Wilson v Royal Society for the Prevention of Cruelty to Animals (SA) Inc - [2016] SASC 107

Supreme Court of South Australia
(Magistrates Appeals: Civil)
WILSON v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2016] SASC 107
Judgment of The Honourable Justice Doyle (ex tempore)
28 June 2016
ANIMALS - VARIOUS STATUTORY PROVISIONS - PREVENTION OF CRUELTY TO ANIMALS - OFFENCES - CAUSING UNNECESSARY PAIN AND CRUELLY ILLTREATING - PARTICULAR CASES
A Magistrate convicted the appellant of one count of ill treatment of an animal, causing the death of that animal. In particular, the Magistrate found it proven that the appellant intentionally caused the animal in question unnecessary harm by shooting it in the head.
The appellant appealed on three grounds that in effect contended that the Magistrate erred in finding that the shooting of the animal was unnecessary in all of the circumstances.
Held per Doyle J, dismissing the appeal:
1. No error in the Magistrate’s approach or decision has been established.
Animal Welfare Act 1985 (SA) s 13(1), s 13(3)(a), referred to.
Bond v Royal Society for the Prevention of Cruelty to Animals (SA) Inc (2011) 109 SASR 149; Ford v Wiley (1889) 23 QBD 203, considered.

WILSON v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SA) INC
[2016] SASC 107
Magistrates Appeal
DOYLE J (ex tempore):

The appellant was convicted by a Magistrate of one count of ill treatment of an animal, causing the death of that animal, contrary to s 13(1) of the Animal Welfare Act 1985 (SA). In particular, the Magistrate found it was proven that between 16 and 18 February 2015 the appellant intentionally caused the animal in question, a black oriental cat, unnecessary harm within the meaning of s 13(3)(a) of that Act by shooting it in the head.
In this appeal against his conviction, the appellant relies upon three grounds of appeal:
1.   The Magistrate erred in that once he had found the appellant a witness of truth and accepted that he shot the cat believing it was a feral cat, and that it was necessary to do so in order to protect native animals on his property, it did not then follow for him to conclude that the shooting of the cat was unnecessary in all the circumstances.
2.   The Magistrate erred in finding that a reasonable person in the appellant’s position would have made further inquiries once they had genuinely and reasonably formed the view that the cat was feral.
3.   The finding of guilt was against the weight of the evidence.
Background
Subsection 13(1) of the Animal Welfare Act provides:
13—Ill treatment of animals
(1) If—
(a) a person ill treats an animal; and
(b)the ill treatment causes the death of, or serious harm to, the animal; and
(c)the person intends to cause, or is reckless about causing, the death of, or serious harm to, the animal,
the person is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 4 years.
Subsection 13(3) provides that, without limiting the generality of s 13(1), a person ill treats an animal if the person, inter alia, “intentionally, unreasonably or recklessly causes the animal unnecessary harm”.
The offence created by s 13(1) carries a maximum penalty of $50,000 or imprisonment for four years.
At the trial of these proceedings, the prosecution relied upon various agreed facts, together with two government publications (relating to the protection of cats and wildlife, and to the standard operating procedure for the shooting of feral cats). The agreed facts included that the appellant shot, killed and buried a male black oriental cat. The cat belonged to his neighbour. It was micro-chipped but it was not wearing a collar, and did not have any other external identification indicating that it was a pet.
The defence case was that the appellant shot the cat believing it to be a feral cat which represented a threat to the wildlife on his property, and in circumstances that meant it could not be established that the harm caused was unnecessary. The appellant relied upon affidavits sworn by his children, an environmental scientist and an immigration officer, who described in detail the history and circumstances of their property. He also relied upon various photographs.
The appellant also gave oral evidence which was to the following effect. The appellant is 63 years of age. He and his family have lived on the same five acre block at Ashton in the Adelaide Hills for close to 40 years. Over that time they have developed the block so that at the time in question it contained substantial native vegetation which had attracted native wildlife including birds, kangaroos, koalas, lizards and snakes. The appellant has a long-term interest in bushland and native animals. He has been involved in a number of programs over the years to eradicate introduced vermin, rabbits, foxes and the like. He was aware in general terms of the threat that feral cats posed to native wildlife and in particular birds (which were prevalent on his property).
The appellant had observed a number of cats over the years that had entered his property, and he had seen signs of what he believed was the destruction of native birds by those cats. He had identified three household cats over time because of collars that they wore with bells attached, and he had also seen other cats he believed to be feral because of the lack of any identifying marks.
In the lead-up to the alleged offending, the appellant was at home much of the time, and he observed the cat the subject of these proceedings on his property six to eight times. He ushered or shooed the cat off his property on occasions, and unsuccessfully set a trap. The cat in question had no identifying collar or other marks. It was on his property many times, and seemed to the appellant to be hunting. He therefore formed the view that it was a feral cat.
On the morning of the alleged offence, the appellant saw the cat in question twice before he shot it. On each occasion he ushered it off the property, or at least until it disappeared from sight and into the bushes. When the appellant shot the cat, he did so believing it was feral, given the absence of any external indications that it was a pet, and believing that it was necessary to do so in order to protect the wildlife and native animals on his property. The appellant buried the cat. When he was approached by the police he acknowledged shooting a black cat and agreed to dig up its remains and make them available. The remains were later shown to the owner who identified the cat in question.
The Magistrate saw no reason to doubt any of the appellant's evidence and thus accepted that evidence.
The Magistrate then referred to the photographic exhibits which showed the appellant's property in what the Magistrate described as a semi-rural environment. He noted the appellant's agreement that the distance between his house and that of the owner of the cat was about 100 metres. The Magistrate found that the appellant had made no attempt to contact the owners or any of the neighbours to ascertain whether they had a black cat, his reason being that he believed the cat to be feral.
The Magistrate referred to some provisions of the Dog and Cat Management Act 1995 (SA), and also the Native Parks and Wildlife Act 1972 (SA), which permit a person to destroy animals in certain circumstances. However, none of those provisions were said to be directly relevant to the determination of this case.
Turning to the critical issue of whether the harm inflicted by the appellant in this case was unnecessary for the purposes of s 13 of the Animal Welfare Act, the Magistrate reasoned:
Putting myself in the position as a reasonable person in the situation the defendant confronted when he shot the cat, and taking into account the defendant's knowledge at the time (and I should add it is probably clear the defendant holds a firearms licence and would appear to be a person familiar with firearms) the defendant took many of the steps that would be expected. He had tried to trap the cat. He had observed it on his property a number of times, apparently hunting before taking the action he did. He was aware of the potential threat to native birds possessed by feral cats. He believed the cat to be feral as it had no identifying collar or similar, and always seemed to be hunting. However, he was also aware that his neighbour's house was no more than about 100 metres from his. At the time he shot the cat it was not presenting any immediate threat to any native animal. In these circumstances I am satisfied that a reasonable person in the defendant's position would have made some enquiries of at least his near neighbours as to whether they owned a black cat, giving them the opportunity to prevent further intrusion onto his property before taking the final and irreversible step of shooting the cat dead. In this limited sense, I am satisfied beyond a reasonable doubt that in the circumstances of which the defendant was aware it was unnecessary to harm the cat by shooting it and I find the charge proven.
Consideration
There is significant overlap in the contentions advanced by the appellant in support of his three grounds of appeal.
The first contention focused upon the Magistrate's acceptance of the appellant's evidence that when he shot the cat, he did so believing it was feral and that it was necessary to do so in order to protect native animals on his property.
The appellant contended that it was an element of the offence that the appellant intended to cause unnecessary harm, and that based upon the evidence and finding referred to in the preceding paragraph of my reasons, this element was not established.
In my view, on a proper construction of ss 13(1) and (3), it was sufficient in the circumstances of this case to establish that the appellant intended to cause the death of the cat, and that this was unnecessary. Assuming an intention to cause the death of the cat, it was enough in my view that this was objectively unnecessary. It was not a defence to the charge that the appellant subjectively believed his actions to be necessary if they were objectively unnecessary. This approach is consistent with the obiter remarks of Duggan J in Bond v Royal Society for the Prevention of Cruelty to Animals (SA) Inc.[1]
[1] Bond v Royal Society for the Prevention of Cruelty to Animals (SA) Inc (2011) 109 SASR 149 at [19].
Next, the appellant challenged the Magistrate's finding that the appellant's conduct in causing the death of the cat was (objectively) unnecessary. In considering the content of the concept of unnecessary in this context, I consider the decision of Ford v Wiley[2] to be of some general assistance, although obviously each case will turn on its facts.
[2] Ford v Wiley (1889) 23 QBD 203 at 209-210, 215, 218-219.
The appellant emphasised the threat posed by feral cats to native animals. However, the Magistrate clearly took this consideration into account.
In concluding that the appellant's conduct involved “unnecessary” harm in response to that threat, the magistrate emphasised the absence of any immediate threat to any native animal.
The Magistrate reasoned that in those circumstances, in addition to the steps the appellant took to trap the cat, a reasonable person in the appellant's position would have made some inquiries of at least his near neighbours as to whether they owned a black cat, giving them the opportunity to prevent further intrusion onto his property before taking the final and irreversible step of shooting the cat dead.
In my view, this reasoning of the Magistrate was apposite, and sufficient to sustain the finding that the harm caused by the appellant was unnecessary.
I do not think this reasoning or finding is impugned by the fact that feral cats are not always easy to distinguish in their appearance from domestic cats, and that the cat in question did not have any external identification indicating that it was a pet. Despite the difficulty in determining whether the cat in question was in fact a feral cat, and indeed in part because of this difficulty, a reasonable person in the appellant's position would in my view have first taken the steps indicated by the Magistrate before shooting the cat. By failing to do so, the harm that was caused in this case was unnecessary.
For related reasons, I do not think it was an answer to the charge that the appellant formed the belief that the cat was feral, with the consequence that he did not believe it had an owner whom he could attempt to find. I consider this reasoning difficult to reconcile with the appellant's earlier submission that there was little difference in appearance between feral cats and their domestic counterparts. In my view, the Magistrate was correct to approach the matter on the basis that even accepting the appellant had a genuine subjective belief that the cat was feral, he ought reasonably to have made inquiries to satisfy himself of the same.
By acting in the manner he did, without taking these steps, I consider that the appellant did cause unnecessary harm to the cat.
Conclusion
For these reasons I do not consider that any of the grounds of appeal have been made out. I am not satisfied that the Magistrate erred in finding the charge proven. I dismiss the appeal.