Maddox Smith Staff asked 4 years ago

Problem Question

ASSIGNMENT PROBLEM Rhonda and Trevor run a ‘petting farm’ in a small country town. Trevor runs the business and Rhonda helps in the small café on site. It is something of a tourist attraction and they have a range of domesticated and wild animals on the property. Things have been going badly for them; they are struggling financially and one of their prize llamas, Muriel, has become sick. Trevor has noted a large lump on Muriel’s belly, and when he touches it, it makes Muriel appear uncomfortable. Trevor took Muriel to the vet, who said it was an abscess and that it needed to be lanced, and that would cost $250. Trevor asked what would happen if it was not lanced, and the vet said that it could become infected, it would become very painful and it could kill Muriel. The vet said there was an extremely remote possibility that the abscess would simply go away. The vet indicated that Muriel was probably already suffering from a fair amount of pain. Trevor asked if he could lance it himself. The vet said “Well, it’s your llama, but this is a surgical procedure, and should be done under anesthetic and sterile conditions, to avoid pain and infection. I suppose you might manage it, but the chances of a bad outcome are extremely high. I wouldn’t recommend it, but if you do plan to do it, make sure you have a painkiller for the animal and a sterile implement to lance the abscess.’ Trevor said he would go home and talk to Rhonda about it. Trevor did not purchase the expensive pain relievers that the vet suggested be given to Muriel in the meantime. Trevor did not want to worry Rhonda, so he did not tell her of the diagnosis; he told her ‘It’s a boil, and the vet said I can probably just lance it if it doesn’t get better soon’. Trevor decided he could not afford the vet’s fee, and decided to wait and see how Muriel got on. A week later Trevor could tell things were not going well with Muriel, and so he attempted to lance the abscess himself; Trevor bought some chemicals he believed would dull the pain and make the procedure sterile. He used a small knife which he held over a flame for a few minutes. A few days later the Council Ranger came to visit the property, having been alerted by a customer of the farm that there was a very sick llama with a large, red lump on its belly. When the Ranger attended she saw that Muriel was lying down, and was too weak to stand. Muriel’s belly had a very large, red, and obviously very sore lump on it with an open wound on one side of the lump. Trevor told the Ranger that Muriel had refused food for the last two days and that he had been planning to call the vet in that very day to deal with the issue. The vet was called but Muriel was so ill that he advised Trevor to euthanase her. The vet concluded that Muriel was dying of an infected abscess, which had poisoned her system, and that her death had been hastened by the procedure carried out by Trevor. While the vet was at the property, he noticed a few lambs with very red raw bottoms. He asked Trevor about this, and Trevor answered that this was the result of ‘mulesing’ the sheep, to ensure they didn’t get fly blown. Mulesing, explained Trevor, is a process of cutting the sheep’s skin around its bottom cheeks, and then pulling the wool growing skin off. This is done without anesthetic. The vet asked why Trevor did not have the sheep crutched more regularly, which is the process he was familiar with (that is, sheering the sheep in that area). Trevor said that many farmers adopt the practice of mulesing, it is a once and for all job, is thus cheaper, and doesn’t hurt the young lambs. The vet asked Trevor what training he had had to do this, and Trevor said he just looked it up on the internet. The vet later raised this with the Ranger, who came and checked on the state of the sheep. It was about a week after the mulesing and the lambs appeared fine. The Ranger researched the issue and discovered the following: • Mulesing is now accepted as being a practice that causes unnecessary pain to sheep, though they are usually fine about a week later • Wool producers around Australia have entered into a Code of Practice that prohibits mulesing. This Code came into effect in 2010 • There is no legislation in WA specifically prohibiting mulesing • There has been an intensive campaign of education to stop farmers adopting the practice • There remain farmers who undertake this practice ASSIGNMENT QUESTIONS a) In relation to Muriel, discuss whether Trevor has breached s 19(1) of the Animal Welfare Act 2002 (WA), including whether there are any defences he might successfully raise (15 marks) b) In relation to the lambs, discuss whether Trevor has breached s 19(1) of the Animal Welfare Act 2002 (WA), including whether there are any defences he might successfully raise (12 marks) c) Discuss whether Rhonda could be held liable for either of these potential breaches (8 marks) The only materials outside of the ones provided in this document that you can use in answering these questions are: – Any definitions you find in the Act itself (and which are not included here) – the relevant state interpretation legislation and – Dictionaries. I have deleted some parts of s 19 as I do NOT want you to consider them as they may confuse you. That does NOT means that all remaining parts set out below are relevant – you have to work that out yourself. Animal Welfare Act 2002 (WA) Part 3 – Offences against animals 19. Cruelty to animals (1) A person must not be cruel to an animal. (2) Without limiting subsection (1) a person, whether or not the person is a person in charge of the animal, is cruel to an animal if the person — ….. (c) intentionally or recklessly poisons the animal; ….. (e) in any other way causes the animal unnecessary harm. (3) Without limiting subsection (1) a person in charge of an animal is cruel to an animal if the animal — (a) is transported in a way that causes, or is likely to cause, it unnecessary harm; (b) is confined, restrained or caught in a manner that — (i) is prescribed; or (ii) causes, or is likely to cause, it unnecessary harm; (c) is worked, driven, ridden or otherwise used — (i) when it is not fit to be so used or has been over used; or (ii) in a manner that causes, or is likely to cause, it unnecessary harm; (d) is not provided with proper and sufficient food or water; (e) is not provided with such shelter, shade or other protection from the elements as is reasonably necessary to ensure its welfare, safety and health; (f) is abandoned, whether at the place where it is normally kept or elsewhere; …. (h) suffers harm which could be alleviated by the taking of reasonable steps; ….. (j) is, in any other way, caused unnecessary harm. … 21. Defence — veterinary care It is a defence to a charge under section 19(1) for a person to prove that the person was a veterinary surgeon, or was acting on the instructions of a veterinary surgeon, and was providing the animal with veterinary care in accordance with generally accepted veterinary practices. … 23. Defence — normal animal husbandry It is a defence to a charge under section 19(1) for a person to prove that the act alleged to constitute the offence was done — (a) in accordance with a generally accepted animal husbandry practice that is used in — (i) farming or grazing activities; (ii) the management of zoos, wildlife parks or similar establishments; (iii) the management of animal breeding establishments; or (iv) the training of animals; and (b) in a humane manner. … 25. Defence — code of practice It is a defence to a charge under section 19(1) for a person to prove that the person was acting in accordance with a relevant code of practice. … 28. Defence — where person in charge is not in actual custody (1) It is a defence to a charge under section 19(1) committed in circumstances described in section 19(3)(d), (e), (f) or (h) for a person to prove that the person — (a) is a “person in charge” by reason of paragraph (a), (c) or (d), but not paragraph (b), of the definition of that term; and (b) took reaso
nable steps to ensure that the animal would be properly treated and cared for. (2) It is a defence to a charge under section 19(1) committed in circumstances described in section 19(3)(d), (e), (f) or (h) for a person to prove that the person — (a) is a “person in charge” by reason only of paragraph (d) of the definition of that term; and (b) did not know, and could not reasonably be expected to have known, that — (i) the animal was at a place, or in a vehicle, owned or occupied by the person; or (ii) the animal was not being properly treated and cared for. ANIMAL WELFARE BILL 2001 EXPLANATORY MEMORANDUM The purpose of the Bill is to repeal the current Prevention of Cruelty to Animals Act 1920 and provide for a new modern Act to ensure that animals are properly cared for and protected. The key matters included in the Bill are as follows:- increased penalties for cruelty offences – a Trevorimum penalty of $50,000 and imprisonment for 5 years and a minimum penalty of $2000; new cruelty offences with appropriate defences for special circumstances. The key defences include:- i. normal animal husbandry; ii. stock fending for itself; iii. killing pests; iv. the use of devices prescribed in regulations; v. self defence; vi. veterinary care; vii. releasing animals into the wild; and viii. other practices authorized by law; other new offences dealing with the possession of devices for inflicting cruelty and releasing animals for the sport of hunting, shooting or fighting animals; new arrangements for infringement notices for minor offences; new requirements for the licensing of scientific establishments which conduct experiments on animals and businesses which supply such establishments with animals; new requirements for animal ethics committees at scientific establishments; new powers for the appointment of general inspectors and scientific inspectors; increased powers for inspectors to investigate cruelty offences; the Crown to be bound by the Act; and provisions to enable regulations to be made under the Fish Resources Management Act 1994 to deal with cruelty offences against fish. The Bill is divided into seven parts and the key provisions in each Part are briefly explained as follows. 2 PART 1 – PRELIMINARY This Part principally deals with: the binding of the Crown; the content and intent of the Act; and various definitions for the purposes of the Act. Definition of an “Animal” Under the legislation, an “animal” is defined as a live vertebrate, or any live invertebrate of a prescribed kind, other than a human or fish. The legislation specifically excludes both fish and pearl oysters from its operation. Under the current Prevention of Cruelty to Animals Act 1920, the expression “animal’’ is far more restrictive and only means any domestic or captive animal. Therefore, more animals will be covered by the new legislation. Fish related cruelty offences will be controlled under the Fish Resources Management Act 1994. This will provide for Fisheries inspectors to police fish related cruelty offences which may be set out in regulations under that Act. PART 3 – OFFENCES AGAINST ANIMALS This Part deals with: offences for acts of cruelty to animals; legal defences against a charge of cruelty; and other activities involving animals that are prohibited under the Act. Cruelty to animals The legislation expands the range of cruelty offences contained in the current Prevention of Cruelty to Animals Act 1920 and also provides for more specific cruelty offences to be included in regulations. Under the Bill, a person will be cruel to an animal if that person: tortures, mutilates, maliciously beats or wounds, abuses, torments, or otherwise ill-treats, the animal; transports the animal in a way that causes, or is likely to cause, the animal unnecessary harm; confines, restrains or catches the animal in a manner that is prescribed; or causes, or is likely to cause, the animal unnecessary harm; works, drives, rides or otherwise uses the animal when it is not fit to be so used or has been over used; or in a manner that causes, or is likely to cause, the animal unnecessary harm; fails to provide proper and sufficient food or water for the animal; 4 fails to provide such shelter, shade or other protection from the elements as is reasonably necessary to ensure the welfare, safety and health of the animal; abandons an animal; uses a prescribed inhumane device on the animal; intentionally or recklessly poisons the animal; carries out a prescribed surgical or similar operation, practice or activity on the animal; does any prescribed act to, or in relation to, the animal that causes harm; or in any other way causes the animal unnecessary harm. In addition, the penalty imposed on individuals for cruelty has been greatly increased to a minimum of $2,000 and a Trevorimum of $50,000 and imprisonment for 5 years. Defences against cruelty The legislation sets out a number of circumstances under which there is a defence against cruelty. For example, it is a defence for a person to prove that he or she acted in accordance with a generally accepted animal husbandry practice used in a farming or grazing activity; or in the management of zoos, wildlife parks, similar places or animal breeding establishments or training of animals; and in a humane manner. This defence is intended to ensure that animal husbandry practices that remain accepted in the community and are used by a wide sector of the relevant community do not attract liability. Similarly, it is a defence for a person to prove that the person was a veterinary surgeon, or was acting on the instructions of a veterinary surgeon, and using generally accepted veterinary practices. Other important defences are: the person was protecting a person or another animal from attack (unless the animal was being used for law enforcement purposes); the person’s actions were authorised by law; the person was killing pests; the person was acting according to a relevant code of practice; the person allowed stock to roam on a pastoral property and to fend for itself where the property was reasonably capable of sustaining the animals; the person was releasing fauna back into the wild; the person did not actually have responsibility towards an animal in certain cases; the person was authorised to use a restricted device or was using the device in an authorised manner; and the person performed an authorised surgical operation in an authorised manner. Possession of things intended to inflict cruelty The legislation forbids the possession of devices capable of being used to inflict cruelty, except under prescribed circumstances. Regulations prescribing these circumstances will be developed to support the Act. Shooting, hunting or fighting captive animals It will be an offence to release captive animals for the sport of hunting, chasing or killing them. Also, allowing captive animals to fight with each other will be included in the offence. Any person who takes part in, spectates at, organises, promotes or keeps animals for such purposes will commit an offence. ANDERSON -v- MOORE [2007] WASC 135 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : ANDERSON -v- MOORE [2007] WASC 135 CORAM : JENKINS J HEARD : 21 MAY 2007 DELIVERED : 22 JUNE 2007 FILE NO/S : SJA 1118 of 2006 BETWEEN : WILLIAM BROWN ANDERSON Appellant AND ROBIN EDWARD MOORE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE K T FISHER Catchwords: Criminal law – Appeal against convictions for animal cruelty – Alleged errors by the Magistrate in the application of relevant statutory provisions Legislation: Animal Welfare Act 2002 (WA), s 19(1), s 19(3)(h), s 21 Result: Appeal dismissed Representation: Counsel: Appellant : Mr T Lethbridge Respondent : Mr J C W Skinner Solicitors: Appellant : Kott Gunning Respondent : Jackson McDonald Case(s) referred to in judgment(s): Nil J
ENKINS J: The decision under appeal 1 The appellant appeals from his convictions on prosecutions notices numbered MJ 405/04 – 410/04. Each of the six charges alleged that between 28 April 2004 and 1 July 2004 the appellant, being a person in charge of an animal, namely a sheep, was cruel to the animal as it suffered harm which could have been alleviated by the taking of reasonable steps contrary to the Animal Welfare Act 2002 (WA) (“the Act”), s 19(3)(h). 2 On 17 November 2006 a Magistrate convicted the appellant of each offence, imposed a global fine of $25,000 and ordered him to pay costs of $3,929. There was a further order made prohibiting the appellant from being in charge of sheep for 10 years. 3 On appeal, the appellant contends that the Magistrate erred in finding the charges proven. I dismiss the appeal. Grounds of appeal 4 There are three grounds of appeal which state: “1. His Honour Magistrate Fisher made an error of law in that he used the wrong test in determining whether the charges had been proved – specifically, he relied on the Defendant’s ‘uncaring attitude’ towards the relevant animals, notwithstanding that this is not an element of the offence, and is not sufficient to find the Defendant guilty of the offence. 2. His Honour Magistrate Fisher made an error of fact and law in that he failed to consider whether the Defendant had taken ‘reasonable steps’ to alleviate harm to the animals pursuant to Section 19(3)(h) of the Animal Welfare Act 2002 – specifically, by failing to consider whether the Defendant’s adherence to the advice of Dr Brighton constituted ‘reasonable steps’. 3. His Honour Magistrate Fisher made an error of fact and law in failing to consider the defence of ‘veterinary care’ pursuant to Section 21 of the Animal Welfare Act 2002.” The proceedings before the Magistrate 5 On 29 June 2006 the appellant appeared before the Magistrate, having previously indicated pleas of not guilty, and a trial ensued. The trial was heard over three non-consecutive days. 6 The respondent called three witnesses who were: 1. Mr Andrew James Norris, a ranger with the Busselton Shire who inspected the appellant’s sheep whilst they were on the property of a Mr Christiansen; 2. Ms Linda Jane Weissenberger, a general inspector with the RSPCA who inspected the appellant’s sheep which were then on his own property on 1 July 2004; and 3. Dr Kamahl Campbell, a veterinarian who accompanied Ms Weissenberger to the appellant’s property and inspected his sheep. 7 The appellant made an unsuccessful submission that there was no case to answer. He then gave evidence and called: 1. Dr Peter Glen Brighton, a veterinarian who inspected the appellant’s sheep at the appellant’s request in March 2004 when they were on Mr Christiansen’s property; 2. Mr Norman Thomas Wells, the appellant’s employee who assisted him to feed the sheep; and 3. Mr Noel Desmond Holsworth, the appellant’s neighbour who assisted him to feed the sheep. 8 The factual background, which is now substantially not in dispute, is that in January 2004 the appellant acquired a number of sheep in partnership with a second man. The co-owner died shortly thereafter leaving the appellant as the sole owner of approximately 400 sheep. 9 The appellant owns a 300 acre property at Bridgetown on which he was living at the relevant time. He also owned a business in Bridgetown which involved him working five days a week and Saturday mornings. On his property he usually ran cattle and managed them with the assistance of his employees from his town business or Mr Wells. 10 The appellant relocated the sheep to Mr Christiansen’s property in Catterick. On 23 January 2004 the appellant arranged for the sheep to be shorn. He said that the sheep were drenched at the same time. 11 On 29 March 2004 Mr Norris, who was an inspector under the Act, received a complaint relating to the condition of the appellant’s sheep. That afternoon he attended Mr Christiansen’s property and inspected the sheep. He estimated that there were about 300 sheep and lambs. Mr Norris found two sheep which were emaciated, barely breathing, had nasal discharges and were unable to stand. He destroyed both of them. He also noted some sheep carcasses. Mr Norris returned to Bridgetown and purchased three bags of oats. He returned to the property and fed the sheep. The sheep rushed to where the oats had been trailed out onto the ground. Three sheep fell as they ran to get the oats and were unable to get up without assistance. 12 On 30 March 2004 Mr Norris went to the appellant’s business and spoke to him. The appellant stated that the sheep were in a better condition now than when they had come into his possession. Mr Norris gave the appellant verbal directions that he was to feed the sheep at least six bags of oats per day whilst they were agisted on Mr Christiansen’s property. 13 On 31 March Mr Norris re-attended Mr Christiansen’s property. He checked the sheep and picked up a lamb which had collapsed. He took the animal to the appellant and noted that he did not appear perturbed by the condition of it. On leaving the appellant, Mr Norris hand fed the lamb and this appeared to give it some strength as it was able to stand again within about 30 minutes. 14 On 1 April after receiving advice from the RSPCA and a vet, Mr Norris spoke to the appellant about having the sheep examined by a vet. The appellant agreed but requested that the inspection be carried out by Dr Brighton, his friend and the vet he usually consulted about his livestock. 15 On 2 April Mr Norris again inspected the sheep in company with a police officer. He observed that if the sheep were moved or forced to run some were so weak that they fell and were unable to get up without assistance. It was agreed that no further action be taken until after the veterinary inspection. 16 On 6 April 2004 Mr Norris and the appellant were present when Dr Brighton carried out an inspection of the sheep. There are some inconsistencies between the witnesses as to what occurred during the inspection. Mr Norris said that Dr Brighton looked at the animals from about 20 metres away. However, Dr Brighton testified that he physically inspected a number of sheep. It is possible that this occurred when Mr Norris went to look at some sheep or carcasses which were in another spot on the property. 17 According to Mr Norris, Dr Brighton asked the appellant when the sheep had last been drenched and the appellant told him that they had been done before he acquired them. Mr Norris recalled Dr Brighton saying that the sheep were not in “great condition”, that they needed to be fed six bags of oats per day as a minimum and that mineral blocks containing trace elements should be placed under the trees where they could find them. He did not recall Dr Brighton saying that the sheep should not be moved. 18 Dr Brighton gave evidence that on 6 April he walked through the sheep and he had a good look at them. He estimated that there were about 400 sheep. He said that the sheep were what are known as “cull” sheep because they were sheep which were usually sold because they were a problem. He estimated that the sheep were of a very poor type and about 30 per cent of the ewes and lambs in the mob were in poor condition, but were still on their feet and grazing. This meant that using the body scoring system for sheep they scored three out of 10. He said that he examined several ewes and several lambs in the tail of the mob. His conclusion was that in all cases they had healing lung lesions and encrusted puss on the nose. This indicated to him that they were recovering from pneumonia. Dr Brighton took dung specimens for the purpose of doing a worm count. The results were, in respect to two combined samples, 150 and 200 eggs per gram, respectively. 19 Dr Brighton’s opinion was that the sheep were getting over a bout of pneumonia. He did not believe that they were heavily worm-infested. He said that he advised the appellant to feed the sheep four bags of oats or more per two days, to provide them with trace mineral blocks of salt and not to move the sheep. Dr Brighton also advised the appellant not to drench the s
heep until their condition had picked up. He said that the aim was to drench them again in June to August when their condition had improved and they could safely be moved. 20 The following day the appellant told Mr Norris that he was feeding the sheep at least every second day. Mr Norris asked the appellant to place the sheep’s feed in troughs or on sheets of iron. Mr Norris said the appellant became aggressive and essentially refused to do so. He complained that he did not have the time and that he had to feed his cattle on his own property by hand as his bobcat had broken down. The appellant testified that at this stage he did not believe that there was “a problem to be really concerned about”. 21 On 7 April 2004 Mr Christiansen rang Mr Norris and informed him that he had counted 23 or 24 sheep carcasses in or near Hester Brook that ran through his property and that he was concerned due to the potential for pollution and disease. 22 The appellant testified that after Dr Brighton’s visit he and Mr Wells fed the sheep with oats and lupins at intervals that were no more than three days apart. 23 On 10 April 2004 some neighbours, apparently upset at the condition of the sheep, drove the sheep to the appellant’s property. The appellant testified that the first he knew about that was when he looked out his kitchen window and saw the sheep in his paddocks. 24 Once the sheep were on the appellant’s property he fed them with hay he had previously cut. He said, initially, there was no rain and all the sheep were getting to eat was what he fed them in the afternoon. Often he fed them in the dark. He later said that he fed the sheep oats a few times a week during the day. He said he was “getting sick” of going out in the day to do this. He acknowledged that once the sheep arrived at his property he put them on, what he described as, a “maintenance diet”. The implication being that he fed them less after they arrived at his property. The appellant said that approximately one month after the sheep arrived at his property he drenched them with a white drench, the name of which he had forgotten. He said that the sheep were sometimes harassed and mauled by a neighbour’s dog. Consequently, he and Mr Wells had to kill a few injured sheep that could not walk. 25 The appellant also testified that the sheep were in “fair condition” when they arrived at his property but did not gain weight afterwards. When asked his opinion as to why they did not, he said that the sheep were on a “maintenance ration” not a “fattening ration”. He testified that this was what you put sheep on when “you want to maintain their body condition. He further explained that the purpose of a maintenance ration “is to keep them going till the grass comes”. The appellant said that the grass did not start growing until well into June. He believed that a maintenance ration was consistent with what Dr Brighton had directed. 26 After the sheep arrived at his property the appellant did not arrange for Dr Brighton to examine the sheep although the appellant testified that he asked Dr Brighton about the sheep “now and again”. Dr Brighton did not say that he was asked to or gave the appellant any advice about the sheep after they were moved to the appellant’s property. The Magistrate found that the appellant did not ask Dr Brighton to examine the sheep after they arrived at his property. This finding is not challenged on appeal. 27 On 28 June 2004 Ms Linda Weissenberger, then an inspector with the RSPCA, received a complaint about the poor condition of the sheep. 28 On 1 July 2004 Ms Weissenberger visited the appellant’s property. She saw six fresh sheep carcasses on the property. She also saw six sheep which either were too weak to get up or fell whilst she was inspecting the mob and then were too weak to get up. She took photographs of the six sheep that were unable to walk. These six sheep are the subject of these charges. Ms Weissenberger also took photographs of the fresh sheep carcasses and took a video of the sheep. The photographs and video were in evidence. As it is not in dispute that the six sheep the subject of the charges were suffering harm at the time Ms Weissenberger saw them, it is unnecessary for me to go into detail of Ms Weissenberger’s evidence about that issue. It is sufficient for me to say that Ms Weissenberger noted that the sheep were in poor condition. Some had a discharge from their noses, their gums were pale and they were scouring. One of the sheep appeared to have a prolapse under its tail. She noted that some of the sheep which were unable to get up had dug up the ground underneath their legs indicating to her that they had been struggling to get up for some time. She noted that other sheep in the mob were visibly weak. 29 Ms Weissenberger then contacted Dr Campbell, a local veterinarian. He attended at the appellant’s premises. He inspected the sheep. The six sheep were euthanized on the advice of Dr Campbell. 30 As Ms Weissenberger and Dr Campbell were looking at the sheep, the appellant arrived at the scene. He became agitated at the presence of Ms Weissenberger and Dr Campbell and their comments to him about the condition of the sheep and a horse which was also on his property. 31 The following day Ms Weissenberger met the appellant and they had a conversation. Relevantly, Ms Weissenberger said that the appellant told her that when he came into possession of the mob of sheep they were in poor body condition. He said that they were all shorn and worm drenched when he bought them and that they had not been drenched since then although he planned to drench them during the coming weekend. When asked how long the sheep had been dying, the appellant told her that it was over the last few days. She asked the appellant what the sheep were being fed and the appellant told her that the sheep had not been fed for the last three weeks as there was enough ground feed. He said that he had been feeding the sheep two big rolls of hay per day and 200 grams of oats or lupins every second day although the sheep had had no oats for five to six weeks. 32 The appellant told Ms Weissenberger that the sheep had begun to pick up at Mr Christiansen’s property. He said that after the sheep were moved to his property they did not pick up although none had died. The appellant told Ms Weissenberger that the last time he had checked the sheep was the previous Tuesday after he had heard that the ranger had been out and that he normally checked the sheep every Saturday afternoon. When Ms Weissenberger asked the appellant what he believed the sheep were dying of the appellant said that it was Barbers Pole Worms. 33 Dr Campbell gave evidence, consistent with Ms Weissenberger’s evidence. He also gave evidence as to the autopsy findings in respect to one of the sheep which was euthanized. 34 In respect of the six sheep the subject of the charges Dr Campbell said that the sheep were exhibiting signs of profound weakness, ranging from an inability to walk (though able to stand) to an effectively comatose state. All were in an extremely poor body condition. Three of the sheep had evidence of recent diarrhoea and one had a rectal prolapse. All of the animals had pale mucus membranes. Analysis of faecal samples taken from three of the animals showed considerably high worm egg counts and coccidian oocytes counts. Coccidiosis, is another parasite which can infect a sheep’s intestine with sometimes a serious effect on its health. 35 Dr Campbell said that the sheep which was autopsied was in extremely poor body condition with virtually no body fat. The gastro-intestinal tract contained very little solid food material. 36 Dr Campbell stated: “Taken as a whole, the clinical appearance of the animals and laboratory and post-mortem findings were indicative of chronic energy deficiency, most likely due to inadequate food intake, exacerbated by an internal parasite burden. All of the animals affected have clearly had their welfare avoidably compromised and, in my opinion, have suffered preventable harm. Most of the animals examined had reached a stage of physiological damage such that, even with appropriate t
reatment, they would have died anyway.” 37 Dr Campbell said that none of the six sheep he examined showed signs suggestive of pneumonia. 38 In cross-examination, Dr Brighton was asked to comment on the photographs and video taken by Ms Weissenberger. It is not possible to accurately determine from the transcript what part of the photographs or video the vet is referring to when he makes various comments. In general, Dr Brighton said that there were some sheep he saw in the video which were in good condition and some which were in very poor condition. After he had seen a portion of the video which was described to him as having some carcasses, two sheep which were alive but peddling their feet and another sheep that had gone over a log and obviously collapsed, he was asked whether this was the same condition as the sheep he saw when he examined the sheep in April. His reply was that he never saw any sheep like that in April. 39 Dr Brighton thought that the level of coccidian oocytes was very relevant and indicated that the sheep may well have been severely infested with coccidiosis. A condition which he regarded as difficult to diagnose and treat. 40 The appellant gave evidence disputing the alleged conversation with Ms Weissenberger. He denied having seen the six carcasses or the six euthanized sheep at any stage or being told about them. The appellant testified that he had drenched the sheep in June. Grounds of appeal Ground 1 41 The Act, s 19(1) and s 19(3)(h) state: 19. Cruelty to animals (1) A person must not be cruel to an animal. Penalty: Minimum – $2 000. Trevorimum – $50 000 and imprisonment for 5 years. … (Page 11) (3) Without limiting subsection (1) a person in charge of an animal is cruel to an animal if the animal – … (h) suffers harm which could be alleviated by the taking of reasonable steps; …” 42 The first ground of appeal alleges that the Magistrate found the offences proven because the appellant had an uncaring attitude towards the sheep, rather than because he found the elements of the offence had been proven. The appellant relies upon the Magistrate’s comments where he said: ” … In my view, he was simply going through the motions. In my respectful view, and I’ve had the benefit here of hearing all the evidence, this accused took an uncaring position in respect of these animals.” 43 Later, in his reasons the Magistrate said: “It would suggest to me in all the circumstances that this uncaring attitude, in all the circumstances, compromised these animals. I find as a fact that the animals were suffering harm which in all the circumstances, could have been alleviated by the taking of reasonable steps. Those steps were not taken.” 44 The parties agree that there is no subjective element of the offence. Thus, the appellant says that the Magistrate’s finding that the appellant was “simply going through the motions” is irrelevant. The appellant says that the Magistrate was obliged to make findings as to whether those motions amounted to “reasonable steps”. Further, he submits that the finding of an “uncaring attitude” was an irrelevant factor and the Magistrate thus made an error of law which has resulted in a substantial miscarriage of justice. 45 The respondent submits that after finding that the appellant was in charge of the sheep and that in the relevant period the sheep the subject of the charges suffered harm (findings not challenged on appeal) the Magistrate correctly identified the remaining issue as being: “Whether or nigh in the circumstances as presented to this [appellant], he took such steps as would be necessary to alleviate the harm that was self-evidently being suffered by these animals.” 46 Apart from the use of the word “necessary” as opposed to the word “reasonable”, I agree with the respondent that the Magistrate correctly identified the objective test for his determination. The use of the word “necessary” is not an appellable error as, if anything, it was an error in the appellant’s favour. 47 I am further of the view that the Magistrate made sufficient findings, in the paragraph I have previously quoted and elsewhere, which show that his Honour found that the appellant had not taken reasonable steps to alleviate the harm that the sheep, the subject of the charges, were suffering. In particular the Magistrate found that: ” … there was nothing to suggest that he could not have brought more attention, and if need be – and I would have thought the requirement was patently there, with the animals not improving – in all the circumstances, further consultation with certainly his veterinarian in Dr Peter Brighton. It was not undertaken; it was not requested, albeit Dr Brighton acknowledged that should he be required, he was happy to re-attend. There was no request made of him.” The Magistrate’s additional findings in respect to the appellant’s attitude to the sheep do not negate the essential findings in the Magistrate’s reasoning. 48 This ground of appeal fails. Ground 2 49 The appellant’s case at trial and on appeal was that he had sought and adhered to the veterinary advice given by Dr Brighton. The Magistrate found that the appellant may have complied with Dr Brighton’s advice. Thus, the appellant says that he took reasonable steps to alleviate the harm being suffered by the sheep and he should not have been found guilty of the offences. 50 The respondent submits that the statutory test is not whether or not the appellant took reasonable steps to alleviate the suffering of the sheep. Rather, the test is whether or not the sheep suffered harm which could have been alleviated by the taking of other reasonable steps. 51 If the test the appellant asserts was correct, an accused could not be convicted of an offence if he or she had taken some reasonable steps to alleviate an animal’s harm. Whereas, in the test asserted by the respondent, with which I agree, the issue is whether the evidence discloses that there were reasonable steps which could have been, but were not, taken to alleviate the harm suffered by an animal. Thus, evidence that an accused took some reasonable steps may be relevant but such evidence does not mean that a finding of not guilty is inevitable. If the evidence discloses that further reasonable steps or a reasonable step that could have been taken to alleviate the harm suffered by an animal, an accused will not avoid liability. 52 Thus, for an offence particularised as being committed against s 19(3)(h) the elements of the offence are: 1. The accused was in charge of the relevant animal; 2. The animal suffered harm; and 3. The harm suffered could have been alleviated by the taking of reasonable steps. 53 The Magistrate did not err by failing to determine whether the appellant had taken reasonable steps to alleviate the harm suffered by the sheep. Rather, he was obliged to determine what were the reasonable steps that could have been taken to alleviate the harm suffered by the sheep. It was only if the appellant had taken all these reasonable steps that he would be found not guilty. Taking some, but not all, reasonable steps, does not avoid liability. 54 The Magistrate was of the view that the appellant had not taken all reasonable steps. That is, he was, “patently aware” that there were obligations to the sheep which he was not meeting; in particular the obligation to further consult with Dr Brighton when the sheep did not improve whilst on his property. 55 This ground of appeal is dismissed. Ground 3 56 A defence to a charge under s 19(1) is provided in the Act, s 21 which states: “21. Defence ¾ veterinary care It is a defence to a charge under section 19(1) (other than an offence committed in circumstances described in section 19(3)(g)) for a person to prove that the person was a veterinary surgeon, or was acting on the instructions of a veterinary surgeon, and was providing the animal with veterinary care in accordance with generally accepted veterinary practices.” 57 It is patent from the words of the section that the onus of proving this defence lies on an accused. The standard of proof is on the balance of probabilities. This is in accordance with principles gene
rally applicable to proof of defences, where the legal burden of proof is on an accused: Heydon, J G Cross on Evidence 7th Australian ed Butterworths, Australia, 2004 page 300. 58 The appellant submits that the defence was a live issue in the trial in that the evidence led by the appellant went not only to the issue of reasonable steps but also to proof of this defence. He submits that the Magistrate should have been aware that s 21 was an issue because the defence was expressly raised by his counsel when he addressed the court. The appellant submits that the Magistrate erred in failing to consider the defence at all. 59 I agree that the defence was a live issue in the trial and should have been considered by the Magistrate in his final reasons. Whilst a Magistrate does not need to refer to every issue or piece of evidence in his or her reasons, the important issues should be expressly considered. The defence under s 21 was one of the important issues in this case. 60 The Magistrate did not mention the defence in his reasons for decision. The respondent says that it is implicit in the Magistrate’s reasons that he did consider the defence but found it not proven. 61 With due respect to the very experienced Magistrate, I cannot discern from his reasons that he considered the defence under the Act, s 21. 62 However, there is no doubt in my mind that had the Magistrate considered the defence he would have rejected it. This is because he found that the reasonable step the appellant failed to take was to obtain veterinarian advice and care for the relevant animals. It would be contrary to this finding for the Magistrate to then find that the appellant had proven on the balance of probabilities that he was, at the relevant time, acting on the instructions of a veterinarian surgeon and was providing the animal with veterinary care in accordance with generally accepted veterinary practices. 63 Further, on my analysis of the requirements of the defence and the evidence I conclude that the appellant clearly failed to prove the defence. I am able to determine this even though I did not see or hear the witnesses because the Magistrate did not make his decision on the basis of credibility findings and his findings of fact are not challenged on appeal. In essence the Magistrate accepted the appellant’s evidence. I am also able to determine this issue on a view of the facts which is most favourable to the appellant. 64 The first requirement of s 21 is that the accused acts on the instructions of a veterinary surgeon. The relevant time for the purposes of each charge laid against the accused was between 28 April 2004 and 1 July 2004, that being the period from two weeks after the sheep arrived at the appellant’s property to the date Ms Weissenberger inspected the sheep. 65 In order to determine whether the accused was complying with Dr Brighton’s instructions a comparison must be made between the instructions and the evidence of what the appellant was doing at the relevant time. 66 Dr Brighton’s advice required the appellant to: 1. Feed the sheep “four bags of oats or more per two days trailed out near the mob to keep an eye on the situation”; 2. Put out “trace mineral blocks of salt – urea with trace minerals, cobalt, copper and selenium, for the mob to covert the dry feed better”; 3. Not move or subject the sheep to stress including not to drench the sheep; and 4. Reappraise the sheep after they had picked up condition. 67 The only reasonable inference to draw from the appellant’s evidence is that he reduced and changed the sheep’s feed after they arrived at his property. Secondly, he was not putting out blocks for the sheep whilst they were at his property. Thirdly, he drenched the sheep with an unknown drench in June. Fourthly, in the space of nearly three months he did not have the sheep reappraised by a veterinary surgeon. 68 Consequently, the evidence did not establish on the balance of probabilities that at the relevant time the appellant was acting on the instructions of a veterinary surgeon. 69 The second matter that needed to be proven was that the appellant was providing veterinarian care to the sheep in accordance with generally accepted veterinary practices. It is not sufficient to prove that the appellant was providing care in accordance with veterinary practices which applied at a different time and a different place. As a matter of commonsense the care must accord with generally accepted veterinary practices for the relevant animals at the relevant time and place 70 The evidence on this issue fails to prove that the accused was providing veterinary care in accordance with generally accepted veterinary practices. 71 Dr Campbell gave evidence that when he saw the sheep in July, they needed to be drenched with a number of different chemicals, as determined by a vet or the Department of Agriculture, to remove their worm and parasite burden. The drenching programme needed to be monitored by frequent faecal worm and parasite counts. He was also of the view that the feeding programme needed to be increased to take into account the sheep’s inability to absorb nutrients from their food due to their worm and/or parasite burden. Further, his view was that by the time he saw the six sheep the subject of the charges, most were going to die and all needed to be euthanized to alleviate their suffering. 72 Dr Brighton did not see the sheep at the relevant time. However, he gave evidence that the six sheep he saw in the video taken by Ms Weissenberger needed to be euthanized. He agreed that the sheep had needed to be drenched with a couple of drenches and then something further needed to be done if the sheep did not respond. He said that after the sheep were driven to the appellant’s property they needed to be watched and fed, without any decrease from his previous feeding directions. The recommended veterinary regime would also depend on how far the sheep had to travel for water. He said that he could not judge from the video whether the condition of the sheep reflected a reasonable programme of attendance on the sheep. 73 The appellant did not drench the sheep with more than one chemical or with chemicals based on the advice of a vet or the Department of Agriculture. The appellant did not organise for faecal egg counts to be taken when the sheep failed to respond to the drench. Neither did he maintain the sheep on the feeding regime prescribed by Dr Brighton. Rather, he put the sheep on a “maintenance ration”. Lastly, the appellant did not euthanize the sheep when they had suffered so much harm that the only reasonable step left to alleviate that harm was to kill them. 74 It is apparent from the appellant’s evidence that he did not provide the sheep with veterinary care in accordance with what Dr Campbell and Dr Brighton would have recommended. Theirs was the only evidence as to what was generally accepted veterinary practice in respect to the sheep at the relevant time. Thus, if, as was the case, the appellant failed to prove on the balance of probabilities that he was complying with what they would have directed, the appellant failed to make out the second leg of the defence in s 21. 75 Consequently, the appellant failed to prove either leg of the defence in s 21. Even accepting that the Magistrate erred in not giving reasons for rejecting the defence under s 21, no miscarriage of justice thereby occurred. I dismiss this ground of appeal. Conclusion 76 For the above reasons the appeal is dismissed. STEFANI -v- OSTLE [2010] WASC 350 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : STEFANI -v- OSTLE [2010] WASC 350 CORAM : MURRAY J HEARD : 13 SEPTEMBER 2010 DELIVERED : 26 NOVEMBER 2010 FILE NO/S : SJA 1040 of 2010 BETWEEN : ROBERTO STEFANI Appellant AND KENNETH OSTLE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE LANE Citation : ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS -v- STEFANI Catchwords: Appeal – Regulatory offence – Cruelty to animal – Interpretation of statutory definition of offence – Multiple grounds of appeal – Matter turns on own facts Legislation: Animal Welf
are Act 2002 (WA), s 19 Result: Leave to appeal refused Appeal dismissed Representation: Counsel: Appellant : In person Respondent : Mr D Markovich Solicitors: Appellant : In person Respondent : Jarman McKenna Case(s) referred to in judgment(s): Anderson v Moore [2007] WASC 135 1 MURRAY J: This is an application for leave to appeal which was ordered to be heard at the same time as the appeal. When the matter came on for hearing, the appellant, who appeared in person, seemed, by reason of illness or some other cause, to be quite incapable of orally presenting argument in support of the appeal. I gave leave for written submissions to be filed and served by both parties. 2 The appellant ultimately filed and served two sets of written submissions. Both are dated 26 September 2010, but one was filed on 7 October, and the second set of submissions was filed on 20 October. For the respondent, I have before me, in amplification of matters that were canvassed orally, and in response to the first set of the appellant’s submissions, an outline of submissions dated 8 October 2010. In addition, the papers include an outline of submissions by the respondent dated 13 August 2010. I have read these papers and the record of the proceedings in the Magistrates Court. The prosecution and the relevant law 3 The appellant was charged that between approximately 1 December 2007 and 11 June 2008, a period of just over six months, at his home, being in charge of an animal, a male ginger domestic short-haired cat named ‘Ginger’, he was cruel to the cat by allowing it to suffer harm which could have been alleviated by taking reasonable steps. 4 It is an offence against s 19(1) of the Animal Welfare Act 2002 (WA) to be cruel to an animal. The prescribed penalty is a minimum fine of $2,000 and a Trevorimum fine of $50,000 and imprisonment for 5 years. The word ‘cruel’ is not generally defined in s 5(1) of the Act. But s 19(2) and (3) provide specific instances of behaviour or circumstances which will constitute cruelty to an animal. Section 19(3) is specifically concerned with the conduct of ‘a person in charge of an animal’. 5 The term ‘person in charge’ is defined in s 5(1) to mean, among other things: (a) the owner of the animal; (b) a person who has actual physical custody or control of the animal; 6 The prosecution notice relied upon s 19(3)(h) which provides that: a person in charge of an animal is cruel to an animal if the animal – (h) suffers harm which could be alleviated by the taking of reasonable steps; 7 By s 5(1): harm includes – (a) injury; (b) pain; and (c) distress evidenced by severe, abnormal physiological or behavioural reactions; 8 It is important in this case to note that in the case of many of the examples provided in s 19(2) and (3) of the means by which a person may be established to be cruel to an animal, the law is concerned with the defendant’s conduct. Section 19(2) provides that a person is cruel to an animal if the person tortures or otherwise ill-treats it, uses a prescribed inhumane device on it, intentionally or recklessly poisons it, does any prescribed act to or in relation to the animal, or in any way causes it unnecessary harm. 9 So far as s 19(3) is concerned, as I have said, it applies to, ‘a person in charge of an animal’. And I have mentioned the material parts of the definition of the term ‘person in charge’. Some of the matters specifically constituting cruelty to an animal under s 19(3), like those matters dealt with in s 19(2), relate to the conduct of the defendant. For example, it is cruel if an animal is transported, confined, restrained, caught, worked, driven, ridden or otherwise used in a manner that causes or is likely to cause it unnecessary harm. 10 But other examples of cases when a person in charge of an animal may be found to be cruel to it are omissions. Examples include the failure to provide the animal with proper and sufficient food or water, shelter, shade or other protection from the elements, or where the animal is abandoned. Section 19(3)(h) falls into this category. A person will be held to be cruel to an animal if, however caused, the animal suffers harm as defined in s 5(1) which could be alleviated by the taking of reasonable steps. 11 In my opinion, that requires of a person in charge of an animal, that he or she takes steps to alleviate harm suffered by an animal in the person’s charge, ie, relative to this case, an animal that the person owns or of which he or she has actual physical custody or control. It matters not, for the purpose of a judgment that a person in charge of an animal is cruel to it, within the meaning of s 19(3)(h), that the harm, the injury, pain or distress suffered by the animal, was not in any way caused by any act or conduct of the person in question. 12 The case of Anderson v Moore [2007] WASC 135 involved a flock of sheep owned by and under the control of the appellant. They suffered harm because, over a period, they were effectively allowed to starve, to the point that they were malnourished and unable to sustain normal activity. Some had died. It was, therefore, a case like this, where the substantive issue was that posed by s 19(3)(h), whether the harm could have been alleviated by the taking of reasonable steps. 13 Jenkins J discussed the legal framework for the charge at [49] – [53]. I respectfully agree with her Honour, that where the charge of cruelty to an animal is framed as it was in that case and as it is in this case, the charge will be made out if the prosecution proves beyond reasonable doubt that: (1) the accused was the ‘person in charge’ of the animal within the definition in s 5(1); (2) from whatever cause, the animal suffered ‘harm’ as defined, ie, injury, pain or severe distress; and (3) there were reasonable steps which the accused could have taken, but did not, which would have alleviated the harm. 14 As to the last mentioned element, it follows that it will be for the prosecution to identify those steps, to establish that they were reasonably available, but not taken, and to prove that the identified reasonable step or steps would have alleviated the harm suffered by the animal. 15 It is not necessary for the purpose of this judgment to attempt any list of circumstances such as cost, availability and the like, which might affect the court’s judgment about whether the suggested steps were ‘reasonable’. However, it is important to note that I have concluded that reasonableness is to be judged in relation to a person in the position of the accused. The question is what steps that person might reasonably have taken, but did not. 16 Further, the word ‘alleviate’ is not specially defined by the Act, but is a word of ordinary meaning. The Shorter Oxford English Dictionary defines the word, when used in the sense adopted in s 19(3)(h), to mean, ‘make less burdensome or severe, relieve, mitigate, diminish’. In other words, to alleviate the harm does not mean to cure or take it away completely. It will be sufficient that the accused is established to have failed to take a step reasonably available to that person which could cure or remove the harm, or at least diminish or relieve it to some appreciable extent. 17 Finally, this was a case which had the potential to raise a defence to the charge under s 21. By that provision, it would be a defence if the appellant proved, on the balance of probabilities, the onus being upon him, that (so far as s 21 is material) he was: acting on the instructions of a veterinary surgeon, and was providing the animal with veterinary care in accordance with generally accepted veterinary practices. The proceedings in the Magistrates Court 18 The appellant defended the charge, which was heard in the Magistrates Court by Magistrate Lane on 10 November 2009. The prosecution called as witnesses, a Ms Power, an inspector with the RSPCA, a Ms Phillips, a veterinary nurse and shelter supervisor at the Cat Haven, and a Ms Robinson, the operations manager at the Cat Haven. The appellant gave evidence and called a Ms Gribble, who was with Silver Chain and was a regular visitor to his home. Her evidence was of her observation of the appel
lant and the way he treated his cat. She also gave character evidence for the appellant. 19 The appellant also called Dr Sherry, a veterinary surgeon who had examined the cat and provided a diagnosis. It seems that the prosecution sought an adjournment to call Dr De Souza, a veterinary surgeon employed at the Cat Haven, upon whose evidence they proposed to rely. But the application for the adjournment was not pursued in the light of Dr Sherry’s evidence, and so the prosecution closed its case and no further evidence was called. 20 Her Honour reserved her decision, which she gave on 10 December 2009. She convicted the appellant, fined him $2,500 (remembering that the minimum penalty was a fine of $2,000) and after hearing evidence and receiving submissions on 23 December 2009, she awarded costs to the prosecution in the sum of $10,000. In addition, she acceded to the application made by the respondent, a general inspector of the RSPCA, that the appellant be prohibited from being in charge of any animal for five years, pursuant to s 55(2)(a) of the Act. 21 Finally, her Honour ordered the appellant to surrender any existing animals in his care to the RSPCA, pursuant to s 55(2)(b)(ii), whereupon he said that he would have cockroaches and rats available for collection. The facts 22 In what follows I will set out the facts as found by her Honour the magistrate, and as incontrovertibly established by the evidence. The cat, Ginger, belonged to the appellant. He was in charge of the cat. He had had it as a pet for about 13 years. 23 The cat had a steadily progressing eroding nasal lesion. It had been getting worse for a period of about a year, and by the time the appellant took the cat to Dr Sherry, on 14 March 2008, it was very evident. Dr Sherry made a presumptive diagnosis of squamous cell carcinoma, a form of skin cancer. It had attacked the cat’s nose. Dr Sherry advised the appellant that the diagnosis could be confirmed by a biopsy. But in any event he recommended surgery to excise the lesion and reconstruct the nose. Dr Sherry said that he advised the appellant that he anticipated that the cat was already in discomfort, that the disease would more rapidly worsen, that the cat’s pain and discomfort would increase, and that action should be taken to treat the cat sooner rather than later. 24 The appellant rejected the treatment proposed. He said it was too expensive, and he could not afford it. He was told that in that case the cat should be euthanased. The appellant rejected that option also, and he left with the cat without undertaking any remedial treatment. 25 By about 28 May 2008, a couple of weeks before the cat was euthanased, the appellant had observed that the lesion was worsening. It had spread to the cat’s chin. He then investigated the cost of euthanasia, but felt it was too high. Ultimately, on 11 June 2008, he took the cat to the Shenton Park Cat Haven and surrendered it to them for euthanasia for an agreed cost (after some disputation) of $25. This is where Dr De Souza came in. She was the veterinary surgeon on duty at the Cat Haven, and performed the euthanasia. 26 Ms Robinson photographed the cat before and after it had been put down. The photographs were exhibits. I have viewed them. It is perfectly evident that the lesion had progressed to the point where, as her Honour found, the cat had, ‘one eye semi-closed and a raw, gaping wound where his nose should have been, and an open wound in his right cheek’ [14]. The photographs bear out that conclusion. There was evidence that the cat was in pain, and there were scabs where he had scratched the cheek area to ease the pain. 27 As I have mentioned, Dr De Souza was not called, but Dr Sherry was. He was shown the photographs and gave as his opinion that, by 11 June 2008, there was clear evidence that the condition had worsened quite rapidly after he saw the cat on 14 March 2008. There was evidence that the cat had been in pain, and significant pain would have been suffered for at least a week prior to the appellant’s attendance at the Cat Haven. 28 On the basis of that evidence and those findings of fact, it was perfectly apparent that her Honour should find, as she did, that each element of the offence had been proved beyond reasonable doubt and the conviction was entered. In short, there was no dispute that at all relevant times the appellant had charge of the cat, in that he owned it and it was in his actual physical custody. The carcinoma constituted harm because it was an injury suffered by the cat. In addition, it quite evidently caused pain and distress, evidenced by the scratching and other abnormal behaviour of which the evidence spoke. 29 That was present to some degree in March 2008 and rapidly worsened thereafter, until by the end of May the appellant was inquiring about the expense which would be involved in having the cat euthanased. Nonetheless, it took him two weeks to get to the Cat Haven and actually have the operation performed, by which time the cat, according to Dr Sherry’s opinion, accepted by her Honour, was showing all the signs of considerable pain and distress, and the injury constituted by the carcinoma was grave. 30 As to whether the harm suffered by the cat could be alleviated by the taking of reasonable steps, the evidence was clear. The operative procedure recommended by Dr Sherry, if carried out in a timely way without delay, might well have cured the problem. That was the evidence of Dr Sherry and the advice he gave to the appellant in March 2008. The evidence supported the conclusion that that step was reasonable. The appellant’s objection to the cost was not elevated to the point of providing any indication that the appellant could not, rather than that he would not, bear the expense. 31 That step was reasonable, but not being taken, it became the case that the only reasonable step to alleviate the animal’s suffering was to euthanase it, a course to which the appellant ultimately, if belatedly agreed. The appellant’s guilt of the offence charged was clearly established beyond reasonable doubt. 32 For completeness, I observe that it will be evident that the evidence raised no capacity for the appellant to argue that his inactivity had anything to do with the instructions of a veterinary surgeon, and that he was providing the animal with veterinary care in accordance with generally accepted veterinary practices. Her Honour was right to hold that there could be no suggestion of a defence under s 21 of the Animal Welfare Act. The appeal 33 The appeal in this matter was instituted on 20 April 2010. Rather than endeavour to summarise the grounds upon which leave to appeal is sought, I will set them out in full: 1. The Learned Magistrate made an error in stating that the prosecution proved each element of the offence beyond any reasonable doubt. 2. The Magistrate erred by disregarding my objections on the prosecution’s witness that no witness had any admissible statement to make relevant to the case, aside than denigrate my good name, in what I believe to be character assassination. 3. The Learned Magistrate erred by not having considered the fact that at the visit of the RSPCA officer I became upset by the fact that she cautioned me by saying that anything I may say may be used in a court of law, a caution that prior to this I had only heard in American movies, and always related to criminal offences. 4. From the very start, the RSPCA classified me as a criminal by requesting my criminal and driving records. I don’t have anything to hide but th