Schmidt v Newsom
[2016] VSC 249
•19 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06807
| JOHN SYDNEY SCHMIDT | Plaintiff |
| v | |
| JOHN NEWSOM | First Defendant |
| and | |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 April 2016 |
DATE OF JUDGMENT: | 19 May 2016 |
CASE MAY BE CITED AS: | Schmidt v Newsom & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 249 |
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JUDICIAL REVIEW – Application for review of County Court decision – Plaintiff convicted of failing to produce an animal pursuant to s 76(1)(b)(ii) of the Domestic Animals Act 1994 (Vic) – Whether charge valid – Criminal Procedure Act 2009 ss 5, 6(1), 6(3), Schedule 1 – Whether s 76(1)(b)(ii) of the Domestic Animals Act 1994 ambulatory in its effect – Woolworths (Victoria) Pty Ltd v Marsh (Unreported, Ormiston J, 12 June 1986) and Director of Public Prosecutions v Kypri (2011) 33 VR 157 cited – Application refused.
PRACTICE AND PROCEDURE – Pleadings – Application to amend grounds in Originating Motion – Application made during oral submissions at trial – Plaintiff had had time and opportunity to consider and amend the ground – Proposed additional ground weak – Proposed additional ground would create considerable complexity in proceeding – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Billings with Mr A Murdoch (solicitor) | Patten Robins Lawyers |
| For the First Defendant | Mr P Connor | Maddocks Lawyers |
| No appearance for the Second Defendant |
HIS HONOUR:
Introduction
On 8 April 2011 the plaintiff was charged by the first defendant, who was acting in his capacity as informant, with six offences under the Domestic Animals Act 1994 (Vic) (‘the Act’). In a defended proceeding in the Magistrates’ Court on 14 March 2013 the plaintiff was found guilty on Charges 2 and 6. The plaintiff appealed those convictions to the County Court. On 23 October 2014, at a hearing before that court, Charge 2 was dismissed and a conviction recorded in respect of Charge 6, which alleged a failure by the plaintiff to produce an animal upon the request of an authorized Council officer pursuant to s 76(1)(b)(ii) of the Act.
The plaintiff now brings an application for review of the County Court judgment, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). By Amended Originating Motion dated 17 June 2015, the plaintiff seeks orders quashing the conviction on Charge 6 and dismissing the charge.
The two issues raised by the plaintiff’s grounds in the Amended Originating Motion dated 17 June 2015 are:
(a) Whether Charge 6 was defective because it omitted one or more of the essential ingredients of the offence (Grounds (a) and (b) in the Amended Originating Motion); and
(b) Whether there were, in addition to the s 76(1)(b)(ii) elements of the offence, other facts which were required to be established to sustain the offence, but in respect of which proof and/or findings were absent (Ground (c) in the Amended Originating Motion).
Background[1]
[1]These background facts are recorded in the ruling of the County Court judge, delivered 23 October 2014.
On the evening of 10 February 2011, the plaintiff took a black German shepherd dog named ‘Night’ to the Ashwood College ovals. A number of other dog owners, with their respective dogs, were also present, apparently for the purpose of allowing their dogs to exercise and run in the parklands. Several of the dogs were off leash. One of those dogs was ‘Mathilda’, a Maltese/Shih Tzu cross belonging to Mr and Mrs Arnott.
An incident occurred involving Mathilda on the one hand and Night and Mr Schmidt on the other. By Charge 2 the first defendant, who is the informant on each of the six charges, alleged that Night bit Mathilda causing serious injury. The details of that incident have been disputed and remained, in the judgment of the trial judge, unclear.
After the incident and following a verbal exchange with Mr and Mrs Arnott, the plaintiff left the area with Night without providing any personal details to the Arnotts.
Following the incident, Mathilda appeared to Mr and Mrs Arnott to be injured. They took Mathilda to an animal emergency centre, where Mathilda was found to be suffering fractured ribs, bruising to the ribcage area and a puncture mark to the skin adjacent to the fractures.
On 11 February 2011 the Arnotts reported the dog attack on Mathilda to the City of Monash by‑laws authorities. On 28 February 2011, after receiving information from a member of the public as to the possible identity of the dog which had caused Mathilda’s injuries, three Council officers, Mr Wisdom, Mr De Alwis and Mr Grieg, attended the plaintiff’s property. They had in their possession a notice to seize Night.
Mr De Alwis and Mr Grieg were both authorised officers pursuant to Part 7 of the Act. Section 81(2)(b) of the Act enables an authorised officer to seize a dog if ‘the authorised officer reasonably suspects that a person has committed an offence under s 29 with respect to that dog.’ A number of potentially relevant offences are created by s 29. It appears from the seizure notice that on this occasion the Council suspected that the plaintiff had committed an offence pursuant to s 29(3) of the Act, which provides, inter alia, that a person in apparent control of a dog which bites another dog, causing serious injury, is guilty of an offence.
The exact manner in which events unfolded, when the three officers attended the plaintiff’s premises on 28 February 2011, was the subject of dispute in the County Court. Mr Wisdom’s evidence, which appears to have been accepted by the trial judge, was to the following effect:
(a) Mrs Schmidt answered when Mr Wisdom first knocked on the door, and he then saw the dog Night inside the plaintiff’s residence;
(b) Mr Wisdom then introduced himself, Mr De Alwis and Mr Grieg to Mrs Schmidt;
(c) The plaintiff then came to the front door and was told that the officers were there to seize the dog Night. In particular, Mr Grieg informed the plaintiff, ‘I’m requesting that you hand over the dog’, to which the plaintiff responded, ‘No’.
At no point during this interaction was Night brought out from within the property by the plaintiff and shown to, or made available for inspection by, the officers.
Procedural history
As stated, the applicant was charged with six different offences under the Act relating to the alleged dog attack, including a charge under s 29(3) alleging that the applicant was in apparent control of the dog Night that bit another dog (Mathilda) causing serious injury (Charge 2) and a charge alleging that when asked by an authorised officer the plaintiff failed to produce Night (Charge 6).
The charges were brought on for hearing before the Magistrates’ Court on 13 February 2012. The hearing occupied 15 days. The plaintiff pleaded not guilty in respect of all charges. Charges 2 and 6 were found proved, with the remaining four either dismissed or struck out. In respect of Charge 2, the plaintiff was fined $1,000 without conviction, and ordered to pay $1,177.20 in compensation as well as $40,800 in costs. In respect of Charge 6, the plaintiff was fined $300 without conviction.
The plaintiff lodged an appeal against conviction in the County Court, the hearing of which commenced on 25 June 2014. The hearing occupied 14 days, with judgment ultimately delivered on 23 October 2014. The appeal was allowed in respect of Charge 2, and that charge was dismissed. The learned trial judge found Charge 6 proven and reinstated the sentence imposed in the Magistrates’ Court, reserving costs with liberty to apply.
On 22 December 2014 the plaintiff applied to this Court, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), seeking judicial review of the decision of the judge of the County Court. The named defendants are John Newsom (the informant in respect of the original charges laid against the plaintiff), and the County Court of Victoria. The latter party, as is its practice, has adopted a ‘Hardiman’ position and takes no active part in the proceeding.[2]
[2]See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
Legislative provisions
Given the grounds in the Amended Originating Motion and the arguments raised for the plaintiff, it is necessary to set out various sections of the Act.
76 Offences relating to authorised officers
(1) A person must not—
…
(b)when asked by an authorised officer—
…
(ii)refuse, or fail without reasonable excuse to produce a document or animal …
81 Seizure of dog urged or trained to attack or having attacked
…
(2)An authorised officer of a Council may seize a dog that is in the municipal district of that Council if—
…
(b)the authorised officer reasonably suspects that a person has committed an offence under section 29 with respect to that dog.
29 Offences and liability relating to dog attacks
…
(3)If a dog that is not a dangerous dog or a restricted breed dog, attacks or bites any person or animal and causes death or a serious injury to the person or animal, the person in apparent control of the dog at the time of the attack or biting, whether or not the owner of the dog, is guilty of an offence and liable to a penalty not exceeding 40 penalty units.
In the charge sheet served on the plaintiff, Charge 6 is in the following terms:
[That the plaintiff] at Ashwood on the 28th February 2011 did fail without reasonable excuse when asked by an authorised officer of Council to produce an animal being a German shepherd type dog known as Night which was lawfully able to be seized by Council.
Validity of the charge laid pursuant to s 76(1)(b)(ii) of the Act
Pursuant to s 5 of the Criminal Procedure Act 2009 (‘CPA’), a criminal proceeding is commenced, relevantly, by filing or signing a charge sheet in accordance with s 6 of that Act. Subsections 6(1)(a) and 6(3) require a charge sheet in writing and signed by the informant to be filed with a registrar of the Magistrates’ Court, and to comply with Schedule 1 of the CPA. The Schedule 1 requirements include that a charge must:
·state the offence that the accused is alleged to have committed; and
·contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
Schedule 1 also requires that if a rule of law or a statute limits the particulars that are required to be given in a charge, it need not contain more particulars than those required.
Clause 3(2) of Schedule 1 provides, with respect to a statutory offence, that a statement of the offence sufficiently states the offence allegedly committed if it identifies the provision, and describes the offence in the words of the provision creating the offence or in similar words.
Section 9 of the CPA states that a charge sheet is not invalid by reason only of a failure to comply with Schedule 1.
To be valid, a charge must contain the essential elements of the actual offence.[3]
[3]Johnson v Miller (1937) 59 CLR 467; 489–90; Ex parte Lovell; Re Buckley (1938) SR (NSW) 153, 173; Woolworths (Victoria) Ltd v Marsh (Unreported, Supreme Court of Victoria, Ormiston J, 12 June 1986), 5–6 (‘Woolworths’); Director of Public Prosecutions Reference No 2 of 2001 (2001) 4 VR 55, 61–2 [18]–[19].
Woolworths concerned prosecution under s 98 of the Labour and Industry Act 1958, pursuant to which a person ‘who fails or neglects to close his shop in accordance with this Part …’ commits an offence. Referring to that offence, Ormiston J noted:
[T]he description of the offence contained in the section is in general and ambulatory terms, in the sense that the offence consists in the failure or neglect to close the shop ‘in accordance with this part’.[4]
[4]Woolworths (Unreported, Supreme Court of Victoria, Ormiston J, 12 June 1986), 6.
By the information in Woolworths, the defendant was charged with failing or neglecting to keep its shop closed from the hour of 5.30 pm ‘… in contravention of the provisions of the Labour and Industry Act 1958.’[5]
[5]Ibid 1.
Referring to the confusion caused by an information in those terms, Ormiston J said:
Such confusion indicates that the information was defective in a number of ways which the applicant contended before this court, in that it was ambiguous and arguably duplex and in that it certainly left the defendant to the information in a state of uncertainty as to the precise nature of the charge brought against it. This uncertainty, manifest on the face of the information, is sufficient to invalidate the information and the finding that the alleged offence was proved by the magistrate.[6]
[6]Ibid 10.
Later, discussing the requirements of an information based on a statutory provision such as s 98 of the Labour and Industry Act 1958, Ormiston J stated:
The present section is little different, except that it identifies the activity as failing or neglecting to close the shop, but it refers generally to Part VI of the Act and to a variety of different requirements, many of which are difficult to understand or construe. A person charged under this Part, as under any legislation, is entitled to be informed with precision what specific contravention is relied upon by the informant.[7]
[7]Ibid 15–16.
In DPP (Vic) v Kypri,[8] the Court of Appeal was concerned with a charge under s 49(1)(e) of the Road Safety Act 1986, of refusing ‘to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A) …’ of that Act. Nettle JA noted that:
… s 49(1)(e) creates as many different offences (of failing to comply with a requirement under s 55) as there are different kinds of requirements under s 55.
It being so, the proper characterisation of an act which comprises an offence under s 49(1)(e) is one of failure to comply with a particular kind of requirement under s 55. It follows that, in order to identify the act which comprises the offence, it is necessary to identify the particular kind of requirement under s 55 with which it is alleged that there was non‑compliance. Hence, it is an essential element.[9]
[8](2011) 33 VR 157 (‘Kypri’).
[9]Ibid 162 [11]–[12].
Grounds (a) and (b)
In support of Grounds (a) and (b) in the Amended Originating Motion, counsel for the plaintiff argued that the offence created by s 76(1)(b)(ii) was ambulatory in nature. This meant, it was argued, that there were essential elements of that offence going beyond s 76 itself, which were to be found in other provisions of the Act. Because Charge 6 did not contain all of the essential elements of the offence with which the first defendant sought to charge the plaintiff, the charge itself was invalid, and the conviction based on that charge was bad.
In the circumstances of this case, plaintiff’s counsel argued, the essential elements of Charge 6 included that the person who made the request for production of Night had to be an authorised officer under the Act, that they had to have the power to seize Night under Part VIIA, and that the seizure power must have been lawfully exercised in accordance with s 81. In a written outline of submissions on behalf of the plaintiff dated 18 February 2016, his counsel stated that the essential elements of the Charge 6 offence were:
(i) that the accused person;
(ii) at a time and place identified;
(iii) was asked by an authorised officer;
(iv) to produce a German shepherd dog known as Night;
(v)the authorised officer having a reasonable suspicion pursuant to s 81(2)(b) of the Act that the plaintiff had committed an offence under s 29 with respect to Night;
(vi) the plaintiff failed;
(vii) without reasonable excuse;
(viii) to produce Night.
The plaintiff argued that the provisions of the CPA, in particular s 6(3) and Schedule 1, did not alter the requirements for validity of the charge.[10]
[10]The plaintiff relied on Alwer v McLean (2000) 32 MVR 125, 128 [17]; Walters v Magistrates’ Court of Victoria [2015] VSC 88; Glenister v Magistrates’ Court of Victoria [2014] VSC 265; and Woolworths (Unreported, Supreme Court of Victoria, Ormiston J, 12 June 1986), 12–13, 15.
In oral submissions for the plaintiff, the argument was put in the following way:
There can be in our respectful submission no right under [section] 76(1)(b)(ii) to simply make a request [to produce an animal] without some form of power properly exercised, drawn from some other aspect or explanation or some other aspect of the Act.
In this case, it was argued that what was relied upon by the authorised officers in making the request that Night be produced was the power under s 81 of the Act to seize the dog Night. The s 81 requirements therefore became essential elements of the offence, which had to be included in the information. The failure to do so meant that the information told the plaintiff nothing. Unless one read into s 76 the proposition that it covered other offences, it did not make sense. Because the purpose of the attendance of the officers at the plaintiff’s premises on 28 February was to seize Night, it would, so it was contended, be absurd to look at s 76(1)(b)(ii) on its own, and without reference to the s 81 elements.
Counsel for the plaintiff therefore argued that as the information did not contain these essential ingredients of the offence, it was invalid, and the conviction based upon it bad.
In my view, the arguments put for the plaintiff in support of grounds (a) and (b) should be rejected. Charge 6 clearly contained the elements of the offence specified in s 76(1)(b)(ii). Mr Billings did not argue otherwise. Therefore, Charge 6 would only be invalid if there were essential elements or ingredients of the offence which were not found in s 76 but were found elsewhere in the Act.
Woolworths[11] and Kypri[12] deal with examples of legislative provisions creating offences which are ambulatory in nature. In each case, the offence created by the relevant statutory provision consisted of the failure to comply with one of a number of requirements found elsewhere in a particular Act. As a consequence, that requirement or those requirements became essential elements of the offence, which needed to be included in the charge.
[11](Unreported, Supreme Court of Victoria, Ormiston J, 12 June 1986).
[12](2011) 33 VR 157.
That is not the case here. The contrast between s 76 and the legislative provisions with which the court was concerned in Woolworths and Kypri is clear. As counsel for the first defendant put it, s 76 is self‑contained. Only one offence is created by s 76(1)(b)(ii), being the failure to produce the animal as required by that section. The offence is not ambulatory in nature. No reference is made in s 76 to requirements found elsewhere in the Act, one or more of which is necessary to complete the offence.
Charge 6 complies with s 6 and Schedule 1 of the CPA, and made plain to the plaintiff precisely the offence with which he was charged. The charge contains the essential elements of the offence created by s 76(1)(b)(ii) of the Act, and is valid.
Ground (c)
In relation to ground (c), counsel for the plaintiff argued that in this particular case there were facts, beyond the elements of the offence contained in s 76, which the prosecution was obliged to establish as part of the proof of the offence. Because the trial judge had determined that findings of such facts were not necessary to establish the offence, or had failed to make necessary findings, reviewable error had occurred.
The plaintiff, in written and oral submissions, developed the ground (c) argument as follows. First, it was common ground that the three Council officers attended the plaintiff’s premises on 28 February 2011 with the intention of seizing the dog Night. The prosecution were therefore relying on an interpretation of the requirement to produce the animal as being a requirement that the plaintiff hand over Night to be seized by the officers.
Second, the power to seize an animal is to be found in s 81 of the Act. In the circumstances of this case, what was relevant was the power contained in s 81(2)(b).
Third, the requirement to produce an animal pursuant to s 76(1)(b)(ii) was not a requirement at large. There had to be some basis for the exercise of the authority to require production found elsewhere in the Act, and in this particular case that was the requirement to produce Night for seizure in accordance with s 81(2)(b).
Fourth, there was no failure to ‘produce’ Night, because the demand of the Council officers was, in fact, to hand Night over for seizure. Because that was the demand made, proof of the facts required by s 81(2)(b) were needed to sustain the offence.
Section 81(2)(b) required, as a matter to be proved in order to sustain the relevant charge, that the authorised officer reasonably suspected that the plaintiff had committed an offence under s 29 with respect to the dog Night. In oral submissions, counsel for the plaintiff expressed it as follows:
And if they don’t have the reasonable suspicion, then the request to hand over the dog for seizure is rendered otiose or it’s ultra vires or there is no lawful requirement, and the same consequences if the officer wasn’t authorised.
And further:
Because that term [reasonable grounds] does not find itself in section 76 on its plain reading. But we say, ‘Well, it still has to be considered. It’s an essential element or even, it’s a material matter that has to be proved in the alternative’.
In response, counsel for the first defendant argued as follows:
(a) The s 81(2)(b) requirement of reasonable suspicion was not a fact that the prosecution needed to prove to sustain the charge under s 76(1)(b)(ii);
(b) In the alternative, if ‘reasonable suspicion’ was a fact requiring proof, the onus of proof lay with the plaintiff because of the effect of s 72 of the CPA and the plaintiff had not discharged that onus;[13] and
(c) In any event, a proper reading of the trial judge’s judgment leads to the conclusion that his Honour was satisfied as to reasonable suspicion. I refer in particular to his Honour’s explicit statement that, ‘[a]s to Count 6 […] I find that the by-law officers had reasonable grounds to make the demand upon [the plaintiff] to hand over the dog Knight [sic]’.
[13]Section 72 of the CPA causes the accused to bear the evidential burden of proving that certain exceptions to offences created by legislation apply.
I accept the argument of the first defendant that the s 81 ‘reasonable suspicion’ requirement is not incorporated as an essential element or a fact requiring proof into the offence created by s 76(1)(b)(ii). The power of an authorised officer to require production of an animal is provided by s 74 of the Act. Section 81 deals with a different issue of seizure of an animal in certain circumstances.
In any event, if I am wrong on this point, then I accept the submission of counsel for the defendant that the County Court judge did in fact find that reasonable suspicion was established.
The issues raised in Ground (c) (iii) and (iv) were only faintly pressed by the plaintiff in written submissions and not at all in oral submissions. I accept the defendant’s submission that what was sought under those grounds was an impermissible review of findings of fact.
I find against the plaintiff on Ground (c) in the Amended Originating Motion.
Application to amend
In the course of the trial of this proceeding, during his final address, counsel for the plaintiff made an application to amend the grounds upon which relief was sought. In reality, this was an application to add a further and different ground to the Amended Originating Motion.
In what appeared to be an afterthought, counsel sought to advance an argument that, if s 76(1)(b)(ii) was self‑contained, the judge below had not made findings that the plaintiff:
(a) had been asked by an authorised officer to produce the animal Night; and/or
(b) had failed to produce Night—
and so the conviction could not be sustained.
I understood counsel to be arguing that the trial judge had thus committed jurisdictional error.
Counsel argued that although an application to amend the grounds in the Originating Motion was late, these same factors had been raised for the plaintiff during the final address at the trial in the County Court. Accordingly, it was argued, it should come as no surprise to the first defendant that this further ground was now being pursued and argument sought to be advanced on it. Further, it was submitted that there is no prejudice to the first defendant in allowing the further amendment at this late stage; and finally, that there would be significant prejudice to the plaintiff in not allowing what he submitted was a very strong ground for jurisdictional error, because the plaintiff’s case may otherwise fail and he may as a consequence face considerable costs orders.
The first defendant opposed the plaintiff’s application to amend. In doing so, the following points were raised:
(a) The application to amend, coming as it did during submissions at trial for the plaintiff, was simply too late;
(b) The history of this proceeding should be taken into account in determining whether to allow the amendment. In particular, counsel noted that the Originating Motion was issued on 22 December 2014. An application was subsequently made as to the adequacy of the grounds in the Originating Motion, and argument was advanced by the plaintiff and the first defendant on that application. As a consequence, by order of Derham AsJ on 17 May 2015, the plaintiff was granted leave to file and serve an Amended Originating Motion, the most significant amendment being to the grounds upon which the plaintiff sought to rely. The plaintiff had had the time and opportunity to consider the grounds upon which he relied, and to amend those grounds. As such, it was argued, further opportunity should not now be provided;
(c) The ground which the plaintiff now seeks to add was weak. On a fair reading of the whole of the decision of Judge Pilgrim, particularly having regard to the manner in which the proceeding was run for the plaintiff before Judge Pilgrim, the relevant findings of fact were either explicitly or implicitly made. The argument now sought to be advanced by the plaintiff amounts to an impermissible attempt to re‑agitate argument as to findings of fact; and
(d) The effect of allowing the amendment would be to create considerable complexity in the current proceeding, likely requiring further documentation in addition to the amended grounds, including affidavit material and written submissions, and a further hearing to argue the issues raised.
I accept the arguments put by counsel for the defendant, and as a consequence I decline the plaintiff’s application to further amend the grounds in the Amended Originating Motion. In my view, particularly having regard to the history of this proceeding, and the effect any amendment would have on the disposition of a proceeding, the application to amend should not be granted.
I do not consider the further ground upon which the plaintiff now seeks to rely to be strong. Judge Pilgrim accepted that a request had been made by one of the authorised officers to hand over the dog Night. There does not appear to be any dispute that Night was not produced to the officers by the plaintiff. It seems sufficiently clear that in finding the offence proven the judge below considered both the s 76(1)(b)(ii) elements of a request to produce Night, and an actual failure to produce Night, to have been established.
Conclusion
For the above reasons I consider that the plaintiff’s application to review the County Court judgment should be dismissed.
I will hear the parties as to the proper form of order and as to costs.
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