Dog Act 1976 (WA), s 31, s 33A, s 33B

Matter remitted to Court of Petty Sessions, Bunbury for rehearing according to law

1 MILLER J: This is an appeal against the decision of Mr K T Fisher SM given in the Court of Petty Sessions, Bunbury on 25 March 2003, whereby the learned Magistrate dismissed two complaints against the respondent alleging that she had breached the provisions of s 31 and s 33A respectively of the Dog Act 1976 (WA).

2 The complaints were made in the Court of Petty Sessions, Bunbury on 30 January 2003, alleging that on 23 August 2002 at Cranbrook Way, Bunbury the respondent:

(a) Being the person liable for control of a brown coloured Bull Mastiff dog named 'Fletcher' which dog was in a public place, namely Cranbrook Way Bunbury whilst not securely tethered or controlled as required by the Dog Act 1976 (breached the provisions of s31 of the Act);

(b) At the same place and on the same date, being a person liable for control of the same dog which was in a place not being a public place, namely upon the curtilage of Sally MacKeane at 5 Cranbrook Way, Bunbury without the consent of the owner or occupier of those premises or in any other circumstances as may be permitted under the Dog Act 1976 (breached the provisions of s33A of the Act).

3 The complaints are somewhat deficient in that they failed to allege a breach of a specific provision of the Act (see the words I have put in parenthesis), but nothing turns on this and in any event, s 46 of the Justices Act 1902 (WA) provides that no objection is to be taken to any complaint for any alleged defect therein, in substance or in form.

4 The provisions of s 31 and s 33A of the Dog Act 1976 ("the Act") provide (so far as is relevant) -

"31. Control of dogs in certain public places

(1) A dog shall not be in a public place unless it is -

(a) held by a person who is capable of controlling the dog; or

(b) securely tethered for a temporary purpose,

by means of a chain, cord, leash or harness of sufficient strength and not exceeding the prescribed length.

...

(3) If a dog is at any time in any public place in contravention of subsection (1) every person liable for the control of the dog at that time commits an offence against that subsection unless he establishes a defence under section 33B."

33A. Control of dogs in places that are not public

(1) A dog shall not be in any place that is not a public place unless -

(a) consent to its being there has been given -

(i) by the occupier or a person apparently authorised to consent on behalf of the occupier;

...

(3) If a dog is at any time in any place in contravention of subsection (1) every person liable for the control of the dog at that time commits an offence against that subsection unless he establishes a defence under section 33B."

5 Section 33B of the Act provides specific defences to charges brought under the provisions of s 31 and s 33A of the Act. The section provides (so far as is relevant):

"33B. Defences applicable to sections 30(1), 31(1), 32(1), 33(1) and 33A(1)

It is a defence to a charge of an offence of contravening section 30(1), 31(1), 32(1), 33(1) or 33A(1) if the person charged satisfies the court -

(a) in the case of any person, that he took all reasonable precautions and exercised all due diligence to avoid the contravention;

(b) in the case of the occupier of premises where the dog is ordinarily kept or ordinarily permitted to live, that -

(i) he has fulfilled the requirements of paragraph (a);"

6 The evidence in this case established that a Mrs Sally MacKeane who lived at 5 Cranbrook Way, Bunbury had prior to 23 August 2002 experienced trouble with a tan coloured dog with a white patch over one of its eyes, which was in or about the vicinity of her house. This had caused problems for her in taking her children to school.

7 On 23 August 2002 when she returned from work at about 2.45pm Mrs MacKeane found the same dog on her front verge and it then went into her yard when she went inside. She rang the ranger to complain about the dog and at the same time threw food out to it to ensure that it would remain so that the ranger could identify it. Mrs MacKeane then went to the local school to collect her children and when she returned, the ranger was there and the dog was in the street but out of her yard.

8 The ranger who attended was Mr Lewis Winter, the senior shire ranger with the City of Bunbury. He testified that on 23 August 2002 he went to Cranbrook Way and saw a brown bull terrier mastiff-type dog come off the property at 5 Cranbrook Way and then go into 7 Cranbrook Way. He tried to apprehend the dog but it headed off down the street and turned into 13 Cranbrook Way, where he then attended. He observed a bowl of dog biscuits and a bowl of water outside the front door of the house and then knocked and found an occupant by the name of Mrs Tooke. It became apparent to the ranger that Mrs Tooke was not the owner of the dog.

9 Emma Rose Tooke gave evidence that she was living at 13 Cranbrook Way on 23 August 2002 and that there was a dog there, which was owned by a Mrs Hughes. Her understanding was that the dog was kept inside the house during the daytime and if it went outside, it was with Mrs Hughes. She claimed to have no knowledge of anything that happened on the day of 23 August but conceded that from time to time she let the dog in and out.

10 The respondent Esther Marie Hughes gave evidence that on 23 August she was residing at 13 Cranbrook Way and between 2 and 4 pm that afternoon, left the premises to attend a course of study. She admitted that she owned a dog and said that she had left it in the house when she departed. Her evidence was to the following effect:

"... I took what I believed to the necessary precautions to confine my dog - which was to lock it in a house with its water for a 2-hour period in which I would be back to take care of my dog and take other necessary precautions to keep it within the boundaries of the law. I had no control over what happened during that period of time because I was not there. Un, I was surprised to find, um, that the dog had left the premises and that, um, the rangers had wanted to contact me on a serious matter concerning this - because I was unaware of the circumstances and how the dog had exited the premises at this home. That's all I can say."

11 When cross-examined, the respondent stated that there was only one exit from the laundry and that was via a locked glass sliding door. She expressed the belief that the other occupier of the place must have knowingly or unknowingly let the dog out on the afternoon in question. When questioned as to what, if any, instructions she had given her fellow occupant she said:

"Had you ever instructed her that under no circumstances was she to admit the dog to get out of the house? --- Um, not that I recall, but I do realise that that is law anyway.

Well, with the benefit of hindsight do you think it might have been a good idea to warn her that, you know, the dog needed to be contained? --- Yes, I do."

12 The learned Magistrate accepted that the dog which was possibly more properly described as a bull terrier, rather than a bull mastiff, but certainly named "Fletcher", had been in a private place within the meaning of s 33A of the Act and in a public place within the meaning of s 31 of the Act in the day in question. The learned Magistrate found the dog to have been owned by the respondent and accepted that the respondent had, on the day in question, left the dog locked in the house when she departed the premises at 13 Cranbrook Way. His Worship then concluded:

"The prosecution here has been brought on the basis that she was the person liable for the control of the dog on the basis that she was the owner of the dog; that necessarily in the circumstances of that responsibility in conjunction with the shared residence of those premises with another that she was in all the circumstances at law obliged to advise the other resident not to release the dog from the premises in her absence or in fact at all, one might suggest.

In my respectful view, there is no strict liability imported into those persons who have at law a responsibility for the control of a dog. And I say that because clearly the exculpatory provisions of the Criminal Code are certainly - unless excluded - applicable to a person who is faced with necessarily a breach of the Dog Act. And certainly there's not now any suggestion that the provisions of either section 24 - that is, an honest and reasonable mistaken belief as to the existence of a fact - is not available nor in fact is necessarily those issues, acts or events that occur independently exercise of will as proposed in the provisions of section 23 of the Criminal Code excluded.

...

As I say here on the evidence of Ms Hughes self-evidently those provisions have been raised. And when one applies necessarily those onus and burdens of proof to the prosecution, the court cannot in all the circumstances be satisfied absent the clear indication of strict liability. And, as I say, there is with the facilities of the Criminal Code and exculpatory provisions available clearly no strict liability.

And certainly for the purpose of the exercise absent any propensity that might be drawn to the attention of the person liable for the control of a dog of the escape or the conduct of another in aiding the escape, I wouldn't have thought there is incumbent an obligation at law to advise or instruct another person within the dwelling not to release a dog. Otherwise the law becomes very muddied.

And necessarily one needs then to look in all the circumstances to the quality of that other person. As I've indicated in the course of banter between bench and bar, it would seem to me that Ms Tooke in all the circumstances might necessarily herself fall within the category of a person liable for the control of a dog. She was not the owner of the dog but she certainly was an occupier of those premises where the dog was ordinarily kept for the time being.

So to that extent if she was the one - as it would be suggested - who released this dog, then she was for the time being liable at law as a consequence of that release and it's not, I wouldn't have thought, sufficient to enable the law to sheet home responsibility to the owner of a dog in circumstance there was nothing to stimulate any caution or required instruction to another as to their conduct. The charge is not proven and will be dismissed."

13 The appellant was given leave to appeal on 2 May 2003 on the ground that the learned Magistrate erred in law in determining that defences under s 23 and/or s 24 of the Criminal Code applied in the circumstances of the case, when

"(a) the Respondent admitted each of the elements comprising each of the offences alleged in each of the three Complaints;

(b) the Respondent did not raise on the evidence any matter capable of absolving her of criminal responsibility under section 23 or section 24 of the Code or at all."

14 At the hearing, leave was granted to add a further ground (c), that the learned Magistrate erred in law in holding that the provisions of s 23 and s 24 of the Code applied to the prosecutions, when in fact those provisions were by implication excluded from operation by reason of the provisions of s 33B of the Act.

15 It is unnecessary to consider grounds of appeal (a) and (b), as in my opinion the provisions of s 23 and s 24 of the Code are, by necessity, implication excluded by reason of the subject matter of s 33B of the Act.

16 The principles which govern this issue were clearly set out by Burt J in McPherson v Cairn [1977] WAR 28 at 30 - 31 as follows:

"It has been decided by authority binding upon me:-

(a) That unless the operation of s24 of the Criminal Code is excluded 'by the law relating to the subject' it is of general application and applies 'to all persons charged with any offence against the statute law of Western Australia': s 36 of the Criminal Code and Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129.

(b) That once a foundation for mistake in the sense of the section has been laid in the evidence the onus being on the prosecution to prove guilt beyond a reasonable doubt 'it follows that even if the explanation is not affirmatively established, nevertheless if the tribunal of fact thinks that it might reasonably be true the defendant must be acquitted: Brimblecombe v Duncan [1958] QdR 8 at 12, 22 and 23 and the cases cited there': Munro's Case, supra, at pp 134 and 135.

(c) That the formulation of an offence in absolute terms, by which I mean in terms which contain no mental element such as knowledge or intention, does not by implication exclude the operation of s 24. Indeed there is much to be said for the view that it is only in such cases that s 24 operates: see R v Martin [1963] Tas SR 103, particularly the reasons of Burbury CJ.

(d) The operation of s 24 is not by implication excluded by reason of the subject matter of the statute: Munro's Case, supra, at p 133. The implication must arise from the 'implied provisions of the law relating to the subject' and not from 'the subject to which the law relates': see Brimblecombe v Duncan, supra, per Stanley J at p 18.

(e) Whether in any particular case the operation of s 24 is excluded 'involves solely a question of statutory construction' of the 'penal section (read of course in the context of the whole Act in which it stands)': see Munro's Case, supra, at p 133. It is that penal section in that setting which is the 'law relating to the subject' within the meaning of s 24 of the Criminal Code."

17 When one considers the provisions of s 33B of the Act it is clear that this section provides the defences which are open to persons charged under the provisions of s 31 and/or s 33A of the Act, and casts an onus upon the person charged to satisfy the Court in respect of any one of those defences. Relevant to this case, the respondent would be called upon to satisfy the Court that she had taken all reasonable precautions and exercised all due diligence to avoid a contravention of the sections and/or that in her capacity as occupier of the premises where the dog was ordinarily kept, she had fulfilled those obligations.

18 As in McPherson v Cairn, the operation of s 23 and s 24 of the Criminal Code is, by implication, excluded in this case by the law relating to the subject. Section 23 of the Code would seem to be inapplicable to the case in any event. No question arose as to whether or not there was a "willed act" of the defendant, nor could it be said that the presence of the dog in Cranbrook Way was an event that occurred by accident.

19 The legislature has (in the words of Burt J in McPherson v Cairn at 31), "addressed its mind to the question of mistake" and created a separate and discrete defence available to the owner of a dog or the occupier of premises where a dog is kept. Proof is required from the person charged that all reasonable precautions and due diligence have been either taken or exercised to ensure that the dog is not in a public place unless properly controlled or tethered, and not in a place other than a public one unless consent to its being there has been given by the occupier of the premises in which it is located.

20 It follows that the "defence" provided by the provisions of s 24 of the Criminal Code, by which the prosecution is obliged to establish that a person did not act under an honest and reasonable but mistaken belief in the existence of the state of things, is inapplicable to a prosecution under s 31 or s 33A of the Act. If it could be said that the provisions of s 23 of the Code were applicable, they too were excluded. It is for these reasons that in my view, the decision of the learned Magistrate to dismiss the charges against the respondent was based upon a clear error of law. No consideration was given to the defences provided in s 33B of the Act, nor was consideration given to the question whether the provisions of s 23 and s 24 of the Code were excluded by the statute.

21 The appeal should therefore be allowed, the decision of the learned Magistrate should be set aside and the matter remitted to the Court of Petty Sessions, Bunbury for determination according to law: that is, for determination as to whether or not the respondent is able to answer the charges preferred against her by reason of the provisions of s 33B of the Act.