Elliott v Weiss [2001] ACTSC 127 (20 December 2001)

Last Updated: 19 February 2002

IN THE SUPREME COURT OF THE )

) No. SCA 68 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: PAMELA ELLIOT

Appellant

AND: DARYL BENEDICT WEISS

Respondent

No. SCA 69 of 2001

BETWEEN: NATHAN ELLIOTT

Appellant

AND: DARYL BENEDICT WEISS

Respondent

C O R R I G E N D U M

1. Amendments to Reasons for Judgment dated 20 December 2001.

Page 12 [32]: Delete third and fourth sentences and substitute:

The appeal by Nathan Elliott against penalty for the offence of being an unregistered keeper of a dog is dismissed and the penalty and order of the Magistrate in that regard is confirmed. The appeal by Nathan Elliott against penalty for the offence of being the keeper of a dog by reason of which a person reasonably feared that the dog was about to attack him or her is allowed.

2. Amendment to terms of orders accompanying Reasons for Judgment.

Delete orders 2 and 3 and substitute:

2. The appeal by Nathan Elliott against penalty for the offence of being an unregistered keeper of a dog be dismissed and the penalty of a fine of $75 and the order that the appellant pay the respondent's costs of $25 be confirmed.

3. The appeal by Nathan Elliott against penalty for the offence of being the keeper of a dog by reason of which a person reasonably feared that the dog was about to attack him or her be allowed, the penalty of the Magistrate be set aside and in lieu thereof sentence be deferred upon Nathan Elliott entering into a recognizance, self in the sum of $1,000, without surety, to be of good behaviour for a period of 12 months and further conditioned upon his taking the bitch Indiana to the State of Queensland within 14 days of her release to him, there to keep her, or cause her to be kept, and not to bring her again into the Australian Capital Territory.

Add order 5:

5. The recognizance entered into by Nathan Elliott on 21 December 2001 be sufficient compliance with order 3 above.

Ann Cooper

Associate to the Chief Justice

19 February 2002

Pamela Elliott v Daryl Benedict Weiss

Nathan Elliott v Daryl Benedict Weiss

[2001] ACTSC 127 (20 December 2001)

CATCHWORDS

LIABILITY FOR ANIMALS - Dog Control Act 1975 - liability of keeper of dog - who is keeper? - appeal against order for destruction of dog - whether culpability of animal can be a factor - objective danger presented by dog not to be confused with conduct of keeper in failing to comply with Act.

Dog Control Act 1975, ss 19, 25

Magistrates Court Act 1930, s 2143

Crimes Act 1900, s 556A

Alexander v R [1981] HCA 17; (1981) 145 CLR 395

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 68 of 2001

No. SCA 69 of 2001

Judge: Miles CJ

Supreme Court of the ACT

Date: 20 December 2001

IN THE SUPREME COURT OF THE )

) No. SCA 68 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: PAMELA ELLIOT

Appellant

AND: DARYL BENEDICT WEISS

Respondent

No. SCA 69 of 2001

BETWEEN: NATHAN ELLIOTT

Appellant

AND: DARYL BENEDICT WEISS

Respondent

ORDER

Judge: Miles CJ

Date: 20 December 2001

Place: Canberra

THE COURT ORDERS THAT:

2. The appeals by Pamela Elliott against her convictions be allowed, the convictions, penalties and orders of the Magistrate be set aside and the informations be dismissed.

3. The appeals by Nathan Elliott against penalty for the offences of being the keeper of a dog that was not registered and being the keeper of a dog by reason of which a person reasonably feared that the dog was about to attack him or her be dismissed and the penalties and orders of the Magistrate in that respect be confirmed.

4. The appeal by Nathan Elliott against the penalty for being the keeper of a dog which attacked a (domestic) animal be allowed, the penalty of the Magistrate be set aside and in lieu thereof sentence be deferred upon Nathan Elliott entering into a recognizance, self in the sum of $1,000, without surety, to be of good behaviour for a period of 12 months and further conditioned upon his taking the bitch Indiana to the State of Queensland within 14 days of her release to him, there to keep her, or cause her to be kept, and not to bring her again into the Australian Capital Territory.

5. The order of the Magistrate that Indiana be destroyed be also set aside.

1. These are appeals from the Magistrates Court heard in succession against their common background of facts and the application of the Dog Control Act 1975 (the Act).

2. Pamela Elliott pleaded not guilty to three summary charges. They were, (1), being a keeper of a dog that was not registered, contrary to s 19(1)(a) of the Act, (2), being the keeper of a dog by reason of the behaviour of which a person reasonably feared that the dog was about to attack him or her contrary to s 25(1)(b) of the Act and, (3), being a keeper of a dog which attacked a (domestic) animal contrary to s 25(1)(c) of the Act. The dog in question in Pamela Elliott's case is Hodesh. All offences were alleged to have occurred on 5 April 2001. Ms Elliott appeals against all three convictions and an order under s 25(4) of the Act that the dog be destroyed. Nathan Elliott pleaded guilty to being the keeper of a dog that was not registered and also to being the keeper of a dog by reason of the behaviour which a person reasonably feared that the dog was about to attack him or her. Nathan Elliott appeals against the penalties imposed by the Magistrate and also an order that the dog be destroyed. The dog here is Indiana.

3. In a neat conformity with the blood lines, Pamela Elliott is the mother of Nathan Elliott and Hodesh is the mother of Indiana. Indiana is a bitch and was about 12 months old at the time and smaller than her mother. Relevant to the issue of identification Hodesh also had the distinguishing feature of distended teats.

4. The facts about which there is no dispute or which may be recounted without referring to the evidence are as follows.

5. Pamela Elliott and Nathan Elliott live at 72 Kingsmill Street, Kambah, as does Mr David Thomas O'Brien, the domestic partner of Pamela Elliott.

6. At all material times Hodesh and Indiana were kept at that address. Neither animal was registered pursuant to the Act. There is no question about Nathan Elliott being the keeper of Indiana, but who it was that kept Hodesh is what Pamela Elliott's appeal is all about. The prosecution alleged that she was the keeper. She says that Mr O'Brien was the keeper. Unfortunately she did not say so before the Magistrate, and Mr O'Brien only said so after the Magistrate had found, by inference, that she was the keeper.

7. On the morning of 5 April 2001 both Hodesh and Indiana were seen roaming the streets of Kambah in the vicinity of 72 Kingsmill Street. They caught the attention of Ms Lynne Michelle Richardson and her partner Mr Stephen Richardson, who were in the process of doing some renovation work at 74 Kingsmill Street. Ms Richardson first noticed one of the dogs when it advanced towards the back door of the house which she had to close in order to prevent the entry of the dog. Later both Hodesh and Indiana were seen to be advancing and retreating from No 72, jumping over fences, causing other dogs in the vicinity to bark and even triggering a car alarm in the driveway at No 74. When Mr and Ms Richardson went to their own car in the street in order to retrieve some equipment, the two dogs turned on them and approached to within a metre or so. Hodesh was the leader. Both dogs were growling and snarling. Both Mr and Ms Richardson took fright, fearing that they were about to be attacked. When cross-examined as to the identity of the dogs, Mr Richardson answered:

"I was more worried about saving myself and Lynne than - than identifying dogs."

which seems to sum up his state of mind.

8. Notwithstanding his understandable fear, Mr Richardson courageously advanced towards Hodesh, waving his hands and shouting. The two dogs, in cowardly fashion, retreated to No 72 and disappeared. However, they continued upon their aggressive way. At No 76, on a battleaxe block, lived Ms Kerry Anne Buik together with her Australian Silky Terrier, Rosie, and her Maltese cross Terrier, Pepper. Rosie was about six inches in height and eight to nine inches in length. Ms Buik was waiting for the arrival of a friend so that they could go on a picnic together. She was alerted when for no apparent reason her dogs began to bark. The three of them went to the deck over the rear garden in order to investigate. Suddenly she saw Pepper chased by a large dog which emerged from the vicinity of the adjoining reserve. She and Pepper managed to retreat into the family room. She turned and yelled at the dog which moved off and back towards the reserve. She had no sooner closed the sliding door when she heard a high pitched yelp. Fearing the worst, she headed towards the front of the house and was horrified to see Rosie in the jaws of another and larger dog. This time she did not retreat but, seizing a stick from the wood-pile, attempted to rescue Rosie. The large dog ran off, shaking Rosie in its jaws. Some 40 metres distant, it dropped the little terrier and ran out of sight. Ms Buik removed the body of Rosie. Understandably distraught, she waited until she was in a fit condition to take the body to her veterinary surgeon in Waramanga where life was pronounced extinct.

9. In the meantime, the dog that had attacked and killed Rosie was seen by Ms Richardson and identified by reason of its distended teats and size. She joined Ms Buik in Ms Buik's house and remained there on the advice of her husband from his mobile telephone until a taxi arrived and gave the all clear. At about 11.00 am, dog inspectors arrived. One of the two marauding dogs was contained by a neighbour and the other by an inspector in the reserve, using a catchpole.

10. Two days later, at the Mugga Lane Pound, the two dogs were identified by Ms Richardson and Ms Buik by a procedure which, if Alexander v R [1981] HCA 17; (1981) 145 CLR 395 is to have any application, may have been defective, in that all animals viewed were in obvious custody at the time. However no point was taken on this aspect.

THE MAGISTRATE'S DECISION

11. The Magistrate, in a carefully reasoned judgment, set out the relevant issues of law and findings of fact, well summarised in the following extract:

"I will deal firstly with the charges 41161 and 41163. On the evidence, I am left in no doubt that the dogs, Hodesh and Indiana, were involved in an incident at about 10 am on 5 April 2001, in which they ran at Stephen and Lynne Richardson, barking, snarling and baring their teeth, with the dog Hodesh being approximately 3 feet in front of the dog Indiana, and being the more aggressive of the two.

It has been conceded that this conduct on the part of the dog Hodesh, would have caused Mr Richardson reasonably to fear that Hodesh was about to attach him, and I note the evidence given by Mr Richardson that he did in fact hold such a fear. I accept that evidence.

Thus, if there is evidence which satisfies me beyond a reasonable doubt that the defendant was the keeper of the dog, the charge under section 25(1), paragraph B, of the Dog Control Act, will be made out. I will return to that issue in due course.

It has also been conceded that the dog Hodesh was not registered under the provisions of the Dog Control Act as at 5 April 2001. So similarly, if there is evidence that satisfies me beyond a reasonable doubt that the defendant was the keeper of Hodesh, as at 5 April this year, the charge under section 19(1), paragraph A, of the Dog Control Act will be made out.

I turn, therefore, to the issue of the evidence relevant to determining whether the defendant was the keeper of the dog, Hodesh.

...

This material strongly suggests that the dogs were kept at 72 Kingsmill Street, and that the defendant was at least one of the keepers of the dog. The only evidence to the contrary is the evidence of Mr Weiss, that he saw a man, whom I understand to be David O'Brien, the partner of the defendant, attend from time to time at the pound, to exercise the dogs after 5 April 2001, but that he never observed the defendant attending to so care for the dogs.

Whilst acknowledging that piece of evidence, I find that I am nevertheless satisfied beyond a reasonable doubt that the inference to be drawn from the evidence before the court is that the defendant was the keeper of Hodesh as at 5 April 2001. Accordingly I find charges 41161 and 41163 proved.

I will now turn to charge 41164. There can be no doubt that either Hodesh or Indiana attacked and killed a domestic animal, namely a small dog owned by Mrs Buik on 5 April 2001. The question is, can the prosecution prove that it was Hodesh, as they allege.

...

I am therefore satisfied that the dog which killed Mrs Buik's dog and was seen running away from Lynne Richardson, was a dog with distended teats. On the evidence before me the only possible inference is that it was Hodesh. For the same reasons that I gave earlier, I am satisfied that the defendant was the keeper of Hodesh as at 5 April 2001. Whilst no submission was put to me to the contrary, it is as well that I formally find that the only rational inference again available on the evidence is that the dog which killed Mrs Buik's dog, which I have now found to be Hodesh, in fact attacked Mrs Buik's dog and in doing so killed that animal. I therefore find that offence proved as well."

12. After the Magistrate had found the offences proved, evidence was then given on behalf of Pamela Elliott by Mr O'Brien on the matter of penalty and also, as it appears, for the purpose of seeking to show that there were extenuating or special circumstances sufficient to justify not making an order for the destruction of each of the dogs. Mr O'Brien had not been called on the issues relevant to the determination of guilt.

EVIDENCE ON THE APPEAL

13. At the hearing of the appeal, Ms Ryan of counsel, who did not appear in the Magistrates Court and who is not related to anyone who did, sought leave to call further evidence under s 2143(a)(ii) of the Magistrates Court Act 1930. Leave was granted over the opposition of the respondent. It is not necessary to revisit that question, except to say that it put a whole new complexion on the facts of one element necessary to be proved in the prosecution case, namely the identity of the keeper of Hodesh. Ms Elliott gave evidence on the appeal, which was supported by that of Mr O'Brien before the Magistrate, that she was the owner of the dog and as such had caused the dog to be registered after being charged. However she was adamant that she did not at any relevant time exercise any care or control over Hodesh. According to the evidence before the Magistrate, the only person who did anything in that regard was Mr O'Brien. Mr O'Brien gave credible evidence to the same effect, although curiously it was not given until the sentencing stage and after the Magistrate had made the finding that the inference was to be drawn that Ms Elliott was the keeper of Hodesh. There was no evidence in the appeal that Ms Elliott was the keeper except the completion by her of a form on 1 June 2001, that is to say after the alleged offences on 5 April 2001, which may be construed as an admission that she was on the later date, the keeper of Hodesh. It was apparent that she completed that form in error and confusion.

14. The Act is silent on the question whether more than one person may be a keeper of the same dog at any one time. However it is not necessary for me to decide that question, since neither on the prosecution case nor on the defence case was any issue raised about Ms Elliott and Mr O'Brien being joint keepers of Hodesh.

15. It was submitted in the appeal that Ms Elliott's evidence about why she registered the dog should be rejected, not least because it displayed confusion on Ms Elliott's part. The confusion may be understandable. Ms Elliott, like a lot of people, may think that the Act requires a dog to be registered. It does not. A dog does not commit an offence by being unregistered. Nor, contrary to what many people might think, does the Act require the owner of a dog to be registered or the owner of the dog to register it. There is no such person as a registered owner. What the law provides is that a person, being the keeper of a dog, may take steps to register that dog and until the Registrar registers the dog, the keeper is guilty of the offence created by s 19(1) of the Act every day the keeper continues to keep the dog.

16. The Act does not define "keeper". A number of cases were cited to me in relation to legislation in other places. All that need be said is that there must be, and is, some general concept giving rise to the relationship of keeper and animal, of which the particular cases found in the books are but instances. The social and humanitarian rule that you are bound to look after your dog becomes in law you have a duty to comply with the Act, and the lawyer's question, "Upon whom lies the duty?" receives a restricted reply. You, as the keeper of a dog, must comply. Who, then, in law, is a dog's keeper? The answer seems to be a person who is so closely and directly affected that he or she has (or, perhaps, should have) taken upon himself or herself the responsibility of caring for and exercising control over the dog, feeding, watering and otherwise so caring for it that he or she may expect to receive in return an appropriate measure of loyalty and affection.

17. In the light of the evidence before me at this stage, there must be reasonable doubt about whether there was that sufficient relationship between Ms Elliott and Hodesh which would result in the former being the keeper of the latter.

18. It therefore follows that the convictions of Pamela Elliott will be set aside, as must the order for the destruction of Hodesh.

19. The remaining question is whether this Court should interfere with the penalties imposed upon Nathan Elliott and the order for the destruction of Indiana. Although Nathan Elliott has no prior convictions of any kind, the Magistrate declined to extend the provisions of 556A of the Crimes Act 1900 to Nathan Elliott by declining to record a conviction. In doing so, the Magistrate had regard, as the section requires, to Mr Elliott's character, antecedents and age. Further, in relation to possible mitigating circumstances, the Magistrate expressed the view that the legislature intended that a "high onus" be placed on owners of domestic dogs in order that they be properly controlled. Also the Magistrate noted that s 25 of the Act does not require blameworthy behaviour on the part of the keeper of a dog. The Magistrate also acknowledged that there was no exclusion in law of the operation of s 556A in relation to offences under s 25 of the Act. The two latter propositions are correct.

20. In my view, the Magistrate gave proper consideration to the provisions of s 556A as they might apply to the case before him and the decision not to apply the benefits of the section to Nathan Elliott was perfectly proper on the material before the Magistrate. The real concern of both the appellants is about the order that each dog be destroyed. However, there has been a dramatic change in circumstances at this appellate level, since Pamela Elliott's appeals have been wholly successful and the order for the destruction of Hodesh has necessarily been set aside. In the case of Hodesh, death is not an issue at this stage. I have therefore to consider whether the Magistrate was correct in not finding that there were extenuating or special circumstances under s 25 of the Act in relation to Indiana.

21. In this regard, I should acknowledge that the Magistrate said that each dog must be looked at separately and that as far as Indiana was concerned, she was not the "lead dog" and was not involved in the fatal attack on Rosie. The Magistrate also said that no significance could be placed upon the fact that the dogs had never been aggressive before "because the witnesses who gave unchallenged evidence to that effect were either their keepers or people who knew the dogs in their own environment".

22. The Magistrate further said that, assuming that the intention of the owners (sic) was to remove the dogs to Queensland in order to keep them in kennels "would" constitute either extenuating circumstances or special circumstances within s 25, there is no power to make a "contingent" order that the dogs not be destroyed. The Magistrate referred to what were considered good policy reasons for the legislature declining to give a court such power.

23. The Magistrate went on to make a finding that "when the dogs are at large, they present an unacceptable risk to the safety of humans and other animals".

24. The Magistrate concluded by saying that "the two dogs appeared to act to some extent together" and that, although Hodesh was the more aggressive, the difference was not such as to justify making some distinction between the two dogs as far as capital punishment was concerned.

25. I think, with respect, that there is some error in this line of reasoning. The fact that the character witnesses knew the dogs only in a controlled environment did not prove that the dogs had been aggressive on any occasion apart from the unfortunate morning of 5 April 2001. Nor did it prove that they were likely to be aggressive if liberated from the controlled environment to which they were accustomed. Because there was evidence only about the one occasion, I do not think that the Magistrate was entitled to draw the general inference that on any occasion at all, if and when at large, the dogs do present or have presented an unacceptable risk.

26. Further, despite the appropriate warning that it was necessary to assess the two dogs independently, the Magistrate does not appear to have been successful in doing so. I do not think that it was correct, having found that Hodesh was the lead dog, to conclude that each was equally culpable. That involves what I might call the anthropomorphic fallacy of looking at the behaviour of an animal as if it were that of a human being. It is trite to say that animals do not have any capacity for moral judgment, but the point needs to be kept in mind. It is common when assessing the culpability of joint offenders for the purpose of sentencing to have regard to their respective positions with respect to the allocation of individual moral responsibility for the joint offence. It is also common that in such circumstances a court is not able to say that one offender is more or less culpable than the other. But in the case of animals, such principles and considerations simply do not apply. The best one can do, so it seems to me in this jurisprudentially unfamiliar territory, is assess as best as one can on the past performance of the animal its propensity to behave dangerously in the future, bearing in mind that the purpose of the Act is not to punish dogs but to protect the human public. Section 25 is not a form of mandatory sentencing.

27. The common law took a kindlier attitude to dogs than does the Act. At common law dogs were given what was called the privilege of the first bite. Until your dog bit somebody or caused harm by biting something or otherwise showed that it was dangerous, you were not expected to know that your dog was dangerous and neither you nor the dog were liable for the first bite. But after that first bite, you, if not the dog, were strictly liable if the dog attacked someone or something and caused harm. All that has gone long ago, since dogs on the loose became a threat to the order of urban and suburban environments. That is, as far as your liability for the harm caused by your dog is concerned and however unblemished its previous conduct and character. But when the very life of the beast is at stake and not simply the liability of the keeper to compensate someone for harm done, surely some of the old considerations remain. In my view, it was wrong of the Magistrate not to take into account the complete absence of prior misconduct on the part of both Hodesh and Indiana, not because the absence of past misconduct was in itself extenuating or special, but because it might be part of a matrix of facts, which when looked at as a whole were properly so regarded.

28. I think that the Magistrate was also in error in failing to take into account, particularly as far as Indiana was concerned, that these two dogs were in a relationship of mother and pup, although I am not suggesting that Indiana was a mere puppy. It is just that "pup" seems to me to be a much more appropriate word than "child" or "daughter". In any event it is possible, if not likely, that Indiana was so much under the maternal influence that if the two dogs were to be separated the danger they presented when together would be diminished or even eliminated. There was no evidence in the nature of a pre-sentence report, particularly as to how they had behaved since taken into custody.

29. Also the Magistrate did not appear to look to the cause of the dogs being at large. If it had been shown that the dogs were simply uncontrollable and there was no reasonable way that they could be kept under constraint by their keepers, that would have been one thing. But the fact that they had never been seen at large at all at any previous time suggests either that they were not prone to wander, or that their keepers kept them sufficiently under constraint, or both. The fact that they were at large on the day in question was not necessarily the fault of the dogs, or of Indiana in particular. If the keeper was at fault in letting them escape and to that extent allowing them to behave as many dogs might do, why should Indiana stand to lose her life?

30. A more imaginative and, in my view, reasonable approach would have resolved these apparent dilemmas without danger to the public and without condemning the young bitch. As far as Indiana was concerned on a proper consideration of the case I think that the circumstances were special, if not, extenuating. But more than that, Hodesh, or rather Pamela Elliott, no longer being regarded as guilty, there is no way Hodesh may be the subject of an order for destruction. That then leaves the younger dog in effect to shoulder the blame for the greater harm done by her mother. The evidence is clear that Nathan Elliott wants to take Indiana back to Queensland alive as he always intended. The appropriate disposition of the case is to allow him to do so and therefore to let Indiana live.

31. This involves revisiting the question of penalty. I think that the circumstances demand that on one of the charges against Nathan Elliott he, and indirectly Indiana, be given the advantage of a recognizance, with a particular condition that he take Indiana to Queensland and not bring her back. Banishment orders are almost always inappropriate if made against human beings, but I do not think considerations of the liberty of the subject and the rights guaranteed under the Australian Constitution of freedom of movement of persons within Australia apply to animals. Of course it may be a different matter if the animal is the subject of trade and commerce under s 92 but that is not a consideration in the present case.

32. The appeals by Pamela Elliott against her convictions are allowed. The convictions, penalties and orders of the Magistrate are set aside and the informations are dismissed. The appeals by Nathan Elliott against penalty for the offences of being an unregistered keeper of a dog and being the keeper of a dog by reason of which a person reasonably feared that the dog was about to attack him or her are dismissed and the penalties and orders of the Magistrate in that respect confirmed. However, the appeal against the penalty for being the keeper of a dog which attacked a (domestic) animal will be allowed. The penalty of the Magistrate is set aside and in lieu thereof sentence is deferred upon Nathan Elliott entering into a recognizance, self in the sum of $1,000, without surety, to be of good behaviour for a period of 12 months and further conditioned upon his taking the bitch Indiana to the State of Queensland within 14 days of her release to him, there to keep her, or cause her to be kept, and not to bring her again into the Australian Capital Territory. The order of the Magistrate that Indiana be destroyed is also set aside. It is noted that Indiana is at present being held in custody by the authorities at the Mugga Lane Pound and I expect that she will be delivered into the custody of Nathan Elliott once he has entered into the recognizance above referred to.

33. Unless the parties wish to be heard I propose to order that the respondent pay Pamela Elliott's costs of the appeal, with no order as to costs in Nathan Elliott's appeal.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 20 December 2001

Counsel for the Applicants: Ms E Ryan

Solicitor for the Applicants: Ryans Barristers and Solicitors

Counsel for the Respondent: Mr D J M Moeters

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 4 December 2001

Date of judgment: 20 December 2001