RSPCA v Fischer
[2018] QMC 8
•25 May 2018
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
RSPCA v Fischer [2018] QMC 8
PARTIES:
RSPCA
(Complainant)
v
Andrew James FISCHER
(Defendant)
FILE NO/S:
MAG-00200320/17(4)
DIVISION:
Magistrates Courts
PROCEEDING:
ORIGINATING COURT:
Brisbane Magistrates Court
DELIVERED ON:
25 May 2018
DELIVERED AT:
Brisbane
HEARING DATE:
7 February 2018
MAGISTRATE:
J Payne
ORDER:
Charge One: Not Guilty
Charge Two: Not Guilty
CATCHWORDS:
COUNSEL:
Mr A. C. Braithwaite, Counsel i/b RSPCA for Complainant
Mr D. A. Funch, Counsel i/b Howden Saggers Lawyers for Defence
SOLICITORS:
The Defendant is charged;-
Charge One
That on the nineteenth day of July 2017 at Gaythorne in the Magistrates Court District of Brisbane in the State of Queensland one Andrew James FISCHER was cruel to an animal, namely one white coloured female English Staffordshire Bull Terrier type dog named ‘Cheeky’ contrary to section 18 of the Animal Care and Protection Act 2001.
Particulars: The Defendant terrified the dog by squeezing its neck forcefully with both hands until it defecated.
AND FURTHER
Charge Two
That on the nineteenth day of July 2017 at Gaythorne in the Magistrates Court District of Brisbane in the State of Queensland one Andrew James FISCHER did wilfully and unlawfully kill an animal capable of being stolen, namely one white coloured female English Staffordshire Bull Terrier type dog named ‘Cheeky’ contrary to section 468 of the Criminal Act 1899.
Particulars: The Defendant caused the death of the dog by hitting it with a sledgehammer.
THE FACTS
Jake Cawley lived at 40 Mott Street Gaythorne. He was the owner of a white Staffordshire Bull Terrier named Cheeky. On 19 July 2017 during the afternoon, he and his roommate Lachlan took his dogs ‘Cheeky’ and ‘Cody’[1], for a walk. Jake Cawley said when they got home as they came through the last gate Lachlan was the last through the gate and it didn’t lock properly. About ten minutes later he got a call from a neighbour saying they had Cody out the front and the dogs had gotten out. He immediately went looking through Mott Street for the dog ‘Cheeky’, Lachlan jumped into the car and started searching. He called his mother and girlfriend who came over. They searched the street, the football fields on the other side of the street and school oval at the end of the street. They searched until about 1:00 am. He also put a post on Facebook and sent text messages to friends. He put out ‘Lost’ fliers with a picture of Cheeky and his mobile number and continued to search for the dog the entire weekend. ‘Cheeky’ was never found.
[1] Described by the witness Benjamin Schardt as “it looked like a blue heeler or cattle dog”. Transcript page 1-27, lines 40-41
At about the time ‘Cheeky’ and ‘Cody’ got out, a neighbour, Kristen McGill, returned to her house at 91 Mott Street Gaythorne. She had taken two dogs belonging to her and her husband, Andrew Fischer, (the Defendant) for a walk to the local park. Their dogs ‘Lily’ and ‘Beau’ were on a lead. After the walk she walked into their yard at 91 Mott Street. Her husband, the Defendant, did not come on the walk with her as they were doing renovations and he was at home preparing to concrete the carport.
Their front fence had an open space of about 5.2 metres wide that could not be secured as concreting on the carport was being done.
Relevantly the front door to the house of the Defendant and Ms McGill had an automatic deadlock and the Defendant had the keys in his pocket. Ms McGill was not carrying keys and could not get through the front door without the use of keys the Defendant had.
As Ms McGill entered her yard, both of her dogs were still on the lead and ‘Lily’ was slightly behind her. Because of the concreting work she entered the yard by walking between the fence and the side of a shed. As she looked down she saw that ‘Lily’ was in the mouth of a white dog and there was a dark dog about a metre or so behind the white dog. By this time she was in her yard by about 6 to 9 metres.
She then started to scream and she said the words “help me”.[2] Her husband, the Defendant, describing it as a “blood curdling” scream[3] and a neighbour Benjamin Schardt saying it was “a panicked scream from a woman”.[4]
[2] Transcript, pages 1-110.
[3] Transcript, pages 1-81.
[4] Transcript, pages 1-26, lines 30-31. (Automatic deadbolt latch door – page 1-105).
At the time of the scream the Defendant was inside a shed on their property. When he heard his wife screaming he ran out of the shed and got to the corner of the shed where the fence was and he saw a white Staffy had hold of their dog ‘Lily’ in its mouth and was shaking ‘Lily’. ‘Lily’ is a Silky Terrier Cross Maltese.
DISPUTED FACTS
There is little dispute between the witnesses as to what happened on the night, however there are some areas of evidence where if possible the court should make findings of fact.
The only eyewitnesses to all or part of the incident was the neighbour, Benjamin Schardt, the Defendant and his wife, Kristen McGill.
On observing the demeanour of the witnesses I consider that each of the witnesses attempted to give honest answers and variances in their evidence can be due to a number of factors including the difficulty in recalling events which occurred more than 6 months earlier, the incident occurred at night time and was lit by street lighting, the witness Mr Schardt did not observe the whole incident, the incident occurred quickly between 1 to 2 minutes and it was a stressful circumstance.
There are three questions the court must decide in deciding the matter;-
(i) Did the English Staffordshire Bull Terrier defecate?
(ii) Was the English Staffordshire Bull Terrier unconscious when it was struck with a sledgehammer?[5]
(iii) Did the Defendant cause the death of the Staffordshire Bull Terrier?
[5] Transcript, page 1-6, line 10-12. The prosecution relies on a factual assumption that the dog was unconscious when struck
In deciding this I will consider mainly the evidence of 5 witnesses being the neighbour Benjamin Schardt; the RSPCA veterinary surgeon, Victoria Lomax; the Defendant Andrew Fischer; his wife Kristen McGill and RSPCA inspector Claire Stretton.
BENJAMIN SCHARDT
Benjamin Schardt lives next door to the Defendant. He works in IT support for Queensland Health.
He said:-
· On 19 July 2017 he was at home watching television with his partner.
· He heard the panicked scream of a woman.
· It was dark, winter time, it was sunset.
· He heard dogs barking and he got up went to the end of his balcony to investigate.
· He opened his front door and went down his front steps.
· He then went to his front gate, paused as there was a dog outside, a blue healer or cattle dog nut the dog didn’t react and he opened his gate.
· The street was lit fairly well due to a street lamp between the properties.
· He turned to his right and saw the Defendant standing outside of his properties’ gate, facing towards his house standing on a concrete pad that would be a driveway.
· The Defendant was not standing in an upright position and appeared to be holding an animal.
· He was walking at a quick pace as he felt urgency when hearing the scream and the dogs barking. He said from hearing the scream up until seeing the Defendant it was perhaps 20 and at the most 30 seconds.
· He asked the Defendant if the blue healer had attacked his dog and the Defendant replied “No. This one.”
· He then saw the Defendant gripping a dog around its neck and saw the dog was not one of the Defendant’s dogs.
· He was about two and a half metres from the Defendant and saw the dog was some sort of Staffordshire breed.
· The Defendant was slightly hunched forward holding the dog around its neck with its underbelly facing away from the Defendant.
· The dogs back was against the Defendant’s lower abdomen and the Defendant was pressing his thighs together.
· He did not see any movement of the dog[6].
[6] Transcript, page 1-31, line 36-37.
· It appeared the Defendant was well restraining the dog and exerting force. The Defendant had straightened from a hunched position and maintained a tight hold of the dog’s neck.
· He noticed drops of faeces on the driveway; He said although he definitely saw faeces on the driveway where the Defendant was standing with the dog and he accepted it was possible that he did not see faeces dropping to the ground but he had inferred it had from the location of faeces he saw on the driveway on that night and the place where the Defendant had commenced walking with the dog.[7]
[7] Transcript, page 1-43, lines 25-34.
· He couldn’t think how to assist but asked the Defendant if he needed some help or rope but his voice trailed off.
· He did not hear any other person at this time.
· The Defendant started to move away towards his property in a straight line towards his shed by going under his carport. The dog’s hind quarters were dangling and he observed no movement although his view of the dog was obscured by the Defendant’s body as the Defendant moved towards his house.
· He did not hear any noises from the dog at this time.
· The shed has a door, it was open and light was emitting from it.
· He heard a woman’s voice come from the property somewhere but couldn’t make out what was said.
· After a few seconds, maybe five, the Defendant emerged from the doorway of the shed. The Defendant was holding a sledgehammer in his hand and he could see the dog dangling from the Defendant’s other hand.
· The Defendant took two steps out of the sheds doorway and heaved the motionless dog away from his body.
· The dog bounced, rolled to a stop on its back, paws up with head facing towards the street. The dog’s mouth was open and its tongue rolled away outside of its mouth and its eyes were open.
· The Defendant turned on his heel and made his way back into the doorway of the shed.
· He turned towards his house and started walking away.
· About 10 minutes later he looked from his balcony to what would have been the dog’s location, which he could definitely see and he did not see the dog.
VICTORIA LOMAX
Ms Lomax graduated a vet from the University of Queensland in 1969 and for about the last 16 years had done contract work for the RSPCA.
Ms Lomax’s opinion was based on the RSPCA’s Statement of Facts. I accept the submission that the vet Ms Lomax “revealed herself to be utterly partial to the prosecution case”.[8]
[8] Exhibit 6 Outline of Submissions of Behalf of Defendant [24][29].
Of assistance to the court however, the vet Ms Lomax did say;-
· If an animal is panicking or unconscious the anal sphincters could relax and they might urinate and/or defecate[9].
[9] Transcript, page 1-55, lines 34-44.
· Whether or not an animal could recover as a result of strangulation where the mechanism involves blood supply the animal could recover depending on the degree of unconsciousness and if only unconscious for only a short period of time possibly but not for a longer period of time[10].
· To render a dog unconscious by placing pressure on its neck, causing loss of blood to the brain could take between one and two minutes[11].
· The description of the dog with its body tumbling and tongue hanging out was consistent with it being deceased or unconscious[12].
[10] Transcript, page 1-56, lines 12-29.
[11] Transcript, page 1-60, lines 5-15.
[12] Transcript, page 1-62, lines 30-36.
ANDREW FISHER
The Defendant lives 91 Mott Street, Gaythorne and is employed as a Health, Safety and Environment Advisor with a Commonwealth organisation. He lives at that address with his wife Kristen McGill and their two dogs ‘‘Lily’’ and ‘Beau’ that are Silky Terrier cross Maltese.
The Defendant gave evidence and also participated in an interview with Ms Claire Stretton, an RSPCA Welfare Inspector, on the 21 following the incident.
During his evidence he recalled the incident on 19 July 2017 and said;-
· He was preparing a concrete stump under his house and he heard his wife give a blood curdling scream.
· As he came around the corner of the shed he could see a white dog like a Staffy had hold of their dog ‘‘Lily’’ in its mouth and was shaking ‘‘Lily’’, although he didn’t see the dog until he was right on the corner of the shed as it was dark and there is no lighting. He saw his wife in front of the dogs.
· The Staffy was shaking their dog so he grabbed the Staffy. His wife was screaming hysterically “Help me.” He grabbed the Staffy to try and stop it shaking his dog but its legs were braced.
· The Staffy had their dog around its midline and their dog was off the ground and it was yelping.
· He then grabbed the Staffy around the head and tried to grab its top jaw and bottom jaw to pull it apart, but the dog squeezed harder.
· The dog ‘‘Lily’’ screamed or yelped louder.
· He then grabbed the dog around the neck and picked both dogs up. His wife Kristen came in to try and help but she was still screaming.
· It happened quickly and the dog’s legs were going crazy as he was holding it around the neck and eventually got it to let go of his dog ‘‘Lily’’ and ‘‘Lily’’ dropped to the ground.
· The Staffy was trying to bite him and it was going crazy.
· He still had it around the neck.
· He tried to put it on the ground but it used its legs to rear up and nearly bit him on the face and he picked it back up off the ground.
· He ran to the foot path holding the dog by the neck about chest high and was going to throw it onto the footpath and run and help his wife but when he got there, there was another dog there that he did not know. It was about 10 metres from the fence where the Staffy originally had ‘‘Lily’’ in its mouth.
· He did not throw the dog as he was concerned it might attack the other dog that was there. As this was happening his wife Kristen was screaming that she couldn’t get into the house[13]. His wife was screaming “I can’t get into the house.” and “I don’t have Beau.” (‘Beau’ is the Defendant’s and his wife’s other dog).
[13] The Defendant’s wife was locked out of the house as she did not take keys with her and the Defendant had the house keys with him in his pocket.
· He couldn’t secure the front yard as he was in the process of concreting under the carport and had not put the roller door on.
· He was looking for his other dog ‘Beau’ while he was on the front fence line.
· The entire incident took a maximum of one minute[14].
[14] Transcript, page 1-87, lines 15-18.
· He was holding the dog by the neck to stop it from biting him, it was really tense trying to squirm out of his grip. Kristen was screaming ‘‘Lily’’ has got blood on her, I can’t help her, and I can’t get in.
· He had the keys in his pocket and was worried about ‘‘Lily’’ so he ran to the shed to contain the Staffy by locking it in the shed. He was holding the dog out away from him (the dog was squirming and trying to bite him and he could feel it vibrating and grumbling in the chest). The shed door was latched open with the latch outside the shed. The shed door is 800 wide and the latch is on the very top corner. To unlatch the door he has to go outside the shed and reach up an unlatch it.
· He went into the shed took two big steps threw the dog although not far.
· He stepped backward and the dog landed on the floor and got up and shook and came straight at him, it was growling and showing its teeth. Just inside the shed was a sledgehammer he had been using for the concreting. He picked it up and swung it and hit the dog on the side of the head it an upward motion across his body. He hit it once.
· He didn’t have enough time to unlatch the door as the latch was on the outside of the shed. If he tried to close the door he was concerned the dog would bite him. Also their dog Beau that was still in the front yard somewhere.
· He had no intention to hit the dog with the hammer when he went to the shed. His intention was to lock it in the shed so he could contain it and make sure it didn’t get his dogs.
· His wife Kristen was screaming let me in. He looked at the dog, and it had blood on its face. He didn’t want it to bleed in the shed and he flicked it into the yard.
· He thought the dog was unconscious or dead.
· He ran to Kristen to let her in to the house and she was hysterical.
· Inside he took ‘‘Lily’’ from his wife and got a towel as ‘‘Lily’’ had blood on her side. He told his wife to call the vet as his wife had calmed down. She said they had to go to the emergency vet. He told her to wait with ‘‘Lily’’ and he would get the car ready. He wanted to make sure the Staffy wasn’t there to be a threat to his dog as he walked them to the car.
· He went to the car got it ready and ran back in and got his wife. When he went out to the car the dog was still there. They went to the vet and after going to the vet got a bottle of wine and it took about 45 minutes.
· When he returned home he could not see the staffy anywhere and said he did not dispose of the staffy.
· Since he has moved into his house he has at least 10 times picked up dog faeces from around his driveway of foot path.
Cross-Examination
· The whole incident took about a minute and he probably observed the dog with ‘‘Lily’’ in its mouth for about 10 seconds.
· The dog was thrashing around less when he was running to the shed.
· When he first picked it up it was thrashing around violently but less violently when he got to the shed.
· The Defendant was asked if the dog defecated itself and he said “It could have. I don’t know.”[15] He denied strangling the dog with his thighs to control it.
· When he threw the dog the thought it was unconscious or dead.
· The shed doors 800 wide and the latch is in the very top corner so he would have to go outside and stand beside the door to reach up to unlatch it. Their front door had an automatic deadbolt latch door.
[15] Transcript, page 1-99, line 35
KRISTEN MCGILL
The Defendants wife was born 5 March 1984 lives with her husband the Defendant. She is an Economist employed by the Department of Finance.
Kristen McGill said:-
· She took their dogs for a walk as her husband Andrew was busy preparing concrete for their carport.
· She went to the ovals at the back of their house but as it was really dark she didn’t go far.
· They had no front gate or roller door and she had to walk to the side of the shed because of the work being done.
· Both of her dogs were on leads.
· ‘‘Lily’’ was slightly behind her. She looked down and saw ‘‘Lily’’ was in the mouth of a white dog and there was a dark dog behind her a metre or so.
· She was between the shed and the fence about 6 to 8 metres from the property line she said she screamed help me, she was terrified as her dog ‘‘Lily’’ was in the mouth of a dog and she was on her own.
· She bent down to try and grab ‘‘Lily’’ but the other dog was shaking it like a rag doll.
· The Defendant came running around.
· He bent down, tried to grab the dog and pry the dog’s jaws off ‘‘Lily’’ but couldn’t. He then picked up the dog and it maintained a hold of ‘Lily’.
· The dog then let go of ‘Lily’. ‘Lily’ dropped to the ground and squealed and ran towards the house.
· ‘Lily’ ran to the front door and Kristen McGill was screaming to the Defendant “I can’t get in. I can’t get in. The doors locked”. She said something like “I don’t have Beau. I don’t know where Beau is. I can’t get in”. She tried to pick ‘Lily’ up but ‘Lily’ was yelping and then she screamed at the Defendant again that she couldn’t get in.
· From the time the dog had ‘Lily’ in its mouth and when the Defendant got her into the house it took about a minute, maybe two.
· The Defendant wiped blood off ‘Lily’ and he went outside to get the car ready and then came back and escorted us to the car.
CLAIRE STREETON
Claire Stretton is an Animal Welfare Inspector with the RSPCA Queensland. On 21 July 2017 with another Inspector, Summer Creely and Police Officers she attended the Defendant’s address to execute a search warrant. She took 78 photographs and put them in a book with the date 21 July 2017 on the front cover.[16]
[16] Tendered as part of Exhibit 2.
In her evidence she said:
· In photographs 17-20 it showed faecal stain on the driveway and also her obtaining a sample of the faecal stain. (There was not testing done on the faecal matter).
· She took sheets from the Defendant’s shed which she thought might be blood splatters (the sheets were taken but no testing was done on the sheets and there is no evidence there was blood on the sheets).
· At another time she obtained the consulting Vets consultation history of the examination of the dog ‘Lily’.[17]
· She obtained hairs from the back of the Defendant’s car but they were never tested.
· She said that on the sheet or sheets[18] it looked like there was dog faecal stain. (The stain on the sheet was not tested).
[17] Exhibit 3.
[18] See photograph 48 of Exhibit 2.
I will now consider the 3 questions the court must consider.
(i) Did the English Staffordshire Bull Terrier Defecate
The particulars of Charge One include the dog defecated.
I cannot be satisfied beyond a reasonable doubt that the Staffordshire Bull Terrier defecated.
The witness Benjamin Schardt saw faeces on the ground where the Defendant was holding it by its neck outside his yard but agreed that he inferred that the dog had defecated as he saw faeces on the ground near where the Defendant was standing with the dog.
The Defendant conceded that the dog may have defecated but did not give evidence that it did. He and his wife also gave evidence that in the area where he was with the dog outside his property that other animals had previously defecated on the driveway and foot path area and they had previously picked it up.
Even though the Defendant conceded it was possible the evidence is not sufficient for me to make a finding that the dog defecated.
(i) Was the Staffordshire Bull Terrier Unconscious When it was Hit With a Sledgehammer
There is no direct evidence that dog when taken into the shed was unconscious when it was hit with a sledgehammer.
The prosecution case is based on circumstantial evidence.
The vet Victoria Lomax said to render a dog unconscious by placing pressure on its neck it would take between one and two minutes.
The evidence relied upon by the prosecution is principally placed upon the observations of the witness Benjamin Schardt who said he saw no movement from the dog. However the witness Schardt said from the time he heard the woman scream and that he came upon the Defendant on the verge in front of his house when he observed the Defendant holding the dog by the neck was about 30 seconds.
In this time on the evidence of the Defendant, corroborated by his wife Kristen McGill, the following happened;-
· Kristen McGill the Defendant’s wife screams.
· The Defendant runs to his wife.
· The Defendant tries to open the dog’s jaws.
· He picks up the dog by the neck.
· The dog ‘Lily’ drops to the ground.
· The Defendant tries to put the dog down but he couldn’t as the dog used its legs to rear up and nearly bite him on the face.
· The Defendant picks the dog up by the neck again.
· The dog is thrashing.
· He goes 9 – 10 metres to the footpath or verge of his property.
· There is another dog there and he cannot put the dog down.
· He continues to restrain the dog by the neck.
Considering the time that it would take to render a dog unconscious by placing pressure on its neck and by the time Benjamin Schardt first saw the Defendant holding the dog by its neck would mean that the Defendant had hold of the neck for less than thirty seconds. Even though the Defendant may have successfully restrained the dog it would be difficult to draw an inference that at that time when Benjamin Schardt said the dog was limp to draw an inference the dog was unconscious.
Both the Defendant and Schardt say that the Defendant then walked quickly towards the shed.
Schardt says he saw no movement from the dog as the Defendant walked towards the shed but his view of the dog was blocked by the Defendant’s body.
The Defendant said that as he walked towards the shed the dog was not thrashing violently it was more stiff and when he arrived at the shed the dog was still squirming and trying to bite him and could feel the vibration and grumble in its chest.
The evidence of the Defendant is that the whole incident took about 1 minute and Benjamin Schardt when considering all of his evidence was similar in that the whole incident from the time of the scream until the Defendant came out of the shed was no more than 1 minute.[19] Again this would probably mean less than 1 minute but possibly as long as 1 minute that the Defendant had hold of the Staffy by the neck. The Vet said to render a dog unconscious by putting pressure on its neck could take 1 – 2 minutes, so it could be possible the dog could have been rendered unconscious.
[19] Transcript, page 1-51, line 30.
However I must consider the Defendants version of the events. He said he took the dog to the shed to contain it and inside he threw the dog a short distance and the dog shook and got to its feet and the dog came towards him. He said as he was walking quickly to the shed the dog was moving less but the dog was still squirming and he could feel rumbling in its chest.
He said he then realised he couldn’t contain the dog by closing the door as he would have to go out of the shed to and unlatch the door and close it. He said at that time his wife was still locked out and the dog ‘Beau’ was in the yard somewhere. He said it was then that he picked up the sledgehammer and hit the dog. The sledgehammer was at the door of the shed as he had been concreting.
Considering the time it would take to render a dog unconscious by squeezing it around its neck and the believable version given by the Defendant, the inference that the dog was unconscious is not the only rational inference. There is a reasonable possibility consistent with the Defendants version that the dog was not unconscious when he struck it in the head with a sledgehammer.
As I cannot make a finding that the only rational inference[20] that the dog was unconscious at the time it was struck with the sledgehammer I cannot be satisfied beyond a reasonable doubt that the dog was unconscious when it was struck with the sledgehammer as particularised by the Prosecution.
(i) Did the Defendant Cause the Death of the Staffordshire Bull Terrier
[20] See District and Supreme Court Bench Book No.48.1.
Charge Two is that the Defendant wilfully unlawfully killed the dog.
There is no direct evidence that the dog was killed. The owner Jake Cawley looked extensively for the dog but it was never found.
The prosecution case is based on circumstantial evidence and is based on the evidence of the observations of the witness Benjamin Schardt, the opinion of the vet and observations of the the RSPCA Animal Welfare Inspector Claire Stretton, who found a sheet in the Defendant’s shed.
The witness Benjamin Schardt said that when the Defendant came out of the shed holding the sledgehammer in one hand he could see the dog dangling from the Defendants other hand. He said the Defendant heaved the dog’s motionless body and the dog bounced, rolled to a stop on its back, its mouth open and tongue rolling outside of its mouth and its eyes were open.
The vet Victoria Lomax said if the dog had been rendered unconscious and then hit with a sledgehammer the likelihood of its recovering consciousness is very unlikely. However the Vets opinion is based on the dog being unconscious when the dog was hit which I cannot be satisfied it was unconscious. The vet’s opinion in this regard is therefore of little weight in deciding if the dog was dead at anytime.
The Defendant said that he thought the dog was unconscious or dead. He said after he had gone inside and got his wife and his dogs and taken them to the car the dog was still there in the yard but when he and his wife returned from the vet about 45 minutes later the dog was gone. He said he did not dispose of the dog.
Benjamin Schardt said when he looked from his balcony about 10 minutes after leaving the Defendants property he could see into the yard where the dog’s body had been and it was gone.
For the court to make a finding that the dog was dead it must be the only rational inference available. When considering all the evidence, particularly that the dogs body was never found, the Defendant was a believable witness and the dog was no longer in the spot that the witness Benjamin Schardt had seen it lying some 10 minutes after it had been thrown out of the shed I cannot be satisfied beyond a reasonable doubt that the dog was killed by the Defendant.
FINDINGS OF FACT
After considering the evidence I make the following findings of fact:-
The neighbour Benjamin Schardt heard the panicked scream of a woman.
The Defendant heard his wife give a blood curdling scream.
The Defendant ran from his shed to his wife and saw a Staffordshire Bull Terrier holding their dog ‘Lily’ in its mouth and was shaking it.
His wife was screaming hysterically ‘help me’.
He grabbed the Staffordshire Bull Terrier and tried to stop it shaking his dog but its legs were braced.
His dog ‘Lily’ was yelping.
He grabbed the Staffordshire Bull Terrier by the head and tried to open the dogs top and bottom jaw but the Staffordshire Bull Terrier squeezed harder.
The dog ‘Lily’ yelped louder.
He grabbed the Staffordshire Bull Terrier around the neck and picked it up by its neck. Eventually it let go of ‘Lily’, and ‘Lily’ dropped to the ground.
The Staffordshire Bull Terrier was trying to bite the Defendant and it was thrashing around.
The Defendant tried to put the Staffordshire Bull Terrier on the ground but it used its legs to rear up and nearly bit the Defendant on the face.
The Defendant picked the Staffordshire Bull Terrier back up by the neck.
The Defendant ran to the footpath intending to release the dog onto the footpath but when he got there there was another dog there so he didn’t release the dog onto the footpath.
During this time the Defendant’s wife was screaming “I can’t get into the house” and “I don’t have Beau”.
The witness Benjamin Schardt saw the Defendant holding the Staffordshire Bull Terrier by the neck and exerting force.
It took about 30 seconds from the time of the scream until Benjamin Schardt saw the Defendant holding the Staffordshire Bull Terrier by its neck.
The Defendant’s wife was locked out of the house and the Defendant had the house keys in his pocket.
The Staffordshire Bull Terrier was squirming in the Defendant’s grip and was moving and he could feel it vibrating and grumbling in the chest.
The Defendant walked quickly to his shed in his yard intending to contain the Staffordshire Bull Terrier by locking it in his shed.
He went into his shed took two big steps and threw the Staffordshire Bull Terrier.
He stepped backwards the Staffordshire Bull Terrier landed on the floor got up and came straight at him it was growling and showing its teeth.
To shut the door of the shed the Defendant would have to go outside the shed and reach up and unlatch an 800mm wide door. The Defendant was concerned if he stepped outside to unlatch the door he may not have been able to contain the Staffordshire Bull Terrier.
Just inside the shed was a sledgehammer the Defendant picked it up and swung it and hit the Staffordshire Bull Terrier on the side of the head in an upwards motion.
He thought the Staffordshire Bull Terrier was unconscious or dead.
He threw the Staffordshire Bull Terrier into the yard and it was motionless rolling to a stop on its back paws up, mouth open and tongue rolled to the side of its mouth and its eyes were open.
The Defendant opened the front door of his house and allowed his wife Kristen McGill and dog ‘Lily’ into the house. His wife rang the Vet and the Defendant went and got the car ready. When he went out to the car with his wife and dogs the Staffordshire Bull Terrier was still there.
He was away for about 45 minutes and when he returned the Staffordshire Bull Terrier was gone.
THE LAW
The Defendant is charged with offences under the Animal Care and Protection Act 2001(ACPA) and section 468(1) of the Criminal Code.
Section 18 of the Animal Care and Protection Act 2001 provides:
“Section 18 -Animal Cruelty Prohibited
(1) A person must not be cruel to an animal.
Maximum penalty – 2000 penalty units or 3 years imprisonment.”
(2)Without limiting subsection (1), a person is taken to be cruel to an animal if the person does any of the following to the animal—
(a)causes it pain that, in the circumstances, is unjustifiable, unnecessary or unreasonable;
(b)beats it so as to cause the animal pain;
(c)abuses, terrifies, torments or worries it;
(d)overdrives, overrides or overworks it;
(e)uses on the animal an electrical device prescribed under a regulation;
(f)confines or transports it—
(i)without appropriate preparation, including, for example, appropriate food, rest, shelter or water; or
(ii)when it is unfit for the confinement or transport; or
(iii)in a way that is inappropriate for the animal’s welfare; or
Examples for subparagraph (iii)—
•placing the animal, during the confinement or transport, with too few or too many other animals or with a species of animal with which it is incompatible
•not providing the animal with appropriate spells
(iv)in an unsuitable container or vehicle;
(g)kills it in a way that—
(i)is inhumane; or
(ii)causes it not to die quickly; or
(iii)causes it to die in unreasonable pain;
(h)unjustifiably, unnecessarily or unreasonably—
(i)injures or wounds it; or
(ii)overcrowds or overloads it.”
Section 468(1) of the Criminal Code provides:
“Section 468 - Injuring Animals
(1) Any person who wilfully and unlawfully kills, maims, or wounds, any animal capable of being stolen is guilty of an indictable offence.”
Defences
The Defendants submits, amongst other things, that the Defendant has available in respect of both offences, the defence of property pursuant to section 458(4) of the Criminal Code and the defence of emergency pursuant to section 25 of the Criminal Code.
I accept both of the Criminal Code defences are available to offences against the Animal Care and Protection Act (ACPA).[21]
[21] See Exhibit 6 written Outline of Submission on behalf of the Defendant, paragraph [3].
The defence provisions provide as follows:-
“Section 458 – Unlawful Acts of the Criminal Code
(4) A person is not criminally responsible for an injury caused to property by the use of such force as is reasonably necessary for the purpose of Defendant or protecting himself, herself, or any other person, or any property, from injury which the person believes, on reasonable grounds, to be imminent.”
“Section 25 - Extraordinary Emergencies of the Criminal Code
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”
Application of the Law
I consider that on the evidence the Defendant has raised the defence of extraordinary emergency pursuant to section 25 of the Criminal Code[22].
[22] I consider the Defendant has also raised the excuse or defence pursuant to s458 Criminal Code but it is not necessary for me to consider it in deciding the matter.
The Bench Book direction on the defence of emergency is:-
“A person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.
It is not for the Defendant to prove that he acted as he did because of the stress of a sudden [extraordinary] emergency. It is for the prosecution to satisfy you beyond reasonable doubt that he did not. Has the prosecution satisfied you that the circumstances which confronted the Defendant did not amount to a sudden [extraordinary] emergency? If it has, you do not need to consider this issue further.
If the prosecution has not satisfied you that the defendant was not acting under the stress of a sudden extraordinary emergency, are you satisfied beyond reasonable doubt that his reaction in the circumstances was outside what you could reasonably expect of an ordinary person with ordinary powers of self control? A person in a sudden [extraordinary] emergency may make a wrong choice. But you must look at the situation as it presented itself on the moment. The defendant is not expected to be wiser or better than an ordinary reasonable person in the same circumstances; and you will appreciate that a person in an emergency cannot always weigh up and deliberate about what action is best to take. He must act quickly and do the best he can. If you consider that an ordinary person with ordinary powers of self control could not reasonably have been expected to act differently, or if the prosecution has not satisfied you beyond reasonable doubt of the contrary, you must acquit.
There is an evidential onus on the Defendant to raise whether the acts done by him where under the circumstances of a sudden or extraordinary emergency but the onus of excluding the operation of the excuse is on the Prosecution.
In Berbic v Steger [2005] QDC His Honour Judge Magill said:-
“Section 25 raises two issues, whether there is relevantly an extraordinary emergency, and, if so, whether an ordinary person possessing an ordinary power of self-control could not reasonably be expected to act other than as the Defendant did act”.
His Honour Judge Magill also commented on how serious an emergency must be:-
“Presumably, it must be more often than an ordinary emergency, and something which one would not expect to occur very often”.[23]
[23] Paragraph [14].
And further
“…the degree of emergency which would be capable of excusing criminal conduct under this section must, in my opinion, be related to the seriousness of the criminal conduct involved”.[24]
WAS THERE AN EXTRAORDINARY EMERGENCY
[24] Paragraph [17].
Charge One is particularised as squeezing the dog by its neck forcefully with both hands until it defecated, that is, the squeezing of the dog’s neck up until the time the Defendant was on the verge or footpath. The circumstances were that the Defendant heard his wife scream, it was dark and he ran to his wife and he saw his dog being attacked by a Staffordshire Bull Terrier. He tried to pry the jaws of the Staffordshire Bull Terrier open but could not. He picked the Staffordshire Bull Terrier up by the neck and eventually the Staffordshire Bull Terrier let go of his dog. At this time his wife was screaming and as he put the Staffordshire Bull Terrier on the ground it braced its legs and tried to bite him. He picked it up by the neck intending to take it out to the verge or footpath and release it. However when he got there, there was another dog he did not know on the verge or footpath and he was concerned if he released the Staffordshire Bull Terrier it might attack that dog. He continued to hold the Staffordshire Bull Terrier by the neck and apply pressure to its neck overpowering it.
Considering the questions of proportionality to the offence and whether an extraordinary emergency as would be an emergency one would not expect to occur very often, I consider as a question of fact that the acts done by the Defendant for Charge One were under circumstances of a sudden or extraordinary emergency. That is the dog attack and the circumstances of this attack as I have detailed above would be a sudden or extraordinary emergency. It was an emergency one would not expect to occur very often.
When considering Charge Two I must consider all of the facts, that is I must consider from the beginning of the incident, including the facts relating to Charge One and then the facts that arose after the Defendant decided not to release the Staffordshire Bull Terrier onto the footpath or verge and he continued to control it by holding it by its neck and exerting force.
The Defendant decided he would take the dog to the shed and lock it in the shed. At this time his wife was still locked outside the house and his dog ‘Beau’ was missing. He continued to hear his wife scream these things. He said he ran to the shed holding the dog by its neck, he said he was overpowering the dog, it was struggling less although it was still squirming and he could feel grumbling in its chest. His intention was to lock the dog in the shed. He said that as he threw the dog into the shed, it shook itself and faced him and bared its teeth. He thought the dog might bite him and at the same time his wife was outside and his other dog was still missing.
He believed he would not have time to go out of the shed and reach up and unlatch the door in sufficient time to shut the door to contain the dog.
I consider that at this time when he picked up the sledgehammer and the degree of emergency and relating it to the seriousness of the criminal conduct involved I consider the Defendant on the evidence has discharged the onus of raising sudden or extraordinary emergency.
WHETHER AN ORDINARY PERSON POSSESSING ORDINARY POWERS OF SELF-CONTROL COULD NOT REASONABLY BE EXPECTED TO ACT OTHER THAN AS THE DEFENDANT DID ACT
The Prosecution case is principally that there was available to the Defendant a reasonable alternative course of action. The Prosecution called the Vet, Victoria Lomax who said that if the dog had been grabbed by the collar “… none of this would have happened”.[25] The Prosecutor might also say that the Defendant should have sought the assistance of the neighbour Benjamin Schardt.
[25] Transcript, page 1-59, line 35.
However I consider the proper approach to be that as stated by Judge Magill in Berbic v Steger:
“..it seems to me that to use the expression “could not reasonably be expected” means that, in order to negative the defence, the tribunal of fact must be satisfied beyond reasonable doubt that in such circumstances the ordinary person could reasonably be expected to act otherwise. Accordingly, if in such circumstances it was reasonable to expect that an ordinary person with ordinary powers of self-control could have acted as the accused did, the defence would not have been excluded”.[26]
[26] Paragraph [17].
I consider the ordinary person in the circumstances of the Defendant that is, he was faced with a dog attack by a Staffordshire Bull Terrier on his dog, he could not release the dogs jaws, his wife was screaming and locked out of the house and one of his dogs was missing and when he tried to put the dog on the ground it tried to bite him and weighed against the seriousness of the offence and the seriousness of the conduct I consider an ordinary person in the circumstances could have acted as the Defendant did by holding the dog by the neck and forcefully squeezing the neck. The Prosecution has not satisfied me beyond a reasonable doubt that a defence under section 25 was not available to the Defendant in respect of Charge One.
Regarding Charge Two having raised sudden or extraordinary emergency I must consider whether it was reasonable to expect that an ordinary person with ordinary powers of self-control would have acted as the Defendant did.
Hitting a dog in the head with a sledgehammer would be unlawful however the Defendant acted on the sudden, the sledgehammer was there when he believed he would not have time to close the door so as to contain the dog or stop it from attacking him. I consider the circumstances the Defendant was faced, a reasonable person with ordinary powers of self-control could have picked up the sledgehammer and swung it at the dog to stop it from attacking him or leaving the shed. The Prosecution has not satisfied me beyond a reasonable doubt that a defence under section 25 was not available to the Defendant in respect of Charge Two.
CHARGE ONE - DECISION
Charge One is particularised that the Defendant terrified the dog by squeezing its neck forcefully with both hands until it defecated by holding the dog by the neck and forcefully squeezing the neck.
The failure of the Prosecution to prove its case as particularised is fatal to the Prosecution case. For this reason I find the Defendant not guilty for charge One.
Even though I can decide the matter for this reason alone I have also considered whether the Defendant has the defence of sudden or extraordinary emergency. In considering whether or not the Defendant was cruel to the dog by terrifying it by squeezing its neck forcefully as I have stated the Prosecution has not satisfied me beyond a reasonable doubt that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act other than the Defendant did act when he held the dog by the neck. For this reason also I find the Defendant not guilty of Charge One.
CHARGE TWO - DECISION
Charge Two is that the Defendant wilfully and unlawfully killed the Staffordshire Bull Terrier particularised that he caused the death of the dog by hitting it with a sledgehammer.
I have been unable to make a finding of fact that the Defendant killed the Staffordshire Bull Terrier when he hit it with a sledgehammer. Charge Two is particularised that the Defendant cause the death of the dog by hitting it with a sledgehammer.
The failure by the prosecution to prove its case as particularised is fatal to the prosecution case. For this reason I find the Defendant not guilty of Charge One.
If I were able to make that finding the Defendant killed the dog or if I’m wrong in not making the finding, I will consider if the Defendant has the defence of emergency when he struck the head of the Staffordshire Bull Terrier with the sledgehammer.
In considering whether or not the Defendant caused the death of the dog by hitting it in the head with a sledgehammer the Prosecution has not satisfied me beyond a reasonable doubt that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act other than as the Defendant did when he struck the Staffordshire Bull Terrier in the head with a sledgehammer.
For this reason also I would find the Defendant not guilty of Charge Two.
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