Dodds v Scullin [1994] QCA 454

IN THE COURT OF APPEAL [1994] QCA 454 SUPREME COURT OF QUEENSLAND C.A. No. 313 of 1994 Brisbane Before Fitzgerald P. McPherson J.A. Derrington J. [Dodds v. Scullin] BETWEEN RICHARD WILLIAM DODDS AND PHILLIP JAMES SCULLIN (Appellant) Fitzgerald P. McPherson J.A. Derrington J. Judgment delivered 02/11/94 Reasons for judgment by the Court APPEAL ALLOWED. THE CONVICTION, FINE AND ORDER FOR RESTITUTION ARE SET ASIDE. A JUDGMENT OF ACQUITTAL IS TO BE ENTERED IN FAVOUR OF THE APPELLANT. CATCHWORDS: CRIMINAL LAW - ELEMENT OF OFFENCE - "WILFULLY" - s.468 Criminal Code - Unlawfully and wilfully killing an animal - Appellant shot an "owned" dog when aiming for an ownerless stray - Whether element of "wilfully" contained in s.468 established - Application of R. v. Lockwood; Ex Parte A-G [1981] Qd.R. 209. CRIMINAL LAW - DEFENCES - Consideration of s.458 Criminal Code - Availability of s.23 Criminal Code discussed. Counsel:Appellant in person J. Costanzo for the Crown Solicitors:Director of Prosecutions for the Crown Hearing Date:25 October 1994 -- 1 of 9 -- 2 REASONS FOR JUDGMENT - THE COURT Judgment delivered the 2nd day of November 1994 The appellant was convicted in the magistrates court at Inala on a charge of wilfully and unlawfully killing an animal on Monday 31 January 1994. He was fined $800 and ordered to pay restitution of $850. The animal in question was a red or brown Newfoundland bitch named Bundy, which belonged to a Mr Fry, who lived some distance from the appellant. The appellant resides in a house on a 5 acre property at 164 Algester Road. Living with him on the property at the time were a Miss Kerry Keenan and a Mr Michael Quinn. They owned a Rottweiler dog named Clyde. During the week or so preceding the incident that led to the charge, a number of other dogs began coming on to the property. They included Bundy and a black Newfoundland, which also belonged to Mr Fry, a Border collie, and another dog referred to in evidence as a crossbreed. At the time Bundy was coming into heat and a series of dog fights ensued. At 4.15 a.m. on Thursday 27 January the appellant was wakened by sounds of dogs fighting. He went out and, with the aid of a torch, saw a fight taking place which he broke up with a broom. Clyde and the crossbreed were involved and Clyde sustained injuries to head, snout and ears. The Council dog catchers were summoned later that day but the problem was not resolved by that means. There was another dog fight on Sunday 30 January. On that occasion the appellant said he saw the crossbreed attacking Clyde, who at the time was "knotted" with Bundy and so not in a -- 2 of 9 -- 3 position to defend himself. In consequence he had to be taken for treatment to the vet, whose charges amounted to some $96 or more. The appellant is a man with hunting experience in New Zealand, who owned a Winchester rifle. At the hearing he claimed that the dog catchers advised that he was entitled to shoot stray dogs that came on to his property. In this he was supported by the evidence of Quinn and Miss Keenan but not of the dog catchers themselves. On Monday 31 January he bought some ammunition for his gun. After arriving home from work he saw the crossbreed on his property, which was there with Bundy, the black Newfoundland, and the border collie. He was asked what happened when he came upon the dogs. His answer was: "The crossbreed started snarling and that, so I put a round in the bridge and I was aiming at the chest of the crossbreed. The other two - the other three dogs were just running around, and I was just about to - I was just in the process of pulling the trigger, when the red - Bundy sort of run through and I pulled the trigger and I hit her in the shoulder." He then shot her in the head to put her out of pain. It has not been suggested that this action was not the inevitable consequence of the injury she had sustained. In his address to the magistrate the solicitor who appeared for the appellant relied on the third paragraph of s.458 of the Criminal Code. In summary, it provides that a person is not criminally responsible for an injury caused to property by the use of such force as is reasonably necessary for the purpose of defending a person or property from injury which he believes, on reasonable grounds, to be imminent. In view of the decision in -- 3 of 9 -- 4 R. v. Walsh [1984] 2 Qd.R. 407, the solicitor expressly disclaimed reliance on s.22 of the Criminal Code. It may be that R. v. Walsh may some day require reconsideration in the light of what was said in the dissenting judgments of Toohey and Gaudron JJ. in Walden v. Hensler (1987) 163 C.L.R. 561, 603, 609; if so, the present case is not the occasion for it. In view of the disclaimer by the appellant's solicitor at the hearing, the appellant is not entitled to found a claim of right to kill Bundy on what he said the dog catchers had told him. As regards s. 458, the magistrate was satisfied that the "defence" afforded by the third paragraph of the section was in the circumstances not available to the appellant. His worship considered there was no "imminent" danger to the appellant, or to anyone or anything else, at the time the dog was shot. Clyde, who was in the house recovering from his injuries, was not at that time being threatened by the other dogs. A reading of the magistrate's reasons leaves the faint impression that he may have treated the onus under the third paragraph of s.458 as resting on the appellant. That would not accord with the approach adopted to other exculpatory provisions of the Code, such as ss.23 or 24. It is not necessary to pursue the matter further, because on the material before us now there seems to have been nothing that could have justified a reasonable doubt on the basis of s.458. The available evidence, including that of the appellant himself, appears to exclude its application in the circumstances that prevailed at the time Bundy was shot. -- 4 of 9 -- 5 What does seem to have escaped attention at the hearing is, however, the matter of proof of one of the essential elements of the offence itself. Section 468 makes a person guilty of an offence only if he "wilfully" kills "any animal capable of being stolen". According to s.390, "every tame animal ... which is the property of any person", is capable of being stolen. Bundy was the property of Mr Fry, and so within the ambit of s.468. However, according to the passage from the evidence of the appellant that is set out above, the appellant was aiming at the crossbreed when Bundy ran across his sights as he pulled the trigger. That is how she came to be shot. The magistrate did not consider whether or not the circumstances were such as to attract the operation of s.23 of the Code. Under s.23 it would be for the prosecution to exclude the possibility that the killing of Bundy occurred by accident. On appeal, Mr Costanza for the respondent suggested that any such possibility was excluded in this case because the appellant knew that Bundy and the other dogs were there, and the possibility that she might be hit was foreseeable, or at least not such an unlikely consequence of firing the shot that no ordinary person would have foreseen it. It may be a legitimate response to Mr Costanza's submission that, even so, the magistrate did not specifically turn his mind at all to the question of s.23, although he did say that, with the proximity of the dogs to one another in a group, "it would be reasonable to accept that any one of those dogs in fact could be injured or killed in those circumstances". In his reasons he also mentioned the claim that killing Bundy occurred through no -- 5 of 9 -- 6 fault of the appellant, but he expressly refrained from deciding whether he accepted that account of the matter. It is true that express reliance was not placed on s.23 by the solicitor who appeared for the appellant at the hearing. That would not necessarily be decisive of the matter if it was fairly raised by the evidence. Whether or not s.23 could have been relied on, there is another and more critical issue that was not considered at the hearing. As has been pointed out, the offence created by s.468 involves as one of it elements that the killing of the animal be done "wilfully". In R. v. Lockwood, ex parte Attorney-General [1981] Qd.R. 209, a Court of Criminal Appeal composed of five Judges held that the word "wilfully" required proof by the Crown not only that the act in question was done deliberately; but that, in doing it, the accused was aware that the result charged in the indictment was a likely consequence of the act but that he nevertheless did the act recklessly regardless of the risk. According to this interpretation, proof of a subjective state of mind is required, in contrast to the second limb of s.23, where the test applied is primarily objective : cf. R. v. Kapronowski (1973) 133 C.L.R. 209, 231-232. The decision in R. v. Lockwood was concerned specifically with s.469 of the Code, but their Honours went on to say that the word "wilfully" had the same meaning wherever it appears in chapter XLVI of the Code. Section 468, under which the appellant was charged here, forms part of chapter XLVI. According to R. v.Lockwood, it was therefore incumbent on the prosecution in this case to prove that the appellant was aware that the result charged in the -- 6 of 9 -- 7 indictment or complaint here was a likely consequence of his act and that he did it recklessly regardless of the risk. In the present case the complaint charged the appellant that he "wilfully ... killed a dog the property of Rodney John Fry". The result charged in the complaint was thus the killing of that dog, which was Bundy. The prosecution was accordingly bound to establish beyond reasonable doubt, as an element of the charge against the appellant, that he was aware that the killing of Bundy was the likely result of his pulling the trigger of the gun which discharged the shot which wounded her, and that he did it recklessly regardless of the risk that it would result in her death. It was not enough that objectively the death of Bundy was reasonably foreseeable; it was necessary to go further and establish beyond reasonable doubt that the appellant himself realised it was a likely result. Had the appellant shot and killed the crossbreed as intended, there would not have been any criminal responsibility under s.468. The crossbreed was not the property of Mr Fry and, so far as the evidence goes, appears to have been an ownerless stray. On that footing it was not, within s.468, an animal "capable of being stolen" because it was not, in terms of s.390, "the property of any person". It was not, on any view of it, a dog that was the property of Mr Fry which the appellant was charged with killing. The prosecution failed to establish at the hearing that the appellant was aware when he discharged the shot from the gun that there was a risk of killing Bundy or of injuring her so that she had to be put to death. There is no finding to that -- 7 of 9 -- 8 effect. The result is that an essential element of the offence was not established in this case. In these circumstances the appeal must be allowed and the conviction set aside, as well as the fine imposed and the order for restitution made in the court below. Judgment of acquittal must be entered in favour of the appellant. -- 8 of 9 -- -- 9 of 9 --