Leichhardt Municipal Council v Hunter

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.