Grey v City of Marion - [2006] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GREY v CITY OF MARION
Reasons for Decision of The Honourable Justice Debelle
11 January 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Magistrates appeal – appeal 18 months out of time – whether leave should be granted to bring appeal – appellant found guilty of offence under Dog and Cat Management Act 1995 – appellant unrepresented at trial – some irregularities at trial – whether magistrate conducted trial fairly – whether magistrate biased – whether miscarriage of justice – held, no reason to extend time to appeal – application for leave dismissed – substantial merits of appeal considered – held, appellant properly convicted.
Dog and Cat Management Act 1995 s 43, s 86; Magistrates Court Act 1991 s 20; Magistrates Court Rules 1992 r 10, referred to.
Gallo v Dawson (1990) 98 ALR 479; Pezos v Police [2005] SASC 500, applied.
Chapman v Rogers [1984] 1 Qd R 542; Clay v Karlson (1997) 17 WAR 493; Commissioner for Corporate Affairs v Harvey [1980] VR 669; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Gikas v Police (1999) 202 LSJS 301; Hughes v National Trustees Executor & Agency Co of Australasia Ltd [1978] VR 257; Jackamarra v Krakouer (1998) 195 CLR 516; Johnson v Johnson (2000) 201 CLR 488; MacPherson v The Queen (1981) 147 CLR 512; McPherson v Groeneveld (unreported, Supreme Court of SA, 21 February 1997, judgment no S6052); R v Gidley [1984] 3 NSWLR 168; R v Secretary for Home Department; Ex parte Mehta [1975] 1 WLR 1087; R v Secretary of State for India in Council; Ex parte Ezekiel [1941] 2 KB 169; R v Zorad (1990) 19 NSWLR 91; Sheahan v Northern Australia Land & Agency Co Pty Ltd (1994) 176 LSJS 257, considered.

GREY v CITY OF MARION
[2006] SASC 3
Magistrates Appeals: Criminal

DEBELLE J. The appellant was charged with the offence of being the owner or being responsible for a dog, namely a German Shepherd Cross which had harassed a person contrary to s 43 of the Dog and Cat Management Act 1995. The offence was alleged to have occurred on 18 April 2002. The appellant pleaded not guilty. He was convicted on 1 September 2003, after a hearing in the Adelaide Magistrates Court. He appeals against that conviction.
The appeal was not instituted within 14 days as prescribed by the Supreme Court Rules 1987. Although dated 3 March 2005, the notice of appeal was not filed until 12 April 2005, more than 18 months out of time.
The court has a discretion whether to grant an extension of time within which to appeal. That discretion exists for the sole purpose of doing justice between the parties: Hughes v National Trustees Executor & Agency Co of Australasia Ltd [1978] VR 257 and Gallo v Dawson (1990) 93 ALR 479. When exercising that discretion it will have regard to the length of the delay, the reasons for it, whether there is an arguable case and the extent of any prejudice suffered by the intended respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and McPherson v Groeneveld (unreported, Supreme Court of SA, 21 February 1997, judgment no S6052). A distinction is to be drawn between an application for an extension of time within which to appeal and an application for an extension of time to set down an appeal which has been already instituted: Jackamarra v Krakouer (1998) 195 CLR 516. This application is obviously an instance of the former.
When considering whether an appellant has an arguable case, the court does not go into “much detail on the merits”: R v Secretary For Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091; Jackamarra v Krakouer at [9] and [66]. An appellant will not have an arguable case if it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable”: Jackamarra v Krakouer at [34]. Where the appellant has been convicted of a criminal offence, the Court will only grant an extension if the parties seeking the extension can point to the real possibility that a miscarriage of justice might occur if the Court does not extend the time within which to appeal: Gikas v Police (1999) 202 LSJS 301 at 306 where it is noted that there may be cases where the Court cannot do justice without hearing the appeal on the merits.
The delay in instituting this appeal is very long. An affidavit has been filed which purports to explain the delay. The appellant relied on the fact that he has been involved in a number of other legal proceedings and has suffered a number of medical complaints. The affidavit lacks particularity. As Lander J said in Gikas v Police at 304:
In my opinion no party is entitled to an extension of time within which to appeal unless that party explains, with appropriate frankness and candour, the reasons why the party did not observe the Rules of Court and in particular the time limits imposed by those rules: Hall v Nominal Defendant (1966) 117 CLR 423 at 435. The longer the delay the better the reasons need to be to explain that delay; R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; Armstrong v R (1983) 35 SASR 356.
I am not satisfied that the appellant has explained the reasons for his delay with appropriate frankness and candour. I am not satisfied that he could not have lodged a notice of appeal in reasonable time.
The appellant asserts that the legal proceedings in which he has been involved include appeals to this Court, proceedings in the Residential Tenancies Tribunal and an appeal in the District Court in respect of the proceedings in the Residential Tenancies Tribunal, prosecutions in the Magistrates Court and applications for restraining orders. He says he has been involved in eleven other cases since the judgment. In addition, the appellant asserts that he has been incapacitated by various illnesses and deteriorating health. He says that he has had to attend many medical appointments.
When all due allowance is made for these factors, the appellant has not satisfactorily explained the reasons for the extraordinary long delay in filing this notice of appeal. The delay is entirely of the appellant’s making. The fact that he has been in poor health or has been involved in other litigation is not an adequate explanation for this long delay. It is not suggested that he was in poor health throughout this time. Plainly, he was not, because he was making appearances in other litigation. His health and his involvement in other litigation might explain a delay of a few weeks or even a few months. It does not explain a delay of 18 months. In short, the appellant has not, in my view, satisfactorily explained the reasons for this extraordinary long delay.
I have also had regard to the appellant’s prospects of success on this appeal. As will be apparent from these reasons, the issues in this matter are in very narrow compass and turn on a simple question of fact, namely, whether the appellant’s dog harassed a person named Mrs Heather Sievers. There was no question that the appellant owned or was responsible for the dog. The only issue was whether the dog harassed Mrs Sievers and her two children. The appellant does not raise any question which challenges the findings of fact made by the magistrate. Instead, the appellant seeks to raise a number of procedural issues which have little or no merit and which do not affect the outcome. In that way he seeks to establish that a miscarriage of justice occurred. The appellant does not, in my view, have a reasonably arguable case. He does not in any respect demonstrate that a miscarriage of justice has occurred.
Court orders should not be subject to challenge a long time after they have been made without a satisfactory explanation as to the reasons why they were not challenged within the prescribed time and unless the interests of justice require it, that is to say, unless it is reasonably arguable that a miscarriage of justice has occurred. As I have said, no miscarriage of justice has occurred in this instance. It is quite unsatisfactory for the orders of the Adelaide Magistrates Court to be challenged so late, especially where the allegations concern an event which occurred on 18 April 2002.
For these reasons I refuse the appellant’s application for an extension of time within which to appeal. That is sufficient to dispose of the appeal.
However, lest I am wrong in reaching that conclusion I deal with each of the grounds of appeal.
The Prosecution Case
The prosecution case was that Mrs Sievers was walking along a street in Marion with her three year old son and one year old daughter, who was in a pram. Mrs Sievers also had with her a young dog on a lead. While walking along the street, three German Shepherd dogs were approaching from the other direction. None of the dogs was on a lead. They were the appellant’s dogs. One of those dogs ran ahead of the others and came right up to Mrs Sievers and her children, causing her children to scream. Mrs Sievers tried to pick up her children. A neighbour, Mrs Robertson, came out to provide assistance. Mrs Robertson described the dog as being about 12 inches from the child in the pram and said it was behaving aggressively. After Mrs Robertson had come to provide assistance, the dog returned to the appellant who was a little way off.
A Six Day Hearing
The hearing in the Magistrates Court occupied six days. That was in large part due to the fact that the court accommodated the appellant’s medical problems by listing the hearing for afternoons only.
The prosecution called three witnesses only, Mrs Sievers, Mrs Robertson, and Mr Macklin, a council inspector. Their evidence was in relatively narrow compass. The appellant cross‑examined Mrs Sievers and Mrs Robertson at considerable length and in large part dealt with irrelevant issues. Most of that cross‑examination concerned a history of ill feeling between the appellant and the two women and other neighbours. The cross‑examination was directed to showing that the witnesses were part of a conspiracy to have the appellant removed from his house, which he leases from the South Australian Housing Trust. The magistrate accepted the evidence of the prosecution witnesses. The magistrate noted that nothing was adduced in cross‑examination to question the effect of their evidence.
The appellant did not give evidence. I simply note that fact, acknowledging that it was for the prosecution to prove its case. The appellant had no obligation to lead any evidence.
I turn to examine each of the appellant’s grounds of appeal.
Ground 1
The first ground of appeal was that the magistrate erred in refusing to authorise the issue of subpoenas.
The term “subpoena” is not used in the Magistrates Court Act or in the Magistrates Court Rules. Instead, a subpoena is called a “summons to a witness”: see s 20 of the Magistrates Court Act 1991 and r 10 of the Magistrates Courts Rules 1992. A party must apply to the court for a summons to a witness to issue. The magistrate has a discretion to refuse to order a summons to issue.
The appellant applied for a summons to be issued to call six witnesses. His reasons for seeking to call them were that they were all “essential to my case to show that there is a conspiracy or collusion”. None of the witnesses was in a position to give relevant evidence concerning the question whether the appellant’s dog had harassed Mrs Sievers. The appellant had put to Mrs Sievers and Mrs Robertson a large number of questions relating to complaints by other neighbours concerning his dogs. This was clearly an irrelevant issue. The magistrate attempted to restrict these questions. The appellant also asked questions seeking to suggest the complaints were false. Mrs Sievers denied it. He also asked Mrs Sievers and Mrs Robertson whether they were engaged in a conspiracy against him. They denied it. These were questions as to credit. The appellant was bound to accept the answers of these two witnesses. He could not call other witnesses to seek to establish the conspiracy. There was no legitimate forensic purpose in seeking to call those witnesses. The magistrate’s ruling was, therefore, correct.
The appellant also sought to subpoena the transcript of proceedings and other materials from the Residential Tenancies Tribunal for the same purpose. For like reasons, the magistrate was correct in refusing to permit him to do so.
Nothing was said in the course of the submissions made on behalf of the appellant which in any respect demonstrated any satisfactory reason why these persons should be called as witnesses or that the materials from the Residential Tenancies Tribunal should be produced. The appellant fails on this ground.
Ground 2
The second ground of appeal was that the magistrate erred in refusing to admit articles or documents which the appellant sought to tender. It is convenient to deal with each of them separately.
The first articles were an audio‑tape of a conversation and a transcript of that conversation which occurred between the appellant and two Council inspectors a short time after the incident the subject of the complaint. Those Council inspectors were Mr Nicholas and Mr Macklin. Mr Nicholas had prosecuted the complaint. Mr Macklin was called as a witness. An examination of the transcript demonstrates that it contains nothing relevant. In no respect does it belie the evidence given by Mr Macklin. No satisfactory reason was advanced why the magistrate had erred in refusing to admit the audio‑tape and the transcript of it. I am not satisfied that the magistrate erred in not admitting it. Furthermore, even if it ought to have been admitted, it contained nothing which would establish any fact which would assist in contending that a miscarriage of justice had occurred in consequence of it not being admitted.
The next article which the appellant sought to tender was a video‑tape of his dogs interacting with Mrs Sievers and her two children on another occasion. The fact that it relates to a separate event points to the fact that the video‑tape was irrelevant. It is a notorious fact that dogs behave differently on different occasions. Furthermore, Mrs Sievers candidly admitted in the course of her cross‑examination that on an earlier occasion there had been no difficulty between her and the appellant’s dogs, an observation confirmed by Mrs Robertson. There was no basis upon which this exhibit should have been admitted. Even if it should have been admitted, no miscarriage of justice resulted from its non‑admission.
The third article which the appellant sought to tender was a document from the Bureau of Meteorology. It is not entirely clear from the transcript (p 214) what the document purported to state. It appears that the appellant sought to tender it to show the state of daylight at the time of the events the subject of the complaint. The document was returned to the appellant. The appellant has lost it. It is not, therefore, possible to determine whether the document is relevant. In this respect the appellant is the author of his own misfortune. The appellant is unable to substantiate this ground.
The fourth article which the appellant sought to tender was a video‑tape of a television program. The prosecutor had a copy of the video‑tape of a program shown on the Channel Seven program Today Tonight. It was dated 6 July 2001. The prosecutor asked whether it was appropriate to show the video‑tape to rebut the effect of questions put to Mrs Sievers by the appellant. At first, the appellant consented to the video‑tape being shown but suggested it should be edited: see pp 151 – 153 of the trial transcript. Later, in the course of the evidence of Mrs Robertson, the issue of the video‑tape arose again. The appellant then suggested that the video‑tape contradicted the evidence of Mrs Robertson. However, he was reluctant to produce the video‑tape: transcript at 189 – 190. At p 196 of the transcript the appellant cross‑examined Mrs Robertson about an appearance in a television program on Channel Seven. Mrs Robertson admitted she was on Today Tonight for what she said were “two seconds”. The appellant asked if she “totally assassinated my character” in that time. Mrs Robertson denied it. She repeated what she had stated on the television program, which concerned a Mr Darbyshire. She said that Mr Darbyshire had sat in a car making a video‑tape of people in the street, especially those with a dog. At no stage did the appellant seek to tender the video‑tape. Indeed, at p 155 he objected to any use of it by the prosecutor. Throughout the hearing the appellant blew hot and cold on this issue. The critical fact is that he did not seek to use it. He cannot now complain that the magistrate erred in refusing to permit him to tender it. Further, it has not been demonstrated that the refusal to admit the video‑tape in any respect led to a miscarriage of justice.
For all of these reasons, the appellant fails in respect of ground 2.
Ground 3
The third ground of appeal was that the magistrate erred by rejecting the objection of the appellant to the fact that the prosecutor Mr Nicholas was also a likely witness in the proceedings.
Generally speaking, no one should be permitted to act as both counsel and a witness in a case: Sheahan v Northern Australia Land & Agency Co Pty Ltd (1994) 176 LSJS 257 at 266; R v Secretary of State for India in Council; Ex parte Ezekiel [1941] 2 KB 169 at 175(n); Commissioner for Corporate Affairs v Harvey [1980] VR 669 at 762; Chapman v Rogers [1984] 1 Qd R 542 at 544; Clay v Karlson (1997) 17 WAR 493 at 494 ‑ 495; Halsbury’s Laws of England (4^th ed, vol 17 at [953]).
As already mentioned, Mr Nicholas had spoken to the appellant shortly after the events the subject of the complaint. He ought, therefore, to have realised that there was a real possibility that he might have to give evidence either for the prosecution or if called by the appellant. His personal involvement in the matter made it undesirable for him to act as the prosecutor of the complaint. Late in the course of the hearing, he was replaced as prosecutor by a barrister at the independent bar. Mr Nicholas was produced for cross‑examination (see transcript p 228) but the appellant did not avail himself of the opportunity. In the result Mr Nicholas was not called as a witness.
The magistrate noted these fact in the course of her reasons. She said:
I note in passing that initially the prosecution intended to call as witnesses the Council inspectors who attended on 18 April including the inspector who spoke to Mr Grey. It became apparent during the course of the proceedings that one of those witnesses was also the prosecutor at the trial. Arrangements were then made to replace the prosecutor.
The magistrate did not identify any miscarriage of justice resulting from the fact that Mr Nicholas had acted as prosecutor. Having read the transcript, I am satisfied that no miscarriage of justice occurred. It is an instance of a departure from the proper course which fortunately has had no adverse consequence.
Mr Mancini, for the appellant, submitted that the fact that Mr Nicholas acted as the prosecutor prevented the appellant from calling Mr Nicholas as a witness. There is no substance in that ground. The fact that Mr Nicholas had been replaced as prosecutor meant that the way was clear for the appellant to call Mr Nicholas. In any event, Mr Nicholas could only give evidence as to the content of the conversation the subject of the recorded interview. As already noted, there is nothing in that interview which is relevant to the issues in the action.

For these reasons, this ground is entirely without substance.
Grounds 4, 5 and 6
The appellant abandoned grounds 4, 5 and 6 of the appeal.
Ground 7
The appellant next complained that the magistrate exhibited indications of bias towards him. The only particulars of this ground which are stated in the notice of appeal are that the magistrate did not permit the appellant to tape‑record the proceedings. Although a transcript of the proceedings was prepared, it appears that it was not available during the course of the hearing. At one point the magistrate referred to the fact that she did not have a transcript. The appellant sought to remedy this by tape‑recording the proceedings. On discovering that fact, the magistrate required the appellant to hand the tape‑recorder to an officer of the Sheriff’s Department who retained the tape‑recorder for the remainder of the proceedings. It is unnecessary to consider whether the magistrate had power to confiscate the tape‑recorder. She was entitled to seize it to prevent any improper editing of the tape. The real issue is whether, in doing so, the magistrate exhibited any bias towards the appellant.
The test is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. Confidence in the integrity and impartiality of judicial officers is of fundamental importance. There was nothing in the conduct of the magistrate which would cause a reasonable lay observer to believe that the confiscation of the tape‑recording in any way represented any bias on the part of the magistrate.
In the outline of submissions lodged by Mr Mancini it is stated:
The appellant relies upon the complaints made about the content of the trial and the failure of the magistrate to discharge the duties of the court to the appellant as an unrepresented defendant …
as well as upon the confiscation of the transcript. This assertion was not particularised in the course of Mr Mancini’s submissions on ground 7. However, ground 8 of the notice of appeal lists a number of grounds of alleged bias. Mr Mancini said he relied on what is contained in ground 8. I will deal with them when examining ground 8.
Ground 8
The appellant complained that the trial miscarried and was unfair so that the judgment of the learned magistrate was unsafe. A number of instances were specified. I deal with each in turn.
The first was that the magistrate erred in determining that the evidence of the Council inspector Mr Macklin and of the prosecution witness Mrs Sievers to the effect that the appellant’s dogs charged the inspector after the incident the subject of the complaint was relevant and admissible. It was contended that it was both irrelevant and inadmissible. The complaint concerns part of para [2] of the magistrate’s reasons where it was said:
His evidence was to the effect that when they approached Mr Grey his dogs charged at the inspectors and started to circle them. They then told the defendant to put the dogs away. Mr Macklin was asked during his evidence on the basis of his four years experience as a council dog controller whether, when a dog rushes at someone, it will attack. His evidence was that such a manoeuvre is intended to create fear. None of this evidence was challenged by the defendant. I accept it. It shows that, shortly after the incident the dogs, including the dog in question, were acting aggressively.
I do not accept this contention. The actions of the dogs were so close in point of time to the incident the subject of the complaint that the evidence was relevant and admissible. Mr Macklin’s evidence was in response to a question from the appellant asking for a comment on behaviour of dogs in the light of his experience as an inspector. This evidence did not give rise to any miscarriage of justice.
The next complaint was that the magistrate erred in deciding that the incident could have been avoided had the appellant had his dogs on a lead. Towards the end of her reasons the magistrate said:
At the end of the day, the incident would no doubt have been avoided had Mr Grey had his dogs on a lead. It is reasonable for Mrs Sievers to be able to take her children for a walk with her dog and not to have to confront other dogs behaving aggressively towards either her, her children or her dog. Had Mr Grey’s dogs been on leads, the aggression and consequent fear would have been minimised if not avoided entirely. Likewise, perhaps a simple apology by Mr Grey at the time would have avoided the animosity which resulted. None was forthcoming.
It was contended that, when making this determination, the magistrate had regard to irrelevant matters which were not the subject of evidence. The contention has no substance. The plain fact was that the appellant’s dogs were not on a lead. That was the conclusion which was clearly open on the evidence. In any event, the fact that the magistrate reached this conclusion did not represent or result in any miscarriage of justice.
A third complaint was that the magistrate failed to inform the appellant that it was important for him to give evidence or to call evidence. This states the duty to an unrepresented accused too highly. As will be noted shortly, a distinction must be drawn between informing an accused of his rights and advising an accused how to exercise those rights. In any event, the magistrate asked the appellant if he wished to give evidence or to call evidence. He said that he did not. It is apparent from the transcript of the hearing that the appellant was aware he could call witnesses. For example, one witness he intended to call was Mr Darbyshire. He was asked to wait outside the courtroom until he gave his evidence. This appellant is no tyro in litigation. He has a sufficient degree of experience to know that he was able to give evidence and he was able to call witnesses. In all the circumstances, there was no miscarriage of justice.
The appellant then contended that the magistrate should have advised him of a number of matters of importance so as to ensure a fair trial. The court must give an unrepresented accused such advice as is necessary to ensure a fair trial. The relevant principles are discussed in Pezos v Police [2005] SASC 500 at [8] ‑ [19]. For present purposes it is sufficient to note that, when a party is unrepresented, the interests of justice and fairness may require a judge or magistrate to provide a degree of assistance to the unrepresented party. At the same time, the judge or magistrate must not become too close to the unrepresented party lest the other party believe the judge or magistrate is not acting as an independent arbiter. As was said in Pezos v Police at [10]:
When a litigant represents himself, the judicial officer is placed in a difficult position. The judicial officer must, at all times, act impartially as an independent arbiter, preserving the balance between the parties. The appearance of justice may be adversely affected if one of the parties, especially the losing party, believes that the judicial officer has become too close to the other party and has not approached the issues in the case with detachment and objectivity. If a party believes that the judicial officer is not neutral and has taken up the cause of his opponent, the central point of judicial decision making will be lost: Council of the Municipality of Burwood v Harvey (1995) 86 LGERA 389 per Kirby P at 397. At the same time, the unrepresented party will often be at a disadvantage. The court will, therefore, be concerned to ensure that the trial, be it a criminal or a civil trial, is fair and just. The interests of justice and fairness may require a degree of assistance by the judicial officer to the unrepresented litigant. There is, therefore, a tension between maintaining the impartiality of the judicial officer and the provision of a degree of assistance, and, indeed, the appropriate degree of assistance, to the unrepresented litigant.
1Nevertheless, for the purpose of ensuring a fair trial, the judicial officer may find it necessary to give an unrepresented accused such advice as is necessary to ensure that he has a fair trial. At the same time, the judicial officer must maintain the distinction between advising the unrepresented accused what his rights are an advising him how he should exercise those rights: MacPherson v The Queen (1981) 147 CLR 512 per Mason J at 535 and per Brennan J at 546 ‑ 547; R v Gidley [1984] 3 NSWLR 168 per Hunt J at 181; and R v Zorad (1990) 19 NSWLR 91 at 99.
With the principles expressed in Pezos v Police in mind, I deal with each of the instances where it is contended that the magistrate has failed to advise the appellant. I deal with them in the order listed in the appellant’s outline of submissions. (The submission is in bold typeface.)
1.The magistrate should have advised the appellant that he could object to evidence that was not relevant or inadmissible. This relates to the evidence of Mrs Sievers concerning the behaviour of the dogs in the presence of the Council inspectors, very shortly after the incident. As already mentioned this evidence was plainly admissible.
2.The magistrate should have advised the appellant as to the means by which he could adduce the evidence of his video‑tape of past inter‑action between his dogs and Mrs Sievers and the children. This evidence is plainly irrelevant. As already mentioned, dogs may behave differently on different days. The only relevant question was the behaviour of the dogs on the occasion the subject of the complaint.
3.The magistrate failed to draw the appellant’s attention to documents which had been marked for identification which were not exhibits. This is essentially a recapitulation of the ground that the magistrate had not permitted the appellant to tender certain documents. To the extent that the submission goes further, none of the documents marked for identification were relevant to the issues.
4.In the course of the hearing the magistrate had informed the appellant that if he wanted to make submissions about the evidence of witnesses he should do that at a later stage but the magistrate did not remind the appellant to do so. At that point the magistrate was preventing the appellant from making comments about the evidence of Mrs Sievers. It was contended that the magistrate should have advised the appellant when he had the opportunity to make submissions. The appellant is not without experience in court proceedings. He has a good deal of such experience. He would have known full well that the opportunity to make submissions was at the close of evidence. In any event, after the evidence had closed (at p 244 of the transcript), the magistrate clearly informed both parties that she would then hear submissions from them. Both counsel for the complainant and the appellant made brief submissions. The magistrate was entitled to assume that the appellant would address on those matters he believed were helpful to his case. There is no substance in this ground.
5.The learned magistrate erred in advising the appellant as to how he might subpoena the transcript of the Residential Tenancies Tribunal. The magistrate said that that was a matter that he should take up with the Tribunal and was not a matter over which she had any control. The magistrate erred. She had a discretion to make an order for a summons to witness to produce documents. However, this error on the part of the magistrate has no consequence. The transcript of the Residential Tenancies Tribunal would not, for the reasons already given, have been relevant to the issues the subject of this complaint. There was, therefore, no miscarriage of justice in consequence of the magistrate’s error.
6.The magistrate said (at p 35 of the transcript) that she would give consideration to an issue raised by the appellant but did not later do so. The question concerned the calling of witnesses who were to be the subject of the summons to witness which the appellant sought. The matter was later dealt with. The magistrate refused the appellant’s application. There is no substance in this point.
7.At this same point in the hearing, the magistrate referred to the video‑tape and audio‑tape which the defendant wished to tender of the behaviour of his dogs towards children. It is contended that the magistrate did not explain to the appellant how he might tender the evidence. There is no substance in this point. Even if the magistrate did not give a satisfactory explanation, the evidence was irrelevant. There was no miscarriage of justice.
8.The magistrate did not give the appellant adequate assistance when seeking to cross‑examine Mrs Sievers about a prior inconsistent statement. The fact is that the appellant did, in effect, cross‑examine about prior inconsistent statements. That cross‑examination might not have complied with s 28 or s 29 of the Evidence Act 1929 but the appellant was able to make his point. Significantly, Mr Mancini had not demonstrated how any miscarriage of justice resulted. There is no substance in this ground.
9.The magistrate informed the appellant (at p 45 of the transcript) that he may wish to make a submission about the evidentiary topic then being discussed. It is contended that the magistrate had a duty to remind the appellant of that topic when he made his closing submissions. This submission must be rejected. As already mentioned, at p 244 the magistrate reminded the parties that this was the occasion to make their submissions. It was not for her to dictate the content of the appellant’s address. She was entitled to assume that the appellant would have noted what he sought to put to her in the closing address. No miscarriage of justice was demonstrated.
10.The magistrate had a duty to advise the appellant about the process for issuing a summons to witness. There is no substance in this ground. As mentioned earlier in these reasons, the appellant sought to subpoena witnesses whose evidence was irrelevant and inadmissible. In the circumstances there can be no miscarriage of justice.
11.The magistrate had a duty to advise the appellant as to the implications of s 86 of the Dog and Cat Management Act. Section 86 provides:
It is a defence to a charge of an offence against this Act if it is proved –
(a) That the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence; or
(b) if the offence involves a dog – that the dog was at the time of the alleged offence in the possession or control of another person without the defendant’s consent.
Paragraph (b) does not apply in the circumstances of this case because the dog was with the appellant, its owner. Paragraph (a) would be relevant if the appellant had taken reasonable cause to avoid committing the offence. One obvious means of taking care was for the appellant to have the dogs on a lead. His dogs were not on a lead. For that reason the appellant would not be able to establish that he had taken reasonable care. Furthermore, it is doubtful whether the magistrate was obliged to advise the appellant on the substance of his defence. If she did so, she might have jeopardised her independence. However, even if it is assumed that she should have informed the appellant of the defences under s 86, her failure did not, for these reasons, result in any miscarriage of justice.
At a late stage in his submissions Mr Mancini tendered medical reports concerning the appellant’s medical condition. They indicated that the appellant had mental deficits in 2000 and in 2002. They did not relate to his mental condition in 2003 when the hearing occurred. The reports were tendered, not to establish that the appellant was unfit for the hearing, but to show that he could not be criticised for not participating properly in the hearing. They were also tendered to provide the context within which any criticism that the appellant was no beginner to court proceedings should be considered. The material is not helpful. I repeat, it does not deal with the mental condition of the appellant in 2003 when the hearing occurred. If the appellant believed that he was mentally unable to conduct his defence, he could have informed the magistrate. He did not. He informed her only of physical incapacities which caused the magistrate to list the hearings for afternoons to accommodate the appellant. The appellant vigorously conducted his defence and, in particular, a long cross‑examination of Mrs Sievers and Mrs Robertson. The medical reports do not in any way assist the resolution of the issues in this appeal.
The appellant has failed on each of his grounds of appeal, a fact which re‑inforces any conclusion that is not reasonably arguable that he has suffered any miscarriage of justice.
For these reasons, I dismiss the application for an extension of time within which to appeal. Even if it had been appropriate to allow an extension of time, I would have in any event have dismissed the appeal.