AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 3 June 2003

Jack SMITH (NSW Department of Agriculture) v Kathleen DAY

[2003] NSWCCA 159

Other
CRIMINAL LAW CASE STATED FROM DISTRICT COURT REGULATORY OFFENCES WHERE CO MEANING OF "CAUSE" STOCK DISEASES ACT 1923

Citation: Jack Smith (NSW Department of Agriculture) v Kathleen Day [2003] NSWCCA 159
Court: Court of Criminal Appeal, New South Wales
Date: 3 June 2003
Judge(s): Spigelman CJ, Studdert J, Hidden J

Background

The respondent and her husband jointly operated a cattle property in the Kyogle district of New South Wales. On 1 February 2000, the two of them mustered, drafted, and tail-tagged six head of cattle together in preparation for sale. The following day, the respondent's husband transported the cattle to the Casino Saleyards by motor vehicle. One animal was found to be heavily infected with cattle tick, a disease regulated under the Stock Diseases Act 1923.

The respondent was charged in the Casino Local Court with causing infected stock to be moved contrary to s 20C(2) of the Act. She was convicted at first instance. On appeal, the District Court set aside the conviction, finding that the respondent had not personally moved the cattle and that no sufficient evidence established she had "caused" the movement within the legal meaning of that word.

The prosecution then sought a stated case to the Court of Criminal Appeal, submitting two questions of law arising from the District Court's reasoning.

  • Whether the District Court was wrong in law to find that the respondent had not "caused" the movement of infected cattle within the meaning of s 20C of the Stock Diseases Act 1923
  • Whether the District Court failed to give proper consideration to the meaning of "cause" in the relevant statutory context

Decision

Spigelman CJ, with Studdert J and Hidden J agreeing, held that the District Court had erred in law. The Chief Justice examined the principal Australian authority on "cause" in regulatory contexts, O'Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220, alongside Miller v Hilton (1937) 57 CLR 401 and South Australian authorities on permitting and causing.

The Chief Justice reasoned that the word "cause" in s 20C did not require the respondent to have directed or commanded her husband to move the cattle, nor did it require her to have exercised such dominance over him that he could be regarded as her instrument. The relevant question was whether she had procured or brought about the movement. Because the Act separately prohibits "permitting" movement, the word "cause" in this provision was at least as broad as, and not meaningfully narrower than, an authorising or permitting formulation.

On the facts, the respondent had participated in every preparatory step required to bring about the transportation: mustering, drafting, and tail-tagging the cattle, all done for the purpose of moving them. The Court found that the act of movement was the direct result of the joint activities of both co-owners. The respondent procured or brought about the movement alongside her husband, even though he alone conducted the physical act of transportation. Her participation in all preparatory steps, combined with co-ownership and the joint conduct of their farming operation, was sufficient evidence to support the original conviction.

The Court answered the first question "Yes" (the District Court was wrong in law) and found the second question unnecessary to answer.

Orders Made

  • Question 1 on the stated case answered: Yes
  • Question 2 on the stated case: Unnecessary to answer
  • The respondent was to have a certificate under the Suitors Fund Act if otherwise entitled

Key Takeaways

  • The word "cause" in a regulatory offence does not require proof that the defendant personally performed the prohibited act, nor that the person who did perform it was acting under the defendant's direct command or control.
  • Under s 20C of the Stock Diseases Act 1923, it is sufficient that the defendant procured or brought about the movement of infected stock, in the sense described by Rich J in Miller v Hilton: that the act came about as a direct result of the defendant's conduct.
  • "Cause" does not mean "sole cause." Where two co-owners jointly control all steps leading to the prohibited act, each may be found to have caused that act even if only one physically performed the final step.
  • Participation in preparatory conduct (mustering, drafting, and tail-tagging cattle for transport), combined with co-ownership and joint operation of a farming enterprise, constituted sufficient evidence of causing in this case.
  • The District Court of Criminal Appeal confirmed that the statutory distinction between "cause" and "permit" in the same provision informs the interpretation of each word, but does not narrow "cause" below the threshold of procuring or bringing about the prohibited act.

Legislation and Cases Referenced

Legislation:
- Stock Diseases Act 1923 (NSW) s 20C
- Criminal Appeal Act 1912 (NSW) s 5B
- Suitors Fund Act (NSW)

Cases:
- O'Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220
- Miller v Hilton (1937) 57 CLR 401
- Samuels v Centofanti [1967] SASR 251
- Bob's Place Sales Pty Limited v Barrington (1976) 12 SASR 566