Geary v Shire of York - [2014] WASC 224

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GEARY -v- SHIRE OF YORK [2014] WASC 224

CORAM: CHANEY J

HEARD: 10 JUNE 2014

DELIVERED : 27 JUNE 2014

FILE NO/S: SJA 1002 of 2014

BETWEEN: SHAUN BRIAN GEARY
Appellant
AND
SHIRE OF YORK
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P A ROTH
File No  :NO 763 of 2013, NO 764 of 2013

Catchwords:

Dog attack - Whether new evidence should be admitted on appeal - Whether orders made are manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA)
Dog Act 1976 (WA)

Result:

Leave to appeal be refused on all grounds
The appeal be dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr T L Beckett

Solicitors:

Appellant: In person
Respondent: McLeods Barristers & Solicitors

Cases referred to in judgment:

Genovese v City of Perth [2012] WASCA 89
Rinaldi v The State of Western Australia [2007] WASCA 53

CHANEY J: The appellant appeals against his conviction in the Northam Magistrates Court on 17 December 2013 of two offences, both of them being that he was a person liable for the control of a dog, namely a female Staffordshire Bull Terrier Shar Pei cross named Suzi La La which attacked a person within the district of the Shire of York, contrary to s 33D(1) of the Dog Act 1976 (WA). The offences were found to have occurred on 29 March 2013 and 3 April 2013 respectively.
By reason of s 9 of the Criminal Appeals Act 2004 (WA), leave to appeal is required for each ground of appeal. Leave is not to be granted unless the Court is satisfied that the ground has a reasonable prospect of success. In this case, the question of leave was dealt with at the hearing of the appeal.
The Magistrate also made an order that the dog involved in the attacks be destroyed, but remitted that order on a specified proviso. On 29 January 2014, the proviso to the destruction order was amended so that it provided:
Order 1 of these orders be remitted provided the dog is muzzled 24 hours a day 7 days a week unless eating or drinking while under the supervision of the person over the age of 18 years and provided the dog does not leave the premises at 74 Cardwell Street, York, otherwise known as 70 Cardwell Street York (Property), or while kept in a suitable and approved fully enclosed enclosure or while kept within the confinement of the home at 74 Cardwell Street, York, or while the dog is in the care and control of an approved licensed trainer provided the training is carried out in an area fully enclosed by a suitable fence to ensure that the dog does not get off the premises.

The trial

The trial commenced on 5 December 2013, and ran until late that afternoon. It was then adjourned to 17 December 2013 for the decision.
The Magistrate commenced the trial by explaining the procedure to Mr Geary, who was self‑represented. He explained that the prosecution was to call four witnesses, and that Mr Geary would be given the opportunity to cross‑examine those witnesses. He explained the proper way to question a witness in cross‑examination, and that the Court was entitled to accept unchallenged evidence. The Magistrate explained the need to put to witnesses any evidence proposed to be led which contradicts the witnesses' evidence. He explained the process of re‑examination, and that the same sequence of questioning would occur in relation to each of the four prosecution witnesses.
His Honour then explained that, at the conclusion of the prosecution case, he would invite Mr Geary to give evidence if he wished to do so, but that he was not obliged to give evidence. He explained that if Mr Geary gave evidence, counsel for the prosecution would be entitled to cross‑examine him. He also explained that if Mr Geary wished to call other witnesses, he would have the opportunity to do so and he explained the procedure which would apply in that event. The Magistrate then explained the process of making final submissions.
The prosecution then called four witnesses. The first was Ms Esmeralda Dawn Harmer who gave evidence that she lived a relatively short distance from a property on the corner of Cardwell Street and Cowan Road which she described as 74 Cardwell Street. Although there is some confusion as to whether the correct address is 70 or 74 Cardwell Street, I will refer to the property as the appellant's property on the basis that there is no doubt that she was referring to the property on which the appellant lives. She said that she was familiar with the appellant's property, and the fact that a dog lived on that property, because she used the park opposite for recreational purposes, and had from time to time walked past and noticed that a dog on that property was chained to an overhead wire (a run) which enabled it to run up and down the length of the property.
Ms Harmer gave evidence that on 29 March 2013 she went jogging, leaving home around 5.15 am. She said that, towards the end of her jog, as she came down Cardwell Street, she observed the dog chained to the run jumping in the air, eventually breaking its chain. She turned to walk through the park towards her home, but the dog ran towards her and jumped at her. She was able to kick it away. She said it was growling at her and bearing its teeth. She said that the dog lunged at her again, and she grabbed it. Someone then emerged from the appellant's property and called the dog, which then returned to the appellant's property. She said that she then saw the appellant come out of the house at the property. She then returned to her home.
When cross‑examined by the appellant, Ms Harmer said that at the time the attack happened, 'it was daylight'. That evidence was challenged by the appellant who sought to tender through Ms Harmer evidence from an internet website called 'timeanddate.com', but the Magistrate told him that it was not the time to put that evidence in, and that he would 'have to put it in during the course of [his] testimony'. Ms Harmer maintained that, when the attack occurred, she was able to see the area of the park and the dog jumping at the end of the road. She was cross‑examined about whether the correct address of the appellant's property was 70 or 74 Cardwell Street. She was also cross‑examined as to her evidence that the dog had a length of chain hanging from its neck when it attacked her, and as to the length of that piece of chain.
The prosecution's second witness was Mr David Walker. He said that he was familiar with the appellant's property because he had moved into Cowan Road in September 2012. He would periodically jog in the park opposite the appellant's property. He said that he was aware of two dogs on the appellant's property because he walked past that house from time to time. He said he often saw one of the dogs barking, and noted that it was 'chained so that it could run back and forth barking'.
Mr Walker said that on 3 April 2013, at about 6.30 am, he left his home to walk towards the park opposite the appellant's property. He said he observed two dogs on the appellant's property but then saw the smaller of the two dogs coming over the fence towards him, and that it had a chain dangling from its neck. He began to move but the dog 'went for [his] throat'. He blocked it with his forearm, and he deflected it after it had bitten his arm. The dog lunged at him again and he began to punch it in the head. He then kicked it and began backing off slowly. As Mr Walker began to back away, he noticed a woman approximately 30 meters away and yelled at her to stay away. He subsequently observed the dog return to the appellant's property. He produced photographs, said to have been taken by his daughter, showing the injuries caused by the bite to his forearm. The photographs were marked as exhibits.
Mr Walker was cross‑examined about which dog had attacked him, and replied that it was the smaller of the two dogs he had seen, and said that 'I know that the dog is chained to that yard', being a reference to the appellant's property. He was cross‑examined about the source of the photographs of his injuries, but maintained that the photographs were taken by his daughter as a result of the dog attack on the day as described.
The prosecution's third witness was Ms Wilma Regan. She also gave evidence that she was familiar with the appellant's property and the dogs kept on that property, including the black dog kept chained to the run on the Cowan Road side of the house. She said on the morning of 3 April 2013, she was out walking when she saw the black dog lunging on its chain, and then breaking free before jumping the fence and attacking Mr Walker. She said she saw the dog latch on to Mr Walker's arm. She said she observed this dog attacking a second time, and then eventually walk away. She said she observed bleeding from Mr Walker's arm.
In cross‑examination, Ms Regan was asked whether a chain produced by the appellant was the chain which she saw on 3 April 2013. She was unable to identify the chain. In cross‑examination, she also said that, after the attack, she saw the dog cocking its leg to urinate in the park. It was put to her that that indicated that the dog she observed was a male, to which she replied 'if it cocks its leg I would say it would be'. When it was put to her that Suzi La La was a female, she denied that she had stated that she had seen a male dog. Ms Regan was also challenged as to the state of the light, and her capacity to observe the events which she had described.
The fourth prosecution witness was a ranger from the Shire of York, Mr Matthew Sharp. He was questioned about the correct address of the appellant's property, that is, whether it was number 70 or number 74 Cardwell Street. He said that the letter box on the property is numbered 70, but that information he had seen from Landgate shows that it is 74 Cardwell Street. He produced a video of the seizure of the dog, and described the 'run' on which Suzi La La was kept at the time of her seizure. He was also cross‑examined about his response, as recorded on the video of the seizure, to a proposition by the appellant who said 'you know that it wasn't my dog', after which Mr Sharp was heard to say 'yep'. In his cross‑examination on that question, he denied that what he said was in response to the question, but rather was a dismissive comment following some 'lewd statement and crazy statements' made by the appellant as the rangers left the premises.
Mr Geary did not give evidence in his defence. He called two witnesses. The first was Ms Kerri Gurner. Her evidence was that on 3 April 2013 she was called to the appellant's house early in the morning, but left at 6.15 am. She said that at that time Suzi La La was still chained to her run. Given that the events described by Mr Walker were said to have occurred sometime after 6.30 am. Ms Gurner's evidence took the matter little further.
The second witness called by the appellant was Mrs Geary. Her evidence was confined to the operation of reticulation sprinkler systems, presumably to challenge the accuracy of Ms Harmer's evidence that sprinklers in the park opposite the appellant's property were on at the time of the attack by the dog on her.

The Magistrate's decision

The Magistrate delivered oral reasons on 17 December 2013. He traversed the evidence of all witnesses in some detail. He then identified the issues raised by the appellant through his cross‑examination and submissions, and the criticisms of the evidence made by the appellant. Having done so, he then considered the evidence of the three principal witnesses for the prosecution. He said:
The evidence of all three is fundamentally overwhelming. They had seen the dog on numerous occasions. They are well aware of the dog. They are well aware of the nature of the dog. They are well aware of the appearance of the dog. They know where it came from. Each of the witnesses gave evidence that the dog has come out of the yard of the accused. Each of the witnesses has indicated that that's where the dog ‑ they have seen the dog on previous occasions. Each of the witnesses indicated that that's where the dog is kept.
How exactly it slipped its chain, I cannot explain. I do not know. There's no evidence before me as to the nature of the chain it was held on at the time that these incidents happened; only the nature of the chain it was held on after the incidents occurred and how it was secured to the overhead wire. As I've indicated, in my view, the evidence of the three prosecution witnesses is absolutely overwhelming in relation to the identity of the dog and where the dog came from.
He expressly accepted the evidence of each of Ms Harmer, Mr Walker and Ms Regan.

Grounds of appeal

The notice of appeal set out five grounds which were expressed as follows:
1.New evidence has become available.
2.Also overlooked or mistake [sic] with something to do with the facts.
3.Failed to allow evidence to be submitted [sic].
4.Failed to exclude evidence not produced before trial.
5.Allowed evidence that not certified ie photos.
When the matter was first called on for hearing, it did not proceed, but the appellant was directed to provide particulars to the grounds. I will deal with the particulars in the context of considering each ground. The appellant was also given leave to add a further ground, namely that the orders made restricting the dog's activities are manifestly excessive.
I will deal with each of the grounds in turn.

Ground 1 ‑ New evidence that has become available

Two difficulties confront the appellant in relation to this ground.
The first is the limited extent to which an appellant can rely on evidence which was not before the Magistrates Court at the trial. Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that was before the lower court. Notwithstanding that provision, an appeal court has the power, found in s 40(1)(e), to admit other evidence for the purpose of dealing with an appeal.
In relation to s 40(1)(e) of the Criminal Appeals Act, Steytler P said, in Rinaldi v The State of Western Australia:[1]
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella‑Velasco at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles.
[1] Rinaldi v The State of Western Australia [2007] WASCA 53 [84].
After citing the above passage from Rinaldi, Buss JA in Genovese v City of Perth:[2]
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ).
[2] Genovese v City of Perth [2012] WASCA 89 [26] ‑ [27].
So it is, the appellant must satisfy those requirements before the matters now raised on appeal (all of which are properly described as 'new evidence' in the sense that it was evidence that, with reasonable diligence, could have been adduced at trial) can be considered.
The second difficulty facing the appellant is that he has produced no evidence in admissible form of the new matters upon which he seeks to rely. Rather, Mrs Geary (who was given leave to speak on her husband's behalf at the hearing of the appeal) simply made assertions from the bar table of various facts and opinions. Apart from attempting to tender the printout from the internet of a property profile report referrable to '70 Cardwell Street York' said to be based on information provided by the Western Australian Land Information Authority, and a document apparently obtained on the internet from the Perth Observatory setting out sunrise times, all of the 'new evidence' relied upon by the appellant comprised assertions from the bar table.
Ground 1, therefore, cannot succeed on the basis of the way the case was presented. I am mindful that the appellant was unrepresented. His failure to present evidence in an admissible form is understandable. I have, therefore, considered whether, in the light of the matters particularised under this ground, an opportunity should have been provided to produce admissible evidence in support of the appeal. In my view, however, the matters as to which evidence might be produced would not give rise to any reasonable possibility of an acquittal.
The first aspect of the new evidence identified by the appellant was to the effect that Mr and Mrs Geary had changed the position of the run to which Suzi La La was chained some weeks before the events the subject of the charges. It was contended that the witnesses had given evidence that the run had been in that position for a longer period than was in fact the case. It was not contended that the evidence of the witnesses as to the position of the run at the time of the offences was incorrect. The evidence on this question was directed to ascertaining from where the dog came on the two occasions in question. Whether or not the witnesses were mistaken as to how long the run had been in that position (although that was not a proposition clearly put to any of them) is of little relevance as to what occurred on the dates of the offences. Even if the witnesses were incorrect, it is unlikely to have affected the outcome of the trial. In any event, having reviewed the relevant passages of the transcript relied upon by the appellant on this issue, it is apparent that the witnesses do little more than describe the position of the run in late March and early April 2013.
The second aspect of 'new evidence' relied upon by the appellant related to the correct address of the appellant's property. Whilst the correct street number appears to have been a matter of some confusion at the trial, there is no doubt that the witnesses were familiar with, and referring to, the appellant's property. Photographs of the property were tendered in evidence and identified by each witness. All of them described the property on the corner of Cardwell Street and Cowan Road. The appellant's property is on that corner. The correct street number of the house is of no significance whatsoever.

The third area of 'new evidence' is as to the time of sunrise on 29 March 2013. Evidence on that point was available at the trial. The appellant was advised that it could be adduced as part of the presentation of his case. He did not seek to adduce it during the course of his defence. Ms Harmer was cross‑examined at some length about the state of the light at the time of the attack which she described. She maintained that it was sufficient light to observe what she said she observed. The Magistrate accepted her evidence. It was open to him to do so. Given that there was no clear evidence as to how long after she left home the attack occurred, evidence as to the time of sunrise would not, by itself, prove the extent of light at the time of the attack. That evidence would not establish that the attack did not occur.
The final 'new evidence' was said to be a mobile phone video taken depicting the state of the light on the same date in 2014. The probative value of any such evidence, having regard to possible variations of weather or atmospheric condition, is at best doubtful. It would not establish the appellant's innocence.
In my view, none of those matters, even if proved in admissible form, either alone or together, would provide a basis to set aside the findings of the Magistrate, which were clearly open to him.
Ground 1 has no merit, and leave to appeal on that ground should be refused.

Ground 2 ‑ Overlooking or mistaking something to do with the facts

The first matter relied upon by the appellant in relation to this ground is the evidence of Ms Regan that she saw the dog which had carried out the attack urinating on trees with a cocked leg, and her evidence as to the sex of the dog. Because Suzi La La is a female dog, the appellant contends that this evidence proves that some other dog carried out the attack on Ms Harmer.
As mentioned above, Ms Regan initially accepted that if a dog cocks its leg, it would be a male, but subsequently denied that she had 'stated it's a male dog'. In my view, it was reasonably open to the Magistrate to take the view which he did of Ms Harmer's evidence. He did not ignore that evidence, and specifically referred to it in his reasons. His Honour noted Ms Regan's response in cross‑examination that she did not know anything about dogs and would not have a clue whether female dogs do or do not cock their legs when urinating. It was clearly open to him to reach the conclusion that that aspect of the evidence did not displace the other evidence identifying Suzi La La.
The second complaint made under this ground is that the Magistrate failed to take into account, or accept into evidence, a chain said by the appellant to be that which secured Suzi La La to the wire run. In fact, the Magistrate did not decline to accept the evidence. Rather, he advised the appellant, correctly, that he could not tender the chain through Ms Regan, who was unable to identify it, but could do so when presenting his own case. The appellant did not pursue the tender of the chain.
The Magistrate referred to the evidence concerning the chain in his reasons. He noted that Mr Geary had not put the chain into evidence, but said that he was able to see it on the bar table, and that he had seen the video of the seizure of Suzi La La which showed the chain which was attached to her at the time she was seized. He noted, however, that there was no evidence that the chain which he saw on the video is the same chain that held her immediately before the incidents which are the subject of the complaints. It is true that the appellant adduced no evidence whatsoever about the chain. He was not prevented from doing so by the Magistrate. It was open to him to give evidence, or to give evidence through his wife, about the chain, and whether the chain which he had in his possession was the same chain which secured the dog at the time of the incidents in question. There is still no evidence as to those matters in any admissible form.
The third piece of evidence said to be overlooked was the response by the ranger to an assertion, recorded on the video tendered in evidence, that the ranger knew it was not Mr Geary's dog who carried out the attacks. That evidence was not specifically referred to by the Magistrate in his reasons for decision. The matter did, however, receive considerable attention during the cross‑examination of Mr Sharp. He initially said that he did not recall being asked whether he knew that it was not Suzi La La who was responsible for the attacks. The Court then watched the whole video of the seizure of the dog. Mr Sharp then accepted that Mr Geary had said to him 'you know that it wasn't my dog', and as Mr Sharp walked off he said 'yep'. In the interchange which followed after the video had been played, Mr Sharp continued to maintain that his utterance 'yep' was not a response to the question which had been put.
Given that Mr Sharp was not the witness to the attacks, whatever knowledge he might have had about the identity of the dogs carrying out the attack was necessarily hearsay. The Magistrate was not called upon to rely in any way on evidence from Mr Sharp as to the identity of the dog which carried out the attacks. As the Magistrate's decision makes clear, he relied upon the evidence of the three eye witnesses in relation to the identity of the dog. It was not necessary for him to mention the evidence of the exchange on the video.
This ground has no prospects of success, and leave to appeal on ground 2 should be refused.

Ground 3 ‑ Failure to allow evidence to be submitted

This ground was not separately dealt with in submissions, and presumably is a reference to matters dealt with in ground 2. It needs not be further considered. Leave to appeal on this ground should also be refused.

Ground 4 ‑ Failure to exclude evidence not produced before trial

This ground relates to the use of an aerial photograph which depicted the location of the appellant's property relative to its surrounding area, and to the production of the photographs by Mr Walker of his injuries. As I understand the appellant's contention, it is that these photographs were not produced in advance of the trial by way of disclosure.
No objection was raised at trial to the tender of the photographs. In relation to the aerial photograph, Mr Geary was specifically asked whether he had any objection to its tender, to which he replied 'no'.
Reference was made in submissions to the tender by the prosecution of a photograph of the dog used for identification purposes, but that photograph was not accepted in evidence following objection by the appellant. Therefore, it formed no part of the prosecution case.
As to the photographs of the injuries to Mr Walker, they were admitted without objection, and were the subject of cross‑examination by the appellant as to their source and relationship to the attack which Mr Walker had alleged. No objection was made to their non‑disclosure prior to trial.
The appellant's contention is that he did not make an objection because, by the time photographs were tendered, they had already been referred to by the witnesses, and were thus part of the case so that an objection would be pointless. That misconceives the effect of the refusal of a tender. In any event, the only real issue at trial appears to have been the identity of the dog which carried out the two attacks. None of the photographs concerned related to that issue in the trial. Even if, contrary to my conclusion, they should not have been admitted in evidence, no substantial miscarriage of justice has resulted.
Leave to appeal in relation to ground 4 should be refused.

Ground 5 ‑ Allowing evidence not certified

At the initial hearing on 28 February 2014, the appellant, through Mrs Geary, indicated that this ground related to the photographs of the bite marks produced by Mr Walker. This ground was not further dealt with in the appellant's submissions at the final hearing of the appeal. There is no merit in it. The photographs produced by Mr Walker were identified by him for the purposes of their tender. They did not require certification.
Leave to appeal in relation to ground 5 should be refused.

Ground 6 ‑ Excessive penalty

In support of this ground, the appellant points to a number of hardships which have resulted from the terms of the proviso to the destruction order. It can be accepted that the requirements of the proviso are inconvenient. In my view, however, it was open to the Magistrate to make the orders which he did, given the seriousness of the attacks which he found had occurred.
There is no basis to interfere with the orders of the Magistrate, and leave to appeal on this ground should also be refused.

Conclusion

For the foregoing reasons, leave to appeal should be refused on all grounds, and the appeal should be dismissed.