The respondents were charged with nine counts of inflicting unnecessary suffering on an animal, a cow, and one count of of subjecting 50 cows to unnecessary suffering. The trial judge found the respondents wrongly charged and dismissed the charges without the prosecution clearly articulating its case. The trial judge was incorrect to dismiss the charges for want of particulars. The trial magistrate was also incorrect to dismiss the tenth charge for duplicity. In some circumstances it is possible to include multiple offences in the same charge where the matters of complaint are substantially the same.
1 MILLER J : This is an appeal from a decision of Mr Robert Burton SM given in the Court of Petty Sessions at Perth on 26 September 2002 when the learned Magistrate dismissed 10 complaints against each of the respondents.
2 The respondents had been jointly charged on a complaint which annexed 10 separate and distinct complaints alleging that between 9 and 11 September 2001 between Mt Augustus Station (via Meekatharra) and Midland they subjected various animals to unnecessary suffering, contrary to the provisions of s 4(1)(f) of the Prevention of Cruelty to Animals Act 1976 ("the Act"). The first nine charges related in each case to an individual animal, being a cow in each case. The tenth charge alleged that the defendants had subjected 50 animals (namely 45 cows and five calves) to unnecessary suffering.
3 The provisions of s 4(1)(f) of the Act are as follows:
"4.(1) It shall be an offence against this Act for any person to -
...
(f) needlessly slaughter, or cause to be slaughtered, or needlessly mutilate any animal or subject such animal to unnecessary pain or suffering;"
4 It is important to understand the course of the proceedings. They were commenced on 2 August 2002 with the filing of the 10 complaints in the Court of Petty Sessions at Perth. There had previously, on 31 December 2001, been 10 charges against the respondents alleging ill treatment of an animal, contrary to the provisions of s 4(1)(a) of the Act, but on 7 August 2002 in the Fremantle Court of Petty Sessions no evidence was offered by the prosecution in relation to those complaints and the learned Magistrate (Mr Robert Burton SM) dismissed the charges. On the same day the respondents faced the 10 complaints alleging offences against the provisions of s 4(1)(e) of the Act. In my opinion nothing turns upon the fact that earlier complaints alleging offences against s 4(1)(a) of the Act had been preferred and later dismissed.
5 When the respondents came before the learned Magistrate on 7 August 2002 there was an argument in relation to particulars. There was already before the Court a statement of material facts which comprised some five pages and a document described as "further and better particulars" which comprised some 14 pages. This latter document had been provided in response to a request for further and better particulars relating to the original charges under s 4(1)(a) of the Act. It was a lengthy summation of the evidence which the prosecution contended supported the various complaints.
6 The learned Magistrate reserved his decision on the question of particulars, delivering it on 20 August. He recited the history of the proceedings and concluded that the respondents were entitled to be told "of the essential factual ingredients of each of the actual offences charged". He held that although it would be "possible for me to dredge that the two documents supplied to each of the defendants, a statement of material facts consisting of five pages and a 14 page document described as further and better particulars, the relevant particulars of the prosecution alleged ... that is not my function". The learned Magistrate concluded that on the authority of Bunnings Forest Products Pty Ltd v Shepherd , unreported; SCt of WA; Library No 980235; 5 May 1998 the particulars given were deficient. His Worship concluded as follows:
"I decide that this matter is not to proceed until those particulars have been provided and in default of such provision the charges will be dismissed see Johnson v Miller (1937) 59 CLR 490.
To assist with the proper defence to and disposition of these charges the particulars are to be provided within seven days of the date of this decision. Seven days is all the time that is necessary because I have already been given a statement of material facts and very extensive 'particulars'.
I decide that in addition to supplying the above particulars the following specific particulars should be provided.
1. Who owned the cattle once they were on the trucks.
2. What each defendant did that was the cause of the unnecessary suffering.
3. The particulars requested by the defendants, not the evidence."
7 On 28 August 2002 (one day later than the order prescribed), particulars relating to the respondent Lindberg were served. There was a further appearance before the learned Magistrate on 29 August 2002 when the adequacy of the particulars was the subject of argument. The learned Magistrate excused the day's delay in supply of the particulars. Later, a set of identical particulars was served upon the respondent Hammarquist.
8 The proceedings on 29 August seem to have been mainly concerned with two issues. The first was whether the prosecution was obliged to make available to the defence copies of various witness statements. The learned Magistrate ordered the prosecution to supply such statements, although no timeframe seems to have been fixed for so doing.
9 The second issue which was dealt with was the correct interpretation to be placed upon the provisions of s 4(1)(f) of the Act. In this respect, the learned Magistrate gave early notice that he disagreed with the decision of Brinsden J in Lightfoot v Young , unreported; SCt of WA; Library No 7152; 8 June 1988, where his Honour held that s 4(1)(f) of the Act creates four separate offences, one of which is subjecting an animal to unnecessary pain or suffering, such an animal not necessarily being one which has either been slaughtered or mutilated. The learned Magistrate observed that Nicholson J had reached the same conclusion in Netherway v RSPCA , unreported; SCt of WA; Library No 7440; 22 December 1988 but he stated that he disagreed with the decision of both Judges and was of the opinion that the charges against the respondents, that they had subjected animals to unnecessary suffering, could not be made out because in each case the animals were not the subject of slaughter or mutilation, but animals which were being transported. His Worship expressed the view that the offence of causing an animal unnecessary pain or suffering was conditioned by the need for it to be the subject of slaughter or mutilation.
10 Curiously, the learned Magistrate expressed the view that "the evidence wouldn't support the charges". He said:
"I decide that the word 'such' relates it back to the slaughtering or the mutilation and I think that the charges - the evidence wouldn't support the charges. I make the comment that 4 (1)(e) deals with conveying animals but only in a manner that creates unnecessary suffering - and that's not an issue here. I make the comment that causing unnecessary suffering could be - could have been included in 4 (1)(a) where you've got ill-treatment or it could have been subject to a separate subsection.
My reading of the section tells me that suffering simpliciter apparently is not sufficient. It must be connected to slaughtering or maiming."
11 Apart altogether from the fact that the learned Magistrate was bound by the decisions in Lightfoot v Young and Netherway v RSPCA , it was entirely inappropriate for him to reach a predetermination of the complaints as he did.
12 The hearing was adjourned from 29 August 2002 to 26 September 2002. On that day there was further argument in relation to a variety of matters, including sufficiency of particulars, the necessity to provide witness statements and the proper interpretation to be placed upon the relevant section of the Act. All of this was ventilated before the learned Magistrate by counsel for the various parties, at the conclusion of which, the learned Magistrate (without hearing any evidence at all) dismissed all charges. His reasons for such dismissal were in the following terms:
"I'm a bit sad about this but I think it's all got to go down to the Supreme Court. I'll mention Fowler again, the bit that I quoted out of Fowler which has been in the transcript. I believe that on the facts that I have been shown, I wouldn't convict these people of this -- these defendants of this offence. I think they have been wrongly charged under 41F ( sic ).
I believe that the particulars are - the particular argument is absolutely identical to that in Bunnings Timber Industries, Bunnings Forests, and Shephard. The -- I believe that there hasn't been sufficient particulars supplied. The fact that they were -- that Lindberg arranged the sale is not sufficient. I believe that the fact that there's a contract isn't a cause. I believe that the -- I would order the production of the statements. I suppose that's all I should do. I believe it applies to a prosecution by the complainant in this case. I believe there is a purpose for having the witness statements. I also -- I don't know whether you want -- while we're at it, we might as well solve the whole thing. I've looked at the particulars relating to the charge which relates to the number of animals, and I rule that it's duplex in relation to that. I think there's going to be a charge for each animal. I haven't heard anybody about that, but that might as well be sorted out at the same time.
I principally say that the facts -- it doesn't seem to me that the facts are identical. I would have thought if you put a whole lot of cattle in a paddock and left them, you might well be able to have a joint charge. But it seems that the state of the animals in each of these cases is slightly different, and therefore, there's got to be a separate charge in relation to each animal.
I have now got a copy of the particulars; I've got a copy of that argument. I would have thought what I should do is -- I dismiss the charges as they're laid and that can go. And I'm -- and I'm -- my suggestion, and you can ignore that, is that the whole box and dice should go to the Full Court not a single judge. Whether you -- whether somebody complies, that's another matter."
13 The course taken by the learned Magistrate in dismissing the charges in these circumstances was irregular. This was not a case in which the defence had the opportunity to raise the issues by way of demurrer such as would be open under the provisions of s 590 or 614 of the Criminal Code . These were summary proceedings, and unless the parties had agreed between themselves that the proceedings should be dealt with by some interlocutory ruling of the learned Magistrate such as he gave, it was entirely inappropriate in my view for the proceedings to be summarily dismissed as they were. In the course of dismissing the complaints the learned Magistrate held:
(a) the defendants had been "wrongly charged" under s 4(1)(f);
(b) insufficient particulars were supplied;
(c) witness statements had not been supplied;
(d) one of the complaints was bad for duplicity.
It seems that it was for the first two reasons that the complaints were dismissed and for the fourth reason that the tenth complaint was dismissed as well.
14 Whilst it was technically open to the learned Magistrate to dismiss a charge for duplicity, no argument had been put to him to that effect. It was of his own motion that he dismissed the tenth charge for duplicity, although it is true that his Worship had made earlier mention of it during earlier proceedings.
15 Further, in relation to the dismissal of the charges for lack of sufficient particulars, no opportunity was given to the prosecution to further amend the particulars. A request had been made for counsel for the prosecution to have a further opportunity to amend the answers to particulars if they were considered by the learned Magistrate to be insufficient and the point was made that the complainant had only recently obtained legal advice in relation to the issue. The learned Magistrate appears not to have ruled on the request in any way.
16 The ruling in relation to the absence of witness statements appears to have been consequential upon submissions made on behalf of one of the defendants that copies of statements of certain truck drivers should be made available, in response to which counsel for the prosecution began making submissions before effectively being cut off. The learned Magistrate said "I think we've got just about enough of that" and proceeded there and then to give reasons for dismissing the charges, in the course of which he made reference to the failure to provide witness statements.
17 In all, it can be said that the proceedings before the learned Magistrate were substantially irregular. No consideration seems to have been given at all to the question whether any evidence was required before the charges could be dismissed. Clearly it was: see R v Hyman & French (1990) 2 WAR 222 per Brinsden J at 234.
18 Following the dismissal of all charges, the appellant sought leave to appeal the decision of the learned Magistrate and on 30 October 2002 was granted leave by Templeman J to appeal the dismissal of the various complaints on the following grounds:
"(a) The Learned Magistrate erred in law in holding that sub-section 4(1)(f) of the Prevention of Cruelty to Animals Act 1920 had application only with respect to pain or suffering caused to an animal arising from the slaughtering of the animal. The Learned Magistrate ought to have held that the sub-section creates an offence in relation to any unnecessary pain or suffering howsoever caused to an animal.
(b) The Learned Magistrate erred in holding that the particulars to the charges supplied by the Applicant were insufficient to disclose the commission of an offence contrary to sub-section 4(1)(f) of the Prevention of Cruelty to Animals Act 1920 (WA).
(c) Further or alternatively, the Learned Magistrate ought to have adjourned the hearing of the charges so as to afford the Applicant the opportunity to provide further particulars of the charges.
(d) The Learned Magistrate erred in ordering that the Applicant should provide witness statements to the Respondents.
(e) The Learned Magistrate erred in law in holding that the charges or any of them were duplicitous.
(f) The Learned Magistrate erred in that he failed to provide proper and sufficient reasons for his decision to dismiss each of the charges."
The grounds of appeal
Ground (a): The proper meaning of s 4(1)(f) of the Act
19 The learned Magistrate concluded that the respondents had been wrongly charged under s 4(1)(f) of the Act and said that he would not convict them of that charge.
20 As I pointed out, no evidence had been adduced before the learned Magistrate and there had been no agreement between counsel to the effect that the learned Magistrate's interpretation of s 4(1)(f) would govern the case in advance of the hearing of any evidence. It would, of course, have been open to counsel to have sought the learned Magistrate's ruling in relation to the matter, and in the light of that ruling, to have adduced no evidence, in which event the complaints could have been dismissed. That was the course adopted in R v Hyman & French ( supra ).
21 However, at no stage was agreement reached that the case should be dealt with in this way. The learned Magistrate therefore had no authority to dismiss the charges on the basis that the material contained within the statement of facts and the particulars failed to justify a charge under s 4(1)(f) of the Act. This decision could only have been made at the close of the prosecution case. However, the prosecution was never given the opportunity to open its case. To this extent there has been a clear miscarriage of justice and in my view, the appeal should be allowed on this ground and remitted to the Court of Petty Sessions for hearing before a different Magistrate.
22 However, it is appropriate that I deal with the issue of the proper meaning to be attributed to s 4(1)(f) of the Act.
23 The learned Magistrate was bound by the authority of two cases decided in this Court on the very point. They are Lightfoot v Young ( supra ) and Netherway v RSPCA ( supra ). In the first of these cases Brinsden J concluded that the words "such animal" in s 4(1)(f) can refer back to the words "any animal" and accordingly there can be a conviction for causing unnecessary pain or suffering to an animal, irrespective of whether it has been needlessly slaughtered or caused to be slaughtered or needlessly mutilated. The same conclusion was reached by Nicholson J in the second case, apparently without Lightfoot v Young having been cited in argument.
24 The reasoning of Brinsden J in Lightfoot v Young was first that the section created four separate and distinct offences. His Honour said (at 3):
"There are in my view four offences described in s 4(1)(f), as counsel for the appellant concedes, as follows:
(1) Needlessly slaughtering any animal.
(2) Needlessly causing to be slaughtered any animal.
(3) Needlessly mutilating any animal.
(4) To subject such animal to unnecessary pain or suffering."
25 Brinsden J then dealt with the argument that the words "such animal" as they appear in s 4(1)(f) must refer to an animal that has either been slaughtered or mutilated. His Honour said (at 4 - 5):
"The first point taken by the appellant is that the words 'such animal' as they appear in s 4(1)(f) refer to an animal that has either been slaughtered or mutilated. Such construction would therefore require the offence to read 'to have subjected such slaughtered or mutilated animal to unnecessary pain or suffering'. This construction would be required because obviously it would be impossible to subject a slaughtered animal to unnecessary pain or suffering after it had been slaughtered though perhaps it might be possible to subject a mutilated animal to unnecessary pain and suffering after it had been mutilated. But as advanced to me the submission limited the subjection of the animal to an act of unnecessary pain or suffering either in the process of slaughtering or mutilation. The animals in question had not been slaughtered or mutilated, at least not only by the appellant. The respondent contends that the words 'such animal' refer to any animal whether slaughtered, mutilated or not. That is the construction I prefer. The appellant's construction requires the words 'to subject' to read as 'to have subjected' or for there to be added 'during the process of slaughter or mutilation'."
26 His Honour dealt with other arguments relied upon to support the contention that "such animal" can refer only to an animal that has either been slaughtered or mutilated and dismissed them. It is unnecessary for me to set out in detail all of his Honour's reasoning at pages 5 - 6.
27 In Netherway v RSPCA , Nicholson J's reasoning was to the following effect (at 4 - 5):
"... it is argued for the appellant that the use of the word 'such' in conjunction with the word 'animal' in s 4(1)(f) means that there cannot be a conviction for causing unnecessary pain or suffering unless it is also shown that the animal has been needlessly slaughtered or caused to be slaughtered or needlessly mutilated. Reference is made to the Shorter Oxford English Dictionary and to the definition of the word 'such' at p 2177. To support this contention it was said that if there was doubt or ambiguity in the section that ambiguity or doubt should be resolved in favour of the subject by refusing to extend the category of criminal offences: Beckwith v R (1976) 12 ALR 333 at p 339 cited in DC Pearce Statutory Interpretation in Australia (2nd edn) p 140 para 190.
For the respondent it is contended the section is to be read disjunctively.
No assistance is gained from the definition of the word 'animal' in s 3(a) of the Act where the word is defined to mean 'any domestic or captive animal'.
In my opinion the principles appealed to on behalf of the appellant can be applied without the result contended for on behalf of the appellant. The words 'such animal' can refer back to the words 'any animal'. The prior reference to 'any animal' is not a reference to any particular type of animal - the other provisions in the section are not adjectival qualifications of the reference but descriptions of actions in relation to 'any animal'."
28 I was asked on the hearing of this appeal to conclude that both Lightfoot v Young and Netherway v RSPCA were wrongly decided and the proper interpretation of s 4(1)(f) is that only an animal needlessly slaughtered or mutilated can be the subject of a charge under s 4(1)(f), in relation to the subjecting of such an animal to unnecessary painless suffering.
29 I am not bound by the decisions in Lightfoot v Young and Netherway v RSPCA and I am entitled to reconsider the matter if I am of the view that the earlier decisions are clearly wrong: La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201. However, as pointed out in that case, I am required as a matter of judicial comity to follow the previous decisions unless convinced that the judgments were wrong. In this case I decline to depart from the views expressed by Brinsden J in Lightfoot v Young and Nicholson J in Netherway v RSPCA . I respectfully consider the conclusions reached by them and the reasons for those conclusions to be correct. I consider that it was open to the appellant to prosecute the respondents for an offence under s 4(1)(f) of the Act alleging the subjection of an animal to unnecessary suffering, notwithstanding that the particulars delivered by the prosecution revealed that in no case was the animal the subject of slaughter or mutilation.
30 In argument before me, counsel for the respondents questioned the reasoning in the earlier cases and did so by reference to a number of established precepts of statutory interpretation, including
(a) the rule of construction which gives the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise, such as in indication to the contrary;
(b) the corollary to this mode of statutory interpretation that a change of wording indicates a change of meaning;
(c) the comparison between the words "any animal" in s 4(1), (a), (d), (e), (f) and (j) of the Act with "such animal" in s 4(1)(f) of the Act;
(d) the ejusdem generis rule whereby where there are two or more specific words forming a class followed by general words, the Court may read down the general words to agree with the meaning of the class (thus resulting in an interpretation whereby the words "needlessly slaughter or cause to be slaughter or needlessly mutilate any animal" followed by the general words "or subject such animal to unnecessary pain or suffering" should result in the latter words being confined to the more specific class of conduct involving slaughter or mutilation);
(e) the need to resolve ambiguities in a penal provision in favour of the subject.
31 Reliance was placed upon the decision in Chipper v Regan (1974) 4 ALR 125 to support the proposition that the words "such animal" should relate back to a slaughtered or mutilated animal. However, that case was concerned with the interpretation of the provisions of s 36 of the Gold Buyers Act 1921 (WA), a provision entirely different and distinguishable from the facts of this case.
32 Counsel for the second respondent pointed out that the Prevention of Cruelty to Animals Act 1912 contained a slightly different provision comparable to s 4(1)(f). It was s 4(1)(g) which was in the following terms:
"4(1) Any person who -
...
(g) Slaughters, or causes to be slaughtered, any animal in such a manner as to subject such animal to unnecessary pain or suffering; or"
33 This provision clearly related the offence of causing an animal unnecessary pain or suffering to one which was slaughtered or caused to be slaughtered. The Act was repealed by the 1920 Act and in the course of the second reading of the Bill for that Act (Hansard, 14 December 1920 at 2371), a question was asked by a member of the House "what is the force of the words 'needlessly slaughter' in paragraph (b) ( sic (f)) of subclause 1".
34 The answer from the Minister was to the following effect:
"Mr GRIFFITHS: I have details of needless slaughter and needless doing to death of animals in revolting circumstances. The burning of a dog to death and the flogging of three horses to death are instances in point."
35 Counsel for the second respondent sought to rely upon this statement as an indication that s 4(1)(f) had the intention that the words "such animal" necessarily related back to a slaughtered or mutilated animal. However, I do not think the statement made by the responsible Minister in the Second Reading Speech has that result. It is entirely neutral on the subject.
36 It is unnecessary for me to recanvass the arguments which were put before Brinsden J and Nicholson J in the earlier cases. They were comprehensively dealt with by their Honours and I respectfully adopt their reasoning in every respect. Nothing put in argument before me leads me to the view that the cases were wrongly decided and I therefore decline to conclude that they were.
37 It follows that the decision of the learned Magistrate (who was quite well aware of the decisions of Brinsden J and Nicholson J in the respective cases) was in error. Not only was the learned Magistrate bound to follow the earlier decisions, but he was, in my view, bound to hear evidence presented by the prosecution (assuming they wished to lead evidence) and decide the case according to law either at the conclusion of the Crown case or at the conclusion of the Crown and defence case, depending upon what submissions were made. It was entirely premature to dismiss the charges on the basis that the respondents had been "wrongly charged under s 4(1)(f)" as the Magistrate concluded. I need only add that the proper administration of justice is thwarted by a Magistrate refusing to accept a line of authority established in this Court and in the circumstances of the case, what happened should never have happened.
Ground (b): The adequacy of particulars
38 One of the reasons for dismissal of the charges on 26 September 2002 was the learned Magistrate's conclusion that there had not been sufficient particulars supplied by the appellant in response to an application for particulars and an order made by the learned Magistrate himself. The reasons in this regard were brief, the learned Magistrate commenting only that "I believe that there hasn't been sufficient particulars supplied. The fact that they were ... that Lindberg arranged the sale is not sufficient. I believe that the fact that there is a contract isn't a cause."
39 There had been a long history of the respondent's seeking particulars. The learned Magistrate had dealt with the issue on several occasions. Originally, in relation to charges preferred under s 4(1)(a) of the Act, a set of very voluminous and prolix particulars had been delivered by the appellant then unrepresented by solicitors or counsel. When the charges under s 4(1)(a) of the Act were withdrawn and charges under s 4(1)(f) substituted, the prosecution sought to rely upon those original particulars. These the learned Magistrate considered failed to comply with the requirements of the law in relation to particulars, particularly as set out by Anderson J in Bunnings Forest Products Pty Ltd v Shepherd ( supra ). Consequently, on 20 August 2002 the learned Magistrate ordered the prosecution to provide within seven days the particulars which had been sought by the defendants and, in addition, ordered the supply of further particulars as I have already set out. They were:
"1. Who owned the cattle once they were on the trucks.
2. What each defendant did that was the cause of the unnecessary suffering.
3. The particulars requested by the defendants, not the evidence."
40 In response to this order the appellants supplied a shorter version of particulars which purported to answer at least the learned Magistrate's order. An example is the following passage taken from the further and better particulars rendered in relation to the first respondent on the first charge:
" Charge 1
It is alleged that the defendant agreed to the sale that caused the transport of this cow identified as B1 (along with the other cattle) from Mount Augustus to Midland when such animal was in a poor body condition and in a late stage of pregnancy and due to the poor body condition and its late stage of pregnancy subjected the animal to unnecessary suffering.
The defendant had sold this cow to Mr Dredge, of Bellevue, with the co-defendant acting as an Agent on behalf of Wesfarmers. The co-defendant completed a Private Sale Agreement number 107470 between the defendant and Mr Dredge and this was signed by the defendant.
This animal should not have been loaded onto the truck and subjected to the 17 hour journey from Mount Augustus to Midland in its condition and it is these actions by the defendant that are alleged to have caused him to have subjected this animal to unnecessary suffering."
41 The particulars rendered in relation to the second respondent were similar but reflected the different role he was alleged to have played in the transaction, which allegedly led to the transport of animals in a poor state of health, in consequence of which they were allegedly subjected to unnecessary suffering. The particulars in relation to charge 1 against the second respondent were:
" Charge 1
It is alleged that the defendant arranged the sale that caused the transport of this cow identified as B1 (along with the other cattle) from Mount Augustus to Midland when such animal was in a poor body condition and in a late stage of pregnancy and due to the poor body condition and its late stage of pregnancy subjected the animal to unnecessary suffering.
The defendant had arranged the sale of this cow between the co-defendant Mr Hammarquist and Mr Dredge, of Bellevue and the defendant completed a Private Sale Agreement number 107470.
This animal should not have been loaded onto the truck and subjected to the 17 hour journey from Mount Augustus to Midland in its condition and it is these actions by the defendant that are alleged to have caused him to have subjected this animal to unnecessary suffering."
42 The particulars in relation to other charges mirrored these particulars, save that in relation to the tenth charge they were more detailed in relation to the identification of the animals involved.
43 On 26 September 2002 the question of the adequacy of these particulars was raised by counsel for the respondent. They argued that the particulars were still inadequate and that the failure to provide proper particulars meant that the complaints should be dismissed.
44 The appellant was by now represented by counsel. He began by seeking to defend the particulars as sufficient particulars, but submitted that if the learned Magistrate thought the particulars did not comply with the order made, he would like the opportunity to come back in relation to the matter. His submissions are encapsulated in the following passages:
"MR BARGOYNE: In that --- in relation to that, if the particulars -- if your Worship is of the opinion that the particulars aren't adequate --
HIS WORSHIP: Right.
MR BARGOYNE: -- then it's open for your Worship to say.
HIS WORSHIP: But you see, the problem is I could give you, in about five lines, what I want. But my suspicion is by doing that I'm coming down into the arena and mixing it with the contestants. That's the problem.
...
MR BARGOYNE: Because there was three --
HIS WORSHIP: Yes.
MR BARGOYNE: -- points --
HIS WORSHIP: Yes.
MR BARGOYNE: -- mentioned. And in -- if that's the case, then the -- if that's -- if your Worship is of the opinion still that they're insufficient --
HIS WORSHIP: Yes.
MR BARGOYNE -- then the prosecution should be given the further opportunity --
HIS WORSHIP: Yes.
MR BARGOYNE: -- because it certainly was given the opportunity to ... (indistinct) ... on it.
HIS WORSHIP: Yes. Yes. Right."
45 Immediately after making this submission, counsel for the appellants pointed out that it was only at this late stage in the proceedings that the appellant had sought and obtained legal advice.
46 The learned Magistrate ruled that the particulars given were inadequate and dismissed the complaints without giving counsel for the appellants the opportunity to reconsider the matter. Although it was true the matter had been before the Court on the subject of particulars several times, I cannot see that there was any prejudice to the respondents by the appellant being given a further adjournment to enable counsel (now instructed) to put the particulars into better shape if they fail to comply with the order made by the learned Magistrate. It was not a case such as Johnson v Miller (1937) 59 CLR 467 where there had been an outright refusal to give particulars. In such circumstances a complaint or complaints might rightly be dismissed. Here, there had been an effort to provide particulars, the first set of particulars being in excess of what was required and the second arguably failing to address precisely the specific particulars ordered by the learned Magistrate. I am unable to see that a further adjournment of the case could have prejudiced the respondents, who could have been compensated by an appropriate order or orders for costs. Although the grant or refusal of an adjournment is a matter for discretion of the Court to whom any application is made, where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party: Myers v Myers [1969] WAR 19.
47 I consider that in all the circumstances of the case the appellant ought to have been entitled to an adjournment for the purpose of correcting any shortcoming in the particulars (settled by a lay officer of the appellant), which the learned Magistrate may have considered there to have been.
48 So far as the particulars are concerned, it seems to me that although they may not have precisely answered the three questions posed by the learned Magistrate, in that there was no answer to the question who owned the cattle once they were on the trucks, the particulars otherwise identified the case which the respondents were required to meet. In Bunnings Forest Products v Shepherd , Anderson J identified what is required by way of particulars in summary proceedings. At 9 his Honour said:
"No person should be punished for an offence unless the specific charge against him is distinctly stated, so that it may be answered. See Coward v Stapleton (1953)90 CLR 573 per Williams ACJ, Kitto and Taylor JJ at 579-580 for a statement of that principle in the context of a charge of contempt of court. See also Cotterill v Lempriere [1890] 24 QBD 634 at 639; Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153. In the latter case, the principle was stated (at 166) in the following terms: 'An accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence.' See also the discussion of this subject in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519-520. In that case Mason CJ, Deane and Dawson JJ (at 520) expressed the common law requirement as being that 'an information must at the least condescend to identifying the essential factual ingredients of the actual offence.' "
49 In my view the particulars rendered did sufficiently provide the particulars required to enable the respondents to prepare their defence. They were told what role it was they were alleged to have played in relation to the transport of the animals, namely that they were parties to an agreement for the sale of animals that "caused the transport" of them in circumstances where they were unfit to be transported and where the 17 hour journey in question was such as to subject them to unnecessary suffering.
50 Questions might well arise at trial as to whether the way in which the case against each of the respondents is particularised would be sufficient to convict them of an offence under s 4(1)(f) of the Act and about this I express no opinion. It is, however, sufficiently clear that each of the respondents was being charged on the basis of being parties to an agreement to sale of stock which in turn caused their transport in certain conditions. In other words, it was not being alleged that they played any part in the actual transport of the stock and/or the loading of the stock, but merely matters preparatory to their transport. It was entirely a question of evidence and application of the provisions of s 4(1)(f) which were required to determine whether or not the prosecution had proven the case against each of the respondents beyond reasonable doubt. Unfortunately, no evidence was ever forthcoming.
51 To the extent that the particulars failed to actually answer the question who owned the cattle once they were on the trucks, the appellant ought to be given the opportunity to amend them. To the extent that they may fail to answer any other aspect of the particulars rendered (as to which the learned Magistrate does not seem to have made a specific finding) the appellant ought to have the opportunity to further refine the answers to particulars to meet the requests in that regard.
52 Whichever way one looks at it, it was, in my view, a miscarriage of justice for the learned Magistrate to simply dismiss the complaints out of hand for failure to provide sufficient particulars. The learned Magistrate did not dismiss the complaints on the basis that the appellant had had ample opportunity to get the particulars in shape and had failed to do so, but simply held that insufficient particulars were supplied and for the reason dismissed the complaints. He should, in my view, have ruled on the application of counsel for the appellant that there be an adjournment to enable him to further amend the particulars, such an adjournment necessarily being one on terms in relation to costs. For these reasons I am of the view that the second ground of appeal should succeed.
Ground (c): Further adjournment
53 For the reasons I have set out in relation to the previous ground there should, in my view, have been a further adjournment to enable the particulars to be corrected and accordingly this ground is made out.
Ground (d): The provision of witness statements
54 On 7 August 2002 the learned Magistrate ruled that the respondents were entitled to the statements of witnesses to be called by the prosecution. Counsel for the first respondent sought only statements from five truck drivers, but it appears that on 20 August 2002 the learned Magistrate ruled that copies of all statements of witnesses to be called by the prosecution were to be made available to the defence. His Worship relied in this respect upon the decision in R v Kingston (1986) 2 QdR 114, but in my view misunderstood the proper meaning of that decision. There, the Court of Criminal Appeal of Queensland held that in summary proceedings, a Magistrate can, if adequate reason is shown, order that previous statements of a prosecution witness be shown to the defence and the document or documents be placed in the court's custody to allow that purpose to be carried out. However, Macrossan J (at 125) made it clear that "nothing like general discovery of the prosecution's documents can legitimately be sought" in a court of summary jurisdiction. Rather, if adequate reason is show, a Magistrate may order that previous statements of the prosecution witnesses be shown to the defence and be placed in the court's custody.
55 It appears that in response to the order of the learned Magistrate the appellant supplied the statements of all witnesses to be called, save those of the truck drivers. Further argument took place in relation to this on 26 September 2002 but the learned Magistrate was resolute in his view that the authority of R v Kingston ( supra ) entitled him to direct that the statements of the truck drivers, in addition to those of other witnesses, should be made available. His Worship said (in a somewhat disparaging statement about decisions of this Court):
"HIS WORSHIP: There's a whole heap of single judges in Western Australia which are against me. I don't seem to be doing too well this morning. But I believe that that Full Court in Queensland absolutely deals with it because they talk about the High Court and they talk about the -- that committal proceedings, and they -- and the matter before the Full Court was a matter that was a summary matter. It wasn't a committal proceedings. We've got, what; the Court's -- the Criminal Law Court's Procedure Act says it's all going to be produced from -- but that's in committal proceedings. I mean, that's relevant to note. I mean, it doesn't necessarily --
MR BARGOYNE: The summary, yes.
HIS WORSHIP: -- doesn't apply to summary proceedings, but that's the sort of thing they say."
56 His Worship's reference to decisions of single Judges no doubt incorporated a reference to the decision of Murray J in Carew v Carone (1991) 5 WAR 1 (at 8) where his Honour said:
"In relation to simple offences, there is no statutory requirement for pre-trial disclosure in any form and it quite lawfully may be the case that the first a defendant knows of the content of the case against him and how it is to be presented and by which witnesses, will be upon the trial."
The same conclusion was reached by Roberts-Smith J in Bromley v Bembridge [2002] WASCA 192 at [52].
57 Counsel for the first-named respondent relied upon the decision in Adams v Anthony Bryant & Co Pty Ltd & Ors (1986) 67 ALR 616, where Wilcox J took the view that in summary proceedings a Magistrate is entitled to make such orders as are necessary for the proper conduct of a summary criminal trial and this might include directing the delivery of a witness statement. At 619 his Honour said:
"... it is open to the court - subject to any other relevant consideration - to make such orders as are necessary for the proper conduct of a summary criminal trial. In Barton v R (1980) 147 CLR 75 at 96; 32 ALR 449 at 459 Gibbs ACJ and Mason J said: 'There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place.' I do not doubt that, in the application of that power, this court could stay proceedings until such time as any preliminary steps, considered necessary in the interests of justice, had been taken. The question, in the present case, is whether, pursuant to the general power of the court, I should order the supply to the defendants of statements of evidence and, if necessary, stay the proceedings until such time as those statements have been supplied."
At 621 his Honour added:
"The primary duty of the court is to ensure a fair trial of the informations. If a fair trial could not be provided without taking a step which, in a practical sense, would require the prosecutor to waive legal professional privilege, I would not hesitate to take that course: cf R v Kent; Ex parte McIntosh (1970) 17 FLR 65 at 90-1 in which Fox J discussed the possibility of adjourning a trial on indictment until committal proceedings were heard, notwithstanding that this would effectively deny the Crown's entitlement to use an ex officio indictment and Barton , supra , at (CLR) 95-6, 105-6, 115; (ALR) 459, 466-7, 474. But I am not persuaded that a trial without the prior supply of proofs of evidence would be likely to prove unfair."
58 I do not take this case as authority for the proposition that a court of summary jurisdiction can generally order the provision, by the prosecution to the defence, of a statement of a witness to be called by the prosecution. Perhaps in exceptional circumstances such an order might be made, irrespective of the question of legal professional privilege, but it is hard to envisage such a situation. In my view the power is limited to that outlined in R v Kingston , namely the provision of a prior inconsistent statement of a witness for the purpose of cross-examination, and then by the lodgement of that statement with the Court.
59 In this case the learned Magistrate does not appear to have dismissed the complaints by reason of the failure to deliver witness statements, but rather appears whilst delivering his decision to have ordered the production of witness statements, although for what purpose is unclear. To the extent that the learned Magistrate may have dismissed the complaints by reason of failure on the part of the appellant to provide the witness statements of various truck drivers, or ordered their delivery to the defence, I am of the view that any such conclusion reached by the learned Magistrate was wrong.
Ground (e): Duplicity
60 The learned Magistrate ruled that complaint (10) was duplex. He held that there would need to be a separate and distinct charge in relation to each animal rather than a complaint which alleged that the respondents had subjected 50 animals to unnecessary suffering.
61 In view of the fact that the first nine complaints identified a separate animal in each case, it is difficult to understand why the tenth complaint lumped 50 animals together. However, there is power under s 43 of the Justices Act 1902 to join multiple matters of complaint in the one complaint. Whilst the section provides in general terms that every complaint shall be for one matter only and not for two or more matters, there are two important provisos. The first is that in cases where the matters of complaint are "substantially of the same act or omission on the part of the defendant", such matters may be joined in the same complaint. The second is that when several simple offences are alleged to be constituted of the same acts or omissions, or by a series of acts done or omitted to be done, in the prosecution of a single purpose, charges of such offences may be joined in the same complaint against the same person. However, in this latter respect, if in any case it appears to the Justices that the defendant is likely to be prejudiced by such joinder, they may require the complainant to elect upon which of the charges he will proceed or may direct that the defendant be tried separately on any of the charges.
62 The learned Magistrate appears not to have considered this provision in any respect. He simply ruled that in relation to charge (10) there would have to be a separate charge in relation to each animal.
63 As I have pointed out, no point was raised on behalf of the defendants in any of the interlocutory proceedings about this. It was a decision reached by the learned Magistrate of his own motion.
64 Duplicity is a pleading point and in indictable charges there are provisions in the Criminal Code (s 590 and s 614) which provide for the procedure of a motion to quash the indictment for duplicity. As Malcolm CJ made clear, however, in Chew v The Queen (1991) 4 WAR 21 (at 35), the Court may set aside a conviction or an indictment which in truth contains a charge of more than one offence, not because it was bad for duplicity but because of uncertainty of convictions. In these circumstances there would have been a miscarriage of justice.
65 The position is somewhat different in petty sessions. It seems to me that s 43 of the Justices Act requires that if a Magistrate has determined that joinder of more than one matter of complaint in a complaint is likely to prejudice a defendant, the prosecution is to be required to elect upon which charge it will proceed. This never happened in the present case. Prima facie , there is an entitlement to join the various complaints in the one complaint but the relevant question was prejudice.
66 In my view this ground of appeal is made out and the learned Magistrate was wrong to dismiss charge (10) (to the extent that he did it independently) on the basis of duplicity. In any event, the learned Magistrate had dismissed all complaints before he dealt with this particular issue and the ruling on duplicity in relation to complaint (10) seems to have been somewhat unnecessary.
Ground (f): Failure to provide sufficient reasons
67 Although it was submitted by counsel for the appellant that there had been a failure to provide proper and sufficient reasons for the decision to dismiss the charges, it seems to me that one can distil from the learned Magistrate's reasons delivered on 26 September, the basis upon which the complaints were dismissed.
68 In Garrett v Nicholson (1999) 21 WAR 226, Owen J (at [73]-[75]) succinctly summarised the requirement of a decision maker to act judicially to give reasons for decision, pointing out that the reasons must "disclose adequately the intellectual process which has resulted in a particular determination". His Honour referred to a number of oft-quoted authorities and said:
"I would also add that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results to which I have referred. It is sometimes the case that by dissecting the reasons line by line, word by word the reader loses the sense of what is conveyed by a particular passage. It is often the case that the true sense can be gleaned only by looking at the passage in the context of the whole. In this way something which appears at first glance to be a material omission may be adequately explained.
In this case the magistrate's reasons could have been more happily and more expansively phrased. But in my view they disclose the essential intellectual process by which his Worship arrived at his decision."
69 These observations are, in my view, applicable to this case. The reasons of the learned Magistrate are not elegantly phrased, but sufficiently set out the intellectual process by which he reached his decision. I would therefore dismiss this ground of appeal.
70 I am therefore of the view that the appeal in this matter should be allowed and the matter remitted to the Court of Petty Sessions for rehearing before a different Magistrate.
71 The formal orders that I would make are as follows:
(1) The appeal be allowed.
(2) The decision of the learned Magistrate dismissing complaint 7517-7526 and 7527-36/02 in the Court of Petty Sessions at Perth be set aside.
(3) The order for costs made by the learned Magistrate be set aside.
(4) The complaints be remitted to the Court of Petty Sessions at Perth for rehearing before a different Magistrate.
(5) The appellant be at liberty to further amend the statements of further and better particulars of complaint delivered to the respondents, such amendments to be made within 14 days of the date of this decision.