(Au) Battery hen stealing charges

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Wednesday, July 03, 2002 7:46 AM

Fwd: Re:legal decision in battery cage stealing charges

 

Re:legal decision in battery hen stealing

charges

 

Matter of Pam Clarke and Patty Mark on charges of

burglary and stealing

 

8 battery hens from Pure Foods battery egg complex

in Longford Tasmania

(Heard before Magistrate Sam Mollard in the Hobart

Magistrates Court on

Monday, May 20, 2002. The Magistrate reserved his

decision until May 31,

2002)

 

Magistrate Sam Mollard's Decision

 

Hobart Magistrates Court May 31, 2002

 

Clerk of Court: The matter of Pamela Clarke and

Patricia Mark in index

5 and 6. Please come forward.

 

Are you Mrs Clarke?

 

Pam Clarke: Yes.

 

Clerk of Court: Are you Mrs Mark?

 

Patty Mark: Yes.

 

Magistrate Mollard: Unless either of you have any

further submissions

you might like to have a seat at the table while I

read the bulk of the

remarks that I propose to read.

 

Mr. Ansell, I just wanted to make sure that the

prosecution didn't want

to respond to any of the submissions by the defence

or any of the

footage.

 

 

Prosecution: No, your worship, we have no

submissions.

 

Magistrate Mollard:

 

These remarks on sentencing will not address the

issue apparently close

to the defendants hearts. Whether hens kept for

food, that is for egg

and meat production, should be kept in cages in

sheds known as the

battery hen system.

 

 

 

It is appropriate to make some comments however, on

the conditions

shown on the defendants video footage. This is

because, the defendants

engage from time to time, they tell me, in

trespassing in battery hen

sheds and they do it to try to help draw attention

to the conditions

they say exist in those sheds from time to time.

Those conditions being

such that the public should know about them, because

they are, it is

claimed, sometimes, substandard.

 

 

They hope to bring about the end to this method of

farming by the

publicity or at least to improve the lot of the hens

that are kept in

such conditions. In one sense, whether they ever

find bad conditions

doesn't matter because the risk of a visit by the

defendants may help to

promote good husbandry and because it is the

apprehension that hens may

be kept in unhealthy conditions that motivates the

defendants.

 

But, naturally the cause and claimed justification

for the visits will

only be credible to the public, the courts and to

lawmakers, if

conditions are sometimes such as to excite

disapproval by fair-minded,

well-informed observers. Those same observers would

understand that

producers have a powerful motive to keep their fowls

well, so as to

protect the level of production.

 

Well here I touch upon one difficulty in this case.

My court was

constituted to deal with the criminal prosecution of

the defendants for

burglary and stealing and I cannot be expected to

conduct a trial on the

issue of the standards of the conditions in which

the fowls were kept at

Longford on this night.

 

To do so would be an extremely time consuming

exercise and the issue is

a very controversial one. I have not had the benefit

of submissions from

the owner or manager of this farm and these persons

may dispute, or if

they don't dispute, they may have an explanation for

what I saw on the

video and for what I was told by the defendants.

 

However, I neither saw nor heard any dissent from

the prosecution who

may object to the defence submissions and ask the

court to resolve

disputes by hearing sworn evidence. This is not a

criticism, as I

imagine they rightly regard the above as somewhat of

a peripheral issue

in the case.

 

But I do intend to comment on the video and defence

claims. It is

relevant to mitigation for reasons I will give. If

my summary is

inaccurate or unfair I can only apologise and

explain as I have already

endeavored to do in the last several minutes.

 

There appeared to be sheds featured on the video

besides the Pure Foods

Shed, which is the one in question. These other

sheds showed scenes,

which I thought, were more or less unremarkable.

There were, it's true,

scenes of malformed chicken's feet, the signs of

feather picking and I

suppose, almost inevitably, the results of the

debeaking practices that

take place in these sheds in order to remove or

reduce the feather

picking problem. But these things may well not be

exclusive to battery

hens, I suspect that free-range hens suffer from

similar ailments. There

is no evidence that they are exclusive to battery

hens.

 

 

But in the relevant shed there were conditions which

appeared to be

quite adverse. The atmosphere was heavy with white

particles which I was

told were feathers, dust, and skin flakes. There

were a large number of

flying insects which the defendants said they could

not identify. I

could also see material, it did not appear to be

manure or at least not

all manure, hanging from cages, beams and rafters.

It looked like

cobwebs, heavy with contaminants of some sort. Maybe

it was the material

floating in the air caught up in the cobwebs. These

gave every

appearance of such cleaning neglect over an extended

period that I was

reminded of the lengthy stalactites that one sees in

limestone caves.

 

I was told about a large number of dead birds, more,

it was claimed

than in other similar sheds. I was told that one

carcass had six eggs

laid upon it, suggesting that it had been there for

quite a few days.

The submission was that a high percentage of the

birds had diarrhoea,

which was not only indicative of ill health but

which added to the

stench, particularly of ammonia in the air in that

shed.

 

There were high mounds of manure in the shed,

although I must say I

don't know what harm this might do of itself. But in

this shed I was

told those mounds of manure were unusally wet,

perhaps because of the

fact that the birds were suffering from diarrhoea.

I heard that every

bird was lousy. I saw for myself that many were

missing feathers, some

to the extent, it struck me, of being substantially

bald.

 

It is not surprising that some people would find all

this sufficiently

distressing to be moved to take action. And indeed

our society should

surely demand that all captive animals be kept

humanely and healthy and

be kept in a clean and healthy environment. I

imagine that irregular,

unannounced and yet, quite frequent inspections may

help to satisfy

society's concerns about these sorts of things. If

what I was told by

the defendants is true the current inspection regime

may well be

inadequate.

 

But I cannot be diverted from the fact that the shed

owner is the

victim. The relevance of all of the above is that

is was the suspicion

of the defendants that the conditions might be as I

have described that

caused them to conduct the operation so that

publicity could be obtained

for the cause that they represent. As I have said,

their cause is to

improve the lot of battery hens and ultimately to

have the battery hen

system abolished. ring exercise and the issue is a

ver

 

 

The defendants motives are relevant because it sets

them apart from the

common burglar who acts out of personal greed.

 

 

 

No one will be surprised to hear me say, that I

think that the courts

task in a case like this one is difficult. It is

perhaps, at the risk of

sounding controversial, no more appropriate to blame

the victim of a

burglary than for the crime having been commited,

than it is to blame

the victim of a rape for wearing a short skirt.

 

The defendants also wish to motivate the executive

arm of Government

and the RSPCA to take action, so, as I'm sure they

would put it, they

don't have to. I take the defendants reasons into

account. They do, as

I've said, mitigate the seriousness of the crimes,

although they would

carry a lot more weight if the charge here was mere

trespass rather than

burglary and stealing.

 

 

But to address the stealing, and I suppose also the

burglary, the

charges have much in common with a trespass. The

stealing was motivated

by concern for eight particularly affected fowls, so

they could recover

from their ailments. The value of those fowls, and

therefore their loss

is not large, there is no element of personal gain

present in the

commision of that crime.

 

 

It is also appropriate perhaps to observe that the

victim has suffered

inappropriately and improperly as a result of the

commission of these

crimes. At least, in theory, there were better ways

in which the

defendants could have gone about pursuing their

cause. It is not for

them to commit criminal offences no matter what they

think of the

failure of others to act.

 

In the context of being a victim it is not

appropriate for the owner to

be on trial for something which may or may not

render it liable to

review or prosecution at the hands of the proper

authority.

 

 

On the other hand, I repeat, the defendants

motivation is a mitigating

factor which clearly distinguishes this case from a

typical burglary.

 

 

Would you both stand up at this point, please..

 

 

My conclusion is that you both should be punished

for what you've done.

In an attempt to strike the proper balance, I have

decided that you

should be convicted, and to some extext a deterrent

penalty should be

imposed. I think it needs to be made clear on the

record, that these

were crimes, but crimes with a difference, so to

speak, as I have

already endeavoured to explain. You will each be

fined $400 on the

complaint.

 

To that fine I add the victims of crime levies, in

respect of which I

have no discretion, and I can't think of a good

reason not to charge you

the costs, which are.(noise in background between

Magistrate and Clerk

of court)

 

Well, Mrs Mark, in your case the costs are $77, so

the total is $517.

And in your case, Mrs Clark, $25, so in your case

$465.

 

 

Mrs Mark, how long do you reasonably need to pay

that fine?

 

Patty Mark: Sir, I have to tell you, I refuse to

pay that fine, I

won't pay a fine for taking a sick animal to get

help.

 

Magistrate Mollard: And, Mrs Clarke, is your

position the same?

 

Pam Clarke: Yes.

 

 

Magistrate Mollard: All right, well I make no order

in relation to

time to pay, you're both free to go.

 

 

matter ends.....