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Commonwealth Knowledge #65: RSPCA advised lawsuit over greyhounds being kicked and beaten 'unlikely'

Although the RSPCA has been given advice that a criminal case would be unlikely to succeed, this is not certain.

The RSPCA has been given advice that an animal cruelty lawsuit over footage of greyhounds being kicked and beaten is 'unlikely'.

At the end of July, footage emerged allegedly showing acts of animal cruelty toward greyhounds, including puppies, and the use of rabbits as live bait, prompting calls for criminal charges.

The drone footage, initially received by the South Australian branch of the RSPCA in 2022, led to Greyhound Racing SA commencing integrity investigations into the three trainers depicted in the video footage, confirmed as property owner Troy Murray and his two sons. They had their licences stripped and were fined $180,000.

The South Australian government also announced an independent investigation into the industry, shortly after it was first broadcasted publicly by the ABC last month.

However, the RSPCA has received independent legal advice that the evidence would likely be inadmissible if criminal charges were brought against the three trainers.

Section 5 of the Surveillance Devices Act 2016 (SA) makes it a criminal offence to use an ‘optical surveillance device,’ such as a drone, to record “the carrying on of a private activity” without consent.

Under common law evidence laws that apply in South Australia, judges have the discretion to determine whether unlawfully obtained evidence, such as the drone footage in question, can be admitted as evidence in criminal proceedings.

This was a question put to the High Court in Bunning v Cross (1978). In a 3:2 split, the court found that evidence obtained unlawfully, but without the intent to break the law in obtaining it, could be admitted in court. Justices Aickin and Stephen established five criteria for judges to use, weighing up the benefits of admission and non-admission, but usually, if the people obtaining the evidence knew they were breaking the law to do so, the scales are tipped against allowing the admission of the evidence.

As recently as August 4th, Judge Handshin of the South Australian District Court, in R v Tram [2023], affirmed the applicability of Bunning in South Australia.

In Kadir v The Queen (2020), a New South Wales live baiting case, the High Court was faced with a similar conundrum to the one here.

A documentary reporter working for Animals Australia recorded evidence, including admissions from a greyhound trainer, of alleged animal cruelty on a Londonderry property, including the use of live bait. However, these recordings were willfully done in violation of Section 8(1) of the Surveillance Devices Act 2007 (NSW), which is similar to Section 5 of the South Australian legislation.

Animals Australia passed this information and evidence on to the RSPCA, which used it as the basis for a search warrant.

Section 138 of the Evidence Act 1995 (NSW) adopted the common law rule, as emphasised in Bunning, into legislation. Although there are some differences between the two, they aren’t relevant here.

The High Court unanimously agreed that the evidence compiled by Animals Australia could not be admitted. They referred to the methods used to obtain it as “deliberate defiance of the law” and “vigilantism.”

However, because the RSPCA, a legitimate “charitable organisation” with “certain law enforcement powers” was unaware that Animals Australia obtained the evidence unlawfully, the unlawfulness was outweighed by public interest considerations, and so it was admissible.

In contrast, in the current case, the South Australian branch of the RSPCA knows that the evidence was obtained unlawfully.

More recently, the validity of Sections 11 and 12 of the Surveillance Devices Act 2007 (NSW) was brought before the High Court in Farm Transparency International Ltd v New South Wales [2022]. Section 11 prohibits the communication or publication of evidence obtained in violation of the Act, and Section 12 prohibits the possession of that evidence.

This challenge was based on the implied freedom of political communication, and the evidence in question was footage of alleged animal cruelty obtained by trespassing on private property and in breach of Section 8, like in Kadir.

In a 4:3 split, the High Court ruled that Sections 11 and 12 did not unlawfully burden the implied freedom of political communication, which deals with communication and discussion of issues of political, governmental, or public interest.

All 3 dissenting judges, Justices Gageler, Gordon and Gleeson, took issue with the fact that there were no exceptions for public interest, along with other issues with the legislation.

In addition, Kiefel CJ and Keane J, 2 of the 4 judges in the majority, referenced the legislation of other states, where there were public interest exceptions, and observed that those exceptions, which did not exist in the NSW legislation, meant that there was even less of a burden on the implied freedom there.

Sections 9 and 10 of South Australian legislation create lawful and public interest exceptions for communication and publication, which is why the ABC was allowed to publish the drone footage in the first place.

However, there is some authority that backs up the RSPCA’s case against the Murray family trainers.

Section 6 of the Surveillance Devices Act 2016 (SA), which creates a public interest exception for the use of an ‘optical surveillance device,’ could be relied on now that the South Australian government has ordered an independent investigation. This announcement may indicate that there is a legitimate public interest here.

In ABC v Lenah Game Meats Pty Ltd (2001), which also backs up the ABC’s freedom to publish this footage, Chief Justice Gleeson, the father of the Justice Gleeson mentioned earlier, suggested that just because the activity recorded happened on private property does not necessarily mean that it is a ‘private act,’ which is a requirement under the Surveillance Devices Act 2016 (SA).

Finally, in his dissent in that case, Justice Kirby argued that “concerns about animal welfare” are in the public interest, and these activities are necessary to bring about political change.

Indeed, the drone footage prompted South Australian Premier Peter Malinaukas to say that he could no longer accept the word of Greyhound Racing South Australia that live bait wasn’t used by the industry, unless the investigation he ordered could back up their claim. If any legislative reform comes out of that investigation, it wouldn’t have been possible without this drone footage.

Justice Kirby’s remarks reinforce the suggestion that Section 6 could be relied on by the RSPCA in bringing criminal action, although at this stage it appears more likely that they will not.

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ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63.

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22.

Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1.

R v Tram [2023] SADC 105.


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