The Magistrate's decision
9 It has been necessary to read the transcripts of evidence as the plaintiff submitted that there was no basis upon which the Magistrate could have made a finding that Perras went onto Mills' property with the belief that he was retrieving his dog. Mr Mills, Mr Yasim and Mr Perras gave evidence and were cross examined during the hearing in the Local Court, which took place over three days. Perras gave evidence by means of a Greek interpreter.
10 Evidence was given by Perras that he saw his dog in Mills' backyard before he left his house heading towards, in the first instance, the footpath outside Mills' property [t 5.20, 15.1 - 8/3/05]. Perras "believed that his dog was in the backyard" [t 21.44 - 8/3/05]. He has reason to believe this because "I see the dog on the other side of the fence and I call the dog "Justice come" he no come." Mills observed Perras enter his property [t 4.20 - 8/12/04] Mills' friend Mr Yasim observed "the guy next door firstly on the Council driveway and then in the middle of Mr Mills' front yard" [t 33.29; 36.55 - 8/12/04]. Mr Yasim heard Perras call out "Watch out for the dog" [33.50; 38.44 - 8/12/04] or "There's a dog" [t 37.14 - 8/12/04]. Perras was "very anxious on this occasion to retrieve this dog of yours weren't you to get it back into your property" [t 12.39 - 8/3/05]. After conversing with Mr Yasim, Perras "went back to [his] backyard where [he was] able to retrieve [his] dog [t 16.8 - 8/3/05].
11 The plaintiff's counsel drew the court's attention to the following question and answer by Perras.
"Q. You see what I suggest to you sir happened is that when you initially couldn't get your dog to come back into your back yard you decided that you would try to get the dog by going into Mr Mills property?
A. No I did not." [t 16.15 - 8/3/05]
12 The Magistrate in his reasons for judgment recorded that the defendant denies entering the property at all and that he says he was at all relevant times out on the footpath or in his own property.
13 On the issue of witnesses' credibility, the Magistrate was of the view that nothing turned on discrepancies between the prosecutor (Mills) and the prosecutor's witness's (Yasim) evidence as to the sequence of the conversation and the alleged observations as to entry and exit of the defendant. The Magistrate made a finding that there was nothing in the demeanour of any of the witnesses or on the plausibility of their evidence, which would make him prefer or reject a witness's credibility on that account. These comments appear to be directed at the prosecuting witnesses namely Mills and Yasim. The Magistrate did not make any comments in his judgment about the demeanour and credibility of Perras' evidence.
14 The Magistrate in his reasons stated:
"The legislation provides that the onus is on the defendant or the defendant bears the onus as to proving lawful excuse that is proving the facts to found lawful excuse and it is for that reason and that reason only that I am [not] (sic) satisfied that the defendant has discharged that onus as to the facts and I find that he entered the enclosed lands, that he entered two or three steps sometime immediately before or at least contemporaneously with those acts he had a conversation with the plaintiff's visitor as to the presence of the dog on the plaintiff's property, back property in the back yard and that he then turned around and the words of the plaintiff retreated, I am satisfied I accept that the defendant believed that his dog was in the back yard. That the photograph tendered in evidence which shows the back portion of the back fence in a state of disrepair such that a dog, all be it a large dog, could get in and out.
…
I am satisfied that having regard to the legislation that as a matter of law in the facts of this case to go onto the premises in the belief of retrieving you dog not having been given a warning not to come onto the premises I find as a matter of fact that he was not when he went onto the premises he did go on in the full consciousness that he was acting against the will of the owner or that he had been warned not to go onto the premises.
In those circumstances I am [not] (sic) satisfied on the balance of probabilities that the defendant in those circumstances had a lawful excuse at that time to go onto the premises and for that reason
THE INFORMATION IS DISMISSED."
15 Later, a number of matters referred to by the Magistrate in his reasons were clarified. Firstly, the Magistrate was satisfied that Perras went onto Mills' property; secondly, Perras did so without Mills consent; and lastly Perras had discharged the onus of proof to establish lawful excuse [t 23.40-24.6 8/3/05].
16 The Magistrate in reaching his decision has rejected that part of Perras' evidence where Perras said that he did not go onto Mills' land. However Perras had admitted that he was concerned and very anxious to retrieve his dog which was on Mr Mills' property [t 12.40-50]. He called the dog and it did not come back. He thought the dog had gone into Mills' backyard because of the cats who lived there. Perras' answer (quoted earlier in this judgment) that he did not decide to go onto Mills' property to try to get his dog back referred to his state of mind when he initially could not get his german shepherd Justice to come back into his backyard. At this point in time Perras was in his own backyard.
17 Perras then went to the front of his yard and at least onto the footpath in front of Mills' property. Perras' state of mind when in the front yard and footpath is not clear from the evidence. Despite Perras denying that he went onto Mills' property there is independent evidence from Yasim that Perras did go onto Mills' front yard. Perras warned Yasim to "Watch out for the dog". Mills also gave evidence that he saw Perras enter his (Mills) property.
18 It is my view that there was evidence to support a finding that Perras did go onto Mills' property. There was also evidence from which the Magistrate could infer that Perras intended to enter Mills' property to retrieve his german shepherd "Justice". An inference must be at least a deduction which may reasonably be made from the facts - see Dixon CJ in Holloway v McFeeters [1956] 94 CLR 470 at 477. That evidence from which an inference could be made was that Perras was aware Justice went there because of the cats and he saw Justice in the backyard, called him, and Justice did not come back. He was very anxious and concerned that Justice was on Mills' property
19 It is my view that it was open to the Magistrate to make this finding that Perras went onto Mills' property to retrieve his dog. There is no error of law.