DISTRICT COURT OF QUEENSLAND

1. [1]
   Sydney Ronald Dart purported to appeal against two matters arising from a Magistrates Court hearing which involved himself, his son Frederick William Dart (“Frederick Dart”) and the latter's partner, Megan Ann Hajridin (“Hajridin”), together referred to as the “others”.

2. [2]
   I dismissed the appeal of Sydney Ronald Dart ("Sydney Dart"), gave brief reasons and reserved these more detailed reasons.

 Background

3. [3]
   The others were convicted in the Magistrates Court at Townsville on 4 December 2008 on 131 offences under the Animal Care & Protection Act 2001.  They were sentenced on 12 December 2008. So far as is relevant to the current proceeding, they were restrained from purchasing or otherwise acquiring or taking possession of any dog or rat for trade or commerce for a period of two years. The proceedings the subject of the appeals which Sydney Dart purported to join, arose out of breaches of duty of care and the possession of a seized animal under the Animal Care & Protection Act 2001. Sydney Dart was charged conjointly with the other two with regard to five breaches of duty of care and one charge of possession of a seized animal.

4. [4]
   On 19 November 2008, Frederick Dart attempted to lease his property at Calcium, southwest of Townsville, to Sydney Dart, with his partner and him remaining tenants at the property. There was also a purported transfer of Hajridin's business "TopDogzDownUnder" to Sydney Dart. Those ‘agreements’ were the sole basis upon which Sydney Dart was joined as a party to the commission of the offences by the others.

The Magistrates Court hearings

5. [5]
   The hearings were heard on dates in January and April 2011 and a judgment was delivered on 7 November 2011. The Magistrate found that the agreements were brought into existence and executed by the three appellants in an attempt to circumvent the effect of the orders made in the Magistrates Court on 12 December 2008. The Magistrate in effect found that the ‘agreements’ (exhibits 30 and 32 respectively) were a sham and of no legal effect.

6. [6]
   Accordingly, her Honour found that Sydney Dart did not have possession of, nor was he in charge of the animals, the subject of the charges. Hence he was found not guilty of each of the charges made against him. Her Honour stated that her finding was not necessarily to the effect that Sydney Dart did not own some of the dogs found at the Calcium property, but the latter were dogs in respect of which no charges had been brought in the proceedings.

 Sydney Dart’s Appeal

7. [7]
   The appellant, Sydney Dart, appealed on two bases: firstly, on the ground that his application for costs following his acquittal on all the charges was refused by the Magistrate; and secondly, that dogs not owned by the other appellants be returned to him.

8. [8]
   The application for costs was made on Sydney Dart’s behalf by counsel representing all three of them in the Magistrates Court, Mr Molony.  He based the application on the following: "Mr Dart has been put to substantial expense and has been exonerated and it has … entitled to his compensation for being put to that (D-14)." 

9. [9]
   The application was opposed by the respondent's counsel, Mr Morris QC who had submitted:

"He created a document purporting to show that he was the owner of the dogs the subject of the findings which her Honour has already made as regards mistreatment of those dogs and neglect.

The only reason he has escaped conviction is because your Honour found that the document which he had created was a sham.  In other words, it was his own dishonesty in creating a sham document that got him off the hook.  There is no basis in justice for saying that the RSPCA, which in your Honour's discretion has not recovered the costs of prosecuting those who are guilty, should have to pay the costs of a man who called tenders to be prosecuted, who invited prosecution by creating the appearance of guilt and as I say, only escaped a finding of guilt on the basis that the very document which he created was found to be a sham."

10. [10]
    The Magistrate responded in the following terms:

"This is possibly the easiest decision that I have had to make today.  Mr Molony, your application is refused … this is a criminal prosecution and it is very rarely that costs are ordered against the prosecution in such a case. I need not say anything further at this stage."

11. [11]
    Sydney Dart was not the subject of any forfeiture order and had not been the subject of any charges in the first proceedings in 2008. He apparently had possessed one or more dogs which may conveniently be described by the expression "companion dogs" in respect of which no charges had been made and no forfeiture ought to have occurred. Apparently, these dogs (I believe there were two of them) were identified on the occasion of a first raid upon a property of the others and were left on the property and not seized. It may have been the case that on a second raid at another property the dogs were not so identified and were swept up with other animals which were seized.

12. [12]
    Mr Morris QC undertook on behalf of his client, the RSPCA, to return to Mr Sydney Dart any dogs which fitted the description of "companion dogs" upon such dogs being identified amongst those dogs seized by the respondent and remaining in the respondent's care and control.

 Relevant Chronology

13. [13]
    The important dates are as follows:

• 7 November 2011 - Date of conviction of Frederick Dart and Hajridin
• 7 November 2011 - Date of acquittal of Sydney Dart
• 1 December 2011 - Date of sentence of Frederick Dart and Hajridin
• 1 December 2011 - Notice of Appeal filed by Frederick Dart
• 1 December 2011 - Notice of Appeal filed by Hajridin
• 1 December 2011 - Bail application made on behalf of Hajridin
• 6 January 2012 - Revised Notice of Appeal (sic) filed by Frederick Dart, Hajridin and Sydney Dart
• 01 March 2012 – Call-over of appeal cases
• 13 April 2012 - Hearing of appeal in this court

The Disposition of the Appeal

14. [14]
    Sydney Dart purported to appeal within the proceedings separately commenced by the others and the three of them filed the document headed "Revised Notice of Appeal" (sic) in which the two matters of interest to Sydney Dart were raised as purported grounds of appeal. 

15. [15]
    The purported appeal by Sydney Dart is not competent. Each of the others separately filed appeals against the orders made by the Magistrate, upon their respective convictions of the offences. Sydney Dart never filed a separate Notice of Appeal in respect of any matter in which he had an interest and which might be the subject of an appeal. He merely added himself without leave of the court to a proceeding commenced by the others. He did so out of time because the "Revised Notice of Appeal" (sic) was the first occasion that he had filed any document in this court purporting to be a Notice of Appeal.  Nor did he file a notice seeking leave to extend the time for filing a Notice of Appeal.  At no time did he file any material by affidavit or otherwise to support an application for such leave. 

16. [16]
    Whilst a Notice of Appeal or the grounds of appeal are not to be defeated merely by reason of any defect in substance or form (section 228 Justices Act 1886), the circumstances in this case go beyond the scope of substance or form.

17. [17]
    Even if Sydney Dart's Notice of Appeal was accepted as having been in proper form and having been regularly filed, there is no evidence upon which an exercise of discretion to grant leave to file out of time could be made. It was upon those bases that his "appeal" was dismissed.

18. [18]
    Sydney Dart had submitted that he believed that he had properly commenced proceedings by reason of his being named as a party in the "Revised Notice of Appeal" (sic).  He made an oral application for a grant of leave.  I did not accept the oral application but had I seen fit to do so, I would have refused leave.

Discussion

19. [19]
    In the course of submissions Sydney Dart asserted that the prosecution in the hearing before the Magistrate had acknowledged that he was the “owner” of "the animals". Certainly Mr Morris QC had made a statement that included words to that effect, but contextually the statement was made in respect of a broader issue and I accept Mr Morris QC's submission before me that the words were used in the context that ownership of animals by Sydney Dart was not an issue which the prosecution was agitating: rather, the issues were about matters that directly affected the others. It was on Sydney Dart's construction of the submissions made before the Magistrate that he purported to demand that all animals registered to or in the possession of the others, that were forfeited to the respondent or seized by it, should be returned to him; that is, he alleged that he was the owner of all of the animals and that in some way or another the respondent had agreed with that assertion. Of course, had that been the case then the others could not have been convicted as principal offenders. Hence it is quite clear that the proceedings below were engaged with other issues and not directly with any assertion by Sydney Dart that he was the lawful owner of the animals. He may well have been the lawful owner of animals conveniently described as "companion dogs" and so much was acknowledged by the respondent in its undertaking made before me by Mr Morris QC.

20. [20]
    When her Honour sentenced the others on 01 December 2011 Sydney Dart was present in court. He was represented by counsel who made it clear to the court that the others would be lodging Notices of Appeal forthwith on that day. No Notice of Appeal was lodged with respect to any matter by or on behalf of Sydney Dart. He was also present in court, and conceded as much before me, when a discussion took place between Mr Molony and the Magistrate about the time within which a Notice of Appeal must be filed.

21. [21]
    The appellant asserted from the Bar table that he had a conversation with Mr Malony on 01 December 2011. This was to the effect that Mr Malony was more focussed on dealing with the appeals of the others, rather than anything concerning Sydney Dart and had said something to the effect of taking care of Sydney Dart's interests on another day. Of course, there was no admissible evidence of any such conversation before me and I did not accept that bald assertion by Sydney Dart from the Bar table as evidence of anything.

22. [22]
    I do not accept that Sydney Dart, who is most likely the author of the “Revised Notice of Appeal” (sic) (and possibly the other documents filed in the proceeding), or at least a significant contributor to it - because he has some experience of legal proceedings - did not know that if he wished to appeal against any order or the failure by the Magistrate to make any order affecting his interests, he should have done so in the time provided in the Justices Act 1886.  Not only did he fail so to do but he also came to court on the day of hearing of this matter without having taken any steps to properly institute appeal proceedings whether within time or not. 

23. [23]
    I am in a position to assess the merits of the purported appeal of Sydney Dart. In my view neither ground is at all viable. Costs issues are the subject of a broad exercise of discretion by a court. Her Honour made it clear that the application before her was entirely without merit and at least impliedly, on my reading of the transcript of the Decision, she accepted the submission to that effect of Mr Morris QC.

24. [24]
    Further, there is some doubt as to whether an appeal to this court pursuant to s 222 Justices Act 1886 against the refusal of a Magistrate to award costs is competent, at least so far as an acquittal is concerned: Smith v Ash [2011] 2 Qd R 175.

25. [25]
    The “agreements” relied on by Sydney Dart were, as I have said, the reason for his having been charged in the first place. The finding that they were a sham led to his acquittal of the charges. Hence by his own conduct he placed himself in a position where he might incur costs of legal representation, although there is no evidence whatsoever that he has incurred any costs or not, save for part of the submission – expressed in general terms - made by Mr Molony to her Honour on the application below.

26. [26]
    That ground of appeal cannot on any basis that of which I can be apprised, either in the material or in the submissions - written or oral - possibly succeed.

27. [27]
    So far as the dogs are concerned, Mr Dart's oral submissions on the hearing before me are contrary to the content of exhibits 30 and 32 and became internally inconsistent as his submissions developed. There is absolutely no merit in this ground whatsoever. To the extent that he might legitimately claim ownership of one or more dogs, that matter has been addressed during the course of the hearing and led to the undertaking being given by Mr Morris QC. 

28. [28]
    There is no issue of prejudice against the respondent for me to consider in determining this matter.

29. [29]
    Insofar as delay is relevant, several months have passed. However, Sydney Dart was represented by counsel when the others were convicted. He was in court when counsel made his application for costs. He was not the subject of any order for forfeiture of animals and could not have been in the circumstances. He was present in court for the discussion between his counsel and the Magistrate about the time limited for appeal. I have already referred to his attempt to join in the appeal process by naming himself as a party in the "Revised Notice of Appeal" (sic). The others had promptly and separately filed Notices of Appeals on the day of their respective sentences.

30. [30]
    The grounds of appeal are not such that it is in the interests of justice to accept an oral application for leave to extend time within which to appeal or if it had been accepted, by an exercise of discretion to grant the leave sought.

31. [31]
    In considering these issues I have, so far as the leave issue is concerned, made reference to R v Tait [1999] 2 Qd R 667; and Owen v Edwards [2006] QCA 526.

Conclusion

32. [32]
    Hence the application was refused and the appeal was dismissed. The respondent did not make any application for costs of this proceeding.