RSPCA – Yagoona v Swift [2022] NSWLC 18

Local Court New South Wales

Medium Neutral Citation: RSPCA – Yagoona v Swift [2022] NSWLC 18 Hearing dates: 14 April 2022 Date of orders: 14 April 2022 Decision date: 14 April 2022 Jurisdiction: Criminal Before: Brender LCM Decision: Order made under s 30A(5) of the Prevention of Cruelty to Animals Act 1979 (NSW) for the defendant to provide a bond or security for the payment of specified reasonable care and maintenance costs Catchwords: ANIMALS — Animal cruelty — Application for disposal under s 31 of the Prevention of Cruelty to Animals Act 1979 (NSW) — Whether order for disposal or order for payment of care and maintenance costs by accused person should be made Legislation Cited: Prevention of Cruelty to Animals Act 1979 (NSW), s 30A, s 31 Category: Procedural rulings Parties: RSPCA – Yagoona (Prosecutor) Rosemary Swift (Defendant) Representation: Counsel: M Higgins (Prosecutor) D Eardley (Defendant)

Solicitors: Hewson (Prosecutor) Atkins (Defendant) File Number(s): 2020/00334109 Publication restriction: Nil

JUDGMENT – Revised 1. These proceedings involve one count of commit aggravated cruelty, a backup charge of fail to provide veterinary treatment and four further charges of fail to provide veterinary treatment. They all relate to horses. The first two charges relate to a horse known as Kometa. Sequence 3 relates to laminitis of two horses, Bukhara and Pearls. Sequence 4 relates to severe arthritis of Bukhara. Sequence 5 relates to poor body condition of Endeavour and sequence 6 relates to sharp teeth on Pearls. 2. The matter proceeded over the course of five days last week and at the close of the prosecution's case was stood over part heard for three more days from 18 to 20 October 2022. The horses were seized in 2020. The defence has not yet commenced but I was told it intends to lead evidence from Dr Swift and also from some experts. 3. There was then an application brought for disposal of Pearls under s 31 of the Prevention of Cruelty to Animals Act 1979 (NSW). Endeavour was never taken into RSPCA custody. Bukhara and Kometa have been euthanised. 4. Section 31(1) provides: "31 Court may make further orders following conviction (1) If a court has convicted a person of an animal cruelty offence and the court is satisfied that, were the person to be in charge of an animal, the person would be likely to commit another animal cruelty offence, the court may make either or both of the following orders— (a) an order for the disposal of an animal of which the person is a person in charge, (b) a disqualification order." 1. Subsection (4) provides: "If an officer has taken possession of an animal under section 24J(1) in relation to the alleged commission of an offence against this Act or the regulations, the officer may apply to the court before which the proceedings for the offence are commenced for an order for the disposal of the animal before the proceedings are finally determined." 1. Subsection (5) provides: "The court to which an application under subsection (4) is made may — (a) order that the animal in respect of which the application is made be sold or otherwise disposed of in such manner as the court considers appropriate in the circumstances, and (b) direct that the proceeds of the sale or other disposal be held in trust pending the determination of the proceedings for the offence and the further order of the court, and (c) make such other orders as the court considers appropriate." 1. The evidence in relation to the application included the following, Inspector Stendara said that Pearls is in the care of the RSPCA in the Hawkesbury area but due to recent adverse weather events in Sydney, is in a location with other animals, including animals other than horses. This is not ideal. She says Pearls would be rehomed and not euthanised. Exhibit 23 was tendered being clinical notes relating to the past care of various horses. The seizure notice for Pearls was also tendered. 2. Evidence of extensive and ongoing vet and agistment costs of over $35,000 for all horses including the ongoing cost for Pearls of agistment of about $30 a day were tendered. Until the next hearing dates, I estimate that may total about $6,000 plus veterinary and other bills which have been incurred and which are ongoing. 3. The report of Dr Parbery, the vet from the hearing was also relied upon. Pearls was observed by him and his opinion was that it was found to be, on execution of a warrant, emaciated, severely laminitic, had severe difficulty in walking, its feet were badly neglected. It was seized and treated and improved. His opinions were that Pearls was suffering from laminitis and poor body condition and there had been a failure to provide proper veterinary care for at least 12 months. Pearls also had very sharp teeth and there was a failure to provide veterinary care on that ground as well. 4. These opinions were not clearly challenged. The facts sheet to similar effect was also tendered. Exhibit 2 was also tendered which was a video recording of the site inspection on 1 October 2020. An affidavit of Mr Russo was read by the defendant on the application. It proposed alternative rehoming options with a lady called Ms Scarfe or from one of a number of possible animal sanctuaries. 5. This application falls to be determined before the case is finally decided. The defendant has a presumption of innocence. She has not yet led evidence. Some of her case may be gleaned by the substantial cross‑examination that has occurred however counsel has not disclosed what any experts to be called may say nor what she herself may say in evidence, or at least not with any specificity. If the defendant was to be acquitted in relation to the Pearls charges she would presumably be entitled to the return of the horse, subject to any application that she be prevented from owning any animal in the future due to conviction on other charges. This has not yet been raised by the prosecution. 6. Dr Swift opposes the application but says if I am to make a disposal order it should be to a person or entity referred to in the Russo affidavit. At the hearing, the RSPCA presented a significant body of evidence. Both parties referred in general terms to the prosecution case during the submissions on the application. 7. During the hearing, Inspector Stendara gave evidence by way of a statement. She was examined and cross‑examined. She was the officer in charge and she executed a search warrant with a number of people in response to a report concerning the welfare of animals at the property. The evidence included notebooks, body‑worn camera footage, written directives, seizure notices, photographic evidence and audio recording. 8. A second inspector, McMillan, also gave evidence by way of a statement and was examined and cross‑examined and produced photographs and body‑worn footage. A third officer Dominguez also gave evidence by way of statement and was examined and cross‑examined and also produced footage and photographs. 9. Dr Parbery as I have said gave evidence including by way of a certificate of expert evidence which was extensively supplemented in chief. He was extensively cross‑examined and an attack made on some of his findings and presumably his credit and he was also re‑examined. For the purposes of this application I could not describe the prosecution case as weak. It is premature to go further than that given that the defence has not commenced. It is also fair to observe that the bulk of the parties' attention at the hearing so far has focused on the animals Kometa and Bukhara, the animals which were euthanised and there have been no final submissions as to the evidence obviously because the defence case has not yet been led. 10. Section 30A provides that: "30A Court may order payment of care and maintenance costs by accused person (1) A court may order a person charged with an animal cruelty offence to pay to a specified person or organisation the amount specified in the order for any or all reasonable care and maintenance costs incurred by that person or organisation in relation to the animal as a consequence of the offence or alleged offence or in connection with the proceedings. Any such order is a costs order. (2) For the purposes of this section,reasonable care and maintenance costs are any costs reasonably incurred in doing any of the following— (a) taking possession of the animal, (b) transporting the animal, (c) providing the animal with food and drink, (d) providing the animal with shelter, (e) providing the animal with veterinary treatment." 1. Subsection (5) provides that: "If proceedings against a person for an offence against this Act or the regulations have not concluded, a court may, instead of or in addition to making a costs order, order the person to provide a bond or security for the payment of any specified reasonable care and maintenance costs, or any further reasonable care and maintenance costs, that the person may later be required to pay under a costs order." 1. Subsection (6) provides: "If the amount realised under any such bond or security exceeds the amount payable under a costs order, the excess amount is to be paid or returned to the person who provided the bond or security." 1. Subsection (7) provides: "A court that acquits or discharges a person of an offence against this Act or the regulations may, if it considers it just and reasonable to do so in the circumstances, make any or all of the following orders— … (c) an order requiring any bond or security provided by the person to be cancelled or returned." 1. On my inquiry and during argument, Dr Swift through her lawyers offered to the Court to submit to an order under s 30A(5) as an alternative to an order for disposal. The RSPCA rejoined that this was an animal welfare issue, not exclusively financial, that the animal would be better off being moved from where it was due to the Sydney weather related problems and that although there is no evidence, animals do better with a personal owner and rehoming may provide a better outcome. 2. The RSPCA submitted that there was no reason why the possibilities mentioned in the Russo affidavit would be preferred to an order for disposal by the RSPCA given its expertise, its standing and its statutory obligations to promote animal welfare. The horse has been in temporary housing of some type for 18 months and there is another six months to go roughly until the hearing. 3. In my view some help is obtained in how I ought approach this decision by considering principles applied in interlocutory injunction matters. Those provide an analogy in that a decision is to be made before a final decision is made in the case generally, weighing competing considerations. One needs to look at the strength of the case and whether the plaintiff or the prosecution are ultimately going to succeed but also the balance of convenience. Where possible the subject matter of litigation should be preserved and an inevitable outcome should not be imposed before a final decision. Orders should be fashioned to seek to the extent possible to protect all parties' interests. The analogy is not perfect but it has given me a focus as to how I should approach this case. 4. Dr Swift has an interest in defending these proceedings and wishes to have the horse returned to her should she be found not guilty, or at least have the question under s 31 as to whether the horse is to be disposed of, determined after her case has been presented. A finding of guilt itself would not be sufficient. It would also have to be demonstrated that the person would be likely to commit another animal cruelty offence. These are not topics which have been the subject of any evidence or submissions yet. 5. The RSPCA clearly have an obligation and wish to advance the interests of the animal but also point to their own financial position by pointing to the past and ongoing costs of the seizure of the animals in this case. I should say that the evidence from Inspector Stendara about the unsuitability of the location did not appear to demonstrate that the problem was of a very urgent nature, or that there wasn't any possibility of addressing it by other means. For example, continuing to look for other places for the horse to be moved to temporarily, or permanently. 6. It is also not clear to me on the evidence that any new home would certainly be better than the current outcome. No details were offered about that. It is not clear for example that any rehoming would certainly involve significant human contact or that it might not end up sharing a paddock with other animals, horses or otherwise. Although that is possible, it is not clear whether that would happen or not. The defendant has offered to effectively indemnify the RSPCA against the agistment and other likely costs of the next six months. 7. Weighing all those interests, and in particular bearing in mind the defence case has not been led, and a disposal order would be irreversible, I propose to make an order under s 30A(5) for the defendant to provide a bond or security for the payment of specified projected reasonable care and maintenance costs until the hearing so that there is security to be provided for the future costs until that time when the hearing is projected to be completed. 8. I estimate that agistment costs for the next six months would be about $6,000 and my review of the vet and other bills from the past suggest that a further figure of $1,500 would provide an appropriate buffer for non‑agistment costs for the next six months. Provided that amount is reasonably secured by a bond or other security agreeable to the RSPCA, or approved by me if there is a dispute, I would refuse the application. I am not satisfied that the animal welfare issues outweigh the vice in making an irreversible decision about the disposal of the horse at this time. 9. The parties can relist this matter if the agreed security is not in place within 14 days. In that event, I indicate I would likely make an order under s 31 for disposal by the RSPCA. I indicate that the evidence of Mr Russo does not persuade me that there is a better privately arranged alternative outcome to such an order. The reason for that is there is no information about Ms Scarfe's antecedents or situation and the proposal to rehome to a sanctuary lacks detail. 10. There is little to no evidence of the sanctuary's situation, ability to rehome, whether it would be to themselves or to a third party and if so how they would make that decision or where it would go, and I do not see why any of those would be better than the RSPCA's plans to rehome to a person that they consider suitable, noting that it has said that there is no plan to euthanise. Given its statutory obligations and standing, I would be satisfied that the RSPCA would make the appropriate decision in the interests of animal welfare. 11. Accordingly, if the security is not in place within 14 days pursuant to the order I will make under s 30A, the matter should be relisted and I would intend to make an order under s 31 at that time.