Citation: Leichhardt Municipal Council v Hunter [2013] NSWCCA 87
Court: NSW Court of Criminal Appeal
Date: 24 April 2013
Judges: Latham J, Fullerton J, Adamson J
Background
The respondent dog owner held a control order over her Kelpie/Rottweiler cross, "Bailey," issued by the Local Court in October 2008. The order required that Bailey be muzzled and kept on a leash by a competent person whenever outside the home. The respondent engaged a retired naval officer as a dog walker, carefully briefed him on the order's requirements, and provided him with the necessary equipment.
In July 2010, a council officer found the dog walker with Bailey unmuzzled and off-leash during a walk. Although the dog had been properly equipped when it left the house, the muzzle had come loose and the leash was on the ground by the time the officer arrived. The appellant council charged the respondent under s 49 of the Companion Animals Act 1998, which makes it an offence for a dog owner not to comply with a control order.
The Local Court convicted the respondent. On appeal to the District Court, Blanch J quashed the conviction, finding that s 49 was not a strict liability offence and required proof of mens rea (a guilty mind). The Council then requested a stated case to the Court of Criminal Appeal to resolve the proper construction of s 49.
Legal Issues
- Whether the offence under s 49 of the Companion Animals Act 1998 is an offence of full mens rea or one of strict liability
- If full mens rea is required, what that mental element consists of
- Whether a "due diligence" defence (having taken all reasonable steps to comply) is available under s 49
Decision
By the time written submissions were filed, the respondent had conceded that s 49 is a strict liability offence, and the Court confirmed that concession was correctly made. Strict liability offences do not require the prosecution to prove a guilty mind. Instead, if a defendant raises an honest and reasonable mistake of fact, the onus falls on the prosecution to disprove that defence. The second question accordingly did not arise.
The Court applied the well-established construction principles for identifying strict liability offences: the language of the provision (no words such as "wilfully" or "intentionally," in contrast to other sections of the Act); the regulatory nature of the subject matter (public safety and control of dangerous animals); and the public interest in effective enforcement. Requiring proof of intention would frustrate prosecutions and render control orders practically unenforceable.
On the due diligence question, the Court noted that no express defence of that kind appears in the Act, and that Australian Iron & Steel had confirmed such a defence does not exist at common law in NSW. However, the Court approached the issue through the meaning of "comply" in s 49, read in its statutory context. Control orders expressly contemplate that owners will direct third parties such as dog walkers. An owner therefore relevantly complies with a control order if they ensure the dog is entrusted to a competent person and take all reasonable steps to communicate the order's requirements to that person.
Whether those steps are sufficiently comprehensive and reasonable is a question of fact in each case. The third question was accordingly answered "Yes": it was open as a matter of law for the charge to be dismissed where the owner had taken all reasonable steps to ensure compliance.
Orders Made
- Extension of 19 days granted for submission of the question of law under s 5B(2) of the Criminal Appeal Act 1912
- Question 1 answered: The offence under s 49 of the Companion Animals Act 1998 is an offence of strict liability
- Question 2 answered: Does not arise
- Question 3 answered: Yes
Key Takeaways
- Section 49 of the Companion Animals Act 1998 is a strict liability offence: the prosecution does not need to prove the owner intended to breach a control order.
- The Court of Criminal Appeal confirmed that the markers of strict liability, including the absence of fault words, the regulatory public safety context, and the need for effective enforcement, all pointed clearly to that construction.
- Under s 49, an owner "complies" with a control order in the relevant sense by ensuring the dog is in the charge of a competent person and by taking all reasonable steps to communicate the order's terms and requirements to that person.
- A "due diligence" defence does not exist at common law in NSW and is not an extension of the honest and reasonable mistake of fact defence, but the meaning of "comply" in s 49 produces a functionally similar outcome through statutory construction.
- Whether an owner's steps to inform and equip a third-party dog handler were sufficiently reasonable and comprehensive remains a fact-specific inquiry in each case.
Legislation and Cases Referenced
Legislation
- Companion Animals Act 1998 (NSW), ss 36, 47, 49, 51, 56, 69H
- Criminal Appeal Act 1912 (NSW), s 5B
Cases
- Australian Iron & Steel Pty Ltd v Environment Protection Authority (1992) 29 NSWLR 497
- Caralis v Smyth (1987) 34 A Crim R 193
- He Kaw Teh v The Queen (1985) 157 CLR 523
- R v Wampfler (1987) 11 NSWLR 541
- Sherras v De Rutzen [1895] 1 QB 918