Gornalle v Visser

[2000] TASSC 146

[2000] TASSC 146

CITATION:           Gornalle v Visser [2000] TASSC 146

PARTIES:  GORNALLE, Richard Phillip
  v
  VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA 9/2000
DELIVERED ON:  17 October 2000
DELIVERED AT:  Launceston
HEARING DATE/S:  6, 17 October 2000
JUDGMENT OF:  Crawford J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicant:  In person
           Respondent:  P R Sherriff
Solicitors:
           Appellant:  In person
           Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2000] TASSC 146
Number of paragraphs:  9

Serial No 146/2000
File No LCA 9/2000

RICHARD PHILLIP GORNALLE v CLAAS VISSER

REASONS FOR JUDGMENT  CRAWFORD J
  17 October 2000

1. The applicant was charged with being the owner of a dog, namely a Maremma (Italian Sheep Dog), which was at large, contrary to the Dog Control Act 1987, s28(2).  He was also charged with being the owner of that dog when it attacked a person, namely Mrs Annette Love, by biting her on the right leg and wrist and tearing her top, contrary to the Act, s33(1).  After a defended hearing the complaint was found proved.  He was convicted of both counts, fined and ordered to pay costs.  A control order was made under the Act, s59(3)(c), requiring him to have the dog chained and muzzled at all times while in a public place including the laneway between his property and the Love's property at Longford.

1. He applied to review his convictions on two grounds, firstly that the learned magistrate erred in law by failing to adequately state his findings and the reasons for his decision and secondly, that the learned magistrate erred in fact because the decision was against the evidence and against the weight of the evidence.  Neither ground was established.  However, the applicant successfully argued that a substantial error occurred in the reasoning of the learned magistrate, which is reflected in a further ground I allowed to be added to the motion to review in these terms:

"That the magistrate's conclusion that the complaint was proved was based substantially on an erroneous belief on the part of the magistrate that the applicant had given evidence that the dog was chained up at the relevant time".

1. It was the evidence of Mrs Love that she drove her motor vehicle to the end of the laneway which was shared by the two premises.  She got out of the vehicle intending to open her gate.  She was then attacked by the applicant's dog, being bitten on the upper thigh and also on the hand as she endeavoured to ward it off.  The applicant's son, Jordan, who according to the magistrate was 10 years old at the time of the hearing, called the dog off, she said. 

1. It was the applicant's evidence that the dog was with him in the kitchen of his house at that time and therefore it could not have attacked Mrs Love. 

1. In his reasons for the decision, the learned magistrate said that it was the applicant's evidence that the dog was never left alone in the yard and "that he chains the dog up, even when it is inside with him, and even though it is not necessary to do so".  The learned magistrate also stated that the applicant "said that at the time of the alleged attack the dog was inside with him and chained up".  His Worship referred to the evidence of the applicant's daughter, Saffron, that the dog did not get chained up in the kitchen, and that although it might be chained outside she had not seen it chained inside.  Reference was also made to the evidence of the applicant's wife that if the dog was chained up, it was chained up outside the kitchen door.  The evidence of the applicant's wife and daughter was plainly in disagreement with what the learned magistrate believed the applicant had said.  His Worship referred to the applicant being "quite vehement in asserting that the dog was chained up inside" and then said the following:

"I do not accept the defendant's evidence that the dog was chained up whilst with him in the kitchen at the time of the attack.  Indeed, I am satisfied that he was dissembling as to this."

1. A consideration of the transcript of the evidence reveals that the learned magistrate misunderstood what the applicant had said in evidence.  At no time had he asserted that the dog was chained up inside and certainly not whilst it was in the kitchen.  It was his evidence that the dog was in the kitchen with him at the time of the alleged attack and that it was always in the kitchen with him at that time of night.  In cross-examination he was asked how often the dog was outside in the back yard and in the course of his answer he said that the dog was "chained during the day because it sits next to me while I work …".  He was cross-examined at length about the need to chain the dog, if it was a docile one as claimed by him.  He was pressed a number of times concerning "why do you chain the dog up" and eventually he said that "I've got a little workshop area there, I've got saws and electricity and goodness knows what, that's what I do".  At one point the prosecutor asked whether the dog was chained up on the day in question, and also a month before and a month before that.  The applicant's response was, "unless it's in the house with me, yes."

1. Therefore, it is clear from the transcript that the learned magistrate was mistaken concerning the evidence given by the applicant of chaining the dog.  At no time had the applicant asserted that the dog was chained up in the kitchen with him or that it was ever chained up while inside the house.  His evidence about that was in agreement with the evidence of his wife and daughter. 

1. It was the misunderstanding of the learned magistrate that caused him to conclude that the applicant was dissembling about the matter.  As a consequence of that, the learned magistrate went on to draw an inference adverse to the applicant because of his failure to call as a witness his 10 year old son, who might have been expected to have been called to refute the claim of Mrs Love that he had called the dog off her.  The applicant's evidence was that he did not call his son to give evidence because he did not wish to expose him to the Court process.  The learned magistrate said that he was "satisfied that it is more a pretext than genuine concern, given my satisfaction wherein I have described the defendant as a dissembler".  His Worship was entitled to draw an adverse inference against the applicant because of his failure to call his son as a witness.  Jones v Dunkel (1959) 101 CLR 298. But on the face of what his Worship said, he drew the adverse inference because he had concluded that the applicant was a dissembler, and I am satisfied that the learned magistrate was wrong in the reasons he gave for categorising the applicant in that way.

1. I have dealt with the principal reasons advanced by the learned magistrate for concluding that the complaint had been proved.  In the circumstances, given the plain error that was made, the only appropriate course is to be set aside the finding and the convictions.  The usual course will follow and that is to order that the complaint be reheard before another magistrate.  I add that I have not reached a conclusion that the evidence established that the applicant was not guilty, or anything like that.  I have merely found that the learned magistrate committed a material error in the course of his reasons and for that reason alone the convictions cannot be allowed to stand.