JUDICIAL REVIEW – criminal law – dog bite charge – victim bitten when allowed arm to go over chest-high dividing fence and down into defendant’s premises – dog kept in secure front yard and too small for snout or paws to reach top of fence – whether victim was trespassing – whether bite occurred because victim was trespassing – whether statutory defence of trespassing applied – whether magistrate erred in law on face of the record by upholding that defence and dismissing charge – trespass – scienter – Domestic Animals Act 1994 (Vic) s 29(4) and (9)(b) – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56.
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APPEARANCES:
Counsel
Solicitors
For the plaintiff
Mr B Stafford
Elliott Stafford & Associates
For the first defendant
Mr P Brown
Stynes Dixon Lawyers
HIS HONOUR:
INTRODUCTION
Robert Stanley Ellis lived next door to Christopher John Gerald Buchanan in Oak Park. Their properties were separated along the side boundary at the front by a chest-high fence. Mr Buchanan kept a non-dangerous dog in his secure front yard. The dog was too small for its snout or paws to reach the top of that fence.
One day Mr Ellis was talking to his son in the driveway of his home. He leaned on and allowed his arm partially to protrude over the fence. As the arm went down, it was bitten by the dog, causing Mr Ellis serious injuries.
Glenn Johnson is an authorised prosecution officer with the Moreland City Council. He charged Mr Buchanan, as the owner of the dog, with a dog attack offence under the Domestic Animals Act 1994 (Vic). That the victim was trespassing is a defence.
The charge was heard in the Magistrates’ Court of Victoria at Broadmeadows. Mr Buchanan admitted owning the dog, the bite to Mr Ellis and the serious injury which it caused. He relied on the defence that the bite occurred because Mr Ellis was trespassing on his premises by allowing his arm partially to protrude over the fence. The magistrate upheld that defence and dismissed the charge.
In this application for judicial review, Mr Johnson contends the magistrate erred in law on the face of the record by dismissing the charge when there was no or only a technical trespass.
CRIMINAL PROCEEDING
Charge
Section 29(4) of the Domestic Animals Act makes it an offence, punishable by fine against the owner, for a non-dangerous dog to attack or bite a person or animal causing death or serious injury. Under s 29(9)(b), it is a defence if ‘the incident occurred because … a person was…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Johnson v Buchanan [2012] VSC 195
Case
[2012] VSC 195
Decision Date
CaseChat Overview and Summary
Johnson v Buchanan is a case concerning a dispute over a charge against Buchanan for biting Johnson with his dog. The matter was heard and determined in the Supreme Court of Victoria. The primary issue before the court was whether the victim, Johnson, was trespassing at the time of the incident, and if so, whether this fact negated the charge against Buchanan under the statutory defence provisions of the Domestic Animals Act 1994 (Vic). Specifically, the court was required to decide if the magistrate had erred in law by upholding the defence of trespassing and dismissing the charge against Buchanan.
The court's analysis focused on the interpretation and application of the relevant statutory provisions, namely sections 29(4) and (9)(b) of the Domestic Animals Act 1994 (Vic), which provide a defence if the person bitten was trespassing at the time of the incident. The court considered whether the victim's arm extending over a chest-high dividing fence into Buchanan's property constituted trespassing, and whether this was a necessary condition for the statutory defence to apply. The court also examined whether the magistrate's decision to dismiss the charge on the basis of this defence was legally sound.
The Supreme Court concluded that the magistrate had erred in law by applying the statutory defence of trespassing without sufficient consideration of the circumstances of the incident. The court found that Johnson's actions did not constitute trespassing as defined by the Act, as the dog was unable to reach over the fence to bite him due to its size and the height of the dividing fence. Consequently, the court held that the statutory defence did not apply, and the magistrate's dismissal of the charge was legally incorrect. The appeal was allowed, and the matter was remitted to the Magistrates’ Court for further proceedings.
The final orders of the Supreme Court included allowing the appeal, setting aside the decision of the Magistrates’ Court, and remitting the matter to that court for further consideration in light of the court's findings. The court's decision highlights the importance of a careful and contextual application of statutory defences in criminal cases involving domestic animals.