Klewer v Fleming LCM

[2005] NSWSC 1318

CITATION:	KLEWER v FLEMING LCM [2005] NSWSC 1318 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 April 2005, 21 April 2005
JUDGMENT DATE :	10 January 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Appeal dismissed with costs

CATCHWORDS:	Appeal from Local Court - alleged errors of fact and law - no question of principle
LEGISLATION CITED:	Companion Animals Act 1998 s 22 Crimes Act 1900 ss 58, 61 Crimes (Local Courts Appeal and Review) Act 2001 Evidence Act 1975 s138 Summary Offences Act 1988 s 11C(1)
CASES CITED:	DPP v Carr (2002) 127 A Crim R 151
PARTIES:	Lucy KLEWER (Plaintiff) Judith Mary FLEMING (Magistrate) First defendant DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Second defendant
FILE NUMBER(S):	SC 12804/04
COUNSEL:	Plaintiff in person Mr Richard Lancaster (2nd Defendant)
SOLICITORS:	Plaintiff unrepresented I V Knight (1st Respondent) S C Kavanagh (2nd Respondent)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Fleming LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Tuesday 10 January 2006

12804/04 Lucy KLEWER v Judith Mary FLEMING LCM & 1 ORS

JUDGMENT

1 HIS HONOUR: On 16 August 2004 the plaintiff appeared in the Local Court at Coffs Harbour charged with five offences. Having regard to their connection with a single set of circumstances, the charges were heard together. In short, it was alleged that at a public walkway in the Opal Cove Resort at Coffs Harbour the plaintiff carried a knife visibly in the presence of Mr and Mrs Gintowt in a manner that would be likely to cause a person or reasonable firmness present at the scene to fear for his or her personal safety, that when she did so by wielding the knife and using threatening language she assaulted Mr and Mrs Gintowt and that, when Senior Constable Murphy and Constable Brown attended at her home to arrest her she resisted them in the execution of this duty. These offences arose respectively under s 11C(1) of the Summary Offences Act 1988, and ss 61 and 58 of the Crimes Act 1900.

2 The plaintiff was unrepresented throughout the hearing which occurred on 16, 18 and 20 August 2004. On the last day of the hearing, the plaintiff was convicted of all five charges. The plaintiff has appealed to this Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001. Section 52(1) gives any person who has been convicted by a Local Court the right to appeal to the Supreme Court against the conviction, but only on the ground that involves a question of law alone. Section 53(1) allows an appeal to the Supreme Court on a ground involving a question of fact or question or mixed law and fact but only by leave of the Court. As will appear, many of the grounds relied on by the plaintiff are either questions of fact or questions of mixed law and fact. Although she has not, in terms, sought leave to appeal, the plaintiff filed and served written submissions stating her grounds of appeal and, in the circumstances, I am prepared to treat these submissions as an application for leave to appeal.

The resist arrest charges

3 Having regard to the grounds of appeal it is convenient briefly to set out first the course of the evidence in the Local Court.

4 The first witnesses called by the prosecution were the two police officers involved in the arrest of the plaintiff following the complaints that had been made by Mr and Mrs Gintowt about events that had occurred at Opal Cove Resort earlier that day. The prosecutor tendered without objection the witness statements made by the two police officers. Senior Constable Murphy said that, at about 7.50 pm on 15 February 2001, he and Constable Brown went to the home of Mr and Mrs Gintowt at Korora. They told the officers that they had been threatened by the plaintiff who was their neighbour. They said that she had a knife and said, “I will kill you and your dog” and at about this time waved a knife about a metre away from them. Following that complaint the officers went to the plaintiff’s home which was close by. Senior Constable Murphy said that the front door was open, that he knocked on it and a female voice said, “Hang on”. The plaintiff then came to the front door and, standing on the veranda said, in effect, that she had just called the police to complain about Mr Gintowt’s conduct in relation to his dog which she said had nearly killed hers and was not allowed to be out of his yard. She said that he was out walking his dog again that afternoon. Senior Constable Murphy said that he told the plaintiff of the Gintowt’s complaint about her conduct with the knife and that she replied, “Yeah, I had a knife. I am allowed to carry it and use it to protect my dog under section 22 of the Act”. This was a reference, as I understand it, to the Companion Animals Act 1998. Sen Constable Murphy said that this was not right and that under the Summary Offences Act 1988 the plaintiff was not allowed to carry a knife in a public place. He told her that she was under arrest for possessing the knife and threatening the people with it. He then cautioned her. He said that the plaintiff responded, “Fuck off, I’m not going anywhere”, and then ran inside her house and attempted to close the front door. Sen Constable Murphy said that he put his foot in the door and pushed on it to prevent it from closing, that he and Constable Brown then pushed the door open and entered the house in order to arrest the plaintiff. The plaintiff fled into a room and returned a short time after carrying a piece of paper. Sen Constable Murphy said that the plaintiff was yelling and said something like, “Have a look, I can have the knife and I can kill the dog”. He said that he took the paper, which appeared to be an extract from the Companion Animals Act and briefly read it. He then said to the plaintiff, “It does not make any difference, you are under arrest and you are coming back to the police station with us”. He said that the plaintiff responded, “No way, I am not coming with you”. The two officers took hold of the plaintiff by her arms but she pulled away and held a wooden banister with her hands. Sen Constable Murphy told her to let go and, “come with us”, but she attempted to pull away. He said that, thinking the plaintiff would run off if she were not held, he forcefully removed her hand from the banister and the two officers commenced to walk her towards the front door. The plaintiff called out, “Close the door”, apparently to her children who were then present. Her son (then ten years of age, I think) closed the front door, the plaintiff continued to attempt to pull away from the officers; the police officers managed to open the door and escorted the plaintiff to the rear of the police vehicle. She was placed in the caged section of the vehicle and taken to Coffs Harbour Police Station. Constable Brown’s statement was much to the same effect as that of Sen Constable Murphy.

5 Both officers gave evidence in chief which, by and large, reflected their statements. They were cross-examined extensively by the plaintiff. In some respects, the evidence of Sen Constable Murphy was less than satisfactory. In particular, he said that he did not interview the plaintiff’s son because he did not think he was independent and that he only needed to interview witnesses who he thought were independent. On the other hand, he had interviewed both the Gintowts who he said he thought were independent because they were adults. As the learned magistrate observed, independence is not dictated by age. It is obvious that the Gintowts could not be regarded as independent of each other. Sen Constable Murphy also said that he had not got the impression that there had been a dispute between the plaintiff and the Gintowts. But, again as the learned magistrate observed, it is difficult to reconcile this evidence with the substantial quantity of evidence of a long-standing dispute between the Gintowts and the plaintiff, with a fair degree of animosity between them. The officer also said that the Gintowts had been interviewed separately but it is clear that, at the time that the complaint was reported, they were together. It is worth noting, at this point, that the plaintiff was interviewed at the police station and the record of that interview was tendered in the proceedings. Amongst other things, she appeared to admit that she did indeed resist arrest when the officers were attempting to get her to let go of the banister and also in relation to the closing of the door.

6 The plaintiff’s evidence concerning the arrest was that, in substance, she had telephoned the police station to speak to the duty sergeant and, whilst waiting for him, her children told her that police were at the door, that she thought that this might have been in a response to her call and she told her daughter to let the police in, that the officers entered the house and said that they had received a complaint that she (the plaintiff) was carrying a knife down at the resort, to which the plaintiff responded that this was because she and the children were going fishing. She said that she then started talking about the issues she had with Mr Gintowt and his dog and complaining that the dog was still at large despite attempts by the plaintiff to have the council ensure that his behaviour did not continue. She said that she left the officers to obtain a copy of the Companion Animals Act, returning with it shortly after and giving it to Constable Murphy to read. She said that he only read to a certain point and then said, in effect, that it meant nothing and insisted that she had to come down to the police station with them. She said that the two officers then went outside and she did so as well, indicated the adjacent vacant block of land and pointed out that the Gintowts’ dog could be seen in the tall grass, which was frightening because it was close to the house, there were no fences and nothing to stop the dog from coming onto her property and attacking the plaintiff’s dog or her family. She said that, whilst they were outside, Constable Murphy said that she was under arrest, to which the plaintiff said, “I’d better go and speak to your sergeant because I don’t agree with your reasons for arresting me” and moved back inside the house. She said that then the officers forced their way into the house and –

“as I was walking down towards the stairs I grabbed hold of the banister and the children tried to close them outside so they wouldn’t come in. Murphy grabbed me by the right arm and I said to him at that point, ‘Don’t pull’…and showed him …a bruise that was on my right elbow [from cortisone shots, and said.] ‘Don’t pull at my arm’ and he kept pulling me very hard and at the same time Brown had me by the wrist and forearm and sharply twisted my arm behind me, causing me extreme pain…and what happened then was, I said to the officer…’Look, if you want me to come down to the station really just let me go and I’ll get into my car’…and during all this time the children were getting very, very upset, they were crying, I was crying because of the pain in my arm, it was just like a nightmare, they were just savaging, they were – he was so unreasonable…so what happened after that, their van was parked up the street so they had to take me across to the front yard [and]…I was taken to the station.”

7 The plaintiff was cross-examined on this account. She said that she held on to the banister only momentarily as she was going downstairs and that she was no so much resisting arrest as attempting to get the officers to release her arms because they were hurting her although she continued to hold on to the banister, she said, until the police forced her to let go. She was asked –

“Q. If you say you had an injured arm then why did you resist the police in taking your hand from the railing?
A. I – I wanted to go downstairs and make that call because I had a couple of maniacs wearing the police uniform going about bashing their law-enforcement powers whichever way they pleased and all I could think was I was dealing with criminals not police.”

8 The plaintiff called two of her children to give evidence. It is sufficient to say that in respect of this part of the case, their evidence did not assist the plaintiff.

9 Dealing with the arresting offences, the learned magistrate (rightly in my view) concluded that the arrest was lawful in the sense that the offences warranted arrest and that this power to arrest was not removed by the possibility that a court attendance notice could also have been used. The learned magistrate then went on to say –

“I do have some doubt about what occurred when she first went down the stairs, whether it was prior to that that the police forced their way in or after that, that this situation escalated. I am satisfied though that even without being able to decide what happened there, that she was told when they were outside on the veranda that she was under arrest, that as a consequence of that she went back inside the house, that she tried to stop the police from coming in by holding the door, that when the police came in she held onto the banister to try and prevent them taking her. It seems that on the evidence what she was trying to do on her version, or even on her version, what she was trying to do was to negotiate with them, some other way other than the arrest, (1) by indicating that she did not want to go to the police station, secondly by saying she would speak to their superior, thirdly by saying that she would talk to them at the house but not go to the police station, fourthly by saying that she would take herself in her car. It may well be that she was saying all of those things but that they were not all heard by the police, because of the rapidity with which she spoke. However, even on her version given in the record of interview, she does agree that she tried to prevent them or got the children to prevent them, having free access in and out of the door, that she had hung on to the banister when the police were trying to take her out and that she was, after that, resisting attempts to leave the house.
As a matter of law it seems to me that the police are not required to negotiate the circumstances and reach an agreement as to when and where she would be taken or how she would be taken. I find as a matter of law, that even on her own admissions, there is evidence to support the charge of resist, and I am satisfied beyond reasonable doubt that each offence of resist is made out.”

10 It is obvious from this brief account of the evidence that it was open to the learned magistrate to conclude that the plaintiff’s own accounts of the arrest provided significant support for – indeed, was capable of establishing – the plaintiff’s guilt of the charges. Moreover, the learned magistrate was entitled to rely on the evidence of the police officers which in a number of respects was supported by the evidence and the admissions of the plaintiff, although her account overall plainly contradicted significant parts of the officers’ testimony. Weighing up the differing accounts was entirely within the proper exercise by the learned magistrate of her fact-finding function and I can discern no error in her Honour’s reasoning.

11 In her written submissions to this Court, the plaintiff contended that the learned magistrate erred in failing to consider the lawfulness of her arrest, contending that because there was no need for the officers to arrest her since they knew where she lived and had no reason to doubt that she would fail to attend court on a court attendance notice and also because the officers had not investigated the allegation made by Mr and Mrs Gintowt against her. The plaintiff also submitted that she had given evidence to the effect that the officers had “terrorised her family and brutally arrested her in front of her young children”, that she had suffered bruising after “being roughly arrested” and produced photographs showing the bruises and the damage to the glass panel on the front door of her house. She submitted that the magistrate should not have accepted Constable Murphy’s evidence that he was justified in not issuing a court attendance notice “but then again her Honour showed no regard for the plaintiff nor her son, who broke down after recounting in the witness box the events of February 2001, where he witnessed the savage attack on the family pet on February 11 2001 and his mother’s cries of pain when she fell and injured her ankle in an attempt to protect the family pet from the savage collie who was loose at the beach on the 10 February 2001”.

12 The plaintiff also submitted that the learned magistrate should have permitted her to give evidence about being injured by police on prior occasions. I should point out that the plaintiff did not suggest that she had been injured by the officers who were arresting her and, as I understand her evidence, the “injury” occurred in 1994 when “I was accused of driving without a license, I was arrested and I ended up being bullied and injured and that was when I came back from the United States in 1994…”

13 On 20 February 2001 the plaintiff voluntarily attended at Coffs Harbour police station for the purpose of an interview concerning the events of 15 February. In the course of the interview, she told police, amongst other things, that when she went to the door of her home on being informed of the arrival of the police, she stated that she had the copy of the legislation with her at that time. She also said that, shortly after she was told that she needed to come down to the police station to answer some questions and responded by suggesting that they could talk “here”. The officer refused this and insisted that the plaintiff come down to the station which the plaintiff said was very unreasonable and “I am not going to come down with you”. She said that the officer then said that she was under arrest. The plaintiff then said that she wanted to go to telephone the duty sergeant at the police station because she did not think that “what you are doing is correct”. The plaintiff agreed that she turned away to go to the stairs, put her hand on the banister and was then grabbed by Constable Murphy. She complained that the condition in her arm would be aggravated if he pulled them and said, “I am not going with you”. The door was closed but finally opened and, despite the plaintiff’s offer to go to the police station immediately in her own car, the officers insisted on her coming with them and “they just dragged me outside and put me in the van and took me to the station…”.

14 Later in the interview the plaintiff stated that she had resisted arrest by holding on to the banister. The plaintiff’s account in the interview varied somewhat on later questioning. The magistrate was entitled to have regard to the differing accounts given by the plaintiff about the events. At all events, whatever the differences, the plaintiff admitted throughout that she had been placed under arrest and had resisted arrest.

15 The plaintiff complained about the use of force by the police officers. I do not accept that this force was excessive in the circumstances. It is obvious that the evidence which the plaintiff wished to give about being injured by police on earlier occasions was inadmissible as there was no basis for inferring that such conduct was that of either of the arresting officers. The plaintiff contends in her written submissions on the appeal that the learned magistrate should have believed her evidence in preference to that of the officers. Each of her admissions at the time of interview and her evidence established the plaintiff’s guilt of the two resist arrest charges. In those circumstances it was unnecessary for the learned magistrate to nicely analyse the differences between the accounts given by the police officers and the plaintiff. Furthermore, her Honour was entitled to rely on her own impression of the relative reliability of the witnesses, who gave quite lengthy evidence.

16 The plaintiff also submits that the learned magistrate should have considered that her arrest was unlawful. Her Honour adverted to this aspect but said little more than that she did not consider the lawfulness of the arrest was raised in any real sense by the evidence called or the contentions made by the plaintiff. The plaintiff referred during the course of the proceedings to DPP v Carr (2002) 127 A Crim R 151 as authority for the proposition that, where the police are aware of the place of residence of an alleged offender and had no reason to doubt that the offender failed to attend court if, instead of arrest, a court attendance notice was issued, the arrest of the offender was unlawful. Carr concerned the application of s 138 of the Evidence Act 1975 to the admissibility of evidence of a number of offences, including resisting a police officer in execution of his duty, allegedly committed following the defendant’s arrest for using offensive language. Smart AJ concluded that it was in the circumstances improper to arrest the defendant for using offensive language rather than proceeding by way of summons. Smart AJ did not say that it was unlawful. His Honour said (127 A Crim R at 159) –

“This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police…”

17 No objection was taken to the admissibility of the police officers upon this or, indeed, any other ground. Even if the evidence of the police officers was inadmissible, it would have made little difference to the outcome of the charges, since as I have pointed out, the plaintiff had made admissions in the course of her police evidence, upon which conviction was inevitable. I do not think that this was a case in which the learned magistrate was obliged to consider an objection that was not taken and, for that matter, is still not taken, merely because an unrepresented party cites a case in support of an argument which it does not in fact support although it might well support another argument capable of being relevant in the proceedings if the point were taken.

18 In this case, the police had an apparently convincing complaint involving, it is true, offences which were not in themselves serious but which involved the use of a knife, a use moreover which was in part confirmed by the plaintiff herself when speaking to the arresting officers. The information (as to which see below) that the Gintowts had conveyed to the officers was certainly worrying and suggested a distinct risk of future violence. Moreover, the plaintiff pointed to an apparent lawful justification for the use of the knife to destroy the Gintowts’ dog if she felt it necessary to do so. I mention these matters only to demonstrate that there may well have been a proper basis for arrest rather than issuing a court attendance notice, having regard in particular to the troubled relationship between the plaintiff and her neighbours. Because the objection was not taken, no exploration was undertaken by the learned magistrate as to whether the arrest of the plaintiff was proper within the meaning of s 138 of the Evidence Act 1999 and, if so, whether the other provisions of that section justified admitting the evidence. I say no more about this matter (it not having been raised) than to point out that there were good reasons in my opinion for the police to arrest the plaintiff and good reasons also for holding that the evidence of the officers was admissible even, on balance, if the police ought to have proceeded by way of court attendance notice (which, as I say, I doubt).

19 I can discern no error of law in the learned magistrate’s brief but adequate analysis of the evidence relating to these charges. It follows also that leave to appeal on the questions of fact and questions of mixed fact and law sought to be raised by the plaintiff should be refused in respect of the resist arrest charges.

20 During the hearing the plaintiff made several applications to the learned magistrate to disqualify herself. The first of these arose out of the disclosure by the police prosecutor, when objecting to a question asked by the plaintiff of Constable Murphy in cross-examination, that a civil trial concerning the legality of the arrest had been conducted in the District Court and determined adversely to the plaintiff. The prosecutor submitted, in substance, that the judgment dealt with certain issues of law – although I think almost certainly they must at least have been issues of mixed fact and law – which he contended could not now be revisited by the plaintiff. The learned magistrate rightly rejected this argument, without reading the judgment, upon the basis that the issues in a civil trial, albeit concerning the legality of an arrest, were not the same as those in the criminal proceedings which the magistrate was hearing, in particular, having regard to the different onus and standard of proof. The plaintiff submits that the disclosure of the judgment of the District Court with a clear implication that it was adverse to her should disqualify the magistrate since she would be likely to accept the evidence of the police officers rather than hers. This submission was baseless. The ruling of the magistrate as to the judgment makes it clear that her Honour did not need to read it and, even if she did, there can be no reasonable apprehension that she might have been adversely influenced by that judgment against the plaintiff.

21 The plaintiff also alleges that the magistrate kept interrupting the plaintiff’s cross-examination of the officers. I have carefully read the transcript with this complaint in mind. Far from being unfair, I consider that the learned magistrate acted with considerable patience and unwavering moderation. Her Honour’s interruptions were appropriate both in form and substance. It is evident that her Honour extended to the plaintiff, no doubt because she represented herself, a latitude which it is most unlikely any solicitor or counsel would have enjoyed.

22 The plaintiff alleges that the learned magistrate was “also sarcastic and totally disinterested in what I had to say”. The transcript decisively refutes the allegations. In the circumstances here, whether the learned magistrate should have disqualified herself is not purely a question of law, since it depends upon a particular factual foundation. However, whether this is so or not, there is no merit in the plaintiff’s contentions that her Honour erred.

The assault and knife offences

23 The prosecution relied largely in respect of these offences on the evidence of Mr and Mrs Gintowt. Mr Gintowt said that about 7 o’clock on 15 February 2001 he and his wife, Anna, were walking back from the beach near Opal Cove resort at Coffs Harbour. His wife was carrying their one-year-old daughter and Mr Gintowt was holding his dog on a lead. They stopped near a creek and Mr Gintowt let the dog off the lead to have a drink. As they waited, Mr Gintowt heard his wife say, “That woman’s coming” and saw the plaintiff coming down the hill towards them walking very quickly. The plaintiff was accompanied by her young son (Mr Gintowt thought he was about nine years old) and was leading a Labrador dog whilst her boy had the pup, both on lengths of rope. When she got close to the Gintowts, the plaintiff said, “You maniac you and your dog”. Mrs Gintowt said, “She’s got a knife” and Mr Gintowt then saw the plaintiff waving a knife at his wife who was holding the baby. Mr Gintowt was a little further away so that his wife was between him and the plaintiff. He said that he heard the plaintiff say, “I’ll kill you and your dog, I am allowed to carry a knife for my protection, I can kill your dog if I want to”. He said that the plaintiff then put the knife back into the left pocket of her jeans and walked off towards the beach. Mr Gintowt said that the whole episode lasted only minutes. The knife appeared to have a black plastic handle and a blade about six inches long with a serrated edge. He said that he felt “absolutely terrified, I was stunned, I couldn’t move, I was petrified with fear”. He said that the plaintiff was mouthing some sort of abuse and he couldn’t follow most of it because it was a jumble of sentences and ideas. This was in a raised level of voice but not screaming. Mr Gintowt was about three metres from the plaintiff at the time and his wife was about a metre from her. Mr Gintowt said that his dog came up from the water (as I understand his evidence) as the plaintiff came into sight and he grabbed it by the collar and, as the plaintiff came towards them, he clicked the lead on. Mr Gintowt said that he and his wife went straight home and he called the police saying to the officer, “We have been attacked by someone with a knife, a woman with a knife, could you please send someone out to help us”. He said that, about twenty-five minutes or so later, Sen Constable Murphy and Constable Brown came to the house and they told them what had happened. Mrs Gintowt’s evidence was substantially to the same effect as that of her husband. So far as her own feelings were concerned, she said –

“I was absolutely terrified. I couldn’t believe that – what – it just – it was, it was a terrible experience, I was terrified. I didn’t move. I didn’t want to move any step away because I – the knife was so close that I was afraid that she’s going to reach Sophie with the knife.”

24 Mrs Gintowt said that the plaintiff was about a metre away from her but she had her hand extended and was waving the knife with her left hand.

25 The plaintiff’s account was significantly different in a number of respects from that of the Gintowts. She gave an extensive account of prior problems with Mr Gintowt’s alleged failure to control his dog. The sense of her evidence as to this appears sufficiently from the following passage –

“I would like to say that there was a lot of history between the parties involved prior to this incident of 15 February, and the main ones which were shortly prior involved a brutal attack on my dog. The owner of that dog, John Gintowt, is the person who repeatedly failed to control the dog and left myself and my family in fear every day, and we had our Labrador who we loved, he is a gentle dog, who we have had for eight years, and we felt that we were in constant threat by this man because he was often on the streets and he was at all times with his dog. He was at all times acting in a very peculiar manner by way of – the way he looked at us, the look on his face at such time when his dog was attacking, the look on his face when he was asked to assist to remove his dog from our dog and just his behaviour generally was very, very evident of a person who seemed to take pleasure in having his dog inflicting injury on our dog. The worst incident that we had which was in the presence of myself, my son and his friend, which occurred in front of his house on the main street, was – that occurred on 10 February – the attack was very, very severe. Our dog was yelping. You could hear him from a distance. At that time I was yelling at John, ‘Come and get your dog, come and get your dog’. No one appeared. The two boys, my son and his friend, were trying to scare the dog off with a stick. It would not let go. Then it did. I took my dog straight home. He had blood, he had – the blood was in the injured area on the left side of his neck. I was very upset about that and I was feeling sorry for the dog. I rang the police department…”

26 The plaintiff’s evidence about the day in question can be summarised as follows. The plaintiff said that she told her son that she was going to take the dogs for a walk and he asked her if he could go fishing. They left together to go to the fishing beach, the plaintiff holding both dogs, one with her left hand and the other with her right. She said that she took a knife because they were going fishing, which she put in her back pocket. She said it had about a three-inch blade and probably about a three-inch handle. The plaintiff said that they went to an access road through the resort down to the beach. She said that as she came to the bottom on a hill and perhaps a little further she saw the Gintowts’ dog on the golf course running loose. She said –

“…So I stopped straight away because I felt it was going to come over and attack Jessie [the Labrador dog] again because it did on every occasion and I felt even worse because it was loose so there was less chance that there was going to be any control over the dog, and John Gintowt…would have just been getting off the golf course, the dog was behind him on the golf course roaming and he was probably a short distance between the golf course and the start of the bridge [just before the golf course]. Mrs Gintowt was more than half way on the bridge and she had a child and there was a pram with a baby, I think that was a new child and…I stopped and I assumed they had seen me and I may have said some words to the effect, ‘Your dog is loose, control your dog’ or some words along those lines…and he grabbed his dog and he was bending over and his wife kept walking and when I could see that his dog…I walked past with the two dogs once in each hand, and Ryan (her son) was next to me so I bypassed Anna [Gintowt] on this bridge and as soon as I got to…the golf course beyond that bridge I turned around and I said – I was mainly talking to John and I noticed at that time that Anna was actually – kept on walking towards the hill…I suppose to go back home, and I turned around and said to John…’You keep reoffending…your dog is vicious, he’s attacked my dog so many times. You never learn. You never show any responsibility towards your dog’ [or] words to that effect. And I said to him, ‘Do you know I have a right under the law to protect my dog from further attacks?’, and I said to him, ‘the law allows me to take whatever measures to prevent any further injury even if I have to destroy your dog’ and at that point of time – I know it might not seem right, but to get that point across and because I happened to have the fishing knife with me, I took it out of my pocket only for a second, took it out – because I stopped and I put the leashes in one hand so I had the left hand free and I took it out and I showed it to him at the split of a second, just only for the purpose of making him accept that he can no longer allow his vicious dog to inflict injuries on other people’s dogs. And I wouldn’t have done that if at any time I knew I wasn’t allowed to do so under law. So that was the only intention, there was no other intention. At no time did I make the threats that they allege that I have made. There was no need to do that. As I have said, I don’t even – as I have said I wouldn’t even have recognised Anna Gintowt, I wouldn’t even know what her kids look like. All I know is that she had little ones. And so to say that I may – had a knife next to her daughter that is bizarre. I am a mother, I’ve got seven kids. I protect them with every – you know in every way I can and I love kids and as I said my concern was for those children because this dog was such a menace.”

27 I should add that the plaintiff at no point suggested that the Gintowts’ dog was behaving at all aggressively at this time, although she said that she was afraid that he would attack because of its previous behaviour.

28 The plaintiff’s son also gave evidence about this aspect of the matter. In my view, this evidence of the plaintiff’s son did not add much weight to that of the plaintiff.

29 I do not intend to analyse the cross-examination of either the Gintowts or the plaintiff. It is sufficient to say that the evidence of the Gintowts was not adversely affected and the magistrate was entitled to regard them as truthful and reliable witnesses. The evidence of the plaintiff – perhaps not surprisingly – was marked by continuous argumentative advocacy of her case and what she believed was Mr Gintowt’s gross irresponsibility so far as controlling his dog was concerned. It seems to me that the plaintiff’s evidence also showed she had a distinct tendency to exaggerate.

30 Evidence was given by an employee of the resort that, if accepted, demonstrated beyond question that the place where the offence occurred was a public place within the meaning of the legislation.

31 The learned magistrate accepted the evidence of the Gintowts and rejected that of the plaintiff where they were in conflict. In my view, the learned magistrate was completely justified in doing so. Certainly, the plaintiff has not persuaded me that the learned magistrate erred in this respect. Accordingly, leave to appeal in respect of the learned magistrate’s adverse findings of fact against the plaintiff must be refused.

32 The plaintiff has submitted that the learned magistrate erred by failing to consider that the plaintiff firmly believed, due to what she said were recent attacks, that Mr Gintowt’s dog was “at large at the time” and could attack and injure again on the day of the incident and that the production of the fishing knife (which the plaintiff was allowed to carry for fishing) was only for the purpose of self-defence from the dog from another imminent attack”.

33 There are a number of difficulties with this submission. The most obvious is that the plaintiff’s own evidence was that, although Mr Gintowt’s dog was at large at an earlier time (which Mr Gintowt denied) it was being held by Mr Gintowt at the time when the knife was produced. Having accepted the evidence of the Gintowt’s as truthful and reliable, it followed that the magistrate could not accept that the plaintiff wielded the knife in order to defend herself from an imminent attack from the dog. The plaintiff did not suggest that she told the Gintowts that she feared the dog might attack there and then and the clear sense of her evidence was that she produced the knife in order to show what she was entitled to do in the event that the dog might at some future time attack. In my view, there was no basis upon which the learned magistrate could have inferred that the plaintiff was acting in self-defence at the relevant time. Nor was there any need to consider s 22 of the Companion Animals Act 1998, since there was nothing that could then justify any action under the Act in relation to the Gintowts’ dog.

34 The plaintiff also submits that the learned magistrate erred in failing to find that the plaintiff had no criminal intent and “was at all time acting due to fear of further attacks”. In my view, the learned magistrate was fully justified in accepting the version of events given by the Gintowts over the versions of the plaintiff and her son in particular, in respect of their evidence of the plaintiff’s wielding of the knife and the threat that accompanied this act. Furthermore, the learned magistrate was correct, in my view, to conclude that the effect of the plaintiff’s evidence was not that she feared some threat from the Gintowts’ dog but, in the context, that her evidence went no further than foreshadowing a future course of action if there was an attack. At all events, having regard to the whole of the evidence, including the plaintiff’s demeanour, the learned magistrate was fully entitled to reject the evidence of the plaintiff as to what she had in mind at the time she wielded the knife.

35 The plaintiff also complains that “her Honour refused to admit any evidence relating to how the local police had never shown any regard for the plaintiff and her family”. This is plainly not a material issue. A number of other submissions either supported or related to this submission. It is unnecessary to deal with this matter except to say that the learned magistrate’s refusal to permit the agitation of this issue was, to my mind, completely correct.

36 On 20 August 2004, the plaintiff applied again to the magistrate to disqualify herself “in the event that at the conclusion of cross-examination of her by the prosecutor that she has not convinced the court that the prosecution evidence does not meet the criminal standard of proof to support the allegations”. Her Honour pointed out that it was not appropriate that an indication should be given as to whether the prosecution had established its case having regard to the plaintiff’s evidence since, as the plaintiff had pointed out to the magistrate, there was still some evidence in her case which she wished to adduce. The reason for the application was stated in the following way –

“I say this because my main witnesses are children, they say they feel very intimidated about appearing in court to give evidence. They still have vivid memories of the terrifying events of the incident in question. My boys are so fearful of police that one of them keeps locking up and the other refuses to sleep in his own room. Each time they see a police vehicle near or street they tell me about it as they say they worry. It will disturb them to see officer Murphy and Brown, especially Murphy, and most certainly Parriott. They are aware of the vexatious allegations he made about our family to DOCS.”

37 It is unnecessary to say anything more about this point except that the learned magistrate was right, on an application to disqualify, to conclude that she could not take into account witnesses’ concerns about giving evidence. Other grounds for the plaintiff’s application involved evidence that police had been warned that the plaintiff might make false accusations against them and might assault police. However, that information was tendered in evidence by the plaintiff and she cross-examined witnesses about it. It was not introduced by the prosecution. This was sufficient to dispose of the plaintiff’s complaint under this head. The plaintiff also complained in her application for disqualification that the learned magistrate had knowledge of a summons issued by police against her to be heard in the future, and this summons accused the plaintiff of making false accusations to the police. However, as the magistrate pointed out, these were merely allegations and, although she gave certain directions about the matter, it was not necessary to consider any evidence concerning the charges and her Honour did not do so. In my view, no reasonable person might think that such a matter might prejudice the learned magistrate against the plaintiff.

38 The plaintiff further relied on what she described as “the horrible and defamatory allegations by Officer Parriott to DOCS some time after 2001.” These allegations were mentioned by the plaintiff in an application to the learned magistrate to issue a court attendance notice for Mr Parriott to attend court, a notice which the registrar had refused to issue. The plaintiff had informed the magistrate that the officer had made a number of allegations but that those allegations were absolutely baseless. Nothing in this might be thought by a reasonable observer to prejudice the magistrate against the plaintiff.

39 The plaintiff also referred to a number of rulings on the admissibility of evidence made by the learned magistrate, some of which were adverse to the plaintiff. It is sufficient to say without further analysis that, even if incorrect (which is not my opinion) there was nothing in these rulings that might suggest any bias by the learned magistrate against the plaintiff. In my view, far from the learned magistrate being wrong in deciding not to disqualify herself, her Honour was duty bound to continue to hear the case.

Conclusion

40 So far as leave is sought to appeal as to any question of fact or question of mixed fact and law, the plaintiff should be refused leave, there being no merit in her complaints in these regards. So far as the plaintiff’s contentions involve pure errors of law, they also are without merit. It follows that the appeal must be dismissed with costs.

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