Lawless v Town of Cottesloe
[2020] WASC 469
•16 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LAWLESS -v- TOWN OF COTTESLOE [2020] WASC 469
CORAM: TOTTLE J
HEARD: 17 SEPTEMBER 2020
DELIVERED : 16 DECEMBER 2020
FILE NO/S: SJA 1077 of 2019
BETWEEN: KEVIN GERARD LAWLESS
Appellant
AND
TOWN OF COTTESLOE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G LAWRENCE
File Number : FR 12843 - 12846 of 2018
Catchwords:
Criminal law - Appeal against conviction and sentence - Person liable for control of dangerous dog - Where various errors of law and fact alleged - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2), s 9(3)
Criminal Procedure Act 2004 (WA), s 61(5)(c)
Dog Act 1976 (WA), s 3, s 33D, s 33E, s 33F
Sentencing Act 1995 (WA), s 11
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr D P Gillett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Ahmad v The Queen [2003] WASCA 234
DeDomenico v Mallon [2010] WASC 285
Fradale v Zonic [2016] WASC 114
Kelly v The State of Western Australia [2020] WASCA 29
Samuels v The State of Western Australia [2005] WASCA 193
TOTTLE J:
Introduction
On 23 May 2019 the appellant was convicted of four offences under the Dog Act 1976 (WA) (the Act). The appellant was fined $2,000 and ordered to pay the respondent's costs of $4,308.30. The appellant has applied for leave to appeal against conviction and sentence.
The facts and the relevant legislation
The essential facts as found by the magistrate may be summarised as follows.
The appellant owns a sheep dog - Milo.[1] In 2015 Milo was declared a dangerous dog for the purposes of the Act.[2]
[1] The evidence established the appellant owned another dog Bengy but Bengy was not involved in the incident with which this appeal is concerned.
[2] Dog Act 1976 (WA), s 3 and s 33E.
On 12 October 2018 Milo escaped from the backyard of the appellant's home in Cottesloe. Milo was not wearing a 'dangerous dog collar'.
In response to a call from a member of the public, a ranger employed by the Town of Cottesloe attended. As the ranger got of his vehicle Milo ran towards him fast in what the ranger described as 'full attack mode'.
The ranger used dog catching equipment to obtain control over Milo. The ranger took Milo to a local dog refuge.
As Milo's owner, the appellant was the person liable for the control of Milo for the purposes of the Act.[3]
[3] Dog Act 1976 (WA), s 3.
A person liable for control of a dangerous dog commits an offence if the dog attacks a person without causing physical injury.[4] For the purposes of the Act 'attack' includes aggressively rushing or harassing any person or attempting to attack or behaving in such a manner toward a person as would cause a reasonable person to fear physical injury.[5]
[4] Dog Act 1976 (WA), s 33D(2A).
[5] Dog Act 1976 (WA), s 3.
Subject to presently irrelevant exceptions, a person liable for control of a dangerous dog commits offences if he or she:
(a)fails to ensure the dog wears a collar of the prescribed kind (a dangerous dog collar);[6]
(b)fails to ensure that the dog wears a muzzle when not confined in an enclosure;[7]
(c)fails to ensure that when not confined to an enclosure the dog is held by a person who is capable of controlling the dog while securely tethered on a temporary basis by means of a chain, cord, leash, or harness of sufficient strength and not exceeding the prescribed length.[8]
[6] Dog Act 1976 (WA), s 33GA(1)(b).
[7] Dog Act 1976 (WA), s 33GA(6).
[8] Dog Act 1976 (WA), s 33GA(7).
The minimum penalty for each of the offences to which I have referred is a fine of $500.
The convictions
The facts described above resulted in the appellant being convicted of each of the offences described in [8] and [9].
The global fine imposed on the appellant was the minimum fine the magistrate could impose.
Proceedings before the magistrate
The appellant represented himself before the magistrate.
The prosecution called one witness, being the ranger who caught and impounded Milo. The ranger gave evidence that Milo attempted to attack him, and that Milo was not tethered, wearing a muzzle or a dangerous dog collar.[9] The ranger tendered a photograph he had taken of Milo after he had taken him to the dog refuge. The ranger gave evidence to the effect that he had served the dangerous dog declaration on the appellant in 2015.[10]
[9] ts 31 - 33.
[10] ts 33.
The appellant elected to give evidence on which he was cross‑examined. The appellant testified that he did not believe Milo had attacked anyone before the ranger arrived on the scene, nor that Milo had the temperament of a dangerous dog.[11] The appellant did not contest that Milo was his dog or that he had been declared a dangerous dog or that he was not muzzled nor tethered. However, the appellant did maintain Milo was wearing a dangerous dog collar.[12] The appellant challenged the ranger's account of Milo's behaviour and disputed that Milo attacked the ranger. The appellant maintained that Milo was simply defending his home.[13]
[11] ts 48.
[12] ts 49.
[13] ts 50.
The magistrate delivered ex tempore reasons.[14] His Honour found that Milo was the appellant's dog, that Milo was not muzzled or tethered, that Milo was not wearing the prescribed collar for a dangerous dog and that Milo had attacked the ranger. Although his Honour did not make an express finding to this effect, it is implicit that his Honour accepted that Milo had been declared a dangerous dog.
[14] ts 60.
Grounds of appeal
The appellant has represented himself throughout the proceedings before this court. The appellant relies on 15 grounds of appeal. It is evident from the grounds that the appellant has had difficulty in focussing on issues that are relevant to the convictions. His arguments were discursive. For example, the appellant contended that the foundations of Western Australia were established by the hard work of sheepdogs and 'not cyclists in black lycra hanging out in Swanbourne'. This was not a proposition that advanced his case.[15]
[15] Appellant's affidavit sworn on 26 June 2020, 4.
The appellant's grounds may be grouped into five categories of alleged error:
(a) Grounds 1 and 2 relate to a failure to provide witness statements and evidence;
(b)Grounds 3, 4, 5, 8 and 14 relate to other incidents the subject of earlier charges in 2015;
(c)Grounds 6, 7, 11 and 12 relate to witness qualifications and hearsay evidence;
(d)Grounds 9 and 10 relate to evidence of the dangerous dog collar; and
(e)Grounds 13 and 15 raise two unrelated issues. Ground 13 is a request for an adjournment of the application for leave to appeal. Ground 15 is a complaint that the appellant now has a criminal conviction which has affected his capacity to obtain employment.
Leave to appeal - applicable principles
Pursuant to s 9(1) of the Criminal Appeals Act 2004 (WA), leave of the court is required for each ground of appeal.
Leave must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of success,[16] meaning that the ground has a rational and logical prospect of succeeding.[17] The appeal is taken to have been dismissed unless the court gives leave to appeal on at least one ground of appeal.[18]
[16] Criminal Appeals Act 2004 (WA), s 9(2).
[17] Samuels v The State of Western Australia [2005] WASCA 193 [56].
[18] Criminal Appeals Act 2004 (WA), s 9(3).
Grounds 1 and 2
The appellant alleges the respondent failed, upon request by the appellant prior to the hearing, to provide copies of witness statements and the evidence to be tendered at the hearing.
The appellant raised this contention at the beginning of the hearing before the magistrate, arguing that the charges he faced were vague and not supported by evidence:[19]
[19] ts 20.
ACCUSED: I've seen no evidence. I've seen no statements.
HIS HONOUR: That's what's going to happen today. This is a simple - - -
ACCUSED: Okay.
HIS HONOUR: - - - offence. These are simple offences that don't carry with it a - they don't - - -
WADHAM, MR: Fine.
HIS HONOUR: Pardon.
WADHAM, MR: Fine only.
HIS HONOUR: I know they're fine only. But I'm saying, they don't have a - there's no disclosure obligation on the part of the - of the prosecution because they're simple offences.
ACCUSED: All right.
HIS HONOUR: And that's set out in the Criminal Procedure Act. So the matter is ready to proceed. You've known that this was a hearing today.
ACCUSED: Yes, I knew it was a hearing. Yes.
The magistrate noted that the charges were in respect of simple offences and that there was no disclosure obligation on the prosecutor. Pursuant to s 61(5) of the Criminal Procedure Act 2004, where an offence is a simple offence, the prosecutor is only required to serve the documents referred to in that section if an order is made under s 60(5)(b).[20] No order was made under s 60(5)(b) in relation to the charges.
[20] Criminal Procedure Act 2004 (WA), s 61(5)(c).
Leave to appeal in respect of grounds 1 and 2 is refused.
Grounds 3, 4, 5, 8 and 14
These grounds relate to a separate incident on 28 August 2015 which resulted in the ranger declaring both Milo and Bengy to be dangerous dogs.
In 2015 a prosecution was commenced by the Town of Cottesloe in which the appellant was charged with four offences under the Act (2015 charges). On 20 June 2016, the appellant was convicted on all four charges in his absence. The appellant twice applied to the Magistrates Court to have the convictions set aside. Both applications were dismissed.
During the hearing before the magistrate, the appellant raised an objection to Milo being declared a dangerous dog. In response, the magistrate clarified that the appellant's opportunity to object to the dangerous dog declaration had passed and observed that in any event that review 'goes to the SAT Tribunal, not my tribunal. I don't have any jurisdiction.'[21] The magistrate's observation reflected s 33F of the Act that provides that the owner of a dog that has been declared a dangerous dog has a right to object in writing to the local government, with a subsequent right to apply to the State Administrative Tribunal for a review of the decision made by the local government in response to the objection.[22] Alternatively, the owner of a dog declared to be a dangerous dog may apply directly to the State Administrative Tribunal.[23]
[21] ts 13.
[22] Dog Act 1976 (WA), s 33F(2)(b)(i).
[23] Dog Act 1976 (WA), s 33F(2)(b)(ii).
The Magistrates Court does not have jurisdiction to review a dangerous dog declaration and neither does this court.
The appellant appears also to raise allegations of error relating to his conviction of the 2015 charges, and makes contentions of fact about the incident. It is not possible to deal with those allegations within this application.
Leave to appeal under grounds 3, 4, 5, 8 and 14 is refused.
Grounds 6, 7, 11 and 12
These grounds assert that the evidence given by the ranger was hearsay, and that the ranger was not qualified to give the evidence he gave.
The ranger was not required to give expert evidence at the hearing before the magistrate, nor did he purport to. Accordingly, he was not required to be qualified as an expert.
As was correctly submitted by the respondent, it is not necessary to call expert evidence in relation to animal psychology or temperament to prove whether a dog has attacked a person. Rather, what must be proved is that the dog behaved in such a way as to constitute an 'attack' as defined by s 3(1) of the Act.
The ranger gave first‑hand evidence to the effect he had been attacked within the meaning of the Act. The ranger's evidence was that Milo rushed at him with its teeth bared, barking and snarling, and then tried to bite him. The ranger's evidence was sufficient to establish an attack by Milo.
As the magistrate noted, the evidence of the ranger as to the dog's behaviour prior to when the ranger arrived at the property was, in fact, hearsay and the respondent could not rely on it to establish the charges but only to explain why the ranger had attended the property. Accordingly, his Honour did not rely on that hearsay evidence when considering whether he was satisfied that the charges were proven beyond reasonable doubt.
Leave to appeal grounds 6, 7, 11 and 12 is refused.
Grounds 9 and 10
Grounds 9 and 10 contend that the magistrate erred in fact by his finding that the dog was not wearing a dangerous dog collar. Ground 9 alleges the ranger could not have known that the dog was not wearing a dangerous dog collar seemingly on the basis that he was not present. The suggestion that the ranger was not present may indicate that there was some confusion on the appellant's part between the 2015 incident and the 2018 incident. Ground 10 also alleges that the witness gave false and fabricated evidence that the photograph of the appellant's dog was taken at night whereas it appears from the photograph to have been taken in daylight.
The ranger gave evidence that he responded to a call about the dog at 5.25 pm, and arrived at the appellant's property approximately five minutes later.[24] After he put Milo into his vehicle, he then drove to the dog refuge. The ranger's evidence was that he finished his shift between 6.15 pm and 6.30 pm.[25] The ranger tendered a photograph taken by him of the dog. He gave evidence about the photograph and that the dog was not wearing a dangerous dog collar:[26]
WADHAM, MR: Okay. And once the dog was in the vehicle, what happens then?---I then drove the dog to Shenton Park dog refuge where it remained until Mr Lawless picked it up.
All right. I'm just going to hand you - it's just what we looked at earlier. I will just hand you a photograph. Did you take that photograph?---I did.
Can you tell us what it shows? Where it was taken?---It shows the pen at the dog refuge and Milo the dog behind the pen just staring at me, still.
…
WADHAM, MR: Now, at the time when all this was taking place, when you saw Milo on Lyons Street and when you eventually were able to secure the dog and take it to the pound, was the dog wearing a collar of any kind?---No. Not a dangerous dog collar. No.
So what was it wearing?---I think it was wearing a small collar.
Are we able to see it in the photograph?---No.
So when you say dangerous dog collar, what would you expect to see a dangerous dog wearing?---The prescribed collar for that weight of dog would, probably, be one and a half to two inch thick collar with red and yellow fluorescent stripes, indicating it is a dangerous dog …
[24] ts 29.
[25] ts 37, 40.
[26] ts 33.
In response to cross-examination from the appellant, the ranger said it was 'full light' at 5.25 pm when he responded to the call. The appellant challenged this evidence, saying that it 'would be questionable' that it was light at 5.25 pm in October.[27] The appellant also questioned the witness on the timing of the photograph and whether the dog was wearing a dangerous dog collar:[28]
You said the dog was wearing a collar?---I think, from memory, it might have been a green or brown one. I mean, I've met many dogs since that time. I can't see a collar on the photograph. It certainly wasn't a dangerous dog collar. I know that 100 per cent.
That photograph was taken a week later?---It wasn't.
When was it taken?---The time the dog was put in the pound.
Really? Okay. That's good. Thank you. And it was wearing a collar?
---I believe a small collar. Maybe half an inch to an inch thick. A green or brown one.Thank you. Half an inch to an inch thick. Inch thick, at least?---Green or brown.
[27] ts 40.
[28] ts 42.
Ground 10 appears to arise from an exchange between the appellant and the prosecutor whereby the appellant asserted that the photograph could not have been taken by the witness at the time alleged:[29]
[29] ts 53 - 55.
And you can see from the photograph that was tendered into evidence that was taken on the day by Mr Reeves at the pound. In that photograph, which I handed you a copy of, Milo is not wearing a dangerous dog collar in that photograph, is he?---Well, I don't know what they took off the dog or what they done at the - at the dog pound. That - that photograph is in full light, but Mr Reeves wouldn't have been there till after dark.
But the evidence of Mr Reeves is - - - ?---Sorry. I'm sorry. Sorry. You just made a statement. That photograph you presented the court is made in daylight. Right?
Well, my question simply is - - - ?---He could - he could not - Mr Reeves could not have arrived there and taken a photograph at night-time via those - those photographs.
Mr Lawless, my question is, looking at that photograph, can you see a dangerous dog collar on Milo?---I - I have no photograph in front of me.
Well, the photograph that you looked at earlier?---I have no idea what the procedure is within - I can actually see it's - yes, I see a collar. Something is sticking out there. There is something.
…
But, Mr Lawless, your dog is not wearing a dangerous dog collar in that photo, is it?---I have no idea.
Well, have a look at the photo?---I can look at the photos. I don't know when that photograph was taken. That photograph was taken in daylight.
All right. I will move on?---Do you accept that? That photograph was taken in daylight. Is that correct?
Mr Lawless, I'm asking the questions?---Was that photograph taken in daylight?
It appears to be?---Okay. Thank you.
My - - - ?---Well, Mr Reeves could not have taken that photograph at night-time when you've taken that in daylight.
The appellant concluded that 'quite evidently, [the ranger] has told us that he photographed the dog after 6 at night, which would have been in the dark on this day, but that the photograph is clearly shown as being taken in the daylight'.[30] The appellant contended that his dog was indeed wearing a dangerous dog collar as he only owned dangerous dog collars,[31] and speculated that it may have looked brown to the witness because the dog may have been playing in the dirt.[32]
[30] ts 56.
[31] ts 56.
[32] ts 49.
In his reasons, the magistrate discussed the evidence of the collar and the photograph at some length:[33]
Now, one issue that the - one among a number of issues that Mr Lawless took with the ranger was the ranger's evidence of whether it was light or dark - I'm here referring to exhibit 3, the photo of the dog - when the ranger dropped the dog off at the pound.
The accused's position was that the photo was taken in daylight, as it certainly appears in the evidence that it was, but I can't, in some way or another, be drawn to infer that therefore the ranger has, in some way, not given a proper and truthful account of what happened generally or, indeed, in regard to when that photo was taken. It's really a non-issue, frankly.
It shows nothing about the reliability or credibility of that officer and it was just a guess, anyway, by Mr Lawless when he asked the question, whether at that time it would be light or dark. He thought it would be dark, he said. It takes the matter nowhere. However, still on the issue of that photo, the accused's credibility was adversely affected when - first of all, when he was shown the photo, he stated that on viewing it he could see a collar.
But I find, when it became clear that the dangerous dog collar was far more colourful, he backed away from his evidence that there was a collar visible on exhibit 3, and I find he did that in the knowledge that he had said that he only had dangerous dog collars for his dogs. I found that the ranger gave comprehensive evidence and I find he was a reliable historian in regard to what happened. There was nothing in the delivery of his evidence that caused me to query or question or be thrown into some doubt about his reliability.
He was engaged on this day on a routine call. He attended and was confronted by a collarless, muzzleless, tetherless dog. It would have been plain to him that there was no mandated collar for dangerous dogs around the dog's neck because they're very colourful but also, his previous involvement with the dogs in respect to their being declared dangerous dogs adds to my confidence that he would have also been alert to whether these dogs that - one of these dogs that he had had something to do with was not properly collared, tethered or muzzled.
[33] ts 64.
The nature of an appeal is by way of rehearing on the evidence before the Magistrates Court.[34] The question is whether it was open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.[35] This court must review the evidence and decision-making process of the Magistrates Court. However, in doing so, it must bear in mind that this is an appellate court, not the court of trial, and this court has not had the advantages that the magistrate had of seeing the witnesses and hearing the evidence presented.[36] Further, finding a conclusion of an error of fact in a matter involving credibility issues and where the fact-finding process depends, whether expressly or inferentially, upon the demeanour of witnesses and broad matters of credibility will be rare.[37]
[34] Criminal Appeals Act, s 39(1); Criminal Procedure Rules2005 (WA), r 64.
[35] Fradale v Zonic[2016] WASC 114 [20] - [22] (Beech J).
[36] DeDomenico v Mallon [2010] WASC 285 [9] (Murray J).
[37] DeDomenico v Mallon [11] (Murray J).
It is apparent from his Honour's reasons that he accepted the evidence of the ranger that Milo was not wearing a dangerous dog collar and made a positive finding as to the witnesses' credibility. The magistrate clearly dealt with the issue raised by the appellant as to the reliability of the photo evidence and dismissed it as 'a non-issue'. It was open to magistrate to so find and the appellant has not established any factual error.
Leave to appeal grounds 9 and 10 is refused.
Grounds 13 and 15
By ground 13 the appellant requests an adjournment of this appeal to secure funds for legal representation. The appellant did not adduce any evidence as to his assets and liabilities or why it was that he was unable to obtain legal representation. This is not in truth a ground of appeal but an application for an adjournment. However, as it has been characterised as a ground of appeal by the applicant, for consistency, I will refuse leave to appeal in respect of it. The same is true of ground 15 and I refuse leave to appeal in relation to it.
Application of s 11 of Sentencing Act 1995 (WA)
At the hearing of the appeal I invited the appellant and counsel for the respondent to consider whether s 11 of the Sentencing Act had any application to this case. I explained the broad effect of the provision to the appellant and gave the parties the opportunity to file written submissions in relation to its potential operation. No submissions were filed.
Section 11(1) of the Sentencing Act provides that:
(1)If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
If an offender is convicted of different offences, each proved by some additional evidence, notwithstanding that each formed part of a series of offences in the course of the one criminal enterprise, s 11 has no application.[38]
[38] Ahmad v The Queen [2003] WASCA 234 [43] (Wheeler J).
In Kelly v Western Australia,[39] the Court of Appeal explained s 11 is engaged if, and only if, the evidence necessary to establish the commission of one offence establishes, without more, all elements of, and thus the commission of, another offence. It does not apply to a case where there is overlap between the evidence required to establish the two offences, but where each offence requires some distinct additional evidence in order to establish the commission of that offence.
[39] Kelly v The State of Western Australia [2020] WASCA 29 (Mazza, Beech and Vaughan JJA).
Having reflected on the evidence and facts, this is not a case in which s 11 of the Sentencing Act is engaged. There is an overlap in the evidence adduced to establish each offence but the evidence necessary to establish each of the offences does not without more establish the commission of any of the other offences.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle16 DECEMBER 2020
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