Simpson v Stapleton[2001] QDC 156

APPELLATE JURISDICTION

JUDGE NOUD

and

BRISBANE

DATE 18/06/2001

JUDGMENT

HIS HONOUR: This is an appeal from a decision of a Magistrate, Ms hall SM. The respondent was charged under section 9(1) of the Brisbane City Local Law (Keeping and Control of Animals) 1997 essentially with being the keeper of a dog which was not registered.

The Magistrate was satisfied that the respondent was the keeper of the dog, but dismissed the complaint because she was not satisfied that a defence raised under section 24 of the Criminal Code had been disproved by the complainant in the case. The defence under section 24 was to the effect that the respondent believed the dog was registered.

The Magistrate's decision concerning section 24 is challenged on appeal, which is an appeal by way of rehearing on the materials before the Magistrate. Accordingly, the Magistrate's decision about the respondent being the keeper of the dog (which decision was favourable to the appellant) was also argued on appeal.

I shall now turn to that aspect of the case. It was argued by counsel for the appellant that the respondent was the keeper of the dog because he had custody and control of it, and/or he was the occupier of the land where the animal was ordinarily kept, (see the definition of “keeper” in section 3 of the Local Law).

There was, in my opinion, little, if any, evidence of the former of these and it is fair to say, I think, that submissions in the course of oral argument focused on the latter. In that regard, my attention was drawn in particular to page 30 of the transcript. It is known from that evidence that the respondent was the owner of the relevant land where the dog was apparently ordinarily kept, that he lived there on and off for 53 years and that he lived there in November 1999, (the date of the alleged offence being 26 November 1999).

At first glance evidence such as this might suggest that the respondent controlled (see Thow v. Campbell [1972] QR 324; The Queen v. Smythe [1972] QR 223) what was going on on the land, but upon further examination I am satisfied that an hypothesis consistent with innocence is reasonably open on this evidence and that bearing in mind that the onus is on the prosecution and that the standard of proof is proof beyond reasonable doubt, the respondent was entitled therefore to be acquitted.

The hypothesis consistent with innocence is that although the respondent lived there on and off and so forth it may well have been in the context of the present case that during his spasmodic stays at the premises (even on 26 November 1999, if he was in fact there then) he did not have much of a say as to what went on on the premises when he was there. I express this view with all due respect to her Worship who obviously thought otherwise.

I agree, however, with her Worship that section 24 was open and that the prosecution did not negative the defence raised beyond reasonable doubt. Horne v. Coyle (1965) QR 528 was referred to in this connection, but Ianella v. French (1968) 119 CLR 84 (discussed in Howward's Criminal Law 5th Edition at page 508) demonstrates that in any given case views may differ on what is and what is not a mistake of fact.

In the present case I have been influenced by the views of the Chief Justice, Mr Justice Barwick, and Mr Justice Windeyer in Ianella and French in reaching the conclusion that in the present case a mistake of fact was raised on the evidence at first instance.

The reasonableness of such a mistake was canvassed at length in the course of oral argument on appeal (which oral argument has been recorded) and I am of the view that on the facts in the present case the prosecution has not proved beyond reasonable doubt that the mistake in question was other than reasonable. Honesty was not raised and in my opinion that course was correct.

For these reasons the appeal should be dismissed and I order accordingly.

...

HIS HONOUR: I order that the appellant pay the respondent's costs of the appeal fixed in the sum of $1,500, to be paid with six weeks.