Elliott v Weiss - [2001] ACTSC 127

IN THE SUPREME COURT OF THE     )
  )          No. SCA 68 of 2001
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:PAMELA ELLIOT
Appellant

AND:DARYL BENEDICT WEISS
Respondent

No. SCA 69 of 2001
BETWEEN:NATHAN ELLIOTT
Appellant

AND:DARYL BENEDICT WEISS
Respondent

C O R R I G E N D U M

Amendments to Reasons for Judgment dated 20 December 2001.

Page 12 [32]: Delete third and fourth sentences and substitute:

The appeal by Nathan Elliott against penalty for the offence of being an unregistered keeper of a dog is dismissed and the penalty and order of the Magistrate in that regard is confirmed. The appeal by Nathan Elliott against penalty for the offence of being the keeper of a dog by reason of which a person reasonably feared that the dog was about to attack him or her is allowed.

Amendment to terms of orders accompanying Reasons for Judgment.

Delete orders 2 and 3 and substitute:

The appeal by Nathan Elliott against penalty for the offence of being an unregistered keeper of a dog be dismissed and the penalty of a fine of $75 and the order that the appellant pay the respondent’s costs of $25 be confirmed.
The appeal by Nathan Elliott against penalty for the offence of being the keeper of a dog by reason of which a person reasonably feared that the dog was about to attack him or her be allowed, the penalty of the Magistrate be set aside and in lieu thereof sentence be deferred upon Nathan Elliott entering into a recognizance, self in the sum of $1,000, without surety, to be of good behaviour for a period of 12 months and further conditioned upon his taking the bitch Indiana to the State of Queensland within 14 days of her release to him, there to keep her, or cause her to be kept, and not to bring her again into the Australian Capital Territory.

Add order 5:

The recognizance entered into by Nathan Elliott on 21 December 2001 be sufficient compliance with order 3 above.
Ann Cooper
Associate to the Chief Justice
19 February 2002

Pamela Elliott v Daryl Benedict Weiss
Nathan Elliott v Daryl Benedict Weiss
[2001] ACTSC 127 (20 December 2001)

CATCHWORDS

LIABILITY FOR ANIMALS – Dog Control Act 1975 – liability of keeper of dog – who is keeper? – appeal against order for destruction of dog – whether culpability of animal can be a factor – objective danger presented by dog not to be confused with conduct of keeper in failing to comply with Act.

Dog Control Act 1975, ss 19, 25
Magistrates Court Act 1930, s 2143
Crimes Act 1900, s 556A

Alexander v R (1981) 145 CLR 395

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 68 of 2001
No. SCA 69 of 2001

Judge: Miles CJ
Supreme Court of the ACT
Date: 20 December 2001

IN THE SUPREME COURT OF THE )
) No. SCA 68 of 2001

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] ACTSC 127
Decision Date: 20 December 2001

CaseChat Overview and Summary

The case of Elliott v Weiss involves an appeal against the decisions of the Magistrates Court, where the appellants, Nathan Elliott and Pamela Elliott, were convicted under the Dog Control Act 1975 (the Act) of various dog-related offences. Pamela Elliott was convicted of three charges: being a keeper of a dog that was not registered, being the keeper of a dog by reason of which a person reasonably feared the dog was about to attack, and being a keeper of a dog that attacked a domestic animal. Nathan Elliott pleaded guilty to being the keeper of a dog that was not registered and being the keeper of a dog by reason of which a person reasonably feared the dog was about to attack. Both appellants appealed against their respective convictions and penalties imposed by the Magistrate, as well as the order for the destruction of the dogs involved.

The legal issues before the court were the validity of the convictions under the Act and the appropriateness of the penalties and orders imposed by the Magistrate. The court had to determine whether the evidence presented was sufficient to uphold the convictions, whether the penalties were commensurate with the offences, and whether the order for the destruction of the dogs was justified. The court also needed to consider whether the appellants' rights to a fair trial and the proportionality of the penalties and orders were respected.

The court found that Pamela Elliott's appeals against her convictions were valid and set aside all her convictions, penalties, and orders, dismissing the informations. The court held that the evidence was not sufficient to uphold the convictions against Pamela Elliott. Regarding Nathan Elliott's appeals, the court dismissed the appeal against the penalties for being the keeper of an unregistered dog and the keeper of a dog that caused a person to reasonably fear an attack. However, the court allowed the appeal against the penalty for being the keeper of a dog that attacked a domestic animal, setting aside the penalty and imposing a recognizance in lieu thereof. The order for the destruction of the dog Indiana was also set aside. The court reasoned that while the evidence supported Nathan Elliott's convictions, the penalties imposed by the Magistrate were excessive, and the order for destruction was not justified.

In conclusion, the appeals of both Pamela Elliott and Nathan Elliott were partially allowed and dismissed. Pamela Elliott's appeals against her convictions were allowed, and all her convictions, penalties, and orders were set aside. Nathan Elliott's appeals against the penalties for certain offences were dismissed, but his appeal against the penalty for the offence of being the keeper of a dog that attacked a domestic animal was allowed, with the penalty being set aside and a recognizance imposed instead. Additionally, the order for the destruction of the dog Indiana was set aside. The court's decision reflects a careful consideration of the evidence, the application of the Act, and the principles of fairness and proportionality in sentencing.

Orders

Orders of the court

The appeals by Pamela Elliott against her convictions be allowed, the convictions, penalties and orders of the Magistrate be set aside and the informations be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Amendments to Reasons for Judgment dated 20 December 2001. Amendment to terms of orders accompanying Reasons for Judgment. The appeal by Nathan Elliott against penalty for the offence of being an unregistered keeper of a dog be dismissed and the penalty of a fine of $75 and the order that the appellant pay the respondent’s costs of $25 be confirmed. The appeal by Nathan Elliott against penalty for the offence of being the keeper of a dog by reason of which a person reasonably feared that the dog was about to attack him or her be allowed, the penalty of the Magistrate be set aside and in lieu thereof sentence be deferred upon Nathan Elliott entering into a recognizance, self in the sum of $1,000, without surety, to be of good behaviour for a period of 12 months and further conditioned upon his taking the bitch Indiana to the State of Queensland within 14 days of her release to him, there to keep her, or cause her to be kept, and not to bring her again into the Australian Capital Territory. The recognizance entered into by Nathan Elliott on 21 December 2001 be sufficient compliance with order 3 above.Ann CooperAssociate to the Chief Justice19 February 2002 The appeals by Pamela Elliott against her convictions be allowed, the convictions, penalties and orders of the Magistrate be set aside and the informations be dismissed. The appeals by Nathan Elliott against penalty for the offences of being the keeper of a dog that was not registered and being the keeper of a dog by reason of which a person reasonably feared that the dog was about to attack him or her be dismissed and the penalties and orders of the Magistrate in that respect be confirmed. The appeal by Nathan Elliott against the penalty for being the keeper of a dog which attacked a (domestic) animal be allowed, the penalty of the Magistrate be set aside and in lieu thereof sentence be deferred upon Nathan Elliott entering into a recognizance, self in the sum of $1,000, without surety, to be of good behaviour for a period of 12 months and further conditioned upon his taking the bitch Indiana to the State of Queensland within 14 days of her release to him, there to keep her, or cause her to be kept, and not to bring her again into the Australian Capital Territory. The order of the Magistrate that Indiana be destroyed be also set aside. These are appeals from the Magistrates Court heard in succession against their common background of facts and the application of the Dog Control Act 1975 (the Act). Pamela Elliott pleaded not guilty to three summary charges. They were, (1), being a keeper of a dog that was not registered, contrary to s 19(1)(a) of the Act, (2), being the keeper of a dog by reason of the behaviour of which a person reasonably feared that the dog was about to attack him or her contrary to s 25(1)(b) of the Act and, (3), being a keeper of a dog which attacked a (domestic) animal contrary to s 25(1)(c) of the Act. The dog in question in Pamela Elliott’s case is Hodesh. All offences were alleged to have occurred on 5 April 2001. Ms Elliott appeals against all three convictions and an order under s 25(4) of the Act that the dog be destroyed. Nathan Elliott pleaded guilty to being the keeper of a dog that was not registered and also to being the keeper of a dog by reason of the behaviour which a person reasonably feared that the dog was about to attack him or her. Nathan Elliott appeals against the penalties imposed by the Magistrate and also an order that the dog be destroyed. The dog here is Indiana.

Ratio Decidendi

Legal Principle Established

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