Ferguson v Reid - [2005] SASC 240

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
FERGUSON v REID
Judgment of The Honourable Justice Duggan
30 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - ORDERS GENERALLY
Appeal from decision of a magistrate to grant a permanent stay of proceedings in relation to private prosecution - stay granted on 6 out of 11 counts on the complaint - counts relate to alleged offences committed by the respondent in the course of his duties as a Dog Management Officer - stay granted on the ground that the proceedings in relation to them constituted an abuse of the court's processes by way of an attempt to re-litigate an issue already decided upon by the court - Magistrates Court has implied power to grant a permanent stay of proceedings to prevent an abuse of its processes - appellant's complaint not in conflict with any previous decision - the litigation is not vexatious or plainly without any merit - appeal allowed - order of magistrate granting stay set aside - matter remitted to Magistrates Court for trial.
Dog and Cat Management Act 1995 s 30(1), 31(1), 31(2), 33(2), 43(1), 46, 60(1); Summary Offences Act 1953 s 17, 41, 50, 62; Criminal Law Consolidation Act 1935 s 85, 86A, referred to.
Gray v Police (2003) 85 SASR 1; Barton v The Queen (1980) 147 CLR 75; Jago v District Court of New South Wales (1989) 168 CLR 23; Rogers v The Queen (1994) 181 CLR 251, applied.

FERGUSON v REID
[2005] SASC 240
Magistrates Appeal

DUGGAN J. The appellant, who is unrepresented, has commenced a private prosecution in the Adelaide Magistrates Court against Mr Reid, a dog management officer employed by the Council of the City of Charles Sturt (“the council”). A complaint against Mr Reid filed by the appellant alleges that the officer has committed 11 offences including unlawful possession of the appellant’s dogs, illegal interference with the appellant’s motor vehicle, unlawful damage to the vehicle, making false statements to the police and being on the appellant’s premises for an unlawful purpose.
This appeal is against a decision of a magistrate who granted a permanent stay of proceedings in relation to the first six counts in the complaint on the ground that the proceedings in relation to them constituted an abuse of the process of the court.
It is necessary to summarise the background to the proceedings. On 23 August 2002 the appellant was residing in a house situated in Wood Avenue, Brompton. He kept two dogs on the premises, a Staffordshire cross (the Staffordshire) and a Ridgeback cross which was referred to throughout the proceedings as “the Kelpie” I will use the latter description in these reasons.
On 23 August 2002 two dog management officers employed by the council went to Wood Avenue following a complaint that the appellant’s dogs had been pestering neighbours. Mr Reid, the respondent, was one of the officers. The officers saw the Kelpie on the footpath outside the premises and chased it. The dog evaded them and then made its way onto the appellant’s premises through a sheet of fencing which the appellant held open for it.
The officers entered the property and spoke to the appellant who asserted that the dogs were registered in Victoria. Later he was observed walking out of the house with the Kelpie and the Staffordshire. He locked the dogs in his van which was parked in the yard at the rear of the premises. He then left the premises, whereupon the officers contacted the police and the Royal Automobile Association. The officers gained access to the van with the assistance of the Royal Automobile Association and seized the two dogs.
In due course the appellant was charged with –
1being the owner of a tan Kelpie Cross dog that was found to be wandering at large on Wood Avenue Brompton CONTRARY to Section 43(1) paragraph 1 of the Dog and Cat Management Act, 1995.
2being the owner of a tan Kelpie Cross dog that was unregistered CONTRARY to Section 33(2) of the Dog and Cat Management Act, 1995.
3being the owner of a black Staffordshire dog that was found to be wandering at large on Wood Avenue Brompton CONTRARY to Section 43(1) paragraph 1 of the Dog and Cat Management Act, 1995.
4being the owner of a black Staffordshire dog that was unregistered CONTRARY to Section 33(2) of the Dog and Cat Management, 1995.
5hindering and obstructing a Dog Management Officer in the exercise of the powers conferred by the Dog and Cat Management Act, 1995 on Wood Avenue Brompton CONTRARY to Section 31(1)(a) of the Dog and Cat Management Act, 1995.
6using abusive, threatening and insulting language to a Dog Management Officer on Woodville Road, Woodville CONTRARY to Section 31(1)(b) of the Dog and Cat Management Act, 1995.
7refusing to comply with the requirement of a Dog Management Officer on Wood Avenue Brompton CONTRARY to Section 31(1)(c) of the Dog and Cat Management Act, 1995.
8assaulting a Dog Management Officer in the exercise of his powers under the Dog and Cat Management Act, 1995 on Woodville Road, Woodville CONTRARY to Section 31(2) of the Dog and Cat Management Act, 1995.
9removing from lawful custody a dog seized and detained pursuant to the Dog and Cat Management Act, 1995 from the Animal Welfare League at Wingfield CONTRARY to Section 46 of the Dog and Cat Management Act, 1995.
The magistrate who heard the charges against the appellant found counts one, two and four proven. In relation to count one he found that the Kelpie had been seen by the officers on the footpath outside the premises at a time when no person was exercising effective control over the dog. The magistrate found that the dog was wandering at large at that time within the meaning of that term as defined in the Act. For reasons which he then set out and which are not relevant for present purposes the magistrate found that the dog was not registered under the Act so that count two was made out. By the same process of reasoning the court found that the Staffordshire was unregistered for the purposes of the Act so that count four was also made out.
The magistrate found that counts three, five, six, seven and nine were not made out. Count eight was withdrawn.
The appellant appealed to this court against the findings of guilt in relation to counts one , two and four. Martin J dismissed the appeal in relation to count one, but allowed it in respect of counts two and four.
The appellant then took the initiative and instituted the present prosecution against Mr Reid. It is alleged in the complaint that Mr Reid –
1on the 23^rd day of August 2002, unlawfully possessed a dog being a Staffishire [sic]-X CONTRARY to section 41, part 1, of the Summary Offences Act, 1953.
2on the 23^rd day of August 2002, unlawfully possessed a dog being a Ridgeback-X CONTRARY to section 41, part 1, of the Summary Offences Act, 1953.
3on the 23^rd 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.
4on the 23^rd day of August 2002, was responsible for property damage to locks on a motor vehicle at Wood Avenue, Brompton. Cost to replace the locks is $286.00. CONTRARY to section 85, part 3 of the Criminal Law Consolidation Act, 1935.
5on the 23^rd day of August 2002, was on premises at 33 Wood Avenue, Brompton, for an unlawful purpose. CONTRARY to section 17, part 1, of the Summary Offences Act, 1953.
6on the 23^rd 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 Avenue, Brompton. CONTRARY to section 62, part 1, paragraph (a), (i) of the Summary Offences Act, 1953.
7on the 11rd [sic] day of October 2002, made false representation to police by reporting an alledged [sic] assult [sic] on the 23^rd day of August 2002 CONTRARY to section 62, part 1, paragraph (b), of the Summary Offences Act, 1953.
8on the 29^th day of October 2003, without reasonable excuse, disturbed Richard Ferguson by knocking on the door of a house at Wood Avenue, Brompton. CONTRARY to section 50, of the Summary Offences Act, 1953.
9on the 29^th day of October 2003, was on premises at 33 Wood Avenue, Brompton, for an unlawful purpose. CONTRARY to section 17, part 1, of the Summary Offences Act, 1953.
10on the 12^th day of March 2004, without reasonable excuse, disturbed Richard Ferguson by knocking at the door at Wood Avenue, Brompton. CONTRARY to section 50, of the Summary Offences Act, 1953.
11on the 12^th day of March 2004, was on premises at 33 Wood Avenue, Brompton, for an unlawful purpose. CONTRARY to section 17, part 1, of the Summary Offences Act, 1953.
The respondent made application to the magistrate appealed from to have the complaint permanently stayed. As I have observed, the application was granted in relation to counts one to six inclusive and dismissed in relation to counts seven to eleven.
The grounds upon which the application for a permanent stay of proceedings was argued before the magistrate were that the prosecution is doomed to failure in the light of the powers of the officers under the Dog and Cat Management Act 1995 (“the Act”); that it was brought for an improper purpose; and that the prosecution involves an impermissible attack on a conviction of the court.
The learned magistrate gave the following reasons for staying the first six counts in the complaint:
It is apparent to me that in relation to counts one through to six inclusive of the complainant’s complaint that he is seeking to re-litigate something which has already been decided upon by this court and where Justice Martin has upheld the conviction on count one. In particular, without wishing to re-read the paragraphs now into these extempore reasons for judgment, I refer in particular to paragraph 9 and paragraph 10 where count one is made out. The preceding paragraphs must be read as a clear background to these paragraphs in his Honour’s judgment.
What the complainant is seeking to do is to say that the two dogs were unlawfully possessed by Mr Reid, a dog management officer, that he illegally interfered with a motor vehicle, that he was responsible for property damage to the locks on his motor vehicle, that he was on the premises of the complainant for an unlawful purpose and that he, Mr Reid, the defendant, had made a false representation to the police by informing that he had power to apprehend two dogs from a locked van at 33 Wood Avenue, namely the complainant’s premises.
I consider that in relation to those six counts, in the exercise of my discretion, that it would be an abuse of this court’s process to permit those proceedings to continue. I therefore order that there be a permanent stay in relation to counts one through to six, inclusive.
Although there was no argument on the point before me, I am prepared to accept for the purposes of this case the correctness of the decision in Gray v Police (2003) 85 SASR 1 that the Magistrates Court has the implied power to grant a permanent stay of proceedings to prevent an abuse of its processes.
The power to grant a permanent stay of proceedings on the grounds of abuse of process is to be exercised with the utmost caution: Barton v The Queen (1980) 147 CLR 75 at 116; Jago v District Court of New South Wales (1989) 168 CLR 23 at 76. However, the respondent relied on Rogers v The Queen (1994) 181 CLR 251 where Mason CJ observed at 255:
The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party's genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories . Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.
In Rogers the prosecution sought to lead evidence of records of interview containing admissions against an accused charged with eight counts of armed robbery. At a previous trial at which the accused was charged with other offences of armed robbery the trial judge had ruled that three records of interview with the accused were inadmissible on the ground that the admissions were not made voluntarily. The prosecution at the subsequent trial intended to rely upon one of the records of interview which had been excluded in the previous trial and a fourth interview which took place under the same circumstances of involuntariness as the interviews which had been excluded.
The majority of the court held that the course intended by the prosecution amounted to an abuse of process.
Mason CJ said at 256:
The public interest in securing the convictions of the appellant is clearly outweighed by other relevant considerations. The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant's favour because the confessions sought to be tendered - although relating to different crimes - were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant.
In their joint judgment Deane and Gaudron JJ referred to the principal question in the case as being “whether the principle which ensures the incontrovertible character of judicial decisions precludes the tender of the records of interview as proposed by the prosecution”.
In my view, however, the proceedings initiated by the appellant in the present case would not give rise to an impermissible challenge to a judicial determination made in the course of the earlier proceedings. In order to appreciate the reason as to why this is so it is necessary to have regard first to the provisions in the Act as at the time of the relevant events.
Section 43(1) provided that any person who owns or is responsible for the control of a dog is guilty of an offence if the dog is wandering at large. Section 7 provided:
(1)For the purpose of this Act, a dog will be taken to be wandering at large while –
(a)the dog is in a public place or is in a private place without the consent of the occupier; and
(b)no person is exercising effective control over the dog.[1]
(2)However a dog will not be taken to be wandering at large while –
(a)the dog is being used in the droving or tending of stock or is going to or returning from a place where it will be, or has been, so used; or
(b)the dog is being trained for, or participating in, an organised activity being a race, trial, class or show or in retrieving, hunting or other sporting exercise customarily involving the running of one or more dogs; or
(c)the dog is in a vehicle despite the fact that it is not effectively secured.[2]
[1] See section 8.
[2] For example, a dog in the open tray of a utility or like vehicle will not be taken to be wandering at large.
Section 30(1) conferred certain powers on dog management officers. It provided:
(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
(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;[3] 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] See section 7.
Section 60(1) provided for powers to seize and detain dogs:
S 60(1)A dog management officer may seize and detain a dog in any of the following circumstances:[4]
(a)if the dog is wandering at large;[5]
(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 of the dog is carried out.
[4] For limitations on a dog management officer’s powers to enter a place or vehicle for the purposes of seizing a dog see section 30.
[5] See section 7.
The conduct alleged against Mr Reid in counts one to six of the complaint laid by the appellant relates to the entry of the officers on the property at which the appellant was residing, the forcible opening of the appellant’s van, and the seizure of the two dogs. The appellant wishes to contend that, although he was found guilty of being the owner of the Kelpie at a time when it was found wandering at large, the dog was not wandering at large at the time it was seized by the council officers.
The appellant is given some encouragement in this submission by the finding of the magistrate who heard the complaint against him that the appellant was not guilty of count five which alleged that he hindered and obstructed a dog management officer because:
In my finding at the time when he gave his direction to Mr Lee, the dog was not wandering at large but had been restrained and was under Mr Lee’s control, so s 60(1)(a) is not made out. It is too long a bow to suggest at that time 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. However, I am not finding that Count 5 was made out.

It is not in dispute that the officers went onto the premises, arranged for the van to be broken into, informed the police that they had power to seize the dogs and that they eventually did seize the dogs. These are the incidents which have given rise to the six charges which have been permanently stayed.
If the appellant’s complaint against Mr Reid on the first six counts proceeded the central issue would be whether the officers had power to seize the dogs. The dog management officers gave evidence that they seized the dogs because they had been told that the dogs had harassed someone that morning and one of the officers said he observed the aggressive nature of the Kelpie when they arrived at Wood Avenue.
However, in the passage set out above at [25] the magistrate found that the circumstances did not bring the case within any of the categories under s 60 of the Act which would authorise the officers to take possession of the dogs. This was not an issue before Justice Martin on appeal. The only reference to the power to seize the dogs in the proceedings thus far was the comment made by the magistrate in the prosecution against the appellant suggesting that there was no such power in the present case.
In these circumstances there appears to be no justified concern that the allegations in the appellant’s complaint are in conflict with any previous decision. Furthermore it cannot be said that the litigation is vexatious or plainly without any merit.
The appeal will be allowed and the order staying counts one to six inclusive will be set aside. The complaint will be remitted to the Magistrates Court for trial before another magistrate on counts one to eleven inclusive.