Citation: Ryde City Council v Pedras [2009] NSWCCA 248
Court: Court of Criminal Appeal, New South Wales
Date: 28 September 2009
Judges: Giles JA; Buddin J; Harrison J
Background
The respondent dog owner was issued a Penalty Infringement Notice after his dog was found in a public place without being under the effective control of any competent person. No one, including the owner, was present with the dog at the time. The owner was convicted in the Local Court of an offence under section 13(2) of the Companion Animals Act 1998 (NSW).
On appeal to the District Court, the conviction was set aside. The District Court judge found that the owner was not guilty, concluding that a person not present at the time could still be "in charge of the dog at that time" within the meaning of section 13(2)(b). The judge also awarded the defendant costs that included compensation for his personal time and lost income.
Ryde City Council brought the matter to the Court of Criminal Appeal by way of a stated case, seeking determination of questions of law arising from the District Court's decision.
Legal Issues
- Whether the District Court erred in construing section 13(2)(b) of the Companion Animals Act 1998 by finding that a person not physically present could be "in charge of the dog at that time"
- Whether the District Court erred in finding the defendant not guilty on the facts as fully found
- Whether the District Court erred in awarding costs to the defendant for his personal time and lost income, beyond reasonable out-of-pocket expenses
- Whether the stated case was bad in form and should be struck out
- Whether an additional question of law could be added to the stated case
- Whether the form of the Penalty Infringement Notice deprived the District Court of jurisdiction to hear the appeal
Decision
The Court dismissed both the application to strike out the stated case and the application to add a further question. Although the stated case was criticised for its unsatisfactory form, including the annexure of documents that should instead have been encapsulated as stated facts, the Court determined that enough substance remained to answer the questions properly presented as questions of law.
On the jurisdiction point, the Court rejected the argument that a defect in the form of the Penalty Infringement Notice deprived the District Court of jurisdiction to hear the appeal from the magistrate.
On the central statutory question, the Court answered question 1 in the affirmative: the District Court judge erred in law in construing section 13(2)(b). A person who was not present at the time of the events could not properly be regarded as "in charge of the dog at that time" within the meaning of that provision. The Court declined to answer question 2, finding that it did not, in substance, raise a question of law but rather invited the Court to reconsider the factual outcome, which fell outside this Court's authority on a stated case.
On the costs question, the Court found that the District Court erred in awarding costs to the defendant that compensated him for personal time or lost income. Applying the principle from Cachia v Hanes (1994) 179 CLR 403, costs in this context are confined to reasonable out-of-pocket expenses and do not extend to a litigant's own time or earnings foregone. The orders dismissing the charge and awarding costs were set aside, and the matter was remitted to the District Court for disposal according to law.
Orders Made
- The applications to strike out and to add a question to the stated case were dismissed
- Question 1 (construction of section 13(2)(b)): answered yes, with qualifications set out in the Court's reasons
- Question 2 (finding of not guilty on the facts): not answered
- Question 3 (costs for personal time): answered yes, the District Court erred
- The orders dismissing the charge and awarding costs to the defendant were set aside
- The matter was remitted to the District Court for disposal in accordance with law
Key Takeaways
- Under section 13(2)(b) of the Companion Animals Act 1998, a person must be physically present to be "in charge of the dog at that time"; the District Court erred in concluding otherwise.
- A stated case submitted to the Court of Criminal Appeal under section 5B of the Criminal Appeal Act 1912 must identify specific questions of law, not invite the Court to reconsider factual outcomes; question 2 failed that requirement and was left unanswered.
- Costs awarded to a defendant in criminal proceedings cannot extend to compensation for personal time or lost income, consistent with the High Court's reasoning in Cachia v Hanes.
- Deficiencies in the form of a Penalty Infringement Notice did not, on the facts here, deprive the District Court of jurisdiction to hear the appeal from the Local Court.
- A stated case that annexes documents or transcripts rather than encapsulating relevant facts and law within the body of the stated case does not comply with the proper form required by the Court of Criminal Appeal.
Legislation and Cases Referenced
Legislation
- Companion Animals Act 1998 (NSW), particularly section 13
- Companion Animals Amendment Act 2001 (NSW)
- Companion Animals Regulation 2008 (NSW)
- Criminal Appeal Act 1912 (NSW), section 5B
- Crimes (Appeal and Review) Act 2001 (NSW)
- Fines Act 1996 (NSW)
- Road Transport (General) Act 2005 (NSW)
Cases
- Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
- Sasterawan v Morris [2007] NSWCCA 185; (2007) 69 NSWLR 547
- Madden (1995) 85 A Crim R 367
- Roads and Traffic Authority v Baldock [2007] NSWCCA 35; (2007) 168 A Crim R 566
- Vetter v Lake Macquarie City Council [2001] HCA 12; (2002) 202 CLR 439
- He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523
- CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- Creak v Hornsby Shire Council [2007] NSWLEC 480
- Secretary, Department of Foreign Affairs and Trade v Boswell [No 2] (1992) 39 FCR 288