Johnston v Moretti

[2008] QDC 62

[2008] QDC 62

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE FORDE

No 2414 of 2007

MARTIN JAMES JOHNSTON	Appellant
and
CARLA MORETTI	Respondent
BRISBANE ..DATE 25/02/2008

ORDER
HIS HONOUR: The appellant, Martin James Johnston, appeals

1

from a decision of the Magistrate of the 27th July 2007
whereby he was found guilty of breach of duty of care on 21st

October 2006 pursuant to section 17 of the Animal Care and Protraction Act 1991. He was convicted and fined $500, in default 10 days' imprisonment.	10
Section 17 of the said Act provides that a person in charge of
an animal owes a duty of care to it and that the person must
not breach the duty of care. In defining what a breach may be
a person is required to take reasonable steps to provide the	20
animal's needs in various ways including food and water and
ensuring any handling of the anima by the person or caused by
the person is appropriate and regard should be had to the
species, environment and circumstances of the animal and the
steps a reasonable person in the circumstances of the person	30
would reasonably be expected to have been taken.
The appellant has sent various pieces of correspondence to the
Court in relation to the appeal and I shall deal with that
shortly. However, the thrust of the prosecution case was that	40
the appellant had left two Corgi dogs in the back of a vehicle
at a shopping centre on the 21st of October 2006. The charge was that he being a person in charge of an animal, namely two dogs, did breach his duty of care to those animals by not
taking reasonable steps to provide for the animal's needs for	50

living conditions. There was a further charge but, for
present purposes, it is irrelevant.
The dogs were observed by an off-duty police officer at about 2 ORDER 60

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10.15 a.m. She said it was a sunny and warm clear Queensland
day. When she observed the dogs they were on the back seat of

the vehicle

The learned Magistrate's reasons show that the air temperature	10
was about 25 degrees Celsius and humidity 55 per cent with
some wind present. The defendant said that it was an overcast
day and that he had parked his car near a tree. However, the
witness, Sandra Higgins, the off-duty police officer, said the
vehicle was not under shade but in full sun with one window	20
partially down. She observed the dogs in the vehicle panting heavily, taking short rapid breaths. She thought that the dogs may have been distressed. She reported it to the Police Beat at the shopping centre and Officer Moretti attended.
30
She opened the vehicle and observe that the temperature was
noticeably warmer inside than outside. The dogs were panting
heavily but they were not in distress at the time. She sprayed
them with water and put the dogs back in the car leaving the
windows down and arranged for the owner to be notified by	40
public announcement. There was no response.
At about 1 p.m. the owner attended to collect the dogs which,
by that time, had been taken out of the vehicle as they were
very hot and panting excessively. Soon after they calmed down	50

and appeared less stressed.
It is necessary to look at the outline of argument of the 3 ORDER 60

1

appellant. He said that the dogs had disabilities and could
not walk and that he looks after his dogs well and has spent a

considerable sum in maintaining their health. He has had the dogs since they were eight years old and they are about eight years now. He complains about losing a lot of wages because	10
of these problems and points to other mitigating factors.
In his defence he says that he intended to go to the Chermside
Shopping Centre and that the car was parked there because he
had mechanical problems and he had no other alternative but to	20
leave the dogs in the car as they have difficulty walking and are not allowed in taxis The alternative was, of course, to leave them at home.
The defences which he offered really are no answer to this	30
particular charge of failing to take reasonable care. Not
only did he not have the windows down but there was no water
available although he said there was a water container in the car. That is not sufficient. The car was left unlocked but, of course, the dogs could not get out. One could say that	40
this was an unusual aberration on the part of the appellant.
He challenges that the day was very hot and that the dogs were
distressed because he said they have trouble walking but the
other indicia would satisfy a Court that he had failed to take	50

reasonable care.
A Magistrate in dealing with this type of offence if there is 4 ORDER 60

1

evidence before the Court can proceed to convict. In the
present case there is such sufficient evidence before the
Court. The Magistrate has not acted on any wrong principle or
taken into account irrelevant material which would otherwise

affect his discretion under House v. The King [1936] 55 CLR	10
499 at 504.
There was evidence by police officers which would support the
indicia from which one can readily draw the inference that
reasonable care on this particular day had not been taken by	20
the appellant. Whether the appellant had engine trouble at the time or that he had cared for the dogs properly on other occasions is not to the point. That may be relevant on mitigation.
30
It was open to the learned Magistrate to accept the
credibility of the witnesses having observed them and a Court
of Appeal would be loath to overturn those findings of the
Magistrate who has had the benefit of seeing the witnesses.
Whether there had been one or hundreds of complaints from	40
members of the public is irrelevant. The fact is that an off- duty police officer observed the condition of the dogs. For those reasons the appeal is dismissed.

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5 ORDER 60