Ferguson v Reid
[2007] SASC 445
•17 December 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FERGUSON v REID
[2007] SASC 445
Judgment of The Honourable Justice Sulan
17 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - COSTS
Appeal against dismissal of charges and costs order - appellant, who was unrepresented, proceeded with private prosecution of respondent in the Magistrates Court - Magistrate dismissed all charges - Magistrate awarded costs to respondent on an indemnity basis in the amount of $30,000 - whether Magistrate erred in dismissing all charges - whether costs awarded manifestly excessive.
Held: Appeal against costs order allowed, quantum reduced to $18,000 - appeal dismissed on all other grounds.
Dog and Cat Management Act 1995 (SA) s 30, s 60; Supreme Court Civil Rules 2006 (SA) r 284, r 289; Magistrates Court Rules 1992 (SA) r 51.00, referred to.
Abram v Bank of New Zealand [1996] ATPR 42,340 (41-507); Ebner v Official Receiver in Bankruptcy (2000) 205 CLR 337; Moore-McQuillan v WorkCover Corporation SA [2007] SASC 219; Moore-McQuillan v Police (1998) 196 LSJS 488; Re JRL; ex parte CJL (1986) 161 CLR 342; SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996), applied.
Police v Konieczka [2006] SASC 183, considered.
FERGUSON v REID
[2007] SASC 445Magistrates Appeal
SULAN J: The appellant, Richard Ferguson, commenced a private action by complaint in the Magistrates Court of South Australia, alleging that the respondent, Mark Reid, committed 12 offences. The charge the subject of count 12 was withdrawn prior to trial. The appellant, who was unrepresented, conducted the prosecution of the remaining 11 charges against the respondent, who was represented by counsel. The complaint (as amended) is as follows:
The Complainant complains that Mark Reid, being a Dog Management Officers [sic] from the City of Charles Sturt:
1. on the 23rd day of August 2002, unlawfully possessed a dog being a Staffishire-X CONTRARY to section 41, part 1, of the Summary Offences Act, 1953.
2. on the 23rd day of August 2002, unlawfully possessed a dog being a Ridgeback-X CONTRARY to section 41, part 1, of the Summary Offences Act, 1953.
3. on the 23rd day of August 2002, illegally interfered with a motor vehicle at Wood Ave, Brompton CONTRARY to section 86A, part 1, of the Criminal Law Consolidation Act, 1935.
4. on the 23rd day of August 2002, was responsible for property damage to locks on a motor vehicle at Wood Ave, Brompton. Cost to replace the lock is $286.00. CONTRARY to section 85, part 3, of the Criminal Law Consolidation Act, 1935.
5. on the 23rd day of August 2002, was on premises at 33 Wood Ave, Brompton, for an unlawful purpose CONTRARY to section 17, part 1, of the Summary Offences Act, 1953.
6. on the 23rd day of August 2002, made false representation to police by informing them that he had the power to apprehend 2 dogs from a locked van at 33 Wood Ave, Brompton CONTRARY to section 62, part 1, paragraph (a), [sic] (i) of the Summary Offences Act, 1953.
7. on the 11rd [sic] day of October 2002, made false representation to police by reporting an alledged [sic] assult [sic] on the 23rd day of August 2002 CONTRARY to section 62, part 1, paragraph (b), of the Summary Offences Act, 1953.
8. on the 29th day of October 2003, without reasonable excuse disturbed Richard Ferguson by knocking at the door of a house at Wood Ave Brompton CONTRARY to section 50, of the Summary Offences Act, 1953.
9. on the 29th day of October 2003, was on premises at 33 Wood Ave. Brompton, for an unlawful purpose CONTRARY to section 17, part , of the Summary Offences Act, 1953.
10. on the 12th day of March 2004, without reasonable excuse, disturbed Richard Ferguson by knocking at the door at Wood Ave, Brompton CONTRARY to section 50, of the Summary Offences Act, 1953.
11 on the 12th day of March 2004, was on premises at 33 Wood Ave. Brompton, for an unlawful purpose CONTRARY to section 17, part 1, of the Summary Offences Act, 1953.
On 8 May 2007, the Magistrate dismissed all the charges against Mr Reid. Mr Reid applied for costs. After hearing submissions, the Magistrate ordered the appellant to pay costs to the respondent, on an indemnity basis, in the amount of $30,000.
The appellant complains that the Magistrate erred in dismissing the charges against the respondent. He further complains the order for costs is excessive.
Background
The appellant resided at Unit 1, 33 Wood Avenue, Brompton and was, for the purposes of the Dog and Cat Management Act 1995 (‘the Act’), the owner of (the person responsible for) two dogs kept at those premises, being a ‘Staffishire‑X’ and a ‘Ridgeback-X’.
Mr Reid was an authorised dog management officer, employed by the Council of the City of Charles Sturt (‘the Council’). The respondent’s immediate superior and supervisor was Mr Kingdom, who was also a dog management officer employed by the Council and the Team Leader of a team which included the respondent.
The events giving rise to the proceedings occurred on 23 August 2002. Issues arising from the events of 23 August have been the subject of other judicial proceedings in both the Magistrates Court and this Court and are discussed later in these reasons. The appellant was also involved in disputes with the Council over his dogs prior to 23 August 2002, however, the appellant and respondent had not met and the respondent was unaware of any disputes between the appellant and the Council prior to 23 August 2002.
On 23 August 2002, Mr Hartog, a civil construction worker employed by the Council, was carrying out construction work near the appellant’s residence on Wood Avenue. Between 8.00 am and 8.30 am that morning, Mr Hartog observed two dogs, later identified to be the two dogs owned by the appellant, roaming the footpath outside the appellant’s residence and behaving aggressively towards passer-bys, by barking, growling, snarling and bounding towards them. Mr Hartog contacted the Council and spoke to Mr Kingdom. Mr Kingdom subsequently attended the area in the company of the respondent, who was the dog management officer for that area.
Mr Kingdom and the respondent attended the appellant’s property in the company of police, as their review of various databases, files and records indicated that the owner of dogs at those premises had been involved in altercations with council officers who had attended the premises on prior occasions in relation to disturbances involving the dogs.
Mr Kindgom and Mr Reid, in the company of police, attended the appellant’s residence. There was no response, despite several knocks at the door and despite the officers announcing themselves to be police and council officers. Consequently, the officers left the premises. Mr Kingdom and the respondent went across the road to speak to Mr Hartog and the police officers resumed other duties.
Whilst speaking with Mr Hartog, Mr Kingdom and the respondent saw one of the dogs previously sighted, the Ridgeback-X, roaming freely in a public reserve. They attempted to catch the dog. They chased it to the rear of the appellant’s residence where they came upon the appellant.
Mr Kingdom introduced himself and the respondent to the appellant and explained what they were doing. Shortly after this, the appellant entered his unit from the rear door with his dog. Mr Kingdom and the respondent went to the front door and began knocking and asking the appellant to open the door. After a time, the appellant opened the door and pushed past Mr Kingdom and the respondent. The appellant was carrying the two dogs. He went to a van parked in the driveway, opened its side door, placed the dogs in the van, locked the side door and then left.
Mr Kingdom formed the opinion that the dogs should be seized and detained at the Animal Welfare League until action could be taken to rectify the appellant’s property so the dogs could be securely detained there. Mr Kingdom told this to the respondent and, at the same time, expressed concern for the welfare of the dogs inside the van, as it was a warm day.
Mr Kingdom believed that, as a result of the events that had occurred, the officers were permitted to seize the dogs. He perused the relevant sections of the Act. He telephoned his manager, Ms Hampton, to inform her of the situation. Ms Hampton asked Mr Kingdom to make enquiries of the Chief Executive Officer of the Dog and Cat Management Board, Mr Cartwright, to determine the requirements for seizure of the dogs under the Act. Mr Kingdom informed the respondent of the various instructions he received from Mr Cartwright and Mr Hampton. Mr Kingdom made arrangements for a Royal Automobile Association (‘RAA’) locksmith and the same police officers who had been present earlier that morning to attend the premises for the purpose of opening the van and seizing the dogs. After the locksmith opened the van, the respondent caught the dogs using a catchpole and placed them in the Council van in which he and Mr Kingdom had arrived.
In accordance with Mr Kingdom’s instructions, the respondent completed all necessary paperwork in relation to the seizure and deposited it in the appellant’s letterbox, as well as leaving a note on the doorstep, prior to leaving the appellant’s residence to transport the dogs to the Animal Welfare League.
For the sake of completeness, I note that the appellant met with Mr Kingdom and the respondent at the offices of the Council at about 2.30 pm on 23 August 2002, after returning home to find the dogs had been removed from his van. Following this meeting, the appellant attempted to assault Mr Kingdom but was prevented from doing so by Mr Kingdom and the respondent.
Related proceedings
As I have indicated, the events described above have been the subject of four previous judicial proceedings. It is convenient to outline the chronology and nature of the proceedings as certain findings made in these proceedings were, as will be observed, relied upon by the appellant in this appeal.
On 22 September 2003, Deputy Chief Magistrate Cannon delivered judgment in criminal proceedings brought by the Council against the appellant, who at that time called himself Richard Lee. The appellant had been charged with nine offences against the Act, arising out of the events of 23 August 2003. Dr Cannon DCM found the appellant guilty of three of the offences charged (counts one, two and four) and acquitted him of five of the charges. The remaining charge was withdrawn. The appellant appealed to this Court against the convictions.
On 11 December 2003, Martin J allowed the appeal in respect of counts two and four and quashed the convictions. He dismissed the appeal against the conviction recorded on the first count. In August 2004, the appellant then instituted criminal proceedings in the Magistrates Court against the respondent.
On 17 March 2005, a Magistrate determined an application by the respondent to have the complaint laid against him by the appellant permanently stayed on the basis that the complaint constituted an abuse of process. He granted the application in respect of counts one to six (inclusive) and dismissed the application on the remaining counts (seven to 11). The appellant appealed the decision to this Court.
On 30 June 2005, Duggan J allowed the appeal. For reasons that are not necessary to recount, he lifted the stay granted in respect of the first six counts and remitted the matter for trial before the Magistrates Court. The trial was conducted before another Magistrate. This appeal is from that decision.
Grounds of appeal
This appeal first came before me on 19 July 2007. As I have indicated, the substance of the appellant’s complaint was that the Magistrate erred in dismissing the charges and the order for costs was excessive. However, the appellant’s notice of appeal of 18 May 2007 failed to particularise any grounds of appeal and therefore failed to comply with r 284(2)(c) of the Supreme Court Civil Rules 2006 (‘the Rules’), which requires the notice of appeal to ‘state in detail the grounds of appeal’. On that basis, counsel for the respondent submitted the notice should be struck out. Counsel made further submissions seeking to have the entire appeal dismissed summarily. Counsel however conceded that, pursuant to r 289 of the Rules, I could grant the appellant permission to amend his notice of appeal to particularise the grounds upon which he brings this appeal.
The appellant appears in person. The extent to which a court is obliged to assist a self represented person will vary according to the circumstances of the case and the personal character of the unrepresented litigant. So much was recognised in Abram v Bank of New Zealand[1] by the Full Court of the Federal Court when it said:
What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[2]
[1] [1996] ATPR 42,340 (41-507).
[2] Ibid, 42,347.
The fact that the appellant is unrepresented does not mean he is exempt from complying with the rules of this Court. However, as Bleby J said in Moore-McQuillan v Police:[3]
[A] magistrate ... must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party's attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.[4]
[3] (1998) 196 LSJS 488.
[4] Ibid, 496-7.
Those remarks are apposite to the duties and obligations owed to self represented persons by all courts. This Court should, within boundaries, ensure a self represented person is not disadvantaged or denied the opportunity to present his or her case to the court simply as a result of failure to comply with procedural requirements. In my view, this is especially so when the substance of the self represented person’s complaint is apparent from materials that person provides to the court (notwithstanding that those materials are not provided in accordance with the Rules).
In this case, the substance of the appellant’s complaint is apparent from two written submissions, entitled ‘Appeal Submissions’ and ‘Apprehension of Bias’ respectively, which he handed up at the hearing on 19 July 2007. These documents were not previously provided to the Court or the respondent, contrary to the requirements of Practice Direction 6.3. Nevertheless, from these documents, I was able to discern 17 grounds upon which the appellant appeals, which I articulated as follows:
1.The Learned Magistrate erred in refusing to disqualify himself on the ground of apprehension of bias.
2.The Learned Magistrate erred in respect of findings of fact particularised in paragraphs 3 to 14 of the appellant’s written submissions entitled ‘Appeal Submissions’.
3.The Learned Magistrate erred in admitting the evidence of conversations between Bruce Kingdom, Ms Hampton and Mr Cartwright.
4.The Learned Magistrate erred in concluding that Mr Schmidt was a locksmith and in accepting the evidence of Mr Schmidt as reliable.
5.The Learned Magistrate erred in finding the conduct of Bruce Kingdom and Mark Reid was not unlawful.
6.The Learned Magistrate erred in concluding that the appellant threw punches at Bruce Kingdom.
7.The Learned Magistrate erred in concluding that Mark Reid did not make a false representation to the police.
8.The Learned Magistrate erred in permitting cross-examination of the appellant in respect of events relating to a trial in 1999.
9.The Learned Magistrate erred in awarding $30,000 costs against the appellant and in the alternative the amount ordered was excessive.
10.The Learned Magistrate erred in accepting the evidence of Mark Reid on the balance of probabilities.
11.The Learned Magistrate erred in accepting the evidence of Dirk Hartog that the dogs were observed wandering at large.
12.The Learned Magistrate erred in concluding that a belief of Mark Reid that he was acting lawfully was a mistake of fact.
13.The Learned Magistrate erred in accepting the evidence of Mark Reid about the temperature on the day in question.
14.The Learned Magistrate erred in concluding that the conduct of Mark Reid and Bruce Kingdom was authorised under the Dog and Cat Management Act 1995 (SA).
15.The Learned Magistrate erred in dismissing all charges against Mark Reid.
16.The Learned Magistrate erred in refusing the appellant an adjournment to call evidence about damage to his vehicle.
17.The Learned Magistrate erred in concluding that Mark Reid was authorised under the Dog and Cat Management Act 1995 (SA) to enter the premises of the appellant.
It is convenient to separate these grounds of appeal into the following, three categories: apprehended bias, costs and the dismissal of the charges. Ground one raises the issue of apprehended bias. Ground nine complains that the order for costs is excessive. The remaining grounds comprise complaints in respect of the conduct of the trial, admission of evidence, findings of fact and the application of law, which I collectively refer to as the grounds of appeal against the dismissal of the charges.
The appellant agreed with the proposed grounds of appeal. The matter was adjourned to 30 August 2007 to allow counsel for the respondent time to consider the 17 grounds of appeal together with the relevant transcripts and prepare written submissions. I also invited the appellant to submit further material, should he wish to do so, however, he indicated that he was content to rely on the two documents he had provided.
On 19 July 2007, I refused the respondent’s application for summary dismissal.
On 30 August 2007, I granted permission to the appellant to amend the notice of appeal to add the grounds of appeal set out above.[5]
[5] Supreme Court Civil Rules 2006 (SA) r 289.
Apprehended bias (Ground 1)
As I have indicated, the appellant provided the Court with a written submission entitled, Apprehension of Bias. That document lists a number of actions and statements made by the Magistrate during the course of the trial which, the appellant submits, show an apprehension of bias on the part of the Magistrate. The appellant’s primary complaint is that the Magistrate indicated to him that he is the prosecutor in the trial ‘not the victim’. He submitted that this demonstrates that the Magistrate had pre-judged Mr Reid as having committed no criminal offences against him. In addition, the appellant refers to certain directions and comments made by the Magistrate during the trial. In summary, the appellant complains that:
·the Magistrate’s indications as to the salient issues arising on each charge, so as to reject certain statements made by the appellant in his opening address;
·directions the Magistrate gave to the appellant regarding the manner in which the Court would receive evidence from him;
·instructions the Magistrate gave the appellant in relation to his obligation to provide materials upon which he intended to rely to defence counsel;
·warnings the Magistrate gave the appellant with respect to ensuring he presented all the evidence he deemed necessary to the prosecution before closing his case;
·rulings the Magistrate made in relation to applications for adjournments; and
·rulings of the Magistrate on certain objections made by the appellant to lines of inquiry pursued by defence counsel.
Annexed to the Apprehension of Bias document are two letters, dated 30 September and 14 November 2005 respectively, sent by the appellant to the presiding Magistrate and the Chief Magistrate complaining, in like terms to those detailed above, that the conduct of the trial evinces bias on the part of the presiding Magistrate. The letter of 30 September 2005 was sent to the Magistrate in support of an application that the Magistrate disqualify himself. The application was listed for 27 September 2006. The appellant did not attend the hearing. The application was dismissed.
The appellant’s complaint in respect of this ground is encapsulated in the Appeal Submissions document, paragraph 2 of which provides:
Bias was demonstrated by the Magistrate’s comments at the beginning of the trial, that I am the prosecutor, not the victim. The Magistrate indicated that the defendant was a victim of my prosecution. Bias was demonstrated during the first day of the proceedings in the way the Magistrate allowed the trial to be conducted. I was not permitted to properly make my submissions to the court and I was prevented from properly giving evidence. Bias was also demonstrated at the end of the trial, by comments that my prosecution was doomed to failure, was menacing and that the Supreme Court had given me false hope that my prosecution could succeed, referring to comments made by the Judge at the Stay of Proceedings Appeal.
The appellant did not speak to this ground of appeal.
I understand why the appellant complains about the Magistrate’s indication to him that he was not the victim in the trial. As indicated, the events of 23 August 2002 have given rise to a dispute between the appellant and the Council which has resulted in a number of proceedings. The appellant feels that he has been ‘victimised’ by the Council and is consequently incensed by the Magistrate’s indication to him that he is not a victim. While the reason for the appellant’s complaint is discernable, his complaint is without substance.
The appellant may feel that he is a victim, there may be little that will dissuade him from that view, however he instituted the proceedings against Mr Reid. The Magistrate’s comments demonstrate the Magistrate’s efforts to convey to the appellant the position in which he had placed himself as a result of commencing a private prosecution and the burdens and obligations he faced in that role.
Before turning to the appellant’s other complaints about the conduct of the trial, I note that all the complaints are infected with the appellant’s perception that he is the victim. For example, in the fourth paragraph of the Apprehension of Bias document the appellant impugns the Magistrate for indicating that he is required to provide material to the defence for the purpose of a voir dire because, ‘You [the Magistrate] are supposed to be impartial and not instruct or council [sic] the prosecution on how to conduct its defence’. The appellant’s confusion as to the role and responsibilities of the parties at trial in the prosecution he commenced is largely attributable to the complaints he now makes in relation to bias.
In respect of the appellant’s complaints about the manner in which he was required to make submissions and present evidence, the following exchange between himself and the Magistrate took place:
Mr Ferguson: I’d like to say that counts 1-6 I feel relate to whether or not Mark Reid had authority to enter my property and seize my dogs. The Supreme Court made the statement after two trials that Mark Reid has failed to establish authority to seize the dogs and if he didn’t have authority, he seized them unlawfully.
His Honour: Lets look at counts 1-6; you say that they relate to the defendant’s authority to seize the dogs. Only counts 1 and 2 actually relate to that aspect. Count 3 is illegal interference with a motor vehicle, count 4 is dealing with damage to property. Count 5, you allege that the defendant was on the premises for an unlawful purpose, and count 6, you allege that he made the false statement or representation to police by informing them that he had the power to apprehend the two dogs. So do you wish to expand on that at this stage, or do you wish to go straight to the evidence, or deal with counts 7-11?
Mr Ferguson: Your Honour, could I go straight to the evidence?
…
Mr Ferguson: On 23 August 2002 Mark Reid –
His Honour: Just a moment, we’re talking about evidence.
Mr Ferguson: All right, well in relation to the first charge I’d like to submit Mark Reid’s signed incident report as evidence.
His Honour: You have to give evidence; you’re making submissions from the bar table, that is not evidence. Your evidence is – do you wish to be sworn and give evidence?
Mr Ferguson: No, not at this stage, no. I wish to give Mark Reid’s statement as evidence, what he signed.
His Honour: Mr Ferguson, you have to prove the charges against this defendant.
Mr Ferguson: Well if Mark Reid’s admitted to the offences in a signed statement –
His Honour: You need to prove the charges against this defendant beyond reasonable doubt. You’re the complainant; you can give evidence yourself, personally, or call evidence. The evidence is to be sworn evidence.
Mr Ferguson: Mark Reid is not disputing that he took the dogs from the van, he’s admitting to it. Now it comes down to whether or not he had authority. If he didn’t have authority to take them, he’s done it unlawfully.
His Honour: And do you propose to give evidence on oath?
Mr Ferguson: Not at this stage, no.
His Honour: Do you propose to call evidence on oath?
Mr Ferguson: Yes.
His Honour: Who do you wish to call?
Mr: Ferguson: Mark Reid.
His Honour: He’s not compelled to give evidence, he’s the defendant.
Mr Ferguson: I’d like to submit Mark Reid’s signed incident report as evidence that he seized my dogs from my van.
These remarks from the Magistrate, about which the appellant now complains, were made with a view to assisting the appellant to understand the nature of the proceedings and the procedures under the law. The Magistrate informed the appellant of the broad issues each charge raised. The Magistrate informed the appellant that opening submissions cannot be used for the purpose of giving evidence, nor can evidence be given from the bar table. Furthermore, the Magistrate’s rulings on objections and decisions in relation to adjournments were within his discretion. No error has been demonstrated.
The appellant’s complaints provide no basis for concluding that the Magistrate was biased. Indeed, although I have dealt with each complaint in an effort to emphasise to the appellant that the Magistrate was endeavouring to assist him understand the nature of the trial and his role within it, the complaints made by the appellant are really complaints about particular warnings and rulings made by the Magistrate rather than grounds for appealing on the basis of apprehended bias.
In Re JRL; ex parte CJL[6] and Ebner v Official Receiver in Bankruptcy,[7] it was held that applications for disqualification should only be acceded to where it is clear that a reasonable apprehension of bias has been demonstrated.[8] The Magistrate was correct to dismiss the application that he disqualify himself. In my view, had the Magistrate done otherwise, it would have been ‘an abdication of judicial responsibility’.[9] In my view, the way in which the Magistrate conducted the trial was appropriate given the nature of the case before him, that is, a private prosecution being conducted by a person without legal training.
[6] (1986) 161 CLR 342.
[7] (2000) 205 CLR 337.
[8] See Moore-McQuillan v WorkCover Corporation SA [2007] SASC 219, [4].
[9] Ibid.
This ground of appeal fails.
Dismissal of the charges (Grounds 2-8 and 10-17)
Ground 2
In summary, the appellant submits that the Magistrate erred by accepting:
·the evidence relating to the temperature on 23 August 2002;
·that appropriate documentation was left at the appellant’s residence subsequent to the removal of his dogs;
·that the dogs sighted by Mr Hartog were the appellant’s dogs;
·Mr Kingdom and the respondent had reason to consider the appellant’s dogs dangerous after referring to relevant council records;
·Mr Kingdom’s evidence that he was conducting an investigation to determine the owner of dogs seen harassing pedestrians; and
·Mr Kingdom’s evidence as to his intentions and purposes in seizing the dogs from the vehicle located on the appellant’s residence.
I have reviewed the trial evidence. Mr Kindgom and Mr Schmidt as well as the respondent gave evidence that it was a warm day, estimating the temperature to be in the mid-20s.[10] Mr Kingdom testified that he instructed the respondent to complete the necessary paper work in relation to the seizure and deposit it in the appellant’s letterbox.[11] The respondent confirmed that he placed the requisite documents in the letterbox and also left a note on the appellant’s doorstep.[12] Mr Kingdom gave evidence that council records indicated the owner of dogs located at 33 Wood Avenue had been aggressive towards council officers on previous occasions in relation to incidents involving his dogs.[13] Mr Kingdom testified that he felt he was duty-bound, as a council officer, to seize the dogs to ensure public safety until the dogs could be securely detained at the appellant’s residence.[14] The totality of the evidence leads to the conclusion that the dogs sighted by Mr Hartog on the morning of the day in question belonged to the appellant.
[10] T 136, 274-8, 347.
[11] T 278-9.
[12] T 137-8.
[13] T 258-61.
[14] T 275.
The findings about which the appellant complains were open to the Magistrate and supported by the evidence. These findings were made on the basis of the testimony given by witnesses called by the defence whom the Magistrate had the advantage of seeing and hearing give evidence and whom he clearly regarded as reliable and credible witnesses.
Moreover, it must be borne in mind that this is an appeal against acquittal, albeit brought by an unrepresented prosecutor. In SA Police v Murphy,[15] Debelle J said:
… although s42 of the Magistrates Act provides a right of appeal to the prosecution from an acquittal by a magistrate, appellant courts are reluctant to interfere with a verdict of acquittal which is based upon a reasonable doubt ... When there is an error of law the court might be the more willing to interfere. When there is an appeal against an acquittal and that acquittal was based upon a reasonable doubt, the appellant court will not interfere except in a very unusual case. Plainly, where there is an appeal which involves a question of fact and the issues in the appeal depend on the view taken of conflicting testimony or an impression gained from an observation of witnesses, the appellant tribunal is at a distinct disadvantage.[16]
[15] (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996).
[16] SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996)
2-3 (citations omitted).
Having reviewed the evidence and having regard to the nature of this appeal, in my view, there is no basis for interference with the Magistrate’s findings in respect of factual matters. Ground two fails.
Grounds 3, 6, 7, 10, 11 and 13
These grounds of appeal complain that the Magistrate erred in admitting and accepting evidence from various witnesses about certain issues at trial. In summary, the appellant makes the following submissions in respect of each of these grounds.
·The Magistrate should not have permitted evidence to be given by Mr Kingdom and the respondent that Mr Kingdom contacted Ms Hampton and Mr Cartwright. These witnesses should have been called by the defence so as to permit cross-examination by the prosecution (ground three).
·The Magistrate erred in finding that the appellant ‘threw a punch’ at Mr Kingdom and thereby further erred in not finding the respondent guilty of the offence of making a false representation to police. The Magistrate erred in not accepting evidence to suggest the appellant was not physically capable of throwing a punch and in not properly scrutinising the evidence of witnesses called by the defence (grounds six and seven).
·The Magistrate erred in accepting the testimony of the respondent, on the balance of probabilities, that the respondent believed he was entitled to seize the dogs in the circumstances as attested by the respondent (ground 10).
·The Magistrate erred in finding that the dogs sighted by Mr Hartog were the appellant’s dogs. Mr Hartog described one of the dogs as a Mastiff, which is incongruent with the appearance of either of the appellant’s dogs (ground 11).
·The Magistrate erred in not accepting data evidence showing the temperature on 23 August 2007 to be below 20 degrees Celsius (ground 13).
The appellant’s submissions in respect of ground three are baseless. The defence is under no compulsion to call witnesses. The testimony given by Mr Kingdom and the respondent did not infringe the rules against hearsay as reliance was not placed on the truth of what Ms Hampton and Mr Cartwright said to Mr Kingdom.
In relation to grounds six and seven, the Magistrate dealt with the relevant evidence at paragraphs 116 to 126 of his judgment. In summary, the Magistrate adjudged the respondent and Mr Kingdom to be credible and reliable witnesses and thus accepted their evidence about the altercation that took place at the offices of the Council. He found that the appellant had failed to prove the falsity element of the charge to the requisite standard. The findings were open to him. The tendered note from the appellant’s physician did not suggest the appellant was incapable of attempting to ‘throw a punch’.
It was open to the Magistrate to accept the evidence of the respondent. Whether the respondent believed he was entitled to seize the dogs in the circumstances is dealt with later in these reasons.
For reasons I have already given, the Magistrate was right to conclude the dogs sighted by Mr Hartog belonged to the appellant.
The thrust of the appellant’s complaint on ground 13 is that the evidence of defence witnesses regarding the temperature on 23 August 2002 was accepted by the Magistrate despite the appellant tendering graphic data which did not accord with their testimony. A number of defence witnesses estimated the temperature on the day in question to be above 20 degrees Celsius. The appellant tendered a ‘weather graph’, which he had downloaded from the internet, indicating the temperature did not exceed 20 degrees Celsius that day. In my view, the discrepancy is of little consequence. Mr Kingdom testified that he felt it was a warm day and was thus concerned that the dogs may be locked in the van for an indefinite period. This was one reason why he endeavoured to determine whether he and the respondent had power under the Act to open the van and seize the dogs. Mr Kingdom did this by perusing the relevant sections of the Act and contacting his superiors. He then relayed their instructions and advice to the respondent. The temperature on 23 August had no bearing on either the enquiries of the council officers as to whether they had power to seize the dogs, or the Magistrate’s subsequent decision on that issue following the trial. The evidence in respect of temperature was simply proffered by the defence as one reason why Mr Kingdom took steps to remove the dogs from the van. The Magistrate found Mr Kingdom to be a truthful witness. The Magistrate accepted, as he was entitled to, Mr Kingdom’s evidence about the effect of the temperature on the dogs enclosed in the van as one reason why he sought to determine whether he could seize the dogs.
These grounds of appeal fail.
Grounds 4 and 16
The fourth ground of appeal is that Mr Schmidt, the RAA locksmith who attended the appellant’s residence to unlock the van, was not qualified to open the vehicle and occasioned damage to the lock. The appellant further complains that the Magistrate erred in accepting Mr Schmidt’s evidence as reliable, on the basis that:
Schmidt testified that the van had had [sic] two flat front tyres. The van was driven to the Police Station twice, Animal Welfare League and Charles Sturt Council over the next hour or so. If the van had two flat tyres this would not have been possible. This brings into question the reliability of Schmidt.
In respect of ground 16 the appellant complains that he was not allowed an adjournment to call evidence from a witness about the damage to the locks on his van. The appellant says:
This witness initially agreed to testify and had already appeared at court on several occasions. The witness informed me several days before he was to give evidence that he had been contacted and threatened by an inspector from Prospect Council. This inspector was a friend of Bruce Kingdom.
Mr Schmidt is a long-time employee of the RAA, who has received training and had many years experience in unlocking vehicles without damaging them. The submissions the appellant makes provide no basis to question the Magistrate’s assessment of Mr Schmidt as a witness. There is nothing to substantiate the allegations made in respect of the Magistrate’s refusal to grant an adjournment.
The submissions of the appellant in respect of these grounds afford no basis on which to interfere with the Magistrate’s findings. These grounds fail.
Ground 8
In the course of the hearing, the appellant submitted that:
The magistrate has relitigated matters from the trial in 1998. From this evidence he has concluded that there was past history of problems with my dogs regardless of the matter was dismissed in 1998. I was expected to defend these allegations again.
During the cross-examination of the appellant, the following exchange took place:
Q.There was also an incident in September 1998 wasn’t there.
A.Was there?
Q.Do you know the name Jessica Steppenlowski.
A.No.
Q.Weren’t you charged with something in relation to –
A.There was about 10 or 12 charges on it. I don’t recall what the other charges were. There was one in relation to ripping the heads of [sic] chickens. There was another one into my dog’s supposed to have killed some little girl’s puppy or something stupid like that. There was harassing people. There was attacking children. It was just off the planet and then he tried to have my dogs destroyed for that.
Q.Well that’s right isn’t it that ultimately the council sought a destruction order of that dog.
A.Yes, permanent disposal of the dogs, yes.
Q.You were made aware of the complaint in relation of the chickens, weren’t you.
A.No, I’ve never heard of that complaint before court. I never heard anything about it and I don’t even know the complainant was [sic].
Q.Did this prosecution did it actually [sic], was there actually a court hearing about it.
A.Yes, went to trial.
Q.It was trialed.
A.Yes.
Q.That was prosecuted by the Charles Sturt Council.
A.Yes, by your – company.
Q.I don’t have a company.
A.Your firm, the firm that you work for, Norman Waterhouse.
Q.They called evidence at that trial, did they.
A.I don’t know. There was witnesses called and it was a trial.
Q.Was there a witness, did the young boy give evidence.
A.No, didn’t even attend, no.
Q.Well did his aunty give evidence.
A.Yes, and his was ruled as being hysterical.
Q.And what about the lady, you gave some evidence about the chickens.
A.No-one gave any evidence about any chickens. There was a complaint alleged, but there was no evidence, no statements, no nothing. Just alleged complaints that you’ve decided to take me to court for.
Q.Okay, did you ever receive any statements about that.
A.No.
Q.Just an allegation on the summons.
A.On the summons, yes, that I killed 10 chickens or something or whatever it was.
Q.Are the chickens in your area.
A.Not that I know of. There’s foxes in the area. I feel like I’m being retried over this again.
Q.I’m simply asking you if you’re aware of a number of complaints that have been –
A.Well, why don’t you just get the documents out. You get the summons from the last court case. There’s the complaints and I’m not guilty and yet, so why do you have to go over this?
Q.I mean what I’m putting to you is this.
HIS HONOUR: Don’t become argumentative, Mr Floreani.
MR FLOREANI: No.
HIS HONOUR: It will be much easier and it will be quicker if you simply answer the questions.
XXN.
Q.All right so you are aware that other people have brought or made complaints about your dogs?
HIS HONOUR: That’s not a fair question. So far you have suggested to him that two persons have made the complaint.
MR FLOREANI: Yes.
HIS HONOUR: And you are limited I’d suggest to that. Are you aware that two persons have made a complaint against you. Not the persons at large have made complaints against you, unless you wish to put some other incidents to him.
In pursuing this line of cross-examination, defence counsel was endeavouring to establish that complaints about the appellant’s dogs have been made in the past and he may harbour resentment towards council officers as a result. The Magistrate carefully scrutinised the evidence. The charges from a previous trial were not, as the appellant puts it, “relitigated”. It was entirely appropriate for the Magistrate to permit cross-examination of the appellant in relation to the previous trial in which he was the defendant for these purposes. This ground fails.
Grounds 5, 12, 14 and 17
These grounds complain that the Magistrate erred in finding the conduct of the respondent on 23 August 2002 was lawful, or, if unlawful, excused by defences available pursuant to statute and at common law.
In his judgment of 8 May 2007, the Magistrate concluded:
… whether pursuant to the provisions of Section 30(2)(d) or Section 60(1)(b) of the Act [the Act], I find that in all the circumstances the seizure and the obtaining of possession of the dogs by Reid was authorised and lawful, carried out whilst acting lawfully in the exercise of his duties, powers and functions under that Act. Reid was in my view, at all relevant times, acting in good faith. He believed his actions were lawful by reason of the directions and approval given to him by his supervisor, Kingdom, and whilst acting in the presence and apparent approval of the police officers.
Section 30 of the Act provides:
(1)A dog management officer may (subject to any conditions of the appointment of the officer) for the purposes of the administration or enforcement of this Act—
(a) subject to subsection (2), enter and inspect any place or vehicle and use such force as may be reasonably necessary to gain entry; or
(b) require a person to produce a dog in the person's possession or control for inspection; or
(c) require a person who has been issued a certificate or document under this Act, or who is required to keep records under this Act, to produce the certificate, document or records for inspection; or
(ca) require a person who owns or is responsible for the control of a dangerous dog or a dog of a prescribed breed to produce evidence that the dog is desexed; or
(d) require a person who the officer reasonably suspects has committed, is committing or is about to commit, an offence against this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity.
(2)A dog management officer cannot exercise the power conferred by subsection (1)(a) except—
(a) with the consent of the owner or occupier of the place or the owner or person in charge of the vehicle; or
(b) on the authority of a warrant issued by a justice; or
(c) to seize a dog found wandering at large; or
(d) to seize a dog under this Act in circumstances in which the dog management officer believes on reasonable grounds that urgent action is required.
(3) […]
(4) […]
(5) In the exercise of powers under this Act, a dog management officer may be assisted by such persons as the officer considers necessary in the circumstances.
Section 60(1) of the Act provides:
(1)A dog management officer may seize and detain a dog in any of the following circumstances:
(a) if the dog is wandering at large;
(b) if the officer reasonably believes it necessary to seize the dog in order to prevent or stop the dog attacking, harassing or chasing a person or an animal or bird owned by or in the charge of a person (whether or not actual injury has been or may be caused);
(c) if the officer reasonably believes that the dog is unduly dangerous;
(d) if the officer reasonably believes it necessary to detain the dog in order to ensure that an order under this Act for the destruction or disposal of the dog is carried out.
The appellant relied on the following passage from the 22 September 2003 judgment of Dr Cannon DCM to demonstrate that the respondent acted unlawfully in seizing his dogs from the van:
It is too long a bow to suggest at that time [when the dogs were locked in the van] it was necessary to seize the dog to prevent it from attacking, harassing or chasing an animal or person or bird owned by or in charge of a person and I don’t also believe that it is made out that the dog was unduly dangerous. It is on the margin but not made out for the purposes of s.60. I am not criticising the Dog Management Officers at all. I think they were presented with a difficult circumstance and a highly uncooperative owner [17]
[17] City of Charles Sturt v Richard Lee (Unreported, Magistrates Court of South Australia, Adelaide,
Cannon DCM, 22 September 2003) [17].
In this passage, Dr Cannon DCM is dealing with whether or not it was actually necessary to seize the dogs for a purpose stipulated under s 60(1) of the Act. That is a different question to whether the respondent reasonably believed it necessary to seize the dogs on one (or more) of the grounds provided in s 60(1). Provided the respondent ‘reasonably believed’ it was necessary to seize the dogs for any one or more of the reasons under ss 60(1)(b)-(d), the respondent acted with lawful authority, notwithstanding that a court may later decide (as did Dr Cannon DCM) that it was not actually necessary to seize the dogs for a purpose prescribed under s 60(1).
The Magistrate’s judgment is not inconsistent with that of Dr Cannon DCM because it does not suggest that the seizure was actually necessary. The Magistrate’s findings are limited to the question of whether the respondent reasonably believed the seizure necessary. In this regard he said:
I am of the view that as the dogs had been ‘wandering at large’, had been seen ‘attacking, harassing or chasing a person’ and officers Kingdom and Reid reasonably believed that the dogs were ‘unduly dangerous’, Reid was entitled to seize the dogs under Section 60 ‘in order to prevent or stop [them] from attacking, harassing or chasing a person’. I find that officers Kingdom and Reid reasonably believed that it was necessary to seize the dogs pursuant to Section 60(1)(b) of the Act. I do not propose to embark upon an exercise in semantics about the words ‘prevent or stop’. They must be given their literal and natural meaning, particularly in light of the aims and objects of the Act. To prevent something is to keep it from occurring. In the context of this Act, it is my view that the word ‘prevent’ has a wider meaning than just in the sense of an immediate remedy or cure. It must have been intended to be used in a prospective sense so as to preventing [sic] something from happening in the future or from reoccurring. To prevent a course of conduct by someone or something is to ‘stop, keep or hinder’ that person or thing from doing the thing in question again. (citations omitted)
The respondent acted lawfully, pursuant to s 60(1)(b) of the Act, in seizing the dogs.
In any event, in opening the appellant’s van with the aid of Mr Schmidt and in the presence of police officers, the respondent (in accordance with the directions of his superior) entered the vehicle, using the force (and assistance) reasonably required, to seize dogs in circumstances which the respondent believed required urgent action. In my view, the evidence shows that, given the behaviour of the appellant leading up to the seizure and for the safety of both the community and the dogs, the respondent’s belief was reasonable. Therefore, in the circumstances, I find the respondent acted with lawful authority, pursuant to s 30(2)(d) of the Act, in entering the appellant’s vehicle and seizing the dogs.
Ground 15
I have already indicated that the conduct of the respondent in relation to the relevant events of 23 August 2002 was authorised under the Act. It follows that the Magistrate did not err in dismissing the first five charges of the complaint.
Without going into the details of the sixth and seventh charges, it is clear from the evidence that, even if certain representations the respondent made to the police were false, the respondent did not make them knowingly.
The actions of the respondent alleged as the basis for the remaining charges were taken by the respondent in the course of his duties as a dog management officer; they provide no basis for the imposition of criminal liability.
This ground fails.
Indemnity costs (Ground 9)
The appellant was ordered to pay costs on an indemnity basis to the respondent in the sum of $30,000.
Counsel for the respondent submitted to the Magistrate that the costs due to the respondent, calculated in accordance with the First Schedule to the Magistrates Court Rules 1992,[18] were $7,000, but that the actual costs expended by the respondent in his defence were in the amount of $45,575.56. The defence sought costs on a full indemnity basis.
[18] See Magistrates Court Rules 1992 (SA) r 51.00.
In awarding costs to the respondent on an indemnity (but not full indemnity) basis, the Magistrate said:
Mr Ferguson was warned on a number of occasions by myself initially at the commencement of this trial and also by other judicial officers before me in regard to the risks of this prosecution. Nevertheless, Mr Ferguson took no heed of the warnings and proceeded with the prosecution relentlessly.
In the course of proceedings before me and as shown in the transcript, Mr Ferguson admitted that the prosecution against Mr Reid was an act of retaliation and revenge by him. It was for those reasons that Mr Ferguson himself instituted the complaint for the various offences under the Dog and Cat Management Act and other Acts.
Having given total regard to all of the issues and arguments before me, including the evidence, I have no hesitation in finding that the prosecution by Mr Ferguson in this case was mischievous, vexatious and unfounded.
In Police v Konieczka,[19] Duggan J discussed the principles applicable to scale costs awards in the Magistrates Court. In that case, the responded was tried on a charge of assaulting his wife. He was acquitted on the basis that the allegations against him were deliberate fabrications. The trial was completed within one day. The proceedings had previously been adjourned on the application of the prosecution. The respondent applied for costs in the sum of $17,990. The Magistrate awarded costs in the sum of $12,000.
[19] [2006] SASC 183.
There was no dispute that the respondent was entitled to an award of costs, however, the appellant submitted the quantum ordered by the Magistrate was too high. The respondent cross-appealed. He contended that costs should have been awarded on a full indemnity basis. Duggan J dismissed the cross appeal, finding no basis on which to interfere with the Magistrate’s exercise of discretion not to award full indemnity costs. Having considered the history of the proceedings in the Magistrates Court, Duggan J took the view that, while it was open to the Magistrate to make an award of costs higher than the scale, the award was excessive. His Honour reduced the quantum to $7,000.
In the present case, the respondent does not submit that costs should have been awarded on a full indemnity basis. The respondent further concedes that the costs order of the Magistrate may be set aside if this Court finds it to be manifestly excessive in the circumstances.
While it cannot be said that the reasons given by the Magistrate for awarding costs on an indemnity basis are unsound, in my view, the costs order made against the appellant was excessive. The appellant was unrepresented. The appellant genuinely believed the respondent had acted unlawfully in seizing his dogs. The appellant did fail to attend a scheduled hearing, however, the proceedings below were not significantly protracted or repeatedly frustrated by his actions. Although the appellant may have been motivated by frustration and some feeling of revenge to right what he considered to have been a wrong perpetrated upon him, I accept that he also genuinely believed the conduct of the respondent had been unlawful. The award of full indemnity costs is not reasonable. Nevertheless, the respondent has been put to significant cost and inconvenience by the appellant pursuing the prosecution after he was cautioned of the risks of continuing the litigation.
The question is whether I should refer the determination of quantum back to the Magistrate. The respondent relies upon an affidavit of his solicitor, Paul St Leger Kelly, which was tendered to the Magistrate, in which the deponent states that he has calculated the costs due to the respondent for the trial, in accordance with the First Schedule of the Magistrates Court Rules 1992, at $7,000. The actual costs paid by the respondent to his solicitors totalled $45,575.56. No detailed break down of those costs has been provided. There were numerous adjournments in the proceedings before the Magistrates Court over a period commencing from about 9 December 2004 until the trial commenced on 17 August 2005. The evidence and addresses were completed on 24 October 2006 and judgment was delivered on 8 May 2007. The time taken during that period for hearing evidence and submissions was approximately four days. It is unfortunate that the proceedings were protracted as a result of numerous adjournments.
It would be a difficult and time-consuming task to ascertain the exact number of adjournments and the reasons for them, although it appears a number were due to the non-appearance of the appellant. I consider no good purpose is to be served by this Court or the Magistrates Court embarking upon yet another lengthy exercise of taxing costs.
It is desirable that this litigation be brought to finality. It has been lengthy and protracted. I propose to take a broad-brush approach to costs. I consider a fair figure to award in this case is $18,000.
Conclusion
The appeal against the costs order imposed by the Magistrate is allowed. The order of the Magistrate is set aside and I order that the appellant pay the respondent’s costs of the trial in the Magistrates Court, fixed at $18,000. The remaining grounds of appeal are dismissed.
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