Simpson v Sovenyhazi
[2001] QDC 137
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Simpson v Sovenyhazi[2001] QDC 137
- Add to List
Simpson v Sovenyhazi[2001] QDC 137
Simpson v Sovenyhazi[2001] QDC 137
DISTRICT COURT | Appeal No 184 of 2001 |
APPELLATE JURISDICTION
JUDGE NOUD
ERIC RAYMOND SIMPSON | Appellant/Complainant |
and
JOSEPH SOVENYHAZI | Respondent/Defendant |
BRISBANE
DATE 18/06/2001
JUDGMENT
HIS HONOUR: This is an appeal from a decision of the Magistrate, Ms Hall SM.
The appellant was charged essentially with permitting a dog to be brought into a public place at a time when the animal was not under effective control. Details of the facts and issues in the case are set out in counsels' outlines. I shall concern myself only with the allegation of “permitting”, for it is on that issue that the appeal must, in my opinion, fail.
It is sufficient at this point to say that the Magistrate dismissed the charge on the ground that it had not been established that the respondent permitted the dog to be in the public place and that this is an appeal by way of rehearing (on the materials before the Magistrate) against that decision. The appellant adduced little evidence about how the dog was permitted to be in the public place (see, however, pages 6-7 of the transcript), but the respondent gave evidence and it is, of course, upon the whole of the evidence that the tribunal of fact must be satisfied beyond reasonable doubt about the respondent's guilt.
The respondent said he was welding in his garage at relevant times with the garage doors open (see relevant photograph) and the unmistakeable inference is that the dog went through the open doors. The doors were open so that the respondent could have ventilation while he worked. However, it is not correct to infer, in my opinion, that the doors were open for the whole day, nor for whatever reason that the dog would have been able to get through the doors at any time of the day.
Counsel for the appellant raised an argument along those lines, but in coming to the conclusion I have stated I have had regard to the respondent's evidence at pages 31-32 of the transcript. I have also had regard to counsel for the respondent's submission based on the respondent's evidence at page 35, lines 30-35, that it could not be said that the dog in the present case was a troublemaker.
Permitting something to be done is a question of fact. Knowledge or imputed knowledge (in the sense of shutting one's eyes to what is going on) is relevant, (see Lyver and The State of Victoria [1983], 2 VR 475 at 478), but indifference, which is the category into which the present case seems to fit, is itself a question of degree (see Adelaide Corporation and Australasian Performing Right Association Ltd [1928], 40 CLR 481 at 500).
Fault, in my opinion, is also relevant, compare The Queen and Von Snarski ( 2000 QCA 71 paragraph 24). Other than to give those indications it is not appropriate nor perhaps possible, in my opinion, to define “permitting” within the meaning of section 27 of the Brisbane Local Law (Keeping and Control of Animals) 1997 under which section the respondent was charged. I would add, however, that one should also be mindful of other provisions of the Local Law as indicated by counsel for the appellant in his outline, (see especially pages 7-8).
In the light of the above reasons, I posed to myself the question of whether I can be satisfied beyond reasonable doubt on the relevant evidence that the respondent permitted the dog to be in the public place. The short answer to that question is that I cannot. I would only add in deference to counsel for the appellant's submissions that I appreciate the importance of the Local Law to the community and would also note that the conclusion I have reached in this case might have no relevance to other cases because “permitting”, as I have said, is an issue of fact and each case will depend on its own facts.
I would only further indicate that in reaching this conclusion that the respondent should be found not guilty in relation to this charge that I have been influenced by the fact that, in my opinion, there is insufficient evidence in all of the circumstances indicating fault on the part of the respondent.
For these reasons, the appeal should be dismissed and I order accordingly.
...
HIS HONOUR: I order that the appellant pay the respondent's cost of the appeal in the sum of $1,500 within six weeks.