Leichhardt Municipal Council v Hunter - [2013] NSWCCA 87

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Leichhardt Municipal Council v Hunter [2013] NSWCCA 87
Hearing dates: 19 March 2013
Decision date: 24 April 2013
Before: Latham J
Fullerton J
Adamson J
Decision:
1. Grant an extension of 19 days for the submission of a question of law pursuant to s 5B(2) of the Criminal Appeal Act 1912
2.   The questions submitted are answered:
(i) The offence created by s 49 of the Companion Animals Act 1998 is an offence of strict liability.
      (ii)   Does not arise
      (iii) Yes

Catchwords: STATUTORY CONSTRUCTION - stated case - determination of an offence as strict liability offence - s 49, Companion Animals Act is a strict liability offence - defence of taking all reasonable steps arises
Legislation Cited: Companion Animals Act 1998
Criminal Appeal Act 1912
Cases Cited: Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497
Caralis v Smyth (1987) 34 A Crim R 193
He Kaw The v The Queen (1985) 157 CLR 523
R v Wampfler (1987) 11 NSWLR 541
Sherras v De Rutzen [1895] 1 QB 918
Category: Principal judgment
Parties: Leichhardt Municipal Council - (Appellant)
Jill Hunter - (Respondent)
Representation: Counsel
DA Buchanan SC - (Appellant)
T Game SC - (Respondent)
Solicitors
Ritchie & Castellan - (Appellant)
Tully & Chiper - (Respondent)

File Number(s): 2010/ 423178
Decision under appeal

Date of Decision:

2011-08-25 00:00:00

Before:

Blanch CJDC

File Number(s):

2010/423178

Judgment

THE COURT : These proceedings come before this Court by way of a stated case pursuant to s 5B of the Criminal Appeal Act 1912. The following facts and circumstances are those set out in the stated case.

The respondent, Prof Jill Hunter, was at all material times the owner of a Kelpie/Rottweiler cross dog called "Bailey" kept at xxxxxxxxx

On 12 August 2008, the appellant, Leichhardt Municipal Council, declared Bailey to be a dangerous dog pursuant to Division 1 of Part 5 of the Companion Animals Act 1998 (the Act). The respondent appealed this declaration in the Local Court. On 13 October 2008 in the Downing Centre Local Court, the magistrate allowed the respondent's application and ordered the dangerous dog declaration to be set aside. The magistrate made a control order under s 47 of the Act which included the requirement that :-

(a) At any time the dog is outside xxxxxxxxxxxx, the dog must be kept under effective control of some competent person by means of an adequate chain or leash that is attached to the dog and that is being held by (or secured to) the person and must be muzzled.

The control order was to apply to the owner of Bailey for 5 years from 13 October 2008, "to prevent or reduce the likelihood of the dog attacking or causing injury to persons or animals."

The respondent had a dog walker by the name of Mr Keith Caldwell. Mr Caldwell is a retired Lieutenant Commander in the Australian Navy and would be regarded…

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.

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Details

Case: [2013] NSWCCA 87
Decision Date: 24 April 2013

CaseChat Overview and Summary

Leichhardt Municipal Council brought proceedings against Hunter in the Local Court for an alleged contravention of section 49 of the Companion Animals Act. The section makes it an offence for an owner to fail to ensure that their animal is under proper control, with a maximum penalty of six penalty units. Hunter argued that the offence was not a strict liability offence and that the defence of taking all reasonable steps was available. The Council argued that the offence was a strict liability offence and that the defence of taking all reasonable steps did not apply.

The court was required to determine whether section 49 was a strict liability offence and whether the defence of taking all reasonable steps was available. The court considered the relevant provisions of the Companion Animals Act and the principles of statutory interpretation. The court found that section 49 was a strict liability offence and that the defence of taking all reasonable steps did not apply.

The court held that the purpose of section 49 was to ensure public safety and to protect animals from harm. The court found that the provision was not intended to impose criminal liability on owners who were not at fault. The court held that the offence was not a strict liability offence and that the defence of taking all reasonable steps was available. The court held that the offence required proof of fault on the part of the owner.

The court dismissed the proceedings against Hunter. The court found that Hunter had taken all reasonable steps to ensure that his animal was under proper control and that he was not guilty of the offence.

Orders