Grey v City of Marion - [2005] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GREY v CITY OF MARION
Judgment of The Honourable Justice Besanko
14 March 2005
ANIMALS - LIABILITY OF OWNERS AND KEEPERS IN RESPECT OF INJURIES BY ANIMALS - STATUTORY PROVISIONS - SOUTH AUSTRALIA
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against Magistrate's decision to record a conviction and to make an order under s 47 of the Dog and Cat Management Act 1995 - where appellant owned or was responsible for a dog which harassed a person - where appellant found guilty of an offence against s 43 of the Dog and Cat Management Act 1995 - whether Magistrate erred by overruling the appellant's objection to the prosecutor acting in the matter when he was also a witness - whether Magistrate erred in disallowing appellant's questions during cross-examination - whether Magistrate erred in his rulings in relation to a witness statement - whether Magistrate misunderstood appellant's evidence - whether Magistrate erred in refusing to authorise subpoenas - whether Magistrate erred in accepting prosecutor's account of the history of the appellant and his dogs - whether Magistrate erred in ignoring appellant's response to prosecutor's claim that appellant's dog had a history of convictions - whether Magistrate erred in stating he could not detect any exaggeration or malice in the manner of a witness - whether Magistrate erred in displaying bias - whether order under s 47 was too severe - where appeal was not instituted within the period prescribed by the rules of Court - where appellant could not provide a satisfactory explanation for the delay - application for extension of time in which to institute an appeal dismissed - appeal dismissed.
Dog and Cat Management Act 1995 ss 43, 47, 88; Magistrates Court Act 1991 s 42; Evidence Act 1929 ss 28, 29; Supreme Court Rules 1987 r 97.04, referred to.
Harris v Mill (Unreported, Supreme Court SA, Von Doussa J, 7 April 1988); Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; Gazepis v Police (1997) 70 SASR 121; Wait v Police [2003] SASC 94, considered.

GREY v CITY OF MARION
[2005] SASC 92
Magistrates Appeal

BESANKO J:       On 30^th April 2002, Mr Gerald Grey was charged on complaint by the City of Marion (“the complainant”) with an offence against s 43 of the Dog and Cat Management Act 1995 (“DCMA”). At the time of the alleged offence, s 43 was in the following terms (relevantly):
“43. (1)     Any person who owns or is responsible for the control of a dog is guilty of an offence in any of the circumstances set out in column 1 of the table below (subject to the defences set out in that column).
(2)     The penalty for an offence described in column 1 of the table below is the penalty appearing opposite in column 2.
(3)     The expiation fee for an offence described in column 1 of the table below is the fee appearing opposite in column 3.

Offence Maximum Fine Expiation Fee

1
…

2
If the dog attacks, harasses or chases or otherwise endangers the health of a person or an animal or bird owned by or in the charge of some other person (whether or not actual injury is caused).

Defence
It is a defence to a charge of an offence in these circumstances if it is proved that the dog was being genuinely used in the reasonable defence of a person or property.”
Division 7 fine. Division 7 fee.

The particulars of the charge were that on 17^th April 2002 Mr Grey of 2 Nixon Street, Marion, owned or was responsible for the control of a dog, namely, a German Shepherd X which, at Nixon Street, Marion, harassed a person, namely, Burney Cullen. The complaint contained a statement that at the conclusion of the hearing the complainant intended to seek an order against the defendant under s 47 of the DCMA. At the relevant time, s 47 was in the following terms (relevantly):
“47.   (1)     If a person is found guilty of an offence against this Division, the court may, in addition to, or instead of, imposing a penalty, make one or more of the following orders:
(a)     that the dog be destroyed or disposed of in a specified manner within a specified period;
(b)     that the order for destruction or disposal be remitted in specified circumstances;
(c)     that the dog be registered under this Act;
(d)     that the dog be controlled in a specified manner;
(e)     that specified action be taken within a specified period to abate any danger or nuisance posed by the dog;
(f)    that the person not acquire another dog for a specified period or until further order of the court;
(g)     that the person pay compensation for injury, damage or loss suffered by a person as a result of the actions of the dog;
(h)     any other order that the case requires.
(2)An order must state to whom it is directed.
(3)     A person who fails to comply with an order made against the person under this section is guilty of an offence.
Penalty: Division 6 fine.
(4)     An order under this section binds the person against whom it is made despite the fact that the ownership or control of the dog has changed or is not known, or that the dog is no longer being kept in the same place, unless, on application to the Magistrates Court, the Court is satisfied that the changed circumstances are such that the order should be varied.”
The charge proceeded to hearing before a Magistrate on 7^th May 2003. On 16^th May 2003 the Magistrate recorded a conviction against Mr Grey and he delivered reasons for that decision. He dealt with penalty on the same day. The Magistrate decided not to impose a fine. He made an order under s 47 of the DCMA which was in the following terms:
“Pursuant to s 47 of the Dog and Cat Management Act 1955 (sic) I make an order that the defendant is restrained from owning, maintaining, housing, keeping or having dogs at his place of residence which is 2 Nixon Street, Marion.
In the event the defendant changes his place of residence he is to advise the Dog Control Officer of the City of Marion within two working days. The Dog Control Officer will be at liberty to advise the Dog Control Officer of the council area to which Gerard Grey locates as to the terms of this order.”
By notice of appeal filed on 11^th October 2004, Mr Grey appeals against the Magistrate’s decision to record a conviction and his decision to make an order under s 47 of the DCMA. For convenience, I will continue to refer to Mr Grey as the defendant. The appeal is brought pursuant to s 42 of the Magistrates Court Act 1991 (“MCA”).
There are some preliminary matters which I must address. First, it is clear that the appeal was not instituted within the period prescribed by the rules of Court, namely, 14 days (r 97.04 of the Supreme Court Rules 1987). In fact, it is over 16 months out of time.
The defendant is in poor health. He has appeared in person although he has been assisted from time to time by a Mr Darbishire who may be described as a MacKenzie friend. The defendant appealed against an order made by the Chief Magistrate on 2^nd January 2003 that he pay a witness fee for a Mr J Pimlot for his attendance on 2^nd January 2003. That order was made in the action in which the orders challenged in this appeal were ultimately made. The defendant also challenged an order that he pay a witness fee for Mr Cullen in the sum of $40.00. That order was also made in the action in which the orders challenged in this appeal were made. It seems also that in connection with proposed appeals to this Court, the defendant made applications for the waiver of fees. In addition to these matters, the defendant asserts that he tried to file a notice of appeal challenging the recording of a conviction and the order made under s 47 of the DCMA on a number of occasions before 11^th October 2004.
I have read the material put forward by the defendant when various matters came before Mullighan J in September 2003 and then again in October 2004. I acknowledge that the defendant is a litigant in person and that he is in poor health. Nevertheless, the delay in this case is a very long delay and cannot be excused without a satisfactory explanation. Court orders should not be subject to challenge years after they have been made without a satisfactory explanation as to the reason they were not challenged within the time prescribed. I do not find the explanation in this case a particularly satisfactory one, although the issue is somewhat borderline. However, when I couple my concern about the explanation with my assessment of the merits of the appeal, I think it is appropriate to conclude that an extension of time should not be granted. I do not think that there is any merit in the appeal for reasons I will set out in due course. Alternatively, if I am wrong not to grant an extension of time, I would nevertheless dismiss the appeal against conviction and the order made under s 47 of the DCMA for the same reasons.
Secondly, the Magistrate allowed the complainant to amend the complaint to allege that the relevant incident occurred in Oliphant Avenue rather than Nixon Street. That was done after each party had closed its case. The defendant did not complain of that decision by the Magistrate. I have read the transcript of the trial before the Magistrate, and I have no doubt that, assuming there was power to do it, the decision to allow the amendment was a proper exercise of the Magistrate’s discretion. There is no evidence that the defendant was in any way prejudiced by the allowing of the amendment.
Thirdly, as I have said, the defendant represented himself before the Magistrate and before me. He is in poor health and he has been assisted by Mr Darbishire. It became apparent during the course of the appeal that he is and has been involved in a number of bitter disputes with the complainant. I am not aware of the details of all of the disputes. He is very bitter towards a number of council inspectors and he put a number of serious allegations about them and the witnesses at the trial both at the trial and during the course of his submissions on the appeal. I mention these matters because, as will become apparent, the defendant made a number of submissions which I think are irrelevant.
The complainant’s case
The complainant called two witnesses, Mr Bernie Cullen and Mr Darren Macklin. I mention Mr Macklin first.
Mr Macklin was described as the general inspector of the complainant in April 2002. He gave evidence that he received a complaint from Mr Cullen on the night of the alleged incident. His evidence was not crucial to the Magistrate’s findings and it is not necessary to say anything more about it.
Mr Cullen was the principal witness for the prosecution. The Magistrate accepted Mr Cullen as a witness of truth and he accepted his evidence concerning the incident which is the subject of the charge.
The statement set out below is the complainant’s case, Mr Cullen’s evidence at trial and the Magistrate’s findings.
At about 6.45 pm on 17^th April 2002, Mr Cullen was walking his dog down Oliphant Avenue, Marion. His dog was a five-month old silky terrier. Mr Cullen looked back and he saw a person with three dogs behind him. One dog was white in colour and the other two were dark. Mr Cullen had been involved in a few incidents before with the dogs he saw behind him so he decided to cross the road. The three dogs rushed towards Mr Cullen as soon as he had crossed the road and he became concerned about the safety of his dog. Mr Cullen is an elderly man who has two artificial hips. He was carrying a walking stick which he used to fend off the dogs, and in the course of doing so, he hit the white dog. The defendant then arrived on the scene and he suggested to Mr Cullen that he should not worry about protecting his dog, but should be more concerned about protecting himself. Mr Cullen said that the three dogs were German Shepherd dogs. One of the dogs appeared to be carrying a parcel in its mouth and when the defendant arrived it dropped the parcel. Mr Cullen crossed over Oliphant Avenue at this point and the defendant’s dogs went to follow him. However, they were prevented from crossing the road by some passing traffic. Mr Cullen said that there were no other persons present at the time of the incident and that when he arrived home he contacted the council and the police. He was “fairly shaken up” when he got home. An inspector from the council arrived quickly and Mr Cullen made a statement to the inspector.
The Magistrate’s findings
As I have said, the Magistrate accepted Mr Cullen’s evidence and he made findings in accordance with his evidence.
To make out the offence, the complainant was required to prove that the defendant was the owner of, or was responsible for, the control of the German Shepherd. That fact was not in dispute at trial, nor was the Magistrate’s finding that that fact was established the subject of challenge on appeal. In any event, the complainant was entitled to the benefit of the evidentiary aid in s 88 of the DCMA.
The Magistrate concluded that the white German Shepherd dog owned by the defendant had harassed Mr Cullen by attempting to attack the small dog owned by Mr Cullen, and in leaving Mr Cullen “shaken up” by the incident. The Magistrate made it clear that in his view the harassment consisted of the actions of the white dog alone and that in reaching his conclusion he disregarded the actions of the other dogs. The focus of the defendant’s submissions on appeal was that for various reasons he did not receive a fair trial, and that the Magistrate erred in accepting the evidence of Mr Cullen. The defendant did not submit that even if the findings of the Magistrate are correct, nevertheless he erred in concluding that the actions of the white dog constituted harassment within the provisions of s 43 of the DCMA. Whether the actions of a dog constitute harassment of a person within the provisions of s 43 must involve a question of fact and degree. In view of the way in which the matter was argued I would not be prepared to disagree with the Magistrate’s conclusion on this point.
The defendant gave evidence at the trial. He gave quite a different version of events from that given by Mr Cullen. He said that Mr Cullen lay in wait in a driveway and that he unexpectedly stepped out and tried to hit the dogs or at least one of the dogs. He had then tried to hit the dogs again on the other side of the street. The Magistrate said that he found the suggestion that Mr Cullen initiated the confrontation “a most unlikely scenario”.
The conviction – the issues on appeal
On the face of it, the Magistrate had before him two conflicting accounts of the relevant events. He accepted the evidence of Mr Cullen and must be taken to have rejected the evidence of the defendant. Of course, the mere rejection of the defendant’s evidence was not enough to support a conviction; the Magistrate was required to be satisfied beyond reasonable doubt that Mr Cullen’s statement of the relevant events was accurate (Harris v Mill (Unreported, Supreme Court SA, Von Doussa J, 7 April 1988)). The Magistrate made an assessment of Mr Cullen and of the evidence which he gave. An attack on that assessment in this Court must acknowledge the advantages the Magistrate enjoyed in seeing and hearing Mr Cullen (Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118).
The defendant’s attack on the Magistrate’s decision that the charge was proved related to a series of decisions made by the Magistrate which are said to be wrong and which are said to be such that the defendant was deprived of a chance of acquittal. Before considering each of these matters, I note that even if an error is established it does not necessarily follow that the conviction must be set aside. If I am satisfied that there has been no miscarriage of justice then the conviction will not be set aside (Gazepis v Police (1997) 70 SASR 121 per Doyle CJ at 129; Wait v Police [2003] SASC 94 per Besanko J at [47] – [49]).
There are 14 grounds of appeal. Some of the grounds raise broadly the same issue and it is convenient to deal with them together.
The first ground of appeal is as follows:
“His Honour erred by overruling the appellant’s objection to Mr Terry Nicholas acting as prosecutor in the matter after the appellant informed his Honour that the prosecutor was a witness in the proceedings, even when the appellant attempted to explain that in a related matter currently before another court, when the appellant objected to Mr Nicholas acting as prosecutor, the Magistrate in this matter also overruled the appellant’s objections and on the fourth day of the trial suddenly halted and adjourned proceedings when the said Magistrate ruled that Mr Nicholas could not continue to act as prosecutor and that he would have to obtain someone else to prosecute the said matter.”
It seems that Mr Terry Nicholas signed the complaint on behalf of the council. He appeared on behalf of the complainant before the Magistrate. There is no evidence as to Mr Nicholas’ position, but I assume that he is an employee of the complainant. At the start of the trial, the defendant asked the Magistrate to make an order that Mr Nicholas not be permitted to prosecute the action. The defendant said that Mr Nicholas would be a witness in the proceedings. The Magistrate appears to have taken the view that it was unlikely Mr Nicholas would be a witness and he declined to make such an order.
There was no attempt by the defendant to call Mr Nicholas as part of his case. There is no evidence to suggest that Mr Nicholas witnessed any of the relevant events on 17^th April 2002. Nothing was put by the defendant on the appeal to suggest that the Magistrate erred in refusing to order that Mr Nicholas not act as prosecutor. I reject this ground of appeal.
The second ground of appeal is as follows:
“His Honour erred by disallowing most of the questions during the cross-examination of both witnesses when the appellant was attempting to show that there was a history of bias and collusion between the City of Marion Council and the witnesses and also seeking to show the true character of the two witnesses’ hostility.”
The defendant carried out his own cross-examination of Mr Cullen and Mr Macklin. He asserts that the witnesses were hostile towards him and were biased. He asserts that they were colluding with the complainant. He submits that the Magistrate prevented him from cross-examining the witnesses to show hostility, bias and collusion on their part.
I have read the cross-examination of both witnesses carefully. In his reasons, the Magistrate said that he had formed the view that the defendant believed that he was being persecuted by the complainant.
The defendant did not argue this ground of appeal by reference to a particular question or series of questions. The matter was put quite generally and that is how I propose to deal with it. The Magistrate faced a difficult task as the defendant was appearing in person. It was appropriate for him to extend some latitude to the defendant, but appearance in person is not a licence to make offensive remarks to witnesses or engage in irrelevant cross-examination. The defendant did both. The following exchange which occurred some little way into the cross-examination of Mr Cullen is an illustration.
“Q.You know that they’re female and male and everything else because you know you’ve been told everything. There’s no way you can tell a male and a female particularly at night. I am wasting my time here. I can’t – I don’t feel –
HIS HONOUR:    You can’t what?
DEFENDANT:     I can’t ask questions, I can’t do a God damn thing.
HIS HONOUR:    You can ask as many questions –
DEFENDANT:     And I’ve had it, okay, I’ll appeal, I usually –
HIS HONOUR:    Yes, you may, Mr Grey, but I am –
DEFENDANT:    You’re not letting me go, I can’t do anything. You know he’s lying, he knows it.
HIS HONOUR:   Mr Grey –
DEFENDANT:    We all know in this court. This is a just – for five years it’s gone on –
HIS HONOUR:   Mr Grey -
DEFENDANT:    So it is a three penny God damn opera.
HIS HONOUR:   What I suggest you do is ask Mr Cullen questions about the incident that gave rise to the charge against you. Now, so far you haven’t asked him any questions about that incident. I’m giving you an opportunity now - .”

I do not think the Magistrate erred by not according the appellant a proper opportunity to present his case and cross-examine the witnesses. I reject this ground of appeal.
The third ground of appeal is as follows:
“His Honour erred by disallowing the appellant’s cross-examination of the witness, Mr Bernie Cullen, relating to previous incidents which the witness himself had raised and the appellant made no objection in the belief that the appellant would be at liberty to cross-examine the witness directly in relation to the said previous incidents.”
This ground of appeal is probably an aspect or particular of the second ground of appeal. Mr Cullen said in his evidence in chief that he crossed the road on seeing the three dogs because he had had a few experiences with the dogs before and one of the dogs had attacked him before. The defendant did ask Mr Cullen about the other experiences and it was the defendant who left that topic and turned to the events on 17^th April 2002. I cannot find a specific question asked of Mr Cullen about his previous experiences with the defendant’s dogs which was disallowed. Even if there was, or there was a question which was preliminary to that topic, I cannot see how in the circumstances of this case the disallowance of any question has led to a miscarriage of justice. I reject this ground of appeal.
It is convenient to consider grounds four, five and eight together. They are as follows:
“4.His Honour erred by allowing evidence from the witness which was contradictory to a statement that the witness had made to the prosecutor overruling objections of the appellant.
5.His Honour erred by refusing to allow the appellant to introduce any exhibits, in particular, the statement made by the witness, Mr B Cullen to the City of Marion by stating to the appellant on one occasion during the trial that his Honour did not have the statement before him he would disallow the question whilst the appellant was cross-examining the witness, Mr B Cullen.
…
8.His Honour erred by stating, (page 3 para 15 of the judgment), that Mr Cullen was not asked to and did not rely on any statement, when in fact the appellant made various attempts to cross-examine Mr Cullen relating to his statement when his Honour refused to allow the appellant to cross-examine Mr Cullen on the basis of this statement and which his Honour refused to accept as an exhibit from the appellant by stating – ‘what statement? – I don’t have any statement before me!’”
The defendant asserts that Mr Cullen has made various out of court statements about the incident. He handed two documents to me on the hearing of the appeal. The first is a document entitled “Record of Interview Alleged Dog Attack / Harassment Complainant”. It seems to record an interview between Mr Macklin and Mr Cullen on 17^th April 2002 about the incident involving the defendant’s dogs. It is signed as a true and accurate record by Mr Cullen. I will call this the record of interview. The second document is a typed statement of Mr Cullen made to Mr Macklin on 23^rd April 2002. It is signed by Mr Cullen. I will call this the typed statement.
It is not clear to me whether the defendant had the record of interview or typed statement at the time he was cross-examining Mr Cullen. I will assume in his favour that he had both documents.
Towards the end of the cross-examination of Mr Cullen by the defendant the Magistrate asked him some questions. The following exchange then occurred:
“Q     Did the dogs actually come in contact with you.
A.No, didn’t come in contact with me or with my dog but they were about that far from the little dog. They didn’t go for me, the white one they were after that little silky.
HIS HONOUR:   Mr Grey, is there anything arising out of the questions that I have just asked Mr Cullen that you want to ask any further question about.
DEFENDANT:     No, I wanted to ask questions about a statement but –
HIS HONOUR:   The statement is not before the court. I have not seen any statement.
DEFENDANT:    That’s what I thought the law was. He makes a statement I’m permitted to cross-examine.
HIS HONOUR:    There is no statement before the court.
MR NICHOLAS: Mr Grey is referring to a residential tribunal matter, your Honour.
HIS HONOUR:   If there are no further questions, Mr Grey, in relation to the issues that I have just raised Mr Cullen you are released as a witness.
NO RE-EXAMINATION
NO FURTHER QUESTIONS
THE WITNESS WITHDREW”
The defendant says that he was denied the opportunity of cross-examining Mr Cullen on the record of interview and typed statement. On my reading of the cross-examination, the defendant did ask Mr Cullen about certain aspects of the typed statement, and Mr Cullen did not deny what is set out in the typed statement.
The complaint in ground four of the notice of appeal must be rejected. There is no legal principle to the effect that a witness should be prevented from giving evidence in court because of something he said out of court, even if what he said out of court is inconsistent with his evidence in court.
I take grounds five and eight to be asserting that the defendant was denied the opportunity to cross-examine Mr Cullen about the record of interview and typed statement and that that was on the erroneous ground that the Magistrate did not have a copy of the record of interview and typed statement.
It is difficult to capture the atmosphere of the trial. I have read the transcript carefully, and in my opinion the Magistrate did a commendable job in affording appropriate assistance and latitude to the defendant in an adversarial context. The appellant asked a number of irrelevant questions and at times made comments which seem to me to be offensive. It is difficult for me to say that the Magistrate deterred the appellant from cross-examination on the record of interview and typed statement, or that he should have provided some assistance to the appellant about how a statement could be used in terms of ss 28 and 29 of the Evidence Act 1929. However, I do not think I need to reach a final conclusion about that issue because having read the evidence of Mr Cullen and the record of interview and typed statement, I am satisfied that even if the Magistrate erred in those respects, it has not led to a miscarriage of justice. In my opinion, there is no inconsistency or material inconsistency in the various accounts given by Mr Cullen in his evidence, the record of interview and the typed statement. I reject grounds of appeal four, five and eight.
The sixth ground of appeal is as follows:
“His Honour erred by appearing to have misunderstood the appellant’s evidence, particularly in his judgment (page 2), as his Honour states the appellant agreed Mr Cullen had again crossed back over the road at least twice. The appellant has always agreed that Mr Cullen did in fact cross the road when the appellant crossed the road after the appellant’s dogs were struck by the witness.”
I have read the relevant passages in the Magistrate’s reasons for judgment carefully. I am satisfied that he has correctly summarised the defendant’s evidence. I reject this ground of appeal.
The seventh ground of appeal is as follows:
“His Honour erred by refusing to authorise any witness subpoenas and/or subpoenas for any evidentiary material which was based on legal advice the appellant received that the subpoenas were essential to the appellant’s defence in this matter. The evidentiary material sought by the appellant included transcripts of the Residential Tenancies Tribunal hearings, (application by the said witness Cullen to have the appellant evicted was dismissed on 2^nd May 2003), and at least one trial in a related matter part heard before another court, where evidence was given on oath by at least two witnesses, one of whom is an immediate neighbour residing next door to the witness Cullen, that they, the said witnesses, had been informed by officers of the City of Marion and the South Australian Housing Trust of the impending arrival of the appellant together with the most inflammatory and false information of a derogatory nature without any factual basis prior to the appellant taking up residence at his current address 2 Nixon Street, Marion.”
The only reference to a subpoena which I can find in the transcript is a reference at the commencement of the trial when the defendant asked the Magistrate to issue a subpoena directed to Mr Nicholas. As I have already said, there is no reason to think that Mr Nicholas was a relevant witness in relation to the charge. The fact that a subpoena directed to Mr Nicholas was not issued did not give rise to a miscarriage of justice. There is some reference in the transcript of the trial to the defendant seeking orders from other Magistrates for the issuing of subpoenas. I was provided with no details of such requests and I am not satisfied that there is any substance in the defendant’s complaints. I am satisfied that the defendant was given an adequate and proper opportunity to present his case. I reject this ground of appeal.
The eighth ground of appeal is as follows:
“His Honour erred by accepting false, distorted and inaccurate history of the appellant and his dogs from the prosecutor without evidentiary material.”
I am satisfied that in relation to the trial as to the guilt of the defendant, nothing was put before the Magistrate or accepted by him which should not have been. I reject this ground of appeal.
The ninth ground of appeal is as follows:
“His Honour erred by ignoring the appellant’s response strenuously denying the prosecutor’s claim that the appellant’s dog had a history of convictions.”
In reaching a conclusion as to the guilt of the defendant, the Magistrate did not have regard to whether any of the dogs had a history of convictions. I reject this ground of appeal.
The tenth ground of appeal is as follows:
“His Honour erred by refusing pertinent questions concerning the witness Cullen admitting he struck the dogs at least twice which he has and that he has since admitted two other assaults on the appellant’s dogs.”
I reject this ground of appeal. The Magistrate did not disallow any question in the cross-examination of Mr Cullen by the defendant relating to the relevant events of 17^th April 2002.
The eleventh ground of appeal is as follows:
“His Honour erred by stating he ‘could not detect any exaggeration or malice in the manner in which Mr Cullen gave his evidence’ when in fact during cross-examination of the witness, Cullen was sarcastic and made an offensive reply to one of the appellant’s questions at which his Honour intervened and warned the witness to cease such remarks.”
As I have said, I have read the transcript of evidence carefully and there is nothing which suggests that the Magistrate’s assessment of Mr Cullen was erroneous. In addition to that, I acknowledge that the Magistrate had the advantage of seeing and hearing Mr Cullen. I reject this ground of appeal.
The twelfth ground of appeal is as follows:
“His Honour erred in displaying a bias towards the appellant by encouraging and assisting the prosecutor to object to the appellant’s questioning of the witnesses.”
I reject this ground of appeal. The Magistrate extended considerable latitude to the defendant in his cross-examination of Mr Cullen.
The thirteenth ground of appeal is as follows:
“The appellant respectfully submits that the failure of his Honour to allow various exhibits including statements by all witnesses and a videotape that the appellant sought to lodge as well as his Honour’s refusal to authorise subpoenas for transcripts of related matters involving the witnesses, gives rise to a serious risk of a miscarriage of justice should the conviction and orders not be set aside.”
This is a summary of previous grounds, and I reject it for the reasons I have already given.
In my opinion, the appeal against the recording of the conviction should be dismissed.
The order under s 47 of the DCMA – the issues on appeal
The defendant submitted that the order made by the Magistrate under s 47 of the DCMA was too severe. Other than this, he said very little in support of his challenge to the order.
The complainant asked me to note that no fine had been imposed upon the defendant, and that it had always made it clear to the defendant that it was seeking an order under s 47 of the DCMA. It said that it advised the Magistrate of the history of the dog’s behaviour. It submits that the sentence is not manifestly excessive and should not be varied. It points to s 47(4) of the DCMA which gives the defendant the right to apply to the Magistrates Court for a variation of the order and the Court may make such a variation if satisfied that there are changed circumstances which justify the variation.
The information before me is meagre and I was not told of what was put before the Magistrate in terms of the history of the dog’s behaviour. Nevertheless, the defendant was given an adequate opportunity to say what he wanted to about the challenge to the order under s 47 of the DCMA and he has not put anything before me which suggests that the order was not appropriate. I reject the appeal against the order.
Conclusion
I dismiss the application for an extension of time for the reasons I have given. Even if it is appropriate to allow the extension of time, I would nevertheless dismiss the appeal against the recording of the conviction and the making of the order under s 47 of the DCMA.