Supreme Court of Western Australia

85 Grounds of appeal 4 6 concern the fact that the respondent ceased to be an employee of the RSPCA and a general inspector sometime after he commenced the prosecution against the appellant and before the trial had been completed. The circumstances in which, and the date on which, that occurred were not disclosed.

The parties' submissions

86 The parties' submissions on grounds of appeal 4 6 have been briefly summarised above. Regrettably, the submissions did not analyse the relevant provisions of the Magistrates Court Act and the CPA or refer to any relevant authority. So, for example, neither party identified by reference to the relevant legislation what, if any, effect the respondent ceasing to be a general inspector had on the prosecution that had been commenced against the appellant. In particular, the appellant's submissions left unanswered a number of questions. Did the fact that the respondent was no longer an inspector impact on the magistrate's jurisdiction to hear and determine the charge or did it mean that a prosecutor no longer appeared in the prosecution so that the charge should be dismissed for want of prosecution (as the appellant's counsel submitted in the trial) or was the continuation of the prosecution some form of an abuse of process? What did it mean for the continuation of the prosecution to assert that the prosecuting counsel who appeared in court was no longer representing the respondent 'when the latter had no standing in the proceedings'? What was meant by the allegation made in ground of appeal 5 that the magistrate erred in permitting the trial to proceed 'in the absence of a properly authorised prosecutor'? Moreover, was the appellant's complaint merely that the prosecution notice ought to have been amended to substitute a different party as 'prosecutor'? If so, why was the failure to amend fatal to the prosecution?

Jurisdiction

87 As has been noted, the Magistrates Court Act expressly confers criminal jurisdiction on a magistrate to hear and determine a charge. Section 67(3) of the Interpretation Act provides that the procedure for 'prosecuting and dealing' with offences is set out in the CPA. The section indicates that the CPA is concerned with procedural matters; it is not concerned with the jurisdiction of the various courts in which offences are prosecuted.

88 The Court of Appeal confirmed that interpretation in Calandra v Civil Aviation Safety Authority [2015] WASCA 31: 'the jurisdiction of the Magistrates Court to hear charges alleging the commission of simple offences is conferred by s 9 and s 11 of the [Magistrates Courts Act], not the CPA' [25] (Martin CJ, Mazza JA and Hall J agreeing). Accordingly, 'defects' in the procedure for commencing prosecutions do not deprive the Magistrates Court of jurisdiction, although they might result in the proceedings being dismissed by a magistrate acting within jurisdiction: Calandra [25] (Martin CJ citing with approval the observations of EM Heenan J in Spagnolo v Flynn [2014] WASC 88).

89 In my view, the fact that the respondent ceased to be a general inspector sometime after he commenced the prosecution against the appellant could not affect the magistrate's jurisdiction to hear and determine the charge alleged against the appellant having regard to the provisions of s 9 and s 11 of the Magistrates Court Act and the decision of the Court of Appeal in Calandra. The court's jurisdiction was not dependent on the prosecution having been commenced or maintained by an 'authorised person'.

The agency allegation – the additional proposed ground of appeal

90 That conclusion also applies to the allegation made in the additional proposed ground of appeal. The magistrate possessed jurisdiction to hear and determine the charge even if the respondent had commenced the prosecution in a private capacity contrary to s 20(5) CPA. The appropriate course would have been for the magistrate to consider whether to dismiss the charge if it had been established that the respondent had acted in a private capacity. The question of whether the magistrate erred by not dismissing the charge on that ground will be considered later in these reasons.

Section 169 CPA

91 The magistrate did, of course, hear and determine the charge alleged against the appellant. However, the appellant did not make an application in the appeal pursuant to s 169 CPA. Consequently, his Honour's determination of the appellant's guilt and the penalty imposed have 'full force and effect', notwithstanding any 'jurisdictional error' that might have been made in ruling on the effect of the respondent ceasing to be a general inspector and despite any lack of jurisdiction to hear and determine the charge as a result of any such error. As Buss JA explained in Ward v State of Western Australia [2011] WASCA 172:

The phrase 'full force and effect', in s 169(2)(a), connotes that, notwithstanding the jurisdictional error, the court's determination of the charge is valid and effective. Section 169(2)(a) expressly and unambiguously confers validity and efficacy on the court's determination. Despite the jurisdictional error, the determination is not void or of no effect [42] (and see the observations of Murphy JA to the same effect [109]).

92 In my view, it is plain that the magistrate possessed jurisdiction to hear and determine the charge alleged against the appellant. However, the fact that no application was made under s 169 CPA means that the appellant's conviction and sentence cannot be disturbed on any ground of appeal that alleges, in effect, that the magistrate lacked jurisdiction to hear and determine the charge made against the appellant.

93 Obviously, the parties made no submissions on the application of s 169(4) CPA. However, I should indicate that I would not have been inclined to set aside the magistrate's determination of guilt and the sentence imposed had I found that the magistrate had erred in exercising jurisdiction and an application had been made under s 169. I accept the observations made by Murphy JA (with whom Hall J agreed) in Ward concerning the effect of the section (and see the comments of Buss JA at [51] [54]):

First, s 169(4) does not itself specify the factors to be taken into account. In this regard, the court's discretion is confined only by the subject-matter, scope and purpose of the legislation and the requirement that it be exercised judicially, and consistently with the judicial process: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [53], [108] [111].

Secondly, it is to be noted that by s 169(3), an application may be made not only by the particular parties to the prosecution, namely, the State and the accused, but also by the Attorney-General, which also tends to suggest that the discretion in s 169(4) is broad in scope.

Thirdly, s 169(4) does not refer to 'substantial miscarriage of justice'. Whilst a 'substantial miscarriage of justice' in the sense used in the proviso will likely form a basis upon which the discretion in s 169(4) may be exercised, there would seem to me to be no warrant in the text to import the language of the proviso and to treat it as providing a 'single universally applicable criterion' in the exercise of power under s 169(4): cf Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45].

Fourthly, ss 169(3) and (4) evidently operate on the basis that something more is required to enliven the power under s 169(4) than the mere consequence that the general law would or may have regarded the determination in question as a nullity.

These considerations suggest, in my view, that the discretion is a broad one, to be exercised to serve the interests of justice. In other words, it appears to me that, in substance, the object of s 169(3) & (4) is to enable the court to set aside or vary a determination made as a result of jurisdictional error if, and to the extent that, it appears to the court that it is in the interests of justice to do so. For this purpose, the applicant must point to some matter beyond the mere fact that a jurisdictional error was made and that under the general law the determination could or would be regarded as a nullity in consequence of the jurisdictional error [113] [117].

94 Applying that approach, and allowing for the fact that no submissions were made by the parties, I do not consider that the interests of justice would have required that the appellant's conviction and sentence be set aside merely because the respondent ceased to be a general inspector after he had validly commenced the prosecution against the appellant. The matters discussed below further explain that view.

Procedural issues – the CPA

95 I am inclined to the view that the gist of grounds of appeal 4 6 and the additional ground is to assert that the magistrate lacked jurisdiction to hear and determine the charge alleged against the appellant once the respondent ceased to be a general inspector. However, any error of the kind alleged in grounds of appeal 4 – 6 or in the additional proposed ground of appeal must concern a matter of procedure under the CPA if, as I have concluded, the appellant has not established that the magistrate lacked jurisdiction to hear and determine the charge (or if his Honour did lack jurisdiction, his determination nevertheless has full force and effect in the absence of an application under s 169 CPA).

96 The width of the wording of s 67(3) of the Interpretation Act - 'prosecuting and dealing' - should be noted in this context. It suggests that the CPA was intended to deal comprehensively with matters of criminal procedure.

97 The CPA prescribes in some detail who may commence a prosecution and the procedure that is to be adopted in commencing a prosecution. (It is convenient in what follows to focus on the authority of an 'authorised person' to commence a prosecution as the respondent was such a person; however, the fact that s 20 refers to police officers and other persons who hold a particular office or appointment when proceedings are commenced should not be overlooked.) Significantly, the Act defines an authorised person solely for the purpose of identifying who may commence a prosecution. That person or, where permitted, a public authority becomes a party to the prosecution (see cl 3 of sch 1, div 1 CPA in relation to public authorities and Tey v Plotz [2010] WASC 163 and on appeal, Tey v Plotz [2011] WASCA 194). However, the CPA does not otherwise refer to an authorised person in relation to the proceedings. In particular, the Act does not expressly require that the prosecution must be maintained by a person who retains their status as an 'authorised person' (or who continues to be a police officer or hold the office referred to in s 80(2) or an appointment under s 182).

98 The absence of any express provision referring to an authorised person other than in the context of commencing a prosecution begged further questions that were not answered by the appellant: which provision(s) of the CPA had been breached when the prosecution continued after the respondent had ceased to be an inspector; which provision(s) dealt with the respondent's 'standing' at that point and in particular, which provision(s) denied the respondent 'standing' as a prosecutor; which provision(s) required the prosecution notice to be amended when the respondent ceased to be an inspector and which provision(s) of the Act required the magistrate to dismiss the charge or stay the prosecution in the circumstances? The fact that no answer was offered to those questions – and that there is no obvious answer – suggests that the CPA does not require that a person who lawfully commenced a prosecution must retain their status as an authorised person for the prosecution to be validly maintained.

No substantial miscarriage of justice in any event

99 I have been unable to locate any authority on the question of the effect, if any, of a person ceasing to be an 'authorised person' for the purpose of the CPA after a prosecution has been validly commenced by that person (or the equivalent question in relation to any of the other classes of persons who may commence a prosecution under s 20). However, I make some observations below on that question and on related issues raised by the appellant in proposed grounds of appeal 4 6 and the proposed additional ground. There are lines of authority that have considered analogous issues, albeit in different statutory contexts. I briefly mention those authorities in the discussion that follows as they may provide a historical understanding of criminal procedure that has informed the drafting and enactment of the CPA or otherwise assist in resolving the issues raised by the appellant.

100 However, it should be understood that the observations that follow are made without the benefit of submissions from the parties on the particular matters that are discussed. Further and more importantly, the observations are made against the background of a finding that the magistrate had jurisdiction to hear and determine the charge or his determination is taken to be of full force and effect even if it could be shown that he had made a jurisdictional error. As has been already been emphasised, that means that any error allegedly made by the magistrate could only have been procedural in character or, possibly, an error concerning the inherent fairness of the prosecution - that is, an error about whether the proceedings ought to have been characterised as an abuse of process.

101 In my view, none of the errors alleged in grounds of appeal 4 6 or the additional ground, if properly characterised as errors, caused a substantial miscarriage of justice or rendered the proceedings an abuse of process. Neither party expressly addressed the question of whether there had been a substantial miscarriage of justice as a result of any of the matters alleged by the appellant in grounds of appeal 4 6 or the addition ground (or indeed, in relation to any of the proposed grounds). That may be because the appellant's grounds implicitly assumed that the magistrate was deprived of jurisdiction on the respondent ceasing to be a general inspector. However, the question of whether there has been a substantial miscarriage of justice falls to be determined on the basis that the magistrate did not err in exercising jurisdiction to hear and determine the charge alleged against the appellant.

102 On that basis, I have been unable to discern any miscarriage of justice from my review of the trial transcript and the various matters raised by the appellant in grounds of appeal 4 6 and the additional ground of appeal. There is no reason to doubt that prosecuting counsel was appropriately instructed throughout the trial to the extent that he required instructions independently of the power conferred by s 172(1) to appear before the court to 'present and conduct' the prosecution case. There is no allegation in the appeal that prosecuting counsel or any person associated with the prosecution breached any duty imposed by the CPA or owed to the court at law or acted in any way that undermined the integrity of the court's proceedings. The appellant's grounds of appeal recognise the possibility that another prosecutor could have been substituted for the respondent by amending the prosecution notice. No submission was made that demonstrated why the decision not to amend the notice caused a substantial miscarriage of justice, if, as I have held, the magistrate retained jurisdiction to hear and determine the charge or his determination has full force and effect despite any jurisdictional error.

Some preliminary observations about the CPA

103 There are several aspects of the CPA that should be noted in relation to the issues raised by the appellant in grounds of appeal 4 6 and the additional ground.

104 First, the CPA defines the term 'party' to mean the 'prosecutor' or the accused. Historically, the term 'prosecutor' has been used to refer to both the person who commenced a prosecution by laying an information or making a complaint and the person who appeared at the trial to prosecute the charge. The CPA retains those meanings for prosecutions in a court of summary jurisdiction and, with a modification to reflect s 80, for prosecutions in a superior court.

105 The two senses in which the word 'prosecutor' may be used reflect the historical reality that it was rare for an informant to appear at the trial to prosecute a charge. For example, it has long been the practice in this State and elsewhere for police prosecutors to appear in courts of summary jurisdiction to prosecute charges laid by other police officers. The officer who charged an accused person will often have little, if any, involvement in the subsequent prosecution (except, perhaps, as a witness). Indeed, the CPA does not require that the prosecution be commenced by the arresting police officer or by a police officer that had any particular connection with, or knowledge of, the alleged offence (indeed, it is apparent from the provisions of the Criminal Investigations Act 2006 (WA) that very often the arresting officer will not be responsible for charging an accused person). It is only necessary that the prosecution be commenced by a police officer acting in the course of his or her duties. Accordingly, it is somewhat artificial to conceive of a police officer who commenced a prosecution as instructing, or being required to instruct, a police officer who appears in court to prosecute the charge.

106 Similar observations apply to a prosecution commenced by a public authority or an employee of a public authority or a person authorised in writing by a public authority to commence a prosecution for an offence. A person who is an authorised person in those circumstances is not required by the CPA to have personal knowledge of the alleged offence.

107 The second aspect of the CPA to note is that at common law and under Jervis' Act, as adopted by the Australian States in the various Justices Acts, any person could commence a criminal proceeding by laying an information on oath before a justice. The information commenced the proceeding by providing a factual basis for a justice to issue a summons or warrant requiring the accused person to appear in, or be brought before, a court. The CPA has altered the law for commencing prosecutions - it limits the persons who may commence a prosecution and simplifies the procedures by which a person may be brought before a court. The limitation on who may commence a prosecution is evidently intended to protect against the risk of vexatious or frivolous or wholly unmeritorious prosecutions being commenced in such a scheme. The persons prescribed by s 20 are persons who, by virtue of their office, might be expected to responsibly exercise the discretion to commence a prosecution.

108 The third relevant aspect of the CPA is that, as has been noted, the term 'party' is defined to mean the prosecutor and the term 'prosecutor' is defined to refer to the two senses in which the word has been traditionally used. It would have been a simple matter of drafting to define the parties as 'the person who commenced the prosecution and the accused' if Parliament had intended to confine references in the CPA to a 'party' in that way; that is, if Parliament had intended to adopt in the CPA a conventional meaning for the term 'party' to a proceeding. The CPA contains a number of references to the parties to a prosecution. It is apparent that those references are generally intended to apply to both the person who commenced the prosecution and the person who in court represents that person.

109 The fourth aspect of the CPA that is relevant concerns s 172(1). The section refers to the entitlements of a 'party to a case'. It is rather cumbersome to refer to a person who in court represents another person as being personally entitled to appear. Nevertheless, I cannot see why the reference to a 'party to a case' in s 172(1) should read down to refer only to the person who commenced the prosecution (the 'prosecutor' in the first sense of the term) and the accused and as excluding a person who represents in court the person who commenced the prosecution (the 'prosecutor' in the second sense of the term). That is especially as the reference to prosecutor in s 172(3)(a)(i) and s 173(a)(ii), appears to be only to the person who commenced the prosecution. Further, s 172(1) refers to an appearance before the court, a reference that is seemingly more specific than the expression 'represents in court' that is used in the definition of 'prosecutor'.

110 Importantly, the entitlement conferred by s 172(1) is expressed in wide terms - to 'present and conduct' the party's case. The section would appear to confer a wide authority on a prosecutor who appears to represent the person who commenced the prosecution.

111 Finally, s 172(3)(a)(i) recognises the historical practice in relation to police prosecutions to which reference has been made and s 172(3)(a)(ii) recognises that a person who commences a prosecution as an employee of a public authority or as a person who was authorised in writing by a public authority to commence a prosecution 'acts for or on behalf of the public authority'.

Analogous issues – the death of an 'informant' prosecutor

112 In R v Truelove (1879 80) LR 5 QBD 336, a magistrate issued a warrant for premises to be search under an Act concerned with obscene publications. The warrant was issued on the complaint of G. A police officer subsequently seized two pamphlets pursuant to the warrant and a magistrate issued a summons requiring T to appear at the Bow Street Police Court to show cause why the pamphlets should not be destroyed. G died prior to completion of the proceedings. It was argued on appeal that the proceedings lapsed on the death of G, as the Act under which proceedings had been commenced required that there should throughout be an informer who might be liable to pay costs.

113 Lush J (with whom Manisty J agreed) rejected that contention. The proceedings were 'essentially' criminal proceedings that could not 'be liable to abatement in the same manner as civil or quasi civil proceedings' (339). The warrant was similar to an ordinary search warrant and the presence of the complainant was not necessary on the further prosecution of the proceedings.

114 His Lordship noted that a person aggrieved by an order made under the Act could appeal, but was not required to give notice to the complainant. However, the aggrieved person had a right to costs if successful in the appeal. His Lordship stated in that regard:

Counsel for the defendant mainly relied upon these last words, as shewing that it is essential that there should be a complainant to appeal against. But I cannot see why, if upon the death of the complainant some other person takes over the prosecution, he should not be liable to pay costs if the appeal should be successful. It could readily be ascertained as a matter of fact who was the party prosecuting the appeal. There is nothing to shew again that the same person who originally made the complaint must always be party to the appeal (340).

115 In Elliott v Taylor [1947] St R Qd 210, an officer of a Commonwealth department made a complaint charging the respondent with a breach of the National Security (Prices) Regulations. The officer died after service of the summons and before the hearing of the charge. The presiding magistrate stated various questions for determination by the Full Court, including whether he had jurisdiction to hear and determine the complaint notwithstanding that the complainant had died prior to the trial. The Full Court held that the magistrate did have jurisdiction and that it was not necessary for an application to substitute another person as prosecutor following Truelove. E A Douglas J considered that criminal proceedings did not abate, while Philp J considered that it was 'basic law that in all criminal proceedings the Crown is a party although criminal proceedings be instituted by a private prosecutor'. The Crown could at any time take over the proceedings, albeit that they were commenced by a private prosecutor. Matthews J agreed that the Crown was a party to all criminal proceedings.

116 In Hawkins v Bepey [1980] RTR 392, a police officer laid an information alleging that the defendants had contravened traffic regulations. The police officer as the prosecutor was represented by a solicitor at the trial of the charges. The magistrates dismissed the charges and the prosecutor appealed. However, the prosecuting police officer died before the appeal was heard. It was contended by the respondents that the appeal had lapsed on the death of the prosecuting police officer.

117 Watkins J (with whom Brown LJ agreed) noted that the police officer was acting pursuant to an instruction given by the Chief Constable in laying an information and that the instruction, in turn, had been given pursuant to powers conferred on the Chief Constable by legislation governing the police. Accordingly, the 'real' prosecutor was the Chief Constable or the relevant county police force. In a 'real sense' no party to the appeal had died (400).

118 Watkins J considered that Truelove and R v Burt; Ex parte Presburg [1960 1 Qb 625, supported that conclusion. In both cases, the court had recognised that a person who was not the informant and who was not, therefore, initially the 'prosecutor' could assume responsibility for a prosecution and could, for example, be liable to pay the costs of a successful defendant where legislation conferred an entitlement to costs.

Changes in the status of an 'initiating prosecutor'

119 In John L Pty Ltd v AttorneyGeneral (NSW) [1987] HCA 42; (1987) 163 CLR 508, an information was laid before a judge of the Supreme Court for the purpose of invoking that court's summary jurisdiction. The information alleged an offence against the Consumer Protection Act 1969 (NSW). Section 56(1) of that Act provided that proceedings for offences against the Act might only be taken 'by a person acting with the authority in writing of the Minister'. The informant had acted with the authority in writing of the Minister in laying the information.

120 The information was dismissed on the ground that it was defective. An appeal against that decision was commenced in the Court of Criminal Appeal. The Criminal Appeal Act 1912 (NSW) only allowed an appeal in summary proceedings to which the Crown was a party. It was contended in the High Court that the appeal to the Court of Criminal Appeal was incompetent as the prosecutor had been an officer of the Department of Consumer Affairs and not the Crown.

121 Mason CJ, Deane and Dawson JJ considered that the Crown was not a party to the proceedings. The informant and the appellant were the parties to the proceedings. However, their Honours added:

The proceedings were not brought in the name of the Crown or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf of or in the name of the Crown. They were brought by by Mr Clayton as 'a person' (s 56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs: contrast, e.g., proceedings to which 'the Minister' (s 56B) or 'the Commissioner with the consent of the Minister' (s 56A(1) is a party. They were not proceedings to which the Crown was a party in any accepted meaning of the words 'Crown' or 'party' (519).

122 Brennan and Toohey JJ held that there was a right of appeal to the Court of Criminal Appeal as the proceedings had been instituted by a government official acting in the performance of his official functions.

123 The reasoning of the High Court in John L was further considered by the New South Wales Court of Appeal in Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193. The issue in Ove Arup was whether proceedings in the Full Bench of the Commission in Court Sessions were proceedings to which the Crown was a party for the purpose of determining rights of appeal. Basten JA (with whom Spigelman CJ and Mason P agreed) referred to the passage from the majority in John L Pty Ltd cited above and observed:

The contrast drawn in the penultimate sentence of this extract between, on the one hand, a public servant who required the consent of the Minister to prosecute, but could maintain the proceedings even if he were no longer a member of the public service and, on the other hand, a statutory officer such as the Commissioner, indicates that the present case may fall into a different category. The inspector was appointed by a statutory authority representing the Crown, and brought the prosecution pursuant to his statutory authority as an inspector [62].

124 Basten JA further observed:

The point of departure from the terms of the Consumer Protection Act considered in John L Pty Ltd is important in another respect. Thus, the majority judgment assumed that Mr Clayton, as a private person, could continue the proceedings whether he remained employed in the Department of Consumer Affairs or not. Although it is not necessary to determine the matter for present purposes, it is at least doubtful whether, when a person ceases to be an inspector under the OH&S Act, proceedings for offences under that Act may be continued by that person. As appears from Pt 3, Div 4 of the OH&S Act, inspectors are given powers similar to those conferred upon police officers. It would be anomalous if those powers remained after termination of the statutory office [66].

125 His Honour considered that prosecutions brought by officers in service of the Crown were recognised as acts of the Government to which the 'Crown' in a broad sense of that word was a party. His Honour continued:

In England, there is an established line of authority with respect to the analogous position of prosecutions brought by police officers. Such proceedings do not abate upon the death of the nominal informant because the true informant is taken to be the office from which he or she obtains instructions and direction. Thus, in Hawkins v Bepey [1980] 1 WLR 419, a prosecution instituted by a chief inspector, who subsequently died, was held to be undertaken by him in a representative capacity, on behalf of the Chief Constable who controlled and directed the relevant division of the police force under the Police Act 1964 (UK): see pp 422H424D (Watkins J, Browne LJ agreeing, and the authorities referred to, including R v Truelove (1880) 5 QBD 336 at 340 (Lush J) and R v Burt, Ex parte Presburg [1960] 1 QB 625 at 635 (Lord Parker CJ). To similar effect, the Full Court of the Supreme Court of Queensland held in Elliott v Taylor [1947] St R Qd 210 that a prosecution for a breach of the National Security (Prices) Regulation (Cth), brought by a departmental officer, was in effect a criminal proceeding brought on behalf of the Crown which did not abate, because the Crown 'has control over the proceedings': at 212 (E.A. Douglas J). Mathews J agreeing stated (at 213) in bald terms:

'On the authorities quoted I think the Crown is a party to all criminal proceedings and consequently, the Crown Solicitor, acting for and on behalf of the Commonwealth, can institute this appeal.'

It is not necessary for present purposes, to go so far as the Full Court did in Elliott v Taylor; it is sufficient to find, in accordance with the English authorities, that an officer, carrying out statutory functions in the public interest effectively represents the authority to which he is subject, by way of control and direction, which is taken to be the real party to the proceedings. In this case that body is the WorkCover Authority, which represents the Crown. Accordingly, the Crown is a party to the prosecutions [70] [71].

126 In Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75, the respondent was convicted of a contravention of the Native Vegetation Act 2003 (NSW). The respondent contended at the trial that the proceedings had not been validly instituted or maintained by a proper person. The prosecution had been commenced with the prosecutor cited as the 'Director General of the Department of Environment, Climate Change and Water' rather than commenced in the proper name of the person who held that office, Ms Corbyn. Preston CJ held that the proceedings were not bad for that reason. Nevertheless, he amended the summons to substitute Ms Corbyn as the prosecutor.

127 Subsequently, the Department of Environment, Climate Change and Water was abolished and replaced by another government body, the Office of Environment and Heritage. Ms Corbyn became the chief executive officer of the Office. Preston CJ held that no objection could be taken or allowed to the summons on the ground that the name of the office of the prosecutor ceased to be correct after the abolition of the Department of Environment, Climate Change and Water [3].

128 Subsequently, Ms Corbyn resigned from her position as chief executive officer of the Office. The respondent then raised questions concerning who was the prosecutor and who was responsible for instructing the solicitors and counsel who appeared in the proceedings. In particular, at the sentencing hearing the respondent submitted that, as Ms Corbyn was no longer employed by the Office of Environment and Heritage, she could no longer be the prosecutor or provide instructions to the solicitor and counsel to prosecute the proceedings. Accordingly, it was submitted that the solicitors and counsel who appeared on behalf of the prosecutor were no longer properly retained to appear.

129 Counsel who appeared for Ms Corbyn advised the court that he was instructed by the inhouse solicitors employed by the Office of Environment and Heritage. It was submitted that the proceedings were brought with the consent and authority of Ms Corbyn and that her authority extended to and continued to be effective for all stages of the criminal justice process: prosecution, conviction and punishment. Proceedings were validly instituted and maintained and the proceedings did not lapse or abate upon the resignation from office of the person who brought the proceedings. The decisions of the New South Wales Court of Appeal in Ove Arup and the Full Court of the Supreme Court of Queensland in Elliott v Taylor were cited in support of those propositions.

130 It was further submitted that the proceedings were brought by Ms Corbyn acting in her capacity as a public officer of the relevant government department responsible for administering and enforcing the Act. Her representative capacity as a public officer meant that she was neither personally liable for, nor personally entitled to receive, any costs awarded in respect of the proceedings. The representative offices to which Ms Corbyn was subject, by way of control and direction, provided, and continued to provide, instructions to the solicitors and counsel with respect to all stages of the prosecution. Accordingly, the Office of Environment and Heritage could instruct the solicitors and counsel in the final stages of the prosecution process.

131 Preston CJ accepted those submissions [11].

Some concluding observations

132 Several points emerge from this review of the CPA and the authorities that relate to some of the questions raised by grounds 4 – 6 and the additional ground.

133 First, the issue in cases such as Truelove, Elliott v Taylor and Hawkins v Bepey was, in substance, whether the court retained jurisdiction to determine criminal proceedings following the death of the informant or complainant in whose name the proceedings had been commenced and prosecuted. The decisions in those cases establish that at common law criminal proceedings do not abate on the death of the informant prosecutor.

134 Second, the issue in cases such as Truelove, Elliott v Taylor and Hawkins v Bepey can be expressed in another way: whether only the informant can prosecute a charge. Again, the decisions in those cases establish that it is possible for someone to take over the conduct of criminal proceedings from the informant and for the court to identify and hold that party liable in the prosecution, for example, for the payment of costs where there is a statutory entitlement to costs. The decisions indicate that at common law the jurisdiction of the court, and the right to prosecute a charge, did not depend on the continuing presence of the informant as prosecutor. That was stated emphatically in Truelove. Accordingly, the decisions embody a particular view of what it means to be a party to criminal proceedings.

135 There may be some uncertainty over the proposition endorsed by the Full Court of the Supreme Court of Queensland in Elliott v Taylor that the Crown is a party at common law and under the Justices Act to a 'private prosecution' (see, for example, the comments of Deane J in Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at 67 68 concerning the role of the State in the criminal justice system, 'apart from the exceptional case of a private prosecution'). Nevertheless, the differences in the concept of a party to criminal and civil proceedings can be readily understood by reference to the public nature of a criminal proceeding and the private nature of a civil proceeding (proceedings that are truly between the parties).

136 Third, the cases to which reference has been made illustrate that at common law the person in whose name a prosecution had been conducted might only be a 'representative' party and that another person or entity might be the 'real' party to the proceedings. A distinction can be drawn between the person who commenced the proceedings by laying an information or making a complaint and a person or entity who was, in substance, responsible for prosecuting the charge. That distinction might be drawn because the informant expressly acted in a representative capacity or because the public nature of criminal proceedings means that the law is less concerned with the actual identity of the informant once proceedings have been commenced and the accused has been lawfully brought before a court that has jurisdiction to hear and determine the charge. The Crown or State will in many instances at common law be a party to proceedings conducted in the name of a person as prosecutor because of the subject matter of the charge or because of the capacity in which the informant prosecutor commenced the proceedings. The Full Court of the Supreme Court of Queensland went so far in Elliott v Taylor to suggest that will always be so in criminal proceedings.

137 The fact that an informant may have acted in a representative capacity in laying an information reflects or, possibly explains, the historical distinction between the informant as the prosecutor and the person who appeared in court to prosecute a charge and the common practice that the prosecutor as a party and the prosecutor who prosecuted the charge were different persons.

138 Fourth, as a court can inquire into who is the 'real' party to a prosecution, it is not necessary at common law for the proceedings to be amended to name another person as prosecutor on the death of a person who commenced the proceedings and who was, accordingly, named as the prosecuting party.

139 Fifth, the observation of the majority in John L Pty Ltd cited earlier indicates that at common law a person may prosecute a charge in a private capacity even though they required the authority of another - such as a Minister of the Crown - to commence the prosecution. However, Ove Arup and Corbyn indicate that the real party to criminal proceedings may be somebody who has control and direction over the party named as prosecutor or that there may another party to criminal proceedings where the named party commenced the proceedings in the public interest as the representative of a statutory office.

140 Sixth, in Corbyn Preston CJ accepted an argument that Ms Corbyn's authority to commence the prosecution extended to all aspects of the proceedings. Further, his Honour accepted that the office that Ms Corbyn represented in commencing and prosecuting the proceedings retained authority to instruct the solicitors who appeared on the record in her name following her resignation as the chief executive officer of the office.

141 In my view, the provisions of the Magistrates Court Act and the CPA either expressly deal with those matters or are to be understood in the context of the procedures relating to them as they developed in the common law.

142 First, questions of jurisdiction are dealt with in this State by the provisions of the Magistrate Courts Act and the CPA is to be interpreted in that context. Criminal proceedings do not abate on either the death of the person who commenced the proceedings or on a change in the status of that person so that they are no longer an 'authorised person' within the definition of that term in the CPA. As I have already held, the court retained jurisdiction over these proceedings on the retirement of the respondent as a general inspector.

143 Second, the common law notion of a party to criminal proceedings most likely explains the two significant aspects of the CPA: first, the Act's concern with who may commence criminal proceedings and the procedure to be adopted in commencing proceedings and second, the absence of any provision in the Act dealing with changes in the status of a person who commenced the proceedings. The CPA contains no provision requiring any amendment to the prosecuting party in the event that the party dies or loses his or her status as an authorising person or for any other reason (and contrast s 179 CPA in relation to an accused). It would be open, in my view, for the court to allow an amendment to a prosecution notice to alter the name of the prosecuting party but the CPA does not compel that such an amendment be made.

144 Third, the CPA expressly recognises that there may be two prosecutors in a criminal proceeding. Further, it defines the term 'party' by reference to the term 'prosecutor' and the term 'prosecutor' is defined to refer to both senses in which the term has been traditionally used.

145 Fourth, the CPA expressly recognises that a person who is named as the prosecutor may be acting 'for and on behalf of a public authority'; that is, that the 'real' party to a prosecution may be someone other than the named prosecuting party. That is consistent with the provisions of the Official Prosecutions Act and, in this instance, with the entity that is to receive any fines paid under the Act.

146 Fifth, the persons who may commence a prosecution under the CPA must be acting in some 'representative' capacity. That follows from the prescription of who may commence a prosecution coupled with the prohibition on persons commencing criminal proceedings in a 'private' capacity.

147 Accordingly, there is, in my view, no reason why a court cannot inquire into and identify who is a real party to a criminal proceeding conducted according to the provisions of the CPA. Further, I cannot see why the reasoning in Corbyn would not apply to a prosecution commenced and conducted under the CPA.

148 In my view, these provisional observations suggest in this case that:

(a) The respondent's authority to commence the prosecution of the appellant was derived from his position as a general inspector. His appointment was made by the Director General of the then Assisting Department. The respondent exercised his statutory powers for the purpose of giving effect to the intention of the Act in the public interest. Accordingly, in my view, the respondent exercised his statutory powers for and on behalf of the Assisting Department, albeit that he was an employee of the RSPCA.

(b) The respondent exercised his statutory power to commence the prosecution of the appellant for and on behalf of a public authority, DAFWA. The respondent was carrying out a statutory function in the public interest. The department was a real party to the prosecution, notwithstanding that it allowed the respondent to arrange for representation by a legal practitioner through his employer, the RSPCA, and even if the department used the Society, in effect, as an agent to oversee and manage prosecutions under the Act. To paraphrase Watkins J in Hawkins v Bepey, there was in a real sense no party to the prosecution that ceased to be a party or lost their 'standing' as a party on the respondent ceasing to be an inspector.

(c) The respondent commenced the proceedings as the holder of a particular office and acting on behalf of DAFWA. He was ultimately subject to the directions and control of DAFWA, even if the department used the RSPCA to manage prosecutions under the Act. The legal practitioner engaged as prosecutor to represent the respondent was ultimately subject to instructions from the same source before and after the respondent ceased to be a general inspector. According to the appellant, that was the RSPCA but that if that was so, it is to be inferred from the involvement of the respondent as a general inspector and the subsequent involvement of another inspector that the Society acted pursuant to whatever arrangement subsisted between it and DAFWA for the management of prosecutions under the Act.

(d) The prosecutor who represented the respondent was authorised to appear in court and act throughout the prosecution. There was at all times an appearance on behalf of the prosecution and the proceedings were not liable to be dismissed for want of prosecution.

(e) In the circumstances, it was not necessary for the prosecution notice to be amended to substitute a new prosecutor on the respondent ceasing to be an inspector.

The additional ground of appeal

149 The Act expressly provides that employees of the RSPCA may be appointed general inspectors and that general inspectors may commence proceedings for offences against the Act. The Act identifies who may appear on behalf of the CEO and or any officer of the Assisting Department in proceedings for an offence under the Act. However, the Act makes no provision for the representation of a general inspector who commences proceedings and who is also a member of the staff of the RSPCA. The inference is that the general inspector will either appear or make arrangements for representation as permitted by the CPA. It would hardly be surprising that those arrangements might be made through the general inspector's employer, the RSPCA. That does not mean, however, that the inspector would be acting in a private capacity in commencing the proceedings contrary to the prohibition in s 20(5) CPA. The inspector commences proceedings as a person who is authorised to do so by the Act; he or she is an 'authorised person' within the meaning and for the purpose of the CPA. The inspector may then arrange to be represented in court by another person - for example, by a legal practitioner (as occurred in this case) - and for that person to appear before the court to present and conduct the prosecution's case.

150 Further, as has been explained, in my view, an inspector acts 'for and on behalf of a public authority' in commencing a prosecution under the Act. The fact that the public authority, DAFWA, has an arrangement by which, or which permits, inspectors to organise the conduct of a prosecution through the RSPCA does not mean that the inspectors act in a private capacity in commencing prosecutions.

151 The provisions for the appointment of general inspectors and for prosecutions under the Act reflect the historical position in relation to investigating and prosecuting animal cruelty: see the Prevention of Cruelty to Animals Act 1920 (WA) and the discussion in Attorney General v Savill and Forrest (Unreported, WASC, Library No 970414, 5 August 1997). It is to be noted that Savill and Forrest, Pidgeon J held that the RSPCA was a statutory body within the meaning and the purpose of the Official Prosecutions Act so that costs could be recovered under the Act by a successful defendant to a prosecution conducted by an officer of the RSPCA.

Duplicity and the amendment of the charge

(Proposed ground of appeal 7)

The amendment to the charge

152 Section 19(3)(b)(ii) of the Act provides that a person will be cruel to an animal if he or she causes, or is likely to cause, the animal unnecessary harm. The charge, as originally formulated, only alleged that the appellant, being in charge of an animal, was cruel to the animal by confining it in a manner that caused harm. The charge did not incorporate the words 'or was likely to cause'. The prosecutor sought to amend the charge at the commencement of the trial to incorporate those words. The appellant contended in the appeal that the charge as amended was bad for duplicity.

153 The application to amend the charge was opposed but not on the ground that the charge, if amended, would be duplex. Rather, counsel for the appellant submitted that:

[W]e would wish to object to that for one simple reason, and that is this amendment effectively increases the scope of what needs to be the defence, so substantially that the defence did not prepare expert witnesses to effectively deal with the aspect of potential likely damage rather than specific damage (11 July 2013, ts 9).

154 The magistrate indicated that he was minded to allow the amendment, subject to granting an adjournment to enable the expert who had been engaged by the appellant to further consider the effect of the amended charge on his opinions. However, the appellant's counsel advised that:

[W]ith the amount of witnesses for the prosecution, it's very unlikely the defence witnesses will give evidence today. The specific aspect can, I'm certain, be addressed by an expert witness on short notice (ts 14).

155 There was further discussion about the possibility of prejudice to the appellant if the amendment was allowed and the magistrate briefly adjourned to enable further instructions to be obtained. The appellant did not seek an adjournment and the application to amend was allowed.

156 However, the magistrate returned to the formulation of the charge at the conclusion of the prosecution case. His Honour expressed the preliminary view that the charge was not patently duplex, but that the evidence disclosed a latent ambiguity: whether the charge was that the manner of confinement had caused Roxy harm or whether the charge was that the manner of confinement was likely to have caused the dog harm (23 April 2014, ts 102 103).

157 The prosecutor indicated that he would make an election in light of the views that had been expressed. He elected to allege that the manner of confinement had caused harm. The appellant's counsel indicated that he did not intend to further address the court on duplicity given the election that had been made (ts 105). The appellant was informed by the magistrate that the charge alleged against her was that she had contravened s 19(3)(b)(ii) of the Act by causing unnecessary harm to her dog by the manner in which it had been confined (ts 110). She elected not to give or call evidence on being informed of the effect of the prosecutor's election.

The appellant's submissions

158 The appellant submitted that the amendment to the charge was unfair and prejudicial, notwithstanding the prosecutor's election. Why that was so was not explained. The appellant also submitted that the charge, as amended, was bad for duplicity. Why the asserted duplicity was not cured by the prosecutor's election was also not explained.

Duplicity

159 Schedule 1 to the CPA has effect in relation to charges alleged in a prosecution notice. Clause 2(4) of sch 1, div 2 requires that a charge must allege only one offence unless cl 8 or another written law permits otherwise. There is no written law that permits a charge made under the Act to allege more than one offence.

160 Duplicity occurs where there is a single charge which, on its face (patent duplicity or ambiguity), or on the evidence adduced or to be adduced at trial (latent duplicity or ambiguity) gives rise to more than one offence. It is now apparently contended by the appellant that the charge alleged against her was bad for patent duplicity.

161 Section 132 CPA confers a power on a court in relation to the amendment of a charge. The power to amend may be exercised at any time before or during a trial. Section 132(5) provides that, if one charge alleges two or more offences and a court is satisfied that the one charge is not permitted by sch 1, cl 8, it may amend the prosecution notice containing the charge so that each of the offences is the subject of a separate charge.

162 The power to amend a prosecution notice is supplemented by s 178 CPA. That section provides that any objection by an accused to a prosecution notice on the ground that it is defective must be made before the prosecutor's opening address. Further, the court, on an application by a party or on its own initiative, must order that a court document that is defective in substance or form be corrected if the defect is not material to the merits of the case. The court may order that the document be corrected in any other case.

163 In my view, the magistrate rightly found that the charge, as amended, was not bad for duplicity; that is, that it was not patently duplex.

164 Clause 5(1) of sch 1, div 2 to the CPA provides that a charge in a prosecution notice must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge. Clause 5(2)(a) provides that, for the purpose of cl 5(1), it is sufficient to describe an offence in the words of the written law that creates the offence. As Edelman J explained in McDonald v Higgins [2013] WASC 61; (2013) 227 A Crim R 130:

In cases involving a statutory offence, the starting point in ascertaining whether an offence involves any duplicity, patent or latent, is to consider whether the legislation establishes a single offence or multiple offences. If the legislation creates multiple offences, but only a single offence is charged, then a preliminary question may be whether the accused has been charged with an offence known to law. If the legislation creates a single offence but multiple offences are charged then issues of patent duplicity arise. If multiple acts are alleged in the course of evidence then issues of latent duplicity arise [30].

165 In McDonald v Higgins, the appellant was charged with an offence under s 70A(2) of the Criminal Code (WA). That section provides that it is an offence to trespass on a place without lawful excuse. Section 70A(1) defines the expression 'trespass on a place' to mean:

(a) to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or

(b) to remain in the place after being requested by a person in authority to leave the place; or

(c) to remain in a part of the place after being requested by a person in authority to leave that part of the place.

166 The prosecutor opened her case by alleging that the appellant was guilty of a single offence by both entering the place and remaining in the place. It was submitted that the charge was not bad for latent duplicity as multiple acts had been committed that were so close in time and place that they could be viewed as a composite criminal activity disclosing a single offence. On appeal, Edelman J found that the charge was not bad for patent or latent duplicity. In particular, the charge was not patently duplicitous as, on its face, it only alleged a single offence. His Honour further held that the charge could not be challenged for patent duplicity as no objection had been taken prior to the commencement of the prosecutor's opening address.

167 In R v Agius [2011] NSWSC 367; (2011) 86 ATR 433; (2011) 251 FLR 375, the respondents were charged with two counts of conspiracy. The second count alleged that the four respondents conspired with each other and one other person 'to dishonestly cause a loss, or to dishonestly cause a risk of loss' to the Commonwealth 'knowing or believing that the loss would occur or that there was a substantial risk of the loss occurring' contrary to s 135.4(5) of the Criminal Code Act 1995 (Cth). Simpson J held that the charge was not duplicitous. Her Honour cited with approval the observations of Bray CJ in Romeyko v Samuels (1972) 2 SASR 529:

The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow (552) (original emphasis).

168 It was submitted on behalf of one of the respondents that the charge was duplicitous as the Crown had declined to say whether it proposed to prove a conspiracy to dishonestly cause a loss or to dishonestly cause a risk of a loss and whether it was alleged that the conspirators knew a loss would occur or believed a loss would occur or believed that there was a substantial risk of a loss occurring. Her Honour characterised that submission as 'founded on the misapprehension that the pleading of alternatives in an indictment equates to the pleading of multiples' [70]. Her Honour noted that s 135.4(5) of the Criminal Code (Cth) provided that a person is guilty of an offence of conspiracy to defraud the Commonwealth if the person conspires with another person:

(a) dishonestly to cause a loss to a third person; or

(b) dishonestly to cause a risk of loss to a third party; and

(c) the person knows that the loss will occur; or

(d) believes that the loss will occur; or

(e) knows that there is a substantial risk of the loss occurring; or

(f) the person believes that there is a substantial risk of the loss occurring.

169 Her Honour concluded that:

There is no multiplicity of offences. The analysis above shows that the s 135.4(5) offence consists of three elements, two of which may be proved by alternatives. The Commonwealth DPP will need to prove at least one of the alternatives in the two boxes that contain alternatives [73].

170 Accordingly:

There is, here, only one offence alleged: it is the offence of conspiracy to defraud the Commonwealth. If a jury were to find that the object of the conspiracy was dishonestly to cause a loss to the Commonwealth, or alternatively, dishonestly to cause a risk of loss to the Commonwealth, and, that any accused had one of the states of mind set out, then that accused will be convicted of that offence, and not of some other offence [79].

171 Similarly, s 19(1) of the Act creates only one offence: being cruel to an animal. The prosecution may prove that the accused was cruel by any one or more of the matters referred to in s 19(2) or, where the accused was in charge of an animal, by any one or more of the matters referred to in s 19(3). The charge will not be duplex where it is alleged that the accused was in charge of an animal that was confined in a manner that caused or was likely to cause it unnecessary harm. The charge alleges a particular act - confinement of the animal - that will be cruel to the animal if it possesses either of the 'forbidden characteristics' referred to in s 19(3)(b) - that is, that the manner of confinement causes or is likely to cause unnecessary harm.

172 With respect to the magistrate, the same reasoning applies to the suggestion that the evidence disclosed that the charge was duplicitous. The evidence did not disclose a latent duplicity. The evidence did, however, establish that Roxy was actually harmed - the dog suffered from and was distressed by mild heatstroke (and see the reasons that follow on the allegations that the magistrate erred in his findings of fact and that the verdict was unsafe and unsatisfactory and/or against the weight of the evidence). That accorded with the election made by the prosecutor and the findings made by the magistrate.

Prejudice

173 The appellant did not identify any particular form of prejudice or unfairness caused by the respondent being permitted to amend the charge or by the prosecutor being allowed to elect. The appellant declined the offer of an adjournment at the time that the application to amend was made. Her counsel did not subsequently apply for an adjournment or complain that he had been prejudiced in the conduct of the appellant's case by the amendment. To require the prosecutor to elect is a course routinely adopted to cure duplicity. The appellant's counsel did not complain that it would be unfair or prejudicial to allow the prosecutor to pursue that course in this instance. The effect of the election was to confine the allegation made against the appellant.

The test of cruelty

(Proposed ground of appeal 8)

The magistrate's finding

174 The magistrate held that:

What is critical to the outcome of this prosecution is the 'manner' of the confining of ROXY in the rear of the Vehicle, not the 'duration' of the confinement. It is not necessary for the Court to make a finding as to whether ROXY was confined in the rear of the Vehicle continuously from 1.00 pm to 4.30 pm (reasons for decision, 29).

175 His Honour found that the appellant's vehicle, with Roxy inside, was first sighted at the carpark at approximately 1.00 pm. The vehicle was still parked at the carpark with the dog inside at 4.30 pm. Accordingly, his reference to it not being necessary to make a finding about the duration of confinement must be taken to refer to it not being necessary for the prosecution to prove that the dog had been continuously confined in the vehicle for the period between about 1.00 pm to 4.30 pm.

176 The magistrate found that the manner of confinement had caused Roxy unnecessary harm as it was in a distressed state when found by Mr Douthat and because it had been diagnosed as suffering from heatstroke. His Honour was, in effect, satisfied that the only reasonable inference to be drawn from all of the evidence and the findings that he made on the evidence was that the dog suffered from heatstroke as a consequence of the manner in which it had been confined - that is, confined in the appellant's vehicle for some time on a hot day.

Disposition

177 Section 19(3)(b) of the Act provides that a person in charge of an animal is cruel to an animal if the animal is confined 'in a manner' that causes, or is likely to cause, unnecessary harm. The words 'in a manner' are sufficiently wide to encompass, where relevant, the duration of confinement. So, for example, to confine a dog in a motor vehicle for a few minutes might not constitute a manner of confinement that caused or was likely to cause the animal harm.

178 However, it was not necessary for the prosecution to prove how long Roxy had been confined in the appellant's vehicle to establish beyond reasonable doubt that the manner of its confinement had caused unnecessary harm. There was ample evidence from which the magistrate could be satisfied to the required standard that the dog had been unnecessarily harmed by being confined in the rear of the appellant's vehicle: the observations by witnesses of Roxy's behaviour and evident distress; the fact that the dog was observed to be in the appellant's vehicle approximately two hours apart (between when Ms Zuraszek and Ms Weiman first saw the dog and when Mr Weiman arrived at the Carousel shopping centre); the further fact that the dog remained confined in the vehicle between when Mr Weiman arrived and when Mr Douthat released the dog from the vehicle (a period of approximately one and a half hours); the prevailing weather conditions; the dog's presentation on being examined at the veterinary clinic and the diagnosis of mild heatstroke.

The magistrate's findings

(Proposed grounds of appeal 9 12)

Proposed ground of appeal 9

179 The particulars to proposed ground of appeal 9 allege that the magistrate erred by:

(a) Not making any finding with respect to how long Roxy had been confined in the appellant's motor vehicle.

(b) By finding that the motor vehicle had been parked in the sun when the prosecution witnesses conceded that the vehicle had been parked in the shade or had been parked partially in the shade.

(c) By 'taking judicial notice of the fact that an unshaded (even partially shaded) stationary (or parked) motor vehicle with minimal or no ventilation over an extended period of time on a hot summer's day in the mid to late afternoon in a concrete walled car park surrounded by other motor vehicles, would have an elevated internal temperature compared to the temperature outside such a vehicle'. That finding was said to be contrary to evidence that the vehicle had been parked in the shade or substantially in the shade and further, the internal temperature of the motor vehicle caused by a concrete walled car park surrounded by other vehicles was not a topic on which judicial notice could be taken.

(d) By finding that Mr Douthat located the vehicle in the same place as where Ms Zuraszek and Ms Wieman had first observed the vehicle. In fact, Mr Douthat had located the vehicle in a different position to that observed by Ms Zuraszek and Ms Wieman.

(e) By finding that Mr Douthat was a highly experienced RSPCA Inspector and had considerable expertise in dealing with dogs and in assessing the welfare of dogs generally when, in fact, Mr Douthat had conceded that he had no experience with the particular breed of the appellant's dog.

(f) By finding that Roxy had not reacted adversely or otherwise responded to Mr Douthat's entry into the vehicle when, in fact, Mr Douthat's evidence was to the effect that the dog moved away from him towards the back of the cabin closest to the caged area.

(g) By finding that the appellant's dog suffered from heatstroke when the evidence was that it had, in fact, suffered from mild heatstroke.

(h) By finding that the appellant's dog was suffering from heatstroke at the time that Mr Douthat had seized the dog when that finding was unsupported by evidence - in particular, there was no evidence as to the dog's heart rate or rectal temperature and no evidence of symptoms such as hyperthermia, hypersalivation or excessive panting provided by any of the witnesses who had observed the dog in the vehicle at the time that it was removed by Mr Douthat.

The duration of confinement

180 Implicit in this allegation of error was the proposition that the prosecution was required to prove beyond reasonable doubt that Roxy had been confined in the appellant's vehicle between when she was first seen by Ms Zuraszek and Ms Weiman and when the dog was later seen by Mr Weiman and Mr Douthat; that is, that the prosecution was required to negate the possibility that the appellant had removed the dog from her vehicle at some time during the afternoon of 4 December 2012 so that the dog's condition was not caused by the manner of its confinement. In my view, the magistrate was not required to make a finding on the length of time during which Roxy had been confined in the appellant's vehicle for the reasons that have been given. Further, I am satisfied from a review of the trial transcript that it was open to the magistrate to find that the only reasonable inference available on the evidence was that Roxy's condition was caused by the manner of her confinement in the appellant's vehicle for the reasons that were given above in relation to proposed ground of appeal 8.

181 It should also be noted that the possibility that the appellant had removed Roxy from her vehicle for some time during the afternoon of 4 December 2012 was a matter that was peculiarly within her knowledge. In my view, the magistrate would have been entitled to apply the observations of the majority in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 in determining this issue. Mason CJ, Deane and Dawson JJ observed in Weissensteiner that:

We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused (227 228)

The location of the vehicle

182 Ms Zuraszek, Ms Weiman, Mr Weiman and Mr Douthat all stated that the appellant's motor vehicle was parked on the top deck of the Carousel shopping centre carpark. Ms Zuraszek and Ms Weiman stated that the motor vehicle was parked in the second row away from the entrance to the Coles supermarket. They both placed the motor vehicle as having been parked approximately in the middle of the row.

183 Ms Zuraszek and Ms Weiman further identified the location of the appellant's motor vehicle by marking exhibits 8.1 and 8.3 (a pink marker for Ms Zuraszek and a purple marker for Ms Weiman). They each placed the vehicle in almost the same location. The vehicle was parked underneath one of two shade sails that covered part of the second row of vehicles.

184 Mr Weiman stated that the appellant's vehicle was parked in a row of vehicles located behind the row identified by Ms Zuraszek and Ms Weiman. He marked the location with a yellow sticker on exhibit 8.4. Mr Douthat also stated that the appellant's vehicle was parked in that row. He marked exhibit 8.2 with a green sticker, locating the vehicle close to where Mr Weiman had indicated that it was parked.

185 The magistrate found that Mr Douthat had located the appellant's vehicle in the same spot as where Ms Zuraszek and Ms Weiman had earlier observed the vehicle. I accept the appellant's submission that the magistrate misstated the effect of Mr Douthat's evidence if his Honour's finding was to the effect that the vehicle was parked in exactly the same spot. Mr Douthat placed the vehicle in a different row to that identified by Ms Zuraszek and Ms Weiman. However, it is not clear whether the magistrate only intended to indicate that the appellant's vehicle was located on the top floor of the Carousel shopping centre car park in the vicinity of where it had been observed earlier in the afternoon by Ms Zuraszek and Ms Weiman.

186 I accept, however, that the inference to be drawn from the evidence of Ms Zuraszek, Ms Weiman, Mr Weiman and Mr Douthat was that the appellant's vehicle had been moved some time during the afternoon of 4 December 2012. Again, whether the vehicle was actually moved by the appellant and if so, when, were matters that were peculiarly within her knowledge.

187 The difference in the location of the appellant's vehicle according to the evidence of Ms Zuraszek and Ms Weiman, on the one hand, and Mr Weiman and Mr Douthat, on the other hand, was insignificant - a matter of one row and a few car bays. Any error that the magistrate may have made in relation to the evidence regarding the location of the vehicle was, in my view, immaterial to the ultimate findings made by the magistrate and to the inferences reasonably available on the evidence presented by the prosecution.

Shade

188 The markings by the witnesses on exhibits 8.1 to 8.4 indicated that the appellant's vehicle was parked under the shade sails erected across part of the top deck of the carpark. However, there were gaps between the shade sails and witnesses placed the appellant's vehicle near the edge of the sails and close to the gaps.

189 Ms Zuraszek stated that the appellant's vehicle had 'slight shade from the shade sail' (11 July 2013, ts 90). Ms Weiman said that the car was partially under shade, but that the shade cloth was 'minimal' and that the side of the appellant's vehicle was in the sun (18 September 2013, ts 13 and ts 23). She also stated that standing in the shade under the shade sails made 'little difference ... in the feeling of heat on your skin' (ts 23).

190 Mr Weiman stated that the cabin of the appellant's vehicle was under the shade sail, but that the bonnet was in the sun (18 September 2013, ts 30). Mr Douthat stated that the appellant's car was 'predominantly' in the sun (12 July 2013, ts 156).

191 Obviously, the shade thrown by the shade sails would have varied across the afternoon. In my view, the magistrate's finding was broadly consistent with the evidence.

Judicial notice

192 Judicial notice may be taken of facts that are so generally known that every ordinary person may be reasonably presumed to be aware of it: Holland v Jones [1917] HCA 26; (1917) 23 CLR 149, 153 (Isaacs J). That heat may be radiated off concrete surfaces and that the interior temperature of a vehicle wholly or partially parked in the sun may be elevated above the ambient temperature are facts that are so notorious that they may be the subject of judicial notice.

193 However, it is not a fair reflection of the evidence presented by the prosecution to suggest that the magistrate was forced to take judicial notice of the likely temperature inside the appellant's vehicle. Mr Douthat gave evidence that the temperature inside the appellant's vehicle was higher than the ambient temperature (12 July 2013, ts 148). He was not crossexamined on that evidence. Further, Mr Manning gave expert evidence on the issue. He described tests that had been performed that demonstrated that the interior temperature of a vehicle parked for some time in the sun is significantly higher than the ambient temperature (and see also Ms Weiman's evidence on 18 September 2013, ts 14).

Mr Douthat's experience

194 It was not put to Mr Douthat that his ability to assess the condition of Roxy was compromised by his lack of experience with Borzoi dogs. In any event, there was no evidence that suggested that the observations made by Mr Douthat regarding Roxy's condition and behaviour were compromised by his lack of experience with that breed of dog.

Mr Douthat's entry into the vehicle

195 In my view, there was no inconsistency between the magistrate's finding regarding the reaction of Roxy when Mr Douthat entered the appellant's vehicle and the evidence given by Mr Douthat. Presumably, the point of this particular was to suggest that Roxy had not been adversely affected by heat as evidenced by her movement on Mr Douthat's entry. There was no suggestion to that effect made at the trial and the movement of the dog on Mr Douthat's entry into the vehicle could not be said to be inconsistent with all of the evidence concerning Roxy's condition - in particular, the evidence given by Dr Keall.

The finding that Roxy suffered from heatstroke

196 Dr Keall diagnosed Roxy as suffering from 'mild' heatstroke. The magistrate's reference to heatstroke was, in my view, a shorthand reference to Dr Keall's diagnosis. In any event, any difference in language was of no consequence when his Honour's reasons are read in the context of the evidence that he accepted and the findings that he made on that evidence.

The finding that Roxy suffered from heatstroke when seized

197 I am satisfied from a review of the trial transcript that it was open to the magistrate to find that the only reasonable inference available on the evidence was that Roxy was suffering from heatstroke at the time that she was seized by Mr Douthat. I have reached that conclusion having regard to:

(a) the evidence concerning the circumstances in which the dog was confined in the appellant's vehicle;

(b) the evidence that the dog was distressed while in the back of the vehicle;

(c) Dr Keall's diagnosis of heatstroke, her explanation of that condition and the symptoms that she described (see, for example, Dr Keall's evidence on 22 April 2014, ts 110);

(d) the evidence about the manner in which Mr Douthat conveyed Roxy to Dr Keall's veterinary clinic and the time that it took to transport the dog – in addition to the evidence of Mr Douthat, there was evidence given by Dr O'Connell regarding the type of vehicle that is used by the RSPCA to transport animals;

(e) Dr O'Connell's evidence that the temperature of a dog would not be increased by transporting it in a ventilated van (22 April 2014, ts 134).

Proposed ground of appeal 10

198 The particulars to this proposed ground of appeal refer back to the allegation made in relation to proposed ground of appeal 9 that there was no evidence concerning Roxy's symptoms at the time that she was seized by Mr Douthat and to the magistrate's observation that Mr Douthat was faced with an emergency when he arrived at the Carousel shopping centre as Roxy was in distress and had been unnecessarily harmed (reasons for decision, 30). The proposed ground of appeal alleges that there was no evidence adduced by the prosecution from which the magistrate could find that Roxy was suffering from heatstroke when seized by Mr Douthat and that Mr Douthat was faced with an emergency.

199 The proposed ground ignores the evidence regarding Roxy's behaviour and appearance, the opinions of Dr Keall and Dr O'Connell and Mr Douthat's evidence of his observations of the dog and the manner in which it had been confined. The magistrate accepted the evidence given by each of the prosecution's witnesses and there is no challenge to the evidence given by Ms Zuraszek, Ms Weiman, Mr Weiman, Mr Douthat and Dr Keall about their observations of Roxy's condition and behaviour.

200 The fact that Mr Douthat took photographs of the appellant's vehicle with Roxy inside does not mean that the magistrate erred in observing that Mr Douthat was faced with an emergency. In any event, the word 'emergency' was used by the magistrate merely as part of the narrative and is to be understood in the context of the findings that his Honour made.

Proposed ground of appeal 11

201 The particulars to proposed ground of appeal 11 merely refer back to the particulars to grounds 9 and 10. To recast the matters alleged by grounds 9 and 10 as an allegation that the conviction was against the weight of evidence does not raise any allegation of express or implied error that has not, in substance, already been considered.

Proposed ground of appeal 12

The appellant's submissions

202 It was submitted that the verdict was unsafe and unsatisfactory as Dr Keall was unable to comment on the state of the appellant's dog at the time that she was seized. It was open to infer, so it was contended, that the condition of the dog may have deteriorated while she was being transported to Dr Keall's veterinary clinic. It was further submitted that:

(a) while Mr Weiman and Mr Douthat had described Roxy as appearing stressed and wet, the prosecution had not excluded an inference that the dog's appearance could be explained by the fact that she had been lying on wet towels while in the back of the appellant's vehicle;

(b) the magistrate had not explained what he meant by the word 'manner' and in the absence of such an explanation, the verdict was unsafe and unsatisfactory having regard to the matters that he found relating to the manner of Roxy's confinement.

The relevant principles

203 The test to be applied where it is contended that there has been a miscarriage of justice because the verdict was unreasonable or could not be supported by the evidence is as stated in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 493:

The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.

...

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

204 The High Court also noted that (at 493):

And as the Court observed in Davies and Cody v The King ..., the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:

'not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.'

205 Finally, the High Court observed that (at 494):

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

206 The High Court recently confirmed that M v The Queen authoritatively stated the circumstances in which a conviction may be set aside on the ground that the verdict was unreasonable or could not be supported having regard to the evidence: Michaelides v The Queen [2013] HCA 9; (2013) 296 ALR 1; (2013) 87 ALJR 456.

Disposition

207 I have reviewed the whole of the evidence that was presented in the trial. In my view, it was open to the magistrate to have been satisfied beyond a reasonable doubt that the appellant was guilty of the charge alleged against her. That conclusion is based on all of the evidence adduced by the prosecution but especially the evidence to which reference was earlier made regarding the allegation that the magistrate had erred in finding that Roxy was suffering from heatstroke by the time that she was seized by Mr Douthat.

208 The magistrate did not fail to observe any condition that was central to a satisfactory and fair trial and I have not been persuaded that his Honour made any material error of fact. I was not left with a troubling doubt of the kind referred to by the High Court in M v The Queen from my review of the evidence.

209 The expression 'the manner of confinement' raises a question of fact to be determined by all of the relevant circumstances. The expression is to be understood and applied according to the ordinary meaning of the words used. The findings made by the magistrate regarding the circumstances in which Roxy was confined in the appellant's vehicle disclosed how his Honour determined that issue. His Honour was not required to provide a further explanation of the meaning of the word 'manner'.

210 It follows from the conclusion that I have reached in relation to proposed ground 12 that I am satisfied that the appellant's conviction was supported by the evidence, contrary to the allegation made in proposed ground of appeal 11.

The competence of counsel

(Proposed ground of appeal 14)

The appellant's submissions

211 The appellant submitted that her counsel had incompetently conducted her defence in a number of respects. Broadly, the allegations that she made were that her counsel had failed to:

(a) adduce evidence that DAFWA was the department responsible for assisting the Minister to administer the Act from 4 July 2011;

(b) identify or argue the relevance of the Policy and the alleged consequences of the failure to comply with the Policy;

(c) identify that the respondent was not a general inspector appointed under the Act and had, therefore, no power to commence proceedings against the appellant;

(d) object to the amendment of the prosecution notice with the result that the trial involved the prosecution of a charge that was bad for duplicity;

(e) object to hearsay evidence given by Mr Douthat of a conversation with a person that had not occurred in the presence of the appellant;

(f) object to leading questions 'prompting the learned trial magistrate to intervene due to concern that the appellant was being prejudiced';

(g) object to speculative remarks by a witness prompting the magistrate to intervene;

(h) advise the appellant to give evidence following the completion of the prosecution case;

(i) object to an assertion by Ms Zuraszek that Mr Weiman saw the same vehicle with the same dog inside.

The relevant principles

212 The principles relevant to an allegation that a miscarriage of justice has been caused by the conduct of counsel at trial were summarised by the Court of Appeal in McMahon v The State of Western Australia [2010] WASCA 143 and Durani v The State of Western Australia [2012] WASCA 172. The principles were substantially derived from the various judgments delivered in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124. The following brief statement of the relevant principles is taken from the judgment of McLure P in McMahon:

(a) The applicant carries a heavy burden in demonstrating that the conduct of trial counsel caused a miscarriage of justice [24].

(b) Ordinarily, an accused is bound by the way the trial is conducted by counsel regardless of whether counsel's conduct accorded with his or her wishes. It is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions or involved errors of judgment or even negligence [24].

(c) There will be a miscarriage of justice regardless of whether counsel's conduct might have affected the outcome if the accused has been deprived of a fair trial according to law [25].

(d) Two questions arise where the conduct of counsel has not deprived an accused of a fair trial according to law but counsel's conduct was nevertheless irregular in some respect: first, did the conduct result in a material irregularity in the trial and second, was there a significant possibility that the irregularity affected the outcome [26].

(e) The test of whether there was a material irregularity is objective and ordinarily, a material irregularity will not occur where the alleged error of counsel concerned forensic choices about which competent counsel might have differing views. Nevertheless, there will be a miscarriage even though the error involved a forensic choice or judgment if it plainly affected the result of the trial [27].

Disposition

213 It will be seen that the allegations of incompetence substantially mirror the appellant's proposed grounds of appeal. I have found that the proposed grounds lack merit. Obviously, there is no basis for concluding that the appellant's counsel was incompetent in relation to those matters.

214 Dealing with each of the matters submitted by the appellant in the order set out above:

(a) For the reasons that have already been given, the change in the department principally assisting the Minister in administering the Act had no consequences for the prosecution of the charge alleged against the appellant.

(b) Contrary to the appellant's submission, her counsel did raise the alleged failure to comply with the Policy on the first morning of the trial. Further, the question of whether there had been compliance with the Policy was not a matter that was susceptible to review by the magistrate for the reasons that have been given.

(c) The respondent was a general inspector duly appointed under the Act at the time the proceedings were commenced.

(d) As has been explained, the charge was not bad for duplicity.

(e) The prosecution alleged that Mr Perry had transported Roxy to the Carousel shopping centre where the dog was handed to the appellant. The conversation between Mr Douthat and Mr Perry was recorded by Mr Douthat and played to the court. Mr Douthat also gave evidence of his recollection of the conversation with Mr Perry. According to Mr Douthat, Mr Perry told him that he had taken the dog to the shopping centre, leaving his residence in Muckenburra sometime between midday and 1.00 pm. Mr Douthat did not state whether Mr Perry also advised him as to when he had arrived at the Carousel shopping centre (12 July 2013, ts 150). Mr Douthat repeated his account of the conversation with Mr Perry later in his evidence (5 December 2013, ts 12 13). The evidence of the conversation with Mr Perry was hearsay to the extent that it was adduced for the purpose of proving Mr Perry's arrangements with the appellant and the time that he left for the Carousel shopping centre. However, the magistrate did not take into account Mr Douthat's evidence of the conversation for the purpose of finding the facts.

(f) The exchanges identified in the appellant's outline of submissions reflected interventions by the bench that routinely occur in a criminal trial. They did not disclose that the appellant's counsel at trial was incompetent.

(g) No evidence has been presented concerning any advice that may have been provided by the appellant's counsel on whether the appellant should have given evidence or about the appellant's instructions following that advice. There is no basis for concluding that the appellant's counsel was incompetent merely because another counsel would have made a different forensic assessment and advised the appellant to give evidence.

The appeal against sentence

(Proposed grounds of appeal 15 and 16)

The principles to be applied

215 The court can only allow an appeal against sentence if the sentencing magistrate has made an express or implied material error of fact or law and, in the court's opinion, a different sentence should have been imposed – there would otherwise be no substantial miscarriage of justice in the sentence imposed: s 14 Criminal Appeals Act 2004 (WA). The principles to be applied by the court in forming its opinion were summarised by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They reflect the discretionary nature of sentencing.

216 An allegation that a sentence is manifestly excessive is an allegation of implied error. In determining whether a sentence is manifestly excessive, the court will have regard to the maximum sentence for the offence; the standards of sentencing customarily imposed for sentences of a relevant type; the seriousness of the offending and the personal circumstances of the offender. However, the court will not intervene merely because it might have imposed a different sentence to that which had been imposed. Error may be implied if the result is unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

Disposition

217 Neither party cited any comparable cases in which sentences for animal cruelty had been imposed or reviewed on appeal. However, I note that this court has considered appeals against sentence for contraventions of s 19 of the Act in Holding v Parkin [2012] WASC 113; (2012) A Crim R 323; The House of Relocators Pty Ltd v Ginbey [2013] WASC 188 and The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94. In each instance, it was alleged that the sentence imposed was manifestly excessive.

218 The Act replaced the Prevention of Cruelty to Animals Act 1920 (WA). The penalty for an offence of being cruel to an animal is a fine of between $2,000 and $50,000 and/or imprisonment for a maximum of 5 years. The maximum penalty under the repealed Act was a fine of $5,000 or 12 months' imprisonment (s 4(1)). The maximum penalty fixed by Parliament for an offence demonstrates Parliament's view of its gravity. The fact that Parliament has increased the maximum penalty for an offence is a relevant factor in sentencing; the increase in the maximum penalty is an indication that the sentences should be increased to reflect Parliament's revised view of the gravity of the offending.

219 In Holding v Parkin, Hall J reviewed sentences that had been imposed for cruelty offences in other jurisdictions and concluded that:

It is impossible to derive a definite range of sentences from these cases. The factual circumstances varied significantly. It could not be said that imprisonment was the usual sentence for offences of this type. A number of the cases did involve sentences of imprisonment, but they were offences which were clearly more serious than the present matter [35].

220 His Honour identified six circumstances that were relevant to characterising the seriousness of an offence committed against s 19 of the Act:

(a) the nature of the harm inflicted on the animal;

(b) the length of time during which the animal suffered;

(c) the amount of suffering caused; that is, the extent of any injury or the degree of pain or the amount of distress;

(d) the vulnerability of the animal, both in general and in relation to the particular offender;

(e) whether the conduct that caused the harm was a single act or a course of conduct; and

(f) whether the conduct was deliberate, intentional or planned, or was neglect of a duty to animals [41].

221 In The House of Relocators v Ginbey, a director of the appellant was convicted of four offences against s 19(1) of the Act. McKechnie J allowed an appeal against sentence to the extent of setting aside a suspended imprisonment order that had been made by the sentencing magistrate. He otherwise dismissed an appeal against the fines imposed. The fines ranged between $14,000 and $30,000.

222 The fine imposed by the magistrate was towards the lower end of the range of fines prescribed for a breach of s 19 of the Act. It was obvious that Roxy was at risk of harm by being left for some time in a vehicle on a very hot day. The risk was immediately apparent to Ms Zuraszek and Ms Weiman. The dog was distressed as evidenced by its behaviour and appearance and by the symptoms described by Dr Keall. The dog was distressed for some time on the evidence of the witnesses who observed her at the Carousel shopping centre. That is consistent with the opinions expressed by Dr Keall and Dr O'Connell regarding the symptoms and nature of heatstroke.

223 The magistrate noted that the appellant had shown no remorse or insight into her offending: 'perhaps the most troubling aspect of the offending is the complete and utter absence of any remorse' and 'even today, the accused seems to be in denial of having done anything wrong' (19 September 2014, ts 196). His Honour gave detailed consideration to the sentencing factors prescribed by s 6 of the Sentencing Act 2004 (WA) and found that general and personal deterrence were significant factors in sentencing the appellant.

224 In my view, the fine imposed by the magistrate was within the range of fines that represented a sound exercise of the sentencing discretion having regard to the seriousness of the offence and the appellant's offending, the appellant's personal circumstances and the sentences that have been imposed in other cases for animal cruelty (including those referred to by Hall J in Holding v Parkin).

Proposed ground of appeal 16

225 There is no merit in this proposed ground of appeal for the reasons given in relation to grounds of appeal 4 6 and the additional ground of appeal.

226 Further, evidence that Roxy had been taken to veterinary surgeons at times while she was in the care of the RSPCA (exhibits 16 and 17) does not establish that the magistrate's discretion to order forfeiture of the dog miscarried given his Honour's findings on conviction and sentence.

Attachment A
Additional ground of appeal

Attachment B
Amended appeal notice - grounds of appeal

Attachment C
Particulars to proposed grounds of appeal

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : CULVERWELL -v- GINBEY [2016] WASC 3 (S)

CORAM : CORBOY J

HEARD : ON THE PAPERS

DELIVERED : 8 SEPTEMBER 2016

FILE NO/S : SJA 1076 of 2014

BETWEEN : ADELE CULVERWELL

Appellant

AND

KEITH NEVILLE GINBEY

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R S HUSTON

File No : PE 18751 of 2013

Catchwords:

Criminal law - Appeal -  s 55  of the  Animal Welfare Act 2002  (WA) - Whether appeal court can vary reimbursement order made following conviction

Legislation:

 Animal Welfare Act 2002  (WA),  s 55 

Result:

Application to vary reimbursement order dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance

Respondent : No appearance

Solicitors:

Appellant : Ross Christoforou

Respondent : Jackson McDonald

Case(s) referred to in judgment(s):

1 CORBOY J: The appellant was convicted of the offence that, being a person in charge of an animal, namely a dog, she was cruel to the animal by confining it in a manner that caused it unnecessary harm, contrary to  s 19(1)  and  s 19(3)(b)(ii)  of the  Animal Welfare Act 2002  (WA). She was fined $5,000 and ordered to pay legal and care costs. An order was also made that her dog, 'Roxy', be forfeited to the Crown (s 55(2)(c)(ii) of the Act).

2 The appellant appealed from her conviction. Her amended appeal notice pleaded 16 proposed grounds of appeal. A further proposed ground of appeal was added to the notice immediately prior to the hearing of the appeal.

3 I granted leave to appeal on proposed grounds 4 6 and the proposed additional ground. However, I dismissed the appeal on those grounds. I further found that none of the remaining proposed grounds of appeal had a reasonable prospect of success. Accordingly, leave to appeal on those grounds was refused: Culverwell v Ginbey [2016] WASC 3.

4 The respondent has now applied for an order under  s 55(2)(f)  of the  Animal Welfare Act  seeking to vary an order made by the presiding magistrate pursuant to that section. I have concluded that the application should be refused for the reasons that follow.

The  Animal Welfare Act 

5  Section 40  of the  Animal Welfare Act  provides that an inspector may provide to an animal any food, water, shelter, care or treatment the inspector considers necessary to ensure the welfare, safety and health of the animal.  Section 42  of the  Animal Welfare Act  provides that an inspector may seize an animal if the inspector reasonably suspects that an offence under pt 3 of the Act is being, or has been, committed in respect of the animal.

6 Section 55 of the Act provides that:

(1) A court convicting a person of an offence under this Act may, in addition to imposing a penalty, make any other orders against the offender that the court considers appropriate to protect the welfare, safety and health of an animal, a group of animals or animals in general.

(2) Without limiting subsection (1) a court may -

...

(c) order the forfeiture to the Crown of -

(i) seized property owned by the offender;

(ii) an animal owned by the offender; or

(iii) anything used by the offender in the commission of the offence;

...

(f) order the offender to reimburse a person who incurred costs under section 40(1), 41 or 42 in relation to -

(i) the animal the subject of the offence;

...

7 Section 56 of the Act also provides for recovery for the costs of caring for an animal. Relevantly, the section provides that:

(1) A person who has incurred costs under section 40(1), 41 or 42 in relation to an animal may apply to the Magistrates Court for an order that the applicant be reimbursed for those costs by a person who was in charge of the animal immediately before the care was provided or the animal was destroyed or seized.

(2) On an application under subsection (1) the court is to make the order sought unless the respondent proves that there were no reasonable grounds on which an inspector could have considered the provision of care, destruction or seizure to be necessary.

(3) The court may adjourn an application under subsection (1) until after the determination of any relevant prosecution proceedings.

...

(5) An order cannot be made under subsection (1) in respect of costs for which an order has been made under section 55(2)(f).

The amount claimed

8 The respondent relied on an affidavit made by Jonathan Rex Shepherd in support of his application. The affidavit annexed an email from Ms Johanna Edwards, the General Counsel for the Royal Society for the Prevention of Cruelty to Animals of Western Australia Inc (RSPCA). Ms Edwards annexed to her email a summary of costs said to have been incurred by the RSPCA in relation to the care of Roxy for the period June December 2015 and accompanying documents to substantiate the amounts referred to in the summary. The summary stated that the RSPCA had expended $7,306.97 exclusive of GST in the period to December 2015 in caring for Roxy.

9 Mr Shepherd's affidavit was made prior to judgment being entered in the appeal. Directions were subsequently made with a view to the respondent’s application being determined on the papers.

10 Mr Shepherd made a further affidavit pursuant to those directions. The affidavit corrected an error in Mr Shepherd’s first affidavit. The effect of the error was to reduce the amounted claimed for the care of Roxy to $4,889.72.

The magistrate's orders

11 The orders made by the magistrate on convicting the appellant included an order pursuant to  s 55(2)(f)  of the  Animal Welfare Act . His Honour made a reimbursement order in the amount of $15,000. That order was made in addition to imposing a fine of $5,000 and ordering that the appellant pay the respondent's costs of the prosecution fixed at $15,000.

The respondent's submissions

12 The respondent submitted that 'the inspector' was obliged to care for Roxy 'at all times' pursuant to  s 44(2)  of the  Animal Welfare Act .  Section 44(2)  requires an inspector to notify the owner where property has been seized. It is difficult to see how the subsection, considered in isolation, imposes an obligation on an inspector to care for an animal that has been seized. However, there is no doubt that an inspector is obliged under the  Animal Welfare Act  to care for, or make arrangements for the care of, an animal has been seized.

13 The respondent further submitted that the obligation to care for Roxy continued for so long as the dog was under the care of the inspector, including the period between the sentencing of the appellant and the completion of the appeal. Moreover, the appellant had sought the return of Roxy and it would have been unreasonable for her to refuse to reimburse the respondent for the costs of caring for the dog and it was to be inferred, in those circumstances, that the appellant had the means to pay for the reasonable costs of care. (respondent's submissions, pars 15 21).

The appellant's submissions

14 The appellant submitted that:

(a) the power to make a reimbursement order was discretionary;

(b)  s 55(2)  of the  Animal Welfare Act  only operated where the circumstances described in  s 40(1)  had been established;

(c) Roxy had been forfeited to the Crown pursuant to the orders made by the magistrate so that the Crown became the only entity that was entitled to deal with the animal - in particular, the  Animal Welfare Act  did not vest any power in an inspector to make directions about the care of an animal that had been forfeited to the Crown;

(d) s 55(2)(f) could not support an order for 'top up' reimbursement as the circumstances described in  s 40(1)  were not lawful directions given by an inspector;

(e) the appellant was an elderly woman with no assets; her only source of income was an aged pension; she had been fined and ordered to pay the respondent's legal costs and the costs of caring for Roxy; the total amount that she had been ordered to pay was $35,000 and she had no means to satisfy any further order for reimbursement.

The power to make a further order

15 In my view, this court does not have power to vary the reimbursement order made by the magistrate on convicting the appellant.

16  Section 55  of the  Animal Welfare Act  is directed to the court that convicts a person of an offence against the Act. It permits various orders to be made in addition to imposing a penalty.

17 The reimbursement order made by the magistrate under s 55(2)(f) formed part of the process of sentencing the appellant; that is, part of the process of dealing with the consequences of the appellant’s conviction. The order was made, and is to be made under s 55, by reference to the circumstances as at the date that the appellant was convicted and sentenced. Arguably, considerations of proportionality between the penalty that was imposed, any additional order that was made and the criminality involved in the appellant’s offending were relevant: see, for example, Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 386. In any event, the consequences of conviction - penalty, prosecution costs, reimbursement orders and forfeiture - are to be dealt with once and for all by the court convicting the offender subject to the rights of appeal conferred by the Criminal Appeals Act 2004 (WA). The court that convicted the offender has no power to impose any further penalty or make some further or enlarged order in light of subsequent circumstances once it has dealt with the offender.

18 Section 14(1)(c) of the Criminal Appeals Act provides that the Supreme Court may, in deciding an appeal, set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision. However, that power can only be exercised 'in deciding an appeal'. This court’s powers under s 14 are governed by the appellate jurisdiction conferred by pt of the Criminal Appeals Act and in particular, by s 6 s 9 of the Act.

19 The reimbursement order made by the magistrate was a decision for the purpose of s 6 of the Criminal Appeals Act: see s 6(f). However, the respondent did not appeal from the magistrate's order. Further, the respondent did not contend that the magistrate had erred in law or fact or had acted without or in excess of jurisdiction in making the order or that there had been a miscarriage of justice. The respondent made no complaint about the reimbursement order; rather, he sought to vary and enlarge the order in light of circumstances that had arisen following the appellant’s conviction. This court, in exercising appellate jurisdiction under pt 2 of the Criminal Appeals Act, has no jurisdiction to interfere with the order made by the magistrate in those circumstances.

20 Section 56 has no application. As the appellant submitted, it is difficult to see how the former owner of an animal can be held liable for the cost of care once the animal has been forfeited to the Crown. In any event, the section requires a separate application to be made to the Magistrates Court.

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