The first respondent claimed that despite their best efforts their dog was unable to gain weight and appeared emaciated. When proceedings were instituted, the first respondent was successful in being granted a permanent stay as the appellant, the RSPCA, failed to grant the first respondent access to the dog to determine its current state of health. On appeal, it was determined that a permanent stay was an inappropriate remedy and that the first respondent should be granted a temporary stay only until the dog could be examined.
1 HIS HONOUR:
Nature of proceedings
The appellant seeks an order pursuant to s 59(2)(a) Crimes (Appeal and Review) Act 2001 setting aside the order of Mr Maughan LCM made on 28 May 2007. The order which his Honour made on that occasion was that the proceedings brought by the appellant against the first respondent be permanently stayed. By way of consequential order, the appellant seeks that the matter be thereafter remitted to the Local Court to be dealt with according to law.
2 The relevant provisions of the Act are as follows:
“56(1) The prosecutor may appeal to the Supreme Court against:
(b) an order made by a Local Court that stays any summary proceedings for the prosecution of an offence ...
other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone.
(2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court.
59(2) The Supreme Court may determine an appeal against an order referred to in s 56(1)(b), (c) or (d) or 57(1)(b) or (c):
(a) By setting aside the order and making such other order as it thinks just, or
(b) By dismissing the appeal.”
3 The appellant also sought an extension of time for the institution of the appeal. The application for an extension of time is brought pursuant to Part 51B, rule 6(2)(a) of theSupreme Court Rules.
4 A submitting appearance was filed on behalf of the second respondent. The matter thereafter proceeded as a contest between the appellant and the first respondent.
Extension of time
5 The order of his Honour was made on 28 May 2007. Accordingly the 28 day period for lodging an appeal expired on 25 June 2007. The summons was filed three days later, ie on 28 June 2007.
6 The basis for the application for extension of time is that the transcript of the proceedings before his Honour did not become available to the appellant until 25 June 2007 and that some inevitable delay arose in briefing counsel, obtaining advice and drafting an appropriate summons.
7 It seems to me that the explanation offered by the appellant for the three day delay in filing the summons is satisfactory. A period of 2 – 3 days within which to brief counsel, obtain and consider advice and file a summons indicates considerable expedition on the part of the appellant once she obtained a copy of the transcript. The application for extension of time has not been opposed by the respondents, nor has any prejudice been identified. In those circumstances I am prepared to extend the time within which the appellant can file its summons to 28 June 2007.
8 On 2 May 2006 at 10am the appellant, a special constable employed by the Royal Society for the Prevention of Cruelty to Animals NSW (RSPCA), attended the residence of the first respondent at 2 Uren Place, Bligh Park “in relation to a complaint about a skinny dog”.
9 Upon arrival the appellant found a black Labrador located in the swimming pool area of the residence. The appellant described the black Labrador as being in a “very poor body condition”. She seized the dog pursuant to the provisions of s 24J of the Prevention of Cruelty to Animals Act 1979. She left a Seizure Notice on the front door of the residence. The dog was transported to the RSPCA shelter at Yagoona where its weight was recorded at 19 kilograms.
10 At 11.50am on 2 May 2006, the first respondent telephoned the RSPCA and made contact with the appellant. During the course of that telephone conversation the appellant asked the first respondent “Do you wish to surrender the dog to the RSPCA?”. The first respondent replied “Yes, that would be good, I’ve been wanting to get rid of it anyway”. A document entitled “Animal Surrender Form” was signed by the first respondent on 4 May 2006. Subsequently the appellant conducted a record of interview with the first respondent at his residence on 9 May 2006.
11 In the course of that interview the following questions and answers were given:
“23. I said: Did you notice he had a weight problem?
24. He said: Yes, I did and we took him to the vet because he had a skin problem as well, but the vet said to keep off dry food and feed chicken wings and necks and gave us tablets for his skin condition.
25. I said: Did the vet advise you that if Lance did not improve to return?
26. He said: Only on the skin condition. And it improved the skin condition that is.
27. I said: What about his weight?
28. He said: We would see his stomach grow then shrink again.
31. I said: Did it not occur to you to take him back to the vet as he had not put on weight?
32. He said: Yeah it did, but we can’t afford it. Due to financial reasons we could not afford it.
42. We got him from a pound. I should tell you that at the pound he was skinny and they could not get his weight on either.
43. I said: Which pound was this?
44. He said: Hawkesbury. He came from an abusive home.
45. I said: What flea treatment was he on?
46. He said: Frontline Plus.
47. I said: And heartworm treatment?
48. He said: All wormer.
49. I said: Do you realise an all wormer only does bowel worms?
50. He said: No I was just told to give him an all wormer.”
12 On 4 August 2006 a Court Attendance Notice was issued by the appellant to the first respondent. The charge before the Windsor Local Court was as follows:
“Between 4 April 2006 and 2 May 2006 at 2 Uren Place, Bligh Park the accused failed to provide proper and sufficient food to a cross-bred male Labrador cross dog (tag no 30261892) which resulted in the dog being in very poor body condition.”
13 The charge was laid pursuant to s 8(1) of the Prevent of Cruelty to Animals Act 1979 which relevantly provided:
“8(1) A person in charge of an animal shall not fail to provide the animal with food drink or shelter or any of them, which, in each case, is proper and sufficient and which it is reasonably practicable in the circumstances for the person to provide.”
The maximum penalty for the offence is 250 penalty units ($27,500) in the case of a corporation and 50 penalty units ($5,500) or imprisonment for 6 months or both, in the case of an individual.
14 The matter initially came before the Windsor Local Court on 7 September 2006 when the first respondent entered a plea of “not guilty” to the charge. On 8 September 2006 the first respondent’s solicitor wrote to the RSPCA as follows:
“In the meantime please advise as to the present whereabouts of the animal in question and what arrangements can be made to see it if we deem it appropriate to do so.”
15 The RSPCA responded on 19 September 2006:
“In relation to inspecting the dog that is the subject of the current court proceedings, this won’t necessarily be possible, as the dog was surrendered to the RSPCA by your client on 4 May 2006 and has been re-homed.”
16 The first respondent’s solicitor wrote to the RSPCA on 25 September 2006:
“I refer to your letter of 8 September last and to your telephone response of the 13th when you advised that the defence was unable to see the dog the subject of the charge as it had “been rehabilitated and has a new home” and when, upon my remonstration you indicated you would discuss the matter further with your supervisor ...
With respect I maintain that if the defendant chooses to do so in the course of preparing his defence he has a right to inspect the subject animal whether or not it has been re-homed.
It is the prosecutor’s duty to fairly assist the Court to arrive at the truth in proceedings and in doing so one must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of an accused person except in certain well defined circumstances which we say do not appear applicable in this case.
Unless the defendant has the opportunity to see the dog in what is said to be its “rehabilitated” state I feel a Court would find that the defence of the accused may well have suffered by reason of such “non disclosure” and that the prosecutor would be opening the door to some marked and justified criticism... Simply put there is no fairness in your declination to advise when and where the dog may now be inspected and if such remains your position and if the defendant wishes me to do so the matter will be brought to the attention of the Court at the appropriate time.
I urge you to reconsider your decision and look forward to you reply.”
17 On 17 October 2006 the solicitor for the first respondent again wrote to the RSPCA:
“In the meantime I note I have not had the courtesy of any reply to my letter of 25 September again seeking advice as to where the dog may now be inspected.
If that application is not forthcoming I will anticipate being instructed to oppose the fixing of the matter for hearing and seek a stay of proceedings unless and until done so on the ground that there is an unfair prejudice to the defendant and to seek an Order for costs against you as the informant flowing from such declination.”
18 When the matter came before his Honour Mr Maughan LCM on 28 May 2007, the first respondent applied for a permanent stay of the proceedings. This was opposed. His Honour granted the permanent stay. His Honour set out his reasons as follows:
“The defendant appears before the Court charged with failing to provide an animal with food which was proper and sufficient and which was reasonably practicable in the circumstances for the person to provide, and I think we get down to the words – the real issue in the case is provide food which was proper and sufficient. From the evidence thus far, it is clear that the prosecution are leading evidence and will rely on the state – the animal’s state and condition and ask the Court to say that – define that in that condition the animal obviously had not been provided with food that was proper and sufficient.
As a tribunal of fact, to me it is therefore obvious that if one needs to find that the dog’s condition leads you to the conclusion that its – wasn’t provided with food that was proper and sufficient – I hope I keep using the right words – then you would have to conclude that if the dog is provided with food that is proper and sufficient, then the dog’s condition will improve, and it won’t be in the state and condition that it was at the time it was seized. And it’s open to the prosecution in a matter of this nature to lead that evidence.
But, in my view, it should also be open to the defendant and I think it’s important that the defendant raised this in his interview – sorry not – in his – I think it was a phone conversation the day the dog was seized, I think. Yeah, the day the dog was seized, in a phone conversation with Inspector Adams, he raised it again in his interview with the inspector on 9 May. In that interview he refers to taking the dog to a vet, to what the vet told him, and the advice that he received in respect of the weight.
Now, it seems to me that if the Crown are entitled to lead evidence and rely on the fact that, given food which was proper and sufficient, improved the dog’s condition, then the defence as a fundamental issue are entitled to test that evidence by way of examination of the dog, be it by a lay person, by photographs of the dog – because the Crown are relying on photographs of the day it was seized – or, if it becomes necessary, to test the expert evidence if it’s called for the prosecution by expert – by having it examined by an expert, that is a vet, use your common sense. And if the defence can’t test that evidence as the Court said in Jago’s case, it’s a fundamental defect.
See, the prosecution were aware at the time they issued the Court Attendance Notice, which I think was formally received in the Local – the Registry on 17 August, that this was going to be an issue. They were even more aware because the matter came before the Court on 7 September and the defendant was represented that this was going to be an issue. And, quite frankly, it’s the fundamental issue as I said. And the very next day which is the first reasonable opportunity I would think, the defendant being represented on 7 September, the prosecution re-housed the dog, they have the information to find – to be able to provide where it is, and the inspector said that, she’d have to get it from someone else, but it’s there. But they – prosecution elect to re-home the dog and then not provide the information.
To me the defendant not being able to test fundamental evidence on the fundamental issue of the case that is to come before the Court is a fundamental defect as the Court said inJago and I propose to grant the stay.
MR O’DONNELL: Your Honour, could I ask whether your Honour is going to grant a permanent stay or a temporary stay pending the production of the dog? And, your Honour, can I say, I don’t have instructions on the point, but your Honour, it may well be that the inspector can contact the owner and make appropriate arrangements to produce the dog, in which case the perceived defect disappears.
HIS HONOUR: The application is for a permanent stay, that’s what I was dealing with, you now raise another issue, but the case is before the Court, it’s in for hearing today -
MR O’DONNELL: I understand that.
HIS HONOUR: I propose to grant a permanent stay. It’s totally unfair for you now to put yourself in a well, to put the defendant in a position where you say, well, look we’ve got to this point, and well we might change our mind. No, the position was there, the position was taken, it’s a permanent stay.
MR O’DONNELL: Look, your Honour, I wouldn’t your Honour to think that I am accepting that I am acting unfairly, what I’m doing is clarifying with your Honour whether the stay was permanent or temporary and your Honour has answered that question, thank you.
HIS HONOUR: The stay is permanent.”
Submissions on appeal
19 The appellant submitted that there was insufficient evidence before his Honour to justify the granting of a permanent stay. There was no evidence from a veterinary surgeon or other specialist which indicated the sort of tests which could be carried out on the dog which would indicate whether its poor condition could be accounted for by some disease process, rather than as a result of lack of food. The only evidence before his Honour, it was submitted, was that the first respondent maintained that he had properly fed the dog but that despite this, possibly due to some disease process, the dog remained skinny. Without such expert evidence it was not possible to identify any “fundamental defect going to the root of the trial” which could not be remedied so that a permanent stay should be granted.
20 The second submission on behalf of the appellant was that for a defect in a trial to be “fundamental”, the defect had to be “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”. That test, of its nature, required his Honour to consider what alternatives to a permanent stay were available. The obvious alternatives were an adjournment to enable the dog to be examined or a temporary stay which would operate until the first respondent was given an opportunity by the appellant to have the dog examined by his experts.
21 In the written submissions the appellant submitted that his Honour failed to take into account a relevant consideration, ie that the appellant had no means in law available to produce the animal for inspection by or on behalf of the first respondent. It was submitted that there was no evidence before his Honour that the appellant was able to produce the dog for inspection even if she had been willing to do so.
22 The respondent submitted that there was no need for any expert evidence to be before his Honour to establish the difficulties in proving that the dog’s skinny condition was due to illness rather than neglect without the dog being examined. This was a matter of common sense as his Honour appreciated. It was submitted that on any analysis of the charge brought against the first respondent, some examination of the dog would be necessary in order to enable him to meet the charge. This was a fundamental consideration in enabling the first respondent to defend the charge and for the first respondent to be deprived of that opportunity would involve such unfairness as to strike at the legitimacy of the trial. Considerations of fairness to the accused required that the first respondent be given the opportunity to have the dog examined by an expert.
23 In relation to why the stay should be permanent, the first respondent submitted that the crucial period in this matter was between 2 May 2006 when the dog was seized and 4 August 2006 when the Court Attendance Notice was issued. If the examination of the dog was to be useful to the first respondent in defending the charge, the examination had to take place as close to the time when the dog was seized as was possible. This would enable the expert to determine whether some disease process was causing the thin state of the dog. This must have been known to the RSPCA at the time yet no opportunity was afforded to the first respondent for such an examination to take place.
24 The first respondent submitted that since an examination of the dog at or about that time was fundamental to the defence of the charge by the first respondent and since the opportunity for such an examination had now been lost there was no alternative for his Honour other than to grant a permanent stay. This was because nothing could be done at the time that the matter came before his Honour to alleviate the unfairness created by the lost opportunity to examine the dog between May and August 2006.
25 The Court was referred to a number of useful statements of principle. In Jago v The District Court of NSW & Ors  HCA 46; (1989) 168 CLR 23 Mason CJ said at p 28:
“The question is not whether the prosecution should have been brought, but whether the Court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness.”
And at p 31:
“In either event the power [to order a permanent stay] is discretionary to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in the most exceptional circumstances to order that a criminal prosecution be stayed.”
And at p 34:
“To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.
26 More recently the principle was restated by McClellan CJ at CL in Chief Executive Officer of Customs v Pham  NSWSC 285 where his Honour said:
“The fundamental principle is that the court will intervene to stay prosecution proceedings where there may be an abuse of process which carries the consequence that the proposed trial may not be fair. If such an abuse exists, and cannot be cured, the court will intervene.”
27 Applying those statements of principle to the facts of this case, I am not persuaded that it was necessary for the first respondent to adduce expert evidence to the effect that it was necessary to examine the dog in order to determine whether its poor condition was due to a disease process or lack of proper feeding by the first respondent. This, it seems to me, was a matter of common sense. For a fair trial to take place it was necessary for the first respondent against whom the charge had been brought to have the opportunity of having a dog examined. Given the nature of the charge which he was facing, I do not see how the first respondent could properly prepare a defence unless he was given the opportunity of having the dog examined. His Honour was correct in so concluding.
28 That, of course, provides only half the answer to the issue. The next matter which his Honour had to consider was what steps were available to him to overcome that difficulty so as to enable a fair trial to take place. Matters often arise which present obstacles to a fair trial but they do not necessarily cause the proceedings to be permanently stayed. For that to occur the situation must be such that nothing could be done to alleviate the unfairness or in the words of McClellan CJ at CL the problem must be such that it cannot be cured.
29 It seems to me that his Honour fell into error in relation to this part of the issue. His Honour does not seem to have asked himself what, if any, alternatives there were, short of a permanent stay, which might alleviate the unfairness which he correctly identified would exist if the first respondent was not able to have the dog examined.
30 When an alternative was suggested to his Honour at the end of the hearing by Mr O’Donnell, his Honour rejected it out of hand on the basis that the matter before him was whether a permanent stay should be granted and that other alternatives were not under consideration. That approach involved error for the simple reason that in determining whether or not to grant a permanent stay, his Honour was obliged to consider other alternatives. It was only if those alternatives could not alleviate or cure the unfairness, that the exceptional remedy of a permanent stay should be granted.
31 The obvious alternative to which his Honour should have had regard was that which was tentatively and rather tardily raised by Mr O’Donnell, ie a temporary or conditional stay of the proceedings until the first respondent was given the opportunity of having the dog examined. If the dog could not be examined then the stay would remain in force.
32 I do not accept the submission by the respondent that the time when the dog should have been examined was between May and August 2006 and that since that opportunity has now been lost, there was no point in the dog being examined after that date because the results of such an examination would have no relevance to the defence of the charge.
33 That may well be so. Nevertheless there was no evidence to that effect upon which that submission could be based. In the absence of such evidence, it would have been mere speculation on the part of his Honour and on my part to base any part of our conclusion on such a submission.
34 It may turn out through the effluxion of time, and as a result of expert evidence (if such is eventually obtained), that the opportunity for obtaining any useful evidence from the examination of the dog has been forever lost. That, however, is a matter for another time and another court. In the absence of evidence, speculation of that kind can provide no basis for principled decision making.
35 For completeness, I should deal with one of the submissions of the appellant. This was the submission which raised the issue of the inability of the appellant as a matter of law to provide the dog for examination once it had been given to new owners.
36 That submission provides no answer to the complaint of unfairness raised by the first respondent. The RSPCA through the appellant brought the prosecution. After the Court Appearance Notice had been issued the dog was placed in a new home. Steps should have been taken at that time by way of agreement with the new owner or otherwise to provide for the dog to be examined if this was required. Any inability of the RSPCA to produce the dog when it knew of the impending prosecution was brought about by its own conduct. It would not prevent the first respondent obtaining a stay of the proceedings for unfairness if he was otherwise entitled to it.
37 It follows from the above that the appeal succeeds and the matter should be remitted to the Local Court to be dealt with according to law.
38 I have found the question of costs difficult to resolve. The appellant has succeeded in having the permanent stay set aside. On the other hand, his Honour was correct in identifying a significant element of unfairness in the prosecution proceeding without the first respondent being given an opportunity of having the dog examined. The genesis of the problem which gave rise to this appeal was the rather high-handed and, in my opinion, unreasonable behaviour of the RSPCA in refusing to adequately respond to the reasonable request made on behalf of the first respondent, that the dog be made available for examination.
39 In those circumstances, I am of the opinion that the appropriate order is for each party to pay his or her own costs of these proceedings.
40 The orders which I make are as follows:
(1) The time for filing the Summons is extended to 28 June 2007.
(2) The appeal is allowed.
(3) The order of his Honour Mr Maughan LCM of 28 May 2007 permanently staying the prosecution of the first respondent by the appellant is quashed.
(4) In lieu thereof, I order that the prosecution of the first respondent by the appellant be stayed until an opportunity is provided to the first respondent’s legal advisers of having the dog “Lance” appropriately examined.
(4) The proceedings are to be remitted to the Local Court to be dealt with according to law.
(5) Each party is to pay her or his own costs of this application.