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Ryde City Council v Pedras

Ryde City Council v Pedras

Case [2009] NSWCCA 248 28 September 2009

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New South Wales
Court of Criminal Appeal

CITATION: Ryde City Council v Pedras [2009] NSWCCA 248

HEARING DATE(S): 29 May 2009

JUDGMENT DATE:
28 September 2009

JUDGMENT OF: Giles JA at 1; Buddin J at 35; Harrison J at 36

DECISION: 1. Dismiss the applications to strike out and to add a question to the stated case.
2. Answer the questions in the stated case as follows:
(1) Did I err in law in the construction of s 13(2)(b) in finding that a person not present at the time of the events was "in charge of the dog at that time"?
On the understanding of the question set out in these reasons, yes.
(2) Did I err in law in interpreting s 13(2) of the Act by finding that the Defendant (owner of the dog), on the facts fully found, was not guilty of an offence against s 13(2).
Not answered.
(3) Did I err in law in awarding the Defendant his costs for his personal time (not limited to his reasonable out-of-pocket expenses)?
Yes.
3. Set aside the orders dismissing the charge and awarding costs to the defendant.
4. Remit the matter to the District Court for disposal in accordance with law.

CATCHWORDS: CRIMINAL LAW – stated case – Companion Animals Act 1998 s 13 – where defendant's dog in a public place not under the effective control of some competent person - where neither the owner of the dog nor another person was present – defendant convicted in the Local Court – conviction set aside on appeal to the District Court - whether District Court judge erred in his interpretation of the section – whether questions of law submitted for determination - whether stated case bad in form and amenable to being struck out – whether case as stated could have additional question added for determination as a question of law "arising on any appeal to the District Court" in accordance with s 5B(1) of the Criminal Appeal Act 1912 – whether form of the Penalty Infringement Notice meant that there was no jurisdiction to determine the case in the District Court on appeal from a magistrate – whether award of costs to defendant to compensate for his time or lost income was erroneous – questions answered – matter remitted to District Court for disposal according to law

LEGISLATION CITED: Companion Animals Act 1998
Companion Animals Amendment Act 2001
Companion Animals Regulation 2008
Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912
Fines Act 1996
Road Transport (General) Act 2005
Road Transport (General) Regulation 2005

CATEGORY: Principal judgment

CASES CITED: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Castlebar Holding v Riley [2005] NSWCCA 105
CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384
Creak v Hornsby Shire Council [2007]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ryde City Council v Pedras

Details

AGLC: Ryde City Council v Pedras [2009] NSWCCA 248
Case: [2009] NSWCCA 248
Decision Date: 28 September 2009

CaseChat Overview and Summary

The matter before the court involved Ryde City Council and Pedras, who was charged under the Companion Animals Act 1998 for having his dog in a public place without effective control by a competent person. The case was initially heard in the Local Court, where Pedras was found guilty and convicted. This conviction was later appealed to the District Court, which set aside the conviction. The central legal issues for the court to decide were whether the District Court judge had correctly interpreted the relevant section of the Companion Animals Act, whether the questions of law submitted for determination were valid, and whether the stated case was properly formed and open to being struck out. Additionally, the court had to consider if the form of the Penalty Infringement Notice precluded the District Court from hearing the appeal, and if the award of costs to Pedras was justified.

The court delved into the interpretation of the Companion Animals Act, specifically section 13, and examined the District Court judge's understanding of the statutory requirements. It was determined that the District Court judge had erred in his interpretation, leading to the setting aside of the conviction. The court also assessed the form of the stated case and the questions of law, concluding that the stated case was not inherently flawed and could include additional questions of law as per section 5B(1) of the Criminal Appeal Act 1912. Furthermore, the court ruled that the form of the Penalty Infringement Notice did not impede the District Court's jurisdiction over the appeal. Lastly, the court found that the award of costs to Pedras was appropriate given the circumstances.

In light of these findings, the court answered the submitted questions, finding that the District Court judge had indeed erred in his interpretation of the relevant statutory section. The matter was remitted back to the District Court for further proceedings in accordance with the law. The court did not order any specific costs to be paid by either party, as it was deemed appropriate for the District Court to address this matter upon the case's return.

Orders