Leichhardt Municipal Council v Hunter [2013] NSWCCA 87

Leichhardt Municipal Council v Hunter [2013] NSWCCA 87

Section 49 of the Companion Animals Act 1998 creates a strict liability offence because its text requires compliance without words such as wilfully or intentionally, the Act elsewhere uses wilful conduct when intended, the offence is regulatory and directed to public safety, and requiring proof of intention would frustrate enforcement of control orders. In the statutory context, compliance by an owner can be established where the dog is under the control of a competent person and the owner takes all reasonable steps to communicate and direct that person as to the control order, so it was open as a matter of law for the charge to be dismissed on that basis.

Jurisdiction
Australia
Judgment Date
24 April 2013
Procedural Posture
Stated Case Pursuant to S 5 B of the Criminal Appeal Act 1912 / Court of Criminal Appeal Determination of Questions of Law After the District Court Upheld the Respondent's Appeal and Quashed the Conviction
Outcome
Extension of time granted; questions of law answered.
Legal Topics
['strict Liability Offences' 'companion Animals Act 1998 S 49' 'control Orders for Dangerous Dogs' 'defence of Taking All Reasonable Steps' 'stated Case']
['criminal Law' 'statutory Construction' 'animal Control Regulation'] ['strict Liability Offences' 'companion Animals Act 1998 S 49' 'control Orders for Dangerous Dogs' 'defence of Taking All Reasonable Steps' 'stated Case']

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Procedural Posture

Stated Case Pursuant to S 5 B of the Criminal Appeal Act 1912 / Court of Criminal Appeal Determination of Questions of Law After the District Court Upheld the Respondent's Appeal and Quashed the Conviction

Legal Issues

  1. 1 ['Whether the offence created by s 49 of the Companion Animals Act 1998 is an offence of full mens rea or strict liability.' 'If s 49 creates an offence of full mens rea, what the content of the mental element is.' 'Whether it was open as a matter of law for the charge to be dismissed on the ground that the respondent had taken all reasonable steps to ensure the terms of the control order were complied with.']

Ratio Decidendi

Section 49 of the Companion Animals Act 1998 creates a strict liability offence because its text requires compliance without words such as wilfully or intentionally, the Act elsewhere uses wilful conduct when intended, the offence is regulatory and directed to public safety, and requiring proof of intention would frustrate enforcement of control orders. In the statutory context, compliance by an owner can be established where the dog is under the control of a competent person and the owner takes all reasonable steps to communicate and direct that person as to the control order, so it was open as a matter of law for the charge to be dismissed on that basis.

Court Disposition

Extension of time granted; questions of law answered.

Orders

  • ['Grant an extension of 19 days for the submission of a question of law pursuant to s 5B(2) of the Criminal Appeal Act 1912.' 'The offence created by s 49 of the Companion Animals Act 1998 is an offence of strict liability.' 'The second question does not arise.' 'The third question is answered yes.']