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[2013] NSWCCA 87
Court of Criminal Appeal (NSW)
2013-03-19
Latham J, Fullerton J, Adamson J
Original judgment source is linked above.
Judgment 1THE COURT : These proceedings come before this Court by way of a stated case pursuant to s 5B of the Criminal Appeal Act 1912. The following facts and circumstances are those set out in the stated case. 2The respondent, Prof Jill Hunter, was at all material times the owner of a Kelpie/Rottweiler cross dog called "Bailey" kept at xxxxxxxxx 3On 12 August 2008, the appellant, Leichhardt Municipal Council, declared Bailey to be a dangerous dog pursuant to Division 1 of Part 5 of the Companion Animals Act 1998 (the Act). The respondent appealed this declaration in the Local Court. On 13 October 2008 in the Downing Centre Local Court, the magistrate allowed the respondent's application and ordered the dangerous dog declaration to be set aside. The magistrate made a control order under s 47 of the Act which included the requirement that :- (a) At any time the dog is outside xxxxxxxxxxxx, the dog must be kept under effective control of some competent person by means of an adequate chain or leash that is attached to the dog and that is being held by (or secured to) the person and must be muzzled. 4The control order was to apply to the owner of Bailey for 5 years from 13 October 2008, "to prevent or reduce the likelihood of the dog attacking or causing injury to persons or animals." 5The respondent had a dog walker by the name of Mr Keith Caldwell. Mr Caldwell is a retired Lieutenant Commander in the Australian Navy and would be regarded as a "competent person" as required by the Local Court order. 6When the control order was made, the respondent showed Mr Caldwell a copy of the control order and carefully went through it with him. She highlighted on the copy of the order the features that related to the responsibilities a dog walker would have in relation to keeping Bailey on a leash and muzzled at all times. She explained the importance of a court order as well as the fact that its requirements were not waived in any circumstances and that they were a legal requirement of anyone walking the dog. The respondent provided Mr Caldwell with a leash and a muzzle for Bailey. The practice each morning included the leash and muzzle being placed on Bailey before Mr Caldwell walked the dogs for about an hour and returned them to the respondent's home. The respondent had taken every reasonable step to ensure the terms of the order were complied with. 7On 17 July 2010, Mr. Caldwell took Bailey and another dog for a walk. Bailey was muzzled and on a leash when leaving xxxxxxxxxxxxxx but some 20 or 30 minutes later, the muzzle was unsecured and the leash was on the ground beside Mr Caldwell when he was approached by a council officer. 8The respondent was charged by the appellant with an offence against s 49 of the Act. It provides :- The owner of a dog who does not comply with a destruction or control order under this Division is guilty of an offence. 9On 25 March 2011, the charge was heard before Magistrate Haskett in Balmain Local Court. On 8 April 2011, the magistrate found the respondent guilty and without proceeding to conviction, discharged the respondent on a six-month good behaviour bond. 10By notice dated 8 April 2011, the respondent appealed against her conviction and sentence to the District Court on the grounds that she was not guilty and that the sentence was too severe. 11On 25 August 2011, the matter came before Blanch J. 12At the hearing before Blanch J, counsel for the respondent submitted that the offence was not one of strict liability and that it was reasonable for the respondent to expect that Mr Caldwell would comply with the control order. In those circumstances, it was submitted that the obligation on the respondent to comply with the control order had been satisfied when she handed the dog over to Mr Caldwell. It was further submitted that it was incumbent on the appellant to prove that the owner intended to breach the control order before an offence under s 49 was established. No defence of honest and reasonable mistake of fact was therefore raised by the respondent. 13Counsel for the appellant submitted that the offence was one of strict liability, in that the offence was regulatory in nature and the responsibility for the control of the dog lay with the owner. 14Justice Blanch determined that s 49 was not an offence of strict liability, principally on the basis that as a matter of statutory construction, the terms of s 49 did not indicate any intention on the part of the legislature to displace the usual presumption that mens rea is an essential ingredient in every offence : Sherras v De Rutzen [1895] 1 QB 918. 15Justice Blanch upheld the appeal and quashed the conviction. At the request of the appellant, Justice Blanch stated a case to this Court comprising the following three questions :- (a) Is the offence created by section 49 of the act an offence of full mens rea or an offence of strict liability? (b) If an offence of full mens rea, what is the content of the mental element of the offence created by section 49? (c) Was it open as a matter of law for the charge to be dismissed on the ground that the respondent had taken all reasonable steps to ensure the terms of the control order were complied with? 16The stated case was submitted after the expiration of the statutory period. There is no objection from the respondent to the extension of time within which the case may be submitted.
Resolution 17Following the filing of written submissions, it became apparent that the parties are now largely in agreement with respect to the construction of s 49. In particular, the respondent agrees with the appellant that the first two questions posed by the stated case should be answered :- (a) The offence created by s 49 of the Companion Animals Act is an offence of strict liability. (b) Does not arise. 18This concession on the part of the respondent is clearly correctly made. 19The distinction between offences of full mens rea and offences of strict liability is not always readily apparent. Offences of full mens rea require proof by the prosecution of an intention on the part of the defendant to commit the acts comprising the offence or proof of knowledge on the part of the defendant of the facts and circumstances comprising the offence. However, in relation to some offences, recklessness or negligence will suffice : He Kaw Teh v The Queen (1985) 157 CLR 523. 20Offences of strict liability on the other hand do not require proof of mens rea. Mens rea is presumed unless a defendant raises the "defence" of honest and reasonable mistake of fact, whereupon the onus rests on the prosecution to disprove that defence : R v Wampfler (1988) 11 NSWLR 541. Regulatory offences, such as environmental offences or public health offences are invariably offences of strict liability. 21The determination of an offence as a strict liability offence lies in the construction of the statute creating the offence, the subject matter of the statute and whether enforcement of the offence will be assisted by its strict liability status : Caralis v Smyth (1988) 34 A Crim R 193. 22The terms of s 49 of the Act simply require compliance with a control order. There is no reference to "wilfully" or "intentionally". By way of contrast, there are other sections within the Act which require wilful conduct, for example s 69H. 23The Act does not provide any relevant defence to a charge under s 49. The maximum penalty for the offence is 100 penalty units. Given that other offences under the Act provide for terms of imprisonment, an offence under s 49 is obviously of a much lesser order. 24The subject matter of the statute is concerned with the maintenance of public safety and welfare, in that the protection of the public from potentially dangerous animals is obviously in the public interest. Section 49 appears within Part 5 of the Act. That Part is concerned with dangerous dogs. Division 3 of Part 5 provides for the making of control orders and destruction orders in relation to dangerous dogs. The offence created by s 49 of failing to comply with a control order or a destruction order is a necessary adjunct to the effective regulation of animals in the community. 25A control order requires competent persons in charge of the dog to take positive steps in order to prevent the likelihood of injury to other persons and/or other animals. Those steps are generally commensurate with the degree of danger posed by the dog to others. Importing a requirement into s 49 to prove an intention on the part of the competent person not to comply would invariably frustrate prosecutions under the provision and render control orders effectively unenforceable. 26All of the indicia of a strict liability offence are satisfied in the case of s 49. 27There remains the question whether a defence of "due diligence" arises, that is, whether it is a defence to the charge under s 49 to have taken all reasonable steps to comply with the order. The Act does not provide expressly for such a defence to s 49. Therefore, if it does arise, it is a product of the construction of s 49, having regard to its statutory context. It is relevant to note that this Court held in Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497 that such a defence is not available under the common law in this State and that it is not an extension of the defence of honest and reasonable mistake of fact. A defence of due diligence would ordinarily be found in an express statutory provision. 28A control order is defined by s 47(1) as :- an order of a Court that the owner of a dog take such action (other than destroying the dog) within the period specified in the order as the Court thinks necessary to prevent, or reduce the likelihood of, the dog attacking or causing injury to persons or animals. 29An offence under s 49 is established by :- (a) the existence of an order under s 47 (b) that on the date of the offence, the defendant was the owner of the dog the subject of the order, and (c) the defendant did not comply with the terms of the order. 30Elements (a) and (b) call for no elucidation. Element (c) turns on the meaning of "comply" in this particular statutory context. The Act contemplates (and the terms of the order in this case acknowledge) that the measures undertaken "to prevent, or reduce the likelihood of the dog attacking or causing injury" to others comprehend directing third parties ("a competent person") : see ss 36, 51 and 56. 31It follows that the owner relevantly complies with the order if he/she ensures that the dog is under the control of a competent person and he/she takes all reasonable steps to communicate with and direct such a person with respect to the terms of the order. Whether the relevant third party is a competent person and whether the steps taken by an owner to communicate the terms of the order are sufficiently comprehensive and reasonable in all the circumstances are matters of fact in each case. 32Accordingly, the third question should be answered "Yes". 33The Court orders an extension of 19 days for the submission of a question of law pursuant to s 5B(2) of the Criminal Appeal Act 1912. 34The questions submitted are answered :- (1)The offence created by s 49 of the Companion Animals Act 1998 is an offence of strict liability. (2)Does not arise. (3)Yes. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2013
Leichhardt Municipal Council
Hunter
(1992) 29 NSWLR 497
(1985) 157 CLR 523
(1987) 11 NSWLR 541
(1988) 11 NSWLR 541