the charges, she raised an issue concerning the nature of the prosecution. The appellant in effect submitted the evidence was inadmissible and/or the proceedings should be stayed on account of the conduct of the RSPCA investigator. The acting Magistrate ruled against these submissions.
The acting Magistrate read all of the charges in full, and the appellant entered a single plea of not guilty. The trial was then commenced treating that response as a plea of not guilty to all charges.
It is unnecessary to recite each charge in full. The essence of the amended charges and the particulars contained therein, numbered as described in the proceedings below, are as follows:
Charge 3 (complaint sworn 1/7/2020)
Breach of duty of care to Golden Retriever Summer.
Particulars: The defendant failed to provide appropriate treatment for dental disease.
Charge 1 (complaint sworn 19/8/2020)
Breach of duty of care to Chihuahuas Pablo and Poppy.
Particulars: The defendant confined the dogs to an enclosure which was unclean and where the dogs had fleas.
Charge 3 (complaint sworn 19/8/2020)
Breach of duty of care to Chihuahua Pablo.
Particulars: The defendant failed to provide appropriate treatment for dental disease.
Charge 7 (complaint sworn 19/8/2020)
Breach of duty of care to Great Danes Nala and Jigsaw.
Particulars: The defendant confined the dogs to an enclosure that was unclean, where the dogs did not have access to appropriate bedding, and where the dogs had fleas.
Charge 8 (complaint sworn 19/8/2020)
Breach of duty of care to Great Dane Jigsaw.
Particulars: The defendant failed to provide appropriate treatment for ear infection.
Charge 9 (complaint sworn 19/8/2020)
Breach of duty of care to Great Dane Jigsaw.
Particulars: The defendant failed to provide appropriate treatment for dental disease.
Charge 10 (complaint sworn 19/8/2020)
Breach of duty of care to Golden Retrievers Honey and Cody.
Particulars: The defendant confined the dogs to an enclosure that was unclean, where the dogs did not have access to appropriate bedding, and where the dogs had fleas, and where infected with hookworm.
Charge 13 (complaint sworn 19/8/2020)
Breach of duty of care to Golden Retriever Cody.
Particulars: The defendant failed to provide appropriate treatment for dental disease.
Charge 14 (complaint sworn 19/8/2020)
Breach of duty of care to Golden Retriever Cody.
Particulars: The defendant failed to provide appropriate treatment for osteoarthritis.
Charge 15 (complaint sworn 19/8/2020)
Cruelty to Golden Retriever Cody by causing pain that was unjustifiable, unnecessary or unreasonable.
Particulars: The defendant cut two lumps off the dog’s body with a scalpel.
Charge 26 (complaint sworn 19/8/2020)
Breach of duty of care to Chihuahuas Twinkie and Chica and Golden Retriever Shayla.
Particulars: The defendant failed to provide the animals with an appropriate source of water.
Charge 28 (complaint sworn 19/8/2020)
Breach of duty of care to Chihuahuas Cadbury, Pixie, Pippa and Papi.
Particulars: The defendant failed to provide the animals with an appropriate source of water.
Charge 30 (complaint sworn 19/8/2020)
Breach of compulsory code requirement.
Particulars: Regarding dogs Pablo, Poppy, Nala, Jigsaw, Honey and Cody. The defendant failed to provide housing and exercise areas that were maintained in a clean state and appropriate for the health and welfare of a dog.
Charge 31 (complaint sworn 19/8/2020)
Breach of compulsory code requirement.
Particulars: Regarding dogs Twinkie, Chica, Shayla, Cadbury, Pixie, Pippa and Papi. The defendant failed to ensure that (a) the dog or puppy had access to drinking water at all times, and (b) the quantity and quality of water met its physiological needs.
In opening the prosecution case, counsel stated, “there’s a commercial aspect to the possession of these animals and their use for breeding purposes” and acknowledged there was “overlap between the breach of code offence and the breach of duty offence”.
Yorick Wahlberg-Schmitt gave evidence he was employed by RSPCA and was appointed an inspector under ACPA. On 3/6/2020 he assisted Inspector Barraud in executing a warrant at the appellant’s address at 34 Topaz Crescent, Lockyer Waters. A search was conducted of those premises. Mr Wahlberg-Schmitt documented animals located and took photographs and video recordings. He described the animals he saw confined in various enclosures which he numbered. His descriptions included:
·Pen 1 contained dogs, Pablo and Poppy (Chihuahuas), both had a dirty coat and were flea burdened. Pablo had bad breath and worn teeth. The pen contained a doghouse, smelt of urine, a towel was in the house which appeared dirty, there was faeces in the pen. Exhibit 2 is photographs of pen 1.
·Pen 6 contained dogs Jigsaw and Nala (Great Danes). Both dogs had a flea burden, bad breath and dirty ears. Jigsaw had an ear infection. Exhibit 6 is photographs of Nala; Exhibit 7 photographs of Jigsaw. Pen 6 contained a metal shed as shelter with no bedding, water was available, there was lots of faeces in the pen, the floor was mostly dirt, with lots of prickles and weed. Exhibit 5 is photographs of pen 6.
·Pen 7 contained dogs Cody and Honey (Golden Retrievers). Both dogs had a flea burden and bad breath. Photographs of Cody are Exhibit 9; photographs of Honey Exhibit 10. Pen 7 contained shelter with no bedding, the pen contained a lot of faeces. Exhibit 8 is photographs of pen 7.
Mr Wahlberg-Schmitt denied the suggestion that most fleas on the animals were dead fleas; he maintained he saw live fleas that were moving around. He acknowledged it was difficult to see in the photographs in Exhibit 8 the faeces he claimed was present in pen 7.
Daniel George Young gave evidence via phone. Mr Young said between August and July 2020 he was the Chief Inspector at RSPCA. He acknowledged during that period Inspector Barraud worked under him. He said he visited the appellant’s property on 29/7/2020, assisting in an animal welfare direction check. He said Inspector Barraud did not require his approval to seize an animal during an investigation. He could not recall whether he spoke with Ms Barraud via phone on 3/6/2020 and did not recall if Barraud had a change of mind about seizing animals as a result. He did not recall encouraging Barraud to seize animals.
Summer Jane Heath-Crilley, also employed by RSPCA as an inspector, attended the appellant’s residence on 3/6/2020, and assisted by taking photographs and video footage. Exhibit 11 includes photographs of the enclosure where dogs Pablo and Poppy were located. Ms Heath-Crilley described there being dried faeces, consistent with being a day or two old, in that enclosure. In cross-examination she agreed that could not be seen in the photos, and said the yard was not heavily littered but some faeces was present. Re-examined, she said there was some fresh faeces, the yard was not heavily littered with faeces, perhaps “several days of build-up”. Regarding pen 6, she described the yard was very thick with prickles and heavily littered with faeces. She said dogs in pen 6 appeared thin and had lots of fleas. Ms Heath-Crilley could not recall the condition of pen 7, recalled the dog Honey seemed to have “pretty good body condition” and dog Cody appeared a “little bit underweight”. Ms Heath-Crilley identified some documents located at the appellant’s residence and which she was asked to photograph; including a calendar with notations marked on it, admitted as Exhibit 12, and a document titled “Care guide for your new Golden Retriever puppy”, admitted as Exhibit 13.
Ms Heath-Crilley said when she and Inspector Barraud arrived at the appellant’s house the appellant greeted them dressed in pyjamas. Ms Heath-Crilley agreed if the appellant had just risen it was expected to see faeces in the animal enclosures. A copy of the Queensland Animal Welfare Standards and Guidelines was admitted as Exhibit 14. Regarding pen 6, in which the Great Danes were located, Ms Heath-Crilley held concerns regarding the prickles and faeces in the yard. She acknowledged the prickles appeared dry and she did not touch them with her hands.
The appellant sought to cross-examine Ms Heath-Crilley with reference to a document the appellant produced, described as a record of her treatment of animals over the course of 2020, and which also reflected the calendar entries photographed and admitted as Exhibit 12. Objection was taken to these questions on the basis the witness could not comment upon a document they had not seen or prepared. The objection was upheld, and the learned acting Magistrate informed the appellant the document was more properly one she could introduce herself in evidence.
Melissa Anne Barraud was previously an Inspector employed by RSPCA and was the lead investigator in this case. On 3/6/2020 she executed a warrant at the appellant’s address; a copy of the warrant was admitted as Exhibit 15. Ms Barraud said she searched the house first, and with assistance, the remainder of the property. She described:
·Pen 1 housed two Chihuahuas, had no enrichment (toys), with faeces present.
·Pen 6 housed two Great Danes, a huge build-up of faeces that appeared weeks old, had prickles everywhere, no bedding, nor enrichment, prickles were embedded in the dogs’ coats and feet, the dogs had a lot of “stick” fleas on them.
·Pen 7 housed two Golden Retrievers, had a lot of old faeces and no bedding. The dog Cody appeared underweight and had lumps on his body.
Ms Barraud said she recorded events, including her conversations with the appellant on a body worn camera. A portion of the recording which captured conversation between Ms Barraud and the appellant, relevant to the charge of animal cruelty to dog Cody, was played and the recording admitted as Exhibit 16.
The recording occurred when Ms Barraud and the appellant were in pen 7 and RSPCA staff were examining Honey and Cody. The appellant described to Inspector Barraud that Cody had a lump on his body, and had others, including two she removed by cutting them out. The appellant explained the lumps only became a problem when they “break the skin” due to the dog scratching them. She described them as fatty lumps. She said both lumps became “raw”. She said one of the lumps was the size of a one cent piece, the other larger than a golf ball but smaller than a tennis ball. The appellant explained she applied numbing cream and waited for it to take effect and continued to apply numbing cream during the process of removal. Asked when that occurred, the appellant paused and said “It would be - 18 months ago”.
Ms Barraud said she seized animals as evidence under the warrant due to concern about living conditions, including build-up of faeces, lack of bedding and enrichment; and because dogs required treatment for particular conditions, such as, broken tooth of Summer, dental disease, and Cody was under-weight with muscle wastage. She gave the appellant a seizure receipt identifying the animals seized and the reason. A copy of the receipt was marked Exhibit 17. Ms Barraud also gave the appellant an animal welfare direction, setting out concerns regarding the care of particular animals, what needed to be done in respect of them, and detailing when compliance checks would be carried out. A copy of the direction was admitted as Exhibit 18. Ms Barraud said the next day she took a photograph of dog Pablo, who had dental disease that required teeth extraction; admitted as Exhibit 19.
Ms Barraud said she again attended the appellant’s address on 10/6/2020 and 1/7/2020 for the purpose of animal welfare direction checks and on each occasion the appellant was in compliance with the direction. She next attended the appellant’s address on 15/7/2020 at about 9:00am. She said the appellant was in her pyjamas and may have just awoken. She said the appellant told her she was expecting her to come later in the day at about 1:00pm, as per their agreement. Ms Barraud made observations regarding animals the subject of the direction. Her descriptions included:
·Pen 2 contained Golden Retriever Shayla and Chihuahuas Twinkie and Chica. The enclosure containers had no water. The dogs were then supplied water and drank.
·Enclosure containing Chihuahuas, Cadbury, Pixie, Pippa and Pappy. The enclosure had no water that was accessible.
Ms Barraud said the appellant claimed to have provided the dogs water the night before. Ms Barraud said the weather was cool, the bowls had not been tipped over and were completely dry and she disbelieved the appellant’s claim. Ms Barraud said there was non-compliance with the welfare direction regarding water for the dogs and lack of enrichment for dogs Poppy and Casper. Ms Barraud seized the dogs on account of non-compliance with the direction. A copy of the receipt for the seizure was admitted as Exhibit 20.
Ms Barraud said on 15/7/2020 the appellant was the only person present at the residence and appeared in charge of the animals. She said the appellant told her she re-homed the animals, to her daughter Ms Daniels, so as to prevent them being seized. Ms Barraud later had a text message exchange with Ms Daniels who was claiming ownership of the animals seized on 15/7/2020. The text messages were admitted as Exhibit 21. Ms Barraud said Ms Daniels claimed via text message that on the morning of 15/7/2020 she checked the dogs had water and removed their coats. A table recording the identification tag numbers assigned to the animals on the 3/6/2020 and 15/7/2020 was admitted as Exhibit 22. Ms Barraud said the appellant told her she was breeding dogs at her residence and there were puppies and adult dogs at the premises, consistent with that claim.
Ms Barraud agreed on arrival at the appellant’s address on 3/6/2020 it appeared the appellant had just arisen, and it was therefore reasonable to expect the presence of faeces in the enclosures. Ms Barraud maintained she would expect the amount of faeces to be limited and obviously fresh, not a build-up. Ms Barraud rejected the assertion some of what she described as dog faeces in the Cody and Honey enclosure was droppings from miniature ponies and maintained she could tell the difference. She counted faeces in this enclosure but stopped at 40.
Ms Barraud accepted on 3/6/2020 she initially told the appellant she did not intend to seize any animals but said she changed her mind after a phone call with Chief Inspector Young. Ms Barraud agreed Mr Young did not attend the property or himself see any animals on 3/6/2020. Ms Barraud said her decision to seize animals was due to advice provided by Laura Finnegan as to the severity of conditions they suffered, and the appellant’s history with RSPCA. Ms Barraud said she chose to seize animals instead of giving a direction they be taken to a vet, in part due to the appellant’s prior history of non-compliance with directions, hiding animals and obstructing inspectors.
Ms Barraud accepted four of the five Golden Retrievers in the pen together were wearing flea collars, a fifth collar was on the ground, and had been worn at some stage. It was suggested Ms Barraud removed flea collars from the little dogs before taking them and she could not recall. Ms Barraud agreed the appellant showed her products she had been using to remove fleas. Ms Barraud accepted it was possible she was also shown products for worm control and ear infections; she remarked, “I remember seeing a whole heap of products there at the property.” Ms Barraud said she believed it was on 10/6/2020 she was shown an antibiotic tablet used for treatment of ear infection in the dog Jigsaw and she seized a sample to confirm that. Ms Barraud agreed on 3/6/2020 Great Danes Nala and Jigsaw were affected by “sticktight” fleas, and the appellant showed her products she was using to treat them. Ms Barraud was unaware if any video recording showed live fleas.
Ms Barraud agreed on 3/6/2020 she instructed the appellant not to provide animals food or water until the inspection was complete, and animals did not receive any food or water that day, including young puppies. Ms Barraud did not regard that as a breach of duty under s 17 of the Act. Ms Barraud accepted that day the appellant asked to feed horses at their usual feeding time. Ms Barraud accepted the appellant said she would take any animal deemed in need of treatment to a vet. Ms Barraud agreed on 3/6/2020 she instructed the appellant take two puppies to a vet because they had pale gums. Ms Barraud rejected the assertion that meant no other animals required treatment. Ms Barraud agreed a vet inspection found no issues with the puppies.
Ms Barraud agreed she gave the appellant a welfare direction on 3/6/2020 and returned on 10/6/2020 to check compliance with the direction, which was satisfactory. Ms Barraud did not dispute she attended at the scheduled time of 12pm. Ms Barraud accepted her next compliance visit was on 1/7/2020 at the scheduled time of 10.30am, and again the appellant was compliant. Ms Barraud agreed her next visit was 15/7/2020 at 9am, even though this visit was scheduled for 1pm that day. Ms Barraud said she was aware that due to the appellants health issues she did not get out of bed until approximately 10am and would not yet have catered for the animals. Ms Barraud made subsequent compliance visits to the appellant’s premises and the appellant was compliant.
The appellant attempted to cross-examine Ms Barraud with reference to the document described as a record of her treatment of animals over the course of 2020. Objection, taken on the basis the witness could not comment upon a document they had not seen or prepared, was upheld.
Rebecca Anne Stewart is a veterinarian employed by RSPCA. Dr Stewart completed a Bachelor of Veterinary Science degree in 2011. Dr Stewart examined the dog Poppy on 15/7/2020. Dr Stewart said the dog had a mild flea burden with some live fleas which might have built up over a few days to a week. Dr Stewart agreed that despite being treated for fleas, a dog will get more fleas if placed into an area where fleas are present. Dr Stewart accepted there are difficulties in eradicating fleas from a property that is 10 acres in size.
Anne Lyla Chester gave evidence via phone. Dr Chester is employed by RSPCA as Chief Veterinarian; having completed a Bachelor of Veterinary Science degree and with 33 years experience as a vet. On 3/6/2020 she examined and treated animals seized by Ms Barraud. She described the following:
·Great Dane Nala: Appeared thin, had a severe live flea burden with “stickfast” fleas which would take at least a couple of weeks to accumulate, extensive tartar on her teeth. The fleas were treated effectively. Dr Chester rejected the suggestion the majority of fleas on Nala were dead. Teeth were treated with a scale and polish under general anaesthetic, with no X-rays or extractions.
·Golden Retriever Cody: Appeared very thin, moderate flea burden accumulated over a couple of weeks up to a month, grade 3 dental disease with bad breath, plaque on his teeth, receding gums and some ulcerations; tested positive for gastrointestinal parasite hookworm, osteoarthritis in right hip due to hip dysplasia resulting in muscle wastage. Cody’s teeth were treated by scale and polish under anaesthetic. The hookworm was treated effectively. The osteoarthritis was treated with anti-inflammatory tablets and required pain relief.
·Chihuahua Pablo: Appeared thin, moderate flea burden present about a month, bad breath, missing teeth, grade 4 dental disease. The dental disease was significant, including: chronic gingivitis, receded gums exposing tooth roots, bone resorption, oronasal fistula due to tooth root abscess and infection, required removal of 18 teeth, had taken at least six months to develop, would have been obvious due to visible tartar, loose teeth and bad breath.
Dr Chester said treatment of dental disease requires cleaning of a dog’s teeth under general anaesthetic. She said Cody’s symptoms would have been present for at least a couple of months and should have been obvious. Dr Chester said treatments to prevent hookworm are readily available. She said that animals living on dirt might be more likely to acquire hookworm since hookworm can live in the ground. Dr Chester also said because hookworm can live outside of an animal’s gut it is sometimes necessary to retest a treated animal. She said RSPCA treatments were therefore monthly.
Regarding fleas, Dr Chester said “stickfast” fleas tend to attach themselves to a spot on the host animal rather than move around as other fleas do. Dr Chester said these fleas can stay attached to an animal for a little while after the fleas die. She said treatments are readily available to treat flea infestations and effective treatment might require multiple doses since the animals might be reinfected from their environment. Dr Chester accepted that turmeric was used as a treatment for arthritis and that some literature claimed it to be very beneficial as an anti-inflammatory.
Dr Chester said dog’s shelter requirements include room to move, soft bedding, clean water, and faeces removed from enclosures daily, depending upon the size of the enclosure. She said not all dogs will use bedding but should have the choice to do so. Dr Chester conceded it made sense not to provide soft bedding to a dog that did not use it but instead tore up the bedding and consumed it. Dr Chester said alternatives such as hammock beds could be used to keep dogs out of the dirt.
Dr Chester said numbing creams contain a local anaesthetic lignocaine, appropriate for use to reduce pain, for example when giving an injection. Dr Chester said the numbing cream was not designed for surgery since it did not penetrate through the subcutaneous layers of the skin. Dr Chester said use of a numbing cream prior to cutting with a scalpel to remove a lump from under skin would not provide adequate pain relief. Dr Chester said the extent of pain experienced by a dog depended upon a lot of things; including, the size of the wound, how quick an incision was made, and what lump was being removed. Dr Chester said there were no circumstances in which use of a numbing cream for a procedure to remove a lump from under the skin of an animal was a reasonable method for dealing with that issue. Dr Chester said a lump the size of a golf ball would require incision of at least an inch for extraction from under the skin and would be “significantly painful”. She said a lump the size of a pea would not be as painful and, if on the surface of the skin, use of a numbing cream may have provided some pain relief. Dr Chester accepted she made statements to the prosecution lawyers as recorded in a note from a conference, including:
There are numbing creams that are good but does not know if they would provide enough numbing…without knowing the type of numbing cream used, she cannot say if the dog would have felt pain. The pain would depend on the cream.
Dr Chester did not answer responsively the question “What if the numbing cream was applied to an open wound?”.
Shown photographs taken on 15/7/2020 of empty water vessels in pens, Dr Chester described the deeper pots as unsuitable for Chihuahuas to access water. Dr Chester accepted the photos did not show the entirety of the enclosures. Shown photos in Exhibit 11 (Summer, pen 1), Dr Chester acknowledged the enclosure appeared appropriate but could not comment upon its cleanliness. Shown photos in Exhibit 5 (pen 6, two Great Danes), Dr Chester observed the enclosure appeared small for two Great Danes but acknowledged if they were able to exercise out of the pen, it was otherwise suitable. She also observed there appeared lots of faeces of varying ages and rejected the suggestion that some of the patches were dead ground cover. Shown photos in Exhibit 8 (pen 7, two Golden Retrievers), Dr Chester observed the enclosure was suitable, accepted it was a very large area, but noted absence of bedding and a lot of faeces of different ages. Referred to photographs within Exhibit 8, Dr Chester conceded photo 95 did not show excessive amount of faeces, and photos 99 and 102 seemed to show faeces, but conceded some may be dead ground cover or pony droppings.
Asked about the dog Nala appearing underweight, Dr Chester conceded that may result from the dog feeding a large litter of pups. Dr Chester agreed Golden Retrievers love water and there was a likelihood of them transferring dirt or faeces into a water source. Dr Chester accepted some dogs defecate more than once or twice per day.
Concerning apparent discrepancy between consult notes regarding her examination of animals and a document itemising treatment of dogs for the purpose of calculating costs of their treatment, Dr Chester said she described, with reference to her notes, her best memory of treatment of individual animals, and she was not responsible for creation of the costs document.
Laura Jean Finigan gave evidence via phone. At the time of this investigation, she was employed by RSPCA. Ms Finigan attended the appellant’s residence on 3/6/2020 and examined animals and their living conditions. Ms Finigan observed dogs Pablo and Poppy in pen 1, which had a significant build-up of faeces, more than she would expect if the area had been cleaned regularly. She said both dogs had a moderate flea burden requiring treatment, Pablo had signs of dental disease, namely, discolouration of teeth, red and inflamed gums and putrid breath.
Ms Finigan observed dog Summer had a broken canine tooth requiring treatment. Ms Finigan regarded pen 6, which contained Great Danes Nala and Jigsaw, inappropriate due to prickles, a significant build-up of faeces, and no bedding nor toys. Ms Finigan said the prickles were uncomfortable to touch. She said both Nala and Jigsaw had a heavy flea burden, inflamed ears with a discharge, teeth discolouration and red inflamed gums. Ms Finigan observed Golden Retrievers Cody and Honey in pen 7, which had a lot of of faeces built up, no bedding, both dogs had a flea burden, discoloured teeth, and tartar build up. Cody had lack of muscle in his hind legs and shoulders. Ms Finigan said in none of her training or courses had she been advised turmeric was an appropriate treatment for arthritis. Ms Finigan acknowledged dogs were wearing flea collars and the appellant said she exercised the dogs outside of the pens.
Bronwyn Joyce Sharman gave evidence via phone. Dr Sharman was employed by RSPCA as a veterinarian, having completed a Bachelor of Veterinary Science degree and with over 20 years experience. Dr Sharman examined animals on 3/6/2020.
Regarding Great Dane Jigsaw, Dr Sharman observed a severe flea burden, built up over time. Dr Sharman said various treatment options were readily available for a flea problem, dependent upon the environment, and would take perhaps months to control in dirt, grass and vegetation, after a build-up. Dr Sharman was unable to comment whether the fleas were “stickfast” fleas, but her notes indicated when checked on 5/6/2020 fleas had died off as expected. Dr Sharman rejected the proposition that fleas are virtually impossible to eradicate from a large acreage, but accepted flea populations were season dependent.
Dr Sharman noted Jigsaw had discharge due to infection and inflammation in the external ear canal. Dr Sharman described this condition as “chronic” due to the narrowing of the ear canal, with the top layer of skin becoming thickened. Dr Sharman said those changes take time to develop which meant it was “a long-term infection…sort of a low-grade chronic infection leading to those effects”. Asked to give a time estimate, Dr Sharman said “I would usually be thinking something again, in the order of months. You know, a little bit variable depending on how severe the infection was.” Dr Sharman said usually the condition will be noticed because of the dog's behaviour or a smell or discharge from the ear. The condition was usually treated with topical ear drops, and in this case it was successfully treated with a standard treatment, namely a long-acting ear gel. Dr Sharman rejected the suggestion the “discharge” she observed may have been liquid ear drops used by the appellant as treatment. A blood test revealed Jigsaw was anaemic which Dr Sharman attributed to the flea burden. Dr Sharman said this condition was significant, borderline whether it required a blood transfusion, but resolved after successful treatment of the flea burden. Jigsaw also had dental disease, namely proliferative gingivitis, with overgrown gums due to chronic inflammation, which was of long standing, had developed over months or more likely years, and was expected to cause mouth pain. Dr Sharman acknowledged no pain medication was administered. Dr Sharman said the condition should have been obvious to a layperson. Dr Sharman said her notes indicated a scale and polish under general anaesthetic was performed by another person.
Dr Sharman examined Golden Retriever Honey and noted a severe flea burden which had accumulated over months. Testing revealed the presence of hookworm which are likely contracted from the environment and may proliferate in an area with a lot of faeces. Dr Sharman said this testing was for parasites in the dog’s stool, since eggs are passed in the stool and detected in a faecal float. Dr Sharman said preventative treatments for hookworm are readily available. Asked if an animal in receipt of regular treatment would contract hookworm, Dr Sharman said she had not seen it. She said Honey was successfully treated for this condition with standard treatment. Dr Sharman accepted an appropriate treatment for hookworm would include use of a product containing milbemycin. Dr Sharman also accepted that after treatment it remained possible for hookworm eggs to be detected in the dog’s faeces due to “larval leak”, or some residual eggs remaining. She said that was a reason to administer several treatments. Dr Sharman also seemed to accept that hookworm eggs in dog faeces may hatch, the worm then remain in soil and become a risk of infecting a dog that comes in contact with it.
Dr Sharman examined Golden Retriever Summer and noted a fractured canine tooth which had become necrotic, meaning the pulp at the centre of the tooth had died off, which indicated it occurred at least a couple of weeks before. Dr Sharman expected this condition would be painful in a human, but on examination saw little response from Summer, which made it difficult to assess pain. When challenged as to why no pain relief was administered but only an antibiotic, Dr Sharman said any pain would result from infection, so antibiotic treatment was aimed at the source of any pain. Dr Sharman did not say the fractured canine tooth was in fact infected. Dr Sharman said one option for treatment included root canal surgery to attempt to save the tooth root but due to cost a common alternative is extraction to prevent infection. Dr Sharman said she would regard the fractured tooth on its own as “dental disease”. Asked whether the fracture would be obvious to a lay observer, Dr Sharman said because the canine tooth is at the front of a dog’s mouth, “people will notice that, generally speaking”. Dr Sharman accepted Summer had no issues with her body score and said dental pain may not affect eating. Otherwise, Dr Sharman described Summer’s teeth having “very minor tartar and calculus, but not too bad”.
Dr Sharman examined Chihuahua Poppy and noted a severe flea burden, accumulated over months. Dr Sharman acknowledged treatment of animals was recorded in the RSPCA database. Dr Sharman said she referenced her clinical notes in describing examination and treatments of animals, she was not responsible for preparation of a schedule of associated costs and could not comment why various items were not included in the schedule.
Sheree Nikovic gave evidence via phone. Ms Nikovic was employed by RSPCA, previously as an inspector. Ms Nikovic attended the appellant’s address on 15/7/2020 with Ms Barraud. Ms Nikovic identified photographs she took that day depicting empty water containers, dogs and enclosures (Exhibit 23). When they arrived at the residence at 9-9.30am the appellant was dressed in pyjamas and said she had just gotten up. Ms Nikovic accepted the appellant said two dogs were in a pen purely for mating. Ms Nikovic expected to see moisture in the bowls had they been filled the night before but did not. Despite the suggestion the photographs showed water in a red dish, Ms Nikovic maintained her recollection was that it only contained dirt.
Elizabeth Alice Verhagen gave evidence. She lived at 34 Topaz Crescent, Lockyer Waters. Ms Verhagen said she had a lifetime of experience with both livestock and domestic animals, had voluntarily worked throughout her life with vets, and had enjoyed breeding animals. Ms Verhagen said she loved her animals, regarded them as her family, put their needs above her own, if she could not have them she would not have a reason to live, and having them helped her mental health. She said she knew her animals as children, would know if they were troubled in some way, and if so, would determine the problem and address it appropriately. Ms Verhagen said she was a member of Responsible Pet Breeders Australia and had a registered pet breeder identification number. Ms Verhagen said all her pups received comprehensive veterinary health examination prior to sale and were vaccinated and microchipped. She said while in her care all pups were treated for fleas and worms. Ms Verhagen produced copies of documents she provided to persons purchasing pups, namely, a caring guide and health guarantee; admitted as Exhibit 24. Ms Verhagen said in her experience vets did not always get it right regarding treatment of animals, so if she believed she was capable of dealing with an animal problem appropriately, she would do so.
Ms Verhagen said she moved to Queensland in 2007 from Victoria. She had no dealings with RSPCA in Victoria but acknowledged history with them in Queensland. Although warned that history was potentially prejudicial and of no consequence regarding the present charges, Ms Verhagen insisted upon its relevance. Ms Verhagen claimed the seizure of her animals only occurred because of that history, and maintained that without the seizure of animals, none of the present charges would have been laid. Ms Verhagen said the RSPCA came to her premises in 2011 and seized a number of animals without just cause. She said she initiated proceedings against RSPCA for return of the animals and in retaliation, she was charged with offences which were eventually dismissed. Ms Verhagen said RSPCA attended her property at times in the intervening years without seizing any animals or charging her with offences, until the present case. Ms Verhagen maintained her view that the present seizure of animals was motivated by her history with RSPCA and not any valid concern about the health or welfare of animals. Ms Verhagen insisted that since the RSPCA were obliged to return animals seized unless they charged some offence, the present charges were brought to justify the seizures.
Ms Verhagen acknowledged the attendance of RSPCA officers and police at her residence on 3/6/2020, arriving at about 8.45am. Due to her numerous health issues, Ms Verhagen usually arose around 10am. At that time Ms Verhagen had Golden Retrievers, a pair of Great Danes that had recently had pups, and several Chihuahuas which were also used for breeding. Ms Verhagen said her property was largely dirt due to drought and was affected by wind so that everything was covered in dirt and dust. Her water source was from tanks and animals were provided clean water at least twice per day and as needed. Ms Verhagen said through experience she was aware of the amount of water the animals required and was careful not to waste water by oversupply, since water would become dirty due to the activity of the animals or because of wind.
During the course of her evidence, Ms Verhagen produced a number of videos and photographs; including parts of Ms Barraud’s recording on 3/6/2020 and recordings Ms Verhagen made. The recordings/photos were admitted as Exhibit 27.[1] Ms Verhagen played the recording of her conversation with Ms Barraud on 3/6/2020 which had already been admitted as Exhibit 16. Other recordings were said to demonstrate the state of Ms Verhagen’s property and the prevalence of dirt and dust.
[1] The numbering of exhibits was corrected at the end of the evidence on 25/10/202; see transcript at 7 - 75-77.
Ms Verhagen said when RSPCA inspectors arrived on 3/6/2020 she had not yet fed or catered for her animals, meaning faeces had not been removed from enclosures since the day before and most likely water would not have been clean. Ms Verhagen said the RSPCA officers were present from 8.45am until 5pm and refused her requests that she be allowed to feed and water the animals during that time. She said the inspectors commenced a walk-through of her property and Ms Barraud was recorded telling Inspector Finnegan there would be no animal seizures. Ms Verhagen said Ms Barraud repeated that statement at other times during the day. Parts of Ms Barraud’s recording were played confirming Ms Barraud’s statements.
Ms Verhagen said at this time ground fleas were worse than ever due to drought conditions and it was impossible to eradicate fleas from the property. She said at times there were less or more fleas depending upon weather. Ms Verhagen said she was treating all dogs with various remedies for fleas. All dogs were bathed fortnightly with “Fido’s” flea rinse, received flea powder every second day, received a monthly topical flea treatment, and most were wearing flea collars. Ms Verhagen said her research found there was no flea treatment available to prevent fleas jumping from the ground onto a dog.
Ms Verhagen said a flea would die once it had bitten a dog that had been treated and would then fall off the dog, unless it was a “stick tight” or “stick fast” flea, which were the type present in the Great Dane enclosure. Ms Verhagen said the Great Danes did not have flea collars because they would continually chew them into pieces. As a consequence, she was spraying them every second day with products Permetrol and Nucidol, insecticidal sprays for control of fleas and ticks amongst other things. Ms Verhagen said the “stick fast” fleas attached to the dog with their mouth and stayed attached even though dead, before eventually falling off. Ms Verhagen played videos showing the treatments she described and also showing fleas on dogs were not moving. She maintained fleas observed by others on the Great Danes were all dead fleas, no footage showed the contrary, and the fleas were not causing the dogs discomfort. Ms Verhagen accepted that putting dogs in an area known to have fleas risked the dog getting fleas, however, maintained because it was impossible to eliminate fleas entirely from her property, she used multiple treatment methods. Ms Verhagen insisted it was not necessary to consult a vet for a dog with fleas. Ms Verhagen did not accept the claim that Honey and Cody had a heavy flea burden with live fleas. Ms Verhagen rejected the assertion Pablo and Poppy each had a significant flea burden. Ms Verhagen rejected the suggestion her treatment of fleas was ineffectual.
Ms Verhagen said pen 1 was behind the house and divided into 3 sections; the smallest measuring 6 square metres, was used for mating Chihuahuas. The other two areas were each approximately 35 metres square and much larger than the minimum space requirement stipulated for small Chihuahuas in the code of practice for keeping and breeding of dogs. She said the other enclosures for the Great Danes and Golden Retrievers were also much larger than the minimum required. Ms Verhagen said the large dogs were not confined in the pens all day but separately allowed the run of the whole property for at least an hour every day. Ms Verhagen said although the dogs had shelter in the enclosures, they often preferred to stay outside. Video of dogs playing in the rain was played in support of that claim.
Ms Verhagen acknowledged the need to provide bedding for dogs and accepted there was no bedding in the enclosures with the Great Danes and Golden Retrievers. She said that was because the dogs continually destroyed and ate any type of bedding she provided. Ultimately, she chose not to provide bedding on advice of a vet since the dogs eating the bedding created risk of an intestinal blockage. Video, taken after the welfare direction was given to Ms Verhagen, requiring she provide bedding, showed Great Danes destroying carpet lining placed in their enclosure, including the presence of that material in the dog’s faeces. Ms Verhagen pointed out bedding was provided to the Chihuahuas.
Ms Verhagen acknowledged a responsibility for an owner to pay attention to and look after a dog’s teeth. Ms Verhagen maintained that none of the dogs were behaving in a way that suggested they were suffering from dental disease or were discomforted by such a condition. Ms Verhagen said dental disease was a broad term which included stages starting with slightly inflamed gums and tartar build up. She said all dogs get tartar build up as a normal occurrence and she adopted methods to delay that happening, including providing dental chews, raw bones, and in the case of smaller dogs, chicken necks. Ms Verhagen asserted it was natural and unavoidable that an aged dog’s teeth would discolour and become brown but that was not a condition requiring treatment or the seeking of veterinary advice. Ms Verhagen also maintained a dog having bad breath did not mean any dental disease was present but might result from whatever the dog had eaten. Ms Verhagen said there was no evidence any of her dogs had bleeding gums, were irritable, were not eating or were drooling.
Ms Verhagen acknowledged Golden Retriever Summer had a broken canine tooth but maintained it was not causing the dog discomfort nor affecting her eating or chewing and therefore did not require treatment by a vet. Ms Verhagen noted the dog’s weight was good and she was behaving and eating normally. She said she pressed on the dog’s gum in the presence of Ms Barraud to demonstrate the dog was not in pain. Ms Verhagen said Dr Sharman’s evidence was the fracture of the tooth was recent and occurred in the previous 2 weeks. Ms Verhagen said Summer was aged 1 year 10 months, well short of when dental disease might occur. Ms Verhagen highlighted that if any of her animals were out of sorts, she would determine the issue and deal with it. In cross-examination Ms Verhagen said she could not recall when she learned of the fracture. The suggestion made in cross-examination that Ms Verhagen said earlier in her evidence she was aware of the fracture before 3/6/2020 was incorrect.
Ms Verhagen said Cody was aged 13 and it was natural therefore to expect he would have tartar build up on his teeth and his having bad breath was immaterial. Ms Verhagen noted the only treatment administered by RSPCA for Cody’s alleged dental disease was that his teeth were cleaned. She disputed that demonstrated any dental disease. Ms Verhagen acknowledged Great Dane Jigsaw had tartar build up and bad breath but denied he had inflamed gums or any dental disease or that she should have sought treatment with a vet. Ms Verhagen accepted Exhibit 19 was a photograph of Chihuahua Pablo’s mouth. She did not accept he had dental disease or that it was necessary to remove 18 teeth since his behaviour was normal and he showed no discomfort.
Ms Verhagen acknowledged a responsibility to be aware of and treat any ear infection a dog may suffer. Ms Verhagen said Great Dane Jigsaw had an ear infection she had been treating for about 10 days with antibiotic products Otiderm, which she sprayed inside the ears, and a tablet Flagyl, both of which she showed Ms Barraud on 3/6/2020. Ms Verhagen said this condition might take weeks to resolve. Ms Verhagen rejected the suggestion the infection had been present for months and her treatment was not working. She rejected the assertion she should have sought treatment of this condition with a vet and maintained a vet would have advised the very treatment she was providing.
Ms Verhagen said the average lifespan of Golden Retrievers is 11 years and dogs Cody and Honey were aged 13 and 12 years respectively. She acknowledged osteoarthritis was a condition that could not be avoided but could be managed with anti-inflammatory and pain medication when needed. She said because Cody and Honey were experiencing arthritis, she was giving them turmeric every day to address inflammation and pain. She acknowledged Cody had muscle wastage but said that was due to his age and inactivity. Ms Verhagen produced an article confirming the benefits of turmeric as an antioxidant with anti-inflammatory and anti-microbial properties. The learned acting Magistrate refused to admit the document as an exhibit but noted that Ms Verhagen questioned a veterinarian who acknowledged the use of turmeric as an inti-inflammatory treatment.
Ms Verhagen acknowledged an owner's responsibility to keep dog enclosures clean and free from build-up of faeces. She said she usually removed faeces from all dog enclosures daily. She acknowledged however, as she explained to Ms Barraud on 3/6/2020, she had not cleaned the Great Dane enclosure for several days due to her being physically and mentally unwell. Ms Verhagen said at that time she had no one to help her and said it may have been up to a week that pen remained uncleaned. Ms Verhagen maintained that given the size of the enclosure being over 200 square metres, significantly larger than the minimum 30 square metres, the amount of faeces present was not excessive. She rejected the assertion the build-up of faeces had accumulated over weeks. Ms Verhagen also acknowledged the pen housing Golden Retrievers Honey and Cody had not been cleaned the day before; this was due to a lengthy appointment with her psychiatrist and late arrival home. Ms Verhagen pointed to an entry on her calendar, photographed by RSPCA officers on 3/6/2020 (Exhibit 12), listing a psychiatric appointment on 2/6/2020 at 3pm. Ms Verhagen also maintained that pen 5, which housed 5 Golden Retrievers, did not have an excess of faeces present. She said the faeces present on 3/6/2020 resulted only from the dogs defecating during the previous evening, which was expected given they were fed late in the day. Ms Verhagen asserted the claim by Ms Barraud to have stopped counting faeces at 40 was not supported by the recording made that day.
Ms Verhagen accepted the importance of treating dogs for worms and acknowledged her instruction to buyers of new puppies consistent with that responsibility, as set out in Exhibit 24. She also accepted that infection could result from a dog having contact with faeces and the need therefore for enclosures to be cleaned of faeces. Ms Verhagen maintained she treated both Honey and Cody for hookworm about 2 weeks before 3/6/2020, which was confirmed by details recorded on the calendar photographed by RSPCA that day (Exhibit 12). Ms Verhagen maintained a dog could test positive for hookworm eggs in their faeces despite having been treated, since the treatment killed adult worms not their eggs. Ms Verhagen said that was why a monthly treatment regime was necessary, and she treated the dogs consistent with the spreadsheet of treatments she created.
Ms Verhagen produced a document, described as a spreadsheet of her treatment of her animals through 2020, which she created on her computer and updated every month or two during the course of that year. Ms Verhagen said the first half of the spreadsheet corresponded exactly with the pages of her calendar, photographed by RSPCA inspectors on 3/6/2020, and which were in evidence as Exhibit 12. She said the entries on the calendar were made to ensure she did not forget or otherwise miss doing things, including treating the animals, because her memory was so bad. She said the spreadsheet reflected a complete record of her treatments of all her dogs and was created for the purpose of keeping a record of the treatment regime for each dog. Objection was taken to admission of the spreadsheet document on the basis that since Ms Verhagen expressly disavowed her breeding of dogs was a business and instead insisted it was a hobby done for pleasure, the document was not a business record and did not meet the requirements for admission under s 93 of the Evidence Act. Counsel for RSPCA established in cross-examination of Ms Verhagen that at the relevant time she was not employed and was in receipt of a disability benefit. Ms Verhagen said she sold puppies at a market value dependent upon the breed and sold perhaps as many as 20 pups per year. Ms Verhagen said “you’re lucky if you break even” after accounting for the expenses involved. The learned acting Magistrate provisionally permitted the tender as Exhibit 25, subject to his ruling upon admissibility as part of his decision.
Ms Verhagen denied there were prickles in the Great Dane enclosure that were prickly or uncomfortable or that troubled the dogs. She maintained what was described as prickles was in fact ground cover which at times dies off but could not be eliminated. She produced what she said were samples of the prickles which she said proved it was not abrasive or prickly; admitted as Exhibit 26.
Ms Verhagen acknowledged being asked by Ms Barraud on 3/6/2020 about dog Cody as recorded in Exhibit 16. Ms Verhagen acknowledged she had no formal qualifications in veterinary science but maintained she had extensive experience in treating animals, had assisted vets performing procedures on animals many times, and herself performed minor procedures as permitted by vets. She said she believed she was capable of treating Cody’s lumps. Regarding this procedure, Ms Verhagen said Cody had open wounds, she applied the numbing cream to those wounds, she waited a period for the cream to activate, she touched the wounds and Cody did not react, she then removed the lumps. She said Cody did not show signs of any discomfort. She then dressed the wounds and put Cody on a course of antibiotics.
Ms Verhagen said on 3/6/2020 she told Ms Barraud of her significant health problems, including her needing psychiatric care. She said on 3/6/2020 Ms Barraud gave her a welfare direction regarding the animals, and she complied with that direction. She said Ms Barraud returned to her property to check her compliance with the direction on 10/6/2020 and 1/7/2020 at the pre-arranged times; accommodating Ms Verhagen who was a late riser due to her health. However, on 15/7/2020, despite a scheduled compliance check being arranged for 1pm, Ms Barraud arrived at 9am, Ms Verhagen was woken at that time, and over Ms Verhagen’s protests, Ms Barraud insisted she would proceed with her compliance check. Ms Verhagen complained she had not yet had opportunity to cater for any animals.
Ms Verhagen said she had given all dogs water the previous evening, in a quantity that experience told her was sufficient. Ms Verhagen said she had never previously found a water bowl empty the next morning and found it hard to believe there was no water as alleged. Ms Verhagen did not accept she failed to take reasonable steps to provide adequate water.
Ms Verhagen said Ms Barraud seized more of her dogs on 15/7/2020 as a result of the claim she had not complied with the welfare direction. Ms Verhagen said she later sought a review of the seizure decision with the Department of Agriculture and Fisheries and the seizure decision was overturned on the grounds there were extenuating circumstances. As a result, the dogs were returned. Ms Verhagen read from correspondence informing of the decision and sought to have a copy of the correspondence from the Department admitted as an exhibit. Objection was taken by counsel for RSPCA and the acting Magistrate declined to permit the tender on the grounds of relevance.
Ms Verhagen said after the seizure of animals on 3/6/2020 she was distraught. She was concerned there may be further seizures so devised a plan to sell her animals to her daughter Tiana Daniels. Ms Verhagen said she believed if the animals were owned by another person they could not be seized. To that end she created a bill of sale for each animal recording the sale to her daughter Tiana for the sale price of one dollar each. Ms Verhagen said her daughter transferred money to her accordingly. Ms Verhagen maintained this was done purely to attempt to prevent any further seizure of animals and she still regarded all of the animals as her own responsibility. She said she continued to care for the animals without any assistance from her daughter Tiana.
Jessica Myers gave evidence. Ms Myers is the daughter of the appellant. She said she was present on an occasion when the appellant cut two lumps from the dog Cody. Asked when this occurred, Ms Myers said “Quite a few years ago. It might have been back in 2018.” Ms Myers said she was visiting her mother’s place, and her mother asked her to assist. She said Cody had exposed lumps that he had been scratching. She said numbing cream was used on the wounds, and she had the dogs head on her lap while her mother cut the lumps out. Ms Myers said the dog did not appear stressed or worried in any way, was calm the whole time, his breathing was steady, and he did not flinch or whine. She said the wound was treated and dressed. Asked “Now, at the time, were the lumps subcutaneous, under the skin, or were they open wounds?”, Ms Myers replied “No, they were open”. Ms Myers acknowledged she had no formal qualification as a veterinarian or veterinary nurse.
Tiana Daniels gave evidence. She is the daughter of Ms Verhagen. She said her mother was an animal lover who devoted herself to the care of her pets. She said she had never witnessed any neglect in her mother’s care of animals. She said her mother’s animals loved her mother and were excited to be with her. Ms Daniels said she had never been a registered breeder or involved in breeding of dogs. She said her only involvement with her mother’s breeding of dogs was when a teenager and she helped out with admin, including advertising and communicating with potential owners. She was not involved in the care of the animals. She said on 3/6/2020 she was not living at her mother’s address but received a call from her mother and went to her residence around 11am. She said after the decision was made to seize animals her mother was distraught. Ms Daniels said after that day she moved back into her mother’s place, partly due to her concerns for her mother’s welfare. She said on the morning of 15/7/2020 she saw the dogs in the enclosures at the rear of the house. She said there were 2 Chihuahuas in a small pen for mating. She noticed they had water in their bowls at that time. She said she removed their coats before leaving around 8am. Ms Daniels rejected the suggestion there was no water in the dog bowls on that day and the bowls were completely dry.
In finding pen 1 unclean, His Honour said he did not accept the appellant’s evidence photos in Exhibit 2 do not show any faeces. Yet in giving reasons for finding charge 3 (complaint sworn 19/8/2020) proved, his Honour concluded the photographs of pen 1 were inconclusive such that there was a “lack of evidence regarding the build-up of faeces”. His Honour went on to conclude pen 1 was unclean due to dirt build-up, an allegation not made by the prosecution. For the reasons expressed above, I conclude it was not open to find the appellant guilty on the basis of this unparticularised allegation. I would find the allegation pen 1 was unclean has not been proved.
His Honour did not find either of pens 6 or 7 were of a size that was inappropriate. The evidence did not show those enclosures were under the minimum required. I too conclude that allegation was not made out. His Honour did find, consistent with findings regarding charge 7 (pen 6, Nala and Jigsaw) and charge 10 (pen 7, Honey and Cody), each of pens 6 and 7 were unclean due to build-up of faeces. I have expressed above my reasons for also concluding pens 6 and 7 were unclean due to build-up of faeces. Consistent with those findings I am satisfied beyond reasonable doubt the appellant failed to provide housing for dogs Nala, Jigsaw, Honey and Cody that was maintained in a clean state appropriate for their health and welfare, contrary to a compulsory code requirement. I would find this charge proved on that limited basis.
Charge 31 (complaint sworn 19/8/2020)
His Honour noted the prosecution conceded this charge had not been proved. The charge alleged the appellant breached a code of practice by providing dogs Twinkie, Chica, Shayla, Cadbury, Pixie, Pippa and Pappy unclean water. The acting Magistrate found the appellant not guilty of this charge.
Charges against Ms Daniels
Ms Daniels was charged conjointly with the appellant in respect of charges 26, 28 and 31. His Honour concluded, despite Ms Daniels purported purchase of the dogs, she was not their owner nor responsible for their care. Accordingly, his Honour found Ms Daniels not guilty of each charge.
As is obvious, in my opinion the appellant should be found not guilty of some of the charges of which she was convicted. In addition, the basis of her liability for some other charges is reduced below that found by the acting Magistrate. The appellant was placed on probation for a period of 18 months without recording of convictions. She has by now completed that part of the sentence. Given these features it seems to me appropriate I give the parties opportunity to be heard regarding sentence and any ancillary orders.
Orders
The orders of the Court are:
1. In respect of charge 3 of the complaint sworn on 1/7/2020, and charges 8, 14 and 15 of the complaint sworn on 19/8/2020, the verdicts of guilty are set aside and instead verdicts of not guilty are entered. The appellant is discharged in respect of those charges.
2. In respect of the appeals against conviction of charges 1, 10 and 30 of the complaint sworn on 19/8/2020, the verdicts of guilty are confirmed, subject to the factual findings as set out in these reasons.
3. In respect of charges 3, 7, 9, 13, 26 and 28 of the complaint sworn on 19/8/2020, the verdicts of guilty are confirmed.
I will hear the parties as to sentence and any ancillary orders.
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