Prosecutions Policy

Last reviewed: 18 June 2026

1.0 Introduction

RSPCA WA is a company limited by guarantee incorporated under the provisions of the Corporations Act 2001 (Cth). 1 RSPCA WA is not a public authority for the purposes of the Criminal Procedure Act 2004 (WA) (“CPA”). RSPCA WA does not commence or conduct prosecutions for animal cruelty.

The power to enforce the Animal Welfare Act 2002 (“AWA”), including the power to commence proceedings for an offence under the AWA, is conferred, relevantly, upon the general inspectors appointed under the AWA. 2 General inspectors are appointed by the Director General of the Department of Primary Industries and Regional Development (“DPIRD”). 3 The Director General must appoint as general inspectors are members of the staff of RSPCA WA nominated by RSPCA WA. 4 Once nominated and appointed, all RSPCA WA inspectors are therefore general inspectors under the AWA. 5 General inspectors, including RSPCA WA inspectors, are appointed to enforce Pt 3 of the AWA. 6 The objects of Pt 3 of the AWA7 are:

  • to promote and protect the welfare, safety and health of animals; and
  • to ensure that animals are properly and humanely treated, cared for and managed.

RSPCA WA inspectors exercise their powers under the AWA, including the power to prosecute for animal cruelty offences, in the public interest.

1 As a not-for-profit entity, RSPCA WA is exempted under s 150 of the Corporations Act 2001 (Cth) from the requirement to include the word “Limited” at the end of its name.

2AWA s 82(1)(b).

3 Presently, DPIRD is the Department of the Public Service principally assisting the Minister for Agriculture in the administration of the AWA.

4 AWA s 33(1)(a).

5And lose that status when they leave their employment with RSPCA WA: see AWA s 33(4)(a).

6 AWA s 37(1)(a).

7 Set out in s 18A of the AWA.

2.0 Scope

This prosecutions policy in intended:

  • To guide RSPCA WA inspectors in making decisions about the commencement and conduct of prosecutions; and:
  • To provide a public statement of the principles and criteria applied by RSPCA WA inspectors in making those decisions.

The publication of this prosecutions policy is intended:

  • to promote consistency in the decisions and practices of the RSPCA WA inspectorate; and
  • to allow public scrutiny of the principles and criteria applied by RSPCA WA inspectors in the exercise of their functions under the AWA, including the commencement and conduct of prosecutions under the AWA.

3.0 Policy

3.1 Obtaining information about animal cruelty

RSPCA WA operates a 24-hour toll-free telephone line and an online web address for reports of animal cruelty and receives some 7000 reports each year. All reports are logged and investigated but not all investigations lead to prosecution. The need to make the best possible use of the time available to inspectors, and the requirement to protect the integrity of investigations, mean that feedback on the progress of investigations cannot usually be provided. However, this information from members of the public about potential instances of animal cruelty is an important and valuable resource for RSPCA WA.

3.2 Informal action

A wide variety of informal actions are available to RSPCA WA inspectors, and inspectors frequently try to work with people who are having difficulty in looking after their companion animals or livestock.

RSPCA WA does not ordinarily offer veterinary services to the public but RSPCA WA inspectors will often intervene to supply food, water, or treatments for fleas, worms and lice. The inspectors can also advise people about the appropriate care of their animals — part of the inspector’s statutory function of ensuring that animals are properly and humanely treated, cared for and managed. In an extreme case, where someone is unable to continue to care for an animal, the animal can be surrendered to RSPCA WA.

3.3 Note on language

In the CPA there is frequent reference to “the accused’. An accused is relevantly defined to be “a person alleged in a prosecution notice … to have committed an offence”. The expression “the accused” is inappropriate to describe someone at a stage when no prosecution has commenced. In those circumstances, this policy uses the expression “person of interest”.

3.4 Formal action stopping of prosecution – directions

Under s 40(1)(b) of the AWA, an inspector may direct a person in control of an animal to provide to the animal any food, water, shelter, care or treatment that the inspector considers necessary to ensure the welfare, safety and health of the animal.

Under s 47(1)(j) of the AWA, an inspector may give any directions to a person in control of an animal that the inspector considers are necessary to protect the welfare, safety and health of the animal.

In either case, failure to comply with the direction is an offence for which the maximum penalty is a fine of $20,000 and imprisonment for one year.

In practice, and although this is not the subject of any legal requirement, directions are usually given in writing and described as a “Direction Notice”. A duplicate of the Direction Notice is retained by the inspector issuing the notice.

Direction Notices can be an effective way to deal with less serious issues of animal welfare. However, there are limitations on the effectiveness of directions as a way of dealing with animal mistreatment.

First, there is a process of objection and review which can suspend the operation of a direction. A decision to give a direction under s 40(1)(b) of the AWA in relation to the provision of care or treatment (but not in relation to food, water or shelter), or under s 47(1)(j) of the AWA, is a ‘reviewable decision’. 8 This means that the person aggrieved by the decision can lodge an objection to the decision with the relevant Minister. 9 If an objection is lodged, the effect of the decision is suspended until the Minister deals with the objection under s 73(2) of the AWA, unless the Minister directs otherwise. In addition, the person aggrieved may apply to the State Administrative Tribunal for a review of the decision, either instead of lodging an objection with the Minister or after the Minister has dismissed an objection.10 Where an application for review follows the Minister’s dismissal of an objection, the effect of the decision is suspended until the State Administrative Tribunal deals with the matter, unless the Tribunal orders otherwise.

Second, there are problems with enforcement of directions. If the person to whom the direction has been given fails to comply with the direction, that person can be prosecuted.[1]1 But the course of the prosecution might take many months, during which time the direction is, in practical terms, largely ineffective to protect the welfare, safety or health of the animal.

It is a matter for the individual discretion of an inspector, based on the inspector’s knowledge, training and experience, and exercised in accordance with standard operating procedures and in consultation with the Inspector Manager, to decide which instances can appropriately be dealt with by directions and when it might be necessary to escalate the approach and commence a prosecution.

3.5 Formal action stopping short of prosecution – infringement notices

Part 5 Div 3 of the AWA allows RSPCA WA inspectors to issue infringement notices for the contravention of certain regulations. An infringement notice allows someone to pay a modified penalty and so avoid court proceedings and the consequent possibility of being convicted of an offence. A person to whom an infringement notice is issued always has the option of choosing to go to court and defend the charge.

Until 2020, no regulations had been made under which infringement notices could be issued. Infringement notices can now be issued for some contraventions of the Animal Welfare (Transport, Saleyards and Depots) (Cattle and Sheep) Regulations 2020. 12 More regulations are in the process of being drafted. RSPCA WA has no control over the progress of the drafting and publication of the relevant regulations.

As part of the process of preparing for the issue of infringement notices, some members of the staff of RSPCA WA were appointed by RSPCA WA as authorised persons under s 64 of the AWA. In addition, RSPCA WA inspectors were designated by RSPCA WA as prosecuting officers for the purposes of Pt 3 of the Fines, Penalties and Infringement Notices Enforcement Act 1994, and the Fines Enforcement Registrar subsequently recognised RSPCA WA as an approved prosecuting authority.

As the law currently stands, infringement notices cannot be given for offences of animal cruelty under s 19 of the AWA.

8 AWA s 71.

9 Presently, the Minister for Agriculture and Food.

10 See ss 71-74 of the AWA.

11 Sections 40(2) and 47(3) of the AWA read with s 72 of the Interpretation Act 1984.

12 See Sch 1 to the Animal Welfare (General) Regulations 2003. The Animal Welfare (Transport, Saleyard and Depots) (Cattle and Sheep) Regulations 2020 came into operation on 3 October 2020.

3.6 Warning letters

On some occasions, the material obtained by RSPCA WA inspectors in the course of an investigation might suggest that a person of interest has committed an offence of animal cruelty but other factors will lead the inspector to conclude that it is inappropriate to commence a prosecution. In those cases, the inspector may consider it appropriate to send to the person of interest a letter in standard terms, referred to as a ‘warning letter’.

3.7 Prosecutions

RSPCA WA inspectors derive their authority to prosecute from s 82(1)(b) of the AWA. However, notwithstanding s 82 of the AWA, the Director of Public Prosecutions for Western Australia (“DPP”) has an independent power to commence a prosecution under the AWA. The DPP can also intervene at any point to take over and either conduct or discontinue a prosecution. For this reason, this prosecution policy has had regard to the prosecuting guidelines published by the DPP in September 2018.13

The offence of animal cruelty is s 19(1) of the AWA. 14 An offence under s 19(1) of the AWA is a simple offence which must be tried summarily in the Magistrates Court. 15 In broad terms, the procedure governing these trials is found in Pts 3 and 5 of the CPA and in the Criminal procedure Regulations 2005.

3.8 Commencing a prosecution

A prosecution will not be commenced unless there are reasonable prospects of conviction. An assessment of the prospects of conviction is an objective test but requires an evaluative judgment.

13 DPP Statement of Prosecution Policy and Guidelines 2018.

14 Sections 19(2) and (3) of the AWA contain examples of the way in which the offence of cruelty under s 19(1) of the AWA can be committed.

15 Or, where the accused was under 18 years of age at the time of the act or omission said to amount to the offence, the Children’s Court.

The assessment of the prospects of conviction requires consideration of the evidence available to the prosecution. That consideration will take into account:

  • the voluntariness of any admissions against interest alleged to have been made by the person of interest and whether there are grounds for reaching a view that an admission against interest will not meet the criteria for admissibility at trial;
  • whether any other evidence which is important to the prosecution case might be excluded in the exercise of a judicial discretion.

In the case of alleged admissions, attention will be given to factors relevant to admissibility. In an appropriate case, those factors might include the circumstances in which the admission was made, the cognitive functioning of the accused, and any relevant linguistic or cultural factors which might bear upon the issue of the voluntariness of the alleged admission.

In the evaluation of the prospects of conviction it will also be necessary to consider:

  • so far as possible, the competence, reliability, credibility, availability and compellability of witnesses; and
  • any matters which might significantly lessen the likelihood of acceptance of the prosecution case, including:
    • the existence of a significant conflict in the evidence;
    • where identity is in issue, the cogency and reliability of the identification evidence;
    • any lines of defense 16 which have been indicated by, or are reasonably open to, the accused;
    • the possibility of reasonable inferences consistent with innocence;
    • the burden and standard of proof.

If it is considered that, on the available admissible evidence, there is no reasonable prospect of conviction, then unless further prompt investigation is likely to remedy any deficiency in the prosecution case, the prosecution should not be commenced.

3.9 The public interest

The fact that there are reasonable prospects of conviction is a necessary but not a sufficient basis to commence a prosecution. It is also necessary to consider whether the prosecution would be in the public interest.

Criteria relevant to an assessment of the public interest might include in a particular case:

  • the objectives of sentencing, including deterrence, protection of the community, punishment and rehabilitation;
  • the circumstances of the alleged offence;
  • the personal circumstances of the person of interest, including any criminal history;
  • the lapse of time since the alleged offence, including delay in the prosecution process;
  • the degree of culpability of the person of interest;
  • the availability of any alternatives to prosecution;
  • the likely length and expense of a trial for the person of interest and whether they are likely to be disproportionate to the seriousness of the alleged offending;
  • whether the person of interest has cooperated in the investigation and prosecution of others or has indicated an intention to do so;
  • the likely sentence in the event of a finding of guilt.

3.10 The role of a prosecutor

In a prosecution under the AWA commenced by an RSPCA WA inspector, ‘the prosecutor’ is:

  • the inspector; and
  • the person who represents the inspector in court. 17

The proper performance of the role of the prosecutor is fundamental to the operation of the criminal justice system and to the rule of law. The duty of the prosecutor is not to achieve a conviction at all costs but to present the prosecution case fairly against the accused. 18 A prosecutor must disclose any relevant evidence to the accused, including evidence which might seem to impair the prosecution case; 19 must inform the court of any relevant authorities, even where they are unfavourable to the prosecution; 20 and, generally, must adduce all admissible prosecution evidence during the prosecution case.21

3.11 The prosecution of children

The prosecution of children involves particular considerations which apply in addition to the prosecution of adults. Attention should be given to —

  • the principles of juvenile justice found in s 7 of the Young Offenders Act 1994;
  • where the child was aged under 14 at the time of the act or omission said to amount to an offence, the requirement in s 29 of the Criminal Code to prove that the child knew that the act or omission was seriously wrong.

In many cases, children will be dealt with, at least initially, by a juvenile justice team (“JJT”)22. Section 27 of the Young Offenders Act 1994 provides that “where there is sufficient evidence to justify charging a young person with the commission of an offence, a person who could lay the charge may, having regard to the circumstances, refer the matter for consideration by a juvenile justice team instead of laying a charge”. Section 29(1) of the Young Offenders Act 1994 provides that “the discretion given by section 27 … is to be exercised in favour of referring the matter to a juvenile justice team if the young person has not previously offended against the law”.

A “person who could lay the charge” plainly includes an RSPCA WA inspector acting under s 82(1)(b) of the AWA. However, in practice, JJTs have been reluctant to accept referrals from RSPCA WA inspectors. The only course then available is to commence a prosecution for the offence and rely upon a referral to a JJT by the Children’s Court under s 28 of the Young Offenders Act 1994.

16 In this context, in prosecutions under the AWA, this expression is used to include both the exculpatory provisions in Ch V of the Criminal Code and the statutory defences under ss 20-30 of the AWA.

17 Section 3 of the CPA.

18 Richardson [1974] HCA 19; (1974) 131 CLR 116 at 119.

19 The duty of disclosure is dealt with more fully later in this policy.

20 See generally r 44 of the Legal Profession Conduct Rules 2010.

21 See R v Chin [1985] HCA 35; (1985) 157 CLR 671. Chin is the source of the rule against ‘splitting’ the prosecution case.

22 Part 5 Div 3 of the Young Offenders Act 1994.

3.12 The prosecution of an accused with a mental impairment

Particular care needs to be exercised when it seems that an accused might have a mental impairment within the meaning of the Criminal Law (Mentally Impairment) Act 2023. The statutory penalty for an offence under s 46 of the AWA includes imprisonment, so that it is possible that someone who is found to be not mentally fit to stand trial can be made the subject of a custody order under s 16(4)–(6) of the Criminal Law (Mentally Impairment ) Act 2023. However, if after consideration is given to the criteria in s 16(6) of the Criminal Law (Mentally Impairment) Act 2023 it appears that it is unlikely that a custody order will be made, it will not usually be in the public interest to proceed with a prosecution.

If an accused is found or accepted to be not mentally fit to stand trial, the court cannot make any ancillary order under s 55 of the AWA, including an order prohibiting the alleged offender from having future care of or contact with animals of an order for the forfeiture of an animal owner by the accused. Those orders can be made only after conviction. However, it is possible in those circumstances to apply for the civil forfeiture of animals, under s 56 of the AWA.

3.13 Charge negotiation

The position on charge negotiation is based upon, and largely taken from, the DPP Statement of Prosecution Policy and Guidelines 2018 at cll 63–72, with appropriate adjustments to reflect the distinct nature of prosecutions under the AWA. 23 However, RSPCA WA prosecutors will not initiate charge negotiations.

The considerations relevant to charge negotiation are as follows.

RSPCA WA inspectors will never commence prosecutions for multiple offences in order to provide a basis for charge negotiation.

A plea of guilty is a factor to be taken into account in mitigation of sentence. There are obvious benefits to the criminal justice system resulting from a plea of guilty and the earlier that a plea of guilty is entered, the greater will be those benefits.

Charge negotiations between the parties are encouraged and may occur at any stage of the proceedings. They must be based on the evidence and the public interest.

A written record must be kept of any charge negotiations.

23 For example, the reference at cl 67 to a drug trafficker declaration is irrelevant to an AWA prosecution.

RSPCA WA inspectors will, in an appropriate case, agree to discontinue a charge or charges upon the accused’s pleading guilty to another or other charges. They may also agree to amend the factual basis of a charge or charges upon the basis that a plea of guilty will be entered to the amended charge(s).

Charge negotiations should take into account:

  • whether the plea of guilty reasonably reflects the essential criminality of the conduct and provides an adequate basis for sentence;
  • whether the strength of the evidence is such that the public interest will be satisfied by the acknowledgment of guilt and certainty of conviction achieved by the negotiated plea;
  • the benefits to the community as a result of the negotiated plea.

Before a negotiated plea is accepted, an agreed statement of material facts must be settled.

When a plea of guilty is offered by a person in a case involving multiple accused, consideration must be given to the consequences of the acceptance of the plea for the case against the remaining accused.

It will not be in the public interest to accept a plea to a lesser offence from a principal offender in order to use that person’s evidence to prosecute a less culpable co-accused on a more serious charge.

3.14 Disclosure

Offences under s 19 of the AWA are simple offences. They are not prescribed simple offences 24 but on 11 September 2021 the AWA was inserted, as cl 1AA, into Sch 4 to the Criminal Procedure Regulations 2005 and so prosecutions under the AWA became listed simple offences. 25 Prosecutions under s 19 of the AWA:

  • fall within s 35(6) of the CPA and not any of the earlier subsections of s 35 of the CPA;
  • are not governed by any of the provisions in ss 36–47 of the CPA;
  • fall within s 60(4) of the CPA;
  • require the prosecutor to give disclosure under s 61 of the CPA;
  • allow the prosecutor to seek an order that the accused give disclosure under s 62 of the CPA.

However, RSPCA WA prosecutors recognise that full prosecution disclosure is an integral part of a fair trial, including summary trials. 26 Consequently, wherever possible, a statement of material facts and any required notices about criminal records will be served with a prosecution notice. The letter accompanying these materials will also set out the orders under s 55 of the AWA that will be sought in the event of a plea of guilty or a determination of guilt under s 55 of the CPA.

If a matter is listed for a contested hearing, a full prosecution brief of evidence will be compiled and served well before the trial date and no later than the time required by s 61(6) of the CPA.

24 Criminal Procedure Regulations 2005 reg 10 and Sch 3.

25 Government Gazette 10 September 2021 p 4209 and Criminal Procedure Regulations 2005 reg 12 and Sch 4.

26 See for example Re an application under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 54.

3.15 Trial Procedure

RSPCA WA prosecutors will provide a succinct and accurate opening address summarising the essential prosecution case.

RSPCA WA prosecutors will call witnesses at trial in accordance with the principles outlined in R v Apostilides, 27, which is to say, recognising that:

  • the prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the prosecution;
  • in making the decision as to which witnesses will be called for the prosecution, the prosecutor may take into account many factors, including:
  • whether the evidence of a particular witness is essential to the unfolding of the prosecution case;
  • whether the evidence is considered to be truthful and reliable;
  • whether it is in the interests of justice that the evidence should be subject to cross-examination by the prosecutor.

A judgment as to the truthfulness and reliability of a witness must where possible 28 be based upon the prosecutor’s own pre-trial examination of the witness and the witness’s evidence and not based upon mere supposition or conjecture.

RSPCA WA prosecutors comply with the position mandated by Nguyen V R (2020) HCA 23 in relation to the admissibility and production of ‘mixed statements’.

There is no property in a witness, including an expert witness, and an RSPCA prosecutor will not ordinarily prevent or interfere with discussions between a legal practitioner representing an accused and a prosecution witness. However, care must be taken to ensure that witnesses are not threatened or intimidated.

3.16 Sentencing

RSPCA WA prosecutors will be familiar with, and where necessary refer the court to, all of the law relating to sentencing, including:

  • section 19 of the AWA;
  • sections 6–9AA of the Sentencing Act 1995;
  • Part 5 of the Sentencing Act 1995.

For example, although s 19 of the AWA provides a penalty of a fine of not less than $2000 and imprisonment for a term of up to 5 years, the effect of s 42(2a) of the Sentencing Act 1995 is that, instead of the minimum fine, any of the following sentences may be imposed, that is to say:

27 (1984)  154 CLR 563.

28 That is to say, where the witness agrees. There is power to summons a witness to give evidence but not to compel a witness to take part in pre-trial discussions.

(ca) with or without making a spent conviction order, under Pt 8A of the Sentencing Act 1995 impose a suspended fine; or

(d) with or without making a spent conviction order, under Pt 9 of the Sentencing Act 1995

impose a community based order (“CBO”) and order the release of the offender; or

(e) under Pt 10 of the Sentencing Act 1995, impose an intensive supervision order (“ISO”) and order the release of the offender; or

(f) under Pt 11 of the Sentencing Act 1995, impose suspended imprisonment and order the release of the offender; or

(g) under Pt 12 of the Sentencing Act 1995, impose conditionally suspended imprisonment (“CSI”) and order the release of the offender; or

(h) under Pt 13 of the Sentencing Act 1995, impose a term of immediate imprisonment.

When a plea in mitigation asserts facts which are contrary to the prosecution case, and the resolution of those facts is material to the determination of an appropriate sentence, a prosecutor should seek to have those facts determined by the court in accordance with the principles set out in LAW v The State of Western Australia. 29

Where an offender is unrepresented, the prosecutor should, as far as practicable, assist the court by making appropriate submissions as to matters known to the prosecutor which should be taken into account in mitigation of penalty.

RSPCA WA prosecutors will give notice in advance of sentencing of any ancillary orders to be sought under s 55 of the AWA and, in the case of any orders for costs, of:

  • the exact amount of costs sought; and
  • the basis upon which those costs have been incurred and calculated.

Usually, these matters will be addressed initially in the statement of material facts but will often need to be updated prior to sentencing.

29 [2009] WASCA 193 at [25]-[34]