Judge overturns cattle dehorning case

21 Oct, 2016 01:00 AM
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A cattle muster on Moola Bulla station near Halls Creek in the Kimberley. The RSPCA laid 16 cruelty charges after feral cattle from one back country muster were processed by stockmen before being trucked or turned out.
A cattle muster on Moola Bulla station near Halls Creek in the Kimberley. The RSPCA laid 16 cruelty charges after feral cattle from one back country muster were processed by stockmen before being trucked or turned out.

FORMER Kimberley cattleman Nicolaas Botha and a family pastoral company were each acquitted of a cruelty charge on appeal last Friday, ending a landmark legal battle with a resounding win over the RSPCA.

Supreme Court Justice Peter Martino overturned earlier guilty verdicts against Mr Botha, 56, and South Africa West Australia Pty Ltd (SAWA) after the RSPCA conceded defeat in the WA Court of Appeal.

Because the charges arose from standard industry practice of dehorning feral cattle, it was seen as a test case for the Kimberley cattle industry.

The RSPCA relied on video evidence secretly recorded by a helicopter pilot on a mobile phone when Mr Botha was not present after a back-country muster on Mt Amhurst station near Halls Creek.

RSPCA chief inspector Amanda Swift originally brought 16 charges – eight each – under Section 19 of the Animal Welfare Act 2002 (WA) against Mr Botha, as a SAWA director, and SAWA.

Fourteen related to dehorning of four young adult feral Shorthorn cattle by stockmen in yards on neighbouring Moola Bulla station on July 18 and 19, 2012.

Two related to a stockman slapping an agitated animal in a cattle crush on the nose with a pair of tongs.

Some charges were withdrawn as a complex seven-day hearing began in Kununurra Magistrates Court and concluded in Perth, with expert witnesses flown in from Queensland and Northern Territory.

As previously reported in Farm Weekly, on March 30 magistrate Kevin Tavener found Mr Botha – known throughout the industry as Nico – guilty of one count of cruelty and fined him the minimum penalty for an individual of $2000.

Mr Tavener also found SAWA guilty of one count and fined it $12,000 – $2000 above the minimum penalty for a corporation.

He directed no criminal conviction be recorded for Mr Botha.

In his written verdict Mr Tavener determined harm was caused to a bull, due to be trucked out for live export, because its horns were “aggressively cut” closer to the skull than the 12 centimetres required for transporting.

Mr Botha’s and SAWA’s appeals saw that verdict overturned.

Justice Martino awarded costs for both the appeal and the court hearing against the RSPCA.

The costs of the case are yet to be agreed and may end up being determined by the court, but could be more than $250,000.

Defence lawyer Emma Salerno, Salerno Law, Kununurra, who represented Mr Botha and SAWA throughout the proceedings, heralded the appeal as an important and significant win for the pastoral industry.

“Naturally the major concern from many pastoralists is the potential to be unfairly targeted and prosecuted by authorities such as the RSPCA who draw upon large financial resources and pro bono legal representation,” Ms Salerno said after the appeal.

“The average farmer does not have the time, money or inclination to defend such allegations, whether rightly or wrongly made.”

Dehorning feral cattle is widespread and both a legal and necessary practice for pastoralists across northern WA, she said.

Accepting verdicts that dehorning amounted to an act of cruelty would have had a critical affect on the cattle industry, Ms Salerno said.

“The difficulty for a pastoralist being prosecuted for what is considered by experts to be a standard industry practice of dehorning, is that it is expensive, time consuming and unpopular to defend.

“The fact that Mr Botha did successfully defend the charges took not only extensive financial resources, but also a lot of guts.”

Ms Salerno said the win took a considerable emotional and financial toll on Mr Botha.

It involved more than two years of litigation with more than 10 pre-trial court attendances before a trial part heard in Kununurra and Perth requiring Mr Botha to spend many hours travelling to defend “what turned out to be charges which had no merit”, she said.

RSPCA WA has said it was “extremely disappointed” with the appeal outcome but maintained its prosecution of Mr Botha and SAWA was “in the public interest and in the interests of animal welfare”.

It said it believed “complexities”, including the way the guilty verdicts were framed and scope for defence allowed under the Animal Welfare Act, contributed to the outcome and that “an ordinary person” viewing the video would have believed its inspectors “were correct” in taking the matter to court.

The RSPCA noted Justice Martino made no criticism of the way the prosecution case was conducted.

It called on the State government to implement new Animal Health Australia-endorsed national animal welfare standards and guidelines for cattle.

Endorsed in January, these discourage dehorning in favour of “tipping” horns of adult animals and require use of pain relief for dehorning cattle more than six months old or, in some circumstances, more than 12 months old at first yarding.

The standards have not yet been regulated in WA but the government has previously indicated it will prescribe the standards and guidelines under sections of the Animal Welfare Act before the end of the year as an interim measure.

p Mr Botha and SAWA put Moola Bulla, 393,000 hectares, and Mt Amhurst, 260,000ha, plus Beefwood Park station near Fitzroy Crossing, 206,000ha, and Shamrock station near Broome, 178,000ha, up for sale for $100 million early this year.

He and his family accepted an offer for the stations aggregation plus a commercial Red Brahman-Droughtmaster cross herd in April from an investment group working through Adelaide-based advisor Agrify.

It is understood closure of the deal is still subject to Foreign Investment Review Board approval.

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Mal Gill

Mal Gill

is wool and dairy writer for Farm Weekly

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