By Alexandra Jackson, University of Technology Sydney
This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.
Citation: Song v Coddington  NSWSC 1196
Court – Supreme Court of New South Wales
Judge – James J
Date of Judgment – 17 December 2003
FACTS OF THE CASE
On 25 April 2011, a consignment of 1,137 live goats was due to depart Sydney International Airport on a cargo flight bound for Abu Dhabi in the United Arab Emirates. The transport of live goats internationally from Australia required an export permit which could be granted by an authorised officer. Song, the plaintiff, was a veterinary officer employed by the Australian Quarantine Inspection Service and was an authorised officer for the purposes of granting export permits. Song examined the goats at Sydney International Airport after they had been loaded into eight, three-tiered wooden crates for air transport. He then issued the relevant export permit and signed a Certificate of Health for the goats.
Once the crates had been loaded onto the aircraft, RSPCA officers, including Coddington, the defendant, conducted an inspection of the goats, which revealed that they were overcrowded and that many of the animals could not stand upright in the crates without their horns or bodies touching the top of the crate.
Various persons associated with the proposed export were prosecuted for offences under the Prevention of Cruelty to Animals (General) Regulation 1996 (NSW) (‘The Regulation’). Song was convicted of some eight offences, each under clause 5(1) of the Regulation which provides:
A person must not:
(a) carry or convey a large stock animal in a cage or vehicle, or
(b) being a person in charge of a large stock animal, authorise the carriage or conveyance of the animal in a cage or vehicle,
unless the cage or vehicle is of a height that allows the animal to stand upright without any part of the animal coming into contact with the roof, ceiling or cover of the cage or vehicle.
In this clause, a reference to a large stock animal is a reference to an animal that belongs to the class of animals comprising cattle, horses, sheep, goats, pigs and deer.
Song appealed against his conviction on the grounds that clause 5(1) did not apply because he was neither a “person in charge” of the goats, nor had he “authorised” the carriage or conveyance of the goats.
The State and Federal Attorneys-General decided to intervene because of the possible constitutional implications of the case.
Whether Song was a “person in charge” of the goats for the purposes of the Regulation.
James J allowed the appeal and found that Song was not a “person in charge” of the goats for the purposes of the Regulation and thus had not contravened clause 5.
Coddington submitted that Song’s power to grant an export permit also included a power to refuse one, and that because of this power the Song’s actions went beyond merely exercising a function to issue permits. It was alleged that he had acted as a “person in charge” of the goats who had control over what happened to them. It was further alleged that the combination of this power and the fact that Song visually inspected the goats in his role as veterinarian constituted “supervision”. The concept of “supervision” was important as s 4 of the Prevention of Cruelty to Animals Act 1979 (NSW) expanded the concept of a “person in charge” to include “a person who has the animal in the person’s possession or custody, or under the person’s care, control or supervision.”
James J rejected this argument and instead considered the dictionary definitions of “supervise” and “control.” He found that a proper construction of the term “a person in charge” necessitated the person having the ability to “do something by way of control over what was occurring at the time, well exceeding what Dr Song was doing in the performance of his functions.” For these reasons, James J held that a “person in charge” refers to “a person’s ability and authority to take positive steps to effect the immediate physical circumstances of the animal.” His honour contrasted this with “passive permitting or detached observation”, which is what he believed characterised the relationship between Song and the animals.
Following the Court’s determination that the regulation did not apply to Song, James J found it unnecessary to consider whether he authorised the carriage or conveyance of the goats, as both elements were required to make out a contravention of cl 5.
This case exemplifies a narrow interpretation of what constitutes a “person in charge of an animal”. This approach significantly limits the class of people who can be prosecuted for animal related offences.