Brisbane City Council v Hamilton
[2005] QDC 330
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- Brisbane City Council v Hamilton[2005] QDC 330
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Brisbane City Council v Hamilton[2005] QDC 330
Brisbane City Council v Hamilton[2005] QDC 330
DISTRICT COURT OF QUEENSLAND |
|
CITATION: Brisbane City Council v Hamilton [2005] QDC 330
PARTIES:
BRISBANE CITY COUNCIL | Appellant |
v
STEVEN JAMES HAMILTON | Respondent |
FILE NO/S: D667 of 2005
DIVISION:
PROCEEDING: Appeal
ORIGINATING COURT: Magistrates Court, Brisbane
DELIVERED ON: 10 October 2005
DELIVERED AT: Brisbane
HEARING DATE: 10 October 2005
JUDGE: McGill DCJ
ORDER: Appeal dismissed with costs.
CATCHWORDS:
ANIMALS – Duty to control – offences – whether defendant's dog responsible for attack – identification evidence – prosecutor's appeal dismissed
LOCAL GOVERNMENT – Offences – keeping a dog that attacked an animal – whether evidence sufficient to identify defendant's dog as attacker – prosecutor's appeal dismissed
EVIDENCE – Identification – dog involved in attack on another dog – prosecution for offence under local law – ordinary principles apply – prosecutor's appeal dismissed
COUNSEL: | P.J. Hay for the appellant P.S. Hardcastle for the respondent |
SOLICITORS: | City Solicitor for the appellant |
DISTRICT COURT | No D667 of 2005 |
APPELLATE JURISDICTION
JUDGE McGILL SC
BRISBANE CITY COUNCIL | Appellant |
and
STEVEN JAMES HAMILTON | Respondent |
BRISBANE
..DATE 10/10/2005
ORDER
HIS HONOUR: This is an appeal against the dismissal of a prosecution of the respondent. The respondent was prosecuted I assume under a local ordinance or local law by the appellant that on 12 June 2003 he was the keeper of a dog, namely a male, liver-coloured, curly-coated retriever named Milo which dog did attack an animal at park land at Fig Tree Pocket.
The evidence for the Prosecution seemed to turn very heavily on the evidence of the owner of the dog that was attacked, a Mr Cushing. Mr Cushing's evidence was that he was walking his dog in the parkland when a dog, which he believes is the respondent's dog, came up and attacked his dog. He says that at the time it was not with the respondent but it was with a woman, a woman who is otherwise not identified by the evidence, and that the woman repeatedly used the name “Milo” to identify the dog, and that he identified it as a dog he had previously seen with the respondent.
Mr Cushing had said that he had been walking his dog in that particular park over a period of a few months and that he had previously seen the respondent there with his dog. At page 41 he said that he had seen them together two or three times before, although at page 42 he referred to having seen them half a dozen times altogether. It is not entirely clear whether that half-dozen was intended to include the day of the attack, which was not a day when he says he saw the respondent with the dog, or the following day.
So there was some opportunity for Mr Cushing to be familiar with the respondent's dog prior to the incident in guestion, but not a great deal. He would have had some general understanding of its appearance, but I doubt if he would have been intimately familiar with it.
In any event, when he saw it on this day he came to the conclusion, which may well be honestly held by him firm in his own mind, that the dog was the respondent's dog. The next day, he says, while he was again walking his dog on the track he came upon the respondent with his dog. He says he spoke to the respondent about the attack on his dog and the respondent denied that his dog was involved in that attack. There is nothing in the account of his denial to suggest that there was some implied admission involved in that and, nevertheless, Mr Cushing, having seen the respondent's dog the day after the attack, was confirmed in his belief that the dog was the same animal.
He referred to the dog that was involved in the attack as having a red collar, and indeed said that at one point he was pulling on the collar trying to separate the two animals, and he said that he recognised the collar that he saw on the respondent's dog as being the same collar. The respondent's dog certainly had a collar. It was photographed on the same day by a Council officer wearing a collar and the photographs which were in evidence before the Magistrate certainly look to me to show a red collar.
Mr Cushing, when cross-examined about the photographs, said that they looked to him like a red dog collar but essentially identified the respondent's dog as being the dog that he had seen previously with the respondent and saw the next day with the respondent. The collar was one of the things that he referred as assisting in the identification.
Another matter that he referred to was the demeanour of the dog. He said that it appeared to him that the respondent had been making something of an effort to control his dog on previous occasions. He did say that he had not seen anyone other than the respondent walking his dog in that area.
There was some evidence that on another occasion the respondent's dog had been walked by a woman and that on that occasion the respondent's dog has attacked another dog. That, I suppose, was led as similar fact evidence or perhaps evidence of the disposition of the dog. I am not really certain to what extent that was really properly admissible against the respondent, but in any event that in itself has not been particularly the subject of argument.
Proceeding on the basis that there was some evidence that the respondent's dog was of an aggressive disposition and prone to attack other dogs, that does not really assist greatly in the identification, because obviously whatever dog attacked Mr Cushing's dog was of an aggressive disposition and prone to attack other dogs. So that does not really assist in excluding the possibility that it was some other aggressive dog that attacked Mr Cushing's dog.
The Magistrate, in his reasons, referred to the evidence of Mr Cushing and referred to some photographs, the photographs of the dog and the collar, and also referred to a collar which had been produced by the respondent in his evidence, which the respondent said was the collar that his dog used.
The Magistrate said the collar that was produced in Court appeared to be the collar in the photograph, and he described the collar as being more tan than red. Mr Cushing had seen the photographs, which he referred to as being photographs of a red collar, and he had not seen the collar itself, which was not produced to him for cross-examination, and this is one of the matters complained of.
It certainly would have been preferable if the collar had been produced to Mr Cushing for cross-examination, and the fact that it was not is something that it would, I suppose, have been open to the Magistrate to take into account. But ordinarily, that rule about putting things in cross-examination is applied fairly sparingly against a defendant in a criminal prosecution, and it should not have been given great weight. It certainly did not mean that the actual appearance of the collar was something that the Magistrate had to ignore; it was in evidence before him and he was entitled to take it into account.
The Magistrate said that the collar was more tan than red and continued: “If Mr Cushing can be mistaken as to the colour of the collar in its description, then he could be similarly mistaken as to the identity of the dog. There is no suggestion that the collar was changed between the attack and when the photo was taken, and yet he always described the colour as red.”
On that basis, the Magistrate said he could not be satisfied beyond reasonable doubt that the dog owned by Mr Hamilton was the dog that attacked Mr Cushing's puppy. It was submitted that in circumstances where Mr Cushing had identified the collar on the respondent's dog as the collar that he had seen on the dog that attacked his puppy then any misdescription of the name of the colour of the collar was irrelevant and could not rationally lead to a reasonable doubt as to the identification by Mr Cushing.
In circumstances where Mr Cushing had not seen the actual collar and where he had identified the photographs and he said he identified the collar as being the same collar, if one looks at this passage in the reasons in isolation then it is a little difficult to see how there can be a mistake as to the colour of the collar.
But in circumstances where the Magistrate was dealing essentially with an identification case, and where the standard of proof was proof beyond reasonable doubt, then I think it is a fairly large, and difficult step to take to conclude that but for this error the Magistrate would have been satisfied beyond reasonable doubt by the identification evidence. The position, it seems to me, is rather that the Magistrate's expression may have been faulty.
The Magistrate had some doubt about the identification evidence and on that basis, he was not satisfied beyond reasonable doubt. Whether the doubt was a reasonable doubt was a matter for the Magistrate as the tribunal of fact, and its nature is not a matter which can really be reconsidered on appeal. Essentially, what the Magistrate had to do was to assess both the honesty and the reliability of the evidence of identification given by Mr Cushing.
There were some other features, but nothing very compelling. I suspect that any other dog of the same breed would have resembled the respondent's dog to some extent and the name Milo, although fairly unusual, is perhaps not in itself all that unusual as a name for dogs. There was a movie, as I recall, some years ago which featured a dog of completely different appearance, but one called Milo, and that may have led to the name getting some popularity as a dog's name.
The coincidence of the names is suggestive but really, apart from that, it depends on the reliability of Mr Cushing in identifying a dog which he had, on his own evidence, perhaps only seen two or three times before in passing while they were walking in the park and which he then saw the following day in the presence of the respondent.
In circumstances where in his own mind he had already decided that it was the respondent's dog that was responsible for the attack, identification the following day is perhaps a little suspect and the time was not as close as the time in some of the authorities where identification is by reference to a single suspect. I think the important consideration is that Mr Cushing had already made up his mind, I suspect, before he saw the respondent's dog on that occasion.
Identification evidence is notoriously difficult. In Phelps v. Gotha Chalkenin [1996] 1 QdR 503, the then President of the Court of Appeal said:
“The circumspection with which identification evidence must be treated is well established and the reasons are well known and cogent. The courts' concern is to avoid a miscarriage of justice caused by a mistake which is easily made.”
The subject is discussed in a lengthy passage in the Australian edition of Cross on Evidence commencing at page 1153. There is in that text - which I will not cite from at any length - a good deal of emphasis on the difficulties with identification evidence and its inherent unreliability, and on the various miscarriages of justice which have arisen as a result of identification evidence, even identification evidence honestly held.
It seems to me that in circumstances where there had been only a fairly limited opportunity for Mr Cushing to become familiar with the respondent's dog prior to this incident, Mr Cushing's identification of the respondent's dog as the dog involved in the attack on his dog at a time when the respondent was not present, even if the product of an honest, genuinely held belief on the part of Mr Cushing, ought to have been treated by the Magistrate as evidence which should be treated with considerable caution.
In circumstances where the only significant supporting circumstance was the coincidence of the name, then if the Magistrate had convicted I would have thought that there would have been an arguable case the conviction was unsafe anyway. It may have been open to the Magistrate to be satisfied beyond reasonable doubt on the basis of Mr Cushing's identification evidence, but it is, in my view, entirely unsurprising that for whatever reason - it may be a reason imperfectly stated - the Magistrate was not so satisfied.
The alternative hypothesis is that on this particular occasion, someone took another dog of the same breed to that park, a dog which also happened to have a red collar - and I should think that red collars are common enough for dogs - and which also happened to have the name Milo, which I will admit is a little unusual but by no means impossible - and that it was that dog that attacked Mr Cushing's puppy. I think the Magistrate was entitled to find that that was a reasonable hypothesis consistent with innocence and not have been satisfied beyond reasonable doubt that that had been excluded.
I do not think that it has been shown that that approach of the Magistrate was wrong, but if it has been shown and the question is one for me, I am certainly not satisfied beyond reasonable doubt by the evidence that that hypothesis has been excluded, and accordingly I will dismiss the appeal.
...
HIS HONOUR: I will order the appellant to pay the respondent's costs fixed at $1,800.
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