Dalaya v City of Playford - [2006] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DALAYA v CITY OF PLAYFORD
[2006] SASC 171
Judgment of The Honourable Justice Vanstone
15 June 2006
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
Appellant charged on complaint with being responsible for a dog which attacked another dog - appellant elected to be prosecuted - appellant convicted by Magistrate following trial - appeal against conviction - whether evidence before Magistrate a sufficient basis for verdict - whether aspects of evidence contradictory - whether Magistrate's conclusions open on the evidence - appeal dismissed.
Dog and Cat Management Act 1995 (SA), s 44(2), referred to.

DALAYA v CITY OF PLAYFORD
[2006] SASC 171
Magistrates Appeal
VANSTONE J:
Introduction

The appellant was charged on complaint with being responsible for a dog which attacked another dog, contrary to s 44(2) Dog and Cat Management Act 1995. He elected to be prosecuted. He was found guilty by a Magistrate, convicted and fined and ordered to pay costs as well as legal and veterinary fees.
He now appeals against that conviction, his sole ground of appeal asserting that there was “insufficient evidence of dog attack”. At all stages of this matter the appellant has represented himself.
Background
Upon the trial the prosecution called the handler of the dog (“Bandit”) said to have been under attack and Mr Burgess, a community inspector employed by the respondent council, with long experience investigating complaints about dogs and cats.
The handler described the way in which a small part of his home’s rear boundary was common to a small part of the appellant’s rear boundary. The properties were there separated by an iron fence, which on the handler’s side was supported by rails.
Bandit, a Chihuahua owned by the handler’s parents, was staying with the handler. He was said to be an “outside dog” and was living in the handler’s back yard. The handler described having heard his son yelling on the morning of 14 September 2004. He related how he raced outside, to see the appellant’s dog running towards the common boundary with Bandit in its mouth. He yelled at the intruder, which dropped Bandit and proceeded to climb or jump over the fence. In an agitated state the handler yelled into the appellant’s property and heard a response. He then took Bandit first to his parents’ home and then, with his mother, to a veterinary surgery.
Later that day the inspector, Mr Burgess, attended the handler’s home and examined the back yard. In evidence, he expressed the view that dogs such as the appellant’s could cross a fence as high as the relevant boundary fence reasonably easily. Mr Burgess was aware of the veterinary practice to which Bandit was taken. On the day of the trial he arranged for documentary evidence of that consultation to be provided. It was tendered as Exhibit P8.
The appellant gave evidence in his defence. In essence he denied that any of his dogs had left his premises on that day. He said there were three dogs at his home on that day, one of which was a Rhodesian Ridgeback cross. He said that the dog on the handler’s property was not a Chihuahua but a Rottweiler cross breed and that the handler himself had attacked that dog, to the distress of the handler’s child.
The Magistrate found the handler to be an honest and reliable witness. He found support for his evidence in the patient history of Bandit. He rejected the appellant’s evidence that his dogs would have been unable to cross the fence. The Magistrate was satisfied beyond reasonable doubt of the handler’s account of the incident.
In support of his appeal the appellant pointed to several factual issues which he suggested undermined the prosecution evidence. He suggested that the Chihuahua dog was not at the handler’s premises on that day. He pointed to the fact that although the handler had asserted in evidence that Mr Burgess saw the dog on the day of the incident, Mr Burgess did not support that. That is so. Indeed Mr Burgess never claimed to have seen the dog. The appellant suggested that the computer generated document Exhibit P8, purporting to be the record of Bandit’s consultation with the veterinary surgeon on the day of the incident was a “forgery”. Furthermore, he pointed to the fact that the document had only been produced during the course of the trial, whereas he had previously asked for its production without result. Even further, he pointed to the fact that the document includes an entry as follows:
Patient history for Bandit – period 01/01/1970 to 15/11/2005.
If the first-mentioned date were read as being Bandit’s date of birth, or first consultation, then he would have achieved the age of at least 35 years and 10 months.
He asserted that dogs such as his would be unable to jump the portion of the fence in question and that Mr Burgess’s opinion to the contrary was simply wrong. He suggested that in any event Mr Burgess’s credibility was in question since the Complaint purported to be sworn on the day of the incident, whereas it could not have been sworn until later. In essence, he put that the entire incident was made up by the handler for his own reasons.
During the hearing of the appeal the appellant tendered, over the objection of counsel for the respondent, photographs of foliage in his back yard, said from the bar table to have been taken on 15 April 2006. Their purpose was to show the extent of foliage in the area immediately adjacent to the relevant part of the rear fence, as being relevant to the capacity of the dogs to cross the fence. I have had regard to those.
Analysis
I have read all the evidence given before the Magistrate and have considered it in light of the criticisms made by the appellant. This was a matter which very much turned on the credibility of the handler as against that of the appellant. As the Magistrate found, there was some independent evidence to support that of the handler. Most notably that consisted of Exhibit P8 which the Magistrate accepted, and I accept, came from the relevant veterinary practice. The range of dates in that document remains unexplained. Plainly that issue could have been explored at trial. The appellant asserts he was unable to read the document when it was presented. However, there are possible explanations for the date range apart from those advanced and I would not be prepared to see that entry as diminishing what in other respects appears to be a quite reasonably detailed and genuine document, containing significant circumstantial evidence connecting it with the relevant incident.
In his cross-examination of the handler, the appellant suggested that he had attended at the handler’s home a few days after the incident and had offered to pay the veterinary account. I observe that although at trial the appellant’s defence seemed to be that the dog present at the handler’s home was not a Chihuahua, but rather a much larger dog, upon the appeal his approach seemed to be that there was no dog whatsoever on the handler’s premises at the relevant time. An offer to pay the account appears to me to be inconsistent with the appellant’s more recent stance.
Notwithstanding the appellant’s evidence to the Magistrate to the effect that his dogs would not be motivated to jump over the boundary fence and in any event would be unable to do so, I see no reason to doubt the evidence of the experienced council inspector, Mr Burgess, to the effect that such a task would be within the capability of such dogs.
Conclusion
Having reviewed the evidence, including the photographs of the fence tendered at trial and the more recent photographs tendered on the appeal by the appellant, I have no misgivings about the conclusions reached by the Magistrate. On the contrary, I consider that the view he took, as outlined clearly and comprehensively in his reasons, was well open to him.
I would dismiss the appeal.