Summary:
The appellant, the RSPCA, relied on the fact that a horse, once in RSPCA care, had a significantly improved condition in comparison to that described as 'emaciated' while in the respondent's care. The respondent claimed that the horse's condition fluctuated depending on the presence of mares in heat during summer and that she had tried several changes to the feed to counter a loss in weight. On appeal, the appellate judge did not disturb the trial judge's finding and confirmed that the respondent's conduct was reasonable in the circumstances.
1 DAVID J. This is an appeal against a magistrate’s dismissal of a charge that the respondent ill-treated a horse contrary to s 13(1) of the Prevention of Cruelty to Animals Act 1985 (SA) (‘the Act’). The charge as particularised was that:
Between about the 1st day of October, 2004 and the 2nd day of February, 2005 at Kapunda in the said State did ill treat an animal, namely a bay coloured horse called ‘King’ in that being the owner of such animal she failed to provide it with appropriate and adequate food.
Background facts
2 The following facts are not in dispute. At around 2.20 pm on 2 February 2005, Ms Andrea Lewis, an inspector employed by the Royal Society for the Prevention of Cruelty to Animals (SA) Incorporated (‘the RSPCA’), attended a property at Kapunda. She observed an Appaloosa horse (later identified as named ‘Jack’) in the paddock and an Arab horse (later identified as ‘King’) confined to a stable. Jack was noticeably overweight. King appeared around 26 years old and was clearly emaciated. In evidence Inspector Lewis stated that King’s backbone, rib bones and hip bones were all prominent, and the skin ‘appeared to be hanging off the bones of the horse’.
3 Inspector Lewis left and obtained a warrant. She returned around an hour later with Dr Peter Jones, a veterinary surgeon. The horses had not moved. Dr Jones examined King and took blood samples. Inspector Lewis took photographs that were later tendered in evidence. There was a supply of water in the stable and a tin drum containing pelletised feed in the bottom. Inspector Lewis took a sample of the feed.
4 While Inspector Lewis was still at the property, the respondent arrived and identified herself as the owner of the two horses. The respondent agreed with Inspector Lewis that King looked ‘very, very poor’. The respondent however explained that King’s condition waxed and waned each year, with him losing weight in summer and then regaining satisfactory weight in winter. The respondent explained that King used a lot of energy ‘pacing the fences’ during summer, and that his teeth had recently been treated Mr William Beresford, an equine dentist. The respondent showed Inspector Lewis the feed that she had provided for King.
5 Inspector Lewis seized King and transported him to a shelter operated by the RSPCA. On 3 February 2005, King weighed 260 kilograms.
6 King was placed in a smaller paddock at the RSPCA shelter and fed according to a plan devised by Dr Jones. The diet commenced with bland food then gradually increased in quantity, adding high-protein pelletised feed over a period of weeks.
7 In the ensuing months, King put on considerable amounts of weight at a rate of around one kilogram per day. On 16 March 2005, King weighed 305 kilograms. Photos from this date clearly show markedly improved condition. On 19 April 2005, King weighed 340 kilograms. Photos from this date tendered in evidence show further improvement.
8 In June 2005, another equine dentist inspected King’s teeth and rasped them to remove sharp edges. She also removed two loose molars, which came away easily by hand.
9 The respondent saw King at the RSPCA shelter in September 2005. In evidence she agreed that King’s condition had vastly improved. She stated that she had ‘never seen him look that good in my life. He looked beautiful, really.’
10 In late October or early November, the respondent visited the RSPCA shelter again. She was accompanied by Dr William Harbison, a veterinary surgeon, who inspected King’s teeth. King had again lost a significant amount of weight, though his condition remained much improved.
Elements of Offence
11 There are two elements of the offence. The first was whether the respondent was the owner of the horse during the relevant period. This element was agreed. The second element was whether the respondent failed to provide the horse with appropriate and adequate food. Both elements had to be proved beyond reasonable doubt. The magistrate found that the appellant had failed to do this in relation to the second element. He stated:
The prosecution case is primarily circumstantial. The principle circumstances relied upon by the prosecution are firstly King’s emaciated condition on 2 February 2005 and secondly his improved condition while in the care of the RSPCA. These factors were sufficient to satisfy Dr Jones that King had been fed an inadequate diet.
In my view the evidence before me is not capable of excluding as a reasonable possibility that King’s condition on 2 February 2005 was due to problems with his teeth exacerbated by his pacing the fence line and that Ms O’Loughlan’s conduct was reasonable in the circumstances.
Accordingly, the magistrate dismissed the charge.
Grounds of Appeal
12 The appellant submits the magistrate erred in dismissing the charge and that the magistrate’s order dismissing the charge should be set aside and that a finding of guilty be substituted. There are eleven grounds of appeal:
1. The learned Special Magistrate should have found the charge proved on the basis that appropriate and adequate food was not ‘provided’ if, due to the state of the horse’s teeth, it was a reasonable possibility the horse could not properly utilise the food made available to it.
2. The learned Special Magistrate erred in not amending the complaint (if necessary) and finding the offence of ill treatment was proved by the respondent’s (defendant’s) failure to properly care for and/or treat the horse’s teeth.
3. Alternatively, the evidence supports a finding that an offence of ill treatment was proved by the respondent’s (defendant’s) failure to properly care for and/or treat the horse’s teeth. The complaint should now be amended and the respondent convicted.
4. The learned Special Magistrate erring [sic] in dismissing the complaint by reason of the contribution to the horse’s emaciated condition of its activity of pacing the fence lines of the property.
5. The learned Special Magistrate erred in not finding that the respondent (defendant) failed to provide appropriate food.
6. The learned Special Magistrate erred in not finding that the respondent (defendant) failed to provide adequate food.
7. The learned Special Magistrate erred in finding that the respondent’s (defendant’s) conduct and actions were reasonable in the circumstances.
8. The evidence supports a finding of ill treatment by neglect (of teeth) so as to cause pain, and the particulars of the complaint should have been/should now be amended and the respondent be convicted.
9. The evidence supports a finding of ill treatment by a failure to take reasonable steps to alleviate pain (from emaciation), and the particulars of the complaint should have been/should now be amended and the respondent be convicted.
10. The evidence supports a finding of ill treatment by neglect so as to cause pain (from emaciation), and the particulars of the complaint should have been/should now be amended and the respondent be convicted.
11. The ‘not guilty’ verdict should be set aside as unreasonable or unsatisfactory.
Appeal Grounds 2, 3, 8, 9 and 10
13 I deal with these grounds first. The appellant submits that the magistrate should have amended the particulars of the charge even though there appears to have been no application by counsel to do so at trial. The amended particulars would essentially encompass the respondent’s alleged failure to attend to the horse’s teeth earlier and properly.
14 Section 181 of the Summary Procedure Act 1921 (SA) provides:
181 – Charges
(1) An information or complaint is not invalid because of a defect of substance or of form.
(2) The Court may –
(a) amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b) dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
15 On appeal, counsel for the appellant submits that the respondent would have suffered no substantial prejudice if the complaint was amended because although it was not particularised on the complaint, evidence about the condition of King’s teeth was presented at trial. The respondent faced an allegation that she failed to provide appropriate and adequate food. That is a substantially different allegation than one of failing to properly look after the horse’s teeth. To amend the complaint, either during the trial or on appeal, would cause substantial prejudice in the presentation of the respondent’s case, as she would be facing entirely different allegations.
16 I would reject those grounds of appeal.
Appeal Grounds 1, 4, 5 and 6
17 These appeal grounds essentially challenge the magistrate’s findings concerning the reasons for King’s emaciation. I deal with them together as they cover much of the same ground.
18 The magistrate heard the testimony of each witness and so was able to assess their credibility and the weight to give to their evidence. Appellate courts are reluctant to reverse a finding of fact made by a magistrate in these circumstances, except in a case of clear errors.[1] This reluctance is stronger still in cases, such as this, where a finding led to an acquittal based upon insufficiency of proof. In these circumstances, an appellate court will not interfere except in a very unusual case.[2]
19 The magistrate found that it was not proven beyond reasonable doubt that King’s condition was caused by insufficient feed, but rather that it remained a reasonable possibility that King’s condition was caused by a combination of the problems with his teeth and his habit of continuously pacing the fence line.
20 In this regard the respondent’s evidence is very important. She said that she first saw King in 2001 when he was owned by a friend, Ken. Ken was ‘a very natural person’ who did not have King’s hooves shod or trimmed, nor did he have King examined by a vet. The respondent offered to have Mr Beresford, the equine dentist, examine King’s teeth at the same time he inspected her horse Jack’s teeth, but Ken refused. Ken was diagnosed with cancer in 2002 and passed away in late 2003. Ownership of King then passed to the respondent.
21 The respondent testified Ken had told her King’s condition waxed and waned, particularly that King built condition in the winter months and lost this in the summer months. In the summer months of 2003/2004, the respondent observed King become ‘very lean’. She said ‘you could see, like, his ribs and everything, and he would get drawn, but you couldn’t stop him.’ The respondent stated that she believed this weight loss was due to King pacing the fence line. Mares in the adjoining paddock were in season from November onward, and King, a stallion, spent considerable time running up and down the fence line. In an effort to make King less ‘fizzy’ the respondent changed King’s feed, replacing the oats he was being fed with Gumnuts, a pelletised protein-rich feed. However, his behaviour did not change.
22 From February to June 2004, King decreased his pacing and again put on weight. The respondent subsequently put King back on oats. Over winter, King returned to satisfactory condition.
23 During October 2004, King again lost weight. The respondent stated some of his ribs could be viewed, though not his hips. In November 2004, the ‘mares came back into season’, and King started pacing the fences and losing condition quickly.
24 The respondent said that in November 2004 she made two changes. First, she doubled the quantity of feed normally given to King once daily, and on most days also gave him an additional smaller, complementary feed. Second, the respondent locked King in his stall with his feed for about four hours each morning. This prevented him being distracted while feeding and prevented Jack, the Appaloosa, from stealing his feed. The respondent found that King would still not eat all the feed he was given, and after four hours, she would release him so that he could exercise and relieve himself.
25 Through November and December, King’s condition deteriorated. By late November, all of his ribs were prominent. The respondent initially rationalised his poor condition, attributing its cause to the regular pattern of weight loss she had observed in previous years and to his chasing the mares. She was not too concerned that King left his feed behind because ‘there was a paddock full of food’, and Jack was getting fat without being fed at all. She assumed that King did not need the feed.
26 From late November, the respondent began to think that there was some other cause for King’s weight loss. She suspected that his teeth might be the problem, given that they had never been inspected. She did not feel confident treating the teeth herself, so around 14 December 2004, she tried to contact Mr Beresford, the equine dentist. The respondent called Mr Beresford twice, but he did not answer and a phone message indicated that he would be unavailable until early January. She left a phone message for him.
27 In the meantime, the respondent continued to feed King as before. She did not contact either a veterinary surgeon or another equine dentist. In late December 2004, King’s condition grew markedly worse ‘in two stages very quickly in a week’, and then in January his weight ‘just fell away’.
28 In early January, the respondent eventually spoke to Mr Beresford and she explained that King’s condition was very bad, however, as Mr Beresford was heavily booked, he did not attend the property until mid-to-late January. During this visit he filed down King’s long teeth and smoothed the sharp edges. This was around two weeks before Inspector Lewis seized the horse.
29 The respondent said that she had tried to deal with the problem of the mares without success. The mares were owned by three neighbours, and the respondent claimed that they were not able to be moved. She also asked surrounding farmers if they had a paddock where King could be agisted. However, the problem was at its peak in December and January when other farmers were sowing and reaping crops in their paddocks, so this was not an option. On the day that King was seized by the RSPCA, the respondent had discussed moving him with a friend, Tracy Glanville-Smith.
30 The appellant and respondent called a number of witnesses at trial. The appellant called Dr Ronald Richards, a veterinary pathologist who tested King’s blood. He found high levels of globulin, suggestive of an immune response and low levels of phosphate, albumin, and magnesium, suggestive of ‘a level of under-nutrition or malnutrition’. Dr Richards could not state the cause of malnourishment.
31 In evidence, Inspector Lewis agreed that problems with horses’ teeth can prevent them from eating properly. She stated that in some cases you could place ‘a mountain of food in front of the horse and it would still be losing weight because of the condition of his teeth’. However, she said that King’s emaciation was caused by lack of feed, not problems with his teeth. Inspector Lewis stated that she had observed King feeding at the RSPCA shelter once a week between 2 February and 19 April 2005. She said that she saw him eating hard, pelletised feed and hay, and said she did not observe him experiencing any difficulty eating.
32 The appellant called Dr Peter Jones, the veterinary surgeon who attended the Kapunda property with Inspector Lewis on 2 February 2005. Dr Jones prepared a report on that date as a result of the attendance. In the report Dr Jones noted that King’s teeth were ‘a little sharp but normal for a horse of this age. They would not be related to the poor condition of this horse’. The report concluded that King’s emaciated condition was due to malnutrition.
33 Dr Jones re-examined King on 19 April 2005. He did not inspect the horse’s teeth. He prepared another report on the same date following this examination. Since his initial report, King had increased in weight from 260 kg to 340 kg. He remarked that the weight gain had taken 76 days ‘without any additional intervention other than adequate nutrition.’ He noted that King’s ‘teeth were not attended and worming was only done after some 30 days after a better plan of nutrition was initiated’. He concluded ‘[i]t cannot be denied that the horse responded well to adequate nutrition alone and so malnutrition is the sole cause of [King’s] condition.’ In the report, Dr Jones conceded that uneaten feed was found in King’s enclosure when he was seized. However, he reasoned this may have been because the food was unpalatable. In his evidence on this point, Dr Jones stated ‘[p]ossibly the horse didn’t like the smell of it or didn’t like the texture of it; it may have been just too hard for it to chew. Sometime they just don’t like certain types of feed.’ He said that if a horse did not eat one type of food then the owner should ‘try a different type of food’.
34 Prior to preparing the February and April reports, Dr Jones had not been informed that King’s teeth had been treated in mid-January. When he was informed of this he prepared a subsequent report dated 17 March 2006. In this report he reiterated his earlier conclusion that malnutrition was the cause of King’s poor condition. He stated that if his teeth had been the problem, then two weeks after they were attended to ‘we would expect the horse to be eating OK and putting on weight’. In evidence Dr Jones described King’s teeth as ‘typical of an old horse’, and considered that they would not have caused a problem.
35 The respondent called Dr Harbison, a veterinary surgeon with a practice specialising in the treatment of horses. Dr Harbison holds an Honours Degree in Veterinary Science. He explained the role that horses’ teeth play in digestion, and said that they grind food using their molars in a circular grinding motion. He said that problems with teeth are common in older horses and can interfere with this action. Dr Harbison said that another problem is that the edges of their molars become sharp, causing pain and preventing effective mastication. To prevent this the teeth of domesticated horses must be filed regularly to remove sharp edges. He said that these problems prevent horses effectively chewing traditional feeds that contain significant amounts of fibre. Dr Harbison stated that processed feeds ‘sidestep’ this problem by minimising ‘the need to masticate or grind up this natural food stuff to pass it down into the stomach for effective digestion’.
36 Dr Harbison did not inspect King until 3 January 2006, and was unable to give direct evidence as to the state of King’s teeth at the time that he was seized. However, in a written report, exhibit D5, he stated:
In my opinion given that this person was able to remove these teeth manually without much trouble per os [manually] they would have been in an advanced state of degeneration and infection and would have been troubling the horse for a considerable period.
Horses with teeth in this condition are unable to survive on conventional feeds and pasture and often require considerable supplementation with processed feeds such as chaff and pellets which alleviate the need to masticate effectively.
37 Dr Harbison calculated the nutritional value of the diet that the respondent said she fed King between mid-November 2004 and 2 February 2005 and stated that the diet represented 85 per cent of the required maintenance for a 400 kg horse. He noted that King had access to paddocks with pasture. He stated that an additional 3 kg of medium quality pasture would bring the energy intake to a satisfactory level. Dr Harbison concluded ‘[i]n my opinion the horse had access to enough feed but due to teeth damage and infection would be unable to process roughage satisfactory [sic].’ Dr Harbison described the feed offered to King by the respondent as:
appropriate to a horse with a degenerating mouth, but it is also my understanding that (a) he didn’t eat it all the time and (b) he was probably running off too much energy, so that the quantity of feed was probably inadequate.
In evidence, Dr Harbison was asked to state the reason why King’s weight increased following seizure. He said:
Well, again I think it’s a multifactorial situation. I mean, the horse’s teeth having been attended to a couple of weeks prior to the confiscation, plus the change in the living environment, plus the change to a total feed supplement and removal of the pasture contribution – you know, I think that’s a collection of factors that have resulted in a marked improvement of bodyweight.
38 At trial, Dr Harbison’s calculation of the nutritional value of King’s diet was put to Dr Jones, the veterinarian called by the appellant. Dr Jones agreed that if King had been eating the feed he was given and also getting sustenance from the pasture, then that would have been adequate and sufficient. However, Dr Jones disputed that there was pasture available for King to eat. He also emphasised that in order to ‘lay down muscle and fat’ an underweight horse would require more feed than the ‘maintenance diet’ which was devised.
39 The respondent called Mr Beresford, the equine dentist who treated King’s teeth. Mr Beresford had experience in the industry, but no formal qualifications. On his evidence King was suffering severely from both the teeth problems described by Dr Harbison. Mr Beresford gave evidence that at the time he treated King in late January 2004, his teeth were ‘shocking’. He said:
Well, you haven’t got – he never had a mastication line at all. He just had teeth sticking up everywhere. He had teeth missing. He had one or two loose ones – or fractured loose. He just couldn’t masticate feed at all. He’d be eating like a dog, he’d be swallowing food, because I think passed comment that it was a wonder he hadn’t come down with colic [sic].
Mr Beresford filed King’s teeth as best he could to give him a better grinding line. He intended to return two months later to further treat the teeth. He told the respondent that King needed to learn to chew his feed properly again and would be slow to put on weight. In evidence he stated that, given the state of King’s teeth, it would probably take a week for him to start eating normally, and he would not expect to see much improvement for about four weeks.
40 Dr Jones and Dr Harbison agreed that following a period of malnutrition, feed must be slowly re-introduced and weight gain may take time. Dr Harbison explained:
It’s not like just putting petrol in a car and starting the engine and away you go. The whole system has to slowly get back into order, and it may take several weeks before everything starts to work properly, and the rate of gain – I mean, the rate of gain, worked out over a long period of time, in this case is close to a kilo a day. Now, at the early stages of that process it may be zero for several days and then gradually the rate will improve as the horse’s system starts to benefit from the available nutrition.
Dr Harbison stated that it ‘takes approximately two weeks for a horse to realise and benefit from its change in nutrition’. Earlier in evidence he stated that ‘two weeks is not really a significant amount of time to appreciably change the appearance of the horse’. Dr Jones said in evidence that he ‘would expect some improvement’ two weeks after the treatment of the teeth. This improvement ‘may be noticeable but barely’.
41 Dr Harbison described two problems that face stallions in summer months: first, they are excited by nearby mares and become more active, and second, the pasture also dries off so they receive less nutrition. He stated that horses, especially stallions, have ‘great seasonal variation’, varying in weight by as much as 60 or 80 kilograms. He said that pacing fences would significantly increase a horse’s energy requirements ‘in the range of 10 to 40%’, depending upon the speed, the distance and the energy used. A stallion might lose as much as 12 kilograms a day through heavy exercise. In these circumstances, a horse will require more feed to maintain an acceptable weight. Dr Harbison stated tackling stallion behaviour like this is difficult:
sometimes you can offer them appropriate amounts of feed and nothing happens; you know, they just simply won’t eat it. I think it’s very significant in this case, the change of the environment is almost – or has been almost as important as anything else.
Dr Harbison emphasised that at the RSPCA shelter King was placed in a smaller paddock away from mares, saying:
I think that is a fairly significant change. If the horse is fairly relaxed, just standing around eating, its available energy that it can devote to body building is going to be significantly higher.
42 Dr Jones agreed that the presence of mares in season excites stallions and that the resultant pacing of the fences uses energy and causes a horse to lose condition. He agreed that because King did not pace the fences at the RSPCA, he would have conserved energy.
43 On the evidence before the magistrate, it was open for him to conclude that prior to Mr Beresford’s treatment, King had serious problems with his teeth that prevented him from eating pasture and may have caused him difficulty in eating the feed provided by the respondent. It was also open for him to conclude that King suffered ongoing degenerative problems with his teeth through to June 2005, when two molars were removed by hand.
44 Even on the evidence of Dr Jones, any improvement in King’s condition two weeks after Mr Beresford’s treatment would have been barely noticeable. It follows that it was open to the magistrate to find that a reasonable possibility remained that the weight gain that followed King’s seizure resulted not from the different diet, but from King’s improved teeth and the changed environment that placed him in a smaller paddock away from mares. This finding is strengthened by the fact that prior to King’s seizure he often refused to eat feed that had been given to him by the respondent. Dr Jones’ explanation that the feed may have been unpalatable does not exclude the reasonable possibility that King was unable to eat the feed because of problems with his teeth, or was unwilling to eat it due to the distraction of nearby mares. It follows that I am not willing to disturb the magistrate’s finding that it is not proven to the requisite degree that the respondent failed to provide appropriate and adequate feed. I dismiss these grounds of appeal.
Appeal Ground 7
45 On appeal, counsel for the respondent submits that a defence of honest and reasonable mistake of fact applies to this offence. At the same time, appeal ground 7 submits that the magistrate erred in finding that the respondent’s conduct and actions were reasonable in the circumstances. In light of my decision not to disturb the magistrate’s other findings, it is unnecessary to decide these submissions. Even if the magistrate had found that the respondent acted unreasonably, in light of his other findings, this would not make out the offence.
Appeal Ground 11
46 In light of the above findings, I also dismiss appeal ground 11. The magistrate’s verdict was neither unreasonable nor unsatisfactory.
Conclusion
47 The magistrate’s findings were reasonably open to him, having regard to the specific advantages held by him in hearing the evidence first-hand. This is not a clear case in which it is appropriate to disturb the magistrate’s findings, particularly as these findings led to the dismissal of the charge on the basis of reasonable doubt. The appeal is dismissed