Kingborough Council v Bester

[2003] TASSC 30

[2003] TASSC 30

CITATION:              Kingborough Council v Bester [2003] TASSC 30

PARTIES:  KINGBOROUGH COUNCIL
  v
  BESTER, Neil

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 15/2003
DELIVERED ON:  22 May 2003
DELIVERED AT:  Hobart
HEARING DATES:  15 May 2003
JUDGMENT OF:  Underwood 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(2).
Gilbert v Gulliver [1918] VLR 185; Chappell v A Ross & Sons Pty Ltd [1969] VR 376, followed.
Aust Dig Statutes [17]

REPRESENTATION:

Counsel:
           Applicant:  J F W Crotty
           Respondent:  M F Daly
Solicitors:
           Applicant:  James Crotty
           Respondent:  Hugh Murray LLB

Judgment Number:  [2003] TASSC 30
Number of Paragraphs:  19

Serial No 30/2003
File No LCA 15/2003

KINGBOROUGH COUNCIL v NEIL BESTER

REASONS FOR JUDGMENT  UNDERWOOD J

22 May 2003

1. The respondent was the owner of a black Rotweiller.  On 12 February 2002, the respondent took his dog for a walk on a beach in the applicant's municipality.  He had with him another dog.  It was a small brown dog.  The Rotweiller was on a leash.  The other dog was not.

1. The respondent let the Rotweiller off the leash.  It quickly ran up an embankment at one end of the beach and flushed out a possum.  The Rotweiller chased the possum into the water, attacking it on the way.  In the water, the dog seized hold of the possum.  Meanwhile, the respondent stood at the water's edge, shouting at his dog, but to no effect. 

1. A concerned bystander ran into the water fully clothed and pulled the dog back to the beach and it to its owner.  The possum was left floating in the water.  Other concerned bystanders coaxed the possum back to shore.  It had injuries to its neck and eye, but after being cared for overnight, it apparently recovered sufficiently to take its leave from the home of its rescuers.

1. The respondent was charged with a breach of the Dog Control Act 2000 ("the Act"), s19(2), which provides:

"The owner or person in charge of a dog must not allow or incite the dog to attack an animal or chase a horse being ridden.

Penalty:

Fine not exceeding 10 penalty units."

1. The complaint was heard by Deputy Chief Magistrate M R Hill, sitting in a court of petty sessions. After evidence had been given to the above effect, counsel for the respondent submitted that there was no case for the respondent to answer. The learned magistrate heard submissions about whether the Act, s19(2) created an offence of strict liability or whether Parliament intended that some form of mens rea or mental element had to be proved.  His Worship was referred to a number of authorities, including He Kaw Teh v R (1985) 157 CLR 523; Sweet v Parsley [1970] AC 132 and Gibbon v Fitzmaurice [1986] Tas R 137.

1. The learned magistrate took time to consider the matter.  On 7 February 2003, the learned magistrate held that the respondent had no case to answer and dismissed the complaint.  He gave written reasons.

1. By a motion to review, the applicant seeks a review of the order of dismissal. The first three grounds of the motion allege error of law in the interpretation of the Act, s19(2), and the fourth and fifth grounds allege error in the learned magistrate failing to find that letting the dog off the leash amounted to allowing the dog to attack the animal. With respect to grounds 4 and 5, I interpose to note that on a submission that there is no case to answer, findings of fact are inappropriate. The question of law for the learned magistrate was whether or not there was evidence from which he could reasonably conclude that there had been a breach of the Act, s19(2). However, the learned magistrate correctly directed himself with respect to the issue he had to determine and referred to Zanetti v Hill (1962) 108 CLR 433. I shall refer to the sixth ground shortly.

1. The learned magistrate did not let himself be misled into a consideration of the principles enunciated by the High Court in He Kaw Teh. Instead, he considered the elements of the offence created by the Act, s19(2), and examined the meaning of the word "allow" as enacted in that section. He referred to a number of authorities which considered the meaning of this word as enacted in various enactments. Those authorities included Victor v Chief of Naval Staff (1993) 115 ALR 716; The Commissioner of Police v Tanos (1957) 98 CLR 383; Gilbert v Gulliver [1918] VLR 185 and DeKuyper v Crafter [1942] SASR 234.

1. In Gilbert v Gulliver (supra), Cussen J said, at 189:

"I think that, ordinarily speaking, before a person can be said to 'allow' anything there must be something in the nature of actual knowledge or connivance, or in some cases extensive delegation of authority in circumstances where the defendant has delegated his power to prevent the act from being done … Of course, the meaning of the word 'allow' may vary, having regard to the circumstances and in some cases to the class of enactment act in which it is found."

1. It seems to me that the learned magistrate was plainly correct in his interpretation of the Act. "Attack" is defined by the Act, s3, to include bite, menace or harass. By an act or omission, a person cannot be said to allow a dog to attack an animal unless at the time of that act or omission, that person is aware that such an attack has commenced or is likely to commence in consequence of that act or omission. In Chappell v A Ross & Sons Pty Ltd [1969] VR 376, the Full Court of the Supreme Court of Victoria considered at some length the meaning of the word "permit" where enacted in legislation that made it an offence to permit a driver (inter alia) to drive in excess of the prescribed hours and without being in possession of a log book.  Gilbert v Gullivar (supra) was cited with approval at 381.  Winneke CJ and Smith J observed at 382 that "permit" was a synonym for "allow" and said, at 382 - 383:

"We think that in accordance with the natural use of language it involves not only a right or capacity on the part of the permittor to prevent the contravention, but also a state of mind amounting to consent to, or acquiescence in, the contravention.  And consent or acquiescence must include an element of knowledge or foresight.  Actual knowledge that the contravention is being or will be committed would plainly be sufficient.  Likewise, we think a belief that a contravention is highly likely or probable would suffice.  The weight of judicial authority in our opinion, supports this view.  For those reasons 'permission', in our opinion, cannot be equated with a careless or negligent failure to prevent a contravention."

1. Not only is the construction adopted by the learned magistrate in accordance with the plain ordinary meaning of the words in s19(2), it is also consistent with the scheme of the Act. Section 19 is enacted in the Act, Pt3, Div1, headed "Control of Dogs". Section 19 enacts in positive terms that an owner or person in charge of a dog must ensure that the dog is not at large and fixes a maximum fine of five penalty units for a breach. Section 17 imposes, also in positive terms, an obligation to ensure that while in a public place, a dog does not rush at a vehicle. For a breach of this section, the legislature has provided for a maximum fine of five penalty units. Section 18 deals with securing and muzzling greyhounds. In the event of a breach of this section, the person in charge of the greyhound is liable to a maximum fine of five penalty units. The remaining section in Div1 of Pt3 is s19. Section 19(1) provides that an owner or person in charge of a dog must not allow or incite the dog to attack or chase any person. The subsection provides for a maximum fine of 20 penalty units. Unlike ss16 and 17, s19(1) does not provide that an owner or person in charge of a dog shall ensure that it does not attack a person. This leads to two conclusions; first that "allow" imposes a obligation different from that imposed by the word "ensure" and second, that as a breach of s19 will inevitably encompass a breach of s16, the former has an element additional to those prescribed by the latter.

1. When in a public place, a dog is, by virtue of the Act, s5, at large if (inter alia) it is not under the effective control of a person. Sections 3 and 4 define effective control relevantly to mean either on a lead or, if off the lead, in close proximity to the person in whose control the dog is, in sight of that person and immediately responsive to that person's commands. If the applicant's submission with respect to the proper construction of s6 is correct, the following results. A person who has a dog under effective control in a public place, but not on a leash, commits a breach of the Act, s19(1), and incurs a liability to pay the maximum fine provided for in Pt3, Div1, if the dog unexpectedly darts through a fence and harasses a person in a garden. However, such conduct does not constitute a breach of s16(1) which carries the lesser maximum penalty of five penalty units.

1. Further, the word "allow" in s19 is coupled with the word "incite".  Obviously it is not possible to incite a dog to attack anything or anybody unless at the time of the act(s) of inciting, the dog owner intends an attack to be the result of his or her act(s).  Although the two words create separate offences, joining them in the same section tends to support the construction that I have propounded.

1. The motion to review, ground 6, provides:

"6       Or in the alternative, in finding the Defendant's failure to take any or any adequate action once aware the dog had attacked an animal to prevent the continuation or aggravation of the attack or further attacks amounted to an act which 'permitted the attack or made the attack easier to happen."

1. Better expressed, that ground would read:

"That the learned magistrate erred in failing to conclude that the respondent's acts and/or omissions after the dog and the animal had entered the water could have amounted to a breach of the Act, s19(2)."

1. The evidence was that the respondent stood at the water's edge and shouted at the dog, but his shouts did nothing to prevent the attack continuing. It seems to me, as a matter of law, that the evidence of failing to act, other than by making ineffective shouts, was capable of satisfying the learned magistrate to the requisite degree, that the respondent had committed a breach of the Act, s19(2). Whether at the end of all the evidence he would be so satisfied is another matter. It does appear that the learned magistrate may not have considered this aspect of the matter. Accordingly, the motion to review succeeds. The order of dismissal is quashed.

1. I will need to hear counsel with respect to the final disposition of this motion to review.  The submission of law before the learned magistrate did not address the correct issue.  Further, it was not contended at any stage that the conduct of the respondent at the water's edge was sufficient evidence of the commission of the offence charged and consequently, the learned magistrate did not consider this possibility.

1. At the conclusion of his reasons for judgment, the learned magistrate said:

"The only evidence here is that the defendant took the dog off the leash.  There is no evidence that he knew or should have known the possum was on the beach.  There is no evidence he urged the dog on or that he had any warning the dog would do what it did.  I do not think that simply taking the dog off the leash is sufficient to 'allow' it to attack the possum within the meaning of the section as it now stands."

1. In these circumstances it might not be appropriate to order a re-hearing in accordance with law.