Council of the City of Lake Macquarie v Wayne Jeffrey Morris

Crimes (Local Courts Appeal and Review) Act 2001 Companion Animals Act 1998 Dog Act 1966 LEGISLATION CITED : Crimes Act 1900 Justices Act 1902 Suitors' Fund Act 1951

Torrance v Cornish (1985) 79 FLR 87 R v Serratore (1999) 48 NSWLR 101 May v O'Sullivan (1955) 92 CLR 654 at 658 Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 Kingswell v The Queen (1985) 159 CLR 264 Eadie v Groombridge (1992) 16 MVR 263; BC9201687 Zappia v Allsop (Court of Appeal, 17 March 1994, BC9402327) Crump v Sharah [1999] NSWSC 884 Coleman v Barrat [2004] NSWCA 27 Johnson v The Queen (1976) 136 CLR 619 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 Kavalee v Burbidge (1998) 43 NSWLR 422 CASES CITED : Francis v Flood (1978) 1 NSWLR 113 Phillips v Cassar (1979) 2 NSWLR 340 Vines v Djordjevitch (1955) 91 CLR 512 Lynch v Attwood (1983) 3 NSWLR 1 Mikhael v Conroy (Supreme Court of NSW, 6 December 1990, BC9002962) Mitchell v Nestle Australia Limited (1988) 36 A Crim R 199 Downes v Director of Public Prosecutions [2000] NSWSC 1054 Ex parte Ferguson; Re Alexander (1944) 45 SR(NSW) 64 Proudman v Dayman (1941) 67 CLR 536 R v Wampfler (1987) 11 NSWLR 541 Von Lieven v Stewart (1990) 21 NSWLR 53 Acuthan v Coates (1986) 6 NSWLR 472 The Queen v Olbrich (1999) 199 CLR 270

The Council of the City of Lake Macquarie (Plaintiff) PARTIES : Wayne Jeffrey Morris (Defendant)

Mr J Reimer (Plaintiff) COUNSEL : Mr P Rosser QC (Defendant)

Mr P Rees, Lake Macquarie City Council (Plaintiff) SOLICITORS : Armstrongs (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

13541 of 2004 Council of the City of Lake Macquarie v Wayne Jeffrey Morris

JUDGMENT 1 JOHNSON J: This is an appeal under s.56(1)(c) Crimes (Local Courts Appeal and Review) Act 2001 ("Appeal and Review Act") by the Plaintiff, the Council of the City of Lake Macquarie, against an order made by a Magistrate at the Toronto Local Court on 28 September 2004 dismissing a matter the subject of summary criminal proceedings. The matter was a prosecution of the Defendant, Wayne Jeffrey Morris, for an alleged offence under s.16(1)(a) Companion Animals Act 1998 ("CA Act") of being an owner of a dog which attacked an animal.

Procedural Issues in Supreme Court 2 At the hearing before me, without objection from the Defendant, the Plaintiff sought and was granted a (two-day) extension of time to commence the present proceedings pursuant to Part 51B rule 6(2)(a) Supreme Court Rules. 3 The Defendant sought leave, over objection from the Plaintiff, pursuant to Part 51B rule 18 Supreme Court Rules to file a Notice of Contention. By that notice, the Defendant contended that the decision of the Court below should be affirmed on grounds other than those relied upon by the Magistrate. I granted the Defendant leave to file and rely upon the Notice of Contention, given that the issues raised by it involved consideration of the same evidence and legal principles as otherwise called for consideration on the appeal.

The Charge 4 The defended hearing against the Defendant at the Toronto Local Court on 28 September 2004 involved two alleged offences under s.16(1)(a) CA Act. It was alleged that the Defendant was the owner of two dogs, an American pit bull terrier named "Mishka" and a Rottweiler named "Sole", which were said to have attacked a Staffordshire terrier on 25 March 2004. The two charges were heard together and the presiding Magistrate dismissed both matters. 5 The appeal under s.56(1)(c) Appeal and Review Act relates only to the dismissal of the charge involving the American pit bull terrier.

6 The court attendance notice described the offence alleged against the Defendant concerning the American pit bull terrier in the following terms: "Description of Offence: Own dog which attacked person or animal-not dangerous dog Time and Date of 25 March 2004 at 2.00 pm Offence: Place of Offence: Mary Street, Holmesville Short Particulars: Was the owner of a restricted dog, to wit, female desexed tan American Pitt Bull Terrier type dog about 4 years 1 month old, named Mishka, microchip number 967000000223101 that did attack a dog, to wit, Staffordshire Bull Terrier type dog at Mary Street, Holmesville in the City of Lake Macquarie. Statutory Provision Companion Animals Act 1998, Section 16(1)(a). Describing Offence: Law Part Code: 29824."

Section 16 CA Act 7 Section 16 CA Act is in the following terms: "16 Offences where dog attacks person or animal (1) If a dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal: (a) the owner of the dog, or (b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time that other person, is guilty of an offence. Maximum penalty: (a) 10 penalty units except in the case of a dangerous or restricted dog, or (b) 100 penalty units in the case of a dangerous or restricted dog. (1A) The owner of a dangerous dog is guilty of an offence if: (a) the dog attacks or bites any person (whether or not any injury is caused to the person), and (b) the incident occurs as a result of the owner's failure to comply with any one or more of the requirements of section 51 in relation to the dog. Maximum penalty: 200 penalty units or imprisonment for 2 years, or both. (2) It is not an offence under this section if the incident occurred: (a) as a result of the dog being teased, mistreated, attacked or otherwise provoked, or (b) as a result of the person or animal trespassing on the property on which the dog was being kept, or (c) as a result of the dog acting in reasonable defence of a person or property, or (d) in the course of lawful hunting, or (e) in the course of the working of stock by the dog or the training of the dog in the working of stock. (3) This section does not apply to a police dog". 8 In the present case, the maximum penalty was that in paragraph (b) as an American pit bull terrier is a "restricted dog": s.55(b) CA Act. 9 In addition to the penalty provided for in s.16(1), a court that convicts a person for a s.16(1) offence can order that the person be disqualified from owning a dog for a specified period: s.23(2)(b) CA Act. Further, a court may make a control order or order the destruction of a dog where the owner has been convicted of a s.16(1) offence: s.47(2)(a); s.48(2)(a) CA Act.

The Local Court Proceedings 10 As has been mentioned, the defended hearing on 28 September 2004 before the Toronto Local Court involved charges against the Defendant with respect to both dogs, the American pit bull terrier and the Rottweiler. The defended hearing proceeded with these charges being heard together. 11 There is no evidence that the Defendant's legal representative sought from the Plaintiff further particulars of the charge beyond those contained in the court attendance notice. 12 Nor does it appear that the Plaintiff's legal representative, Mr Long, made an opening address to the Magistrate. When the case opened, statements of Council Rangers Barry, Bennett and Tapp were admitted into evidence by consent. The presiding Magistrate then addressed the Defendant's legal representative (Transcript, page 1.52): "HIS HONOUR: What's in issue Mr Churches? CHURCHES: The issue is that to put in the vernacular, this was a dog fight. There's no evidence to suggest who attacked who. And in my submission, at the end of the evidence, the Prosecution won't be able to negative the defence that's available in Section 16 of the Act. The rangers have turned up and seen certain things, but certainly there's no evidence of what happened before. So if your Honour goes to Section 16 of the Act. HIS HONOUR: That's all right, just so I know what the issues are. Mr Long, you're aware of that? LONG: Yes I am." 13 Thereafter, Mr Long called Ranger Barry. In the course of his short examination in chief, Mr Long invited Ranger Barry to mark a plan depicting "the property at which the two dogs that are alleged to have carried out the attack are normally kept" and the place "where the alleged attack took place" (Transcript, page 2.47). 14 The undisputed evidence at the Local Court hearing disclosed that Ranger Barry and Ranger Tapp, and soon after Ranger Bennett, attended the corner of St Helen's Street and Mary Street, Holmesville, at about 2.00 pm on Thursday, 25 March 2004 in response to a telephone call. Ranger Barry said that he saw two dogs, an American pit bull terrier and a Rottweiler cross, covered in mud and standing over something in a drain. As he moved closer to these dogs, he could see another dog lying motionless in about 15 centimetres of water in the drain. In a statement admitted before the Magistrate, Ranger Barry said: "I continued to approach the dogs in an effort to impound them, the American Pitt Bull Terrier tried to bite the motionless animal as I approached it.

I managed to get a rope on the Pitt Bull Terrier. The other Rottweiler cross type dog had a choker chain on so I grabbed it and asked my colleagues to pass me another rope." 15 Under cross-examination, Ranger Barry was asked (Transcript, page 5.44): "Q. Now was there also a conversation where Mr Morris asked you what was the condition of his two dogs, and you answered that there was a bit [sic] mark over the eye of the pit bull terrier, but didn't appear to be too bad?

Q. Did you thoroughly inspect the two dogs that were taken to the pound?

Q. So you didn't notice any other wounds to those dogs other than a bite mark around the right eye of the pit bull?

A. Due to the fact that the dogs were covered in mud, it was.

Q. Yes that's right, that's what I'm - but you didn't notice any other wounds did you?

A. No." 16 In re-examination, Ranger Barry was asked (Transcript, page 6.45): "LONG: Q. Mr Barry, my friend asked you a question in relation to the three dogs, that they were covered in mud, could you briefly describe to his Honour the condition of the dog that was lying in the drain.

A. The condition of the dog had deep bite marks to her around its neck.

A. The dog was laying motionless in the gutter. It had deep bite marks to its - around its neck, and its legs. Its head as (sic) in about 15 centimetres of water. Initially I thought it was dead, but as I got closer I could see that it was breathing." 17 Ranger Bennett was asked in cross-examination (Transcript, page 8.14): "Q. And you observed that all three of the dogs that we're talking about were all covered in mud?

Q. And - well when you say 'to some extent' were they covered in mud or weren't they covered in mud?

A. The Staffordshire that was wounded was completely covered in mud. The other two dogs had some mud.

Q. I suggest to you that all three of them were covered in mud? Would you agree or disagree with that?

A. Well from my recollection I'd disagree. The Staffordshire Terrier was completely covered, the other two dogs were easily visible to distinguish a breed, whereas the other one wasn't until later on." 18 Ranger Tapp said in a statement admitted in evidence before the Local Court: "Steve Barry jumped straight out of the Ranger's vehicle and walked straight toward two dogs in the drain, I walked slowly behind Steve Barry and observed the two dogs hovering over something lying in the drain. As I moved closer towards the two dogs, I could see that they were standing over another dog that was lying very still and motionless in the muddy wet drain area.

Steve Barry reached out in an attempt to impound the Pittbull type dog, as Steve went to place the rope over the Pittbull type dog's neck. The dog (Staffy type dog) in the drain struggled and moved in the mud and water. The Pittbull type dog then lunged towards the dog lying in the drain and bit the Staffy type dog lying in the drain until it stopped moving.

I called out to the Rotti type dog 'Come here boy', 'Come on mate' in [an] attempt to impound the animal. Steve managed to place the rope over the Pittbull type dog's neck and [the] Rotti cross type dog was standing close by nervously. Steve yelled to Cliff and myself, and requested another rope to impound the Rotti cross type dog." 19 Ranger Tapp was asked in cross-examination (Transcript, page 10.8): "Q. And I think it's the case that Ranger Barry tried to put a rope over the pit bull's neck first, is that correct? A. Yes that's correct. Q. And when that happened, is it the case that the pit bull then moved towards another dog that was lying in the drain?

Q. And I suggest to you that at that stage the pit bull that we're talking about did not bite the Staffy that was lying in the drain? Do you agree or disagree with that?

A. I disagree. I feel that the dog was aggressive towards the dog that was lying in the drain.

Q. Please just answer the question. Did it - I put to you that it did not bite the Staffordshire Bull Terrier that was lying in the drain, do you agree or disagree with that?

Q. I put to you that the Pitt Bull Terrier did not bite the Staffy dog lying in the drain?

A. No it did not". 20 Following submissions at the end of the prosecution case (which were not recorded), the presiding Magistrate delivered the following judgment (Transcript, page 11.26): "HIS HONOUR: The Court's dealing with the sequences 2 and 3 in relation to this matter, which is Mr Morris being the defendant was the owner of attacking dogs, being two dogs. Set out in the evidence from the council rangers by three. Not in issue as to ownership, not in issue as to which dogs are involved, location, et cetera. The issue which is squarely raised by the defence at the start of proceedings was that the Prosecution was put on notice, it had to negate the defence which is provided for under Section 16 subsection (2) . 'It is not an offence under this Section if the incident occurred (a) as a result of the dog being teased, mistreated, attacked or otherwise provoked; or (b) as a result of the person or animal trespassing on the property on which the dog was being kept; or (c) as a result of the dog acting in a reasonable defence of a person or property; or (d) etcetera, and of course of lawful hunting'. Certainly there's evidence that there clearly was three dogs involved in a dog fight as a result of which one dog has suffered serious injuries and though it's in the statement, apparently that dog died which is an awful result for the owner, and obviously animal concerned. Council says that the available evidence is the Court can draw circumstantial evidence that the two dogs owned by Mr Morris were the two dogs which attacked the third animal. Now look the onus is on the Prosecution to negate in a case like this where the Section provides a clear defence to negate the available defence to Mr Morris the defendant . Now even if the Court concludes that there was a fight between the two animals and a third one, the three animals, even if it was concluded that what was the causation of that, well there's absolutely no evidence that there was no provocation, indeed there's no evidence of which dog attacked which dog initially, that is the start of the incident, at all . The three dogs were in a public place - it's not in issue. Unless the Prosecution, in my view, can point to some compelling circumstantial evidence, then it is not possible, given the evidence before this Court today, for the Court to find certainly beyond a reasonable doubt, there is no evidence which negates the available defence to Mr Morris, the owner of the subject dogs . For the record, at its very highest, the Prosecution case may well establish a prima facie case. I find that there is indeed a prima facie case. However, that being said, there is clearly insufficient evidence for the Court to come to a conclusion that the offences have been proved beyond a reasonable doubt. THOSE INFORMATIONS ARE THEREFORE MARKED DISMISSED". (emphasis added)

Nature of Appeal 21 An appeal under s.56(1)(c) Appeal and Review Act is confined to grounds involving a question of law alone. In this case, the Plaintiff contends that the Magistrate correctly held that there was a prima facie case against the Defendant, but that the Magistrate fell into error of law by holding that it was for the Plaintiff to negative s.16(2) defences, in particular provocation, without first considering whether the Defendant had discharged an evidentiary burden so as to raise the statutory defence for consideration. 22 By his Notice of Contention, the Defendant contends that it was not open to the Magistrate, on the evidence, to find a prima facie case. 23 Where, in a prosecution based upon circumstantial evidence, inferences consistent both with guilt and innocence may be drawn, there is a prima facie case: Torrance v Cornish (1985) 79 FLR 87; R v Serratore (1999) 48 NSWLR 101 at 130. A finding of prima facie case involves a decision whether, on the evidence as it stands at the end of the prosecution case, the defendant could lawfully be convicted. This is a question of law: May v O'Sullivan (1955) 92 CLR 654 at 658; Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 at 174-176 (paragraphs 43-50). After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does so or not, the question to be decided in the end by the court is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact: May v O'Sullivan, above, at 658.8.

Construction of s.16(1) CA Act 24 The CA Act, according to its long title, provides, inter alia, for the duties and responsibilities of owners of companion animals. Section 16 lies within Division 1 of Part 3 CA Act relating to general responsibilities for control of dogs. 25 If a dog, inter alia, attacks any person or animal (other than vermin) whether or not any injury is caused to the person or animal, the owner of the dog is guilty of an offence: s.16(1)(a) CA Act. There is an extended definition of "owner" in s.7 CA Act. 26 In my view, the elements of an offence under s.16(1) CA Act are contained in s.16(1) itself. The penalties for a s.16(1) offence appear within s.16(1) itself, with an increased penalty provided for in paragraph (b). In accordance with proper practice, a court attendance notice should allege the aggravating factor which gives rise to the increased penalty: Kingswell v The Queen (1985) 159 CLR 264 at 280. That occurred here, with the court attendance notice alleging that the American pit bull terrier was a "restricted dog" (see s.55(b) CA Act. 27 There is a distinct and separate provision in s.16(2) CA Act exempting from liability in certain circumstances: Ex parte Ferguson; Re Alexander (1944) 45 SR(NSW) 64 at 66-67. I shall return to the construction of s.16(2) later in this judgment. 28 In the present case, the court attendance notice alleged an "attack" by the American pit bull terrier. Accordingly, the Plaintiff chose from the various terms within s.16(1) the verb "attacks" as being the case advanced against the Defendant. 29 The word "attack" is not defined in the CA Act. Accordingly, the word should be given its ordinary and current meaning viewed in its statutory context. The Macquarie Dictionary includes the following definitions of the verb "attack": "1. To set upon with force or weapons; begin hostilities against: attack the enemy.

11. The initial (offensive) movement in a contest; onset.

12. The act or manner of beginning anything; start; approach, …". 30 The Shorter Oxford English Dictionary includes the following in the definitions of the verb "attack": "1. To fasten or fall upon with force or arms; to assail, assault. (The common military term) …

2. To set upon with hostile action or words, so as to overthrow, injure or bring into disrepute. …". 31 Consideration has been given by courts to the meaning of the word "attack" as it appeared in the repealed Dog Act 1966 and in another provision of the CA Act. In Eadie v Groombridge (1992) 16 MVR 263; BC9201687, Meagher JA (Handley JA agreeing) accepted that evidence that a dog "came at" a person in the street constituted an "attack" under s.20(1) Dog Act 1966. In the same case, Sheller JA concluded that "attacking" is "an act of hostility or aggression".

32 In Zappia v Allsop (Court of Appeal, 17 March 1994, BC9402327), Clarke JA (Handley JA agreeing) accepted at page 8 that an "attack" may be constituted by a growling and barking dog charging at a person. 33 In Crump v Sharah [1999] NSWSC 884, Davies AJ at paragraph 24 applied the meaning attributed to the word "attack" in Eadie v Groombridge, above. Davies AJ concluded at paragraph 26 that an actual contact is not necessary to establish an "attack" and that it was sufficient, on the facts of that case, that two dogs joined in barking at a horse and that one of the dogs at least had nipped at its hocks. 34 In Coleman v Barrat [2004] NSWCA 27, Gzell J (Sheller JA agreeing), in considering the meaning of the word "attacking" in s.25 CA Act, applied reasoning in Eadie v Groombridge, above, and Crump v Sharah, above. In the circumstances of that case, Gzell J concluded, at paragraph 40, that the actions of a dog running at a horse, at the rider's stirrup and under the horse, whilst yapping aggressively constituted an "attack". 35 Although it is necessary to bear in mind that the statutory context in which the word "attack" was considered in these cases is not identical to that in s.16(1) CA Act, I consider that the word in s.16(1) may be accorded a similar meaning. These cases considered civil liability provisions in the repealed Dog Act 1966 and s.25 CA Act. However, I do not think that this affects the meaning to be given to the word "attacks" in s.16(1), a penal provision. 36 To constitute an "attack" within s.16(1), it is clear from the section itself that it is not necessary that injury be caused. Nor, in my view, is it necessary that the prosecution prove that physical contact occurred between the dog and animal which is said to have been attacked. A court may conclude that a dog has attacked a person or animal for the purposes of s.16(1) if the dog's actions involve an act of hostility or aggression of the type exemplified in the cases referred to above.

Construction of s.16(2) CA Act 37 I have concluded that the elements of a s.16(1) offence appear in s.16(1) itself. What construction ought be given to s.16(2) CA Act? Section 16(2) does not cast expressly an onus on the Defendant. However, the matters referred to in s.16(2) are of a type which ordinarily would be, or ought to be, within the knowledge of the owner (s.16(1)(a)) or person in charge (s.16(1)(b)) of the dog at the relevant time. In a statute which places statutory responsibilities upon the owners and persons in charge of dogs, the statute ought not be construed as requiring the prosecution to negative, in every case, the existence of s.16(2) matters whether or not there is any evidence which raised such matters. 38 Two possible constructions were raised at the hearing before me, although the Plaintiff, as prosecutor, urged me to adopt one of these possibilities and not the other. 39 The first alternative was that s.16(2) CA Act constituted an exception, exemption, proviso, excuse or qualification to the s.16(1) offence for the purposes of s.417A Crimes Act 1900 (the statutory successor to s.145A(2) of the repealed Justices Act 1902). If it did, the onus of proof of such matters would be upon the Defendant on the balance of probabilities: s.417A(2). Mr Rosser QC, for the Defendant, very fairly raised the question as to whether s.16(2) fell within s.417A Crimes Act 1900 although, for understandable reasons, he did not urge such a construction on the Court. Mr Reimer, for the Plaintiff, indicated that he did not wish to contend that s.16(2) fell within s.417A Crimes Act 1900. In reaching this conclusion, he indicated that he had regard to decisions such as Francis v Flood (1978) 1 NSWLR 113 and Phillips v Cassar (1979) 2 NSWLR 340. 40 An argument exists that s.16(2) CA Act does fall within s.417A so as to place a legal onus, on the balance of probabilities, upon the Defendant of proving the exception, exemption, proviso, excuse or qualification: s.417A(2) Crimes Act 1900. It is arguable that s.16(2) provides "some special grounds of excuse, justification or exculpation depending upon new or additional facts" or "special facts" with the burden of proof being placed on the party seeking to rely upon those new, additional or special facts: Vines v Djordjevitch (1955) 91 CLR 512 at 519-520; Lynch v Attwood (1983) 3 NSWLR 1 at 7. It is arguable that the facts which may give rise to the application of s.16(2) CA Act are best known to the owner or person in charge of the dog so that the onus of establishing those facts should lie upon that person: Phillips v Cassar, above, at 434B. 41 Given the considered position of the Plaintiff, however, I accept, for the purposes of this case that s.417A Crimes Act 1900 has no application to s.16 CA Act. I will determine the appeal upon the basis of the second available construction, namely that s.16(2) constitutes a defence to a charge under s.16(1) and that an evidentiary burden lies upon the Defendant to raise the matter contained within s.16(2). Thereafter, once the issue is raised by the Defendant , it is for the Plaintiff, as prosecutor, to negative the matter beyond reasonable doubt. The Defendant conceded that such a construction of s.16(2) was appropriate in this case. The concept of an evidentiary burden to raise a matter which, once raised, the prosecution must then negative beyond reasonable doubt, is known to the criminal law in other contexts: Proudman v Dayman (1941) 67 CLR 536 at 540-541; R v Wampfler (1987) 11 NSWLR 541 at 547C-D. The evidentiary material raising the s.16(2) matter may be introduced by cross-examination of a prosecution witness or in the defence case and, once introduced, the ultimate burden lies upon the prosecution to negative the matter beyond reasonable doubt: Von Lieven v Stewart (1990) 21 NSWLR 53 at 65C-D. As will be seen, this approach applies in the case of provocation, an issue which is relevant to s.16(2) CA Act. 42 Section 16(2)(a) provides that it "is not an offence under this section if the incident occurred … as a result of the dog being teased, mistreated, attacked or otherwise provoked". The concept of "provocation" appears elsewhere in the CA Act with respect to dogs: ss.33, 45(a), (b) CA Act. There is no definition of "provocation" in the CA Act, unlike s.4(1) of the repealed Dog Act 1966 (as amended in 1993) which extended "provocation" of a dog to acts by a person or another animal. It was not argued before me that s.16(2)(a) could only apply to a dog being "otherwise provoked" by a person. I accept, for the purposes of s.16(2)(a), that a dog may be "otherwise provoked" by another dog.

43 The meaning of the words "otherwise provoked" in s.16(2) is coloured by the other terms in the provision: "as a result of the dog being teased, mistreated, attacked or otherwise provoked". A common characteristic may be discerned in these terms, which is capable of being described as a genus, so as to attract the ejusdem generis rule: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 143 (paragraph 126). All of this is consistent with the ordinary and current meaning of the verb "provoke" which, according to the Macquarie Dictionary, includes: "1. to anger, enrage, exasperate or vex. 2. to stir up, arouse, or call forth. 3. to incite, or stimulate (a person etc) to action. 4. to give rise to, induce or bring about." 44 The concept of provocation is well known to the criminal law in the context of murder: s.23 Crimes Act 1900. The accused has an evidentiary onus of raising the issue of provocation on the material before the Court: Johnson v The Queen (1976) 136 CLR 619. The evidence should be sufficient to raise the possibility that the accused was acting under provocation: Johnson, above, at 641. The prosecution carries the onus of establishing beyond reasonable doubt that the killing was unprovoked where there is sufficient evidentiary material to raise the possibility of operative provocation: Johnson, above, at 641-2. 45 In the context of a statute which speaks of provocation of a dog, it is only meaningful to consider what objective external events or actions existed or occurred which are capable of discharging the evidentiary onus upon an owner charged under s.16(1) CA Act so as to raise the issue of provocation. 46 Section 16(2) applied if "the incident" occurred as a result of an occurrence which falls within s.16(2)(a) to (e). Reference to "the incident" focuses attention upon the actions of the dog which are said to fall within s.16(1). In a given case, can it be said that there is evidence that "the incident" involving a dog attacking another dog occurred "as a result of" the first dog being "provoked" by the second dog? It is necessary that there be a causal nexus between the alleged provocation by the second dog and "the incident" - the actions of the first dog which are said to involve an attack upon the second dog. The use of the phrase "as a result of" indicates that a causal relationship is required: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 673, 678; Kavalee v Burbidge (1998) 43 NSWLR 422 at 443. 47 I shall return to these principles when examining the case presently under appeal. Conduct constituting an "Incident" under s.16(1) CA Act 48 A charge for an offence under s.16(1) CA Act may be based upon a single discrete act or a series of related acts which may be considered as a course of conduct. There is a broad analogy with the prosecution for an offence of assault, where a series of related events may give rise to a single offence of assault even where each act is capable itself of constituting a separate offence of assault. In this regard, it is useful to refer to the decision of Finlay J in Mikhael v Conroy (Supreme Court of NSW, 6 December 1990, BC9002962) where his Honour said at pages 13-14: "In cases of assault it would not be uncommon to find the following facts given at the hearing of a single count of assault under s61 [Crimes Act 1900] - that in the one place and on the one occasion the defendant - (a) made a threatening gesture to the complainant and said 'I'm going to smash your face', (b) then punched him (which may not be to the face), (c) then when he fell to the ground kicked him. Whilst those three factual matters could each individually give rise to a charge of assault, it is clearly open in such a case for the Court to regard the incidents as really one series of connected acts and that the whole of the conduct was one transaction for the purposes of the criminal law properly dealt with under a single count of assault (see also Meli v R (1954) 1 All ER 373).

In the example given I see no justification for the suggestion that because (a) standing alone is a 'psychic' assault whilst (b) and (c) are 'physical' assaults that they must be the subject of separate counts. If the charge was being heard before a jury, then directions would have to be given to encompass the jury being satisfied beyond reasonable doubt of the essential elements of assault having regard to their acceptance of the facts in (a) and/or (b) and/or (c) above. In the event of a verdict of guilty it would be entirely a matter for the judge to determine the relevant facts for the purpose of sentencing in conformity with the essential elements of the charge which such verdict established (see R v Accused (1988) 1 NZLR 422 at 426 and 427; R v Harris (1961) VR 236). Gibbs CJ, Wilson and Dawson JJ, in Kingswell v The Queen (1985) 159 CLR 264 at 276 said - 'If there is a trial by jury the ordinary incidents of such a trial will apply; the judge will continue to exercise his traditional functions, and for the purpose of imposing a sentence within the limits fixed by the law, will form his own view of the facts, provided that that view is not in conflict with the verdict of the jury.'

The learned Magistrate, being the tribunal of fact, will of course act upon his own assessment of facts where he finds the offence proved to his satisfaction beyond reasonable doubt when he comes to penalty. It is the same in a simple case where a complainant may allege that he was struck at least half a dozen times by the defendant, yet the Court may only be satisfied beyond reasonable doubt of the assault in respect of only one such blow." 49 Finlay J observed at pages 18-19: "The mere fact that a series of acts disclose escalating violence does not, of itself, prevent them from being regarded as a series of connected acts which may properly be encompassed under the one charge of assault. E.g. a poke in the chest may be followed by a push then a punch then a kick - yet in the circumstances in which they occur such acts of escalating violence may be regarded as a connected series of acts falling under the general description of one ongoing assault.

In the particular circumstances it may indeed by a fine line, but I have come to the view that it is proper to regard the alleged actions of the defendant in 1(a), (b) and (c) above as one series of connected acts constituting the one transaction of assault upon the complainant."

Of course, the concept of "psychic" assault has no application, by analogy, to an offence under s.16(1) CA Act.

The Present Case 50 There is no evidence that the Defendant sought particulars from the Plaintiff prior to the hearing at Toronto Local Court on 28 September 2004 nor whether, if that occurred, any response was given. The Plaintiff's legal representative at the Local Court hearing did not open the case to the Magistrate. The closing submissions were not transcribed. 51 Perusal of the transcript of the Local Court hearing and the statements which were admitted into evidence suggests that the Plaintiff's case before the Local Court was that both the American pit bull terrier and the Rottweiler had attacked the Staffordshire terrier. It appears that the prosecution case was based upon the extensive and serious injuries to the Staffordshire terrier, the relative lack of injuries to the two alleged attacking dogs and the behaviour of those two dogs as observed by the Council Rangers following their arrival. 52 It is possible to approach the charge involving the American pit bull terrier upon the basis that the actions of the dog as observed by the Council Rangers were capable in law of constituting an "attack" in the sense referred to earlier in this judgment. Although Mr Rosser QC submitted that the word "attack" in s.16(1) ought be construed as involving the inception of an aggressive act, there is no reason to approach the proper construction and application of the word in s.16(1) by confining it to the very beginning of the series of events which apparently led to injuries being caused to the Staffordshire terrier. 53 It might be inferred from the presence of the two attacking dogs in the vicinity of the badly injured Staffordshire terrier that those two dogs had occasioned injuries to the third dog. Such an inference was available in the same way as an inference may be drawn from circumstances where two men are found standing over a prone and badly injured man in the street and one of the two men was seen to swing a punch or a kick towards the prone person, even if no contact was made. 54 As I have stated earlier in this judgment, s.16(2) CA Act requires an understanding of "the incident" falling within s.16(1) to which the defence provisions may apply. As the case was argued before me, s.16(2)(a) is raised once the accused person discharges an evidentiary burden that "the incident occurred … as a result of the dog being teased, mistreated, attacked or otherwise provoked". Error of Law in Local Court 55 It is appropriate to keep in mind that his Honour's judgment, following the Local Court hearing, was an ex tempore one, delivered in a busy trial court: Acuthan v Coates (1986) 6 NSWLR 472 at 478-9, 485D. 56 In my view, the learned Magistrate erred in law in approaching the matter upon the basis that it was for the Plaintiff to prove beyond reasonable doubt the absence of s.16(2) matters, even where the Defendant had not discharged the evidentiary burden of raising a s.16(2) matter or matters. Section 16(2) matters are not elements of the offence which a prosecutor must negative beyond reasonable doubt in every s.16(2) prosecution whether or not they have been raised. It would be entirely contrary to the purposes of s.16 CA Act to place such a burden on a prosecutor in every case. 57 Mr Rosser QC argued, however, that the evidentiary burden was discharged in this case, sufficient to raise provocation, by reference to the minor injury to the face of the American pit bull terrier. In my view, this evidence could not discharge the evidentiary burden upon the Defendant that "the incident occurred … as a result of the dog being … otherwise provoked" for the purpose of s.16(2)(a) CA Act. Accordingly, I am satisfied that error of law has been demonstrated on the part of the learned Magistrate. 58 By his Notice of Contention, the Defendant submits that the learned Magistrate erred in finding a prima facie case against him. Mr Rosser QC contends that on the evidence, at its highest, the Defendant could not be convicted of an offence under s.16(1) CA Act by reference to acts of the American pit bull terrier. I do not accept this submission. The aggressive action of this dog, as observed by the Council Rangers, taken alone, was capable of constituting a prima facie case of an "attack" under s.16(1) CA Act. Further, this evidence of aggressive conduct may be viewed with the other circumstances, including that dog standing over the badly injured Staffordshire terrier, so to give rise to a prima facie case of an offence under s.16(1) CA Act involving the American pit bull terrier with respect to the injuries sustained by the Staffordshire terrier: Torrance v Cornish, above; R v Serratore, above. 59 Mr Rosser QC submitted that a finding of a prima facie case based solely upon the aggressive actions of the American pit bull terrier which were observed by the Council Rangers, would not accord with the way in which the case was put before the Local Court. He submitted further that, if the prosecution case is confined to the actions observed by the Council Rangers, then the injuries to the American pit bull terrier's head must have been sustained before the dog moved aggressively towards the Staffordshire terrier. In this case, Mr Rosser QC submits that the evidentiary burden with respect to provocation has been discharged. Mr Rosser QC submitted that it would be utterly artificial to see "the incident", for the purpose of s.16(2)(a), as being solely the aggressive actions of the American pit bull terrier observed by the Council Rangers following their arrival. 60 It is necessary to bear in mind that the prima face case concerning the American pit bull terrier involves all evidence in the prosecution case which bears upon the issue. It is not a matter of confining the prosecution case to the aggressive action observed by the Council Rangers. That conduct is to be taken into account, with the other circumstantial evidence. A clear prima facie case emerges with respect to the American pit bull terrier and, in my view, the prima facie case extends to the actual injuries sustained by the Staffordshire terrier. 61 It is a matter for the Local Court to determine whether a s.16(1)(a) offence involving the American pit bull terrier is proved beyond reasonable doubt. No doubt, the Defendant will rely upon the presence of the Rottweiler to submit that the Local Court should not be satisfied beyond reasonable doubt that all injuries sustained by the Staffordshire terrier were attributable to the American pit bull terrier. Of course, the inflicting of injury is not required to prove a s.16(1) offence. If the Local Court found a s.16(1) offence proved solely upon the basis of the actions of the American pit bull terrier as observed by the Council Rangers, that factor would be highly relevant to penalty: Kingswell, above, at 274; The Queen v Olbrich (1999) 199 CLR 270 at 281; Mikhael v Conroy, above. However, all of these matters are for the Local Court, and not for this Court to determine on a limited statutory appeal.

Conclusion 62 I am satisfied that the Plaintiff has demonstrated error in law on the part of the learned Magistrate. There was a clear prima facie case of a s.16(1) CA Act offence with respect to the American pit bull terrier. It was erroneous for the learned Magistrate to approach the matter upon the basis that it was for the Plaintiff necessarily to establish beyond reasonable doubt that s.16(2) circumstances did not exist, whether or not an evidentiary burden with respect to those circumstances had been discharged by the Defendant. 63 It will be a matter for the learned Magistrate, at the resumed hearing, to hear and determine the prosecution of the Defendant upon the s.16(1) charge relating to the American pit bull terrier. 64 I do not accept the submission of Mr Rosser QC that the injury to the American pit bull terrier's face was capable of discharging the evidentiary burden so as to raise provocation as an issue to be negatived by the Plaintiff. 65 Having found error of law, I consider that it is appropriate to remit the matter to the Local Court to enable that Court, as the trial Court, to hear and determine the matter according to law. Such an approach is consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters: Mitchell v Nestle Australia Limited (1988) 36 A Crim R 199 at 125; Downes v Director of Public Prosecutions [2000] NSWSC 1054 at paragraphs 26-32. 66 I make the following orders:

(a) pursuant to s.59(2)(a) Appeal and Review Act , the order made at the Toronto Local Court on 28 September 2004 dismissing a matter under s.16(1) CA Act with respect to an American pit bull terrier is set aside;

(b) pursuant to s.59(2)(a) Appeal and Review Act , that matter is remitted to the Local Court to be heard and determined according to law;

(c) the Defendant is to pay the Plaintiff's costs of the proceedings in this Court and is to have a certificate under s.6 Suitors' Fund Act 1951 . **********

10/06/2005 - Orders should refer to s.59(2)(a) and not 55(3)(a). - Paragraph(s) 66(a) and (b).

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