LAPPAN -v- HUGHES [2003] WASCA 173

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 173
Published:	07/08/2003
Case No:	SJA:1046/2003	Heard:	31 JULY 2003
Coram:	MILLER J	Delivered:	31/07/03
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed Decision of Magistrate set aside Matter remitted to Court of Petty Sessions, Bunbury for rehearing according to law
Category:	A
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Parties:	BRETT LAPPAN ESTHER MARIE HUGHES
Catchwords:	Justices Offences Control of dog Dog Act 1976 (WA), s 31, s 33A Whether defences under s 23, s 24 Criminal Code applicable whether provisions of Criminal Code excluded by s 33B Dog Act
Legislation:	Criminal Code, s 23, s 24 Dog Act 1976 (WA), s 31, s 33A, s 33B Justices Act 1902 (WA), s 46
Case References:	McPherson v Cairn [1977] WAR 28 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LAPPAN -v- HUGHES [2003] WASCA 173 CORAM : MILLER J HEARD : 31 JULY 2003 DELIVERED : 31 JULY 2003 PUBLISHED : 7 AUGUST 2003 FILE NO/S : SJA 1046 of 2003 BETWEEN : BRETT LAPPAN

Appellant

AND

ESTHER MARIE HUGHES

Respondent

Catchwords:

Justices - Offences - Control of dog - Dog Act 1976 (WA), s 31, s 33A - Whether defences under s 23, s 24 Criminal Code applicable - whether provisions of Criminal Code excluded by s 33B Dog Act

Legislation:

Criminal Code, s 23, s 24

Dog Act 1976 (WA), s 31, s 33A, s 33B
Justices Act 1902 (WA), s 46

Result:

Appeal allowed

(Page 2)

Decision of Magistrate set aside
Matter remitted to Court of Petty Sessions, Bunbury for rehearing according to law

Category: A

Representation:

Counsel:

Appellant : Mr E W L Greaves & Mr T Houweling

Respondent : No appearance

Solicitors:

Appellant : Christopher T Garvey

Respondent : No appearance

Case(s) referred to in judgment(s):

McPherson v Cairn [1977] WAR 28

Case(s) also cited:

Nil

(Page 3)

1 MILLER J: This is an appeal against the decision of Mr K T Fisher SM given in the Court of Petty Sessions, Bunbury on 25 March 2003, whereby the learned Magistrate dismissed two complaints against the respondent alleging that she had breached the provisions of s 31 and s 33A respectively of the Dog Act 1976 (WA).

2 The complaints were made in the Court of Petty Sessions, Bunbury on 30 January 2003, alleging that on 23 August 2002 at Cranbrook Way, Bunbury the respondent:

(a) Being the person liable for control of a brown coloured Bull Mastiff dog named 'Fletcher' which dog was in a public place, namely Cranbrook Way Bunbury whilst not securely tethered or controlled as required by the

Dog Act 1976

(breached the provisions of s31 of the Act);

(b) At the same place and on the same date, being a person liable for control of the same dog which was in a place not being a public place, namely upon the curtilage of Sally MacKeane at 5 Cranbrook Way,…

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.

Continue reading Lappan v Hughes

Details

AGLC: Lappan v Hughes [2003] WASCA 173
Case: [2003] WASCA 173
Decision Date: 7 AUGUST 2003

CaseChat Overview and Summary

Lappan v Hughes is an appeal against a decision made by a magistrate in a matter involving the control of a dog under the Dog Act 1976 (WA). The defendant, Hughes, was found guilty of failing to exercise reasonable control over a dog that attacked a police officer. The court was required to determine whether the defences provided under sections 23 and 24 of the Criminal Code (WA) were applicable to the defendant, and if the provisions of the Criminal Code were excluded by section 33B of the Dog Act.

The court considered the relevant provisions of the Dog Act and the Criminal Code and held that the defences under sections 23 and 24 of the Criminal Code were not available to the defendant as they were specifically excluded by section 33B of the Dog Act. However, the court found that the magistrate had erred in law by not considering whether the defendant had a reasonable excuse for failing to exercise control over the dog, as provided for in section 31 of the Dog Act. The court held that the matter should be remitted to the Court of Petty Sessions, Bunbury for rehearing according to law.

The appeal was allowed, and the decision of the magistrate was set aside. The matter was remitted to the Court of Petty Sessions, Bunbury for rehearing in accordance with the law. The court held that the defendant was entitled to a fair hearing, which included the opportunity to raise any available defences, including the defence of reasonable excuse under section 31 of the Dog Act.

Orders

Orders of the court

Appeal allowed

Decision of Magistrate set aside

Matter remitted to Court of Petty Sessions, Bunbury for rehearing according to

law

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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