Stefani v City of Swan

[2005] WASC 215

STEFANI -v- CITY OF SWAN [2005] WASC 215

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 215
Case No:	SJA:1110/2004	Heard:	6 & 28 JULY 2005
Coram:	BLAXELL J	Delivered:	28/07/05
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	ROBERTO STEFANI CITY OF SWAN
Catchwords:	Criminal law Appeal against conviction Offences under Dog Act 1976 (WA) Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : STEFANI -v- CITY OF SWAN [2005] WASC 215 CORAM : BLAXELL J HEARD : 6 & 28 JULY 2005 DELIVERED : 28 JULY 2005 FILE NO/S : SJA 1110 of 2004 BETWEEN : ROBERTO STEFANI

Appellant

AND

CITY OF SWAN
Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MR D N JONES SM

File No : MI 2183-4 of 2004

Catchwords:

Criminal law - Appeal against conviction - Offences under Dog Act 1976 (WA) - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr D P Gillett

Solicitors:

Appellant : In person
Respondent : McLeods

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil


(Page 3)

1 BLAXELL J: This judgment was delivered extemporaneously on 28 July 2005 and has been edited from the transcript.

2 This is an appeal from the decision of a Magistrate in the Midland Court of Petty Sessions on 28 September 2004 convicting the appellant of two offences under the Dog Act 1976 (WA). The first conviction was for the offence of being a person liable for the control of a dog which attacked another dog. The second conviction was for being a person liable for the control of a dog which attacked another person.

3 Both offences arise from the same incident which occurred in the vicinity of Altone Park, Beechboro on 14 January 2004. There were two versions of that incident given in evidence before the learned Magistrate. The first version came from the complainant Mr Ng who was walking his bull terrier dog on a leash at the material time. His version was supported by another witness Mrs Maguire who happened to be there and became involved in the aftermath of what occurred. The second version came from the appellant Mr Stefani.

4 The prosecution version of the facts was that on 14 January 2004 Mr Stefani was walking his red heeler dog in the park and had it running loose. At the same time Mr Ng was walking his bull terrier along the nearby Danube Avenue. Mr Ng's dog was on a leash and was muzzled. One of Mr Stefani's neighbours, Mrs Maguire, was also in the park and objected to him that his dog was running loose because she considered the animal to be dangerous. Coincidentally, and while this discussion was occurring or just after it occurred, Mr Stefani's dog charged at Mr Ng's dog and then bit and grabbed hold of it around the neck. Mr Ng tried to prise Mr Stefani's dog loose and in the course of this he was also attacked. He received bite injuries to his arm and armpit and also a fractured thumb.

5 At one stage while Mr Stefani's dog had hold of Mr Ng's arm Mrs Maguire ran in and kicked it. A City of Swan employee, Mr Casaras, also ran up with an axe but by that time Mr Stefani's dog had released Mr Ng and the incident had come to an end. So that was the prosecution version of the facts.

6 The defence version came from Mr Stefani and his version was somewhat limited because on his evidence he did not see the start of the incident. After talking to Mrs Maguire the first thing he saw was that Mr Ng's dog, without a muzzle on, had gripped hold of his dog around the latter's neck. That was, in fact, all that he essentially saw and he at no time observed his dog attack the other dog or Mr Ng. I understand

(Page 4)

Mr Stefani to say that whatever minor injuries might have occurred to Mr Ng occurred as a result of the latter trying to get his dog off Mr Stefani's dog. Accordingly, if Mr Stefani's version is correct the incident could not have occurred in the manner contended by the prosecution witnesses.

7 The grounds of appeal are at page 8 of the appeal book and in my view the only ground of appeal that might ever have had substance is to be found somewhere within ground 2 which is fairly lengthy but encompasses the issue to which I am about to refer.

8 Mr Stefani represented himself before the Magistrate and there has been an issue as to whether or not he was allowed a fair opportunity to call evidence that may have assisted his defence. In that regard when I initially heard this appeal I understood that the learned Magistrate had refused the appellant permission to cross-examine Mr Ng about previous episodes of his dog attacking other dogs and people. However, as a result of the full transcript being provided following an adjournment of the hearing of the appeal it is clear that Mr Stefani was permitted to adduce this evidence. Mr Ng admitted that his dog had been involved in two such prior incidents.

9 A further issue arose from the fact that the prosecutor, the City of Swan, had at one stage refused to disclose to the appellant the name of its employee who had run into the incident with an axe. Accordingly, Mr Stefani was initially denied the opportunity of calling that person as a witness. However, that situation was rectified when the Magistrate required the prosecutor to provide that information and then adjourned the proceedings for approximately a month so that the witness could be subpoenaed. In the end, Mr Stefani chose not to call that witness which of course was a decision that he was entitled to make.

10 All that matters for present purposes is that the learned Magistrate undoubtedly provided Mr Stefani with a very fair hearing. In my view the Magistrate also displayed commendable patience with the appellant given the manner in which the appellant represented himself.

11 The learned Magistrate also provided comprehensive reasons for accepting the prosecution version of events and rejecting that of Mr Stefani. His Worship based his decision not only on the demeanour and credibility of the witnesses but also on the logic of the surrounding circumstances. In my view his reasoning cannot be faulted.

(Page 5)

12 As I have explained to the appellant a number of times during the course of this appeal we have a system of justice where if there are conflicting versions of events from various witnesses it is for the Magistrate at the initial hearing to decide who should be believed. The Magistrate has the advantage of hearing and seeing the witnesses and an appeal court will only interfere with the Magistrate's judgment as to who should be believed if it can be shown that that judgment was flawed in some way.

13 In the present instance there is no apparent error in the learned Magistrate's judgment and I consider that his process of reasoning was very sound. His Worship was clearly entitled to come to the view that he was satisfied beyond reasonable doubt that the appellant had committed the two alleged offences.

14 Accordingly it follows that the present appeal must be dismissed and I so order.