Lukacs v Townsville City Council
[2017] QDC 271
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- Lukacs v Townsville City Council[2017] QDC 271
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Lukacs v Townsville City Council[2017] QDC 271
Lukacs v Townsville City Council[2017] QDC 271
DISTRICT COURT OF QUEENSLAND
CITATION: | Lukacs v Townsville City Council [2017] QDC 271 | |
PARTIES: | GEORGE LUKACS | |
(appellant) v TOWNSVILLE CITY COUNCIL (respondent) | ||
| FILE NO/S: | D 110 of 2016 | |
DIVISION: | ||
PROCEEDING: | Appeal | |
ORIGINATING COURT: | Magistrates Court at Townsville | |
DELIVERED ON: | 10 November 2017 | |
DELIVERED AT: | Townsville | |
HEARING DATE: | 04 April 2017 | |
JUDGE: | Durward SC DCJ | |
ORDERS: |
| |
CATCHWORDS: LEGISLATION: CASES: | MAGISTRATES – PRACTICE & PROCEDURE – COMPLAINT – FORM – DUPLICITY AND UNCERTAINTY – ELECTION OR AMENDMENT GENERALLY- where defendant charged with an offence (the first charge) of failure to take steps to ensure that a dog for which he was responsible (as a relevant person) did not attack someone else or another animal; and an offence (the second charge) of failure, as the person responsible for a dog kept on land) to maintain an enclosure that prevented the dog from escaping or being released from the land without his permission – whether the first charge comprised two offences and was thereby duplicitous. MAGISTRATES – PRACTICE & PROCEDURE – EVIDENCE – SUFFICIENCY – FINDINGS OF FACT – whether the findings of fact were open or were unreasonable and not supported by evidence. PRACTICE & PROCEDURE – EVIDENCE – ‘BODILY HARM’ – whether the evidence disclosed injuries to the complainant and to another dog that ‘interfered with health and comfort – where ‘bodily harm’ as defined in the Criminal Code (Qld) may be proved objectively by reason of their description alone. PRACTICE & PROCEDURE – EVIDENCE – STATUTORY DEFENCES – REASONABLE EXCUSE – whether statutory defence applied in respect of the maintenance of an enclosure. PRACTICE & PROCEDURE – PREVIOUS CONVICTION – whether s 17 Criminal Code (Qld) applied to conviction of defendant on first charge – where both charges heard together and where in one decision magistrate convicted defendant on first charge followed by his conviction of defendant on second charge. Animal Management (Cats and Dogs) Act 2008 s 194 (1); Local Law No 2 (Animal Management) 2011 s 14; Justices Act 1886 ss 43, 48,222 and 225; Criminal Code (Qld ) ss 1 and 17; Local Law No 1 (Administration) 2001 s 30. Cohen v Macefield Pty Ltd P/L & Ors [2010] QCA 95; Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89; R v Trifyllis [1998] QCA 416; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Forrest v Commissioner of Police [2017] QCA 132; Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & ors [2014] QCA 129; Romeyko v Samuels (1972) 2 SASR 529; Walsh v Tattersall (1996) 188 CLR 77; Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89; R v Tamcelik; Ex parte Ozcan [1998] 1 Qd R 330; to R v Scatchard (1987) 27 A.Crim.R. 136; R v Chan-Fook [1994] 1 WLR 689; R v Taikato (1996) 186 CLR 454; House v R (1936) 55 CLR 504; Hughes v Hopwood (1950) QWN 21; Minister for Aboriginal Affairs & ors v Peko-Wallsendo Limited & ors (1985 – 1986) 162 CLR 24; R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 151 CLR 606. | |
COUNSEL: | Ms G.E. Johnston solicitor, for the appellant. R.G. Bain QC for the respondent. | |
SOLICITORS: | Anderson Fredericks Turner Lawyers for the appellant. Townsville City Council Legal Services for the respondent. |
- [1]The appellant was convicted of two charges in the Magistrates Court at Townsville on 23 March 2016: Charge 1, made under s 194 (1) of the Animal Management (Cats and Dogs) Act 2008 (‘AMCDA’); and Charge 2, made under s 14 of the Local Law No 2 (Animal Management) 2011 (‘LLAM’). The appellant was fined $1,300.00 in respect of both charges and no convictions were recorded. The appeal is against the convictions and the sentence, pursuant to s 222 Justices Act 1886 (‘JA’).
The charges
- [2]The charges related to the appellant’s dog that either escaped or was released from his premises (“the yard”) and attacked another dog and its owner.
- [3]The legislative provision in the first charge is section 194(1) AMCDA and provides that:
“A relevant person for a dog must take reasonable steps to ensure the dog does not attack, or act in a way that causes fear to, someone else or another animal.”
Charge 1:
“Contrary to s 194 (1) of the Animal Management (Cats and Dogs) Act 2008 at or about 5:30pm on 02 December 2014 George Lukacs was the relevant person under the Animal Management (Cats and Dogs) Act 2008 for a Blue, Male, Cattle Dog type dog being kept on land in Townsville at 3 Riverview Street Hermit Park QLD 4812 and did fail to take reasonable steps to ensure that the dog did not attack, or act in a way that causes fear to, someone else or another animal.”
“Particulars:
The circumstances of the attack were that the defendant’s dog escaped the property of 3 Riverview Street and entered onto Riverview Street, and proceeded to attack another dog that was being walked down the road by its owner.
As a result of the attack the victim dog suffered two puncture wounds, and also the owner of the victim dog suffered multiple puncture wounds to his right hand whilst trying to gain control of the attacking dog.”
- [4]The respondent provided further particulars of Charge 1 by email on 03 march 2016:
“Your client failed to take reasonable steps to ensure that the dog, Hunter, did not attack or act in a way that causes fear to someone else or another animal, in that he failed to maintain a fence or enclosure that prevented the dog, Hunter, from wandering or escaping from or without your client’s permission being released from the property on which the dog was being kept, namely 3 Riverview Street, Hermit Park; or in the alternative, authorised the release of the dog, Hunter, from that land in circumstances where the dog, Hunter, was not under effective control.”
- [5]I will say something further about these further particulars when I discuss the Ground 6 of the appeal in respect of Charge 1.
- [6]The Local Law provision for the second charge is section 14 LLAM and provides that:
“(1)A person who keeps an animal must maintain an adequate enclosure that—
(a)-… prevents the animal from wandering or escaping from the person’s land; and
(b)-… prevents the animal from being released from the person’s land without the person’s permission.
Maximum penalty for subsection (1)—20 penalty units.”
Charge 2:
“Contrary to s 14 of the Local Law No 2 (Animal Management) 2011 at or about 5:30pm on 02 December 2014 George Lukacs was the responsible person for a Blue, Male, Cattle Dog type dog being kept on land in Townsville at premises at 3 Riverview Street HERMIT PARK QLD 4812 and did not maintain an enclosure that:
prevents the animal from wandering or escaping from the land, and
prevents the animal from being released from the land without the keeper’s permission.”
“Particulars:
The dog kept by the defendant at the premises escaped from, or was without the defendant’s permission released from, those premises and into Riverview Street, HERMIT PARK QLD 4812.”
Appeal by way of re-hearing
- [7]This appeal is conducted as a hearing de novo, on the evidence that was before the magistrate: s 222 JA. It is not necessary that I simply identify errors in the decision of the magistrate and correct them.
- [8]I am required to review the evidence and draw my own inferences and conclusions and thereby determine the relevant facts in issue from the evidence, giving proper deference to the magistrate’s view: Warren v Coombes (1979) 142 CLR 531 at 551; Fox v Percy (2003) 214 CLR 118 at [25]; and Forrest v Commissioner of Police [2017] QCA 132.
Factual circumstances
- [9]The appellant’s dog either escaped or was released from the appellant’s premises without his permission when his son left the gate open (Charge 2).
- [10]The appellant’s dog then proceeded to attack another dog and its owner as they were walking down the adjacent street. The attacked dog received two puncture wounds and the owner received multiple puncture wounds to his right hand when he attempted to control the appellant’s dog (Charge 1).
- [11]During cross-examination in the Magistrates Court the appellant denied giving his son permission to take the dog out of the yard without a lead. The appellant also confirmed that all gates to his property were secured with D-latch locks.
Grounds of Appeal
- [12]The grounds of appeal with respect to Charge 1 are:
- The charge is bad for duplicity as it discloses two or more offences against s 194 (1) AMCDA.
- The charge in the complaint and summons contravenes s 43 JA in that two or more matters of complaint are joined in the one complaint and each matter of complaint has not been set out in a separate paragraph.
- The magistrate erred in the application and interpretation of the definition of “bodily harm”
4&5.The magistrate erred in finding that the appellant did not take reasonable steps to maintain his fence to prevent the escape and attack by the dog as it was not supported by the evidence.
- The magistrate erred by importing elements relating to charge 2 into charge 1.
- [13]The grounds of appeal with respect to Charge 2 are:
- The magistrate erred in failing to consider and apply s 17 of the Criminal Code (‘the Code’).
- The magistrate erred in finding he was unable to come to a conclusion as to the merits of a submission without substantive argument.
- The magistrate misapplied the law in determining proof of s 14 (1)(a) LLAM or proof of s 14 (1)(b) LLAM would result in a conviction of s 14 (1) LLAM.
- The finding of guilt by the magistrate was unreasonable and cannot be supported having regard to the evidence.
- The finding by the magistrate that the appellant did not maintain an enclosure that (i) prevented the dog from wandering or escaping the land; and (ii) prevented the dog from being released from the land without his permission, was unreasonable and cannot be supported having regard to the evidence.
- The magistrate erred in finding the defence provided by s 30 of the Local Law No 1 (Administration) 2001 did not apply.
The convictions
Submissions
- [14]A number of the grounds were addressed in submissions in combination by solicitor and counsel. I will adopt that combination in summarising the submissions.
A. Charge 1
Grounds 1 and 2: duplicity
Appellant
- [15]The charge is duplicitous as it discloses more than one offence against s 194 (1) AMCD: that is, the word ‘or’ in s 194 (1) AMCD introduces separate elements creating different offences. Firstly, that the appellant failed to take reasonable steps to ensure the dog did not attack a person; and secondly, that the appellant failed to take reasonable steps to ensure the dog did not attack another animal. The two offences should have been charged in the alternative. The failure to do so constitutes a breach of s 43 (2) JA.
- [16]Although no objection about duplicity was made before the magistrate, his Honour failed to identify which of the offences the convictions related to. The conviction is ambiguous.
- [17]The respondent should elect one offence only to proceed with on the rehearing [s 43(3)(b)] and strike out the other charge.
Respondent
- [18]The appellant had unreasonably not raised the issue of duplicity either before or during the hearing below. This Court on the appeal could amend charge 1 either on the application of the respondent or otherwise, pursuant to s 48(1) JA.
- [19]However, the charge was not duplicitous because the language of s 14 (1) AMCD is descriptive of the relevant conduct that is the subject of the offence. The finding of guilt was regular.
Ground 3: ‘bodily harm’
Appellant
- [20]The complainant did not provide evidence that the puncture wounds interfered with his ‘health or comfort’, pursuant to the definition of ‘bodily harm’ in the Code. The evidence with respect to the injuries sustained by the dog and the owner were similar.
- [21]Nevertheless, the magistrate had drawn an inference that the injury interfered with the owner’s ‘health and comfort’, but he was unable to draw the same inference with respect to the attacked dog. The conflicting findings call into question the application of the definition ‘bodily harm’ and the reasonableness of the inference drawn by his Honour.
Respondent
- [22]The injuries suffered by the attacked owner and the dog amounted to ‘bodily harm’ pursuant to the definition in the Code. Even if an injury was “superficial”, a dog bite causing puncture wounds to each clearly amounted to an interference with ‘health and comfort’.
Grounds 4, 5 and 6: reasonable steps
Appellant
- [23]The magistrate was led into error by relying on the cross-examination of the appellant about the steps he could have taken, such as locking the gate, erecting a fence inside the property or having a self-closing gate, his Honour having based his findings on the assumptions and the concessions made by the appellant. It was submitted that the steps the complainant had in fact taken were reasonable and those raised in cross-examination were impossible for a reasonable person to have taken.
- [24]It was open on the evidence to surmise that the appellant’s 6 year child had either left the gate open or let the dog out and that the appellant had not therefore ‘failed to maintain an enclosure’.
Respondent
- [25]The appellant did not take ‘reasonable steps’. There was a demonstrable lack of reasonable and responsible behaviour. It was a matter of fact for the magistrate to consider whether ‘reasonable steps’ had been taken and it was open to him to characterise the appellants conduct as he found.
- [26]Ground 4 per se was not specifically addressed by the appellant and therefore may be considered to have been abandoned.
- [27]The appellant should have considered how the enclosure was secured and maintained the way the gate operated, where there was an excitable 6 year old child in the yard who was able to open the gate.
B. Charge 2
Grounds 1 and 2: previous conviction
Appellant
- [28]Once the appellant was convicted of charge 1, his Honour should have applied s 17 of the Code with respect to charge 2, the elements of charge 2 being identical to the [further] particulars for charge 1: that is, respectively ‘the failure to maintain an enclosure that prevents the animal from wandering or escaping from the land’, and ‘prevents the animal from being released from the land without the keepers’ permission’. The respondent relied on the same act and omission in relation to both charges.
Respondent
- [29]The appellant had not been ‘previously convicted’ in the hearing. In order for s 17 of the Code to apply the appellant had to have been tried and convicted for the same offence at an earlier time in separate proceedings before a Court of the same jurisdiction. The section only operates on an earlier “conviction” which can only be of an “offence”.
- [30]The magistrate did not ‘convict’ the appellant of either Charge 1 or 2, but found the appellant guilty of each of the matters of complaint without recording a conviction. Section 17 did not apply.
Ground 3: adequate enclosure
Appellant
- [31]The section comprised two offences. His Honour concluded that the appellant was guilty if he failed to comply with either (a) or (b) of s 14 (1) LLAM. That construction of the section amounted to a misdirection as to the elements of the charge,
- [32]Alternatively, the charge was duplicitous and the Court should have been put to an election: s 43 (3) (b).
Respondent
- [33]Section 14 (1) LLAM is a single offence of failing to maintain an “adequate enclosure”. In order to maintain an “adequate enclosure” subsections (a) and (b) provided two specific functionalities to be “adequate”. Therefore the proof of either (a) or (b) makes good the charge. In such circumstances, reliance on s 43 JA is not applicable.
- [34]Alternatively, pursuant to s 43 JA the appellant could have but failed, to require the respondent to make an election before the magistrate. He could not do so now.
Grounds 4 and 5: findings unreasonable
Appellant
- [35]In the context of grounds 4, 5 and 6 (of charge 1) the findings of the magistrate were unreasonable and cannot be supported by the evidence.
Respondent
- [36]In the context of grounds 4, 5 and 6 (of charge 1) the findings of his Honour were not unreasonable. The additional measures required by the appellant to maintain an ‘adequate enclosure’ were to ensure public safety, which is the objective of the LLAM.
Ground 6: defence of reasonable excuse
Appellant
- [37]His Honour erred by rejecting the defence provided in s 30 Local Law No 1 (Administration) 2001 “LL(No1)”. The appellant had a reasonable excuse for any contravention, because there were circumstances outside of his control. The appellant had maintained a fenced enclosure which had been previously described as “adequate” by Officers of the respondent.
Respondent
- [38]The appellant did not have a reasonable excuse pursuant to s 30. He misconceived what amounted to an “adequate” enclosure. There is no “reasonable” excuse by way of “adequate” fences in circumstances where the gates in the fences are capable of being opened, or likely to be left open, by the carelessness or disobedience of a young child.
The factual circumstances
- [39]The appellant in his submission summarised the facts in the following way [which I consider a fair synopsis of the transcript of the evidence in the hearing before the magistrate]:
“On the second of December 2014 Mr Andrew Everett was walking his dog in Bicentennial Park. As he came to Ross River end of Riverview Street, Hermit Park, he noticed a group of about four children playing in Riverview Street accompanied by a dog. The children were playing on the road way. There were no other adults in the immediate vicinity of the group of children.
The dog ran down the street at high speed, came to an abrupt halt close to Mr Everett’s leg, took one sniff, raised itself on to its back legs and clamped its jaw on the right side of the dogs face. Mr Everett suffered bite wounds to his hand as he tried to restraint and/or control the other dog and protect his own dog.
He told one of the children to get his parents. That child came back with a lead. The child took the leashed dog back to 3 Riverview Street and Mr Everett went home.
Mr Everett later returned to 3 River Street and spoke to Mr Lukacs at the fence. Mr Lukacs said he was aware of what had happened; that it was just “one of those things”; that it was an accident; and that nothing could be done [Mr Everett showed him his hand]. Mr Lukacs said he could not be responsible, saying “my child left the gate open and my dog got out.”
Mr Everett said he would report the matter to the Council. Mr Lukacs said “do what you like. I will be ok because the dog warden is my neighbour and nothing will happen.” Mr Everett said, “I’ll be still reporting it.” Mr Lukacs responded with the words along the line “you only – you have only got hurt because you have got between the two dogs.” Mr Everett said “I did what I did to protect my dog. What did you expect me to do: just let my dog get bitten and injured?” Mr Lukacs replied, “Yeah, fuck it. That’s what you should do.”
- [40]The appellant gave evidence that he believed that his 6 year old son was the boy Mr Everett was talking about. He said that he did not see what happened and [did not have direct knowledge] about what happened:
“He could only think that the dog was with [his young son] Mr Lukacs said to Mr Everett he saw [the boy] bring the dog in. He can only presume [the boy] left the fence opened or something.”
- [41]He said that his son and the boy living next door played with each other and was constantly between the two houses. He said:
“… he maintains an enclosure which prevents [the dog] wandering and escaping and also an enclosure which prevents him from being released without his permission. He did so by having two gates on the front of the property and one side gate. All the gates have proper locks, being D-locks, which hang down. There is a lock on the main driveway gate. He does not know what else he could have done.”
- [42]The complainant Mr Everett had seen the applicant’s dog in the yard previously (he walked past the yard perhaps twice weekly) and it had not attacked him or his dog, the fence on those occasions having stopped it from getting out.
- [43]The appellant in cross-examination had said that the D-latches did not need a key and were capable of being opened by a stranger and agreed that any person could enter the property without his knowledge. He did not think it was feasible to have key locks on the gate because numerous people visited the house. He did not expect that [the dog] would get out if someone came to the gate.
- [44]Council officers attended the home and met with [the dog] notes record “officers attended last weekend enclosure was adequate. It was just the issue of the gate being opening”.
Discussion: the convictions
1-Duplicity
- [45]The issue raised by the appellant is whether s 194 (1) AMCDA involves two offences, not one offence, if the appellant was found to have failed to comply with either (a) or (b) of the section.
- [46]The first question is whether the charge is duplicitous. The section relevantly states “… does not attack or act in a way that causes fear”. The appellant points to the word “or” as separating the phrase into two separate parts: that is, it is submitted that it constitutes separate charges.
- [47]I disagree. The word “or” means “to connect words, phrases, or clauses representing alternative: to be or not to be … to connect alternative terms: the Hawaiian or Sandwich islands”: the Macquarie Dictionary 2nd revised edition page 1199. It is the word ‘connect’ that is critical. It is a function of connectivity, not a separation.
- [48]The manner in which the section is expressed simply involves conduct which is descriptive of the offence and the use of the word “or” is not by way of splitting the conduct (in a holistic sense) into separate parts but simply by way of being synonymous, that is connecting two parts of a single phrase.
- [49]The whole of the phrase in the statement of the offence is descriptive of a single event of mischief by a dog in the context of a public, as distinct from private, locality, that has consequences for persons going about their personal affairs in a public place.
- [50]By way of contrast, in Cohen v Macefield Pty Ltd P/L & Ors [2010] QCA 95, [20] – [32] the duplicity alleged was that in the one charge there was an allegation of ‘damaging’ or ‘permitting to be damaged’ protected vegetation (which was the relevant offence in the section, the subject of a local authority Local Law). The issue was whether the section of the Local Law created a single offence or two offences. The Court found that there were two distinct offences created: Holmes J (as her Honour then was) wrote, at [26]:
“The first is that of damaging vegetation: directly, or through an agent, destroying it or interfering with its natural growth. Alleging that a defendant permitted damage is not merely an alternative way of describing the offence of damaging; its elements are different. Permitting damage entails, on the part of the person charged, knowledge or reason to anticipate or suspect that the act of damage will or is likely to be done; power to prevent it; (as a minimum) default in some duty of control or duty to interfere; and failure to prevent it.”
- [51]Her Honour continued to explain the distinction in the following terms at [27]:
“… the complaint as originally formulated charged that each of the respondents damaged or caused to be damaged the vegetation in question. The addition of the words “caused to be damaged” might properly have been regarded as a mere particular of damage, indicating that the defendant in question had committed the offence by directing others, rather than acting in person. The substitution of the word “permit”, however, introduced a further offence, rendering the count defective. It may be, given the disjunctive form of the charge (“damage, or permit to be damaged”), the defect is more correctly described as one of uncertainty than duplicity, but the term used does not matter for the purposes of this appeal”.
- [52]Her Honour referred to the observation of Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552, and at [24] cited Romeyko in the following context:
“Whether the charging in a single count of both damaging protected vegetation and permitting protected vegetation to be damaged did result in a count which was duplex depends, of course, on whether s 24(1) of the Local Law created a single offence or two offences. In a statement which is commonly cited as representing a correct approach, Bray CJ in Romeyko v Samuels [at p 552] offered the following guide:
“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics.””
- [53]Insofar as the raising of the point on appeal for the first time, her Honour wrote at [29] that an appeal ground ground based on duplicity may be taken for the first time on the appeal: Walsh v Tattersall (1996) 188 CLR 77, at 82, 109; and at [30] that in the absence of objection there was no requirement for [the magistrate] to require the prosecutor to elect on which ‘charge’ they would proceed on “as s 43(3)(a) contemplates.” Consequently it was open for the magistrate to proceed with the hearing through to its conclusion pursuant to s 43 (3)(b). However, that did not permit the magistrate to record an ambiguous conviction.
- [54]In Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89, there was a breach of s 43(2) JA. The Industrial Magistrate held that there was no jurisdiction to amend the change and dismissed the complaint. The Court considered the scope of the power of amendment under s 48: see [95], [20] to [32], [161] to [163] and [165]. The court held that the complainant should have been put to an election as to the offence which he proposed to proceed upon, before dismissing the complaint for non-compliance. Jackson J (with whom McMurdo P and Morrison JA agreed) made a thorough analysis of the application of the power of amendment and considered at [149] that it required a focus “as to the offence sought to be charged on the face of the complaint including the particulars.”
- [55]Section 43(2) JA provides:
“When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.”
- [56]Section 48 JA provides that if there is simply a defect in a complaint, it may be amended at a hearing, however where there is a “non-compliance” that does not allow an amendment. That would leave it open for the prosecutor to elect to proceed on one charge.
- [57]If there is no power to amend the charge in order to save any non-compliance with section 43, the prosecution could elect to proceed on charge 1. For example, to take the approach referred to in Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & ors [2014] QCA 129.
- [58]I should say something about the function of particulars provided for offences generally, because of my discussion of these specifically in respect of the charges in this case.
- [59]His Honour in Harrison, inter alia, considered that the charge in the complaint “did not change the alleged offences in the words of the Act creating the offence, or in similar words”, the articulation of the offence being left to the particulars; and at [163] that such was not the appropriate or required form of criminal pleading under the JA.
- [60]His Honour wrote that:
“[164]…The requirements for a complaint under [the Justices Act 1886 (Qld)] do not generally refer to a distinction between the pleading of a charge and a complaint and any particulars of the facts alleged. In contrast, [charges under the Criminal Code provide] that an indictment must set forth the offence with which the accused person is charged in such manner with such particulars as may be necessary to inform the accused person of the nature of the charge.
[165]The purpose of particulars is not the same as the purpose of charging the alleged offence in the words of the Act. The charge itself must satisfy the requirement that it charges an offence known to law. And “it is preferable that a statutory offence be pleaded in the relevant terms of the statute by which it is created.” Even where the words of the section creating the offence are used, the absence of particulars may leave the accused person without notice of the facts to prove the charge. In R v Trifyllis [[1998] QCA 416], Chesterman J said:
The function of particulars is to enable an accused to know the nature of the charge which he is called on to meet.”
2Bodily harm
- [61]Bodily harm is defined in s 1 of the Criminal Code 1899 (Qld) as “any bodily injury which interferes with health or comfort.”
- [62]In my view the description of the injuries to both Mr Everett and to the Dog potentially make an inference of ‘bodily harm’ open and reasonable to draw. It is risible to suggest to the contrary. It is not necessary, in circumstances such as in this case, that a victim must state that, for example “I was bitten by the dog, there were puncture wounds in my right hand, it hurt and it caused me discomfort”. The dog cannot speak, but the objective description of what happened to it when the applicants’ dog bit its face is a sufficient basis for an inference of bodily harm to be drawn.
- [63]In R v Tamcelik; Ex parte Ozcan [1998] 1 Qd R 330 the majority in the Court of appeal in discussing the meaning of “bodily harm”, held (Fitzgerald P at 333) that “physical pain or hurt is insufficient to constitute “bodily harm””. His Honour referred to R v Scatchard (1987) 27 A.Crim.R. 136 (Full Court of Western Australia) and R v Chan-Fook [1994] 1 WLR 689 (Court of Appeal) at 694. Where the Court stated that it considered that the words then under consideration, namely “actual bodily harm”:
“…three words of the English language which require no elaboration and in the ordinary course should not receive any. The word ‘harm’ is a synonym for injury. The word ‘actual’ indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant …”
3-Reasonable steps
- [64]A Council officer Mr Collier, said that there was nothing inadequate about the fence enclosure. However, the issue was that the gate was left open and the dog got out.
- [65]The fencing requirements were described in the information available from the respondent’s website, in the following terms:
“Fencing requirements
As a responsible pet owner, it is important to ensure that the fence or dog enclosure is:
1.High enough that the dog can’t jump over;
2.Low enough that the dog can’t dig under;
3.Strong enough that the dog can’t push it over;
4.Hole-proof so the dog can’t escape through it.
It is also important that the fence is designed so that the dog can’t attack people through it.”
- [66]As I have said the enclosure was considered to be adequate, but only provided the gate remained closed. There is nothing in the information in the Council website that requires the gate to be “locked”. Lockable gates or not, an enclosure is only as secure as long as it remains an enclosure. The word “enclosure” is defined in the Macquarie Dictionary 2nd Revised Edition as a “tract of land surrounded by a fence; that which encloses, as a fence or wall.”
- [67]The appellant maintained that the prosecutor had imported elements of charge 2 into charge 1 and vice versa, in cross-examination and in submissions. This is no doubt a reference to the ‘further particulars’ provided in the email to which I referred in [4]. Whilst there are two charges, they co-exist in a common sense and regular way. Expressed in simple terms, one offence deals with the security of the enclosure; the other offence deals with the animal having breached that otherwise secure enclosure, by some means or other, and caused injury to a person and/or an animal, who was outside the enclosure, in a public place.
- [68]Section 14(1) LLAM proscribes a single offence where a person keeps an animal. The person must maintain an adequate enclosure that prevents the animal from wandering or escaping from the persons land; and prevents the animal from being released from the person’s land without that person’s permission.
- [69]The maintenance of an adequate enclosure is mandatory (“must”), the word “that” is directive with respect to the word “prevents” where it appears twice and the word “and” joins the two operative particulars of the offence. The latter are read together and constitutes the offence. The conjoining word is “and”, not “or”.
- [70]In other words, the appellant was required to provide an adequate enclosure such as to prevent the animal wondering or escaping from it and from being released without his permission.
- [71]The ‘further particulars’ sensibly and properly explain the gravamen of Charge 1. If the enclosure was adequate (Charge 2) then the offence in Charge 1 could or would not be committed.
- [72]I do not consider there is any merit in this ground. The particulars (whilst they could have been better expressed) were made in a holistic and broad context, referring to the enclosure and the adequacy of the gate and its mechanism. Whilst that clearly relates to charge 2, it is no less relevant to charge 1 because it is the breach of that requirement that led to the escape or release of the dog.
- [73]The appellant’s dog was outside the yard and in the street. The appellant accepts that as a fact. The enclosure could not have been adequate because the dog would otherwise have remained in the enclosure, unless it was outside on a leash and under supervision. The dog did not simply materialise in that location. It must have escaped from or have been released from the enclosure by someone or in some way. The complainant Mr Everett said that the appellant told him it was an ‘accident’ and that his child “left the gate open and the dog got out”.
- [74]The point in issue in these three grounds is whether the gate should have been able to be opened by a child or not closed and ‘left open’. If any person, child or adult, could open and pass through the gate, was it enough in the context of maintaining an adequate enclosure, that the child or adult must upon passing through it, close and secure the latch to secure the gate? Was it unreasonable not to ensure that the gate would close and latch by its own movement and without human hand?
- [75]The appellant referred to this issue as constituting two “errors” in the court below. How the prosecutor may have characterised the particulars is irrelevant, because this is a matter for me on the rehearing. There was no so-called ‘importing’ of elements of one charge into the other charge. The charges are regular and separate. There is no duplicity.
4Previous conviction: application of section 17
- [76]It is incorrect to assert that section 17 arises in the circumstances of this case. On the date of the finding of guilt and the convictions of the appellant of the two charges, he had not been “previously convicted”.
- [77]Section 17 of the Criminal Code Qld relevantly provides:
“It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.”
- [78]Section 17 does not refer to a complaint (or an indictment) that contains more than one charge. It refers to “an earlier time”: that is, where a person has been tried and convicted of the same offence, at an earlier time and in a separate proceeding, and subsequently charged and convicted in a proceeding later in time.
- [79]Of course (contrary to the submission of the respondent on the appeal), a “conviction” naturally follows a finding of guilt on a charge. In indicatable offences the allocutus is read (although a failure to do so does not mean a defendant has not been convicted), but in the Magistrates Court that formality is either not required or not observed.
- [80]The non-recording of a conviction is an entirely different matter. The defendant has been convicted. The ‘non-recording’ means what it says. It is disclosable for adults with respect to any subsequent offending and for court purposes as part of criminal history. However, it does not need to be disclosed by a defendant for non-court purposes, such as applications for employment and such-like.
- [81]The magistrate’s difficulty in determining the section 17 issue may be interesting but it is also irrelevant. It is a matter for me to determine that issue in this appeal. There is no section s 17 issue arising in the circumstances of this case.
5Findings of facts unreasonable
- [82]The Magistrate found that the appellant “… did not maintain an enclosure that prevented [his dog] from being released from the land without his permission.”
- [83]The appellant submitted that finding was unreasonable because a fence was maintained that prevented a dog from being released from it, provided the gate was closed.
- [84]I disagree. The maintenance of an enclosure addresses an important matter of public safety. That is why it is expressed with the mandatory language. It may be inconvenient or expensive to comply with the section, but that is irrelevant. The section means what it says, whatever the inconvenience or cost may be in order to comply with the Local Law: ‘adequate’ does not mean ‘absolute’. But the law requires a ‘responsible person’ to comply. A ‘gate’ that is easily opened and not closed, is not ‘adequate’. In any event, the evidence of the appellant showed him to have a lack of understanding of the public policy purpose of the Local Law: to protect persons and their animals frequenting a public place or domain from injury or fear caused by dogs that can exit a private domain. That is the mischief that the Local Authority has plainly seen fir to prevent by legislation and Local Law. It is reasonable, common sense and practical. Inconvenience is irrelevant. Dog owners have a mandatory responsibility for the safety of others and their animals from harm when in a public place.
6Reasonable excuse
- [85]Section 30 of the Local Law (Admin) provides:
“30.Defence of reasonable excuse
If a person is charged with an offence involving a contravention of a local law, it is a defence to prove that the person had a reasonable excuse for the contravention.”
- [86]Did the appellant have a “reasonable excuse” in terms of the section for a contravention of the local law? Was the opinion of the council officers that the fenced enclosure was “adequate” relevant?
- [87]A “reasonable excuse” for a contravention is defined in the following terms in the Encyclopaedic Australian Legal Dictionary: “A justification for conduct, particularly that of an accused, which is otherwise illegal where that justification is considered appropriate by a tribunal of fact given all of the circumstances in which the conduct occurred.”
- [88]The “enclosure” is the fence and any point of access to or egress from the enclosure: for example, a gate or gates. A fence may be “adequate” but so too must a gate be “adequate” if a gate can simply be unlatched and opened or may be left open by someone passing through it, then continuity of the enclosure is breached and it is no longer “adequate”. It cannot be otherwise.
- [89]A ‘reasonable excuse’ in respect of an otherwise unlawful act requires a temporal nexus between the excuse and the act. For example, see: R v Taikato (1996) 186 CLR 454. In the context of this case, if a gate can be opened and not closed by a child (in an otherwise securely fenced enclosure), then there is no such ‘temporal’ nexus in respect of a ‘responsible person’ (the appellant) in terms of the two provisions pursuant to which the charges were made.
Resolution: convictions
- [90]There was no ‘reasonable excuse’ that the appellant can rely on in the circumstances of this case.
The Sentence
- [91]The magistrate imposed a single fine of $1,300.00 for both charges.
- [92]On sentence, I am required to identify any error by the magistrate and if appropriate, exercise the sentencing discretion afresh.
- [93]In House v R (1936) 55 CLR 504 (at p 505), Dixon, Evatt and McTiernan JJ stated:
“The manner in which an appeal against an exercise of discretion is governed by established principles. It is not enough that the Judges composing the Appellant Court consider that, if they had been in the position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principal, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellant Court may exercise its own discretion and substitution for his if he has the material for doing so.”
- [94]In Hughes v Hopwood (1950) QWN 21 (at p 31), Macrossan CJ in reference to the exercise of discretion on sentence, stated that an Appeal Court is not entitled to interfere unless it “… can find that the sentence is manifestly excessive or that there are some circumstances which show that the Magistrate act under a misapprehension of fact or some wrong principle in awarding a sentence.”
- [95]In Minister for Aboriginal Affairs & Ors v Peko-Wallsend Limited & Ors (1985 – 1986) 162 CLR 24, the High Court observed that “… the principle that an Appellant Court can interfere with a trial Judge’s exercise of discretion only if the has been some identified error or manifest injustice in the exercise of the discretion also applies when a discretion has been exercised by an intermediate Appellate Court.”
Grounds of appeal
- [96]The appellant appealed his sentence on following grounds:
1The magistrate erred by giving too much weight to the submission by the prosecution; and
2The magistrate erred in failing to consider and apply s 16 of the Code by punishing the defendant twice for the same act or omission.
- [97]I note that the appellant abandoned the ground that relied on s 16 of the Criminal Code (Qld).
Submissions
Appellant
- [98]The sentence should be reduced if the court is satisfied that Charge 1 was duplicitous. One charge should be elected. His Honour had erred by giving excessive weight to the submission by the prosecutor, who provided a range of penalty and the penalty imposed was within that range.
Respondent.
- [99]The magistrate did not accept and act on the prosecutor’s ‘range’. The fine imposed on the appellant was less than what was advocated by the prosecutor and demonstrated that the magistrate formed his own view of the appropriate sentence. If the appeal is granted, then that ‘range’ would simply be irrelevant and fresh submissions may be made in this Court and the appellant re-sentenced.
Discussion: the sentence
- [100]The appellant in effect is arguing that the fine was excessive in the circumstances (albeit in the context of the allegation that there should have been only one charge and one conviction) and was critical of the ‘range’ submitted by the prosecutor.
- [101]The prosecutor had submitted that the range of fines, by reference to other cases involving attacks by dogs injuring persons, was $500.00 to $1,300.00 and submitted that a fine between those two figures (one being a more serious factual case than the other). He did not press for a conviction to be recorded. He agreed that a single penalty was appropriate in the circumstances. He made application for filing costs and costs thrown away on previous adjournments of the trial, but not for the trail per se.
- [102]The defendant’s lawyer had submitted that there had not been any issue involving the dog previously and that the defendant was a man of 57 years of age and of otherwise good character. She did not make a submission as to the quantum of any fine but sought no recording of convictions. With respect to costs she referred to the defendant having made a number of concessions in evidence. He had lost his employment (with many others) at Queensland Nickel and that was the reason for the adjournments of the trial when the employment events had created a terrible timing for him.
- [103]The magistrate’s sentencing remarks: his Honour took into account the defendant’s antecedents, found that the defendant’s dog had focused on Mr Everest’s dog and not upon him, that Mr Everest had been injured whilst trying to protect his own dog from the attack, that the injuries were superficial and that the defendant’s dog had not previously been implicated in any similar conduct. He regarded a single nominal fine as being appropriate and no convictions to be recorded. He made a costs order less than that applied for by the prosecutor, in the sum of $2,026.30 in total, for filing fee, instructions, preparation and attendance at trial and the three mentions (at a discounted amount).
- [104]The maximum penalty for an offence against s 194 (1) AMCDA was 50 penalty units and for an offence against s 14 (1) LLAM was 20 penalty units. A penalty unit is currently $121.90 (as from July 2017), but was $117.80 at the material time. It is the latter that is applicable.
- [105]A sentence is ‘manifestly excessive’ “… If it is “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”: R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 151 CLR 606.
Resolution: sentences
- [106]The fine imposed was not excessive. There was no error and it was within the discretion of the magistrate to impose. I have referred to the maximum fine sin respect of each charge. He appellant showed no remorse for the injuries suffered by Me Everest or his dog. He was unrepentant about the adequacy of his enclosure. He blamed Mr Everest for the injury having been caused. He had no empathy for the victim or his dog (which is curious in the context of his being a dog owner). He was dismissive of the concerns expressed by Mr Everest that he and his dog were injured when peaceably passing by, in a public place, the yard of the appellant.
- [107]A fine of $1,300.00 in the context of two offences that have maximum fines of $2,356.00 and $5,890.00 respectively is not excessive in the circumstances of this case. The application of the totality principle to the two charges, with the imposition of a single fine is neither beyond the acceptable scope of judicial discretion or so outside the appropriate range as to demonstrate inconsistency and unfairness.
- [108]I have nothing to add about the costs order which seems to have followed the event upon a reasonable assessment.
- [109]There is no reason for me to interfere with the sentence imposed by the magistrate.
The Court’s powers on the appeal
- [110]On the hearing of the appeal I can confirm, set aside or vary the appealed orders: section 25 JA.
- [111]The convictions and the sentence imposed are confirmed.
Orders:
- Appeal dismissed.
- The convictions of the defendant in the Magistrate Court at Townsville 23 March 2016 are confirmed.
- The sentence imposed on the appellant in the Magistrate Court at Townsville on 23 March 2016 is confirmed.