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Supreme Court of South Australia

RSPCA v. Stojcevski
South Australia
2002 WL 228890, 134 A Crim R 441


Case Details
Printable Version
Summary:   Appeal against the order of the Magistrate dismissing a complaint - prevention of cruelty to animals - respondent charged with ill treating an animal in that failed to take reasonable steps to alleviate any pain suffered by the animal who had a fractured leg bone contrary to sec 13(1) of the Prevention of Cruelty to Animals Act 1985. Dismissal was upheld and court found that defendant did not understand dog was in pain and had and was going to take reasonable steps.

Judge Mullighan, J. delivered the opinion of the court.


Opinion of the Court:

1 The respondent was charged upon the complaint of the appellant that between 1st February 1999 at Port Lincoln he did ill treat an animal, namely a Blue Heeler cross dog in that being the owner of that animal he failed to take reasonable steps to alleviate any pain suffered by the dog by reason of age, illness or injury: contrary to s 13(1) of the Prevention of Cruelty to Animals Act 1985.

2 He pleaded not guilty. The respondent was unrepresented at the trial before a learned Magistrate and conducted his own defence. The trial occupied three days. The learned Magistrate found that the charge was not proved beyond reasonable doubt and the complaint was dismissed. The appellant appeals against the order dismissing the complaint. The respondent was also unrepresented on the hearing of the appeal. At the conclusion of the hearing I adjourned the matter sine die so that the respondent could obtain legal representation and, if he did not do so, make written submissions. He was provided with a copy of the transcript of the argument of Mr Tremaine, who appeared for the appellant. It appears that he did not obtain legal representation but he did make some submissions in writing which I have considered.

3 All but one of the grounds of appeal call into question various findings made by the learned Magistrate. Consequently, it is necessary to review the evidence at the trial.

4 In February 1999 an officer of the appellant at Port Lincoln received information from a member of the public. Ms Gibson was an honorary Inspector for the appellant and a veterinary nurse employed at the Lincoln Veterinary Centre. That information was passed on to her and she attended at premises occupied by the respondent at 11 Coronation Place, Port Lincoln on 13th  February 1999 accompanied by two police officers. She spoke to the respondent at the front of the premises and told him that she had a report from a neighbour that there was a dog in his presence which was lame following an injury.

5 At their request the respondent produced the dog. It was obviously injured as its right rear leg was "swinging". Ms Gibson and the police officers took the dog to the local veterinary surgeon where it was examined. X-ray examination established that the leg was fractured. Analgesics were given to the dog and it was confined to prevent further injury. It was kept by the veterinary surgeon at the request of officers of the appellant pending a decision as to its future. Eventually it was put down without further treatment with the authorization of the respondent.

6 Officers of the appellant did not interview the respondent until 11th August  1999. The complaint was not laid until 27th January 2000. The trial did not commence until 21st February 2001. The trial continued on 22nd February 2001 and 16th May 2001 and the learned Magistrate gave her decision on 19th July  2001. The delay in hearing the complaint, once the trial commenced, appears to have been due to the listing arrangements for the learned Magistrate to sit in Port Lincoln.

7 The case against the respondent was based against the evidence of neighbours of the respondent, Ms Gibson, the police officers and the veterinary surgeon, Dr Grainger, and other officers of the appellant, Mr Martin and Ms Beldi. The respondent gave evidence and called his former partner, Ms Marshall and her mother, Mrs Weir. The evidence of some of the witnesses called by the appellant, if accepted, suggested that the respondent could have caused the injury to the dog. The learned Magistrate rejected that suggestion and said that she was not prepared to draw any inference that he injured the dog. There is no appeal against that decision. She concluded that the issue to be decided was whether on the whole of the evidence the appellant had proved beyond reasonable doubt that the respondent failed to take reasonable steps to alleviate any pain suffered by the dog due to age, illness or injury.

8 As the first and third grounds of appeal challenge findings made by the learned Magistrate on the evidence, it is necessary to briefly review the evidence placed before the learned Magistrate.

9 Ms Austin lived across the road from the house occupied by the respondent. At about 7.30 pm on Thursday 11th February 1999 she said that she saw the dog, which was a pup, run into her yard and under a stationary motor vehicle. The respondent entered her yard and was calling the dog. It ran out from under the car and ran back to the respondent's home and he followed it. She did not notice an injury to the dog. It had its tail between its legs but it did not appear to have any difficulty in running or walking. Shortly after the respondent left with the dog she heard a dog yelping which she described as a continuous yelp. She then saw the dog again and it ran into her property. The respondent followed and called the dog but left without it. Ms Austin went outside and saw the dog on the verandah outside her back door. She saw that the right back leg of the dog was swinging and that the whole leg had dropped. She telephoned her parents. According to Ms Austin the dog had been with the respondent for about a month. She denied that the respondent had been to her home on occasions earlier in the day since about 4.00 pm looking for the dog and that he had only had the dog for a few days.

10 Mr Austin, the father of Ms Austin, said that in response to a telephone call from his daughter he went to her home in the evening of 11th February 1999 and saw the dog on the back lawn. He said that the back right leg appeared to be broken as it was floppy and loose and when he picked up the dog it felt as though a bone was "crunching". The dog appeared scared. He said that he heard someone whistling and saw a person who was probably the respondent in the driveway. That person said that he was looking for a dog and Mr Austin took him to the back of the premises to the dog. Mr Austin asked what had happened to the dog and the respondent replied that it had been hit by a motor vehicle. According to Mr Austin, he told the respondent that the dog needed urgent treatment and he replied that he would do it immediately. He said that as the respondent approached the dog it was cowering in a corner. It had difficulty with its hindquarters when the respondent went to lead it away and so he picked up the dog and left the premises. In cross-examination he disagreed that he had gone to the respondent's home and told him about the dog.

11 Mrs Johnson was a neighbour of the respondent. She said that the dog had been in his care for about two weeks. In evidence she misdescribed the colour of the dog. She was permitted to give evidence that about two weeks before 11th February 1999 she had seen the respondent ill treat the dog by yelling at it and hitting it, and, as I understand the evidence, on subsequent occasions.

12 Ms Cardwell is a relative of Ms Austin and visited her home frequently in February 1999. On one occasion, the date of which she could not specify, but it was not 11th February 1999, she said that she heard a dog yelping. She saw the dog along the driveway of Ms Austin's home and under a motor vehicle. She said she saw a man, presumably the respondent, drag the dog from under the motor vehicle and take the dog to his home. She said she heard more yelping and the dog ran back to, and under, the motor vehicle. It is not clear why this evidence was led at the trial. The charge against the respondent related to not taking reasonable steps to alleviate pain suffered by the dog due to the dislocated and broken leg. It seems that Ms Cardwell did not see the dog after that condition to the leg had been incurred.

13 The learned Magistrate rejected the evidence of Mrs Johnson and Ms Cardwell. She said that Mrs Johnson did not impress her as a witness and she was not prepared to rely upon her evidence. She said that Ms Cardwell was not a reliable witness and she was not prepared to accord her evidence any significant weight when assessing all of the evidence in the case.

14 Constable Nappa and Mr Anderson were the police officers who accompanied Ms  Gibson to the respondent's home on Saturday 13th February 1999 when the dog was collected. They both said that the respondent was washing a boat when they arrived and they both noticed that the right hind leg of the dog was swinging. According to Constable Nappa, Ms Gibson told the respondent that the leg was broken and the respondent said it was dislocated. She asked him how that had occurred and the respondent said that he had kicked the dog as a punishment for running on the road. Mr Anderson was no longer a police officer at the time of the trial. He told the learned Magistrate that Ms Gibson told the respondent that the dog needed to see a veterinary surgeon and that the respondent said that he intended to do so but could not afford the expense. Mr Anderson said that he could not recall any conversation as to how the dog was injured but that the respondent did say that the dog had been running away and that he had hit the dog because it was misbehaving and had run away previously.

15 Ms Gibson also told the learned Magistrate that the respondent was washing a boat when she and the police officers arrived at his house. She said that she told him that it had been reported by a neighbour that he had a dog which was lame following an injury. She said that the appellant said that the dog was "OK, that the leg was only dislocated" and that he had spoken to a female friend who said that it was "OK". She said that the respondent told her that the dog's leg had been sore for about a month. She told the respondent that she was 95 per cent sure that the leg was broken and needed veterinary attention. According to her, the respondent replied by saying that he was very sure that the leg was dislocated because a friend had expressed that opinion to him. There was further conversation. She told the respondent that she was going to take the dog to the veterinary surgeon and that it was an offence not to alleviate pain. She, and the police officers, took the dog to Dr Grainger. She said that she observed the dog at the surgery. It had no other injury and was in good condition. The dog was given medication and restrained in a cage to prevent aggravation of the injury.

16 According to Ms Gibson, the respondent attended at the surgery, where she was employed, on 15th February 1999. She said that the respondent changed his story and told her that the injury to the dog had only been "bad" since the previous Thursday.

17 Dr Grainger is an experienced veterinary surgeon who practised at Port Lincoln and was the principal of the Lincoln Veterinary Centre where the dog was taken on 13th February 1999. Ms Gibson was the office manager at that Centre. Dr Grainger examined the dog, including x-ray examination. According to him, the dog had a fracture of the right femur between the stifle and the hip which had been caused by trauma. He expressed the opinion that the age of the fracture was less than seven days and could have been caused within two days. He said that the presence of the fracture would be obvious upon looking at the dog because the leg was swinging. He described the fracture as a common injury which could have been caused by a blow, a hard kick or when being struck by a hard object but not a punch. He said that the dog did not have abrasions which are commonly found when a dog has been struck by a motor vehicle. Usually in motor vehicle accidents the dog rolls over and suffers abrasions.

18 According to Dr Grainger, if a dog's hind leg is dislocated, it is important to put the leg back into position within 12 hours which is a simple procedure carried out under an anaesthetic. After 24 hours the socket fills with blood and fibrous tissue and the ligaments that hold the bone in position become stretched and the corrective procedure becomes complicated. After 24 hours the procedure may not be successful.

19 He told the learned Magistrate that to an untrained eye a fracture and dislocation could be confused and he could imagine someone thinking the dog had suffered dislocation of the leg.

20 Dr Grainger treated the dog with a quick-acting pain killer injection so as to make the dog comfortable and to settle it down. It was then restrained so as not to aggravate the injury. If the analgesic had not been given the dog would have been in pain. He said that upon being injured the dog should have been given veterinary treatment to control the pain and to be restrained.

21 If the injury was to be treated, a pin would have been inserted in the fracture during the course of surgery. When Dr Grainger examined the dog, he saw no signs of it having been treated. He said that dogs do mask pain but the dog would have been in pain. He said that apart from the fracture the dog was in good condition.

22 Mr Masters was a senior inspector employed by the appellant. After the dog had been taken from the respondent, he spoke to him by telephone on two occasions, on the following Monday and Tuesday. On the Monday he told the respondent that the dog had a broken leg and if it was not treated it would have to be destroyed. The respondent said that he thought the leg was dislocated. Mr Masters told him that the appellant did not have funds for the necessary treatment. According to Mr Masters, the respondent said that he would speak to his mother who knew a veterinary surgeon who would be able to do the operation more cheaply. Mr Masters said that he would contact him again the next day. The respondent's evidence was that he did not mention his mother. She had died some years ago.

23 On the Tuesday, the respondent told Mr Masters that he had not had a chance to make his enquiry and upon Mr Masters telling him that it could not wait much longer, the respondent told him to put the dog down. The respondent signed the necessary authority on that night and the dog was destroyed.

24 The last witness called by the appellant was Ms Beldi who was an inspector employed by the appellant. She interviewed the respondent on 11th August 1999 in Port Lincoln. She was accompanied by Mr Kroezen who was an honorary inspector with the appellant. During this interview the respondent said that the dog was a strong animal and had been given to him four days before it was taken by the appellant. He described the events of Thursday 11th February  1999. He said that during the afternoon he was washing his boat in the front yard of the house where he lived when the dog ran away. He went looking for it for about two and a half hours without success when Mr Austin came to his house and told him that the dog was at the house of his daughter. By that time the dog had been missing for about five hours. He went to Ms Austin's home and collected the dog which, he said, was injured. When he arrived home, he said to his partner Ms Jodie Marshall that he should take the dog to a veterinary surgeon. She looked at the dog. She had experience with horses. The dog was active but was limping "a bit". He said that they were not sure what was wrong and thought that it must have been hit but it was not "crying". Ms Marshall told him that they should wait until the morning. She telephoned her mother who associated professionally with a veterinary surgeon by the name of Mooney. He told her that if the condition of the dog became worse, it should be brought to him on the following Monday. The effect of what the respondent said to Ms Beldi was that the condition of the dog remained the same until it was taken from him by Ms Gibson and the police officers. He denied that he had retrieved the dog from the house of Ms Austin on two occasions, that the dog was not injured on the first occasion and that it was yelping after he retrieved it on the first occasion. Eventually he refused to answer further questions and the interview was terminated.

25 The respondent gave evidence at the trial. As he told much the same story, it is unnecessary to repeat most of his evidence. I mention some matters. He said that the dog was a gift to Ms Marshall and they both looked after it. On the Thursday, the dog disappeared about 4.00 pm and he commenced looking for it about 4.30 pm. He did go to Ms Austin's home looking for the dog at that time but it was not there. He and Ms Marshall, when she came home from work, made an extensive search for the dog. After about three hours, they stopped looking and returned home. When Ms Austin came to their house he said that it looked as though the dog had been hit by a motor vehicle. The respondent told the learned Magistrate that the leg was not loose swinging as other witnesses had described but the dog was not "putting his full pressure on it".

26 The respondent said that he had only been in Port Lincoln for about six months and did not know where the veterinary surgeons were located. Ms  Marshall's mother is Mrs Weir. According to the respondent, she contacted Dr  Mooney on the Thursday night and then went to the home of the respondent and Ms Marshall and told them of her conversation with Dr Mooney. She had been told to confine the dog. They put it in the lounge with pillows and it stayed there except when it relieved itself. It was not yelping. He said that he was employed and away from the house during the day.

27 According to the respondent, Dr Mooney's surgery was closed from Friday to Monday and did not open again until Tuesday. He would have charged what the respondent called penalty rates if he had been consulted when the surgery was closed. Ms Marshall decided to wait until the Tuesday before consulting Dr  Mooney. He said that Ms Gibson and the two police officers did not give him the opportunity of mentioning these matters before they took the dog away. He said that Ms Gibson had accused him of "belting" the dog. He denied that allegation when cross-examined. The respondent told the learned Magistrate that he told Ms Gibson that the owner of the dog was not home. He was referring to Ms  Marshall.

28 The respondent said that when Ms Marshall arrived home that night, they went to Dr Grainger's surgery to find out what was wrong with the dog and the respondent offered to pay for treatment for the dog but he was told that he would never see his dog again. He said that he went to the surgery again on the Monday and was not given any information.

29 As to the ownership of the dog, the respondent told the learned Magistrate:

"The whole thing was that dog was, I do admit I suppose I had some form of ownership towards the dog living at the house if you understand because we both made a decision in regards for the dog to be there. But the dog was actually given to Jodie but the two police officers and the lady in question when they came over, they just assumed I was the man of the house and straight away basically lashed out at me you know, and that wasn't very fair."

When he was cross-examined, he said that he did have a share in the dog because he and Ms Marshall had both made the decision to keep it.

30 The respondent called Ms Marshall. At the time of the trial their relationship had ended. She told the learned Magistrate that it was a joint decision to keep the dog and they both looked after it. In cross-examination she said that the dog was given to the respondent more than her. She said that she considered that he owned the dog. It was not hurt in any way before Thursday, 11th February 1999.

31 Ms Marshall said that when she came home from work the dog was missing and the respondent went looking for it. She said that after Mr Austin attended at their home, the respondent went to Ms Austin's house, collected the dog and brought it home. She noticed that one of its back legs was not being put down on the ground properly. She said that she would not describe the leg as swinging. She said that the respondent telephoned Dr Mooney but her recollection is that he did not answer. They kept the dog inside.

32 She said that she contacted her mother and at her request she called to see the dog but she could not remember when. She said it was probably the next day or the day after. Her mother advised that they should keep an eye on the dog and if it did not get better they should take it to a veterinary surgeon. She confirmed that the respondent went to see the veterinary surgeon and enquired after the dog.

33 Ms Marshall told the learned Magistrate that after the respondent brought the dog home, she thought it was fine. She examined the dog and touched the right hind leg and the dog did not respond. She said that she thought that the respondent tried to ring the other veterinary surgeon in Port Lincoln who was Dr Grainger but received no response. She could not remember on which day these calls were made.

34 The respondent also called Mrs Weir. She told the learned Magistrate that she went to the respondent's house on the Friday or the Saturday. She said that she did not telephone Dr Mooney. She inspected the dog and noticed that a hind leg was loose. She said the dog did not appear to be in any pain and as it was walking on three legs and its tail was wagging. She told the respondent that she would take the dog to the veterinary surgeon on the Monday if he and Ms  Marshall had to work. She told the learned Magistrate that other than the condition of the leg, the dog was alright. She said she had seen the respondent with the dog previously and he was "really good" with it. She said that she did not give any advice to confine the dog but she did tell the respondent that he should have the dog checked and he told her that he tried to contact a veterinary surgeon without success. He said he would try again.

35 I have summarised the salient features of the evidence before the learned Magistrate. It will be seen that there are inconsistencies in the evidence. The learned Magistrate made the following observation:

"Some months elapsed before RSPCA officers conducted a formal interview with defendant in August 1999 after which a complaint was not laid until January  2000. The matter did not proceed to trial until 21st February 2001. It is important to note this lapse of time as it has had an adverse impact on the conduct of the trial. It has been especially difficult for all witnesses involved who have been required to try to remember in detail matters that occurred two years beforehand, the quality of the evidence has suffered accordingly. I also note that with the exception of the two police officers, none of the witnesses were experienced in giving evidence. In addition it was patently apparent that the RSPCA officers were inexperienced not only as witnesses but also in investigation techniques generally. This too has impacted on the quality of the evidence."

I have mentioned the observations of the learned Magistrate as to Mrs Johnson and Ms Cardwell. Their evidence was rejected and there is no appeal against that finding. I have discarded the evidence of these two witnesses for the purposes of this appeal. The learned Magistrate rejected the evidence of Ms  Gibson, Constable Nappa and Mr Anderson as to statements made to them by the respondent because the respondent had not been cautioned, presumably in the exercise of her discretion. There is no appeal against that decision and I have had no regard to that evidence.

36 The learned Magistrate also rejected the evidence of Ms Gibson and Mr  Masters where it is in conflict with the evidence of the respondent. At least that is how I understand the position. She did not make any specific adverse findings about the credit of these witnesses but it is plain from her reasons for judgment that she did not accept their evidence on matters in dispute. Also, she did not make any criticism of the evidence or credit of Ms Austin or Mr Austin but her findings as to the credibility of the respondent and of fact, indicated that she preferred his evidence to their evidence. The learned Magistrate found that the respondent was an impressive witness, his evidence was consistent with what he told Ms Beldi during the interview and that he was an honest and reliable historian.

37 The learned Magistrate said that the prosecution case was that the respondent, having somehow caused injury to the dog, failed to obtain treatment for it. She declined to make any finding that the respondent injured the dog. She reached the following conclusions:

"The question to be decided in this case is whether on the whole of the evidence, the prosecution has established beyond reasonable doubt that the defendant failed to take reasonable steps to alleviate any pain suffered by the animal whether by reason of age, illness or injury. Pain is defined in section  3 of the act to include 'suffering and distress'.

It is not disputed that by the Thursday night some injury had been occasioned to the dog's right rear leg. When the defendant became aware of that, he carried it home and confined it in the lounge-room of the house, surrounding it with pillows. He tried to ring the vet; he took advice from his friend. He said and I accept his evidence, that the dog did not give any indication of suffering pain. It was showing no signs of distress. It was eating and drinking. Both Ms Marshall and Mrs Weir supported his evidence on this point. He discussed with Mrs Weir that if necessary she would take it to the vet on the Monday if it had not improved.

It is clear from the defence evidence that Mr Stojcevski did not simply ignore the problem. He did in fact take several actions in relation to the animal designed both to establish the extent of its injury and to provide for its comfort. True he did not take it to the vet immediately, although he planned to do so if the animal did not improve. The dog was not showing obvious signs of discomfort. In my view the defendant's delay in taking the animal to the vet in these circumstances was not a delay that was unreasonable. His failure to do so is not such that it should ground criminal culpability.

I note that apart from one injection prior to his examination, the vet did nothing other than confine the animal to prevent further injury."

She found that the prosecution had not proved the case against the respondent beyond reasonable doubt and dismissed the complaint.

38 Before turning to the grounds of appeal, I mention the relevant provisions of the Act. Section 3 of the Act provides that an owner, in relation to an animal, includes a person who has the custody and control of the animal. That section also provides that pain includes suffering and distress. Section 42 of the Act provides, inter alia, that in proceedings for an offence against the Act, an allegation in a complaint that at the specified time a person was the owner of a specified animal shall, in the absence of proof to the contrary, be proof of that matter. Section 13(1) provides that a person who ill treats an animal shall be guilty of an offence. Section 13(2) provides:

"13(2) Without limiting the generality of subsection (1), a person ill treats an animal if that person -

(a) deliberately or unreasonably causes the animal unnecessary pain; or

(b) being the owner of the animal -

(i) fails to provide it with appropriate, and adequate, food, water, shelter or exercise; or

(ii) fails to take reasonable steps to alleviate any pain suffered by the animal (whether by reason of age, illness or injury); or

(iii) abandons the animal; or

(iv) neglects the animal so as to cause it pain."

The other provisions of s 13(2) have no relevance to any issue in the present case.

39 Before turning to the grounds of the appeal, I mention the question of ownership of the dog. It may be seen from s 13(2)(b) that ownership is a matter of importance.

40 The learned Magistrate said in her reasons for judgment that the respondent's evidence was that the dog had been given to him and Ms Marshall. I do not think that her observation is strictly correct as may be seen from the parts of his evidence which I have mentioned. However, it is a matter of no significance. His acknowledgment of his possession of the dog in the home which he shared with Ms Marshall is sufficient to establish that, at relevant times, he had the custody and control of the dog and therefore was the owner within the definition in s 3 of the Act. It was alleged in the complaint that he was the owner of the dog at the relevant time and there was no sufficient evidence to establish proof to the contrary. Consequently that allegation was proved by virtue of s 42.

Ground 1

41 The first ground of appeal is that the learned Magistrate erred in dismissing the charge in that she should have found that the respondent was aware that the dog was suffering pain from injury and should have found that he failed to take reasonable steps to alleviate such pain.

42 In support of the first ground of appeal, the appellant contended that the learned Magistrate failed to make critical findings of fact and also as to what aspects of the evidence she accepted where there was a conflict in the evidence. The learned Magistrate did not make specific findings about a number of issues of fact, but the findings which she did make establish that she accepted the respondent's evidence where it was in conflict with the evidence of other witnesses. As has been mentioned, she specifically found him to be "an honest and reliable historian". There is no suggestion that she rejected the evidence of Dr Grainger.

43 Consequently, the following critical facts must have been found by the learned Magistrate:

1 The respondent had, or been in, possession of the dog for about four days.

2 The dog went missing from his home during the afternoon of Thursday, 11th  February 1999.

3 The dog was injured during the afternoon or evening of that day.

4 The nature of the injury was a broken right hind leg.

5 The respondent first saw the dog with the injury after about 8.00 pm on that night.

6 He did not know that the leg was broken but thought that it could have been dislocated.

7 He treated the dog by confining it on the couch in the lounge room of his house with pillows for support, but did not administer any pain killers. The dog was free to move around and go outside and it did so.

8 The dog gave no indication of suffering pain, as was confirmed by Ms Marshall and Mrs Weir, and the respondent did not regard the dog as being in pain. However, according to Dr Grainger, the dog would have been suffering pain because the leg was broken but would very likely have masked that pain. Also, there is no reason not to accept the evidence of Ms Marshall that the dog appeared happy and was wagging its tail after it was injured.

9 The respondent was concerned about the dog. He said that Mrs Weir contacted Dr Mooney on the Thursday night who told her to confine the dog. Mrs Weir denied that she had done so and said that the respondent told her that he had contacted Dr Mooney. It appears that the learned Magistrate preferred the evidence of the respondent but it is not a matter of great significance who made contact with Dr Mooney. What is significant is that the learned Magistrate appears to have accepted the evidence of the respondent that Dr Mooney was contacted and advised restraining the dog and that if its condition did not improve it should be brought to him. Neither the respondent nor Mrs Weir knew that the leg of the dog was broken and Dr Mooney would probably not have given the advice which has been mentioned if he had known or suspected that the leg was broken.

10 Dr Mooney's surgery was closed over the weekend and if consulted over the weekend an additional charge would have been made.

11 Ms Marshall and Mrs Weir had experience with animals but not particularly with dogs. The learned Magistrate appears to have accepted the evidence of the respondent that Ms Marshall told him that sometimes a dog may have a sprain and lift a leg to immobilise it because of pain. Also she appears to have accepted his evidence that Mrs Weir said that the dog had to be kept immobile and that if he was yelping or showing pain, he should ring Dr Mooney.

12 The respondent intended that Mrs Weir take the dog to a doctor on the following Monday.

13 The dog moved about freely when not on the couch and appeared to be without pain.

14 Ms Gibson and the police officers intervened on the Saturday and took the dog.

15 The appellant went to Dr Grainger's surgery and enquired after the dog on the Saturday evening and offered to pay the costs of treatment.

44 During the course of his argument, Mr Tremaine, who appeared for the appellant, drew attention to inconsistencies between the evidence of the respondent and Mrs Weir and the respondent and Ms Marshall. By the time of the trial the respondent had fallen out with Ms Marshall. He secured the attendance of these witnesses at court by subpoena. I accept that there were significant inconsistencies in the evidence of these witnesses but the learned Magistrate plainly accepted the evidence of the respondent and it follows that she rejected the contrary evidence of the other witnesses.

45 The charge against the respondent was not that he caused the injury to the dog but that he ill treated it by failing to take reasonable steps to alleviate any pain suffered by the animal by reason of injury.

46 What must be first considered is whether the respondent deliberately or unreasonably caused the dog unnecessary pain. The learned Magistrate was correct, in my view, in finding that it had not been proved beyond reasonable doubt that the respondent caused the injury to the dog. Once it is accepted that he had obtained appropriate professional advice from Dr Mooney, and followed that advice, and that Ms Marshall and Mrs Weir, in a practical sense, supported that advice, it cannot be said that he deliberately or unreasonably caused the dog pain. The question therefore is whether he failed to take reasonable steps to alleviate any pain from which the dog was suffering by reason of the injury. In RSPCA v Harrison (1999) 204 LSJS 345, at 354, Martin J, when considering whether a person could reasonably be expected to have foreseen that a condition in a dog would progress to an injury of skin ulceration, applied the test of what an ordinary and reasonable person would do in the circumstances. I accept that "take reasonable steps" in s 13(2)(b)(ii) is to take the steps which an ordinary reasonable person would take in the circumstances. An ordinary person is a person who does not have special knowledge or training with respect to the particular animal concerned and a reasonable person is a person who would act reasonably in the circumstances.

47 In many circumstances reasonable steps to alleviate pain would involve seeking prompt expert assistance for a dog if it is known that the dog is in pain due to injury assuming the assistance is available. Such assistance would usually involve treatment by a veterinary surgeon.

48 The legislation reinforces the obligation of owners of animals to provide adequate care for them.

49 In the present case, upon the findings of the learned Magistrate as to which evidence she preferred, I agree with her conclusion that it had not been proved beyond reasonable doubt that the respondent had failed to take reasonable steps to alleviate the pain suffered by the dog due to the injury. He did not understand the dog to be in pain. Ms Marshall and Mrs Weir, whom it may be said were estranged from the respondent when they gave evidence, did not believe that the dog was in pain. There is no basis to conclude that the learned Magistrate erred in her finding that the respondent did not know that the dog was suffering pain from injury. Indeed, as has been seen, Dr Grainger accepted that a dog could mask pain. Advice was sought promptly from a veterinary surgeon. The dog was made comfortable and was confined on the couch which appears reasonable in the circumstances. It moved about in order to relieve itself. The respondent intended that the dog be seen by Dr Mooney after the weekend and Mrs Weir was to assist in that regard if required. The respondent went to Dr Grainger's surgery on the Saturday evening. He was not told that an operation or any other type of treatment was then required.

50 This is not a typical case of neglect and given the circumstances found by the learned Magistrate, it was not established that the respondent had failed to take reasonable steps to alleviate the pain.

51 This ground fails.

Ground 2

52 The second ground of appeal is that the learned Magistrate should have found that an ordinary and reasonable person would have reasonably been expected to have foreseen the injury to the dog and the resulting pain and to have taken steps to alleviate the pain by seeking veterinary advice and treatment or to have had the dog humanely destroyed.

53 I am not sure what is meant by reasonably being expected to have foreseen the injury to the dog and the resulting pain. The respondent knew the dog was injured. He did not know the nature of the injury. He did not know that the dog was in pain. He did seek veterinary advice and intended that it have treatment. When requested by Mr Masters, he agreed that the dog be destroyed in an appropriate manner by Dr Grainger.

54 I do not think that there is any substance in this ground of appeal. I add that having received the advice of Dr Mooney, either personally or through Mrs  Weir, and the views and support of Ms Marshall and Mrs Weir and having decided to have the dog treated after the weekend, his actions accord with what an ordinary and reasonable person would have done in the circumstances.

Ground 3

55 It is contended that the learned Magistrate erred in that dismissing the charge was against the evidence and the weight and sufficiency of the evidence. I reject that contention. There is no apparent reason why the learned Magistrate should not have accepted the evidence of the respondent generally and in preference to the evidence of other witnesses where there was a conflict. She saw and heard the witnesses and was in the best position to make judgments about their credibility, reliability and accuracy. There is nothing in the transcript of the evidence of the various witnesses which suggests that the learned Magistrate misused her position. Furthermore, she correctly took into account the adverse effects of substantial delay when considering the reliability and accuracy of each of the witnesses.

56 The appellant also contended that the dismissal of the charge was wrong as the reasonable inferences patently established the guilt of the respondent which should have been drawn from the evidence. I disagree. There was support for the evidence of the respondent from Ms Marshall and Mrs Weir in important respects. His version of events was substantially consistent and accorded with common sense. If he had believed that the dog had a broken leg or was in pain, it is likely that he would have sought more immediate assistance. I do not think there were any inferences arising from the evidence contrary to the conclusions of the learned Magistrate which should have been drawn.

57 This ground also fails.

Ground 4

58 The remaining ground of appeal is that the learned Magistrate erred in depriving the prosecution of a final address which, it was submitted, is contrary to s 288B of the Criminal Law Consolidation Act 1935. S 288B(1) provides:

"288B(1) At the conclusion of the evidence, the prosecution and the defendant are entitled to address the court on the evidence."

That section was enacted by the Statutes Amendment (Right of Reply) Act 1992 and forms part of provisions in the Criminal Law Consolidation Act 1935 relating to proceedings at trial on information. It was enacted to remove the rule of practice discussed by Bray CJ in The Queen v Turner (1977) 16 SASR 444; see also Godbee v Samuels (1973) 5 SASR 236 per Mitchell J at 240. That rule is that where the defendant is not defended by counsel and calls no witnesses to the facts, except himself, there is no right of address by counsel for the prosecution at the close of the evidence, although the defendant may address the jury: Turner at 445. It was observed by King CJ in R v Karounos (1995) 63 SASR 451 that the practice was by no means invariable: 466.

59 At the conclusion of the evidence at the trial, the learned Magistrate intimated that she did not normally have an address from the prosecution when the defendant was not represented by counsel. Mr Tremaine, who was the prosecutor at the trial, understood her to mean that she would not permit him to address her. The question of whether he was entitled to an address was not argued before the learned Magistrate. The transcript of the proceedings at the trial does not indicate that he was refused permission, but in view of the intimation by the learned Magistrate, it may be understood why he accepted that he could not address.

60 The procedure at a trial of an offence charged on complaint in the Magistrates Court is set out in s 68 of the Summary Procedure Act 1921. The following provision is relevant:

"68(3) The practice before the Court upon the hearing of any complaint with respect to the examination and cross-examination of witnesses and the right of addressing the court in reply, or otherwise, shall be in accordance, or nearly as may be, with the practice for the time being of the Supreme Court upon trial of an action."

The question of whether the prosecutor may address where the defendant is unrepresented in a trial of an offence charged upon complaint was considered in Godbee v Samuels. Mitchell J considered s 68(3) of the Summary Procedure Act, then known as the Justices Act, and concluded that in a civil action in the Supreme Court there is no practice prohibiting counsel from addressing in an action when the other party is unrepresented. She went on to say at 241:

"Accordingly the practice referred to in s 68(3) of the Justices Act envisages, as it seems to me, a right in the prosecution to address even though the defence be not represented by counsel."

61 In my view, Mr Tremaine, as prosecutor at the trial, did have the right to address the learned Magistrate at the conclusion of the evidence. The practice described in Turner, if it did apply to the trial of offences charged on complaint in the Magistrates Court, had no application in the present case because the respondent had called evidence from witnesses other than himself.

62 I can see no reason not to follow Godbee v Samuels. I have some doubt as to whether s 288(1) applies to summary trials of offences charged on complaint but it is unnecessary to reach any conclusion about that matter for present purposes.

63 This ground of appeal is established. The consequence of the error of the learned Magistrate in this respect remains to be considered.

64 I have had the advantage of a most comprehensive submission by Mr Tremaine upon the hearing of this appeal. I expect that whilst his primary focus has been upon establishing error on the part of the learned Magistrate, he has appropriately addressed me at length on the evidence as to what findings the learned Magistrate should have made, what evidence she should have accepted and why the evidence of the respondent should not have been preferred to the evidence of other witnesses. I appreciate that there is the possibility that if the learned Magistrate had received the benefit of an address from Mr Tremaine, she could have reached a different view about these matters or some of them.

65 However, a matter of critical importance is that the learned Magistrate saw and heard the witnesses and was most favourably impressed by the respondent and his evidence. It cannot be established that if Mr Tremaine had addressed the learned Magistrate, she would have reached a different conclusion about the respondent and his evidence.

66 For these reasons I dismiss the appeal.

 

 

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