Eastwood v Corporation of the City of Noarlunga No. Scgrg-97-1136 Judgment No. S6405

[1997] SASC 6405

EASTWOOD v CORPORATION of the CITY OF NOARLUNGA

Magistrates Appeal

Millhouse J

The appellant has for nine years or more owned a dog, a Rottweiler, "Tyson" by name.  He has Tyson to guard his property and for companionship.  A little before he got the dog he had some things stolen.  Since he has had Tyson with him nothing has been stolen.

The appellant moved to Hackham West over 12 months ago and Tyson went too.  The appellant was in touch with ETSA about reading the meter.  He told them had a dog.  A day was arranged for someone from ETSA to call.  Tyson was tied up for that day.  No-one came.  Several weeks later Mr Darryl Greenham, working for ETSA, did call but without the appellant knowing that he was coming.  Mr Greenham had a notice to deliver personally, if he could, to the appellant.  The appellant, though, was not home. Mr Greenham saw the notice on the front gate, "Warning.  Guard Dog.  Do not enter."  The gate, from an exhibited photograph, is a solid one, not much under 2m high, I should think.  Mr Greenham rattled the gate. Nothing happened.  He opened it and went to the front door.  He saw the meter box nearby.  Following normal procedure, he read the meter.  He turned to leave.  Tyson was behind him.  It seems that Tyson did not want Mr Greenham to leave.  He attacked Mr Greenham as he was escaping and inflicted nasty injuries which sent Mr Greenham to hospital.

As a result the appellant was prosecuted.  The first count:-

"On the 16th day of December 1996 was the person who owned or was responsible for the control of a dog which dog attacked a person namely Mr Darryl Greenham at 15 Valleyfair Road Hackham West.

Particulars:

Mr Greenham an Electricity Trust of South Australia Meter Reader was attacked by a dog as he was about to leave the property having completed his duties of reading the meter.
Contrary to Section 43(1)2 Dog and Cat Management Act."

The appellant pleaded not guilty but was convicted and fined.  The appeal is from this conviction.

There were also two counts (I can't work out why there were two counts - they look to be identical) of having an unregistered dog.  The appellant pleaded guilty to these and was fined.  He does not appeal over them.

Section 43(1)2:

"       Any person who owns or is responsible for the control of a dog is guilty of an offence in any of the circumstances set out in column 1 of the table below ...........

2.  If the dog attacks, harasses or chases or otherwise endangers the health of a person or an animal or bird owned by or in the charge of some other person (whether or not actual injury is caused).

Defence
It is a defence to a charge of an offence in these circumstances if it is proved that the dog was being genuinely used in the reasonable defence of a person or property."

The defendant argued at the hearing in the Magistrates Court that Tyson "was being genuinely used in the reasonable defence of ...... property."

The learned magistrate rejected the defence, finding that Tyson was not being genuinely used in the defence of property, the appellant had him for companionship as well.  His Honour reasoned that because the appellant had no trouble for nine years with theft, he did not need a guard dog.  With respect, I would have thought the reverse.  The proof of the pudding is in the eating: the appellant had had no trouble because he did have Tyson.  On the balance of probabilities I think there was a genuine use.

The magistrate also reasoned that the appellant could have locked the shed in which he kept valuable things.  The shed was not locked because Tyson used it for shelter.  There is a photograph on the file which shews the shed at the end of a driveway down the side of the house.  On the driveway are a motorbike, motor car and boat.  I doubt if all could be locked in the shed anyway.  The learned magistrate thought it not reasonable to have the dog to defend the property.  The appellant could have found other ways.  He seems to have thought that because it was not necessary to defend the property by having the dog it was unreasonable to have the dog.  Mr Michael Boylan for the appellant argued that it is fallacious to equate necessity and reasonableness.  I think he is correct.

On the undisputed facts, the defence under s43(1)2 is made out. Tyson "was being genuinely used in the reasonable defence of ...... property".

I pause to mention that I should have thought that the appellant could have been charged under s43(1)3.  Section 43(1)3 does not have any defence.  It simply reads:

"   If the dog is on premises and causes injury to a person or property of a person lawfully entering those premises."

The prosecution may have been on stronger ground under 3.  However they chose not to lay the complaint in that way and that is that.

At the beginning of the hearing Mr Boylan applied to amend the Notice of Appeal to include the ground:-

1. The Learned Special Magistrate erred in failing to
   consider and find that the general defence pursuant to s.86 of the Dog and Cat Management Act 1995 had been made out."

Apparently s86 was not brought to the attention of the learned magistrate. Certainly he does not mention it in his Reasons.

I hesitated to allow the amendment: it would mean raising an argument on appeal not taken in the Court below.  Mr Boylan argued persuasively that any defence open remained open even if not previously raised.  I was saved from having to make a decision.  Mr Michael Doherty for the respondent generously did not oppose the amendment - subject to the question of costs which I shall have to decide after hearing counsel again.  I allowed the amendment.

Section 86:-

1. It is a defence to a charge of an offence against this Act if it is proved -

(a)     that the offence was not committed intentionally and did
not result from any failure on the part of the defendant to take
reasonable care to avoid the commission of the offence; ......."

Mr Doherty agreed that the appellant had had no intention to commit an offence.  Did what happened, then, result from a "failure" on his part "to take reasonable care to avoid the commission of an offence"?

It is common ground that  the appellant had told ETSA he had a dog.  He and ETSA made the arrangement that Tyson would be tied up when the ETSA man was to call.  The appellant did not know Mr Greenham was coming.      Mr Greenham was saddled, through his employer, with the vicarious knowledge of Tyson's presence.   The appellant had the strong warning on the gate.  Mr Doherty was driven to arguing that as well the gate should have been locked.  That would mean, as I put to Mr Doherty, trying to save people from themselves.  Quite unreasonable in my view.  The notice should be quite sufficient.  Mr Doherty suggested it might have been a child calling to sell lollies.  Well, the gate is a high one and from the photograph, would not be easy for a child to open.  Mr Doherty said the person wanting to come in may have been illiterate.  With respect to Mr Doherty his examples were far fetched.

The appellant may have committed other offences. For example under Regulation 8 he may have had an obligation to notify the council that he had a guard dog on the premises. However, relevant to this appeal, he was charged only under s43(1)2. He made out the defence under that provision. He also made out the general defence under s86.

The appeal is allowed.  The conviction set aside.  I shall hear counsel as to the Orders I should make.