Wilson v Barraud

Case [2021] QDC 223

DISTRICT COURT OF QUEENSLAND

CITATION:

Wilson v Barraud & Anor [2021] QDC 223

PARTIES:

GLENN JOHN WILSON
(Appellant)
v

MELISSA BARRAUD and DANIEL YOUNG

(Respondents)

FILE NOS:

D19/2021 (Toowoomba Registry)

DIVISION:

Appeals

DELIVERED ON:

15 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 May, 3 June 2021

JUDGE:

Barlow QC DCJ

ORDERS:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – defendant charged with offences under Animal Care and Protection Act 2001– defendant tried by way of summary trial – prosecution provided particulars of offences – defendant elected not to give evidence – magistrate convicted of 4 of the charges – magistrate in reasons applied principle from Weissensteiner v R – whether magistrate erred in application of Weissensteiner principle – whether particulars of offences proved – whether verdict otherwise unreasonable or insupportable having regard to the evidence.

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – defendant convicted after summary trial of 4 offences under Animal Care and Protection Act 2001 – defendant sentenced to period of imprisonment – defendant also ordered to pay costs to RSPCA under s 189 of the Animal Care and Protection Act 2001 – whether sentence of imprisonment manifestly excessive – whether order for costs under s 189 relevant consideration in sentencing.

ANIMALS – PREVENTION OF CRUELTY TO ANIMALS – OFFENCES – OTHER MATTERS – defendant convicted of offences under Animal Care and Protection Act 2001 – Royal Society for the Prevention of Cruelty to Animals (RSPCA) the prosecuting authority – RSPCA seized and cared for animals pending conclusion of proceedings – whether there is a discretion to order recovery of those costs – whether such an order is punitive or compensatory – whether costs ordered are a debt provable in bankruptcy.

Animal Care and Protection Act 2001, ss 17, 21, 182, 183, 189
Bankruptcy Act 1966 (Cth), s 82
Justices Act 1886, s 222

Braithwaite v O’Keeffe (Magistrate W J Smith, 20 November 2019), considered
Dart v Singer (unreported, Pack DCJ, District Court of Queensland, 11 December 2009), considered
Dart v Singer; Hajridin v Singer (Unreported, Durward SC DCJ, District Court of Queensland, 21 December 2012), considered
Harrison v President of the Industrial Court [2017] 1 Qd R 515, cited
Higgins, Re; ex parte Higgins (1984) 4 FCR 533, cited
House v The King (1936) 55 CLR 499, cited
Moore-McQuillan v Scott (2006) 149 FCR 486, applied
R v Doyle (2019) 3 Qd R 126, cited
R v Gaston [1971] 1 WLR 85, considered
R v Piccinato [2019] QCA 123, applied
R v Symss [2020] QCA 17, applied
RSPCA v Baskerville (Magistrate Kilmartin, 8 March 2019), considered
RSPCA v Trenear (Magistrate Bradford-Morgan, 3 July 2019), considered
Weissensteiner v R (1993) 178 CLR 217, considered

COUNSEL:

W A Seewald, for the appellant

K Gover, with her A C Braithwaite, for…

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Wilson v Barraud [2021] QDC 223
Case
[2021] QDC 223
Decision Date

CaseChat Overview and Summary

In the case of Wilson v Barraud, the appellant appealed against convictions and sentences imposed by a magistrate under the Animal Care and Protection Act 2001, concerning the treatment of several dogs found on the appellant's property. The primary legal issues addressed were whether the convictions were unreasonable or insupportable, and if the sentences were manifestly excessive. The respondents, acting on behalf of the Royal Society for the Prevention of Cruelty to Animals (RSPCA), prosecuted the case based on the condition of the dogs and related evidence.

The court examined the magistrate's application of the principle from Weissensteiner v R, considering whether the particulars of the offences were proven and if the verdict was unreasonable. The court also assessed the sentence imposed, including the imprisonment term and the order for costs to the RSPCA, to determine if they were manifestly excessive or inadequate. Additionally, the court considered the nature of the costs ordered, questioning whether they were punitive or compensatory and if they constituted a provable debt in bankruptcy.

The court concluded that the magistrate did not err in applying the Weissensteiner principle, as the appellant's failure to provide evidence made it difficult to support a hypothesis of innocence. The evidence presented by the respondents was deemed sufficient to support the convictions. Regarding the sentence, the court found that the magistrate's discretion was appropriately exercised, and the order for costs to the RSPCA was justified as a compensatory measure rather than punitive. Therefore, the appeal against both the convictions and sentences was dismissed.

The final orders of the court were to dismiss the appeal, affirming the magistrate's decisions on both the convictions and the sentences imposed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Insofar as the appeal is against the sentences imposed by the magistrate, this court’s approach must be different. In determining a sentence, the magistrate exercises a discretion. The result is that this court will not interfere with the sentence unless it discerns that the magistrate made an error of the types described in House v The King[10] in exercising that discretion.[10](1936) 55 CLR 499, 504-505; Commissioner of Police v Punchard [2021] QCA 166, [36].Background facts The (mostly[11]) uncontentious facts, as they were found by the learned magistrate, were as follows. Having reviewed the evidence, I am satisfied that they are correct.[11]The magistrate’s findings, referred to below, that scarring was consistent with dog fighting and that the appellant was in charge of three dogs, were contentious at trial but were not challenged on appeal. On 3 August, 2018, the respondents executed two valid warrants on the property where the appellant was residing, in Yalangur. In executing the warrants, five dogs were seized,[12] named “Beetle”, “Naughty”, “Chico”, “Jesus” and “Pretty Girl”, along with associated items such as collars and chains, photographs, mobile telephones and other paraphernalia. [12]Presumably pursuant to one of the powers in division 4, subdivision 4 of the Act. There is no issue about the validity of either the warrants or the seizure. Each animal was located in a different spot on the property and they were in various states of health.(a)Beetle was located tethered to a raised donga at the property, in which the appellant apparently resided. The raised nature of the donga meant that Beetle had access to some form of shelter, but it was (at the time of seizure) without access to food or water or appropriate bedding. Beetle was diagnosed with bacterial conjunctivitis after seizure.(b)Naughty was located in the tray of a utility vehicle on the property, untethered. Naughty, while energetic, was identified at seizure as being lame in the right hind foot.(c)Each of Chico and Jesus was located in a separate enclosure of bare dirt and rocks, with what the magistrate described as “a small amount of scattered straw and inadequate shelter.” Each of them was tethered by a heavy metal chain to an axle partly buried in the ground.[13] Chico was also diagnosed with bacterial conjunctivitis straight after seizure and Jesus was later diagnosed with the same disease. Both were found to have heavy scarring that the magistrate found to be consistent with participation in organised dog fighting.(d)Pretty Girl was located in a cage on the property and was also observed to have significant scarring that the magistrate found to be consistent with participation in organised dog fighting and inconsistent with pig hunting or unorganised fights.[13]The chain securing Chico was later weighed and was 2.05kg. The chain and collar securing Jesus together weighed 3.6kg. The magistrate determined that the appellant was in charge of each of Beetle, Chico and Jesus at the relevant times alleged by the respondents, the appellant having already admitted that Naughty was in his care. Appeal against conviction

Evidence

Evidence Before The Court

Subject to the next issue, this ground of appeal therefore also fails.The appellant’s failure to give evidence In determining the charges concerning Chico and Jesus, the magistrate relied, in part, on the appellant’s failure to give evidence about the manner and conditions in which he normally kept those dogs, as supporting the inference that the magistrate drew from the evidence before him, to the effect that he ordinarily (at least overnight) kept them in the conditions in which the respondents found them. In that respect, the magistrate said expressly that he relied on the principles established in Weissensteiner.[27][27]I shall discuss that case in dealing with charge 14. The appellant submitted that his Honour erred in that regard because the particulars of the charges did not specify how long the dogs were confined in that manner and location. In the absence of the period being specified in the particulars, the appellant could not know at trial what burden he might need to overcome by giving evidence, for example, of the circumstances in which the dogs were ordinarily kept by him. I disagree with that submission. The appellant knew that the charges relied, in part, on the allegation in the particulars that the dogs were chained for an unreasonable period of time. He heard the evidence on which the respondents relied. That evidence included his statement that he chained the dogs at night,[28] as well as other evidence about the dogs’ condition and locations that was consistent with prolonged chaining. On the basis of that evidence, there was no reasonable hypothesis consistent with the defendant’s innocence in the absence of evidence by the appellant that might give rise to such an hypothesis. The appellant’s failure to give any evidence of any such facts made it easier for the magistrate to accept the inferences that the respondents sought to have drawn from the evidence that they had called.[28]Although he did not say that he chained them in those enclosures: he appeared to say that they slept under the donga (the “same place” as Naughty slept). But on the morning of 3 August 2018 only Beetle was just near the donga, tied by a rope: trial transcript, day 1, T1-40:1-12; T1-46:34 to T1-47:3; exhibit 1. Chico and Jesus were in their respective enclosures. A reasonable inference was that they had been chained there overnight and that was what the appellant was alluding to. Accordingly, the appeal against conviction on charges 8 and 10 fails.Charge 14 - Failure to prove a circumstantial case The respondents’ case that the appellant had provided Pretty Girl for dog fights was entirely circumstantial, given that there was no direct evidence that he did so. The respondents relied on a number of pieces of evidence as leading to the inference that the defendant supplied her for that purpose and contended that, in the light of that evidence, there was no reasonable hypothesis in favour of his innocence. Furthermore, his failure to give evidence of any other explanation for her scars (which, the respondents contended, occurred while she was in the appellant’s charge), or about who, other than he, might have had charge of her over the relevant period, made it easier for the magistrate to be satisfied of the facts that the respondents submitted he could find based on the circumstantial evidence.

Decision

Reasons for decision

In my view, therefore, the magistrate made no error contrary to the appellant’s interests in deciding to order that the appellant pay the sum ordered in favour of the RSPCA.Conclusions The appellant has failed on each of his grounds of appeal. The appeal will be dismissed.

Ratio Decidendi

Legal Principle Established

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