Mnyirrinna v McIntosh
[2003] WASCA 305
•9 DECEMBER 2003
MNYIRRINNA -v- McINTOSH [2003] WASCA 305
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 305 | |
| Case No: | SJA:1071/2003 | 19 SEPTEMBER 2003 | |
| Coram: | BARKER J | 9/12/03 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused, Application for stay of order for destruction of dog refused | ||
| B | |||
| PDF Version |
| Parties: | SYLVIA M P MORNO YARNDA MNYIRRINNA MICHAEL HENRY McINTOSH |
Catchwords: | Appeal Justices Act 1902 (WA) Application for leave to appeal and application for stay Dog Act 1976 (WA) Control of dogs Order for destruction of dog Whether arguable case Turns on own facts |
Legislation: | Criminal Code 1913 (WA), s 23, s 24 Dog Act 1976 (WA), s 33A, s 33B, s 33D, s 33E, s 39(1), s 40(1)(b) Justices Act 1902 (WA), s 186(1)(a)(i), s 187(1) |
Case References: | City of Canning v Wardle unreported; SCt of WA; Library No 960224; 26 April 1996 Dempster v National Companies and Securities Commission (1993) 9 WAR 215 Lappan v Hughes [2003] WASCA 173 McPherson v Cairn [1977] WAR 28 Pacino v Tilley, unreported; SCt of WA; Library No 960371; 16 July 1996 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
MICHAEL HENRY McINTOSH
Respondent
Catchwords:
Appeal - Justices Act 1902 (WA) - Application for leave to appeal and application for stay - Dog Act 1976 (WA) - Control of dogs - Order for destruction of dog - Whether arguable case - Turns on own facts
Legislation:
Criminal Code 1913 (WA), s 23, s 24
Dog Act 1976 (WA), s 33A, s 33B, s 33D, s 33E, s 39(1), s 40(1)(b)
Justices Act 1902 (WA), s 186(1)(a)(i), s 187(1)
Result:
Application for leave to appeal refused
Application for stay of order for destruction of dog refused
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Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr T Houweling
Solicitors:
Applicant : In person
Respondent : Houweling & Associates
Case(s) referred to in judgment(s):
Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
City of Canning v Wardle unreported; SCt of WA; Library No 960224; 26 April 1996
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Lappan v Hughes [2003] WASCA 173
Case(s) also cited:
McPherson v Cairn [1977] WAR 28
Pacino v Tilley, unreported; SCt of WA; Library No 960371; 16 July 1996
(Page 3)
- BARKER J:
Introduction
1 Dogs can be loyal and wonderful pets. Their owners can love them dearly. However, their owners can sometimes forget that, like small children, not everyone finds them endearing. If they escape their owner's control, they can be positive nuisances and, on occasion, even do harm.
2 To deal with dogs, particularly those found in residential areas, the Dog Act 1976 (WA) was enacted. Section 33A deals with the control of dogs in places that are not public. Section 33D deals with dog attacks. Section 39 provides that dogs causing injury or damage may be destroyed.
The convictions
3 In this case on 28 May 2003 the applicant was convicted by Mr T McIntyre SM in the Court of Petty Sessions at Armadale of two offences involving these provisions.
4 Before the learned Magistrate, and in this Court, the applicant stated that her full name was Sylvia Merle Patricia Morno Yarnda Mnyirrinna. In this Court the applicant has gone under the same name. There is no doubt, on the evidence in the Court of Petty Sessions or in this Court, that Sylvia Merle Mason, the person referred to in the complaints before the learned Magistrate, is one and the same person as Ms Mnyirrinna who provided evidence as the defendant in the Court of Petty Sessions and as the applicant in the proceedings before this Court. The applicant says the last names, "Morno Yarnda Mnyirrinna", are Aboriginal names she is entitled to use, even though she is not herself Aboriginal. She acknowledges that the name "Mason" is that of her former husband, but says she no longer chooses to use it.
5 The learned Magistrate found that on 21 March 2003 at Buchanan Road, Roleystone the applicant being the person liable for the control of the dog, namely, a male Rottweiler cross, registration number 03-1897: (1) permitted that dog to attack another animal, contrary to s 33D of the Dog Act 1976; and (2) permitted that dog to be in a place that is not a public place, without the consent of the owner or occupier, contrary to s 33A of the Dog Act 1976.
6 The complaint alleging contravention of s 33D of the Dog Act 1976 also gave notice that upon conviction an application would be made for a destruction order pursuant to s 39 of the Dog Act 1976. On 20 June 2003, the learned Magistrate made a destruction order in respect of the dog.
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The hearing on 28 May 2003
7 At the hearing of these two complaints before the learned Magistrate the respondent was represented, with the leave of the Court, by Mr Kelliher, a ranger employed by the City of Armadale, and the applicant appeared in person.
8 The applicant and the respondent's representative were advised by the learned Magistrate at the outset of the hearing that he considered the matters raised to be simple and straightforward, that he would listen to evidence to see whether or not the prosecution could prove its claims, that witnesses will be called and that they could be cross-examined after they had given their primary evidence.
9 Immediately before the learned Magistrate explained this manner of proceeding to the applicant and the respondent's representative, the applicant had made reference to materials which she called "evidence" of the Family Court. The learned Magistrate explained to the applicant that the proceedings before him had nothing to do with the Family Court, but it did have to do with whether or not a dog attacked another animal. He explained how questions should be asked in cross-examination so that the applicant could ensure her side of the story came across to the Court.
10 The applicant suggested that it was necessary for her to have reference to "evidence" from the Family Court because of some prior matter in the Court of Petty Sessions which she said the learned Magistrate had heard. The learned Magistrate told the applicant that he had not dealt with any matter concerning her before and did not understand what she was talking about. The applicant said the "evidence" was necessary "to establish motive". The learned Magistrate explained to her that "motive has got nothing to do with it. I'm going to listen to the evidence and you will have an opportunity of asking questions." The applicant insisted, "One of the reasons for your judgment at the last hearing was that you said I didn't establish motive well enough."
11 After that brief introductory exchange evidence was taken. The first witness called was a Mr David Walker.
12 Immediately after Mr Walker was called as a witness for the prosecution the applicant asked whether her friend could sit with her to help take notes of the statements of witnesses. A Ms Zenetti then told the Magistrate that she "wanted to be the McKenzie's friend like last time". The learned Magistrate was reluctant to permit Ms Zenetti to sit at the bar table with the applicant because the applicant was a mature woman who
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- could make her own notes. However, the learned Magistrate indicated that there was nothing to prevent Ms Zenetti passing up notes to the applicant provided she sat in the public section of the Court and not at the bar table. In the event, he permitted Ms Zenetti to provide the applicant with a degree of assistance but stated that that did not mean that there should be constant conversations between them. He asked the applicant to concentrate on the evidence.
13 Mr Walker then gave evidence. He explained that he lived at 19 Buchanan Road, Roleystone. He recalled that on 21 March 2003 he "heard this commotion at the back and I put my clothes on and went up the backyard and the person I know as Mrs Mason (the applicant) was dragging her dog through our back fence onto Mr Ron Ashford's property". He made reference to a diagram of the property to explain his evidence.
14 Mr Walker testified that the applicant "obviously climbed over the fence and she had the dog with her arms around it and this is a considerable sized dog and dragged it onto Ron Ashford's property". He explained that the back fence is a 100-millimetre square mesh fence.
15 Mr Walker stated that the dog was a Rottweiler cross of some sort, but mainly Rottweiler. He said the dog was black in colour. He recognised the dog, he said, because he had seen it on many occasions before. He said he had seen the dog on the applicant's property and also wandering around the streets and on Ron Ashford's property.
16 Mr Walker indicated that he had known the applicant (as Mrs Mason) since he first bought his property 12 years previously and that he had been living in the house for just over five years. Before that he had tenants in the house. He was one of her neighbours, on the boundary fence side, that is to say, on the right-hand side when looking at the two properties from the street.
17 Mr Walker stated that his dog was on his property at the time the applicant was dragging her dog over the back fence. Mr Walker said he called his dog away from them.
18 The learned Magistrate then sought to clarify his evidence by asking Mr Walker: "… where was she when you first saw her? Was she within your property or outside?" Mr Walker answered: "Just on the outside pulling the dog across the fence."
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19 Mr Walker said he told the applicant to keep her dog off the property.
20 Prior to this Mr Walker said that for most of the day his dog had been with him in his workshop, or just sitting outside it. He sad his dog was in good health. He had gone inside his house about 10 to 15 minutes before the incident he described in order to have a shower.
21 Mr Walker said that when he came back out and saw his dog after the incident he described, the dog "had a bit of hole right on his forehead about - - almost between his eyes and his ears". Later he also noticed that his dog "had a scratch on his neck". His dog was a German Shepherd. He explained that the "hole" was bleeding slightly.
22 The learned Magistrate did not permit the respondent's representative to invite Mr Walker to speculate on how his dog had received the wounds he described and indicated that it was for him to determine whether or not there was sufficient evidence from which to draw inferences.
23 Mr Walker indicated that he had never given the applicant permission for her dogs to be on his property. He also gave evidence that he had prior to this incident attempted to put the boundary fence "up higher and higher and we also had put an electric fence that runs from the chook yard right down to the side of our house to keep our dog on our side of the property and we topped this off with putting an electric fence so our dog would get its punishment for going near that fence".
24 Mr Walker also testified that at the time of this incident he noted another dog - a white terrier dog also belonging to the applicant - running along Mr Ashford's back fence and barking.
25 The applicant was then invited to cross-examine Mr Walker about his primary evidence. She effectively commenced by making the statement that "This is the second time the neighbours on each side of me have perjured themselves to stalk me". The learned Magistrate invited the applicant to put her side of the story by asking questions, if she so desired. The applicant then proceeded to cross-examine Mr Walker.
26 Mr Walker confirmed that he had taken up continuous residence in his house about five years earlier.
27 The applicant then put it to the witness that "you removed my fence to - - that I had up to prevent your tenants killing my chickens and then you put your own fence up after surveying the land, encurging [sic]
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- further onto my property, incorrectly - - ". Mr Walker said he replaced a piece of loosely-stranded chicken wire with a properly surveyed fence on the boundary line. He said he had also erected an electric fence on his property about two and a half years earlier.
28 After some questioning about fencing, the learned Magistrate asked Mr Walker whether the dog was able to get through the fence between Mr Walker's and the applicant's property, to which Mr Walker explained how the fence had progressively been improved by increasing the size and effectiveness of the fence.
29 The applicant then suggested to Mr Walker that he had "ganged up with the Ashford's [sic] at the back". The learned Magistrate sought to impose some control on the range and nature of questions being asked and stated to Mr Walker that: "It's suggested you're fabricating your evidence. What do you say to that?" Mr Walker replied: "I would say that's an utter lie."
30 The applicant further put it to Mr Walker that he had "ganged up" with the Ashfords and made frequent complaints to the council (City of Armadale) in relation to the chicken yard and her rooster. Mr Walker appeared to accept that he had made complaints, but stated: "I don't see it as ganging up part [sic] at all. It's a matter of the truth."
31 The learned Magistrate then sought to clarify with the applicant, when she said "it's a fabrication", whether she was suggesting that on 21 March she was not dragging the dog through the fence. The applicant answered the Magistrate: "Most definitely." The learned Magistrate then, by way of attempting to assist the applicant, said to Mr Walker: " … what's your response?" Mr Walker answered: "I was there. Whatever I say in this court is - - ". The applicant interrupted by asking the question: "How could someone my size lift a dog over a fence?" Mr Walker completed his sentence by stating: " - - is the truth and correct."
32 The applicant expressly asked Mr Walker whether he was alleging that her dog entered his yard, to which he said it had. She asked how that was possible in light of the fencing. Mr Walker explained, by referring to his diagram, that there was a place in the fencing where the dog could jump over the fence. In answer to a question then put by the learned Magistrate he said that that was his conclusion as to how the dog entered his property. He confirmed, however, that he had not seen the dog actually jump the fence.
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33 The applicant then questioned Mr Walker about leaving his chickens unfed when he went to live in Kalgoorlie, to which the Magistrate rightly stated that this question had absolutely nothing to do with the proceedings before him.
34 The applicant then said to Mr Walker: "I put it to you that you have been obnoxious, rude, lied about me to neighbours, lied about me out at the Armadale Library and lied and conspired with Gordon Mason, the ex - - ". When invited by the learned Magistrate to respond to that statement, Mr Walker said: "Utter garbage."
35 There was then further questioning by the applicant of Mr Walker about Mr Gordon Mason who, as it transpires, is the ex-husband of the applicant. Mr Walker accepted that he was aware that Mr Mason speaks with Mr Walker's wife and, when further pressed to respond to very broad statements made by the applicant, Mr Walker said: "Well, since we have moved into that house, Mrs Mason (the applicant) has done nothing but cast verbal abuse over the fence and for God knows what reason but our response to her is we just don't talk to her whatsoever in any manner or form to her."
36 The applicant further "put it" to Mr Walker that he was "telling lies", which he rejected.
37 Eventually after some attempt by the learned Magistrate to regain order and after a direction to the applicant as to what relevant questions she should pursue, Mr Walker was asked what he observed in relation to the applicant carrying the dog through the fence. He again stated: "Well, I just watched Mrs Mason. She puts her arms around the dog. She drags the dog up to the fence, puts one leg over the fence and just carry [sic] - - just pulls it over." He further explained that the dog was a big lighter than a full Rottweiler: "It would be about a half-breed so it's a bit lighter in build."
38 By the substance of her further questions the applicant indicated, as the learned Magistrate clarified in further questions of her, that she was saying that she was small in stature and not very strong and could not have carried the dog in the manner suggested even if she wanted to.
39 At this point it might be observed that the unguided cross-examination conducted by the applicant appeared to involve, as much as anything, her statement of her account of events, rather than a series of questions of Mr Walker, and that her statement constituted a complete denial of the testimony of Mr Walker.
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40 The learned Magistrate invited the applicant to produce a photograph of her dog. She had some photographs with her at the hearing, but, as it transpired, none of them were of her dog. They were of Mr Walker's dog. The applicant said the photographs of Mr Walker's dog showed there were no injuries to the dog. Mr Walker gave further evidence by reference to the photograph he was shown, which also showed the boundary fence. He explained his earlier evidence as to the location of the applicant's dog. Mr Walker denied that a photograph taken at the distance of the photograph shown to him would show an injury to his dog of the type he had described in evidence. Two photographs of Mr Walker's dog went into evidence. Mr Walker further explained, when questioned by the applicant, that he had not obtained treatment for the injury to his dog but had applied antiseptic, as the injury "wasn't that bad".
41 Finally, the applicant again put it to Mr Walker that he had "completely fabricated the whole story". The learned Magistrate did not allow the question to be put as it had already been put, and answered, on a number of occasions.
42 After a brief re-examination the respondent's representative closed the prosecution case.
43 The applicant then gave evidence.
44 The applicant, when she gave evidence before the learned Magistrate, maintained the position she had outlined during cross-examination of Mr Walker, to the effect that Mr Walker's evidence was fabricated. Of the testimony that Mr Walker gave concerning the offence of 21 March, the applicant stated: "It is complete fabrication …". She suggested she was at the office of Martin Whitely at the time the events were said to have occurred. I interpolate to note that while this alibi evidence was given incidentally by the applicant, she did not later seek to call any further evidence to corroborate it.
45 The applicant suggested that, if Mr Walker's dog had sustained any wound, it may have been inflicted from jumping against Mr Walker's fence or his rose bushes along the fence.
46 In cross-examination she denied that her dog could have passed through the fence into Mr Walker's property and denied that her dog could have jumped the fence, as Mr Walker had suggested.
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47 The applicant was asked how she exercised her dogs on her property. The learned Magistrate prevented the respondent's representative from pursuing a line of questions concerning some earlier incident.
48 The respondent's representative also put it to the applicant that on an earlier occasion during the year, when her dog was impounded by City of Armadale rangers, she was able to lift the dog onto the back of the rangers' vehicle with no difficulty. To this the applicant responded:
"Lifting a dog that I have calmed passively from my own property so it wouldn't be scared of your van, breathing in with yoga breathing to ensure I had the strength to do it briefly, is completely different - I had to crawl up onto that - - I barely got him onto the top of it. Then I crawled up onto it with my knees and then managed to get him into it."
49 The applicant then admitted she can lift the dog briefly "in stable situations", but not over "scratchy wire fences with stakes sticking out of the top of it".
50 That completed the cross-examination of the applicant.
51 The applicant then gave some further evidence, which does not require repetition here, that was designed to blacken the reputation of the tenants of Mr Walker's property. She generally repeated her assertion that her neighbours had "ganged up on her".
52 The applicant then called Patricia Fay Zenetti, her "McKenzie friend", to give evidence. Ms Zanetti endeavoured to give some evidence designed to suggest, and a suggestion, that Mr Walker does not tell the truth. Her evidence was completely irrelevant and the Magistrate rightly ruled so.
53 The applicant then closed her case.
The Magistrate's findings
54 The learned Magistrate then summed up the evidence. He correctly noted that the prosecution must prove each of the elements of the offence to a standard of proof beyond reasonable doubt. In this case he noted that, because some of the evidence was circumstantial, he had to be satisfied that the prosecution had negated beyond reasonable doubt all other reasonable hypotheses which were consistent with innocence.
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55 The learned Magistrate noted that it was a matter of what inferences could be drawn from the evidence as a whole.
56 The learned Magistrate summarised Mr Walker's evidence. He also summarised the applicant's evidence. He noted that she said she was not at her property that day and that she was at another place. In so noting, the Magistrate did not fail to consider the alibi defence raised by the applicant.
57 The learned Magistrate then stated that:
"So it's a straight forward situation where I need to assess the witnesses and I have done so. I've gone through that process of assessment. I've observed the witnesses as they've testified. I've listened to what they say. I've observed the manner in which they've said it. I've tried to assess as best I can their powers of observation and perception and recollection and as I say, the manner in which they respond to the questions and so on. And my view is that Mr Walker is as he appears to be, an ordinary member of the community. He's come here to testify on oath as to an incident which he said occurred. I'm satisfied he understands the seriousness and the obligations of the oath and that in testifying as he did he was telling the truth. I do not accept the assertions that this is a total fabrication designed to try and further some aim which Mr Walker might have."
58 The learned Magistrate then said he was satisfied that he observed the defendant pulling this other dog across or through the fence. In those circumstances he was satisfied that the inference was that there had been an attack on Mr Walker's dog. He was, therefore, satisfied that each of the charges was proven beyond reasonable doubt.
59 In these circumstances, although he did not expressly refer to the alibi claim, I consider the Magistrate was satisfied by the prosecution evidence that he should reject that claim.
The order for destruction of the dog
60 After he recorded convictions on the two offences, the learned Magistrate noted there was an application for an order that the dog be destroyed. The representative for the respondent indicated that the application was made on the basis that this was the second attack by the dog, something that the applicant denied. The respondent's representative indicated that the attack (that had occurred on 21 March 2003) for which
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- the conviction had been recorded, was the second in seven weeks and had occurred within three days of the dog being released from the pound. He stated that this showed the dog had a propensity to attack. He pointed out that on an earlier hearing in the Court the Magistrate had directed the applicant that when she had her dogs at home, she had to exercise them and keep them on a lead. The representative for the respondent said the applicant had failed to comply with this directive and had no boundary fencing to contain her dog. He also said that, subsequent to that, an officer of the City had written three written warnings to the applicant after seeing her dogs unrestrained in the carpark of the Armadale Library. The respondent believed, he said, that the applicant had an inability effectively to control her dogs and the council was particularly concerned about this particular dog and, therefore, made the application for the order for destruction on the grounds of public safety.
61 The applicant told the learned Magistrate that she completely denied everything that had been said about the dog. The applicant further told the learned Magistrate that this was not the second attack in seven weeks. She again repeated her earlier allegations that "This has been a complete set up". She also denied that the dog had a propensity to attack. The applicant said he was a very gentle dog. She suggested to the learned Magistrate that she was going to put up a six-foot timber fence to ensure the neighbours "can't watch me". When asked when she was going to do that, she said, "As soon as I can get people to help me."
62 The learned Magistrate stated that he might be prepared to consider allowing the applicant to keep the dog if she could satisfy the council she had taken steps properly to confine the dog. He explained this would put an onus on her to fence the property. The applicant responded by saying, "The dog is always confined," to which the learned Magistrate expressed the view that clearly it was not.
63 The past history concerning the dog, the extent to which it is kept under control, was explored further. Eventually the learned Magistrate stated that he wished to explain something to the applicant that might allow the issue to be resolved without the destruction of the dog. He told her that if she were to fence her property in such a way that the council was satisfied that the dog could be confined, then that might be the result. The learned Magistrate indicated that he was prepared to adjourn the matter for a period of time to allow her to do that, but it would be for a specific period of time, and if the council then said that they were not satisfied with the steps that she had taken, he would almost certainly order
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- the destruction of the dog. He asked whether the applicant was interested in that proposition, to which she said she was.
64 The learned Magistrate gave the applicant an understanding of the steps that she had to take to control the dog and how the Dog Act deals with dangerous dogs. The learned Magistrate finally ordered as follows:
"So what I intend doing … is adjourning this matter until the 20th of June. You'll be required to enter into a bail undertaking before you'll be released here to ensure that you come back on that date. The council, I believe, are going to consider whether or not they can take action under section 33(e) of the Dog Act which deals with the declaration that the dog is dangerous. That's an alternative to me granting an order that the dog be destroyed. If you are prepared to comply with council directors [sic] as to confining the dog and other things, it may be that it would be inappropriate to order that the dog be destroyed. So really it puts the onus upon you which is precisely what the Dog Act is designed to achieve because in many cases, it's not the dog that is at fault but the person who controls the dog. So that will allow you an opportunity of considering your position and taking what steps are necessary to ensure that the dog is not destroyed. So do you understand what I've outlined to you?"
65 The applicant answered: "I've heard what you've said."
66 On 20 June 2003 the matter came on again for hearing before the learned Magistrate.
67 The representative of the council advised the Court that since the convictions on 28 May 2003 the dog had been declared a dangerous dog pursuant to s 33E of the Dog Act and a notice had been delivered to the applicant's address. The learned Magistrate was advised of a number of restrictions that apply to a dog that has been declared a dangerous dog. The representative of the respondent said the council was still seeking a destruction order.
68 The learned Magistrate was advised by the representative of the respondent that on a recent visit to the applicant's property there was no indication of appropriate fencing or any signage that a dangerous dog was kept on the premises, as required once the dog is declared a dangerous dog under the Dog Act.
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69 When invited to respond to this information, the applicant told the learned Magistrate that the representative of the council had "committed perjury" when he had earlier cross-examined her and in what he had told the Court that day. She further told the learned Magistrate that she had "contacted volunteer organisations for help erect [sic] another fence. I already a [sic] 6 foot, 8 foot enclosure around a courtyard … bigger than … back yard with self-closing gates on it. The only thing I haven't put up is signage".
70 Ultimately the learned Magistrate advised the applicant in these terms:
"Well, I'm afraid you've placed the court in a position where it seems to me that the council's application for the destruction of the dog is well founded."
71 The applicant responded:
"The dog is completely innocent. He hasn't bitten anybody, he's not attacked anything, he's not even been there … ."
72 The learned Magistrate then formally imposed a penalty for the two offences that took into account the fact that the attack did not result in substantial injury to Mr Walker's dog, but recognised that the applicant's dog was not properly controlled. He imposed a fine of $250 that covered both offences, plus $57.70 in costs.
73 He also made an order for the destruction of the dog pursuant to s 39 and s 40 of the Dog Act. He stated that the order was to this effect: the City of Armadale by its authorised officers is to destroy the male Rottweiler cross dog the subject of the complaint and for that purpose can seize it and detain it. The learned Magistrate added:
"The order will be remitted if the dog is removed from the boundaries of the City of Armadale within 7 days. So, if you can re-house the dog in an appropriate situation for the dog … then it won't be destroyed."
Grounds of application for leave to appeal
74 In respect of this hearing and those findings and the sentence and orders made in respect of them, the applicant seeks leave to appeal and a stay of the order for destruction of the dog. In support of these applications the applicant has filed an affidavit dated 18 September 2003 and filed with leave on 19 September 2003. To that affidavit are annexed
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- many documents which include the transcript of the proceedings on 28 May and 20 June 2003 before the learned Magistrate, copies of the complaints, as well as a variety of her notes concerning the hearing.
75 Section 186(1)(a)(i) of the Justices Act 1902 (WA) relevantly provides that an application for leave to appeal may only be made on the ground that the Magistrate "made an error of law or fact, or of both law and fact". Section 187(1) of the Justices Act provides that the Judge shall grant leave to appeal unless he considers that the appeal is frivolous, or vexatious, or that the grounds of appeal advanced do not disclose an arguable case.
76 It is well understood that, in the context of the Justices Act, an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued "in the sense that it has an argument which has some prospect of success". In this context, "arguable case" necessarily has the same meaning as "reasonable case". See Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262 per Malcolm CJ, with whom Walsh and Anderson JJ agreed.
77 The applicant first says she should be given leave to appeal from the decision of the learned Magistrate, in effect, because his decision to convict was dependent on the drawing of inferences, there being no direct evidence that the dog had caused injuries to Mr Walker's dog. This ground is expressed in par 2(a) of the application for leave in these terms:
"The learned Magistrate … erred in dealing with the matter and should have dismissed the complaint at the initial hearing as the complaints were invalid. EG:- There was no evidence, no factual evidence; no corroborative witnesses, no photographic evidence, no photographs of alleged injury, no medical evidence merely fabricated allegations."
78 Then a series of particulars are given which in most respects repeat the evidence given or assertions made by the applicant before the learned Magistrate during the hearing on 28 May 2003.
79 Section 33A(1) of the Dog Act relevantly provides in substance that a dog shall not be in any place that is not a public place unless consent to its being there has been given by the occupier or a person apparently authorised to consent on behalf of the occupier. Section 33A(2) provides a number of exemptions from the requirements of subs (1), but none are presently relevant.
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80 This section places a high onus on a dog owner. Section 33B of the Act provides specific defences to charges brought under s 33A. They include the defence that the person charged satisfies the Court "that he took all reasonable precautions and exercised all due diligence to avoid the contravention".
81 In Lappan v Hughes [2003] WASCA 173, Miller J, at [17] - [20], considered these provisions and stated:
"When one considers the provisions of s 33B of the Act it is clear that this section provides the defences which are open to persons charged under the provisions of … s 33A of the Act, and casts an onus upon the person charged to satisfy the Court in respect of any one of those defences. Relevant to this case, the respondent would be called upon to satisfy the Court that she had taken all reasonable precautions and exercised all due diligence to avoid a contravention of the sections and/or that in her capacity as occupier of the premises where the dog was ordinarily kept, she had fulfilled those obligations.
As in McPherson v Cairn, the operation of s 23 and s 24 of the Criminal Code is, by implication, excluded in this case by the law relating to the subject. Section 23 of the Code would seem to be inapplicable to the case in any event. No question arose as to whether or not there was a 'willed act' of the defendant, nor could it be said that the presence of the dog in Cranbrook Way was an event that occurred by accident.
The legislature has (in the words of Burt J in McPherson v Cairn at 31), 'addressed its mind to the question of mistake' and created a separate and discrete defence available to the owner of a dog or the occupier of premises where a dog is kept. Proof is required from the person charged that all reasonable precautions and due diligence have been either taken or exercised to ensure that the dog is not in a public place unless properly controlled or tethered, and not in a place other than a public one unless consent to its being there has been given by the occupier of the premises in which it is located.
It follows that the 'defence' provided by the provisions of s 24 of the Criminal Code, by which the prosecution is obliged to establish that a person did not act under an honest and reasonable but mistaken belief in the existence of the state of
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- things, is inapplicable to a prosecution under s 31 or s 33A of the Act. If it could be said that the provisions of s 23 of the Code were applicable, they too were excluded."
82 In this case, the evidence entitled the learned Magistrate to find, as he did, that the applicant's dog was in a place that was not a public place and was there without the consent of the occupier of that place, namely, Mr Walker, such that the elements of the offence of s 33A were made out. There was no evidence to suggest that any "defence" relevant under s 33B was available to the applicant, and she did not contend that it was.
83 Section 33D of the Dog Act relevantly provides, in essence, that if a dog attacks any animal owned by or in the charge of another person, whether or not any injury is caused, every person liable for the control of the dog commits an offence. However, there are two relevant provisos which are:
"(a) in the case of any person, unless he satisfies the court that the dog was being used in good faith in the reasonable defence of any person or property or for the droving or removal of any animal found trespassing;
…
(c) in the case of the owner or the registered owner, unless he satisfies the court that at the material time the dog was in the possession or control of some other person without his consent, express or implied."
84 Section 33D, like s 33A, places a heavy onus on a person.. It is not necessary to demonstrate that the owner of the dog knew that the dog attacked any person or any other animal. The owner of the dog involved in a dog attack needs to demonstrate that they have available to them one or other of the "defences": see City of Canning v Wardle unreported; SCt of WA; Library No 960224; 26 April 1996. The "defence" provisions in the Criminal Code appear to have been excluded. On the face of it, the reasoning applied to this effect in respect of s 33B by Miller J in Lappan v Hughes (supra) applies to the "defences" in s 33D.
85 In this case, the Magistrate was entitled to find on the evidence that s 33D(1) had been contravened. There was no evidence to suggest that any of the "defences" were available to the applicant and she did not argue that they were.
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86 I cannot see that the learned Magistrate misdirected himself as to the appropriate law to be applied. He correctly instructed himself that it was necessary to find that the complaints against the applicant were proved beyond reasonable doubt. He expressly noted that the prosecution case against the applicant was based on circumstantial evidence and that he should consider whether any other reasonable hypothesis consistent with innocence was advanced. He was not satisfied that it was. He plainly did not accept that the applicant was somewhere else on the day in question.
87 In these circumstances, I am not satisfied that this proposed ground of appeal is arguable on the relevant test. In light of the Magistrate's finding of the facts based upon his acceptance of the evidence of Mr Walker, there is no prospect of this ground succeeding at a hearing. For that reason, I would refuse leave to appeal on this ground.
88 The second ground of appeal set out in par 2(b) of the application for leave to appeal in essence repeats the first ground of appeal set out in (a) by claiming the prosecution did not present "factual evidence", "manipulated testimony" and the like. For the same reasons that I do not consider ground (a) to be arguable, ground (b) is not arguable. To the extent that this ground relies on allegations of manipulation of evidence, and the like, it is vexatious and not taken into account in the consideration of this application. "Vexatious", in this context, includes a ground which depends on an untenable or groundless allegation: see Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481, at 491, per Roden J.
89 The applicant further contends that leave to appeal should be granted on ground (c), that the learned Magistrate erred as he failed to take account of all the facts presented by the appellant in defence. Plainly this ground cannot succeed, as the learned Magistrate had full regard to the evidence of Mr Walker and that put forward by the applicant. The applicant says there are contradictions in "the sworn hearsay fabricated perjured testimony by Mr Walker the complainant witness". These statements should also be considered vexatious and should not be taken into account in the consideration of this application.
90 The applicant further says that leave to appeal should be granted on ground (d), that the learned Magistrate erred, in that he failed "to notice [that the] sworn alleged testimony by Mr Walker in court differed totally from the sworn alleged charge description of 21 March 2003". This allegation again fails to accord with the actual findings made by the learned Magistrate. The ground is not arguable on the relevant test.
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91 The applicant further says that leave to appeal should be granted on ground (e) to the effect that the learned Magistrate erred, "obstructing the defendants [sic] defence by cutting short and stopping before completion". Particulars of this ground are given. However, I consider that this ground is not arguable on the relevant test.
92 I have set out in the reasons above the lengths the learned Magistrate went to in order to assist the applicant in putting her case. He instructed her what she needed to do and clarified statements she made in the course of cross-examination so that they constituted questions capable of being responded to by Mr Walker. He ensured that photographic evidence produced by the applicant went into evidence. In the event, this ground has no prospect of succeeding on the hearing of an appeal and so is not arguable on the relevant test.
93 The applicant further says that leave to appeal should be granted on ground 2, because of the "appellant / defendant's right to reply to the fabricated distortions of pound prosecutor J C Kelieher [sic] who presented these fabrications and inadmissible constructed perjuries to endeavour to construct a 'history' of alleged 'dog attacks' when there are none". Plainly the learned Magistrate had regard to all relevant information and evidence put in front of him and assessed it. By reason of his findings of fact, this ground is not arguable and there are no prospects of it succeeding on the hearing of an appeal. It is also vexatious and for that reason should not be taken into account in the consideration of the application.
94 The applicant further suggests that leave to appeal should be granted on ground 3, that the learned Magistrate erred by the "refusal of appellants [sic] defence witness's testimony Ms Zenetti". Ms Zenetti's testimony was totally irrelevant to the matters at hand and the learned Magistrate rightly noted its irrelevance. This ground has no prospects of success on a hearing of an appeal and so is not arguable on the relevant test.
95 The applicant further suggests that leave to appeal should be granted on ground 4, that the learned Magistrate erred "ensuring a miscarriage of justice". In my view, there is no basis to this ground. The learned Magistrate gave proper consideration to the evidence of Mr Walker and that of the applicant. For the reasons given in relation to ground 1(a), there are no prospects of this ground succeeding on the hearing of an appeal and so it is not arguable on the relevant test.
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96 Under ground 4, the applicant also suggests that the learned Magistrate was wrong to find that the applicant "was lying when in fact she was not". The learned Magistrate accepted the evidence of Mr Walker as credible and reliable. He did not in fact find that the applicant was lying. He found that the prosecution had proved its case beyond reasonable doubt. There can be no prospect of this ground succeeding on the hearing of an appeal.
97 The applicant further says leave should be given on ground 5, that the learned Magistrate, in effect, refused to accept all of her evidence. In my view, the learned Magistrate considered the whole of the evidence before him and did not, at any point, deny the applicant a proper hearing. This ground has no prospects of succeeding on the hearing of an appeal and so is unarguable on the relevant test.
98 The appellant then suggests leave should be granted on ground 6, that the learned Magistrate erred by displaying his "rapport" with the pound prosecutor and the witness, Mr Walker. This alleged "bias" has absolutely no evidentiary basis and is unarguable. It has no prospects of success on the hearing of an appeal.
99 The applicant, by ground 7, suggests the learned Magistrate erred by refusing "the appellant defendant any sum up, whilst at the same time, privileging the pound prosecutor and his complainant witness keeping the constructed, fabricated perjuries on track". In the event, this simply is not the case. As I have noted, the learned Magistrate took all appropriate steps to ensure the applicant had a fair hearing. That she disagrees with the outcome of the hearing is no basis upon which these wild allegations should be permitted. This ground is not arguable and has no prospects of success on the hearing of an appeal. The allegations made are also vexatious and should not be taken into account in the consideration of the application.
100 The applicant, by ground 8, says the learned Magistrate erred "ensuring a miscarriage of justice; by his manipulation of what he accepted as admissible and inadmissible court room testimony and his pre-biased interpretation and exclusion of defence facts and testimony to suit his own constructions". This, like the preceding ground and others before it, constitutes an abuse of process and should not be allowed. In any event, there is no evidentiary basis to the allegation. The Magistrate did his very best to ensure the applicant had a fair hearing and every opportunity to put her case before the Court. This ground has no
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- prospects of success on the hearing of an appeal and so is unarguable on the relevant test.
101 For all these reasons, the application of the applicant for leave to appeal against the convictions for offences under s 33D and s 33A of the Dog Act 1976 should be refused.
102 The application for leave to appeal against the order for destruction of the applicant's dog, which depends, in part, upon those two convictions, should also be refused.
103 Section 39(1) of the Dog Act relevantly provides in substance that, where an attack by a dog is shown on the balance of probabilities to have caused injury or damage, a Court before which any offence arising out of that attack is heard may order the owner to destroy that dog, or order that the dog be destroyed by the local government by which, or authorised person by whom it was seized, or it is detained under s 29 of the Act.
104 In this case, the learned Magistrate, in light of the evidence before him upon hearing the complaint under s 33D of the Dog Act and entering a conviction for an offence under that section, and other relevant information provided to the Magistrate by the respondent's representative, was entitled to accept that on the balance of probabilities the dog had caused injury or damage - in this case, to another dog - and, so, was entitled to make an order that the dog be destroyed.
105 By s 40(1)(b) of the Dog Act, the Magistrate was also entitled to order that the order for destruction of the dog should be remitted in the circumstances he specified concerning its removal from the district.
106 It should also be noted that, before making the destruction order final, the learned Magistrate gave the applicant the opportunity, between 28 May and 20 June 2003, to take appropriate steps to ensure the dog could not escape from her property and thereby to avoid the need for the making of the destruction order. In the event, on the information supplied to him, the Magistrate was not satisfied that those steps had been taken.
107 In all these circumstances, I am not satisfied that there is a proper basis upon which to stay the order of the learned Magistrate for destruction of the dog and the applicant's application in that regard should also be refused.
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Conclusion
108 For these reasons, the application for leave to appeal is refused, as is the application for a stay of the order for destruction of the dog.
109 As a result, the original convictions made by the learned Magistrate stand, as does the order for the destruction of the dog.
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