Gerald Grey v Corporation of the City of West Torrens No. SCGRG 93/1233 Judgment No. 4119 Number of Pages 8 Criminal Law and Procedure
[1993] SASC 4119
•25 August 1993
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J
CWDS
Criminal law and procedure - Order for destruction of dog - remitted with conditions - conditions not complied with - appellant did not deliberately flout court order - reasonable possibility that breach resulted from appellant's medical condition - magistrate in error when characterising seriousness of breach. Dog Control Act ss 35, 40, 44, 50. Coombe v Douris
(1987) 47 SASR 324, considered.
HRNG ADELAIDE, 10, 13 August 1993 #DATE 25:8:1993
Counsel for appellant: Mr T Bailey
Solicitors for appellant: Trevor Bailey
Counsel for respondent: Mr K Tredrea
Solicitors for respondent: Normal Waterhouse
ORDER
Appeal allowed.
JUDGE1 OLSSON J This is an appeal against an order of a stipendiary magistrate, in which he made a variation of an earlier order against the appellant pursuant to section 50 of the Dog Control Act. The effect of the order appealed against, in practical terms, is that a German Shepherd dog known as "Usher", owned by the appellant, must be destroyed. 2. It is necessary, for the purposes of placing the appeal in context, briefly to review the factual history leading up to it. 3. The appellant has, at all material times, been the owner of two German Shepherd dogs named "Usher" and "Caesar" respectively. Those dogs were, as at 6 May 1992, normally kept at premises at 3 Marlow Road, Keswick, where the appellant resided. The appellant is a man now said to be about 60 years of age and, according to medical certificates to which I shall refer, suffers both medical and psychological problems. It is said that these have given rise to long standing impairment of both concentration and memory, although the certificates are no more specific than that. 4. There has been a lengthy history of proceedings relating to the dogs in question. 5. On 24 July 1992 the Corporation of the City of West Torrens ("the Corporation") charged the appellant with four separate breaches of the DogControl Act. It was alleged that, he being the person responsible for the control of them, Usher had, on 6 May 1992, been wandering at large (section 35) and had attacked a person (section 44(1)) and Caesar, on the same day, had also been wandering at large and, as well, had harassed a person (section 44(1)). 6. Although the appellant originally pleaded not guilty to these charges, the proceedings, after a series of adjournments, eventually came before Mr Kelly SSM on 9 November 1992. At that time the appellant entered a plea of guilty to the charges, whereupon the learned magistrate made an order (which was apparently not drawn up and signed until the next day) in the following terms:-
"UPON HEARING the evidence in this matter concerning the
activities of a white German Shepherd dog called 'Usher' and a
black and tan German Shepherd dog called 'Caesar' (the 'dogs')
owned by the defendant and which dogs are normally kept on the
property at 3 Marlow Road, Keswick in the State of South Australia
and in particular where the dogs attacked and harassed another
person and were wandering at large AND UPON the Court being
satisfied that the dogs are dangerous IN EXERCISE of the powers
contained in Section 50 of the Dog Control Act, 1979, IT IS HEREBY
ORDERED AND DIRECTED:
1. That this order is directed to the Dog Control Officer for
the Corporation of the City of West Torrens (the 'Dog Control
Officer') of 165 Burbridge Road, Hilton in the said State.
2. That the Defendant disclose the location of the dogs upon
demand of the Dog Control Officer.
3. That the person who has custody and control of the dogs give
up and deliver either or both of them on demand to the Dog Control
Officer.
4. That the Dog Control Officer as soon as practicable after
receiving delivery of either or both of the dogs and in any event
no later than fourteen (14) days thereafter, destroy the dog or
dogs or cause the dog or dogs to be destroyed.
5. That the order for destruction for each dog be remitted:
(1) as long as it is kept and restrained as follows:
(a) It be kept in the back yard at 3 Marlow Road Keswick (so
long as the defendant lives at that address) fenced or enclosed by
a fence or other barrier of such height, strength and security as
to 3 prevent the dog from escaping or reaching out or attacking
any animal or person outside such yard;
(b) If the dog is in any place other than the back yard at
number 3 Marlow Road Keswick it be restrained by a strong leash
not exceeding two metres in length held by a person capable of
exercising effective control over the dog;
(2) As long as the dog does not attack any other animal or
person.
6. The defendant ensures that each dog is kept and restrained as
indicated in paragraph 5 of this order.
7. That the defendant within 12 months pay to the registrar
seventy nine dollars and ninety five cents ($79.95) to be received
for and on behalf of Dianne Catharina Mattson as compensation for
damage to her jeans.
8. That the defendant within 12 months pay to the registrar two
hundred and twenty four dollars ($224.00) to be received for and
on behalf of Mr Robert John Wright as compensation for medical
expenses and damage to his trousers.
9. That the defendant pay for all costs ancillary to and
associated with this order." 7. The detailed circumstances relating to the incidents which gave rise to the charges appear from the transcript to be found on the Supreme Court file 772/1993 and do not here require repetition. 8. It appears that there were also separate proceedings (referred to in Supreme Court file 426/1993, from which one of the medical certificates above referred to seems to have emanated) initiated by the police against the appellant, in which he was, inter alia, charged with an offence that, on 27 June 1992, he was a person liable for the control of a dog which attacked one Jovivecic, contrary to section 40 of the Dog Control Act. This led to a trial before Mr Boxall SM who, ultimately, found the charge proved and, on 15 February 1993, made an order in terms similar to that of Mr Kelly SSM. The charge on this occasion appears to have been related to the dog Usher. 9. The appellant prosecuted appeals against both of the orders above referred to. These came before Prior J on 6 May 1993, at which time the appellant seems to have changed his place of residence to 6 Wastell Court, Pennington. 10. Save for altering the conditions of the orders to recognise that situation, Prior J, in effect, dismissed the appeals. 11. On 27 January 1993 the Corporation lodged an application for an order of the Magistrates Court varying the order of Mr Kelly SSM on the ground that the appellant had failed to comply with the terms of the order of 10 November 1992. 12. This application came before Mr Iuliano SM on 9 June 1993. Unfortunately there was no transcript taken of the hearing of that application. The endorsement on the file, as initialled by the learned magistrate, reads as follows:-
"Mr Tredrea for Council Mr T Bailey for def. DA Appln. to
vary order. Opposed. Granted (in terms of Minutes herein.)
Appln. by Mr Tredrea for costs $135 and counsel fee of $135.
Court fees $64 Levy 20 Prosn costs 45 Counsel 135 $264 TTP: 6 mth
ID: 6 days 9.6.93 (signed) SM" 13. The minutes, as referred to in that endorsement and initialled by the learned magistrate, are expressed as under:-
" MINUTES OF ORDER UPON HEARING the evidence in this
matter concerning the activities of a white German Shepherd dog
called 'Usher' and a black and tan German Shepherd dog called
'Caesar' (the 'dogs') owned by the defendant and which dogs are
normally kept on the property at 3 Marlow Road, Keswick in the
State of South Australia and in particular where the dogs attacked
and harassed another person and were wandering at large AND UPON
the Court being satisfied that the dogs are dangerous IN EXERCISE
of the powers contained in Section 50 of the Dog Control Act,
1979, IT IS HEREBY ORDERED AND DIRECTED:
1. That this order is directed to the Dog Control Officer for
the Corporation of the City of West Torrens (the 'Dog Control
Officer') of 165 Burbridge Road, Hilton in the said State.
2. That the Defendant disclose the location of the dogs upon
demand of the Dog Control Officer.
3. That the person who has custody and control of the dogs give
up and deliver either or both of them on demand to the Dog Control
Officer.
4. That the Dog Control officer as soon as practicable after
receiving delivery of either or both of the dogs and in any event
no later than fourteen (14) days thereafter, destroy the dog or
dogs or cause the dog or dogs to be destroyed.
5. That the order for destruction in respect of the black and
tan German Shepherd Dog be remitted:
(1) as long as it is kept and restrained as follows:
(a) It be kept in the back yard at 6 Wastell Court, Pennington
(so long as the defendant lives at that address) fenced or
enclosed by a fence or other barrier of such height, strength and
security as to prevent the dog from escaping or reaching out or
attacking any animal or person outside of such yard;
(b) If the dog is in any place other than the back yard at 6
Wastell Court, Pennington it be restrained by a strong leash not
exceeding two metres in length held by a person capable of
exercising effective control over the dog;
(2) as long as the dog does not attack any other animal or
person.
6. That the defendant ensures that the dog is kept and
restrained as indicated in paragraph 5 of this order.
7. That the defendant within 12 months pay to the Registrar
seventy nine dollars and ninety five cents ($79.95) to be received
by him for and on behalf of Dianne Catharina Mattson as
compensation for damage to her jeans.
8. That the defendant within 12 months pay to the Registrar two
hundred and twenty four dollars ($224.00) to be received by him
for and on behalf of Mr Robert John Wright as compensation for
medical expenses and damage to his trousers." 14. The notice of appeal seeks to challenge the propriety of that order on these stated grounds:-
"1. The Magistrate erred by failing to find that the breach
was both singular and minor in nature.
2. The Magistrate erred in failing to give proper weight to the
appellant's submission that memory lapses mitigated the charge
that the breach was deliberate and contemptuous.
3. The Magistrate erred in considering the potential for damage
to other animals or persons as if the occasion of the breach was
part of a series.
4. The Magistrate erred in failing to give proper weight to the
fact that at all material times the dog was beside, and the
appellant submits in the control of, the appellant." 15. Before I turn to the facts as put to the learned magistrate, it is of relevance to recapitulate certain remarks made by Mr Boxall SM in making his order of 15 February 1993. 16. He found as facts that, on 27 July 1992, the appellant was driving his vehicle along Hampton Road, Keswick with the dog Usher running along side of it. As he neared the victim Jovicevic, who was on the footpath, the dog veered towards him and seized his foot in his jaws. Shortly afterwards, the dog, which was then in the appellant's vehicle, was observed by police officers snarling and growling at them. The learned magistrate recited that he found the appellant a most unsatisfactory witness, but that he had, at one point, clearly said that his dog was trained to attack, but, nevertheless, "was as docile as a lamb". 17. Having convicted the appellant Mr Boxall SM, inter alia, made these comments in the course of his remarks as to penalty:-
"... on 6 August 1992 and 3 October 1992 citizens were
attacked in Marlow Road, Keswick by the white German shepherd
belonging to the defendant in. On both occasions the citizens
were actually bitten by the dog in the attack. In relation to at
least a Mr Wright, he sustained some injuries to his legs as a
result of the attack. Unfortunately the prosecutor did not have
the full prosecution brief in front of him in court but I have, it
seems to me, enough information to be satisfied that those attacks
did occur to citizens and the dog actually bit them. As a result
of those attacks, Mr Grey was prosecuted and he pleaded guilty to
two counts of breaching Section 44 of the Dog Control Act and two
counts of breaching Section 35 of the Dog Control Act. ... It is
clear from the preamble to the order that Mr Kelly SSM on that
occasion found that the dogs, including the white German shepherd,
was unduly mischievous or dangerous such that an order for the
destruction was warranted, but thought that some order such as a
requirement that the dogs be kept in tight security may possibly
alleviate the problem short of the actual destruction of the dog.
His Honour at that time of the course did not have this third
attack before him as a charge, nor did he necessarily have certain
admissions made by the defendant which I shall advert to in a
moment. Those attacks occurred in May of 1992 and this particular
attack occurred in June of 1992 so that I have a dog that I know
has attacked three members of the public within the space of one
month in 1992. It may well be that if his Honour had known about
this additional charge he would have ordered the immediate
destruction of at least the white German shepherd. I am told that
there is an application before his Honour by the Council later
this week for the stay of that order to be lifted and for the
destruction of both dogs because the terms of the order have been
breached. I am told that the Council has filmed evidence of the
dogs running at large after the order was made by Mr Kelly SSM.
Those matters are not formally proved before me, but I simply
advert to them as a matter of history in this matter. Obviously
if I order the destruction of at least the white German shepherd,
it will be unnecessary for Mr Kelly to further consider that
matter. So far as the White German shepherd is concerned a
further matter that is highly relevant is that the defendant made
at least one and possibly more statements (I do not have a
transcript in front of me) to the effect that this particular dog
is trained to attack people. I found the defendant to be a rather
odd gentleman whilst giving evidence and I have made some comments
about that. It was, therefore, rather difficult to be sure that
anything he said was truthful. Nevertheless for what it is worth
the defendant did admit as much to the court which only increases
my concern about this dog being allowed to continue to exist in
our community. A final matter which I have taken into account is
the defendant's whole approach to this matter. He has pleaded not
guilty. He has made repeated remarks both in the witness box and
in the body of the court which indicates that he sees himself
simply as a victim in all these circumstances. He gave distinctly
odd and bizarre evidence so far as the dog attack was concerned.
He seems to have taken no responsibility for the dog attack either
on the day it happened or subsequently. I am not at all convinced
that he is a citizen that can be entrusted with the further care
of this animal and that is another reason, at least, why I
consider that it is important to order the destruction of the dog.
I have been given some suggested minutes of order and subject to
some modifications to allow for the possibility of an appeal, in
my order I will adopt these minutes of order." 18. It is stating the obvious to say that those findings formed an important backdrop to the application which came before Mr Iuliano SM. 19. As I understand the situation the facts advised to Mr Iuliano SM on the application before him were simply that the breach asserted consisted of the appellant, on 4 January 1993, walking along a public street accompanied, inter alia, by Usher, who was not then restrained by a leash as required by the order made by Mr Kelly SSM. It was made known to the learned magistrate that there was no suggestion that, at the time, any threat or untoward incident arose as a consequence of the dog not being on the leash. 20. Whilst not disputing the actual breach, counsel for the appellant submitted to the learned magistrate that the incident was a "one off" situation which, by then, had occurred a significant time in the past and was, in a sense, minor - because no ill consequences had flowed from it. It was put that the breach was not deliberate and that there were medical reports in existence which indicated that the appellant suffered memory loss on occasions. Copies of those reports were not actually before the learned magistrate, although they are now before me by consent, in addition to that coming from file 426 of 1993 which I admitted for present purposes as complementing those which were tendered. The former confirm that the appellant does suffer memory disturbances, which are worse in the mornings. 21. The learned magistrate was told that the appellant had been particularly assiduous with regard to his responsibilities following the incident complained of and that there had been no further problems. It was strongly pressed upon him by counsel for the appellant that the justice of the case did not require the making of an order which would give rise to the destruction of Usher. 22. Counsel for the respondent took a somewhat sterner line and, in effect, invited the learned magistrate to view what had happened as a deliberate flaunting of the order of the Court in a manner which should be categorised as serious, particularly having regard to the proven propensities of the animal. 23. I here pause to make the point that no evidence was adduced to establish the proposition that there had been a deliberate flouting of the order by the appellant. By analogy with the more normal sentencing process it was incumbent upon the learned magistrate to take the view of what factors were before him which, reasonably, was that most favourable to the appellant. Whilst counsel for the respondent did not formally concede the medical conditions of the appellant, he also did not call for evidence of it or plainly seek to place what had been said in substantial issue in a manner calculated to give rise to a disputed facts situation. The learned magistrate was thus bound to accept what had been put to him and has, by consent, now been confirmed to me in the medical certificates. In all fairness the learned magistrate did not have the important earlier history files which exist in this court and contain the ever more specific medical certificate to which I have referred and which I permitted to be tendered for a limited purpose. 24. Unfortunately I do not have any official record of what pronouncement was made by the learned magistrate when he made the order now appealed against. Counsel agree that, from contemporaneous notes made by them, it was to the following effect:-
"This application was brought by the West Torrens Council
against Gerald Grey to vary an order (then describes the nature
of the order previously made by Mr Kelly SSM) by revoking para.5
containing an order for the remission of the order made on 10
November 1992. The application is brought on the basis that
Gerald Grey failed to comply with an order on the offence date in
January and, in particular, that the defendant failed to have one
of the dogs restrained that is referred to in para.5. It is
alleged that the defendant was seen on 4 January 1993, with the
white Alsatian dog, out on the public street, and the dog was not
restrained by a leash pursuant to para.5(1)(b) of the order. The
defendant has admitted that allegation, but says that this was
only a minor breach. There was no danger from the dog. There was
no evidence of potential danger. The defendant was beside the dog
at all material times on the street. There was also an allegation
that the defendant has failed to comply with the terms of para.2,
in that the defendant failed to disclose the location of the dog
when requested by an officer of the complainant to do so. I am
told the respondent does not know the whereabouts of the dog and,
therefore, is unable to comply with that request. Though I have
no evidence before me proving the contrary, I suspect that the
defendant is lying. I cannot say that the allegation is untrue,
but I cannot say the allegation is true. I have a strong
suspicion that he is misleading the court. With respect to the
breach in para.5 allowing the dog to stray out to the street
without a leash, I do not consider it a minor or trivial breach.
The defendant was well aware of the serious nature of the order
and the contents thereof and deliberately flouted the terms of the
order. The potential to attack another animal or person was
enhanced and the defendant's control of the dog diminished.
Having considered everything, I find that I have no alternative
but to grant the application and revoke para.5 with respect to the
dog." 25. I here digress to make the point that, unlike Mr Bailey, of counsel for the appellant, I do not take the learned magistrate to be inferring the existence of some actual or potential series of breaches when he used the expression "enhanced". I take him merely to be making the point that, because the dog was not being restrained in accordance with the order, there was a necessary lessening of the capacity of the appellant immediately to control it and a consequential danger that it might well attack someone, as it previously had done. 26. Much has been said on the hearing of this appeal but it seems to me that, particularly with the benefit of the medical reports which are before me (and even on the lesser material which was before the learned magistrate but not controverted) it could not be found that the appellant had deliberately flouted the court order in a manner which attracted the type of reasoning articulated by King CJ in Coombe v Douris (1987) 47 SASR 324 at 325 - as contended by Mr Tredrea, of counsel for the respondent. It at all times has remained a reasonable possibility that the breach was as a result of inadvertence stemming from the appellant's demonstrated medical condition. 27. It follows that the learned magistrate has fallen into error in his finding as to the proper characterisation of what transpired and of the inherent degree of seriousness of the breach. When that factor is coupled with the necessary conclusion that the incident did not give rise to any actual serious incident, then the actions of the appellant fell to be viewed with a very different perspective. 28. I am unable to accept that, given the lastmentioned situation, it was appropriate to make an order having the profound effect of that which is now under consideration. 29. The appeal must be allowed and the relevant order set aside, insofar as it revokes paragraph 5 of the order of Mr Kelly SSM, as altered by Prior J. However, it is beyond question that the conduct of the appellant precipitated the present proceedings (for which he could well have been prosecuted) and that this appeal has been disposed of in large measure on the basis of additional information which was not before the learned magistrate. The orders as to costs made in the court below must stand and the appellant cannot reasonably expect the costs of this appeal. 30. It is stating the obvious to say that the appellant has now received a salutary warning as to the potential consequences of any breach of the section 50 order, be it deliberate or inadvertent. If there is a further breach, however it comes about, the court may, in the public interest, well have no option but to order as the learned magistrate here did.
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