Murillo vs. Slivkoff - (24 Dec 2020)

Section 8 of the Criminal Code is applicable only when two or more persons forms common intention to prosecute a criminal offence

Criminal

On 14 February 2020, the Appellant was convicted after trial of one count of animal cruelty contrary to Section 19(1) of the Animal Welfare Act, 2002 (WA). The learned magistrate found the Appellant criminally responsible under Section 8 of the Criminal Code (WA) (Code) for his co-offender's actions in attempting, unsuccessfully, to euthanise a kangaroo by beating it with the wooden handle of an axe. The Appellant was convicted on the basis that, he and his co-offender had formed a common intention to prosecute an unlawful purpose, being to euthanise the kangaroo with an axe handle, and that the cruelty to the kangaroo that eventuated was a probable consequence of the common unlawful purpose.

The Appellant submits that, the magistrate erred in law in finding that, the common intention to euthanise the kangaroo with a wooden axe handle was an unlawful purpose. He submits that, the decision to euthanise an animal injured accidentally late at night in a remote location was not an unlawful purpose, nor was that part of the State's case. As there was no unlawful purpose, Section 8 of the Code could not be made out and the Appellant could not be convicted of the offence of animal cruelty.

In the context of Section 8 of the Code, two or more persons must form a common intention to prosecute a criminal offence. The unlawful purpose identified by the magistrate in this case was to euthanise the kangaroo with the wooden axe handle.

The magistrate found that, the Appellant's two blows to the kangaroo, made in his attempt to euthanise the kangaroo with the wooden axe handle, did not cause the kangaroo unnecessary harm and was not cruel in any other sense described in Section 19(2) of the Act. That is, the magistrate found that the appellant's blows did not amount to animal cruelty in the sense proscribed by Section 19(1) of the Act. There is no suggestion in this case that, the Appellant's blows amounted to any other offence. The effect of the magistrate's finding that the appellant's blows did not amount to an offence is that it is not necessarily unlawful to euthanise a kangaroo with a wooden axe handle. That is, on the magistrate's own findings, euthanising a kangaroo with a wooden axe handle is not necessarily an unlawful purpose.

The presence of an unlawful purpose is an essential element of Section 8 of the Code. In the absence of a purpose that, on the magistrate's findings, could properly be characterised as unlawful, the Appellant could not be found criminally responsible on the basis of Section 8 of the Code.

The magistrate did not suggest that there was any basis other than Section 8 of the Code for finding that, the Appellant was guilty of the offence of animal cruelty. Having concluded that the magistrate erred in law in finding that the appellant was criminally responsible under Section 8 of the Code, the only appropriate order is for the conviction to be set aside and a judgment of acquittal entered. The conviction is set aside and a judgment of acquittal substituted. Appeal allowed.

Tags : ANIMAL CRUELTY CONVICTION LEGALITY