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Supreme Court 17 December 2003

SONG v. CODDINGTON

[2003] NSWSC 1196

Also reported as 59 NSWLR 180
Other
CRIMINAL LAW

Citation: Song v Coddington [2003] NSWSC 1196; (2003) 59 NSWLR 180
Court: Supreme Court of New South Wales, Common Law Division
Date: 17 December 2003
Judge(s): Greg James J

Background

The plaintiff, Dr Song, was a veterinarian employed by the Australian Quarantine and Inspection Service (AQIS), a Commonwealth agency. On 25 April 2001, he performed inspection functions at Sydney International Airport, a Commonwealth place, in relation to a consignment of goats being prepared for export.

An RSPCA inspector charged Dr Song with eight offences under clause 5(1)(b) of the Prevention of Cruelty to Animals (General) Regulation 1996 (NSW). Each charge alleged that he, as a "person in charge" of the goats, had authorised their carriage in cages too low to allow the animals to stand upright.

A magistrate in the Local Court at Sutherland convicted Dr Song on all eight charges. Dr Song then appealed to the Supreme Court on questions of law, contending that the magistrate had misapplied the statutory definition of "person in charge" and had wrongly rejected arguments about the inconsistency of State law with applicable Commonwealth legislation.

  • Whether Dr Song, as an AQIS veterinarian exercising Commonwealth inspection functions, was a "person in charge" of the goats within the meaning of the Prevention of Cruelty to Animals Act 1979 (NSW) and the 1996 Regulation
  • Whether Dr Song had "authorised" the carriage or conveyance of the goats for the purposes of the Regulation
  • Whether the State Act and Regulation were inconsistent with Commonwealth export control legislation, engaging s 109 of the Constitution
  • Whether a separate constitutional immunity prevented State law from binding a Commonwealth officer performing official duties

Decision

Greg James J held that the magistrate erred in law in finding that Dr Song was a "person in charge" of the goats. His Honour's analysis turned on the proper construction of the s 4 definition in the Act, which includes the owner of an animal and any person who has the animal in their possession, custody, or under their care, control or supervision.

The Court found that the concept of "person in charge" requires a direct, physical relationship with the animals. The person must have the authority and ability to take positive steps affecting the animals' immediate physical circumstances, not merely a detached oversight role or a limited ancillary legal function. The s 4 definition, on the Court's construction, contemplates someone able to exercise ultimate responsibility or authority over an animal in its physical environment.

Dr Song's functions were those of a Commonwealth inspector conducting a statutory examination of the goats for export purposes under Commonwealth law. That role, the Court concluded, fell outside the statutory concept. Performing an incidental legal function in relation to animals is not sufficient to make someone a "person in charge" of them.

Having resolved the appeal on this basis, Greg James J declined to consider whether Dr Song had "authorised" the conveyance of the goats, and did not find it necessary to determine the constitutional inconsistency or immunity arguments raised by the Commonwealth and NSW Attorneys-General.

Orders Made

  • All eight convictions quashed
  • Each information dismissed

Key Takeaways

  • The Supreme Court confirmed that "person in charge" under the Prevention of Cruelty to Animals Act 1979 (NSW) requires a direct, physical relationship with the animal: the person must have authority and capacity to affect the animal's immediate physical circumstances, not merely perform a detached inspection or ancillary legal function.
  • A veterinarian conducting official Commonwealth quarantine and export inspections does not, by reason of that role alone, become a "person in charge" of the animals being inspected.
  • Under s 4 of the Act, concepts such as "supervision" and "care" are to be read as implying active, physical responsibility rather than passive or interested oversight.
  • Where a conviction fails on a fundamental element of the offence, a court need not resolve subsidiary constitutional questions, including potential s 109 inconsistency arguments or the immunity of Commonwealth officers from State law.
  • Because the offences were committed at Sydney International Airport (a Commonwealth place), the NSW Act and Regulation applied only by operation of the Commonwealth Places (Application of Laws) Act 1970, making consistency with Commonwealth law a live threshold question, even though it was ultimately unnecessary to decide.

Legislation and Cases Referenced

Legislation:
- Prevention of Cruelty to Animals (General) Regulation 1996 (NSW), cl 5(1)(b)
- Prevention of Cruelty to Animals Act 1979 (NSW), ss 3, 4
- Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4(1)
- Justices Act 1902 (NSW), s 104
- Export Control Act 1982 (Cth)
- Export Control (Orders) Regulations 1982 (Cth)
- Export Control (Animals) Orders 1987 (Cth)
- Judiciary Act 1903 (Cth), ss 78B
- Public Service Act 1999 (Cth)
- Constitution, ss 52, 109

Cases:
- Porter (2001) 53 NSWLR 354
- Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126
- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
- DPP v Brooks [1974] AC 862
- He Kaw Teh (1985) 157 CLR 523
- Dib (1991) 52 A Crim R 64
- Moors v Burke (1919) 26 CLR 265
- McKenzie v Administrative & Clerical Officers Association, Commonwealth Public Service (1962) FLR 342
- Bank of NSW v The Commonwealth (1948) 76 CLR 1
- Federal Commissioner of Taxation v ANZ Banking Group Ltd (1979) 23 ALR 480