Pearce, Peter v Kingborough Council

[1998] TASSC 62

62/1998

PARTIES:  PEARCE, Peter

v
KINGBOROUGH COUNCIL         

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 13/1998
DELIVERED:  19 May 1998
HEARING DATE/S:  15 May 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - Matters relating to decision - Appeal against order of magistrate to destroy dog following conviction in accordance with Dog Control Act, s59(1) - Failure of magistrate to make necessary finding that dog was "unduly" mischievous or dangerous where jurisdiction to order destruction of dog conditional upon court being satisfied dog "unduly" mischievous or dangerous - Appeal allowed - Orders set aside.

Dog Control Act 1987 (Tas), s59(1).
Aust Dig Magistrates [128]

REPRESENTATION:

Counsel:
           Appellant:  T Burbury
           Respondent:  J F Crotty
Solicitors:
           Appellant:  Butler McIntyre & Butler
           Respondent:  James Crotty

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  62/1998
Number of pages:  3

Serial No 62/1998
File No LCA 13/1998

PETER PEARCE v KINGBOROUGH COUNCIL

REASONS FOR JUDGMENT  COX CJ

19 May 1998

The applicant was convicted on five complaints of a total of seven offences against the Dog Control Act 1987 ("the Act") by virtue of his being the owner of a dog, namely a female cream Labrador cross ("the dog").  Chronologically the offences were as follows:

25 January 1997	Count 1	The dog harassed one Dale Smith
Count 2	The dog harassed one Matthew Smith
14 April 1997	The dog harassed one Peter Bright
27 May 1997	The dog harassed one Derrick Denny
21 November 1997	The dog attacked a domestic animal, namely a toy Poodle
26 November 1997	Count 1	The dog attacked one Kathleen Carr
Count 2	The dog attacked one Kate Bradley

All the offences are contrary to the Act, s33(1) which provides:

"33 ¾ (1)   If a dog attacks, harasses, or chases any person, or any farm animal or domestic animal owned by or in the charge of some other person, the owner of the dog is guilty of an offence and is liable on summary conviction to a penalty not exceeding 5 penalty units."

The complaints in respect of the first three occasions were heard ex parte by one magistrate, but sentence was imposed by a second magistrate in consequence of an order made by the first magistrate pursuant to the Justices Act 1959, s50C(1). The second magistrate heard the two complaints in respect of the occasions in November 1997, found the three offences alleged therein proved and imposed penalties on each complaint. Included among the orders on each complaint was one in purported reliance on s59(1) that the dog be destroyed. On the last complaint relating to the incident of 26 November it was, furthermore, ordered that the applicant pay the pound fees of $710.

Section 59 relevantly provides:

"59 ¾ (1)       Where a dog is shown to the satisfaction of a court to be unduly mischievous, dangerous, or has killed farm animals or domestic animals, the court may order that the dog be destroyed in accordance with this section.

(2) An order for the destruction of a dog may be made by any court hearing any proceedings under this Act.

(3)      Where a court is empowered to make an order for the destruction of a dog under this section, the court may, in addition to the order, or in lieu of making the order, do one or more of the following things: ¾

...

(g)make an order against the owner of the dog as to costs incurred in making the order effective, as to the payment of compensation to any person who has suffered any bodily injury or damage to property as a result of the actions of the dog, and as to the costs incurred by the corporation in detaining the dog.

(4)      An order for the destruction of a dog shall state ¾

(a)   to whom it is directed;

(b)   whether or not it may be remitted, and if so, in what circumstances; and

(c)   within what period it is to be put into effect."

After the findings of guilt had been announced by the learned magistrate, the prosecutor sought an order "pursuant to the provisions of S 59 (1) that the dog be found unduly mischievous or dangerous.  Following that, the dog be destroyed, and secondly that the fees and costs that have been incurred to date in relation to the dog be paid by the defendant, and they total $710.00".  The learned magistrate made the following finding:

"HIS WORSHIP:  I think it is the general rule that everybody likes to try and give a dog a pretty fair run, just to ensure that what is occurring is perhaps just a little one-off situation, of nothing more than a bit of doggy playfulness, but I think it is fairly clear here that we have gone way beyond that situation.

There has been over a period now, of nearly 12 months some seven different offences, all caused by this one dog.  And it is true it hasn't quite got to the stage of leaving people with bite marks - I think there has certainly been apprehension of that, on the part of some of those who have been the victims of its movements.  I think that was perhaps very much the situation with the toy poodle and with Mrs Fletcher, where the biting was only saved by her wielding of a rake.

Having regard to all of the circumstances, I think it is appropriate on each and every complaint before this Court that I have found proved, that I have the dog declared to be a mischievous dog.  On all counts, having regard to fees that the defendant will have to pay, I won't impose a fine, I will record a conviction.  He can pay the court costs in each one of $24.00.

On each one though, as part and parcel of the penalty, I am going to order, pursuant to S 59 (1) of the Dog Control Act that the dog be destroyed. On each complaint there will be an order that the defendant pay costs of the complainant, they can be taxed costs based on 80 per cent of table B, and they can be taxed by the Clerk of Petty Sessions, Hobart. And then specifically on complaint 39293/97, which relates to the offences of 26th November, that there be an order that the defendant pay the pound fees, which are set at $710.00."

After a discussion about time to pay, the learned magistrate adverted to s59(4) and made orders stating that the destruction order was directed to the Dog Control Officer, Kingborough, that the order was not remitted and that it was to be put into effect within twenty-one days.

The short point of this appeal is that the jurisdiction to make an order for the destruction of the dog is dependent upon the Court which makes it being satisfied that the dog is unduly mischievous or dangerous or has killed farm animals or domestic animals.  The learned magistrate did not make a finding that the dog was unduly mischievous but only that it was mischievous.  The activities of the dog on the five occasions when offences were committed were capable of supporting a finding that the dog was indeed unduly mischievous, but the evidence did not point inevitably to this conclusion and the learned magistrate did not express himself satisfied that this was the case.  It may have been a slip of the tongue on his part.  The prosecutor had asked for an order on the basis that the dog was unduly mischievous or dangerous and had referred the learned magistrate to the subsection in question.  His Worship specifically adverted to subs(4) when he made the consequential orders I have mentioned, but as he did not make a finding that the conduct demonstrated to his satisfaction that the dog was unduly mischievous, it is not apparent that he did advert to the need for such a finding before he had jurisdiction to make the destruction order.

It is clear that a "one off situation" or behaviour amounting only to "doggy playfulness" would not in the normal course of things demonstrate that the dog was either mischievous or dangerous.  The fact that the learned magistrate found the behaviour of the dog over a period of some eleven months "way beyond that situation" does not demonstrate that he was satisfied that the dog, in addition to being mischievous as he declared him to be, was unduly so.  Indeed, he pointed out that although some of the complainants had been apprehensive that the dog might bite them, none of them had in fact been bitten, nor had the Poodle, although that may have been due to its owner, Mrs Fletcher, wielding a rake in its defence.

Although it has been said that "Where a Magistrate has not announced a specific finding of the facts on which he bases a decision to convict, an appellate court is entitled to assume, in the absence of indications to the contrary, that he has found every fact necessary to support it" (Warren v Manning, Chambers J, 14/1971; Hawe v Cassidy [1907] St R Qd 21; and Keable v Clancy [1909] St R Qd 345), I think there are different considerations where there is a failure to make the findings necessary to the exercise of jurisdiction to make specific orders following conviction. In my view, the order for destruction should be set aside, and for the same reasons the order that the applicant pay poundage fees should be set aside, for the jurisdiction to make such an order under s59(3)(g) is dependent upon the specific finding referred to in s59(1).

I was asked by counsel for the respondent, should the applicant succeed on the point raised, to dismiss the motion pursuant to the Justices Act 1959, s110(2)(ab) on the basis that no substantial miscarriage of justice has occurred. I do not consider that no substantial miscarriage of justice has occurred because the conclusion that the dog was unduly mischievous, while open to the learned magistrate on the evidence, was not an overwhelming one and if the learned magistrate did misdirect himself that all that had to be proved was "mischievousness" as opposed to "undue mischievousness" he may well not have been persuaded of the latter disposition if he had applied the correct test. Furthermore, as Underwood J pointed out in Schreuder v The Australian Securities Commission (1996) 6 Tas R 223 at 239 "If the error of law goes to jurisdiction, then the proviso question does not arise."

The appeal is allowed, the order for the destruction of the dog set aside and the order that the applicant pay the poundage fees of $710 is likewise set aside.