McGlew v City of Rockingham - [2018] WASC 62

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: McGLEW -v- CITY OF ROCKINGHAM [2018] WASC 62

CORAM: SMITH AJ

HEARD: 15 FEBRUARY 2018

DELIVERED : 15 FEBRUARY 2018

FILE NO/S: SJA 1042 of 2017

MATTER :The Criminal Appeals Act 2004 Part 2
Prosecution Notice Number RO 3535 - 3538 of 2017 in the Magistrates Court of Western Australia at Rockingham

BETWEEN: STEPHANIE JOANNE McGLEW
Appellant
AND
CITY OF ROCKINGHAM
Respondent

FILE NO/S :SJA 1058 of 2017

BETWEEN :WARD GLENN ROHAN
Appellant
AND
CITY OF ROCKINGHAM
Respondent

ON APPEAL FROM:
For File No              :  SJA 1042 of 2017
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L J ATKINS
File No  :RO 3535 of 2017, RO 3536 of 2017
For File No              :  SJA 1058 of 2017
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE L J ATKINS
File No  :RO 3537 of 2017, RO 3538 of 2017

Catchwords:

Criminal law - Dog Act 1976 (WA) - Orders for destruction of dogs - Procedural fairness - Appellants deprived of opportunity to test and make submissions about the admissibility and weight of evidence

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7(1), s 9(1)
Dog Act 1976 (WA), s 7(1)(a), s 33D(1), s 33D(2A), s 33E, s 39

Result:

Leave to appeal granted
Applications for orders for destruction referred back to Magistrates Court for re-hearing by a different magistrate

Category: B

Representation:

SJA 1042 of 2017

Counsel:

Appellant: Ms G M Cleary
Respondent: Mr M A Perrella

Solicitors:

Appellant: FourLion Legal Pty Ltd
Respondent: Perrella Legal

SJA 1058 of 2017

Counsel:

Appellant: Ms G M Cleary
Respondent: Mr M A Perrella

Solicitors:

Appellant: FourLion Legal Pty Ltd
Respondent: Perrella Legal

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

Applicant Naff of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
DWN042 v The Republic of Nauru [2017] HCA 56
Re Refugee Tribunal; Ex part Aala (2000) 204 CLR 82
SD v The Queen (2013) 229 A Crim R 580
Stead v State Government Insurance Commission (1986) 161 CLR 141
Suleiman v The State of Western Australia [2017] WASCA 26
SMITH AJ:
(This judgment was delivered extemporaneously on 15 February 2018 and has been edited from the transcript)

Each appellant seeks leave to appeal against an order for destruction of a dog, being an order made as the result of a conviction.
Pursuant to s 6, s 7(1) and s 9(1) of the Criminal Appeals Act 2004 (WA), the appellants require leave to appeal for each ground which is raised in the appeals.

The appeals

On 3 August 2017, the appellants were convicted and fined on pleas of guilty of the following offences:

(a) Stephanie Joanne McGlew

(i)failing to have a dog, Gypsey, registered, contrary to s 7(1)(a) of the Dog Act 1976 (WA): $200;
(ii)failing to keep a dog properly secured, whereby it chased a person contrary to s 33D(2A) of the Dog Act: $1,000.

(b) Ward Glenn Rohan

(i)failing to have a dog, Nugget, registered, contrary to s 7(1)(a) of the Dog Act: $200;
(ii)failing to keep a dog properly secured, whereby it attacked another dog, contrary to s 33D(1) of the Dog Act: $1,500.

The magistrate also ordered:
(a)Mr Rohan to pay compensation of $2,929.36 to Anthony Etcell, the owner of a dog, Satine, that was attacked;
(b)the destruction of Nugget and Gypsey pursuant to s 39 of the Dog Act;
(c)Ms McGlew to pay the City of Rockingham's costs of $3,432.50; and
(d)Mr Rohan to pay the City of Rockingham's costs of $3,637.24.
The appellants seek leave to appeal only against the orders for destruction of the dogs, Nugget and Gypsey.
There are two grounds of appeal in both matters. The grounds of appeal in each matter are the same. In these reasons, both matters are considered together as if there was only one appeal.
At the hearing of the appeal, counsel for the appellants sought to amend ground 1 of each appeal. The amendments were not objected to by the respondent.
Amended ground 1 is to the effect that the magistrate erred in law by relying upon a statement made by a ranger, Kerri Maresa Holmes, in making orders for destruction of the dogs. The alleged error raised in this ground goes to procedural fairness, in that, when making sentencing submissions, counsel for the appellants was not aware that the magistrate had received into evidence a statement made by Ms Holmes.
The second ground of appeal is, to the effect that, the orders for destruction of the dogs were manifestly excessive, in the circumstances.

The facts of the offences

The appellants, a mother and son, live at the same property in Cooloongup. Their property backs onto a property where Mr Etcell resides. It appears in the early hours of 3 February 2017, part of the dividing fence between the two properties had been damaged which enabled the appellants' dogs, both of which are bull terriers, to enter the yard of Mr Etcell when his dog, Satine was in the yard. Mr Etcell's dog, Satine is a Jack Russell cross.
At about 3.00 am on 3 February 2017, Mr Etcell was woken by sounds of distress from Satine. He ran to his backyard and saw both Nugget and Gypsey. Nugget had Satine in his mouth. Mr Etcell punched and then stabbed Nugget to release Satine, which Nugget did. Upon release, Nugget retreated to the back fence. However, Gypsey came towards Mr Etcell and snarled at him until Mr Etcell retreated inside his house with Satine.
Satine's leg had been torn from her. Mr Etcell took the dog to the vet.
Gypsey was still in his backyard when he returned two hours later. Gypsey was aggressive, snarling, growling and baring her teeth at Mr Etcell, who tried to clean blood from his patio area. As a result, Mr Etcell retreated inside his house and Gypsey jumped at the backdoor at Mr Etcell. Gypsey continued to do so when a ranger from the City of Rockingham attended.
The ranger contacted the appellants. Mr Rohan attended Mr Etcell's property and assisted the ranger in securing Gypsey. Mr Rohan also assisted when the ranger attended the appellants' home to secure and remove Nugget. Both dogs have been impounded since that morning. Nugget received treatment for the stab wound to his neck.
Satine presented to the vet with her left front leg torn off. She underwent surgery to remove a further part of her leg.

Submissions made to the magistrate

On 28 July 2017, after reciting the facts of the offences, the prosecutor made the following submissions:[1]
Since being housed at the animal management facility, both dogs have consistently demonstrated aggressive behaviour towards people and other dogs. This includes lunging, growling, attempting to bite rangers endeavouring to clean their pens. A dog behaviourist and trainer was engaged and carried out an assessment of each of the dogs back in [sic] 21 February. When treatment [sic] ‑ treated following attack, Sateen [sic] was found to have sustained significant injuries, including having her front leg torn off.
There is no prior record for either of the accused. In this case, the council would be seeking to tender the report of Mr Crozier, the dog behaviourist, and we also seek costs, and we also seek an order for a humane euthanasia of both dogs. And will submit, ma'am, the breakdown of the costs which council has seen, and also the behaviourist report for you, ma'am.
[1] t/s 28 July 2017, page 4.
The prosecutor also provided the magistrate with a copy of photographs of Nugget which showed his injuries and a photograph of Gypsey. Photographs were also provided to the magistrate by the prosecutor which showed injuries to Satine and a photograph of part of the fence where the dogs were able to access the yard of Mr Etcell.
Counsel for the appellants then made the following submissions:
(a)The appellants entered pleas of guilty as soon as they were provided with full disclosure by the prosecution. Without such material, the appellants were unaware of what may have happened on the day.
(b)Ms McGlew is a 63‑year‑old single working mother, who lives with her son, Mr Rohan who is 29 years old. They are both financially poor and on Centrelink benefits.
(c)This was a one‑off incident. The appellants have both lived next door to Mr Etcell for years without incident. Neither Ms McGlew or Mr Rohan had ever had any incident recorded against them. They had owned the dogs for two or three years.
(d)Both appellants are extremely remorseful and are responsible members of society. Five days after the incident Ms McGlew wrote to Mr Etcell and, despite the appellants' financial situation, offered to pay Mr Etcell's costs. A copy of a handwritten note to that effect was provided to the magistrate by counsel.
(e)Both appellants co‑operated with the ranger as soon as he arrived and assisted with the taking of the dogs into custody.
(f)The appellants have subsequently fixed the dividing fence and have undertaken to secure their property to ensure an incident like this never happens again.
(g)The appellants have ordered muzzles for the dogs and printed signs for their property for use if the court is minded to order declarations that the dogs are dangerous instead of orders for destruction.
(h)The dogs are not a restricted breed. They are English bull terriers.
(i)The appellants both attest the incident was out of character for the dogs. Both dogs are known to be friendly, loving and have interacted with other dogs, people and children without incident in the past.
(j)English bull terriers are not known to be aggressive. They are sweet‑tempered, playful and friendly.
(k)The report of a dog behavioural therapist, Mr Eric Crozier shows the dogs have shown aggressive behaviour since being in the pound but the report states it is an environment factor.
(l)The dogs are not allowed contact in the pound. They are in concrete cages.
(m)Until the appellants began feeding the dogs at the pound they were receiving insufficient food.
(n)The appellants had hoped that given the environmental factors of the pound, that the prosecution would allow the dogs to be assessed in their home environment where they would not show an aggressive nature. Unfortunately, the dogs were not able to be released under the requested conditions.
(o)The dogs are protective. Gypsey simply reacted in the moment by growling and advancing towards Mr Etcell after seeing Nugget being stabbed in the neck. There was no intention to attack. She was agitated and her behaviour was a warning.
(p)The appellants and Mr Etcell have been emotionally and psychologically impacted by the events.
(q)The appellants love the dogs dearly. They are their 'children'.
(r)Subsequent to the incident, the appellants attended to having the dogs registered.
After hearing submissions, the magistrate informed the parties that she wished to consider the matters prior to delivering her decision as to the penalties and the orders she would make. Her Honour also said that she intended to consider the documentation that had been provided by counsel. Consequently, the matters were adjourned until 3 August 2017.

Documentary exhibits put into evidence

Of importance in this appeal, an examination of the transcript of proceedings on 28 July 2017 reveals only the following documents appeared to be before the magistrate when the sentencing submissions were made:
(a)photographs of the dogs and the broken fence, including photographs of the injuries to Nugget and Satine;
(b)two pages of a document itemising costs sought by the City of Rockingham against the appellants;
(c)Mr Crozier's dog behaviour report dated 21 February 2017; and
(d)a handwritten note dated 11 February 2017 from Ms McGlew to Mr Etcell.
When the proceedings were reconvened on 3 August 2017 during the magistrate's sentencing remarks it emerged that the magistrate also had before her a witness statement made by Ms Holmes dated 17 May 2017. Ms Holmes is employed by the City of Rockingham to manage the animal management facility (also referred to as the pound).

The magistrate's sentencing remarks

On 3 August 2017, after stating the facts of the offences, the magistrate said:[2]
Nugget received veterinary treatment for the stab wound. Both dogs were placed in the dog management facility, which I will call a pound. The two dogs, whilst in the facility or the pound were aggressive to rangers and others dogs and were assessed by a dog behaviourist. I was given and have read his report, and I have read the statement of Ranger Carey [sic] Holmes regarding the observations of the dogs whilst in the pound. I note that Gypsy [sic] was found to have canine compulsive disorder and 'a massive environmental aggression in the pound environment'. It is said that Gypsy [sic] cannot be handled safely.
Nugget is not described in that same manner, but has shown aggressive [sic] to another dog. The behaviourist, amongst other things, said the dogs should not be returned to their owners without dangerous dog protocols in place and should not be rehomed to the public or to any rescue person without behaviour modification.
[2] t/s 3 August 2017, page 3.
After the magistrate gave her reasons for the quantum of the fines that she imposed in respect of each of the offences, her Honour stated her conclusions as to why orders for destruction of the dogs should be made. These findings were as follows:[3]
Turning to Gypsy [sic]. I note that Gypsy [sic] chased after Mr Adsel [sic] after he released Sateen [sic] from Nugget and continued to act in an aggressive way even after the expiration of two hours.
During which time Mr Adsel [sic] had been away from his property at the vet. The behaviourist's assessment and the statement of Ranger Holmes, dated 17 May 2017, lead me to the conclusion that for the safety and wellbeing of the community generally, and other animals, I shall grant the council's application for destruction. I make that order and do not find circumstances that would allow for the order to be remitted. In reaching that conclusion, I have had regard to the findings of the behaviourist's assessment and the statement of Ranger Holmes in particular.
In relation to Nugget, this dog had its mouth around Sateen [sic] who suffered significant injuries, photographs of which were provided to me. I delayed making findings when pleas were entered on 21 July to the outstanding matters, partly because the photographs of the injuries, the severed leg, the canine teeth were both confronting and, to say the least, unsettling. However, having reflected and having read the behaviourist's assessment and the statement of Ranger Holmes regarding Nugget's conduct when Gypsy [sic] ran amok in the pound, I find that, for the same reasons and concerns, the order for Nugget's destruction should also be made.
For the reasons already given, I am not satisfied that there are circumstances that could cause that order to be remitted. Therefore, I make orders for destruction in relation to both dogs.
[3] t/s 3 August 2017, pages 4 and 5.

Ground 1 of the appeal - procedural fairness - is error established?

The issue raised in ground 1 of the appeal is whether the magistrate erred in law when she relied upon the statement of Ms Holmes in making orders to destroy the dogs, Nugget and Gypsey.
Section 39(1) of the Dog Act confers a discretion on the Magistrates Court to make an order that a dog be destroyed where an attack by a dog is shown on the balance of probabilities to have caused injury or damage. Pursuant to s 39(4), where an attack is by two or more dogs, all of the dogs are to be treated as having caused the injury or damage even if it is not possible to show which of those dogs actually caused that injury or damage.
The rules of procedural fairness require that prior to making an order for destruction, a magistrate is to provide to a person convicted of an offence (to which s 39(1) applies) a reasonable opportunity to make submissions and/or adduce relevant and admissible evidence which goes to any issues of relevant fact that in exercising the discretion conferred on the court a magistrate may rely upon. Put another way, the convicted person must be given a fair opportunity of answering the case put against him or her.
A litigant is entitled to a fair opportunity to correct or contradict any relevant material which is prejudicial.[4] This principle extends to a right by a convicted person when being sentenced, to test the evidence relied upon by the prosecution in respect of any consequential orders which are sought to be imposed against them.
[4] SD v The Queen (2013) 229 A Crim R 580 [37] ‑ [39] (Ashley, Redlich & Priest JJA).
The general principles of procedural fairness applicable to the conduct of sentencing proceedings were recently summarised by Buss P in Suleiman v The State of Western Australia.[5] At [37] ‑ [44] his Honour observed:
[5] Suleiman v The State of Western Australia [2017] WASCA 26 (with whom Mazza & Mitchell JA agreed).
A sentencing judge must conduct sentencing proceedings in accordance with the rules of procedural fairness. See Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466, 472 - 473 (Mason CJ & Brennan J), 482 ‑ 483 (Deane, Toohey & Gaudron JJ); Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 293 - 296 (Kirby P, Handley & Sheller JJA agreeing); Baroudi v The Queen [2007] NSWCCA 48 [29] ‑ [33] (Price J, Sully & Howie JJ agreeing); Button v The Queen [2010] NSWCCA 264 [14] - [18] (Latham J, Simpson & Kirby JJ agreeing).
Section 15 of the Sentencing Act 1995 (WA) provides:
'To decide on the proper sentence to imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.'
The discretionary power conferred by s 15 must be exercised:
(a)in a manner that is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and
(b)in accordance with the rules of procedural fairness.
See Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [65] (Buss JA, Roberts-Smith JA agreeing).
The rules of procedural fairness are concerned with processes rather than outcomes. They are therefore rules which govern what a court must do in the course of deciding how a power should be exercised. That is, the rules of procedural fairness apply to the processes by which a decision pursuant to the exercise of power will be made. See Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 [16] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).
Fairness is essentially a practical concept. It is not abstract in nature. The rules of procedural fairness are concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ).
'Especially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer (473).'
Where a breach of the rules of procedural fairness arises because a party is deprived of a chance to make submissions on an issue of fact, relief will not be refused unless it is established that a properly conducted hearing could not possibly have produced a different result.[6]
[6] Stead v State Government Insurance Commission (1986) 161 CLR 141; Kirby J in Applicant Naff of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 [86] referred to the High Court decision in Re Refugee Tribunal; Ex part Aala (2000) 204 CLR 82 as affirming the 'strong principle earlier stated in Stead' which was 'could not possibly have produced a different result' test. See also DWN042 v The Republic of Nauru [2017] HCA 56 [20] (Keane, Nettle & Edelman JJ).

The respondent concedes that it is open to find that there was a procedural irregularity in the sentencing proceedings, given the ambiguous process through which the statement of Ms Holmes was provided to the magistrate and the apparent failure to provide the appellants' counsel with an opportunity to comment on the contents of Ms Holmes' statement.
The respondent contends that at no stage did the magistrate expressly state she relied upon Ms Holmes' opinion as to the level of the risk posed by each dog were they to be released. In particular, it is put that the magistrate only had regard to Ms Holmes' observations of the dogs' behaviour.
With respect, these contentions are not correct. It is clear from the magistrate's reasons for decision that, when she made a finding it was necessary to make an order for destruction of the dogs she did so on grounds it was necessary for the safety and wellbeing of the community generally and other animals. Plainly, in making this finding, her Honour made an assessment of risk of harm that could be caused by the dogs and in doing so relied upon not only the expert report of Mr Crozier but also on the matters set out in the statement made by Ms Holmes.
The respondent also puts an argument that no inconsistency arises between the opinions expressed by Mr Crozier and Ms Holmes. This submission is made on grounds that there is no inconsistency between Ms Holmes' opinion that a further attack by Gypsey was a strong possibility if she is released from a secure environment and Mr Crozier's recommendation that if the dogs were to be released to the owners all dangerous dog protocols should be put in place (pursuant to s 33E of the Dog Act).
The difficulty with this submission is, firstly, Ms Holmes' opinion relates to the propensity of one dog only, that is Gypsey, and secondly, her opinion does not address whether the behaviour of Gypsey could be caused by environmental stress.
Whilst Mr Crozier does not strictly address the factors of environmental stress in his report he does say Gypsey is 'showing massive environmental aggression in the pound environment'.
The respondent also contends that even if the statement of Ms Holmes was disregarded and the magistrate only had regard to the circumstances of the incident as recounted by Mr Etcell and the matters stated in the report of Mr Crozier it is clear that destruction orders would have been made, or were open to be made.
The difficulty with this submission is that the facts recounted to the court about what Mr Etcell said do not go further than the severity of the attack of the incident and Mr Crozier does not, in his report, contemplate destruction of the dogs as an option. His report refers to two options only. The options Mr Crozier puts are:
(a)The dogs could go to rescue organisations with behaviour modifications.
(b)If returned to the owners it would have to be with all dangerous dog protocols put in place.
In these circumstances, I am satisfied that the magistrate, by having regard to the matters set out in Ms Holmes' statement without first raising with defence counsel that the statement was in evidence before her and she intended to have regard to the opinions expressed in the statement, caused the appellants practical injustice. As a result, the appellants have been denied the opportunity of taking a number of steps to challenge the opinions of Ms Holmes.
Firstly, counsel for the defence was deprived of an opportunity of making a submission that Ms Holmes' statement should not be received into evidence on grounds that she is not qualified to give an expert opinion.
In particular, counsel was deprived of making a submission that Ms Holmes is not qualified as an expert on grounds that there is no indication in her statement that she has had any experience of either dogs in their home or any other environment, or the way in which these dogs behave when their owners are present.
In addition, whilst Ms Holmes says in her statement that she has been employed to manage the pound since her commencement of employment with the City of Rockingham in 2015, she gives no further information about whether she has had any other experience in or training in the handling of dogs or dog behaviour.
Whilst I make no judgment whether the statement of Ms Holmes should or should not be accepted into evidence, it is clear that it would be open to make such a submission. Whether such a submission would be accepted may depend upon any submission that is put on behalf of the respondent and/or any additional evidence the respondent may wish to lead in respect of the experience and expertise of Ms Holmes.
Secondly, in the event that a magistrate is of the opinion that Ms Holmes' statement is admissible, in whole, or in part, the appellants should be given an opportunity to test the expertise of Ms Holmes and to test the reliability of the opinions stated by her. This may result in a submission to the magistrate that Ms Holmes should be made available for cross‑examination.
Thirdly, the appellants were deprived of an opportunity of providing evidence about the behaviour of the dogs when they visit them at the pound, or when the dogs were at home prior to the incident in question.
Fourthly, the appellants were deprived of the opportunity of making submissions about any inconsistencies between the opinions expressed by Mr Crozier and Ms Holmes and the weight to be given to those opinions.
When regard is had to these matters, it cannot be said that if the appellants were afforded these opportunities, the magistrate would have made the orders for destruction of the dogs. Plainly, the appellants were denied the possibility of a different result.
In these circumstances, it is neither necessary nor appropriate to deal with ground 2 of the appeal.
For these reasons, I consider orders should be made that:
1.there be leave to amend ground 1 of each appeal;
2.there be leave to appeal in each appeal on ground 1;
3.each appeal be upheld on ground 1;
4.the orders for destruction of the dogs be set aside; and
5.the applications for orders for destruction of the dogs, be remitted to the Magistrates Court of Western Australia, to be determined according to law, by a different magistrate.