Veira v Cook [2021] NSWCA 302

Veira v Cook [2021] NSWCA 302

Leave to appeal was refused because the proposed grounds had no prospect of success. The necessity defence was not available on the facts because the applicant's unlawful entry and removal of chickens were not in response to a threat of death or serious injury to her or another person, and the law did not extend the defence to threatened harm to animals. In any event, the presence and actions of the RSPCA showed that lawful alternatives existed and that the applicant's conduct was not necessary in the relevant legal sense. Although the primary judge erred as to the onus of proof, that error made no difference to the result.

Jurisdiction
Australia
Judgment Date
09 December 2021
Procedural Posture
Criminal Application for Leave to Appeal / Application for Leave to Appeal to the Court of Appeal From Supreme Court Orders Dismissing an Appeal From a Local Court Conviction
Outcome
Summons seeking leave to appeal dismissed; applicant ordered to pay the respondent's costs.
Legal Topics
['defence of Necessity' 'lawful Excuse' 'unlawful Entry on Inclosed Lands' 'interference With Business' 'animal Cruelty Allegations' 'onus of Proof']
['criminal Law' 'appeal and Review' 'inclosed Lands'] ['defence of Necessity' 'lawful Excuse' 'unlawful Entry on Inclosed Lands' 'interference With Business' 'animal Cruelty Allegations' 'onus of Proof']

Case Brief

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Procedural Posture

Criminal Application for Leave to Appeal / Application for Leave to Appeal to the Court of Appeal From Supreme Court Orders Dismissing an Appeal From a Local Court Conviction

Legal Issues

  1. 1 ["Whether the applicant should be granted leave to appeal from the Supreme Court's dismissal of her appeal against conviction." 'Whether the defence of necessity was available where the applicant entered a poultry farm and removed chickens to prevent alleged further cruelty to them.' 'Whether necessity can extend to criminal conduct undertaken to avoid threatened harm to animals or property rather than death or serious injury to the accused or another person.' "Whether the applicant's conduct was necessary, reasonable and proportionate in circumstances where RSPCA officers had attended and ensured the hens had sufficient feed and water." 'Who bore the onus of proving a lawful excuse under s 4(1) of the Inclosed Lands Protection Act 1901 (NSW).']

Ratio Decidendi

Leave to appeal was refused because the proposed grounds had no prospect of success. The necessity defence was not available on the facts because the applicant's unlawful entry and removal of chickens were not in response to a threat of death or serious injury to her or another person, and the law did not extend the defence to threatened harm to animals. In any event, the presence and actions of the RSPCA showed that lawful alternatives existed and that the applicant's conduct was not necessary in the relevant legal sense. Although the primary judge erred as to the onus of proof, that error made no difference to the result.

Court Disposition

Summons seeking leave to appeal dismissed; applicant ordered to pay the respondent's costs.

Orders

  • ['Dismiss summons seeking leave to appeal' "Order that the applicant pay the respondent's costs"]