Ryde City Council v Pedras [2009] NSWCCA 248

New South Wales Court of Criminal Appeal

CITATION: Ryde City Council v Pedras [2009] NSWCCA 248

HEARING DATE(S): 29 May 2009

JUDGMENT DATE: 28 September 2009

JUDGMENT OF: Giles JA at 1; Buddin J at 35; Harrison J at 36

1. Dismiss the applications to strike out and to add a question to the stated case. 2. Answer the questions in the stated case as follows: (1) Did I err in law in the construction of s 13(2)(b) in finding that a person not present at the time of the events was "in charge of the dog at that time"? On the understanding of the question set out in these reasons, yes. DECISION: (2) Did I err in law in interpreting s 13(2) of the Act by finding that the Defendant (owner of the dog), on the facts fully found, was not guilty of an offence against s 13(2). Not answered. (3) Did I err in law in awarding the Defendant his costs for his personal time (not limited to his reasonable out-of-pocket expenses)? Yes. 3. Set aside the orders dismissing the charge and awarding costs to the defendant. 4. Remit the matter to the District Court for disposal in accordance with law.

CATCHWORDS: CRIMINAL LAW – stated case – Companion Animals Act 1998 s 13 – where defendant's dog in a public place not under the effective control of some competent person - where neither the owner of the dog nor another person was present – defendant convicted in the Local Court – conviction set aside on appeal to the District Court - whether District Court judge erred in his interpretation of the section – whether questions of law submitted for determination - whether stated case bad in form and amenable to being struck out – whether case as stated could have additional question added for determination as a question of law "arising on any appeal to the District Court" in accordance with s 5B(1) of the Criminal Appeal Act 1912 – whether form of the Penalty Infringement Notice meant that there was no jurisdiction to determine the case in the District Court on appeal from a magistrate – whether award of costs to defendant to compensate for his time or lost income was erroneous – questions answered – matter remitted to District Court for disposal according to law