CASE NOTES
LESSONS FROM A PROTRACTED 'FAILURE TO FEED' RSPCA WELFARE CASE
Shaun Slattery, Senior District Veterinarian, North West LHPA
Posted Flock & Herd March 2012
Introduction
In 2007 the then Narrabri RLPB was requested by the RSPCA to provide advice in a 'failure to feed' case. This was the start of RSPCA enforcement and legal proceedings that continued for four years. During this period, there were multiple visits, seizure and destruction of cattle, prosecution, extended court hearings, decisions and appeals. In the immediate aftermath of the seizure and destruction in mid 2007 the family and supporters of the cattle owner began a coordinated and locally focused media, political lobbying and community action campaign. This was in addition to a determination to use all avenues to fight and prolong finalisation of any court action. This impacted on the then Narrabri RLPB, especially staff. At the time of writing the community action campaign was continuing with the support of the local Shire Council.
Experience from this welfare case suggests that there are considerable political, reputation, legal and operational risks (the latter from time and other resources utilised) in being present when RSPCA physically seize and especially destroy livestock. Until suitable frameworks are in place to mitigate these risks to LHPA staff and LHPAs, the author would recommend that the departmental welfare procedures be interpreted as not requiring a presence at these RSPCA actions. This recommendation is given despite the high professionalism of the RSPCA and DPI Officers involved in this case, and what were well managed field and legal operations by the RSPCA. The experience also reinforced the value of using the DPI document Welfare decisions for Beef Cows and that any District Veterinarians giving advice should have extensive experience. Finally, this event shows the importance of individual LHPAs acting quickly and publically to influence local community views by showing their support for staff who are involved in welfare cases.
This function of the then RLPBs (and the now LHPAs) derives not from the RLP Act or the Stock Disease Act Section but from the Prevention of Cruelty to Animals Act (POCTA).
The relevant sect of POCTA is: Section 8, Animals to be provided with food, drink or shelter, Subsection (4), Before commencing proceedings for an offence against subsection (1) in respect of a stock animal depastured on rateable land (within the meaning of the Rural Lands Protection Act 1998), the prosecution must obtain advice from a livestock health and pest authority and the Department about the state of the animal (if practicable) and the appropriate care for it. It is worth noting the limits in terms of what class of animals (stock), the requirement they be on pasture (not feedlotetc.) on rated land and that the DPI also needs to provide advice.
The relevant circulars for the fulfilling of this function by both LHPA and DPI staff are AI 2002/98 Policy for the interaction between NSW Agriculture, Rural Lands Protection Boards and POCTA enforcement agencies and AI 2002/99 Procedure for the interaction between NSW Agriculture, Rural Lands Protection Boards and POCTA enforcement agencies. Both documents were issued in 2002 as Guidelines by the State Council RLPBs. Unfortunately, both documents are of low quality, with the division into policy and procedure being in title only. For this case the section on giving of evidence and legal proceedings was particularly important. However for LHPA staff the framework was reliant on there being a position of Legal Adviser at State Council, a position which had lapsed by 2007. The documents also generally downplay the difficulties of being involved in strongly contested court actions.
History
The RSPCA investigated this herd following a complaint from a community member. After an initial visit, the RSPCA requested that the DPI and Narrabri RLPB provide advice. Three visits over four months followed. At each of these at least one RSPCA and at least one (sometimes two) DPI livestock advisory officers attended. At each visit RSPCA officers attempted to resolve the issue by encouraging the owner to take action. A feeding plan prepared by DPI officers was provided. The author was asked to provide veterinary advice on the general condition score of the animals and their health. The NSW DPI advisory document Welfare decisions for Beef Cows was used to report on visual observations. This document was used at all visits to assess the cattle. It was easy to use and clear to lay persons. Despite being subject to extensive court room examination, the author found the advisory document to be a robust tool for any expert veterinary witness.
During this period the region and much of NSW was in severe and prolonged drought. The herd was located within the Pilliga scrub, an area of lighter, low fertility soils.
After the third visit, the RSPCA asked for advice regarding the possibility of major welfare problems. Given the already poor condition of the cattle, the deterioration of the herd, the presence of heavily pregnant cows and the approach of winter, advice was given that metabolic disease was likely to become prevalent, especially if there was cold and wet weather. In light of this advice, and to avoid the possibility of a major deterioration in the welfare of the herd, a decision was made by the RSPCA to seize the cattle.
In practical terms, seizure of cattle meant that the RSPCA would also use their powers to destroy the cattle, if the cattle were of such poor condition that they could not be humanely transported. It was this advice that the RSPCA now asked the RLPB to provide under its 'failure to feed' obligations. Both RLPB State Council and the DPI were contacted to determine whether the requirement to provide such advice was consistent with the circular. Both groups would not give a clear reply. This step was critical as latter became apparent in media publicity, assessing an animal as being unable to be transported and advising the RSPCA as such, was in the eyes of many outsiders giving a direction that the animal be destroyed.
The seizure and destruction operation was extremely professional, with several RSPCA officers in attendance, two DPI Officers, a private veterinarian employed by the RSPCA and two DPI livestock advisory officers. In addition, there was the local Police officer and the author who were the only locally resident staff. The herd was assessed and vast majority of the adult cattle humanely destroyed and buried within several hours.
THE AFTERMATH
The media campaign started before the end of the operation with print media present and television crews notified. In the ensuing weeks, the family were given sympathetic radio space on local ABC and in articles in local and regional newspapers. Local members of parliament and local councillors were approached and expressed sympathy with the owner in the media. A letters to the editor campaign began and within a few weeks an impression had been created, that was accepted by parts of the local community, that these were cattle in normal drought condition and that the owner was a victim of a callous government action. They also created the local opinion that the RLPB had been a leader in the action. This was largely driven by the RLPB being the only local organisation other than the Police involved.
In response, the local RLPB asked the RSPCA, the DPI and RLPB State Council for assistance. The RSPCA advised that it could not comment as legal action was pending, the DPI did likewise and advised that to refuse comment was the best response. RLPB State Council advised it was a local issue. It is perhaps worth noting that the NSW Police during the midst of the media campaign awarded the local Pilliga Police Officer a Local Area Commander's Certificate of Appreciation to reinforce their backing of his actions.
As per the procedures, a Certificate of Expert Evidence was prepared for the RSPCA. Efforts were made to obtain legal support. The DPI indicated that although they were assisting their staff they would not do same for the RLPB. RLPB State Council indicated the Board should use their solicitor.
The case was heard in the Narrabri Local Court over four weeks, a record for this call of action. The author spent more than one day giving evidence and being cross-examined. The DPI witnesses were supported by a DPI legal officer. No support was available for RLPB staff other than that from the RSPCA's legal team.
The key elements in the author being viewed as a credible witness by the court were the use of the Welfare decisions for Beef Cows and being an experienced DV of 17 years.
The Local Court found the owner guilty. The costs awarded against the defendant were very significant. The defendant then appealed to the District Court which rejected the appeal. The defendant then appealed to the Supreme Court of Appeal on a matter relating to the District Court Judge's eligibility. Finally, at the High Court leave to appeal was rejected in March 2011.
During this period, there was extensive coverage in the anti-RSPCA blogosphere. It is worth noting that the RSPCA successfully sued one on-line site for defamation. On that site the RSPCA and RLPB and their staff receive similar treatment.
At the end of legal proceedings, costs awarded against the defendant had totalled almost $600,000. In response there has been a local community meeting to lobby for these costs to be waived. This has successfully obtained the support of the Narrabri Shire Council, who has written to various bodies. The final outcome of this case is yet to be completely determined.