Application by Sean Fennell pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2016] NSWSC 307

Summary of evidence and issues in the Local Court hearing

1. The victim who had been attacked by the defendant's dog gave evidence-in-chief over 14 pages of transcript. He was 75 years old at the date of the attack. He took his dog, a border collie named Harley, for a walk at about 5:20am on 21 June 2011. He walked from his house in Carringbah to the Glenn McGrath Oval which was nearby. He had commenced to jog around the oval when he was knocked to the ground by a Rottweiler which bounded up to him. The dog fastened its jaws onto his right arm, gnawed on it and shook it vigorously, growling as it did so.
2. A man whom Mr Fischer was not able to identify came up to him whilst this was occurring and removed the dog. He said that he would call an ambulance. He said that he lived in "the next street". No ambulance came and Mr Fischer walked home. His daughter drove him to the emergency department of Sutherland Hospital. He had reduced sensation in his right arm which was bleeding profusely and which the triage nurse described as having sustained a "massive wound". From Sutherland Hospital he was taken to the Sydney Hand Hospital for specialist examination and treatment.
3. The cross-examination of Mr Fischer was recorded over 43 pages of transcript. He was questioned about how far he had gone on Glenn McGrath Oval when he was attacked. It was put to him that his own dog required a halter and muzzle to restrain it from biting. He was questioned as to whether the man who pulled the dog off him had an English accent. Further questions concerned the point at which he had felt numbness in his arm and when he had first noticed blood from the wound. He was challenged as to the reliability of his identification of the breed of dog which had attacked him. He said he knew it was a Rottweiler because its face was very close to his own. It was put to Mr Fischer that the dog attack occurred at 5am rather than at about 5:30, as said by the witness, but he adhered to his recollection of the time.
4. Defence counsel put to Mr Fischer - and he denied - the defendant's version of events: that Mr Fischer's dog had bounded towards the defendant and the two Rottweilers which the defendant was walking, on leads, and had attacked the smaller Rottweiler. It was put that Mr Fischer's dog had fought with the larger of the defendant's Rottweilers (named Rommel) and that when Mr Fischer ran up and tried to separate them he was bitten in the course of doing so. All of this was rejected by Mr Fischer. He had made statements about the events prior to the hearing and he was cross-examined about suggested inconsistencies between those statements and his oral evidence.
5. An inspector employed by Sutherland Shire Council, Ms Pettell, gave evidence that information about the dog attack was received by the council from police, who had in turn received a complaint from Mr Fischer and his daughter. Council officers identified that David Fennell, the defendant's father, was registered as the owner of two Rottweiler dogs. On 14 July 2011 council officers obtained buccal swabs from both of these dogs for the purpose of DNA profiling. Also an identification chip embedded in the neck of each dog between the shoulder blades was scanned to confirm that they were the dogs registered to David Fennell as owner.
6. Another council officer, Mr Richardson, established that the scan of the chips confirmed the identity of the two dogs. He provided evidence of continuity of the buccal swabs and of the jacket which Mr Fischer had been wearing when he was attacked from the hands of council officers to a laboratory which carried out DNA matching. A laboratory report was tendered showing that Mr Fischer had been bitten by the older and larger of the two Rottweilers registered to David Fennell. That is, the dog named Rommel. Mr Richardson testified that on 14 July 2011 at the residence of David and Sean Fennell, the defendant had given a version of the circumstances in which Mr Fischer had been bitten, thereby implicitly acknowledging that he was the person who had been present. This part of the conversation between Mr Richardson and Sean Fennell was challenged in cross-examination. It was put that Sean Fennell had stood mute in the face of Mr Richardson's questions on this occasion. Mr Richardson disagreed.
7. The defendant gave evidence in his own case. Towards the end of the first hearing day his evidence-in-chief occupied 13 pages of transcript and on the second day, 24 July 2012, a further 8 pages of transcript were taken. He was then cross-examined over 40 pages and re-examined over a further 6. He said that he had had both of his Rottweilers on leads in the very early morning of 21 June 2011 at Glenn McGrath Oval and that Mr Fischer's border collie "charged out and was real savage and directed it straight at the smaller dog ['Bonnie'] that I had in my left hand". He said the collie had had no lead attached and that it ran around behind the defendant and attacked the back left leg of Bonnie. The defendant said that the older and larger dog, Rommel, intervened between Bonnie and Mr Fischer's collie and that a fight between the two of them ensued.
8. According to the defendant Mr Fischer arrived at the scene and wrapped his arm around the neck of his own dog whilst it was fighting with Rommel in a bid to separate them. He denied having seen Rommel bite Mr Fischer and he disputed that this occurred. He also denied that Mr Fischer was ever knocked to the ground. He said that Bonnie did not fight with or bite Mr Fischer's collie nor bite Mr Fischer himself. He expressed the view that it was "very probable" that Mr Fischer was bitten by his own dog during his endeavour to separate it from Rommel. Sean Fennell denied that he had allowed either of his dogs off their leads at or about the time Mr Fischer said he was attacked.
9. The defendant asserted, in cross-examination for the first time, that his smaller and younger dog Bonnie was subsequently found to have suffered a leg injury due to twisting, which required surgery and which he claimed was consistent with the injury having been sustained when Mr Fischer's border collie attacked, as he described. He said there was no externally visible wound to Bonnie but that its back left knee had had to be reconstructed. He attributed this to the alleged encounter with Mr Fischer's border collie. Sean Fennell accepted that he was in charge of the two Rottweilers at the time of the interaction between the dogs and Mr Fischer. His claim not to have seen any of the dogs bite Mr Fischer was made notwithstanding he had his own two dogs on leads and therefore in close proximity to himself throughout. Sean Fennell gave evidence that he was the owner of Rommel although he had caused it to be registered in his father's name because he was himself intending to travel overseas.
10. The triage nurse at Sutherland Hospital to whom I have referred above, Ms David, was called in the defence case. She said that Mr Fischer had presented with a "massive wound on his right forearm" and that he had said it was the result of being "accidentally attacked by another dog". She did not explore with Mr Fischer what he had meant by "accidentally"; nor did she question him on the details of the incident.
11. The final witness for the defence was a professional dog trainer named Steven Austin. He testified to the likelihood of a person being bitten on the arm if he should involve his hands and/or arms in a fight between two dogs - which is what the defendant asserted had occurred.
12. On this evidence the question whether the prosecution had made out the offence clearly turned upon whether the magistrate was satisfied beyond reasonable doubt of Mr Fischer's account of events and whether or not she was affected by any reasonable doubt in the matter upon the basis of the conflicting version given by the defendant. The magistrate found Mr Fischer's version of events "consistent and plausible". She considered that he had been "ably cross-examined about discrepancies in different versions he had given". Her Honour considered submissions on behalf of the defendant about characteristics of Mr Fischer's evidence which were said to make him "a contrary witness". The learned magistrate rejected these submissions and found Mr Fischer to have been "careful but straightforward". She considered that at times during the giving of his evidence he had shown signs of being exasperated but she did not find him "contrary". Her Honour did not find significance in the discrepancies between his oral evidence and past out-of-Court statements. She considered that he had not been shaken by cross-examination as to his account of the events.
13. On the other hand, her Honour did not find the defendant's evidence satisfactory or reliable. The wound on Mr Fischer's right forearm, which was described by the triage nurse and was the subject of photographs tendered in the prosecution case, clearly demonstrated that Mr Fischer had been severely bitten. It was not at all credible to the learned magistrate that Sean Fennell should not have seen this bite take place, given that he claimed to have been holding both of his Rottweilers on leads at the time it must have occurred. The DNA matching strongly supported a conclusion that Rommel had inflicted the wound.
14. Her Honour also found it discrediting of Sean Fennell that his assertion that his smaller dog Bonnie had been injured in what he described as a clash between all three dogs was first mentioned in cross-examination. If there was truth in this her Honour thought it would have been clear to Sean Fennell that it would materially support his version of events and tend to contradict that of Mr Fischer - yet he had not mentioned it in his evidence-in-chief. Further, her Honour found highly implausible Sean Fennell's contention that it may have been Mr Fischer's own dog Harley that inflicted the severe injury on his right arm.
15. In addition to these material improbabilities in Sean Fennell's evidence her Honour assessed his demeanour as being defensive and at times extremely defensive. She considered that this did not enhance his credit. In summation her Honour said: "I just did not believe Mr Fennell's account. I could not rely on it. … In my view it was not a reliable account and in my view at times it contained direct lies". I find the learned magistrate's reasons coherent, logical and measured. I see no basis for doubting her conclusions.

The grounds of the application

1. It has been said that the emergence of new facts that have not been previously agitated may constitute "special facts or special circumstances" to justify the taking of further action under ss 78 and 79 notwithstanding that there has been a full hearing of the charge at first instance and/or an appeal which has been withdrawn: see Re Cheney (No 1) [2015] NSWSC 291 at [35]. I will state in summary form the grounds which have been advanced by David Fennell on behalf of his son Sean in support of the application under ss 78 and 79, first in order to see whether these raise any new facts which were not agitated in the Local Court hearing and secondly to see whether they raise any fact or circumstance which is "special" in any other sense relevant for the purposes of the section.
2. The applicant's grounds have been presented to the Court in four documents as follows: 1. 404 typed pages divided into 44 sections submitted to the Court under cover of a letter of 20 October 2013; 2. a 6 page letter dated 4 December 2013 containing supplementary submissions; 3. an 8 page letter plus annexures submitted 23 February 2015 and 4. 88 pages of submissions in reply together with 18 pages of annexures (these were in reply to submissions on behalf of the Crown dated 6 July 2015, of 22 pages).
3. The documents identified in the preceding paragraph make reference to a large volume of supporting material supplied to the Court in electronic form. If printed the supporting material would run to several lever arch folders. I have examined it cursorily, to satisfy myself of its general nature rather than to master its detail.
4. For the purpose of describing the general nature of the material in the original 404 page submission, the various sections of it may be grouped as follows. Sections 1 - 8, 13 - 19, 21 - 29, 37 and 39: These are submissions about the evidence given before the magistrate, in which extracts are quoted and arguments are made about contradictions, improbabilities, and credibility of witnesses. Gratuitous unsworn additional assertions of fact are made, including unsworn and unqualified opinion evidence about the characteristics of the respective breeds of dogs which were involved in the incident. There are also assertions made in these sections concerning evidence which it is said might have been called but was not, about alleged lack of adequate continuity evidence for physical and documentary exhibits and many other subjects.
5. The submissions in these sections do not raise any special facts or circumstances which would justify the taking of any further action in relation to the conviction. The defendant had every opportunity to argue the points now made and to adduce any of the additional evidence which is now referred to. There is nothing relevantly special about the matters raised. Without sifting through the enormous volume of submissions it is not possible to discriminate whether some of them may in fact have been agitated in the hearing before the magistrate in any event. Some of the arguments that are raised are invalid or weak. Having regard to the thoroughness with which, as the transcript shows, this very insignificant case was litigated, it may reasonably be inferred that to the extent available arguments mentioned in the applicant's present submission were not agitated in the hearing this would likely have been because the defendant's legal representative chose not to.
6. Sections 9, 10: These sections are concerned with the making of a dangerous dog declaration and control orders in August 2011 and with various hearsay assertions by dog handlers at Hanrob Dog Training School Heathcote. None of this material appears relevant to the case or admissible in it. To the extent that it may have been it would have been available at the time of the hearing and no special circumstance is demonstrated by adverting to it at this stage, in connection with an application under s 79.
7. Sections 11, 12: Allegations are made of undue familiarity between council officers and the complainant, Mr Fischer. It is also asserted that Mr Fischer had various associations with the council through his involvement in community affairs. Assuming these assertions to be correct there is no apparent significance in them, with respect to the conduct of the prosecution. Having read the transcript of the proceedings in the Local Court it is apparent that the essential facts in issue fell to be determined according to the credibility of Mr Fischer's account. Whatever association he may have had with the council and however familiar and friendly relations may have been between him and any council officers, these matters could not make any difference to the magistrate's assessment of his evidence. No special facts or circumstances are demonstrated by the matters raised in these sections.
8. Section 20: In this section the applicant complains of the unavailability of Legal Aid in circumstances where his son, the defendant, "had no money and could not afford to pay for a proper legal defence to the charge". The complaint relates to funding for representation at first instance. This assertion gives rise to no special fact or circumstance because in fact the defendant did obtain legal representation for the hearing. It is demonstrable from the transcript that the representation was competent and at least adequate.
9. Section 30: In this section the applicant analyses the magistrate's expressed reasons for her decision and offers a critique of them. The criticisms made of her Honour's reasoning do not appear to be justified. But even if they were the existence of deficiencies in the reasons would not constitute any special fact or circumstance warranting further enquiry under s 79 because these matters could have been taken up on appeal. A repetitive theme in the submissions, including in section 30, is that the magistrate failed to appreciate that the defendant was unwell and in pain when he gave evidence and failed to take this into account in assessing him as a witness. In fact the transcript shows that the magistrate was informed at the beginning of the hearing about the defendant's illness and discomfort. There is no basis for an inference that she did not take it into account.
10. Section 31: The applicant attributes the failure to prosecute the appeal to a lack of funds. The conviction was for a very minor offence. The penalty was small and an appeal with legal representation could not have been justified upon economic grounds. Nor could it have been justified on grounds of concern with respect to criminal record and reputation. The conviction involves no element of violence, dishonesty or immorality. It is a regulatory infringement. It is comparable in status with a road traffic offence. Hence there was not sufficient at stake in the appeal, either on economic or other grounds, to have warranted pursuit of it even if funds could have been procured.
11. The fact of an appeal not having proceeded, assuming that this occurred for want of funding, does not give rise to any relevant special circumstance. It certainly does not warrant that the Supreme Court should now inquire into this application, at the enormous public expense which would be involved in reviewing the hundreds of pages of written submissions in detail, where the party interested has not prosecuted an appeal through an avenue that was readily available to him. It is apparent that the voluminous submissions submitted on this application have not been prepared by a legal practitioner. As the defendant is able to mobilise, without legal representation, the considerable effort that has been put into this application, so he could have prosecuted his appeal to the District Court without representation.
12. Section 32: In this section unsworn hearsay evidence is provided concerning a confrontation between the defendant and Mr Fischer's wife on 11 March 2012. This is completely irrelevant to the conviction.
13. Sections 33 and 34: The applicant quotes articles published in local newspapers of the southern suburbs of Sydney and asserts that they contain inaccuracies. Again these assertions are entirely beside the point to the present application under s 79.
14. Sections 35, 36 and 41: The applicant has reviewed a number of internal council communications and proffers criticisms of their accuracy. These have no bearing upon the correctness or otherwise of the magistrate's decision, including her evaluation of the evidence led before her and her application of the law to her findings.
15. Section 38: The applicant has quoted another article from a southern suburbs local newspaper which attests to the potential danger to human beings if they intrude themselves into fights between dogs. It was open to the defendant to adduce evidence on this subject to whatever extent he wished at the hearing in the Local Court. The provision of this additional evidence after conviction does not give rise to any special circumstance which would warrant further inquiry into the matter. In any event, the whole topic would only be relevant if the tribunal of fact had accepted that Mr Fischer did intrude himself into a fight between his dog and one of the defendant's dogs. That was the case which the defendant advanced but which the magistrate rejected.
16. Section 40: The applicant describes the circumstances in which he acquired his dog Rommel. That history is irrelevant to the question of whether there is any reason to doubt the reliability of the magistrate's finding that the charge against the defendant was proved.
17. Section 42: The applicant has here set out his recollection of a number of contacts with council officers, dating back to 2009, in which he considers that they were abrupt in dealing with him concerning complaints of his dog straying from his own property. All of this material is irrelevant to the conviction.
18. Section 43: This section comprises eight pages of summaries of complaints which it is asserted have been made against Sutherland Shire Council over a range of issues of town planning, environmental protection, financial corruption and many other subjects. All of these matters are entirely irrelevant to the conviction of the defendant on the subject charge.
19. Section 44: This section is headed "Conclusion" and contains a wordy and repetitive summary, over 15 pages, of points that are made elsewhere in the 404 page document. Because this section involves a summary of topics that have been referred to and considered above, there is no necessity to address it separately.
20. The letter of 4 December 2013 (item (2) at [25]) reiterates some of the matters already covered in the original 404 page summary. For example complaints about the magistrate not having taken account of the defendant's medical condition are restated. Because of the repetitive nature of this letter it is not necessary to address its contents subject by subject.
21. The applicant's letter of 23 February 2015 is again repetitive. The only additional material in it is a submission about a statement of claim that Mr Fischer filed in the District Court on 7 November 2013 claiming damages which he alleges resulted from the dog attack which was the subject of the prosecution. That statement of claim is manifestly irrelevant to the question of whether any special facts or circumstances have been demonstrated which would warrant action under s 79 with respect to this conviction.
22. The 88 pages of submission in reply are, again, repetitive of material which is contained in the original 404 page application. They proceed by way of answer, point by point, to the Crown's submissions. But overall they simply amount to further argument about what evidence should have been accepted by the magistrate and why, what evidence should have been rejected and so on. These were all matters for the appeal if it had been pursued.
23. The submissions in reply, as with the original 404 page document, include a number of criticisms by the applicant of the legal representative who appeared for the defendant before the magistrate. It is asserted that he should have obtained certain documents on subpoena, that he should have led additional evidence which in the event he chose not to lead and that he should have raised certain arguments. No special circumstance is identified in these respects. The inordinate detail, frequent irrelevance and general verbosity of the applicant's submissions is such that one cannot identify from them any point or points which would clearly demonstrate a lack of competence or of integrity on the part of the defendant's representative at the hearing, such as would warrant further action under s 79 to ascertain whether there may have been a miscarriage of justice.

Conclusion

1. For these reasons I am not satisfied that there are "special facts or special circumstances that justify the taking of further action" in relation to this application. Accordingly, pursuant to s 79(3) I refuse to deal with it.

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