De Domenico v Mallon
[2010] WASC 285
•19 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: DE DOMENICO -v- MALLON [2010] WASC 285
CORAM: MURRAY J
HEARD: 8 SEPTEMBER 2010
DELIVERED : 19 OCTOBER 2010
PUBLISHED : 19 OCTOBER 2010
FILE NO/S: SJA 1028 of 2010
BETWEEN: TULLIO MICHELE PIETRO PAOLO DE DOMENICO
Appellant
AND
SHANE MALLON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE E K LANGDON
Citation :MALLON -v- DE DOMENICO
File No :AR 9807 of 2009
Catchwords:
Criminal law and procedure - Trial matters - Finding of facts to support conviction - Whether magistrate erred - Case turned on credibilty issues - Whether error of fact made - Whether miscarriage of justice - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Conviction quashed
Judgment of acquittal entered
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D P Gillett
Solicitors:
Appellant: In person
Respondent: McLeods
Case(s) referred to in judgment(s):
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
MURRAY J: This was an application for leave to appeal against the appellant's conviction in the Magistrates Court of an offence against s 27(2) of the Dog Act 1976 (WA). The offence was said to have been committed on 26 February 2009 at his home in Southern River, a suburb within the district of the City of Gosnells.
Section 27 operates in circumstances where, under s 26, a local government imposes a limit on the number of dogs over the age of three months which may be kept on premises situated in a specified area. Under s 27(1), a person proposing to keep dogs to which that limit applies, in numbers exceeding the limit on premises that are not exempt from the limitation, is required to apply for the premises to be licensed as an approved kennel establishment. The appellant had such a licence permitting him to keep a maximum of 12 poodles on the premises.
Section 27(2) makes it an offence to keep any dog over the age of three months, of a breed to which the licence applies, at such an approved kennel establishment, otherwise than in accordance with the licence. The penalty is a fine of $1000, and a daily penalty of $100 may apply.
The appellant was charged, in effect, with keeping 13 poodles on the premises on the day in question. He defended the charge, but he was convicted and fined $100. The prosecution was awarded costs of $2500.
The appeal
The appellant has a right of appeal, with leave, which is required in relation to any ground of appeal before it may succeed: Criminal Appeals Act 2004 (WA), s 9 (CAA). In this case, the application for leave was ordered to be heard with the appeal. Relative to this appeal, CAA s 8, inter alia, provides that an appeal may be made on grounds which assert that the Magistrates Court erred in fact or that, for any reason, there has been a miscarriage of justice. That is the thrust of the appellant's appeal in this case. The grounds are as follows:
1.The Magistrate erred in fact in that he failed to properly examine the evidence before him which showed with photographs that one dog was photographed and counted twice.
2.The Magistrate gave undue weight to the evidence of witness Paul Ian O'Keefe when his evidence is very unlikely stating the accused said, 'A long time, I just never got caught'. This amounts to verballing and strict conditions for accepting this type of evidence apply.
3.The Magistrate took undue weight to the evidence of the prosecution.
4.The Complainant caused the Defendant to be denied Natural Justice when he supplied the evidence two working days before the hearing. The Defendant was caused surprise and did not have the opportunity to secure his necessary witness for the hearing and the Magistrate did not accept affidavits.
5.The cost of $2,500.00 are excessive and the Magistrate Court scale of fee should have been applied.
6.The Complainant cut short the Defendant answer of keeping records.
Matters of law
Ground 6 may be put to one side immediately. It relates to an isolated aspect of the trial process. Having heard what the appellant has to say about it, it has no merit. He was never prevented from airing any matter which he wished to place before the court which it was proper for the court to receive in evidence. Her Honour the magistrate took care to ensure that the appellant, who was unrepresented at trial as he was before me, had every opportunity to participate fully in the trial process.
I will come back briefly to grounds 4 and 5 in due course. The substantive grounds are grounds 1 ‑ 3, which complain about her Honour the magistrate's fact finding process, particularly having regard to her decisions about the credibility of the appellant as a witness and the witness for the prosecution, Mr O'Keefe, a ranger with the City of Gosnells.
The law is clear in relation to a case of this kind. Subject to the power to admit further evidence under CAA s 40, the appeal is by way of a rehearing of the evidence and material that were before the Magistrates Court: CAA s 39(1).
This court must thoroughly review that material. The fact that the complaint is arguing, as in this case, that the magistrate made errors of fact, means that, on appeal, the court must review the evidence and the decision‑making process of the Magistrates Court. In doing so it must bear in mind that this is an appellate court, not the court of trial, and I have not had the advantage that her Honour the magistrate had of seeing the witnesses and hearing the evidence presented. I have not had, as her Honour did, the advantage of getting a feel for the case and the people involved.
That is why the principle governing appellate review in a case of this kind may be simply stated. The court must review the evidence led at trial in its entirety. Particularly in a case like this where the appellant is unrepresented, the appellate court may not confine itself to the appellant's perception of where error may lie. It must examine the record for itself, bearing in mind, as I have said, the natural limitations which are imposed by the fact that this court reviews the case remote from the atmosphere and smell of the trial.
It is for that reason that a conclusion of an error of fact in a case which involves credibility issues, as did this case, and where the fact‑finding process depends, whether expressly or inferentially, upon the demeanour of witnesses and broad matters of credibility, will be rare.
Where the appellate court finds error it must give effect to its conclusion, allow the appeal and make the appropriate consequential orders. But it will only be justified in doing so where the trial judge has clearly misused his advantage over the appellate court, or has failed to use his advantage as the trial judge. That conclusion may be drawn in a variety of circumstances: whether the trial judge has acted on evidence which is inconsistent with a body of evidence to the contrary which must be accepted, or where the view of the evidence taken by the trial judge is glaringly improbable or contrary to compelling inferences. Many cases may be cited for the propositions set out above. It is sufficient, for present purposes, to refer to the decision of the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
There is no closed list of circumstances which will, with sufficient cogency, compel the appellate court to conclude that the trial judge has fallen into error. The question will always be whether it appears that a mistake of fact of real gravity has occurred, producing a miscarriage of justice because it is sufficient to demonstrate that the trial judge has failed to use, or has clearly misused, the advantage in relation to the fact‑finding process which a trial judge enjoys.
The trial
The issue at trial was, as I have intimated, glaringly simple. The offence with which the appellant was charged involved keeping more dogs, which were not puppies aged three months or less, than was authorised by his licence. He had authority to keep 12 dogs on the premises; it was alleged that he had 13. It was that fact which had to be proved beyond reasonable doubt.
The trial in the Magistrates Court took place on Wednesday 3 March 2010. The date of the alleged offence was 26 February 2009. The prosecution notice issued on 16 July 2009. The appellant says that he consulted officers of the Legal Aid Commission with a view to getting legal assistance. By way of disclosure, the prosecution provided a statement of material facts on 5 October 2009. That document was sent to the Legal Aid Commission.
Just before the trial date, the prosecution sent the appellant a letter advising generally what the evidence was upon which they proposed to rely. The appellant showed me a letter dated 23 February 2010, but he says that he did not receive it until a few days before the trial date. He then consulted the Legal Aid Commission and was told that a duty lawyer would be available to look after him at the trial. In the meantime, he says, he was advised that he should get affidavits in relation to the issues to be litigated. He obtained some statutory declarations. They were all dated 2 March 2010.
One was from his former wife, from whom he is divorced. She says that, to the best of her knowledge, at the time of the ranger's inspection there were three puppies and 12 dogs there. She deals with other matters arising out of a statement of evidence made by the ranger, Mr O'Keefe, which had been served. The other statutory declarations were shorter.
One by a Ms McCowan, an enrolled nurse, said that she had three of the appellant's poodles at her kennels during February and March 2009. The appellant later said in evidence that he had done this to ensure that he did not exceed the number of dogs which he was authorised to keep at his kennels. Finally, there was a statutory declaration from one of the appellant's daughters, advising that he resided continuously at the premises where the kennels were maintained, a potential issue which did not, in fact, arise at the trial.
The duty lawyer from the Legal Aid Commission was apparently not present at the court on the trial date. The appellant felt that he was forced on, although he still wanted to be legally represented. He did not raise the difficulty with the magistrate when she gave him advice about the trial process. He says he did not know that he could obtain an adjournment.
He did not have his witnesses present. He just had the statutory declarations. At one stage, during his cross‑examination of Mr O'Keefe, the appellant did mention to her Honour the magistrate, the statutory declaration he had obtained from his ex‑wife confirming that he only had 12 adult dogs on the premises. Her Honour rightly advised him that he could not introduce that evidence in that way. The appellant told the court that his ex‑wife was not present because she had told him that she did not wish to come (ts 13 ‑ 14). The trial proceeded.
It is convenient at this stage to observe, in relation to ground 4, that in my view, in these circumstances the appellant fails to demonstrate any miscarriage of justice. Ground 4 should be dismissed.
There was only one substantive witness for the prosecution, Mr O'Keefe. His evidence was that he attended at the premises to inspect them and ensure compliance with the licence, at about 4 pm on 26 February 2009. The appellant was home and accompanied him on his inspection. Mr O'Keefe photographed the dogs in various enclosures and made notes of what he saw and what the appellant said to him. Other than notes of the conversation, the notes he made were of the breed of the dog, its colour, its apparent age, whether it was an adult or a pup, and if it was given a name, he noted the name.
The photographs are digital images. They were received in evidence as exhibit A. They are numbered 1 to 14A. As the witness identified in evidence the dogs which he said were shown in the various photographs, it appears that the photographs were held so that the appellant could see what the witness was indicating.
The first sheet of photographs were numbered 1 ‑ 4. Mr O'Keefe's evidence was that the photographs showed four separate dogs. Two were adults and two were puppies. They were black in colour.
The second sheet of photographs were numbered 5 ‑ 8. Mr O'Keefe's evidence was that there were four dogs shown, all adults and all cream or white in colour. One was rather distinctive because it had a red collar. It is evident that the dogs the subject of this group of photographs were in the one yard or enclosure.
Mr O'Keefe's evidence was that one dog was very timid. It would not come out of the sleeping enclosure or kennel. That is why, he said, the photograph which is exhibit A7 only shows three dogs in this particular enclosure. But his evidence was that there were four dogs there. The evidence is unclear as to whether all were featured in the photographs. But to this point the count would be five or six adult dogs.
The third sheet contains three photographs in which one can discern the animals depicted, and one photograph from which it is impossible to say what sort of animal is shown, or indeed whether there is any animal there. But Mr O'Keefe's evidence was that the photograph A9, which shows three dogs in one enclosure, showed three dogs which were classed as adults because they were four months old. They were black poodles.
Photograph A10, he said, showed a white or cream poodle puppy. The photograph A 11 is that which is so unclear as to be virtually useless. Mr O'Keefe said it showed a black adult poodle. The last photograph on this sheet, exhibit A12, shows a black dog, not a poodle, which Mr O'Keefe said in evidence he believed was an adult labrador.
The count of adult dogs to this point in time would therefore be 11 or 12 dogs. But as I say, there is the confusion about how many dogs were shown on the second sheet of photographs, and exhibit A11 is incapable of providing independent verification of Mr O'Keefe's evidence as to what it shows.
There are three photographs on the last sheet. One of them, exhibit A13, shows two dogs. I gather from Mr O'Keefe's evidence that one of those dogs was the dog shown in exhibit A12, which he said he thought at the time was a black labrador, but which, by reference to exhibit A13, he described as a rottweiler. The appellant's evidence was that it was a black mastiff.
The other dog shown, which on Mr O'Keefe's evidence, was the same dog in each photograph, was said to be a black poodle. Two of the photographs, exhibit A14 and exhibit A14 are again of such poor quality as to be virtually useless. But as I understand Mr O'Keefe's evidence, this sheet of photographs brought his count to 13 adult dogs.
The difficulty, of course, was that that conclusion was only supportable if one accepted his count as being accurate. The photographs were of such poor quality that they were incapable of independently verifying the accuracy of that count. Indeed, as I have indicated, there was confusion in the evidence about what the photographs, exhibits A5 ‑ A8, actually showed. There would appear to have been difficulty because the great majority of the dogs were either black or cream poodles, not distinctively cut, and, as I understand it, there were, on some occasions, more than one dog in the same enclosure.
However, Mr O'Keefe also gave in evidence that he spoke to the appellant and put to him that there were 13 adult dogs on the premises. He answered, 'Yes, I know. I am over by one.' The appellant went on to say that that had been the situation for a long time, 'I've just never been caught.'
The appellant attempted to cross‑examine Mr O'Keefe. Her Honour assisted as best she could. He denied that he had made the admissions attributable to him. The appellant put to Mr O'Keefe the sheet of photographs, exhibit A5 ‑ A8. He put to the witness that there were only three dogs in that particular enclosure. Mr O'Keefe said that there were four, although it is impossible to say that the dogs in this group of photographs were not, on some occasions, photographed twice.
Mr O'Keefe said that he remembered quite clearly that there was one dog which would not come out of the kennel. He conceded that one of the photographs was, 'so bad'. But he said, 'There was no doubt that the photographs I was taking was of an individual dog - but at the time, as I recall, there were four dogs within that kennel area' (ts 13).
Counsel re‑examined Mr O'Keefe. He asked him what he did with his notes. Mr O'Keefe said that as soon as he returned to his office, he typed out a statement of his evidence, and he had made a list of the dogs, which he also typed out (exhibit B). The witness's statement of evidence was tendered and received in evidence as exhibit C.
The statement contains quite extensive evidence of conversation between Mr O'Keefe and the appellant, particularly concerned with the appellant's home on the property and whether he resided there. That was not material to the prosecution and was not given in the evidence viva voce. The statement records the admissions said by Mr O'Keefe to have been made in relation to the subject of the prosecution. It refers to the fact that while the house was being inspected by an environmental health office of the City of Gosnells, he 'continued to photograph and document all dogs on the property'.
There is nothing to suggest that the appellant had any idea until he heard Mr O'Keefe's evidence‑in‑chief what the witness would say about what the photographs showed, although he would, of course, know, I presume, that the officer would give evidence that he had 13 adult dogs on the premises, in breach of the conditions of his licence.
Of course, the evidence in the form of the witness's written statement was inadmissible. Its content had not been put to Mr O'Keefe in cross‑examination as a prior inconsistent statement: Evidence Act 1906 (WA), s 21. Indeed, it was tendered as a prior consistent statement, no doubt to bolster Mr O'Keefe's credit, and there was simply no basis in law upon which that was permissible.
I have mentioned that Mr O'Keefe was the only prosecution witness as to the matters in issue in the proceedings. Another officer gave evidence of a formal kind, and then the only witness for the defence was the appellant himself. He referred to the photographs, exhibit A5 and A6, which he said showed the same dog. He said there were only three dogs in this area of the kennel, not four (ts 22).
His evidence was that, to avoid breaching the limit upon the number of dogs which would be on the premises, he had placed three dogs with another kennel owner. He said that the rangers inspected the property monthly. He knew this, and so, 'I will be an absolute idiot not to have a correct number of dogs when he was inspecting every month' (ts 24).
When cross‑examined, the appellant said that he had only received the photographs, exhibit A, just before the trial, a year after the alleged date of offence (ts 25). He was taken to the sheet which contains exhibit A5 ‑ A8, and he was reminded that Mr O'Keefe said there were four dogs depicted there. The appellant maintained that there were only three (ts 30).
The magistrate's decision
I have said that her Honour found the prosecution case proved beyond reasonable doubt, convicted the appellant and fined him $100, with costs of $2,500. Having heard the final observations of counsel for the prosecution and of the appellant, her Honour retired briefly before returning to the court to give (extempore) reasons for her decision. The transcript shows that the initial part of her Honour's observations was not recorded. But it is clear that nothing of substance has been omitted.
Her Honour's reasons are brief, but entirely adequate to expose her reasoning. Her Honour identified the issue of fact as being whether the appellant kept more than 12 adult dogs on his property on the relevant date. Her reasons are as follows:
After hearing the evidence of all the witnesses I found that the most compelling evidence was given by ranger Paul O'Keefe. He gave straightforward testimony to the court that was consistent with his statement made on 24 April 2009. I found Mr O'Keefe to have been meticulous in the manner in which he conducted an inspection of Mr De Domenico's kennel establishment on 26 February 2009.
It was unchallenged that he was accompanied by Mr De Domenico as he photographed each of the dogs, took handwritten notes about what he saw and heard, and then later the same day back at his office he reduced his notes to a typed statement, as shown in exhibit C. Mr O'Keefe gave evidence that the bundle of 15 photographs, marked exhibit A, he took on 26 February 2009, show a total of 13 adult dogs kept at the accused's approved kennel establishment.
He was consistent in his testimony including, in cross‑examination, that he was not mistaken about the number of dogs and that they could be differentiated. I found Mr O'Keefe to be a witness of truth, and I find that his experience as a ranger over 16 years confirmed my assessment of his evidence as being reliable.
Mr De Domenico attempted to present his evidence in a confident manner, but I found that he attempted to cloud the issue as to the number of adult dogs he kept by telling the court that the ranger had confused the breeds and colour and the issue as to whether some of the dogs were puppies or adults. He also referred to locations of the dogs in an attempt to cloud the issue. I found Mr De Domenico to have been an unreliable witness. His testimony was inconsistent with the evidence of Mr O'Keefe, whom I found to be reliable.
I find Mr De Domenico was mistaken in his recollection of which dogs were kept where on his property, as the incident occurred some 12 months ago and Mr De Domenico kept no records of each of the dogs he kept pursuant to his licence. I therefore find, based on the evidence, that the prosecution has proven beyond reasonable doubt all the elements of the offence, and I find Mr De Domenico guilty of the charge by keeping 13 adult dogs at his approved kennel establishment on the relevant date (ts 36 ‑ 37).
Unfortunately, I find myself unable to agree with her Honour's conclusion that the evidence established the presence of the greater number of dogs beyond reasonable doubt. I appreciate that there is, clearly, an element of demeanour involved in her decision to prefer the evidence of Mr O'Keefe to that of the appellant. It appears to be the case that her Honour rejected the evidence of the appellant, describing him as 'an unreliable witness', not because the appellant was thought to be a deliberately untruthful witness, but because his evidence was inconsistent with that given by Mr O'Keefe, whom her Honour found to be reliable.
In that regard, her Honour does not appear to have relied upon the accuracy of Mr O'Keefe's evidence of the admission made by the appellant that there were 13 dogs on the premises. I think, with respect, that her Honour was right not to do so. It would seem to be an extraordinary admission for the appellant to have made, in circumstances where he defended the prosecution upon the basis that there were only 12 dogs, that he had transferred dogs to another person's establishment so as not to exceed the permissible limit, and that he had sought to obtain the attendance, to give evidence, of his ex‑wife, specifically in relation to this issue.
Like her Honour the magistrate, I heard the appellant speak at some length. He has a pronounced Italian accent, and he was not always easy to understand. It would have been dangerous, I think, to regard the prosecution case as proved beyond reasonable doubt by the unrecorded oral admission in circumstances where it was certainly possible that Mr O'Keefe might genuinely have misheard what was said.
Her Honour's approach to the case took her to the much sounder basis to make a decision of fact as to the number of dogs present on the premises. She had regard to the evidence of the inspection by the ranger, who certainly attempted to proceed with care to photograph and record his observations. As to that, it is not clear upon what basis they could have been made available, but the handwritten notes that he took were certainly not adduced in evidence.
As to the typewritten statement, exhibit C, it made no record of the count made and the identification of individual dogs with particular photographs which were taken. I have said that, in any event, that document was inadmissible in evidence, and it is noteworthy, I think, that her Honour seems to have regarded the evidence of the witness O'Keefe as being 'consistent with his statement' which became exhibit C. That seems impermissibly to have been relied upon to bolster the credit of Mr O'Keefe.
Her Honour does not, in her reasons, advert to the different evidence given by Mr O'Keefe and the appellant as to whether the photographs, exhibit A5 ‑ A8, show three or four white or cream poodles. She merely says that the 15 photographs, exhibit A, 'show a total of 13 adult dogs'. In my view, the evidence was not open to support that conclusion beyond reasonable doubt simply upon the basis of the photographic evidence which, as I have said, was of poor quality.
As to the appellant's evidence, her Honour said, 'He attempted to cloud the issue as to the number of adult dogs' by his evidence that the ranger had confused the breeds and colour of the dogs, and as to whether some of the dogs were puppies or adults. I was not able to detect any significant disagreement as to whether particular dogs were properly recorded as adults or puppies. As to the breeds, although I repeat that the photographs, by themselves, are an unreliable guide, there is some indication of confusion as to the breeds. Mr O'Keefe admitted, in relation to one dog, that he had thought, at the time, that it was a Labrador and had recorded it as such, but that he was in error in that regard.
Finally, as to the colour of the dogs, it was, in my respectful opinion, a debate about nothing of substance. A breeder's description of a poodle as being brown in colour, as the appellant was inclined to insist, could apparently cover a range of colours which the inexpert eye might consider to be cream or even an off‑white. This debate, and the debate about the breed of one of the dogs, did not relate to the head count, and should not have been held to negatively impact upon the appellant's credibility in that regard.
These matters, in my respectful opinion, indicate that, upon her finding of the central fact in issue, her Honour the magistrate fell into error, effectively by failing to make proper use of her advantage as the trial judge, to decide an issue of fact against the appellant beyond reasonable doubt, when, in my opinion, doubt must remain. In my view, the issue of fact could be stated with deceptive simplicity, but its resolution required detailed and careful attention to the admissible evidence. Her Honour compounded the difficulty by having regard, as a central plank in her reasoning, to a body of inadmissible evidence as providing support to the credibility of the sole prosecution witness who testified about the issue.
In my opinion, there can be no question of a retrial under the CAA, s 14(1)(e). There can be no suggestion that any decision of the magistrate during the course of the trial wrongly deprived the prosecution of an opportunity to better present its case. The prosecution case was presented at its highest. In my opinion, it did not sustain a conclusion of guilt beyond reasonable doubt, and the proper outcome is to allow the appeal on grounds 1 ‑ 3, to quash the conviction, and to set aside the fine imposed and the order for costs which was made. Judgment of acquittal must be entered.
In view of that conclusion, there is no need for me to deal with the appellant's complaint about the award of the sum of $2,500 for the prosecution's costs. However, his ground of appeal against that order, which has now been set aside, in any event seemed to me to be without merit, and I would formally dismiss ground 5 in the notice of appeal.
Where the appellant's costs are concerned, he is, of course, by my decision, constituted a 'successful accused' within the meaning of the Official Prosecutions (Accused's Costs) Act 1973 (WA), this being an official prosecution within the meaning of that Act in that the respondent, Mr Mallon, was a public official, again within the meaning of that Act, acting in the prosecution in the course of his employment by the City of Gosnells. The appellant is therefore entitled to his costs, if any, incurred in respect of the appeal, and in respect of the proceedings at first instance in the Armadale Magistrates Court.
The term 'costs' is defined by s 4(1) of the Act to mean any expenses properly incurred by an accused in an official prosecution (in this case they would be disbursements) which are due and payable or paid by the accused to another. As I say, the appellant may have no such properly incurred expenses paid to another, but he is also entitled to recover any court fees which he might have been required to pay.
As any claim might require the judgment of a taxing officer, a registrar of this court, in relation to the reasonableness of any disbursement actually incurred, I propose, rather than deal with the matter myself, to simply make an order that the respondent shall pay to the appellant his costs of the appeal and the trial to be taxed. It will then be for the appellant to decide what, if any, application should be made to the taxing officer, in the ordinary way.
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