Geraldine Robertson v RSPCA & DPI
To understand how this could happen please read about the Stanford Prison Experiment. RSPCA are a Stanford Prison Experiment with a money motive - a private (charity) business trading in pets (Federal Court Decision) administers an Act of Parliament, the Animal Care and protection Act 2001 with Police powers, a money motive and no supervision. Complaints about RSPCA Animal Inspectors can only be made to RSPCA chief Inspector Michael Pecic.
Geraldine Robertson's Response to The Decision of Magistrate Colin J Strofield's in pdf (7.45Mbytes).
abuse of process - media attention designed to affect Appellant's ability to get a fair trial.
RELEVANT PRINCIPLES AS TO ADMISSIBLITY
25 Four separate functions have been identified as being performed by so called expert witnesses, as follows:
• generalising from experience,
• acting as librarian,
• acting as statistician, and
• acting as advocate.
R v ULMAN-NARUNIEC No. SCCRM-03-125, SCCRM-03-108 [2003] SASC 437 (24 December 2003)
"The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."
"In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed."
"Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.
More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. ..... When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law."
"By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness."
"Where proceedings have been instituted for an improper purpose (abuse of process), no remedy is likely to be appropriate other than a stay of the proceedings. No directions given by the judge at trial can protect the accused in that situation. On the other hand, where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial (fair trial), it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation. Uncommon as that situation may be, it cannot be excluded. To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other."
Miscarriage of justice
Was there a contempt?
42 There are a number of descriptions of what the prosecutor must prove about an article in order to succeed on a prosecution for contempt. In Attorney General (NSW) v X [2000] NSWCA 199, (2000) NSWLR 653, Mason P stated:
170 The prosecutor was required to establish beyond reasonable doubt that the publication had “as a matter of practical reality, a tendency to interfere with the course of justice in a particular case” (John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 at 370). In Hinch Mason CJ (at 27-28) thought that a test of “substantial risk of serious interference” would best reconcile the conflicting demands for a free press and for a fair trial, whilst conceding that it was synonymous or virtually synonymous with other authoritative formulations. Wilson J (at 34) spoke of a need to demonstrate a “real and definite tendency to prejudice or embarrass pending proceedings”. Deane J (at 47) suggested “clear tendency” as a suitable paraphrase. See also per Toohey J at 70.
R v The Age Company Limited & Ors [2008] VSC 305 (20 August 2008) - Found guilty of contempt.
30 The existence of systems for avoiding contempts is an important mitigating factor in this case. However, the systems failed at two discrete points. The first was when an item that was not suitable for publication was inadvertently made available for publication. The second was when the item was approved for publication without checking whether it affected any current or pending court proceedings. As a result, the weight to be given to this factor is considerably diminished.
Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 152 (3 March 2008)
53 In reaching that view I take into account that in more recent times the courts generally have been less prepared to treat jurors as some kind of exotic or fragile beings who must be protected from the
ravages of the outside world while performing their civic duty. The whole criminal justice system operates on the basis that jurors can put out of their minds extraneous material that has no real bearing upon
the issue that they are to decide even if that material might possibly have some prejudicial aspect.
54 A number of statements to this effect were recently gathered in Kanaan v R [2006] NSWCCA 109 and Mr Sackar sought to rely upon that decision in which the Court of Criminal Appeal held that a miscarriage of justice had not occurred notwithstanding pre-trial publicity in the media. However that decision cannot be taken too far in considering whether a contempt has occurred. In that case the Court was considering retrospectively a completed trial and deciding whether, in light of all that had happened in the trial and the issues to be determined by the jury, the published material had ultimately caused a miscarriage of justice. In contempt proceedings the court is not concerned with the final outcome of the proceedings and is not deciding whether the publication did cause the trial to miscarry. Yet it is not irrelevant in contempt proceedings for the court to have regard to what has been said in relation to criminal trials generally about the ability of jurors to follow directions and put out of their minds prejudicial but irrelevant material especially when published in the media.
Lord Morris of Borth-y-Gest is right when he says:
"Though a judge would hope to be resistant to any pre-trial soundings of the trumpet it must surely be contrary to public policy to allow them full blast. Furthermore, not only is it from the public point
of view unseemly that in respect of a cause awaiting the determination of a court there should be public advocacy in favour of one particular side or some particular points of view but also the courts, I think,
owe it to the parties to protect them either from the prejudices of prejudgment or from the necessity of having themselves to participate in the flurries of pre-trial publicity. In this connection I agree with
Lord Denning M.R. when he said . . . 'We must not allow "trial by newspaper" or "trial by television" or trial by any medium other than the courts of law.'"(Times Newspapers Case (1974)
AC, at pp 303, 304 ).
A distinguished Victorian Judge (Holroyd J.), in In re Syme; Ex parte Worthington[24], said of procedure for contempt that it was "a short, sharp, and prompt remedy, necessary for the fair administration of justice, to check all interference from outside, whether in the form of advice or menace or suggestion, with the members of the tribunal to which the decision has been by law entrusted." With that statement we entirely agree, and we ask ourselves how can it be doubted that the article we are considering was technically a contempt—how can it be doubted that it had a "tendency" to weigh with the Judge and with witnesses who might be called to state their opinion on the subject. Witnesses for the employer might easily find themselves more emphatic than they otherwise would have been. Witnesses for the employees might as easily hesitate to state their views as confidently as they otherwise would. Intending witnesses might be deterred altogether. Whether that would happen we cannot tell; it might reasonably occur, and that determines the "tendency." Test the matter. Suppose a private letter in those terms had been written to the Judge or to witnesses: could it have been said it had not the necessary "tendency"? And is it any the less of that tendency because it is published by the thousand to the Judge and all who may be witnesses, as well as to the general public? We cannot think so, and we are of opinion that, if it were a case of a superior Court having to deal with it as an alleged contempt, the Court would be bound to say, as the Court of Appeal said in Hunt v. Clarke[25], that there was technically a contempt.
12. The integrity of the administration of justice in criminal proceedings is of fundamental importance to a free society. Freedom of public expression with reference to circumstances touching guilt or innocence is correspondingly limited. In Hinch v. Attorney-General (Vict.), the boundary between legitimate public discussion of topics of public interest and discussion amounting to punishable contempt of court in the context of criminal proceedings fell for consideration. The boundary was defined in differing terms. Mason C.J. held the boundary to be crossed when the publication created a substantial risk of serious interference with a fair trial (34) (1987) 164 CLR, at pp 27-28. Wilson J. adopted the formulation of a real and definite tendency to prejudice or embarrass pending proceedings (35) ibid., at p 34; a similar formulation was adopted by Deane J. (36) ibid., at pp 54-55. and by Toohey J. (37) ibid., at p 70. Gaudron J. held that, to constitute contempt, there must be proof beyond reasonable doubt that the impugned conduct "poses a real risk to the administration of justice" though the court must decide as a matter of law whether any competing public interest "outweighs the degree of risk established" (38) ibid., at p 87.
See Bell v Stewart [1920] HCA 68; (1920) 28 CLR 419. The judgement of the court in Attorney General v Mirror Newspapers Limited (1980) 1 NSWLR 374 (CA) was emphatic in this respect: "... the publication of statements, by persons likely to be called as witnesses, about the matters in respect of which they will be likely to give evidence is, subject to the de minimus rule, undoubtedly contempt ."
"The appellant's convictions constitute a miscarriage of justice in that the trial was unfair."
Potential witnesses, as well as prospective jurors, were obviously likely to be affected by the public denouncement of Glennon. would be stiffened and fortified adversely to Glennon.
| 55 | The comments of McHugh JA are equally applicable to cases conducted by magistrates in South Australia. As I have said, one of the factors critical to the likelihood of prejudice will be whether the trial is by judge or magistrate alone or before a jury. The effect of publication of prejudicial matter on potential jurors and on witnesses who might be called assumes major significance, especially where the publication creates an atmosphere of prejudice and hostility to the accused |
36. A broadcast or publication will be a contempt if there is a real and substantial risk of adversely influencing actual or potential witnesses. The danger of this occurring is more acute where the witnesses themselves are interviewed in advance of a hearing. A central feature of the subject broadcast was the attempt to present an authentic account of the events leading up to and including the accident to the aircraft at Young. To this end, the reporter interviewed several potential witnesses. Most of these were witnesses to the accident who merely gave a personal account of what they saw and experienced on the night of the crash. It is difficult to imagine what evidence they could give to the Coroner which would be affected by the fact of the interview. Similarly it is difficult to see how anything they said in the interview could in this case interfere with the testimony of other witnesses. None of them would be required to give evidence regarding the precise manner and cause of death of the deceased victims of the crash. None of them had any involvement with Monarch, the claimant or airline safety in general.
had been commenced in good faith
actions taken will have a tendency to interfere with the due administration of justice if they have a tendency: (i) to interfere with the fair and proper conduct of the trial of a particular pending cause by influencing the court of prospective witnesses in respect of the matter generally or in respect of particular issues or questions involved in it; (ii) to disparage or vilify a party to litigation or a witness in a party's cause because he is a litigant or witness or because of the litigation or allegations made to it; or (iii) to prejudice or bias the public mind in favour of one side as against the other side and thereby substitute pre-judgment or, in some cases, pre-trial by the media, for determination by the courts of the land."
CONTEMPT OF COURT – obstruction of the due administration of justice – whether, by bringing improper pressure to bear on the defendant in collateral proceedings so as to induce the settlement of such
proceedings, the appellants obstructed the due administration of justice – whether the fact that such pressure was channelled through the respondent as a third party intermediary was material to the court’s
finding that the appellants were guilty of contempt of court – onus and standard of proof – whether the material in question had a real and definite tendency, as distinct from a mere possibility, to
interfere with the due administration of justice as to entitle her to interlocutory relief – objective / subjective test
38 Fourthly, the bringing of improper pressure on a party to collateral proceedings amounts to a contempt of court (involving the obstruction of the due administration of justice) irrespective of whether or not the pressured party is, in fact, deterred from litigating. In Smith v Lakeman (1856) 26 LJ Ch 305, the plaintiff sent a letter to the defendant pending the suit. Stuart V-C said (at 306):
39 Fifthly, in a contempt involving obstruction of the administration of justice, the plaintiff must prove, according to the criminal standard of proof, that the material in question has, as a matter of
practical reality, a tendency to interfere with the course of justice in a particular case: see John Fairfax & Sons Pty Ltd v McRae [1955]
HCA 12; (1955) 93 CLR 351 at 372 per Dixon CJ, Kitto, Fullagar and Taylor JJ; Harkianakis v Skalkos at 27
per Mason P; Resolute v Warnes at [13]. The test was put succinctly by O’Loughlin J in Willshire-Smith v Votino Bros Pty Ltd [1993]
FCA 138; (1993) 41 FCR 496 where his Honour said (at 505) that the court must determine “whether the conduct
complained of amounted to improper pressure to induce a litigant to withdraw from proceedings or to settle them on terms that he regarded as inadequate”.
Witnesses for the employer might easily find themselves more emphatic than they otherwise would have been.
contempt - more than technical, and more even than "calculated" to prejudice a party: it must be "wilful."
There is room for debate on matters of emphasis, scope and degree, and on questions of principle such as the precise effect of intent and the extent to which competing public interests and private rights or needs may be relevant to the determination of whether there has been an actual, albeit it may be a technical, contempt of court. Be this as it may, it appears to me that it is, at least insofar as this Court is concerned, established that statements made or actions taken will have a tendency to interfere with the due administration of justice if they have a tendency: (i) to interfere with the fair and proper conduct of the trial of a particular pending cause by influencing the court of prospective witnesses in respect of the matter generally or in respect of particular issues or questions involved in it; (ii) to disparage or vilify a party to litigation or a witness in a party's cause because he is a litigant or witness or because of the litigation or allegations made to it; or (iii) to prejudice or bias the public mind in favour of one side as against the other side and thereby substitute pre-judgment or, in some cases, pre-trial by the media, for determination by the courts of the land."
I think that the Court has been far from satisfied that the pending proceedings, in connection with which the charge was made, had been commenced in good faith by the person complaining.
15. The judgments in BLF did not treat the fourth sentence as the expression of a governing principle to be applied whenever the publication is identified as one involving the discussion of public affairs or
the denunciation of public abuses. The issue in BLF was whether the inquiry and report by the Royal Commissioner concerning the alleged illegal activities of a nation-wide union would interfere with civil
proceedings for deregistration of the union. No member of the Court resolved the question solely by reference to a test of the kind stated in the fourth sentence. Although the judgments referred to it (see
pp.59, 95, 133, 175), it was not regarded as a decisive criterion of the non-existence of 
contempt
. Of course BLF did not lend itself to resolution by the application of such a
test, there being no actual publication to which it could apply. Nonetheless the tenor of the judgments is inconsistent with the suggestion that Jordan C.J. was prescribing such a precise and far-reaching test.
Although Gibbs C.J. and I applied a test, it was not the suggested test. Gibbs C.J. said (at p.60) that:
"... the court (must) be satisfied that there is a
real risk that the material alleged to be a
justice in pending proceedings before it can hold
that a
Ex parte Bread Manufacturers Ltd.;
Truth and Sportsman Ltd. (1937) 37 SR (NSW) 242, at pp 249-250.
Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25 ("BLF")
Although Bread Manufacturers concerns an alleged
contempt
in relation to civil proceedings, the principle expressed in the judgment
applies to publications prejudicial to criminal proceedings as well. In John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93
CLR 351, Dixon C.J., Fullagar, Kitto and Taylor JJ. (at p 372) proceeded on the footing that the principle applied to a publication in a newspaper relating to criminal charges pending in a court of petty
sessions (see also: Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650, at pp 659, 677, 681).
26. Where the public interest in the administration of justice does not yield to a superior public interest, the balancing approach should protect the administration of justice from any substantial risk of
serious interference. The application of a test in this form would best reconcile the conflicting demands for a free press and for a fair trial (see BLF, at p.99). In this formulation the adjective
"serious" is essentially emphatic, so that I would be prepared to accept the test of "real risk" of interference stated by Gibbs C.J. (at p.60). To my way of thinking such a test balances
more appropriately the competing considerations than a principle which speaks of a publication having a tendency to prejudice a fair trial (see McRae, at p.371) or a publication which is calculated to prejudice
a fair trial (Davis v. Baillie (1946) VLR 486, at p 494). These tests are open to criticism on the ground that they may be uncertain and may tend to give too much weight to the protection of the administration
of justice at the expense of freedom of discussion (see Australian Law Reform Commission, Discussion Paper No. 26,
Contempt
and the Media, (1986) pars.52 and 53; Report No. 35,
Contempt
, pars.288 et seq.). So much was implicitly recognized in McRae where Dixon
C.J., Fullagar, Kitto and Taylor JJ. emphasized (at p.370) that the summary jurisdiction to punish
contempt
should be exercised:
"... only if it is made quite clear to the court
that the matter published has, as a matter of
practical reality, a tendency to interfere with the
due course of justice in a particular case".
Pressures on witnesses and others
Dangers relating to coaching of witnesses
For a publication to put pressure on a party to desist from pursuing or defending pending litigation can amount to contempt. Borrie & Lowe, 145–149. See also AG v Hislop [1991] 1 All ER 911 (CA, 1990).
If sound recordings were widely available it is possible that they could be used to brief and coach persons who had not yet given evidence. It is of course true that the risk of coaching already exists, and that, where the second witness did not hear the first witness giving evidence, a good note of what an earlier witness, or the judge, has said will assist in coaching; but it is surely beyond argument that a sound recording would better capture the nature of what took place than can a note, however well taken.
Certainly in a case where there is a risk of a recording's being used to coach a future witness, the potential for misuse of a television or a video recording would seem to be greater than with a sound recording. Moreover, the intimidatory effect on witnesses of a television camera is likely to be worse than that of a sound recorder. Further, the degree of interference with court proceedings which television involves would in many (though not all) cases be greater than that of sound recorders.
Paragraph 1, page 2 Strofield States:
-
1. On 9 January 2008, 104 dogs were seized from the premises of Geraldine Fooi-Fong Robertson (the Appellant) at Buccan. A further dog was seized from those premises on 22 February 2008. The dogs were seized by
RSPCA inspectors pursuant to the provisions of the Animal Care and Protection Act 2001 (the Act). The authorised delegate of the first Respondent determined, on 5 February 2008 and 14 March 2008 pursuant to s
154(2)( c) of the Act, to forfeit the dogs to the State.
Paragraph 17, page 8 Strofield States: -17. Section 17, which appears in chapter 3 of the Act, and is headed "General animal offences", is the relevant offence creating provision and it is as follows:-
17 Breach of duty of care prohibited
(1) A person in charge of an animal owes a duty of care to it.
(2) The person must not breach the duty of care.
Maximum penalty-300 penalty units or 1 year's imprisonment.
(3) For subsection (2), a person breaches the duty only if the person does not take reasonable steps to-
(a) provide the animal's needs for the following in a way that is appropriate-
(i) food and water;
(ii) accommodation or living conditions for the animal;
(iii) to display normal patterns of behaviour;
(iv) the treatment of disease or injury; or
(b) ensure any handling of the animal by the person, or caused by the person, is appropriate.
(4) In deciding what is appropriate, regard must be had to-
(a) the species, environment and circumstances of the animal; and
(b) the steps a reasonable person in the circumstances of the person would reasonably be expected to have taken.
Examples of things that may be a circumstance for subsection (4)(b)-
· a bushfire or another natural disaster
· a flood or another climatic condition
Paragraph 17, page 8 Strofield States:
-
This evidence, alone, readily leads to a reasonable belief that it was necessary to keep the dogs to prevent them from ... "being used in '" or becoming the subject of an animal welfare offence".
Geraldine Robertson was in crisis caused by the worst flooding in twenty years when RSPCA came on the 9th January 2008 and seized all her dogs.
Ground 1.
17 (4)(b) · a flood or another climatic condition
Paragraph 36, page 18 Strofield States: -
36. The Appellant's proposition was the condition of the dogs were due to "drought breaking rains" and "flash flooding" shortly before execution of the warrant of 9 January 2008. This was a proposition rejected by those cross examined by the Appellant on this point. A consideration of the material and assessment of each witness who gave evidence touching on the state of the dogs and the weather conditions leading up to and including 9 January 2008 is such that the strength and weight of evidence is a barrier over which the Appellant has failed to overcome.
Geraldine Robertson provided the Court with evidence of the worst flooding rains in 20 years as well as providing newspaper articles on this event. These Newspaper articles. In Geraldine Robertson's Affidavit sworn 21-7-08 exhibit
GR5 is an email from the former Mayor of the Beaudesert Shire which clearly states:
"This is to certify that on any occasion I was present at the property of Geraldine Roberton where she had a licence to keep dogs ,the place was quite acceptable as were the animals. It was a source of
amazement to me that it was regularly before Council due to complaints from unknown sources .....
AS an outsider looking in, it appears to me to be dreadfully unfair on any boarding/breeding establishment to send in the RSPCA to collect animals during the very worst flooding in nearly twenty years when half
the old Beaudesert Shire was flooded including this property in early January, 2008."
Witness Annette Barrell,
a poodle breeder said:
Day 1, Page 69 line 26
"Do you have some background in the breeding of poodles?-- Yes, I do.
Do you own poodles yourself?-- Yes, I do.
How many?-- Probably in excess of 20.
You currently have 20 poodles at the moment?-- At the moment, yes.
All right. Thank you. Yes, thanks, Mrs Robertson."
Day 2, Page 12, Line line 29:
"All right. Now, do you regard yourself as a breeder of dogs?.. Yeah.
For how long?.. 36 - nearly 37 years.
Have you ever been a registered breeder?.. I have always been a registered breeder.
And in respect of the dog breeding what particular types of dogs have you bred? Mostly poodles, but I have bred German Shepherds, Belgian Shepherds, Rottweilers, Maremma sheep dogs."
Day 2, Page 3, Line line 45:
"About clipping? Yeah. I know we had some work to do. That coat quite likely could have been long but not in such a state it looks awful. I can see how everyone would be upset, but that could have
been caused by the - all the rain and rolling on it which causes felting. And I'm sure I've never seen anything like that at Geraldine's before. Nothing like that. Might have needed clipping, but the extreme
circumstances of all the rain I'm sure contributed to making it look a lot worse."
Day 2, Page 8, Line line 15:
"APPELLANT: But this is to illustrate that when the dogs were taken on the 9th of January we had four days of continuous rain and it rained all night that night because I didn't sleep, I was up waiting
for two litters to be born and the dogs would have been - like, they were in and out between the showers so they would have looked similar to this sort of appearance when they were taken. That's why they look
so woeful and...."
Day 2, Page 8, Line line 56:
"APPELLANT: Yes, please. Annette, looking at that, you've seen the kennels on many occasions; have you ever seen it, even on some rain occasions over the years have you ever seen it that wet?
I - no, I have never seen your kennels look anything like that, never. Not once. It is - it does appear very, very shocking. I'm sure it would upset a lot of people to see them like that 'cause I've never seen
it like that and I've been there many times, but extreme weather, flash flooding. I don't doubt it."
Day 2, Page 18, Line line 19:
"You say that this extreme - the extreme circumstances was the rain over the Christmas period?.. Constant rain, yes.
Which, you understand, may have caused some flooding to the kennel? Well, yes. I believe at the time and it was on the news as well there was flash flooding in the area. I actually experienced
flash flooding at my place and threw my cattery and kennels I had that much rain come through - that much water sitting there for a few hours, on my concrete. So I've seen it, mud and everything just coming in
and the mess it leaves behind."
Geraldine Robertson made it clear that the drought conditions caused dust and debris to collect and when the rains came this dust, dirt and debris was washed into her kennels.
Geraldine Robertson
witness Day2 Page 37 line 46:
" All right? Although, in hindsight, I was pressured all the time, all day by RSPCA Inspector Laurie Stageman who stayed with me since the service of the summons, with him all day by my
side that he kept saying, "Surrender your dogs." He kept asking me to, "Surrender, surrender all your dogs." I laugh. I said, "You've got to be kidding. You've got to be kidding."
You know, and he was smiling and says, "You should surrender all your dogs." But anyway, on the morning of the 9th of January, I had been up all night waiting for the two litters of red bitches, toys,
to deliver the puppies and it was raining all night and it was quite cool and humid and then I went down to the [indistinct] block, the quarantine block, as I call it, it's totally can be isolated and
self-contained, at the end of the - 330 metres, at the end of the block. It's a big, large block, where the - I think where the dogs were running, the end ones, and the flooding had been, I think, from just
before the weekend, the rain started when everybody had showers of rain [indistinct] from the railway line. There was virtually no rain and the weekend before, the Wednesday, that was when the rain started to
pour and because the ground was so dry from 18 months of drought, we were buying water, literally, tanker loads every - I think every 2 weeks or so I had to buy water and that was how bad it got before the
rains came and the dirt had turned to talc. It was - because I slipped - I thought I'd broken my ankle but I didn't. The gum nuts fell on the dirt and I sort of was walking and my gum boots slipped and that's
how I knew it was talc and when the rain came, it became - it couldn't soak through, so, everything became very slippery and watery and then when it soaked and soaked and soaked, after a while, on and off, then
the downpour came and it was just like the main pressure is turned and there was so much flooding. We are self-sufficient. All our water is from rain water or purchased water and we do have mains to which - we
have septic tanks and everything was properly laid out, all of the plans on that property, the drainage and everything was approved by the shire in its time and the wooden kennel block, as Ms Farrell calls it,
is actually what I call my quarantine block. Anyone who comes in goes in there for isolation because it can be totally isolated. Like, if I was taking a boarder or I bought new dogs from people, you just can't
mix it with your own and so, those kennels started, there was flash flooding and my car was submerged in 1 metre of water, about 500 metres from in line with that kennel block, all right, about - that was on
the Monday morning, early morning. I went up for some bread or something about 1 something and it had to be towed back and the raid was on the 9th and the - I had brought the dogs down from the kennels because
I tried to clean - I started cleaning 2 kennels and it was too much hard work because during - in between the day and a couple of days before, some of the dogs got out because all the kennels are individually
latched with a passageway in the middle and they can get out through the trap-doors, through the kennel itself on the wall or through that centre passage and because they'd got into the section where I put the
bags, the empty plastic bags to - I had to bag all that debris and everything because of the flash flooding and the water was receding but because it had to be tilted and drained through the network of pipes,
it was slow process because I just couldn't clear all that debris and the embankment was a bit higher. It came in on one side and - so, I had to clear the pens with a shovel to let the water flow through and
through the inside, there was a drain and that goes underground as well to gravel pits, I think, or to the main tunnel and get recycled to the grease trap and then to the sullage, but the - you were asking me
about the dogs. The dogs had pulled the bags of rubbish that you could see around the kennels and in the kennels was - I was just piling up the rubbish. I couldn't get into the septic because the water level -
the septic tank is slightly above the ground like the glass on the table, just a little bit and if the water table had filled up all over, there was flash flooding but it had gone beyond flash flooding. I think
it was flooding and I tried to lift up the septic tank with the [indistinct] because it was too sloppy to throw away and dispose and it was full to the level of the ground. So, I couldn't put - empty any of the
solidified material that normally goes in the septic.
Are you talking about faeces?.. Well, not faeces, there was leaves, twigs, branches.
You put leaves and branches into your septic tank?.. Well, they get sucked - we get the man in to suck it out once a year and he says we don't need it. For every 3 years, we might need to get it sucked - pumped
out but I couldn't - well, I didn't have anywhere else....
No, but you say you put leaves and branches into your septic tank? Not normally, no, but in extreme circumstances like that, I would have to, right, because that's the only way you could clean
up quickly and you call them, like, Clean-Away, people like that, and they'll come and suck it up, you see.
All right?.. And clean up the septic tanks. We do it every year. He recommended every 3 years but if we put the hair in and that sort of a thing, it has to go every year.
Okay, are you saying that the cause of the state of the dogs which is depicted on the video was because of the rain? A lot of it is due to the dust. The dust conditions were so bad, so, that - I
couldn't groom them as much as we could have because of the water restriction. You see, the prime thing was, it was so hot, the temperature was 30 something to 40 mostly. You know, for the last couple of - 18
months before that, during the summer and spring, we were getting really - the drought period and we - because we have a lot of concrete building pens, but for once up at the house, adjoining, they have to be
hosed down to cool down. The concrete sucks in the heat and it stays there. It's like an oven, so, keeping the place cool, the water was very important for that, you see, and we use a lot of water, you see, for
many - for the kennels. So, when the rains came, right, so, we need the water for bathing the dogs as well, you see and drinking and all that, because..."
Day2 Page 39 line 45:
So-----?-- Everything was slowed down, the grooming process was slowed down--
Everything slowed down-----?-- Due to the climate.
-----because it was too dry-----?-- Yeah and too wet.
-----and then when it got too wet, you couldn't do it?-- Yes, it just poured.
Geraldine Robertson had been performing her duty of care in cleaning up the flood debris. The DVD Court Exhibit 2 shows two kennels already cleaned and bleached. Two kennels cleaned. Bagged Debris cleaned from two Kennels. Image showing the silting caused by the flash flooding with the waterline on the wall.
Ground 2
Geraldine Robertson had arranged with Annette Barrell to help her clip her poodles that needed clipping.
Paragraph 37, page 18 Strofield accepts the evidence of Inspector Stageman:-
37. A small window of this evidence included the following - Inspector Stageman:-
"... the thick coats, ... it would be impossible for a single person to bring all those animals in (the middle compound) back up to scratch.
The Appellant had an arrangement with Annette Barrell to help her clip the dogs after the rain period had ended.
Day1 Page 70 line 10
"APPELLANT: Yes. How often did you come to me - a year say, to help me with the clipping? I would say, at least, twice a year. Some years it would have been more often because I had dogs
boarded with you or I came to use your [indistinct] so it would have been, at least, two - twice a year most years but there would have been the odd year that there would have been even more than three.
Right. Now the when was the last time you went to see me - to help me clip the dogs? Well, the last time I was at your place or the last time we actually clipped dogs? I was at your place at the
end of October last year.
And when were you due to come back? Well, I was-----
When did I ask you to come back? We were going to - I went overseas in November and I was going to come and collect my dogs early December and help you do some clipping which was going to help
towards the payment of boarding my dogs and then it rained so I didn't get to come because there was no point in doing anything as major as that in bad weather plus then there was Christmas. I remember I was
held up because of family - family commitments at Christmas_"
Geraldine Robertson had a proven history of looking after her dogs.
Day2, Page 9, line 33. witness Geraldine Robertson
And your occupation?-- I am a kennel owner and breeder of poodles.
And how long have you been a kennel owner and breeder of poodles?-- I have been a kennel owner for some 20 years, a bit over 20 years and a breeder for 20 years. I've owned poodles for 48 years and bred poodles
for 20 years.
Have you always resided down at Buccan?-- Yes, I've spent 16 years at Buccan and, yes, at the address, at the kennels.
So you had - have you - if you had 16 years at Buccan at those kennels did you have kennels somewhere else prior to them, did you?-- No, prior to that I was - it was - I did have poodles like I said, but other
than that I was working professionally.
RSPCA had inspected her property many times previously
Day 3, Page 17, line 1
Mmm?-- And so this went on for another seven years or nine years - seven years, I think. And meantime, RSPCA and the Council kept coming round,
Pan Pharmaceuticals Limited (In Liquidation) v Selim [2008] FCA 416 (2 April 2008)
34 Alternatively, such special knowledge or expertise might be the result of experience, where no particular technical study or education has been undertaken by the witness, such as in the case of managers and the like. Such evidence will often have less weight afforded to it. While it may be admissible as opinion evidence, because of the provisions of ss 79 and 80, the Court may often be in as good a position as the so-called expert to assess such matters if it simply goes to ordinary experience.
35 The second aspect to be considered in assessing the weight of expert evidence is the nature of the evidence that the expert is to give. An expert witness might give evidence in the following categories, which are non exhaustive:
• opinion evidence as to what actually happened in particular circumstances, on the basis of assumptions that the expert is asked to make, as when a pathologist expresses an opinion about cause of death;
• opinion evidence as to what might be likely to happen in the future, on the basis of assumptions that the expert is asked to make, as when an economist might predict the effect of identified phenomena on a market;
• evidence of what is normally done in particular circumstances experienced by the expert, as when a legal practitioner says what is normally done in a conveyancing transaction ;
• evidence as to what can be done in particular circumstances that the expert is asked to assume, and which the expert has not experienced, as when an engineer says what could have been done to avoid a failure of a particular structure;
• evidence concerning special usage of language or terms in the field of the expert’s expertise, as when a chemist explains special usage of terms that have a different meaning in everyday speech;
• opinion evidence about what should or ought to have been done in particular circumstances that the expert is asked to assume, as when a legal practitioner says what enquiries ought to have been undertaken in a particular transaction, as distinct from what enquiries are ordinarily undertaken;
• opinion evidence as to whether particular conduct that the expert is asked to assume satisfies or falls short of some legal standard, as when a medical practitioner says that a particular procedure was conducted negligently.
36 Very little, if any weight, should ever be accorded the last category of opinion evidence. It may be admissible by reason of the operation of s 80, however, in so far as it is an opinion by reference to a legal standard, it will be essential, before it can be admissible and certainly before any weight can be afforded to it, that the expert’s understanding of the relevant legal standard be established and be shown to be in accordance with the law.
37 Thus, an opinion as to whether conduct satisfies or falls short of a particular standard, such as whether particular conduct was in breach of a duty of care entails an examination as to what the expert’s understanding is of the duty of care. Where the so-called opinion is proffered as to whether conduct satisfies or falls short of a statutory requirement, such as the Code, the expert must make clear just what his understanding of the effect of the Code might be. Unless the witness makes perfectly clear what he understands the Code to mean, his evidence as to whether particular conduct satisfies or falls short of it cannot be tested and can have no weight.