Fisher v Ellerton
[2000] WASCA 264
•15 SEPTEMBER 2000
FISHER -v- ELLERTON [2000] WASCA 264
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 264 | |
| Case No: | SJA:1081/2000 | 28 AUGUST 2000 | |
| Coram: | SCOTT J | 15/09/00 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | LEONARD FREDERICK FISHER MICHAEL ELLERTON |
Catchwords: | Criminal law and procedure Jurisdiction, practice and procedure Warrants, arrest, search, seizure and incidental powers Seizure and detention of dogs suspected of an attack upon a person Ranger in pursuit of dogs Warrant not required in the circumstances Ranger exercising powers and duties under the Dog Act 1976, s 29 Animals Liability of owners and keepers in respect of injuries by animals Various statutory provisions Interference with discretion of court below Dog Act 1976 |
Legislation: | Dog Act 1976, s 29 Dog Regulations 1976 |
Case References: | Dobie v Pinker [1983] WAR 48 Hume & Anor v R [1999] WASCA 64 Letts v King [1988] WAR 76 Ex parte Gleeson [1907] VLR 368 Halliday v Nevill (1984) 155 CLR 1 Ibbotson v Chaney (1998) 19 WAR 404 Julius v Lord Bishop of Oxford [1880] All ER 43 McArthur v Williams (1936) 55 CLR 324 Ousley v R (1997) 192 CLR 69 Palmer v Kizon [1999] WASC 160 R v Royds; ex parte Sidney (1860) 1 QSCR 8 Selby v Pennings (1998) 19 WAR 520 Ward v Williams (1955) 92 CLR 496 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant (Defendant)
AND
MICHAEL ELLERTON
Respondent (Complainant)
Catchwords:
Criminal law and procedure - Jurisdiction, practice and procedure - Warrants, arrest, search, seizure and incidental powers - Seizure and detention of dogs suspected of an attack upon a person - Ranger in pursuit of dogs - Warrant not required in the circumstances - Ranger exercising powers and duties under the Dog Act 1976, s 29
Animals - Liability of owners and keepers in respect of injuries by animals - Various statutory provisions - Interference with discretion of court below - Dog Act 1976
Legislation:
Dog Act 1976, s 29
Dog Regulations 1976
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (Defendant) : Mr M D Cuerden
Respondent (Complainant) : Mr P L Wittkuhn
Solicitors:
Appellant (Defendant) : Hammond Worthington
Respondent (Complainant) : McLeod & Co
Case(s) referred to in judgment(s):
Dobie v Pinker [1983] WAR 48
Hume & Anor v R [1999] WASCA 64
Letts v King [1988] WAR 76
Case(s) also cited:
Ex parte Gleeson [1907] VLR 368
Halliday v Nevill (1984) 155 CLR 1
Ibbotson v Chaney (1998) 19 WAR 404
Julius v Lord Bishop of Oxford [1880] All ER 43
McArthur v Williams (1936) 55 CLR 324
Ousley v R (1997) 192 CLR 69
Palmer v Kizon [1999] WASC 160
R v Royds; ex parte Sidney (1860) 1 QSCR 8
Selby v Pennings (1998) 19 WAR 520
Ward v Williams (1955) 92 CLR 496
(Page 3)
1 SCOTT J: The appellant was charged with two offences by way of complaint in the Court of Petty Sessions at Karratha. His wife was charged with one offence. The charge against the appellant's wife was dismissed and one of the two charges against the appellant, upon which he was convicted, is not the subject of this appeal. The remaining charge, which is the subject of appeal, alleged that on 30 November 1999 at Wylie Court, Karratha, the appellant did, without provocation, impede, delay and obstruct an authorised officer, namely, ranger John Anthony Scotland, under the Dog Act 1976 (as amended) ("the Dog Act") whilst exercising his powers and carrying out his duties. The complaint also pleads that the proceedings were taken by Michael David Ellerton in the name of the Shire of Roeburne and that Michael David Ellerton was a duly appointed officer and authorised to take proceedings under the Dog Act.
2 The appellant was convicted of that offence, fined and ordered to pay costs.
3 Leave to appeal against that conviction was granted by Miller J on 29 May 2000 at which time his Honour granted an extension of time.
4 The amended grounds of appeal are:
"(a) The Learned Magistrate erred in law and in fact in that he held that a warrant for the seizure and detention of a dog purportedly issued to Mr John Anthony Scotland on 30 November 1999 pursuant to s 29(5a) of the Dog Act 1976 ('the Act') was valid, and in failing to hold that the said warrant was invalid by reason of the fact that the purported warrant was issued in the absence of a sworn complaint as required by regulation 12A(1) of the Dog Regulations 1976 ('the Regulations') and Form 4A of the First Schedule thereto.
(b) Further and in the alternative to (a) above, the Learned Magistrate erred in fact and in law in finding that the Justice of the Peace was satisfied on the balance of probabilities that an attack by a dog had or may have caused injury or damage, and in failing to find the Justice of the Peace could not have been so satisfied given that there was no sworn complaint, that the purported affidavits of Mr Scotland in support of the said warrant had not been sworn or signed by Mr Scotland, and the
(Page 4)
- fact that there was otherwise no evidence that the Justice of the Peace was, or could have been, so satisfied.
- (ba) Further and in the alternative to (a) and (b) above, the Learned Magistrate erred in fact and in law in failing to hold that the said warrant was invalid on its face as it failed to disclose that the justice was satisfied that an attack by a dog had or may have caused injury or damage as required by s 29(5a) of the Act.
(c) Further and in the alternative to (a) and (ba) above, the Learned Magistrate erred in fact and in law in holding that the said warrant was valid and in failing to hold that the warrant was invalid by reason of non-compliance with reg 12A(2) and Form 4B.
Particulars of non-compliance
- (i) it described 4 dogs rather than one;
(ii) it failed to describe the person which the dogs were alleged to have attacked; and
(iii) it purported to authorise 'any authorised person' whereas it was required to specify the name of the person to whom it was issued and the name of the person authorised to assist in its execution.
(d) Further and in the alternative to (a) to (c) above, the Learned Magistrate erred in fact and in law in finding that the said warrant authorised Mr Scotland to enter upon the premises at 1A Wylie Court, Karratha ('the Premises') to seize the dog in question and in failing to find that the said warrant did not, on its face, so authorise Mr Scotland;
(e) Further to (a) to (d) above, the Learned Magistrate erred in fact and in law in finding that Mr Scotland was authorised to enter upon the Premises to seize the dog in question pursuant to section 29(3) of the Act given that when Mr Scotland entered the Premises he was not in pursuit of the dog for the purpose of seizing it nor did he have reasonable grounds to believe that it was necessary
(Page 5)
- for him to enter the Premises for the purpose of seizing the dog;
- (f) Further and in the alternative to (e) above, the Learned Magistrate erred in fact and in law in finding that Mr Scotland was authorised to enter upon the Premises to seize the dog in question in that the Learned Magistrate failed to determine whether at the time Mr Scotland entered the Premises he was in pursuit of the dog for the purpose of seizing it or whether he had reasonable grounds to believe that it was necessary for him to enter the Premises for the purpose of seizing the dog."
5 The facts surrounding the matter in summary are that, on 30 November 1999, Nadine Gay Hunter ("Hunter") the immediate next-door neighbour of the appellant in Richardson Way, Karratha, was walking home to her house having visited a relative. She was nearing her home at around about 4.00 pm when she heard dogs barking in the appellant's house. Her evidence was that four dogs came out of the appellant's house and that she was bitten on the legs by one of them whilst the others snapped and barked around her ankles.
6 Hunter's evidence was that a neighbour came out with a first-aid kit and assisted her.
7 Hunter's evidence was that after the attack she saw the appellant in his front yard calling for the dogs to come back but that the dogs did not respond. She said she had some scratches on her right leg and a bite on her left leg, in the calf muscle just below her knee. Her evidence was that she was shaken, crying and upset and after her mother rang the doctor, she went and had a tetanus shot.
8 Hunter also testified that the appellant came and apologised and offered to buy her and her mother a carton of beer.
9 Either Hunter, or somebody on her behalf, contacted John Anthony Scotland ("Scotland") the Shire Ranger, who obtained a statement from Hunter. In the course of taking the statement the appellant arrived at Hunter's house and started to abuse Scotland. Scotland in turn contacted the police.
10 Scotland had earlier attended Hunter's house at which time a 4-wheel drive, containing the four dogs from the appellant's house, was reversing out.
(Page 6)
11 The evidence establishes that after Scotland took the statement from Hunter and because of the appellant's abusive behaviour towards him, Scotland arranged for police to attend. In addition, Scotland organised a warrant under the provisions of s 29(5a) of the Dog Act. The circumstances surrounding the obtaining of that warrant and the effect of it will be discussed later in these reasons. After obtaining the warrant, Scotland arranged for police assistance and then he attended an address at 1A Wylie Court, where the appellant's wife, Mrs Fisher, was present. Scotland advised Mrs Fisher that he wanted to seize and detain the dogs pending an investigation. Scotland was able to seize three of the four dogs, which were then placed in the back of the ranger's vehicle, which was parked in the driveway of 1A Wylie Court.
12 The ranger at that stage was unable to seize the fourth dog and whilst he was dealing with the first three, noticed the appellant's wife, on the phone, apparently talking to the appellant. Mrs Fisher did not immediately pass the fourth dog onto Scotland and shortly thereafter the appellant arrived and became abusive. Scotland tape-recorded the incident between himself and the appellant. At that stage when the appellant arrived, he questioned Scotland's warrant and as to why the police had become involved. Because the fourth dog (a border collie) was not released and the appellant refused to release it, Scotland indicated that he would have to seize the dog using a dog pole. In the course of attempting to do that, Scotland's said the appellant put his arm out to obstruct him from obtaining the pole from his vehicle for the purpose of seizing the border collie, which at that stage was locked inside a white Suzuki vehicle.
13 After some discussion, Scotland's evidence was that he felt a sharp hard blow to the lower side of his back in the kidney area. His evidence was that he swung around and saw the appellant being arrested by the police. He said that the appellant abused him further. Eventually Scotland was able to seize the border collie after he had some assistance in opening the Suzuki. That dog was eventually taken away by him.
14 As a result of these incidents, the charges referred to earlier were laid against the appellant and his wife. Pleas of not guilty were entered to those charges and the trial took place in the Court of Petty Sessions at Karratha on 1 and 2 March 2000.
15 As indicated, the charge against the appellant's wife was dismissed, but the appellant was convicted of the two charges preferred against him.
(Page 7)
- One of those two charges identified earlier in these reasons is the subject of the present appeal.
16 As is evident from the amended grounds of appeal set out earlier in these reasons, grounds (a), (b), (ba), (c) and (d) all revolve around the warrant, which Scotland said he obtained prior to attending upon the premises at 1A Wylie Court in the presence of police officers.
17 In order to understand the warrant and the reason for it, it is first necessary to examine the relevant provisions of the Dog Act.
18 Section 29 of that Act deals with the power to seize certain dogs and relevantly provides:
"Power to seize strays, etc
29(1) A council shall, in writing, appoint persons to exercise on behalf of the council the powers conferred on an authorized person by this Act.
…
(3) If it appears to an authorized person that -
(a) an attack by a dog has occurred;
the authorized person may -
(d) seize and detain the dog; and
(e) if he is in pursuit of the dog for the purpose of seizing it and he has reasonable grounds to believe that it is necessary to do so for that purpose, enter any premises, other (unless section 33G(1) applies) than a building or part of a building that is used for residential purposes.
…
(5a) If he is satisfied on the balance of probabilities that an attack by a dog has or may have caused injury or damage, a Justice of the Peace may issue a warrant authorizing any authorized person to seize the dog and -
(a) if the dog is a dangerous dog, detain and deal with it in accordance with section 33G; or
(Page 8)
- (b) otherwise, detain it pending the determination of an application under section 39.
- (5b) Where a warrant under subsection (5a) is issued in respect of a dog an authorized person -
(a) may seize and detain the dog, and if section 33G(2) applies shall give the notice required by that subsection; and
(b) may enter any premises if he has reasonable grounds to believe that it is necessary to do so for the purpose of seizing the dog."
20 In addition to the statutory powers, an authorised person may obtain a warrant which, if granted, authorises that person under s 29(5b)(b) to enter any premises if he has reasonable grounds to believe that it is necessary to do so for the purpose of seizing the dog.
21 In my opinion, the effect of obtaining a warrant, as obtained in the present case, was to enable Scotland to enter residential premises, including the appellant's residential premises, if necessary, for the purpose of seizing the dog or dogs that he was then pursuing. The statutory power contained in s 29(3)(d) and (e) did not authorise Scotland to enter any building or part of a building that was used for residential purposes. The inference is available that it was apparent to Scotland that it may have been necessary for him to enter a building or part of a building used for residential purposes to capture the dogs, and so a warrant was obtained to extend his powers under the provisions of s 29(5b)(b) to give him authority to go into a building or part of a building used for residential purposes if necessary for that purpose.
22 As the events transpired, in my opinion, it was not necessary for Scotland to exercise his powers under the warrant as ultimately the dog that he was pursuing was delivered up to him. In addition, the events which transpired surrounding the seizure of all of the four dogs occurred
(Page 9)
- on the driveway of the premises at 1A Wylie Court, so that it was not necessary for him to exercise the powers granted to him under the warrant for the purpose of seizing any of the dogs concerned.
23 In this case there was no evidence that Scotland was asked to leave the premises or that any implied licence he had or may have had when he entered the driveway at 1A Wylie Court, had been terminated: see Hume & Anor v R [1999] WASCA 64; Letts v King [1988] WAR 76 at 79; Dobie v Pinker [1983] WAR 48 per Gibbs CJ, Mason, Wilson and Deane JJ at 78.
24 The relevant events occurred in the driveway of a house not occupied by the appellant or his wife. The occupier did not terminate or seek to terminate any implied licence which Scotland had to be there. The appellant had no authority on the evidence which entitled him to terminate any implied licence.
25 In my opinion it follows from that conclusion that the grounds of appeal directed towards the validity of the warrant have no bearing on this case. Scotland was not acting pursuant to the warrant when he seized the dogs and did not require the warrant to do so. It was a matter of prudence and a sensible precaution to obtain a warrant before attempting to effect seizure of the dogs because it may have been necessary for him to enter a building or part of a building used for residential purposes in order to do so. His statutory power under s 29(3)(d) and (e) would not have been authority for him to enter residential premises for that purpose. In my view a lawful warrant would have empowered him to do so had that course been necessary. As it turned out, it was not.
26 That is sufficient to dispose of grounds (a), (b), (ba), (c) and (d) of the grounds of appeal.
27 In relation to ground (e), in my opinion, once Scotland was appraised of the complaint by Hunter and had made a decision to exercise his powers generally under s 29 of the Dog Act, he was then in pursuit of the dogs involved in the attack upon Hunter. The fact that there was some delay between the time of receiving the complaint and the seizure of the dogs, occasioned by the fact that he obtained a warrant and organised police assistance, in my view, is irrelevant. Once Scotland made the decision to seize the dogs and visit the premises where he understood the dogs to be, Scotland was then "in pursuit of the dogs for the purpose of seizing them". Providing he did not have to enter any part of a building
(Page 10)
- that was used for residential purposes, Scotland was exercising the powers in s 29(3)(d) and (e) of the Dog Act.
28 In my opinion, Scotland was acting within his powers in behaving as he did on 30 November 1999 with respect to the seizure of the dogs in question. It follows that the challenge to the learned Magistrate's findings set out in the grounds of appeal have not been made out. The learned Magistrate was entitled to, and did properly conclude that Scotland was exercising his powers and carrying out his duties under the provisions of the Dog Act when these events occurred.
29 There are no other challenges to the learned Magistrate's findings in the grounds of appeal and as a consequence, in my view, the appeal must be dismissed.
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