Hobart City Council v Soldatos

[2009] TASSC 56

[2009] TASSC 56

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Hobart City Council v Soldatos [2009] TASSC 56

PARTIES:  HOBART CITY COUNCIL
  v
  SOLDATOS, Jim

FILE NO/S:  187/2009
DELIVERED ON:  31 July 2009
DELIVERED AT:  Hobart
HEARING DATE:  4 June 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Statutes – Acts of Parliament – Interpretation – Rules of construction – Words to be given literal and grammatical meaning – Ordinary and natural meaning to be applied.

Dog Control Act 2000 (Tas), s19(1).
Kingborough Council v Bester [2003] TASSC 30; R v Bezzina [1994] 3 All ER 964; Federal Commissioner of Taxation and Another v Industrial Equity Ltd and Another (2000) 171 ALR 1, referred to.
Aust Dig Statutes [17]

REPRESENTATION:

Counsel:
             Applicant:  T Cox
             Respondent:  No appearance
Solicitors:
             Applicant:  Simmons Wolfhagen
             Respondent:  No appearance

Judgment Number:  [2009] TASSC 56
Number of paragraphs:  19

Serial No 56/2009
File No 187/2009

HOBART CITY COUNCIL v JIM SOLDATOS

REASONS FOR JUDGMENT  TENNENT J

31 July 2009

1. The respondent was charged with a breach of the Dog Control Act 2000 ("the Act"), s19(1), arising out of circumstances where the dog, of which he was the registered owner at the time, attacked a lady in the street. The Act, s19(1), provides as follows:

"If a dog attacks or chases any person, the owner or person in charge of the dog is guilty of an offence."

1. The charge against the respondent was in the following terms:

"You are charged with on or about 5 January 2008 at Forest Road, West Hobart in Tasmania, being the owner of a dog, namely a medium-sized black and white mixed breed, which attacked a person, namely by biting the person on the rear of the thigh at about 8:35am."

The respondent pleaded not guilty to the charge as laid.  A hearing took place before a magistrate on 3 December 2008.  There was no dispute that a dog attacked a lady, or that, at the time of the attack, the respondent was the registered owner of the dog.  Having regard to the wording of the complaint, there should have been little doubt the respondent would be found guilty of the offence because there was evidence to support each of the elements of the charge laid.

1. However, at the conclusion of the prosecution case before the learned magistrate, counsel for the respondent made what he described as a "no case to answer" submission. The basis of the submission was that, on a proper construction of the Act, s19(1), and having regard to the evidence led, the prosecuting authority had charged the wrong person. They should have prosecuted another person. On 17 February 2009, the learned magistrate upheld the submission and dismissed the complaint. The applicant now seeks a review of that decision. The respondent has had notice of the hearing of the review but has chosen not to take part in it at all. The grounds of the review are as follows:

"1The learned Magistrate erred in law in finding s19(1) of the Dog Control Act 2000 ('the Act') ambiguous. 

2The learned Magistrate erred in law in determining the ordinary meaning of s19(1) of the Act.

3Having found that s.19(1) was ambiguous, the learned Magistrate erred in law in failing to have regard to extrinsic material pursuant to s8B of the Acts Interpretation Act 1936 [sic]. 

4Having found that s19(1) was ambiguous, the learned Magistrate erred in law in failing to ascribe any meaning to section 19(1).

5Having directed himself to the test for determining whether the defendant had a case to answer, the learned Magistrate misdirected himself in asking whether there was 'a more appropriate defendant being someone in charge of the dog at the time'. 

6Having directed himself to the test for determining whether the defendant had a case to answer, the learned Magistrate erred in fact and in law in finding:

(a)     the wrong person was charged;

(b)    that no reasonable Tribunal could safely act upon the evidence as presented to the Court. 

7The learned Magistrate erred in fact and in law in finding that there was no evidence which, if accepted, would provide evidence of each element of the offence, contrary to:

(a)     his finding that the defendant owned a medium sized black and white mixed breed dog ('the dog');

(b) Exhibit One, namely an extract from the Hobart City Council Record of Dog Registration kept pursuant to section 15 of the Act;

(c) the evidentiary presumptions at ss60 and 61 of the Act;

(d)    evidence that the defendant owned the dog; and

(e)     evidence that the dog had attacked a person, namely Ms Perham."

1. While this Court was not provided with a transcript of the evidence, as I understand it from the material which was provided, the respondent was away from home on holidays and had arranged for a female friend to "baby-sit" his house and dog.  On the particular day, the friend had taken the dog for a walk, returned the dog to the backyard of the respondent's home, and then gone bike riding.  When she returned, the dog was not in the yard.  It was during the period she was absent that the dog evidently escaped the confines of the respondent's yard and attacked a lady in the street.

Grounds of the review

1. The grounds of review are somewhat ambiguous and, to an extent, overlap. In substance, as I understand the arguments made, it was asserted that the learned magistrate did not approach the "no case to answer" submission correctly and, even if he had, ultimately his interpretation of the Act, s19(1), was incorrect.

1. As to the "no case to answer" submission to the learned magistrate, the test which he needed to apply in dealing with the submission was whether there was evidence before him which, if accepted, would prove each element of the charge before him.  What his Honour determined, having canvassed some evidence, was that:

"On that evidence I can infer sufficient link that at the time of the alleged attack that Jesney was in charge of and consequently in control of the dog.  Information was known to persons relevant to the drawing of the Complaint.  In my view and on prosecution evidence the wrong person has been charged and no reasonable tribunal could safely act upon that evidence.  In my view the Defendant cannot lawfully be convicted on the evidence as it stands and I uphold the no case submission."

1. What the learned magistrate did, instead of looking at the elements of the charge as laid to determine if there was evidence to support them, was:

-make a finding that the person in charge of the dog in this case at the relevant time was Ms Jesney,

-interpret s19(1) to mean that prosecuting authorities were obliged to prosecute the person in charge of a dog at the time it attacked a person, rather than its owner, if the owner was not then the person in charge,

-determine therefore that prosecuting authorities could not prosecute the owner,

-determine that prosecuting authorities had prosecuted the wrong person, and

-therefore the owner had no case to answer on the complaint.

1. The learned magistrate in effect ignored the wording of the complaint and what the prosecuting authorities contended were the elements of the offence charged. However, it is not, in my view, necessary to determine whether the learned magistrate properly approached the "no case to answer submission" before him. If he did not, the matter will need to be remitted for hearing and the issue of the construction of the Act, s19(1), will again arise. If however this Court were to determine the construction issue, and the Court were to find in favour of the respondent as to that issue, there would be no utility in any remission for hearing on another ground. If the Court were to find in favour of the applicant on the issue of construction, the matter will be returned to the learned magistrate in any event, but with directions as to the law which will, as I understand the evidence, almost inevitably result in a conviction of the respondent. It is therefore more appropriate to determine the construction issue.

Construction of the Act, s19(1)

1. The purpose of the Act is the "control and management of dogs". It provides for a scheme of registration of dogs to their owners and for obligations to be placed on those owners as to control and management of their dogs. Section 19 is contained in the Act, Pt3. Part 3 is entitled "Control of Dogs". Part 3, Div1, is entitled "Controlling dogs". In all four sections in the division, the obligations in respect of dogs are placed on the owner "or person in charge" of a dog. Clearly, there is a recognition that a person other than an owner may at times be responsible for the control of a dog.

1. Before the learned magistrate, counsel for the respondent contended that s19(1) required prosecuting authorities to charge the person who was in charge of a dog at the time of an offence, rather than the owner, if the two were not the same. Counsel for the applicant contends that authorities may charge either and, in particular, are not obliged to charge a person who may be in temporary control of a dog at the time an offence is committed.

1. In support of his contention, counsel for the applicant made a number of submissions about the nature of the offence created by the Act, s19(1). He submitted that it created an offence of absolute liability. While I appreciate the arguments that counsel put, with respect, I do not accept that they are relevant to the issue now being considered.

1. That is perhaps best illustrated by the case to which counsel referred at 4 of his written submissions. The Act, s19, was amended with effect from 15 December 2003 as a consequence of a decision of Underwood J (as he then was) in Kingborough Council v Bester [2003] TASSC 30. In that case the defendant was charged with allowing his dog to attack an animal pursuant to what was then s19(2). The issue in that case was whether the offence then created was one of strict liability or whether the wording required there to be a consideration of a mental element. The issue was whether the owner or person in charge was required to have a particular state of mind. The Court found that the offence was not one of strict liability. The wording of the section was subsequently altered to its present form. The amendment to the section was not directed to the question of who should be charged, but to whether whoever was charged was required to have a particular state of mind.

1. In R v Bezzina [1994] 3 All ER 964, the court did indeed find that it was immaterial whether the owner charged had any realization that his dog might attack someone. Again, however, the finding was not made in the context of who was to be charged, but in the context of what needed to be proved in respect of the person who was charged. Those cases do not in my view assist the applicant.

1. The amendments to Pt3, Div1, at the end of 2003 did not alter the wording of the sections there insofar as the use of the words "owner or person in charge" of a dog were concerned. They addressed a different issue. What therefore is the meaning to be ascribed to those words. On a plain reading of the Act, s19(1), the use of the word "or" between "owner" and "person in charge" appears to be disjunctive. That is, either the owner or the person in charge may be liable.

1. In a joint judgment of Hill, Heerey and Hely JJ in Federal Commissioner of Taxation and Another v Industrial Equity Ltd and Another (2000) 171 ALR 1 at 5, their Honours said:

"Ordinarily the word 'or' where used in a statute will be disjunctive.  But whether this is the case will depend upon the context in which the word appears, context including for this purpose the legislative intention.  Examples of cases where the word 'or' was held not to be disjunctive include: Unity APA Ltd v Humes Ltd (No 2) [1987] VR 474 at 481, Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194-5. As the latter case indicates, the word 'or' may, in an appropriate context mean 'or as well'. In a case such as the present, if the context requires it the word 'or' could signify 'and/or'. The issue is whether when a statute refers to A or B the statute is referring to, on the one hand, A or B or both or merely A or B but not both on the other."

1. Both in this Court and before the learned magistrate, counsel referred to a similar section in equivalent New South Wales legislation.  That section provided as follows:

"16      Offences where dog attacks person or animal

(1)    If a dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal:

(a)the owner of the dog, or

(b)if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time — that other person,

is guilty of an offence."

This section quite clearly limits the circumstances in which a person in charge of a dog at the time of an offence may be charged if they are not the owner of the dog. They may only be charged if the owner is not present. However, the section does not apparently limit the circumstances in which an owner may be charged with an offence to only those where the owner is present at the time of the commission of the offence. Counsel for the applicant submitted that, in relation to this piece of legislation, had Parliament intended to limit the circumstances in which an owner of the dog could be charged with an offence to only in those circumstances where the owner was present, it could have inserted in subpar(a) the words "if present". Counsel for the applicant submitted that the same reasoning should apply to the Act, s19(1).

1. The context in which the wording under consideration in the Act, s19(1), appears is one in which Parliament provided for an offence of strict liability in relation to the control of the behaviour of dogs. It provided for a regime which allowed for the prosecution of dog owners for offences where their dogs misbehaved. There are two reasons to suggest that Parliament could not have intended the construction for which the respondent contended before the learned magistrate. Firstly, it would leave open to dog owners the capacity to defeat a prosecution relating to their dog by simply having someone come forward at a hearing and say "I, not the owner, was in charge of that dog on this particular day". Secondly, the tenor of the Act is clearly to ensure that primarily dog owners, as opposed to any other persons, are responsible for the behaviour of their dogs. Clearly in those circumstances, Parliament must have intended that prosecuting authorities have a discretion to prosecute an owner or a person who may have been in charge of a dog at the particular time.

1. I am satisfied that the Act, s19(1), permitted prosecuting authorities to prosecute the respondent as the owner of the dog in this particular case notwithstanding the evidence before the learned magistrate relating to Ms Jesney. As a consequence, I am satisfied that the learned magistrate erred in his interpretation of the Act, s19(1), and the findings he made as a consequence of that interpretation.

1. The order of the Court in the circumstances is that the review be allowed and that the complaint be remitted to the learned magistrate to complete the hearing on the basis that the respondent had a case to answer, and otherwise according to law.