Insights into litigation, sports law, media and legal culture

Four Corners greyhound racing scandal: The court of opinion is not a court of law

I never believed the contemptuous description of greyhounds as ‘dish lickers’. Greyhounds are beautiful animals, their noble history explained in this Animals Australia post. In any event, the derogatory term appears directed less to the animals themselves, and more to public perception that the sport is at the lower end of the racing food chain.

That perception has appeared to improve in recent times. However, perpetrators of the banned, barbaric practice of live baiting, do themselves no service at all. They reduce themselves, and by extension the Australian greyhound industry itself, to little more than cock-fighters. Their dogs do not look noble. They look like victims.

‘Live-baiting’, in the context of greyhound racing, is the practice of ‘blooding’ greyhounds by training them to chase after small animals they then maul or kill. The purpose is apparently to improve racing performance by inciting dogs to use ‘extra effort’ when chasing a mechanical lure around the racetrack. The RSPCA provides a more detailed explanation about the practice here.

I was unable to watch the devastating ABC Four Corners’ television exposé on 14 February 2015 in its entirety (see video here). My approach involved switching away from appalling vision, and then returning moments afterwards. To watch the disposable manner in which rabbits, possums and piglets were treated was simply too much.

My response is by no means isolated. In addition to the storm of reaction on mainstream and social media following the broadcast, this message which appeared on Greyhound Racing Victoria’s website tells a tale: “Website currently under heavy load. Please try again in a couple of minutes”.

Shortly after the Four Corners program was aired, the Victorian Government announced a broad investigation by the Chief Veterinary Officer of Victoria, and an independent investigation by Racing Integrity Commissioner Sal Perna into industry participants. The Government will also allocate $3 million towards bolstering Greyhound Racing Victoria’s (GRV) animal welfare and integrity measures.

GRV is also investigating breaches of the racing rules, and via its Chief Executive Officer Peter Caillard has expressed disgust at the revelations (see website announcement here).

Further, Victoria Police and the RSPCA are investigating criminal matters involving animal cruelty.

Investigations are now also taking place in other affected States.

The concept of proof: Four Corners is not a court

The Four Corners program provided compelling vision of what appeared to be systemic live-baiting practices in greyhound racing, apparently involving significant industry figures, from surveillance footage implemented by Animals Australia and Animal Liberation Queensland.

Calls for immediate action have been widespread, and the industry appears ready to comply.

However, before you can sanction someone, you have to prove they committed the offence.

The concept of proof in the court of public opinion, as opposed to a court of law, may not be the same at all. To that end, a court of law will often not permit illegally or improperly obtained evidence to be used.

The principle preventing the use of illegal evidence in court is intended to protect the public in a broader sense. If it were ‘open season’, in that all evidence could be relied on (whether illegally obtained or not), this could erode important protections such as our right to privacy. Therefore, in the interests of the broader good, individual cases can fail if the evidence is illegally or improperly obtained, even if it is compelling.

Legal status of surveillance footage

Animals Australia has explained its use of surveillance footage:

In high risk investigations spanning New South Wales, Victoria and Queensland, Animals Australia and ALQ used surveillance cameras to monitor premises where greyhound training was being conducted. The deeply shocking footage showed greyhound trainers routinely using piglets, possums and rabbits as ‘live bait’.”

At the very least, one expects these devices were placed in locations on private land without first obtaining permission.

For instance, in a statement Mr Peter Caillard, the CEO of GRV, referred to the training facility at Tooradin, one of the targeted live baiting locations, as “privately owned”.

Animal welfare groups can of course, make a considered decision to use unlawful surveillance methods to further their cause. They are not constrained by the regulatory powers (or lack thereof) of integrity officers and the like. However, there is a difference between raising awareness and successfully prosecuting offenders. In a report in the Canberra Times, in the wake of the Four Corners program, RSPCA ACT chief executive Ms Tammy Ven Dange explains how the process might sometimes work.

“Ms Ven Dange said secret surveillance footage could sometimes cause trouble for inspectors as the videos could not be used in court if they were illegally obtained.

“This has caused issues in other states with some big cases because the inspectors have had to drop the charges due to a lack of evidence,” she said.

In the case of Four Corners, they appear to have tried to circumvent the issue by alerting inspectors and giving them enough time to raid properties and collect enough evidence to prosecute. The ABC has reported that after the surveillance footage was taken, and weeks before the Four Corner’s program went to air, the results of its investigation (in conjunction with Animals Australia and Animal Liberation Queensland) were handed over confidentially to the state-based RSPCAs. The RSPCA, in conjunction with police in NSW, Victoria and Queensland, then raided five properties before the program went to air (see ABC explanation here).

Yet it was plain from the program that some of those raids were more successful than others. For instance, piglets were located in concealed locations on one property (one wounded), whereas another property appeared to yield nothing.

It therefore does not surprise that GRV has explained that suspended persons cannot be named immediately in light of legal advice received.

This is because Plan A (relying in court on surveillance footage to identify alleged wrongdoers) could well become Plan B (relying on the results of property raids in the absence of that footage). Given the apparently patchy results of those raids, Plan B might lead to less prosecutions than Plan A.

In light of this, moving too quickly against alleged perpetrators now (even if they have already been identified in a television report) could backfire spectacularly.   Regulators must take care to avoid republishing serious allegations against individuals unless they are prepared to wear the risk of a defamation lawsuit against them.

To illustrate the risks of a Plan B approach, in November 2014, RSPCA New South Wales was forced to withdraw a prosecution for animal cruelty against a business known as Wally’s Piggery. The reason why illustrates how these prosecutions, when based on surveillance footage, can be fraught with risk.

As the RSPCA explained in a media statement:

The RSPCA NSW investigation of this matter arose as a result of footage that has been widely circulated on the internet. We are disappointed that this footage was not lawfully substantiated by Aussie Pigs and/or Animal Liberation, who initially released the footage to the media instead of giving it directly to one of the enforcement agencies. Those responsible for capturing the images subsequently would not provide a statement to RSPCA NSW so none of the evidence released by them could be used in the prosecution.

There appears to be a common misconception that the case at Yass Local Court relates to the widely circulated footage. This is not correct. The RSPCA NSW’s case in this matter sought to rely on its Inspectors observations and those of other agencies and an expert when they attended in early August 2012 and not the widely distributed video footage.”

Reading between the lines, without the video footage, the Plan B case against Wally’s Piggery was just not strong enough.

As to why those responsible for capturing images might not choose to put their hand up, state-based trespass prohibitions might help explain. For instance, in Victoria, a person can be guilty of trespass if he or she enters a “private place” without express authority unless for a legitimate purpose: section 9 Summary Offences Act 1996 (Vic.). The penalty is a fine or up to 6 months in prison.

The RSPCA was likely very frustrated by the mismatch between the public expectation of a successful prosecution in light of surveillance footage readily accessible online, and its difficulties in proving its case in a court of law.

Below, some of the legal hurdles are explained, focusing on the Victorian legal position, and the criminal investigation under the Prevention of Cruelty to Animals Act 1986 (Vic.). Integrity issues concerning breaches of racing rules will not be examined here.  These have been dealt with separately in my post “Reading between the lines“.

is the surveillance footage illegal?

The use of surveillance devices is regulated in Victoria by the Surveillance Devices Act 1999. In short, this area of the law is a quagmire.

In a world of smartphones and superior technology, working through the provisions is hard work indeed.

The Act breaks down the components of a surveillance device into constituent parts, on the basis that a ‘surveillance device’ could contain one or more of these components.

This leads to a curious outcome where a person is prohibited from using, without consent, an ‘optical surveillance device’ to record or observe a private activity to which the person is not a party unless that activity carries on outside a building. In other words, you can film people doing things if it happens outdoors (which may augur well for those who filmed vision at, say, the Tooradin training track.).

However, this carve-out does not apply to listening devices. If the purpose of the device is to monitor, overhear, record or listen to a private conversation (wherever that may occur), then without the consent of the parties to that conversation, the conduct is prohibited.

What then might be the fate of audio-visual devices combining the ‘optical’ and ‘listening’ attributes, such as those used in the Four Corners program? Could it be that the ‘optical’ component is given the green light, but the ‘listening’ component is not?

In fact, this distinction might very well apply. Practically, this could lead to a prosecutor deciding not to rely on the aural component of the footage (which is likely of lesser significance in the present case). Instead, only the visual components might be relied upon. Separate evidence would be required verifying the location of the device, the accuracy of the recording, and the identity of the individuals concerned.

But wait. There’s more!   This is because, in addition to state-based legislation, section 7(1) of the Commonwealth Telecommunications (Interception and Access) Act 1979 makes it an offence to intercept (listen to or record) a communication passing over a ‘telecommunications system’ without the knowledge of the person making the communication. A ‘telecommunications system’ is broadly defined. No distinction is provided in relation to the components of an audio-visual device.

It follows that if smart phones were used for surveillance purposes, then the broader effect of this legislation should be considered as well.

Note also that if the surveillance footage was obtained by trespassing on private property, there are equitable remedies possibly causing a court to restrain its use.

Is Four Corners in trouble if it has used unlawfully obtained surveillance footage?

Likely no. True it is, section 11 of the Surveillance Devices Act 1999 (Vic.) prohibits the knowing communication or publication of reports made as a result of using such devices.

However, there is an express exception if the communication is in the public interest, likely to be the case here: s. 11(2) of the Act.

In further good news for television broadcasters and animal rights activists, the High Court has held that so long as the broadcaster is not complicit in the impropriety or illegality, then it should not be restrained from using footage obtained in an unlawful manner.

In the case of ABC v Lenah Game Meats [2001] HCA 63, hidden cameras were installed by unknown persons in a processing plant to capture the slaughter of brush tail possums. Animal Liberation Ltd then supplied the footage to the ABC for use on its current affairs show, the 7.30 Report. For an excellent blog post from Voiceless about the decision, see here.

What will a criminal investigation need to prove?

Section 13 of the Prevention of Cruelty to Animals Act 1986 (Vic.) is the pivotal provision making it an offence to engage in live baiting practices. The accused does not need to have engaged actively in the practice of live-baiting. Having the custody, care or control of an animal used for that purpose is enough.

There are similar provisions in other States. The RSPCA has helpfully summarized them here.

On the question of proof, the Victorian Act implies that the offender has been caught red-handed. For instance, if a vet provides evidence in writing that an animal was alive at the time of its attack by a dog, then this will be regarded as evidence, on its face, that this indeed occurred. However, for a vet to give this evidence, presumably he or she must put eyes on the animal concerned rather than simply rely on video footage.

The accused is liable to a penalty of up to two years in prison. He or she may also be fined up to $35,426 (based on the current calculation of penalty units).

Can surveillance footage obtained improperly or illegally still be used as evidence in court?

The good news is that, in Victoria, it is not ‘end game’ if the evidence is improperly obtained.

However, there is a presumption that such evidence should be excluded. Section 138 of the Evidence Act 2008 (Vic.) provides the glimmer of hope. If the desirability of admitting the evidence outweighs the undesirability of admitting it (given the improper circumstances in which it was obtained), then the Court will allow it in.

Imagine the scales of justice. This is exactly the kind of balancing exercise required of the Court.

To help, there is a shopping list of factors the Court will consider before deciding whether to allow in footage obtained improperly or illegally. Essentially, this gives the judge room to move. For example, he or she can consider the probative value of the evidence, its importance, the nature of the relevant offence, and so on.

Conclusion

Understandably, vision such as that shown on Four Corners arouses very deep and strong emotions. However, a demand for ‘immediate action’ risks putting regulators and legislators into deeper water, possibly by exposure to defamation proceedings if claims cannot ultimately be substantiated.

So too, one must respect the principle underpinning our justice system that people should be given the benefit of the doubt and the right to fair and due legal process. We would want this ourselves if serious allegations were leveled against us.

There is no question that the ABC, Animals Australia and Animal Liberation Queensland have already engaged in a tortuous legal process even to bring the Four Corners program to air. That delicate dance now continues.

 

 

 

 

 

 

 

 

 

 

 

 

2 Responses to “Four Corners greyhound racing scandal: The court of opinion is not a court of law”

  1. Pat Rourke

    Terrific article, very valuable. Are you of the opinion that the law needs some updating given the ubiquity of hidden surveillance devices with clear HD footage and audio? Without commenting on this case specifically, there are times where footage emerges of clearly illegal behaviour, and the public expectation is “res ipsa loquitur”: it should not matter how the video was obtained, the act is apparent. Provided it can be established that there is no doctoring of the footage, could a principle be introduced that the camera acts as a public eyewitness to serious crimes? The potential trespasser who plants the device could be protected as part of that arrangement. Plenty of serious consequences, but perhaps it’s time to consider it …

    Reply
    • Natalie Hickey

      Hi Pat, thanks for the positive feedback. Always appreciated. My take on this important question is: Before you change the law, consider the policy. Let’s say a peeping tom installed a camera in the neighbour’s house next door, only to reveal unwittingly a serious crime such as domestic abuse. If you sanction the initial act given what follows, what happens then? Does it mean open season for peeping toms, disgruntled neighbours and so on? Can they trespass and install cameras in the hope they might uncover a crime? If so, how serious should the crime be? Would breaking noise regulations be enough? How would we feel about the encroachment on our privacy rights if this were to occur? The argument that the end justifies the means can have merit. But before ‘going there’, in my view we need to consider what society might look like if this were to happen before calling for a change to the law. In an age of CCTV cameras and the like, you rightly suggest that this is an important issue to consider.

      Reply

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