Summary:
The respondent, an owner of a brindle boxer dog, was charged with the dog attacking a person and for having the dog in a public place without a leash. The dog had escaped from the respondent's house and allegedly ran to and lunged at a lady delivering pamphlets. On appeal, the question of whether the dog's behaviour constituted an 'attack' for the purposes of the Dog Act 1976 (WA) s 33D(1) was a question of fact to be determined by the trial judge and, accordingly, the appeal was dismissed.
1 : On 28 January 2009 his Honour Magistrate Calder at a joint trial heard and determined two charges against the respondent, Mr M M Kiraly, alleging offences by him against s 33D(1) and s 31(3) of the Dog Act 1976 (WA). The charges were, respectively, that on 22 June 2008 the respondent had:
(a) at Lewis Court, Armadale, being the owner and/or person liable for the control of a dog, namely a female brindle boxer, named Puszi, registration number 10-1416 that attacked [a] person - contrary to s 33D(1) of the Dog Act 1976; and
(b) that at Lewis Court, Armadale, being the owner and/or person liable for the control of a dog, namely a female brindle boxer, named Puszi, registration number 10-1416, that was in a public place whilst not held by a leash contrary to s 31(3) of the Dog Act 1976.
2 After hearing the evidence and giving oral reasons for decision, which have been fully transcribed, his Honour dismissed the charge under s 33D(1) of the Act but convicted the respondent of the charge under s 31(3). For the offence of not having the dog on a leash his Honour fined the respondent $100 and ordered him to pay costs of $60.
3 The prosecutor, the City of Armadale, sought leave to appeal from the decision dismissing the charge under s 33D(1) and leave to appeal in that respect was granted by the order of McKechnie J dated 12 March 2009 pursuant to s 9 of the Criminal Appeals Act 2004 (WA).
4 There has been no appearance entered by the respondent in the appeal proceedings nor did he appear personally or by counsel at the hearing of the appeal. Proof of service of the notice and grounds for appeal upon the respondent by post is set out in an affidavit of Mr C J Graham of 9 March 2009. In further affidavits of Ms J P See of 19 June 2009 and of Mr T Houweling of 28 April 2009 there are to be found details of attempts by the respondent's solicitors to serve upon the respondent copies of the appellant's written submissions and the notice of the date of hearing of the appeal. The evidence is to the effect that notices of registered post articles awaiting collection by the respondent were delivered to his address by Australia Post but that they have not been collected despite a second attempt to forward such documents to the respondent by post. In the circumstances I am satisfied the respondent has had adequate notice of these proceeding and has not availed himself of the opportunity to be informed of the date or place of the hearing of the appeal. In the circumstances I am satisfied that the appeal should proceed and be determined notwithstanding the absence of the respondent.
Reasons for decision at trial
5 The learned magistrate gave detailed reasons for his decisions to convict the respondent on the first charge and to dismiss the second charge in respect of which this appeal has been brought. In doing so his Honour said:
The evidence of both the accused and the prosecution witness, Ms N, is to the effect that the dog in question, which I find was owned by the accused and at all times in the care and control of the accused for the purposes of the Act, came out on to the driveway of the accused's residence and it was able to do that because the accused had opened the front gates of his house so that he could drive his van in, and there was a gap between the side of the van and the gate post and the dog came out.
The dog crossed the roadway on which Mr Kiraly, the defendant, lives - that is Campbell Road - and entered Lewis Court.
6 His Honour referred to an aerial photograph showing the scene and the proximity of the respondent's house to the place where the alleged incident occurred and said:
[I]t seems that the cul-de-sac constituted by Lewis Court is probably slightly over, a bit over 50 metres in length from where it starts at the intersection, a T-junction, with Campbell Street and where it ends.
This indicated, in the circumstances, that it was only a short distance from Mr Kiraly's front gate to the point in Lewis Court where the incident occurred. His Honour continued:
The whole incident took place within probably 60 metres, maybe a bit more, 60 or 70 metres, of Mr Kiraly's front gate, and I find that Ms N was delivering pamphlets. She had a part-time job and she was performing that job on the day in question, delivering pamphlets in Lewis Court. She happened to be there at the time when the dog, the one shown in the photo and the one who appeared in court, came out onto the street, crossed the road and ran up to her.
My observation of the dog is that it is old, it is grey, or has got a lot of grey, a grey muzzle, which is an indication that dogs are getting a bit old, but nevertheless an active dog. It had a large lump behind its left upper leg between the elbow and the shoulder at the back, and when I say large it is probably almost the size of a - or around about the size of a man's fist.
Mr Kiraly gave evidence that he knew the dog had run out, and as soon as the dog ran out he stopped his van. He thought the whole incident, between the time when the dog escaped and the time it came back to him, took a couple of minutes. Ms N said the whole incident took a maximum of five.
... I'm satisfied it was not as long as five minutes. And I find that by the time Mr Kiraly got out of his van, went to the verge or perhaps the other side of Campbell Street and called his dog, he was out of sight of Ms N. She had gone around to the right as one faces from Campbell into Lewis and gone into a nearby residence.
In any event I accept that the dog was called back and went back to the accused. ... [I]t came back as a result of being called. I find that - well, there is a consistency between the evidence of the accused and Ms N as to some aspects and an inconsistency as to other aspects, and a large element of the inconsistency is the perception that each of them has as to the demeanour of the dog.
What the prosecution witness said in her evidence was that, after the dog came out, she said, 'The next thing I knew was that the dog was charging at me, growling, baring its teeth and snarling, and it lunged at me.' She said, 'I backed my pram into its back leg' - 'bashed', rather, 'my pram into its back leg' - and she gave a description of it sort of spinning around, and she said, 'Then it came at me again and I tried to do the same thing and I missed.'
Then she said she was walking backwards. She had the pram in front of her while she was going backwards, and she described in effect how the dog appeared to - these are my words, not hers - simply lose interest. She said it was wandering around a few metres away from her and didn't make any further attempt to approach her. She kept walking and there is nothing to indicate that the dog followed her.
The accused has not been charged with an offence arising out of the dog chasing her, and in any event I'm satisfied the dog did not chase her, as section [33D(1)]. The prosecution relies on essentially her description as to whether or not the dog attacked her as defined in the Act.
Now, Mr Kiraly's evidence, he had some difficulty that I perceived in expressing himself in English and the prosecutor, quite fairly I thought, didn't object to him presenting a statutory declaration which he had prepared as his initial evidence-in-chief; and he gave evidence and swore that the contents were true.
In that document, exhibit 4, he said that - and I'm paraphrasing: 'The 11-year-old dog ventured out a gate while I was driven in; did not behave in an attacking nature to the accuser, only was excited to see a baby pusher; hence former visits, one of our friends with their youngster, in such ways'.
Now I am reading verbatim, and there's a purpose in doing that, and so I'll start again. He says:
'Did not behave with an attacking nature to the accuser; only was excited to see a baby pusher. Hence former visits, one of our friends with their youngster, in such ways, and as she barked it was a disposal of happy excitement, and ready to play instead of attack. That is misinterpreted by Ms X - Mrs X. I was there all the time; witnessed the matter and crossed the road to call Pusi back, and she returned immediately and I said, "Sorry." Since, a double picket gate is installed, and upon homecoming I lock her to the back.'
That indicates to me some difficulty in expressing himself in English, but that is not to say that the message doesn't get through, and he supplemented that by giving some oral evidence. He said, in the context of denying that the whole incident occurred over about five minutes, he said that he wouldn't just stand there and let his dog - in effect he said this - bark at somebody, that he had to go across the road and get her.
He said in effect that he called her and she came back, and he grabbed her. He said in cross-examination that the dog slipped out between the gate and the fence. 'I got out immediately.' He said, 'I didn't keep driving', and he said she crossed the road because she saw the pram. He explained that he had a friend that had come to visit him with a child in a pram and that the dog had in effect, he said, enjoyed it and loved the child.
He said that she ran, he agreed, at the pusher, and she was barking but not aggressively, and he said it was a playful run around the pusher. She pushed - meaning Ms N - pushed the pram - or Ms N - at the dog, and that made it more aggravated. He wasn't cross-examined about what he meant by aggravated, and I am reluctant to give it its normal meaning, given his manner of expression in English.
The he said, 'The dog then did a piddle, and came back to me when I called her.' He said, 'I said sorry, but she probably didn't hear me.' He said that the dog didn't approach in an aggressive manner, that she had an opportunity to put the pusher between the dog and herself.
He said in effect that the dog can't jump up and attack, although I have to say I noticed when he brought the dog in that it did get up on its hind legs and put its front legs against the wall there, although didn't stay up for very long. He said he has to pick the dog up and lift her into the car because it can't jump into the car, and I accept his evidence in that regard, that she isn't able to leap about with any degree of agility and that she does have some disability in that regard. He reiterated at the end of his evidence in cross-examination that she did not run dangerously.
7 I should point out that there was no child in the pram which Ms N was using - she had it to carry the pamphlets which she was distributing to letter boxes in the area.
8 His Honour then dealt with the charge under s 31(3) of the Act and set out reasons leading to his conclusion to convict the respondent. He then went on to deal with the charge which is the subject of this appeal saying:
In relation to the charge of attack, I find that has not been proved beyond a reasonable doubt.
9 His Honour then referred expressly to the statutory definition of 'attack' in s 3(1) of the Act and excluded those parts of the definition dealing with aggressively rushing at or harassing any person, or biting or tearing at clothes or causing damage as not being relevant. His Honour then concentrated on the definition as contained in s 3(1)(d). In that regard his Honour said:
I am not satisfied that the dog - and I have to be satisfied beyond a reasonable doubt on the evidence that is before me - that the dog rushed aggressively at Ms N. Now, that is not a judgment based on her assessment. I accept that she was concerned. She was frightened and she was worried about the dog. She thought she might get bitten.
That is not enough. That of itself does not prove that the dog rushed aggressively at her. I have to balance the evidence of the accused, and of course I take into account that he has an interest, feelings for the dog. He thinks his dog is a pretty good dog, and I balance that - I'll call it self-interest in the broadest sense, but that sense of, well, his belief that the dog is not aggressive, and his evidence is to the effect that in those circumstances the dog is not an aggressive dog. I have to take that into account as well.
There is nothing to suggest that Ms N is other than an ordinary person. In fact I've got no evidence before me as to what her experience with dogs is. She may or may not be a person who is able to make an assessment that a dog is rushing aggressively at her. The mere fact that a dog runs towards a person doesn't mean it's aggressive. The fact that it barked is not necessarily determinative of the fact that it is aggressive.
Again, I take into account not only her evidence but the evidence of the accused. In so far as the prosecution relies on paragraph (1)(d), the prosecution has to satisfy me beyond a reasonable doubt that the dog was attempting to attack, and the same difficulties arise. I accept that what the dog did was run up to her, that she was frightened, that she put the pram in between herself and the dog. She said the dog lunged at her. I don't accept that evidence. I am just not satisfied beyond a reasonable doubt that that happened.
The witness really made an assessment, and in those circumstances not an unjustified assessment, that the dog was attacking her, but I am simply of the view that the prosecution has not, as it must, prove beyond a reasonable doubt that the dog either aggressively rushed at her or harassed her, and the harassment must be aggressive in my view.
I mean, a dog walking up and licking someone can be a harassment, but not sufficient to constitute an attack. The harassment in my view must contain an element of aggression, or even if aggression is not the precise word, certainly more than simply harassment.
In relation to paragraph (d), so far as it says that an attack includes behaving in such a manner towards a person as would cause a reasonable person to fear physical injury, I am simply not satisfied on the evidence that just because Ms N was afraid of the dog that that would necessarily cause a reasonable person.
At this point I should interpose to observe that it is obvious that the transcript either did not complete the sentence uttered by his Honour, or that his Honour inadvertently failed to complete the sentence. In the context it is obvious that his Honour must have meant to say:
I am simply not satisfied on the evidence that just because Ms N was afraid of the dog that that would necessarily cause a reasonable person [to fear physical injury].
His Honour continued:
I don't have any evidence, as I've said, of her particular experience with dogs. People act in all sorts of different ways to different circumstances, including the presence of animals. But I am not satisfied on the balance of probabilities that the dog running at her was acting in an aggressive manner or in a manner that otherwise is sufficient to satisfy me beyond a reasonable doubt that it was attacking her.
The evidence of the accused is not consistent with hers that he charged at her. The word 'charged' is an emotive word anyway and as I said I am not satisfied beyond a reasonable doubt that the dog attempted to attack her in any of the categories or any of the manners set out in paragraphs (a) to (d) of subsection 3(1). For those reasons the accused is acquitted of that charge.
Statutory provisions
10 The provisions of the Dog Act 1976 relevant to the determination of this appeal are:
Interpretation
(1) In this Act, unless the context otherwise requires -
attack, in relation to the behaviour of a dog, does not include behaviour which was an immediate response to, and was induced by, provocation, but includes -
(a) aggressively rushing at or harassing any person or animal; or
(b) biting, or otherwise causing physical injury to, a person or an animal; or
(c) tearing clothing on, or otherwise causing damage to the property of, the person attacked; or
(d) attempting to attack, or behaving in such a manner toward a person as would cause a reasonable person to fear physical injury,
unless the owner establishes that the behaviour was justified by a reasonable cause.
...
33D. Dog attacks, etc.
(1) If a dog attacks or chases any person, or any animal owned by or in the charge of another person, whether or not any injury is caused, every person liable for the control of the dog commits an offence -
(a) in the case of any person, unless he satisfies the court that the dog was being used in good faith in the reasonable defence of any person or property or for the droving or removal of any animal found trespassing;
(b) in the case of the occupier of premises where the dog is ordinarily kept or ordinarily permitted to live, unless he satisfies the court that at the material time the dog was in fact owned by some other person (whom he shall identify) over the age of 18 years; or
(c) in the case of the owner or the registered owner, unless he satisfies the court that at the material time the dog was in the possession or control of some other person without his consent, express or implied.
Penalty: $10 000.
11 It is therefore obvious that the learned magistrate correctly, in my opinion, concentrated on the provisions of s 33D(1) and in doing so embarked on a consideration of whether or not this dog attacked Ms N after excluding, by reason of the evidence, any question of chasing any person or animal. It is equally apparent, why, in my view correctly, the learned magistrate addressed the issue of provocation in order to exclude it and then concentrated on the requirements of the definition of attack in s 3(1)(d). His Honour directly addressed the question of whether or not the facts established an attack within the meaning of s 3(1)(a) of the definition but rejected that on being satisfied that the dog had not aggressively rushed at or harassed Ms N. His Honour excluded biting or otherwise causing physical injury, as mentioned in s 3(1)(b), or of tearing clothing or causing damage to the property of the person attacked under s 3(1)(c).
Grounds of appeal
12 The grounds advanced by the appellant in its notice of appeal, and in respect of all of which leave to appeal was granted are:
The Magistrate erred in law by applying the wrong test when determining whether an attack had occurred for the purposes of section 33D of the Dog Act 1976 ('the Dog Act'):
Grounds
The Magistrate correctly informed himself that, to constitute an 'attack' for the purposes of the Dog Act, a dog must behave in one of the manners set out in the definition of attack;
The prosecution relied on the definition of attack from section 3(1)(d) which includes 'attempting to attack, or behaving in such a manner towards a person as would cause a reasonable person to fear physical injury';
The Magistrate found that the dog did not aggressively rush at Ms N, and because of a lack of aggression concluded that the Respondent's dog did not 'attack' for the purposes of the Dog Act, however, the definition does not require a finding of aggression for an attack to have occurred; and
The Magistrate was required to find whether the Respondent's dog behaved in such a way that a reasonable person would fear physical injury.
Even if the Magistrate was correct in importing a test of aggression, the Magistrate, in any event, erred in law by finding that the dog did not act aggressively when there was an un-contradicted evidence of Ms N that the dog caused Ms N to be frightened and worried:
Grounds
The Magistrate erred in law by concluding that the Respondent's dog did not attack Ms N for the purposes of the Dog Act, in that the Respondent's dog did not act in such a way that a reasonable person would fear physical injury, when the facts did not support such a conclusion, in that:
(a) the Respondent's own evidence infers that the Respondent's dog ran at Ms N, and that the Respondent's dog became 'more aggressive' (Respondent's evidence) when Ms N swung the 'pusher' at it;
(b) the Respondent apologised for the behaviour of the Respondent's dog to Ms N;
(c) the evidence showed that the Respondent's dog ran at Ms N and barked at her;
(d) Ms N was frightened and worried, and thought she might get physically injured by the Respondent's dog; and
(e) the Magistrate himself notes that there is nothing to suggest that Ms N is other than or [sic] ordinary person, i.e. a reasonable person.
The Magistrate erred in law by considering the experience Ms N had with dogs and so failed to apply the correct test of whether the dog's behaviour was such as would cause a reasonable person to fear physical injury:
Grounds
The test for the purposes of the fourth limb of the definition of 'attack' is whether the Respondent's dog behaved in such a way that a reasonable person would fear physical injury. For the purposes of assessing this fourth limb, the Magistrate erred by taking into account:
Ms N's experience with dogs;
whether Ms N is an ordinary person; and
whether Ms N is a person who is able to make an assessment that a dog is rushing aggressively towards her.
The Magistrate erred in law by substituting the evidence of the Respondent by preferring his own interpretation of the oral evidence of the Respondent:
Grounds
In summing up, the learned Magistrate said that he did not accept the ordinary words of the Respondent and said 'he wasn't cross-examined about what he meant by aggravated, and I am reluctant to give it its normal meaning, given his manner of expression in English'.
The Magistrate erred in law by taking into account in-admissible evidence, by allowing the Respondent's dog, the subject of the prosecution, to come into the Court room, and there observed its behaviour and drew conclusions of fact from such observations.
Submissions
13 In comprehensive written submissions developed further by counsel in oral submissions at the hearing the appellant contended, in my respectful opinion correctly, that only limited defences are available in the event of a prosecution under s 33D so that a defendant could escape liability only if he satisfied the court of one or more of the specific factors identified in s 33D(1)(a), (b) or (c): Lappan v Hughes [2003] WASCA 173 and Mnyirrinna v McIntosh [2003] WASCA 305 in support. I accept that in the event that it is established that a dog has attacked, or chased, any person then the person liable for the control of the dog will have committed an offence unless he or she establishes to the satisfaction of the court one or more of the limited defences prescribed by s 33D(1)(a) to (c). But that need be done only if the primary allegation of the prosecution has been established, namely that the evidence discloses that the dog has attacked or chased a person or other animal. In this particular case, the issue was whether or not there had ever been an attack. On that issue, the onus remained at all times on the prosecution and the learned magistrate held that it had not established that the conduct of the dog had amounted to an attack within the meaning of the Act. I appreciate that that conclusion is itself subject to challenge by this appeal but it is on that issue that the case, and this appeal, depends. There was no occasion for his Honour to consider whether or not any of the limited defences contemplated by s 33D(1) had been established nor need I pursue such matters either.
14 Next, counsel submitted that the learned magistrate had accepted that Ms N was a reasonable person and that she had undoubtedly become frightened by the dog and feared for her safety. That led to the further submission that this necessarily implied that the dog had behaved in such a manner towards Ms N as would cause a reasonable person to fear physical injury within the meaning of the definition of 'attack' in s 3(1)(d). This is, with all respect, an example of conflation. The statutory test requires proof that the dog attempted to attack or behaved in such a manner towards a person 'as would cause a reasonable person to fear physical injury'. Ms N was undoubtedly frightened. She said that she thought that the dog was going to attack her. But the test is not what Ms N thought but whether there was such behaviour as would cause a reasonable person to fear physical injury.
15 It is evident that his Honour did not consider that the reaction of Ms N in circumstances was that of a reasonable person because he was satisfied that there was no proof to the requisite degree that a reasonable person in those circumstances would have been caused to fear physical injury. The dog did not bite Ms N nor attempt to do so, nor did it tear at her clothes or property.
16 The finding by the learned magistrate that Ms N was 'an ordinary person' was directed to the extent of her experience with dogs and whether or not she was a person able to make an assessment that a dog was rushing aggressively at her (see ts 27). His Honour rejected the evidence of Ms N insofar as she had claimed that the dog lunged at her. His Honour concluded that Ms N was mistaken in her assessment that the dog had either aggressively rushed at her or harassed her in an aggressive fashion and, although not so expressly stated, it is clearly implicit in his Honour's reasons that this mistaken assessment led the lady to an unjustified conclusion that the dog was about to attack her.
17 The effective conclusion of his Honour was that the actions and behaviour of this dog would not have caused a reasonable person to fear physical injury although, no doubt for good reason, this conclusion was couched in terms designed to respect Ms N and to minimise any possible reflections upon her.
18 In the grounds of appeal the attention which his Honour gave to whether or not the dog had acted aggressively or had aggressively harassed Ms N is submitted to be an erroneous test. However, I do not consider that that submission should be accepted because the definition of 'attack' in s 3(1)(a) includes a dog aggressively rushing at/or harassing any person. It was, therefore, obviously necessary for his Honour to consider all possible applications of the meaning of 'attack' as defined by the statute and his Honour was correct, and in my respectful view obliged, to consider whether or not the evidence showed that the dog had aggressively rushed at or harassed Ms N. His Honour decided that the dog's behaviour could not be characterised in that fashion and there was evidence to support that finding, including the evidence of the respondent about the general demeanour and behaviour of this animal and how the dog left the scene and returned to him as soon as she was called. The respondent's explanation was that the dog was simply excited by seeing a person with a pram and rushed towards Ms N in a typical fit of enthusiasm and excitement but was quite harmless. It was open for his Honour to accept that view, especially in the light of his conclusion to reject the evidence of Ms N that the dog had rushed at her. I see no error in his Honour addressing the question of whether or not the dog's behaviour was aggressive or in his conclusion that it was not. It is clear from his Honour's reasons at ts 27 and 28 that this examination of whether or not the dog was aggressive was principally concerned with whether or not an attack within the meaning of s 3(1)(a) had been proved. His Honour made it plain that he was treating the question of whether or not there had been an attack within the meaning of s 3(1)(d) as a different and distinct matter.
19 Nevertheless, the appellant submits that in considering the application of the test of 'attack' as contained in s 3(1)(d) his Honour still imported into his consideration of that question, at least to some degree, an issue of whether or not the dog had been shown to be aggressive and that this was an error. Again, with respect, I do not consider that this is what his Honour did or that, even if he had done so, that would have constituted an error. Confining the question to an examination of the application of s 3(1)(d) alone is to isolate the definition from its context. Furthermore, the behaviour of the animal described in s 3(1)(d) must be such as would cause a reasonable person to be in fear of physical injury and, one can ask, why would a reasonable person fear physical injury to be caused to him or her by a dog if the dog were not showing signs of aggression?
20 The offence is, after all, being in control of a dog which 'attacks' a person or animal and the very notion of 'attack' cannot be dissociated from the idea of 'aggression'. The two concepts are closely connected and, in this context, overlap even if they do not completely coincide. The meaning of s 3(1)(d) must be interpreted having regard to its position in the section, indeed in the Act, as a whole. Section 33D speaks specifically of an 'attack'. The definition of 'attack' elsewhere in s 3(1) includes aggressive rushing or harassing, biting or causing injury, tearing clothing or causing damage to property or person. That setting connotes a degree of violence, harm and/or damage and it is in that context that the definition in s 3(1)(d) must be regarded - see Pearce & Geddes 'Statutory Interpretation In Australia' (6th ed) [4.20] at 132 - 133 . The use of the context in which an expression is found can lead to the delimitation of the scope of a word. So a word of wide possible connotation will be limited by the context in which it appears: FCT v Applegate [1920] HCA 61; (1979) 27 ALR 114. As the tribunal said in Re Harry Sebel & Sons Pty Ltd (1987) 12 ALD 339 at [12]:
Where a word has many shades of meaning the context in which it appears will be of the greatest significance.
21 In Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 Stanford J said (at 696):
Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.
22 Accordingly, even if the learned magistrate had made some resort to the concept of aggression when considering whether the behaviour of the dog had amounted to an attack within the meaning of s 3(1)(d) of the definition, I am satisfied that he would not have been in error because that would be no more than considering, from the standpoint of the hypothetical reasonable person as an objective observer, whether the behaviour of the dog would cause that objective person to fear physical injury. Determination of that question by considering whether or not the dog had behaved aggressively would seem to be a legitimate way of addressing and determining the issue, or at least one way in which that issue might be addressed.
23 Counsel for the appellant referred to the observations of Murray J in Ex parte Margaret De Pardo v BA Lane SM & City of Subiaco [1998] WASC 322, dealing with a dog which had aggressively rushed at or harassed a neighbour and whose behaviour therefore came within the definition of 'attack'. In my respectful view, his Honour's approach in that regard was entirely consistent with the meaning in the Act and, indeed, such behaviour was regarded by his Honour as satisfying both the definition of 'attack' in s 3(1)(a) and (d). If anything, De Pardo's case confirms that the notion of aggressive conduct by the animal is a legitimate topic for inquiry and consideration when determining whether or not there has been an attack within the meaning of s 3(1)(d).
24 The situation which faced his Honour in the present case, on the facts as he had found them to be, was that this was a dog which had not acted aggressively, or at least the prosecution had not established that it had acted aggressively. That led to the need to consider whether, in the absence of a proven display of aggression, the behaviour of the animal would cause a reasonable person to fear physical injury. His Honour's conclusion that it did not does not appear to me, with respect, to offend or transgress any acceptable interpretation of the meaning of 'attack' in s 3(1).
25 Counsel for the appellant then submitted that even if the learned magistrate were correct in importing a test of aggression, his Honour erred by finding that the dog did not act aggressively when there was uncontradicted evidence of Ms N that the dog caused Ms N to be frightened and worried. His Honour accepted that this was the case but, as I have already explained when dealing with an earlier contention of the appellant, his Honour did not accept that a reasonable person in the position of Ms N would have been caused to fear physical injury by the conduct of this dog. Nor did his Honour accept, without reservation, the evidence of Ms N in this regard because he expressly rejected her evidence that the dog had lunged at her.
26 The third ground of appeal contends that the learned magistrate erred in law by considering the experience Ms N had with dogs and so failed to apply the correct test, whether the dog's behaviour was such as would cause a reasonable person to fear physical injury. This contention has already been substantially considered and rejected. As his Honour made plain, the reference to Ms N being an ordinary person was only with regard to her ability to assess the demeanour of a dog and of her experience with dogs. For reasons already given, his Honour did not accept that it had been established that a reasonable person in the situation which had occurred would have been caused by the behaviour of this dog to fear physical injury.
27 The appellant next contended, by its fourth ground of appeal, that the learned magistrate had erred in law by substituting the evidence of the respondent by preferring his own interpretation of the oral evidence of the respondent. This submission is made with respect to the word 'aggravated' by the respondent whose English, both written and oral, while comprehensible enough, was stilted, ungrammatical and rather strained. It was for this reason that the respondent was permitted to tender in evidence his statutory declaration, exhibit 4, by which he declared:
That on a particular day when my 11-year-old female boxer dog ventured out a gate while I was driven in, did not behave with an attacking nature to the accuser only was excited to see a baby pusher hence former visits one of our friends with their youngster in such ways, and as she barked it was a disposal of happy excitement and ready to play instead of attack that is misinterpreted by Mrs X. I was there all the time witnessed the matter and crossed the road to call Pusi back and she returned immediately and I said "Sorry". Since a double picket gate is installed, and upon homecoming I lock her to the back.
28 The use of the word 'aggravated', is found in the course of the cross-examination of the respondent at page 15, which also needs to be read in context. The questions and answers were:
Would it be intimidating?---I been (indistinct) by a blooming dog. He can be bark me any time he want. But some people be bitten by a dog in his life, and any bark, even the slightest sight of a dog give him a psychological effect, you know. I don't dispute this, because I have misplaced by the Myer man some of my parts down on the road, and I go to collect it, because I ring up, and two dogs rushed out at me, and I just stopped. I bitten by a dog, but I know how to stop and don't do any aggressive, like pushing against back or run away or turn your back. Just stop and wait. Dog bark. Dog usually bark, never bite. The dangerous dog is which doesn't bark.
But would it be intimidating? Would you accept that it's intimidating?---Well, probably intimidating for people who psychologically are sensitive to this. I don't doubt this. I state.
So the dog has run across the road to the pusher?---Yes.
Barking?---Barking.
Growling?---Growling.
Growling?---Growling, but you mean under tease. Growling is when the dog is angry and might be ready to attack. This is actually a barking and playful run around the pusher. She does not interested in the woman, but the woman displayed a reaction which made the dog more aggravated, to push the pusher.
So the woman pushed the pram?---Pushed the pusher, pushed the pram. Yes. But it does not happen in minutes and minutes. I immediately crossed the road and bring the dog back. I see (indistinct).
But after the woman pushed the pram did the dog stop or did the dog growl again?---The dog come back because I was calling. I was calling. He coming back.
29 With regard to this aspect of the evidence the learned magistrate said (at page 25 of his Honour's reasons):
He said that she ran, he agreed, at the pusher, and she was barking but not aggressively, and he said it was a playful run around the pusher. She pushed - meaning Ms N - pushed the pram, or Ms N - at the dog, and that made it more aggravated. He wasn't cross-examined about what he meant by aggravated, and I am reluctant to give it its normal meaning, given his manner of expression in English.
30 The appropriate characterisation of the behaviour of the dog was an issue of fact to be decided by the learned magistrate, who had the benefit of seeing the witnesses and evaluating their reliability, temperaments, and sensitivities. His Honour carried out this task, as he was obliged to do, recognising that the respondent's English was, as I have said, stilted and rather laboured. His Honour declined to treat the use of the word 'aggravated' in the context which I have set out as amounting to any acknowledgement that the dog's behaviour changed from being playful to aggressive or in any sense of being more threatening. In the context, his Honour has treated the respondent's expression as meaning that the dog was playful and excited when it ran across the road towards Ms N and the pusher, but when she thrust the pusher at the dog and struck it, the dog became even more excited. Even Ms N did not suggest that after this initial approach the dog displayed further or greater signs of aggression and, in my respectful view, his Honour was entirely correct to construe the idiom of the respondent in the way that he did.
31 In any event, that finding is one of fact based on the actual observance of the demeanour and peculiarities of a witness which cannot be disturbed on appeal unless it is shown to be plainly wrong or the court is satisfied that the judge at trial misapplied the advantages of having seen and evaluated the credibility of the witnesses: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. I am not satisfied that there has been any error in the finding of fact made by the learned magistrate in this respect or that his Honour has substituted his own interpretation of the oral evidence of the respondent for its proper meaning.
32 The fifth and final ground of appeal is that the learned magistrate erred by taking into account inadmissible evidence by allowing the respondent's dog to come into the courtroom and to observe its behaviour and to draw conclusions from such observations. The first point to make in this respect is that there was no objection on behalf of the prosecution to the dog being brought into the court (see ts 18). The purpose of the dog being brought into the courtroom was to allow the learned magistrate to see the large growth or tumour on her left leg which, according to the respondent, restricted the dog's movement and agility and prevented her from jumping as was alleged by Ms N. The learned magistrate noted the growth on the dog's leg, referring to this at page 23 of his reasons, but he did not accept that the dog could not get up on its hind legs (see reasons page 25). His Honour did accept that the dog was not able to leap about with any degree of agility and appeared to have some disability in that regard. Again, with respect, I consider this to be a finding of fact within the province of the proper discharge of the learned magistrate's assessment of the evidence and to have been justified having regard to the issue raised by the respondent that the growth on the leg was a severe restriction on the dog's movements. No error has been demonstrated or is apparent from his Honour's treatment of this issue.
33 It was for these reasons that, at the conclusion of the hearing of the appeal, I was satisfied that none of the grounds of appeal had been made out and that the appeal should be dismissed, as I thereupon ordered. I then indicated that I would give detailed reasons for that decision as I have now done.