Citation: [2008] NSWDC 342
Court: District Court of New South Wales
Date: 17 December 2008
Judge(s): Norrish QC DCJ
Background
The appellant was a cattle property owner at Bolivia, NSW, who faced 18 charges brought by the RSPCA (the respondent) as a private prosecutor. The charges arose from inspections of her property between September and November 2006. One charge under s 5(3)(c) of the Prevention of Cruelty to Animals Act 1979 (POCAA) alleged she failed to provide veterinary treatment for a heavy infestation of cattle lice affecting 37 head of cattle. The remaining 17 charges under s 8(1) POCAA alleged she failed to provide proper and sufficient food to individual cattle, each of which was said to be in an emaciated condition.
A Magistrate at Tenterfield Local Court found the appellant guilty on all 18 charges in January 2008, following hearings in August and November 2007. The appellant appealed both the findings of guilt and the penalties to the District Court at Armidale.
The District Court conducted a rehearing on the transcript, as permitted under the Crimes (Appeal and Review) Act 2001. The court also received some additional evidence, including evidence from the appellant's solicitor, which it admitted in the interests of justice.
Legal Issues
- Whether the Magistrate's findings of guilt on all 18 charges were supported by the evidence, including whether the prosecution had established its case beyond reasonable doubt on a circumstantial evidence basis
- Whether the Magistrate failed to properly analyse the evidence, including his rejection of expert veterinary evidence
- Whether there was latent duplicity in the charges
- Whether, in respect of the s 8(1) charges, a finding of guilt on one charge required dismissal of the others under s 34(3) POCAA
- What penalties were appropriate if any convictions were confirmed
- What costs were payable in respect of the Local Court proceedings, including the proper application of cost principles to a private prosecution
Decision
On the s 5(3)(c) charge (failure to provide veterinary treatment for lice): The District Court upheld the appeal and dismissed this charge. The court found the Magistrate's reasoning was deficient, including his rejection of the defence veterinary expert, Dr Krammy, on the basis that the expert had referred to the appellant by her first name. The court characterised that as a spurious ground for finding a lack of impartiality in an expert witness. On the evidence as a whole, the court was not satisfied the charge was made out.
On the 17 s 8(1) charges (failure to provide sufficient food): The appeals against the findings of guilt were dismissed. The court considered the evidence in respect of each individual animal and was satisfied the convictions were supported. However, the court quashed the fines and a moiety order that had been imposed at the Local Court, confirming instead the s 9 bonds (good behaviour bonds under the Crimes (Sentencing Procedure) Act 1999) and varying the s 31 POCAA order.
On the Magistrate's reasoning generally: The court found little assistance in the Magistrate's analysis. It observed there was substantial recitation of evidence but limited analytical engagement with key issues, including the credit of witnesses. The court effectively conducted its own assessment of the evidence on the rehearing transcript.
On costs for the Local Court proceedings: The court undertook a detailed line-by-line assessment of the costs claimed by the RSPCA as the private prosecutor. It disallowed travel time for lawyers, reduced solicitor rates to better reflect party/party costs, declined to allow witness expenses, and halved certain disbursements where both solicitor and counsel had attended on the day judgment was handed down. The court confirmed POCAA s 30A expenses of $5,388.76 and awarded total costs of $12,681 (inclusive of GST), on the basis of what was "just and reasonable."
Orders Made
- Appeal against the finding of guilt on the s 5(3) POCAA charge upheld; charge dismissed and consequent orders quashed
- Appeals against the 17 findings of guilt under s 8(1) POCAA dismissed; convictions confirmed
- Fines and moiety order quashed; s 9 bonds confirmed
- Section 31 POCAA order varied
- Costs for the Local Court proceedings awarded in the sum of $12,681 (subject to confirmation)
- Costs of the appeal reserved for further decision
Key Takeaways
- Rejecting expert evidence on the basis of perceived familiarity between an expert and a party (such as use of a first name) was found by the District Court to be a spurious and insufficient basis for finding a lack of impartiality.
- On a District Court appeal by rehearing under the Crimes (Appeal and Review) Act 2001, the court is not bound by the Magistrate's findings and may conduct its own assessment of the evidence, though the Magistrate's reasoning remains a relevant reference point.
- In a private prosecution for animal cruelty offences, costs awarded to the prosecuting body are subject to a "just and reasonable" standard, requiring careful scrutiny of claimed solicitor rates, counsel fees, travel time, disbursements, and whether dual attendance by solicitor and counsel was necessary.
- Under the POCAA, a s 31 supervisory order and a s 30A expenses order are distinct from fines and may be confirmed or varied independently of penalty orders that are set aside on appeal.
- Where 17 separate charges each concern a distinct individual animal, a court may assess each charge on the evidence relevant to that animal; no latent duplicity arises merely because much of the evidence applies generally across all charges.
Legislation and Cases Referenced
Legislation:
- Prevention of Cruelty to Animals Act 1979 (NSW), ss 5(3)(c), 8(1), 9, 30A, 31, 34(3)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 215(1)(a)
- Fines Act 1996 (NSW)
- Justices Act 1902 (NSW)
Cases:
- Charara v The Queen [2006] NSWCCA 244
- He Kaw Teh v The Queen (1985) 157 CLR 523
- DPP v Longshaw (1990) 20 NSWLR 554
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Pearce v The Queen (1998) 194 CLR 610
- Caltex Refining Company Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 553
- Ly v Jenkins (2001) 114 FCR 237
- Cachia v Hanes (1994) 179 CLR 403