APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Menzies Sheriff Principal Lockhart	[2012] HCJAC 129 Appeal No: XJ308/12 OPINION OF THE COURT delivered by LADY PATON in STATED CASE by ALLISON CAIRNS Appellant; against PROCURATOR FISCAL, AYR Respondent: _______

Appellant: Gilfedder, Solicitor Advocate; Paterson Bell

Respondent: Shand QC, Advocate depute; Crown Agent

17 October 2012

Introduction

[1] The appellant's dog (a cross between an African Ridgeback and an Alsatian) was left in the care of a neighbour on 28 March 2011. As a result of events which occurred while the dog was in that neighbour's care, the appellant was convicted of three contraventions of section 3(1) of the Dangerous Dogs Act 1991. The dog was ordered to be destroyed.

[2] The appellant appeals against conviction. The focus of the appeal is Question 3 in the Stated Case (page 8) where the sheriff asks:

"Did I err in law in rejecting the defence that the appellant had proved that the dog was at the material time in the charge of a person whom she reasonably believed to be a fit and proper person to be in charge of it?"

The statutory defence

[3] Section 3(2) of the 1991 Act provides:

"In proceedings for an offence under subsection (1) above against a person who is the owner of a dog but was not at the material time in charge of it, it shall be a defence for the accused to prove that the dog was at the material time in the charge of a person whom he reasonably believed to be a fit and proper person to be in charge of it."

The evidence led

[4] Witnesses led on behalf of the Crown were the appellant's neighbours Hugh McEwan, Andrew Walker, Russell McCreath (in whose care the dog was left), and a police officer PC Claire Barrowman. The appellant gave evidence on her own behalf. The Crown evidence was noted by the sheriff as follows:

"1. Hugh McEwan, aged 87, resided in a block of flats at 2 Titchfield Road, Troon. He gave evidence that at about 11.30 am on 28^th March 2011 he was cleaning his car when the appellant came out of the block of flats with a man. He said that they walked past him and then the man turned back and warned him that their dog was out in the back garden going a bit mad. Later at about 1.30 pm he said that he was at the back door throwing bread to the birds when the dog, which he described, came running towards him. He described it as running wild towards the house, growling and barking. He said that he managed to pull the door closed against the dog but that the dog was still barking and growling. Had he not closed the door he said that he did not know what would have happened.

2. Andrew Walker, a 41 year old staff nurse, also resided in the block of flats at 2 Titchfield Road, Troon. He gave evidence that on 28^th March 2011 he returned home at lunchtime and entered the communal area to the rear. The dog, which he described, ran towards him and bit him on the leg, on the left upper thigh. It was snarling and barking at him. He exited the gate and when pulling the gate shut the dog bit his right hand above the knuckles. The dog was still snarling and trying to get at him. His leg was bruised and his hand was bleeding. He said that he shouted for Mr McCreath to come down, having previously seen him and the appellant with the dog. Mr Walker said that he knew the dog and previous meetings with it had been friendly. He said that he asked Mr McCreath to get the dog under control but that Mr McCreath had said that he could not control the dog. He said that the dog was still trying to get at him through the gate. Mr Walker said that Mr McCreath told him that the appellant had come round and said that she would come back in about half an hour but had never returned. Mr McCreath said that he could not take the dog up to his flat because he had pups there. In order to gain entry he said that Mr McCreath stood between him and the dog but that Mr McCreath was bitten by the dog on the hand. He said that he did not see the actual bite but that his hand was bleeding and Mr McCreath was distressed by it all, very apologetic and saying that he could not control the dog. Mr Walker said that he spoke to Mr McEwan who told him about the dog forcing him back into the house. Mr Walker said that to get out again Mr McCreath used a broom and a dog lead to fend the dog off. He had had to use them because the dog was coming to attack Mr Walker. The dog was snapping at the broom handle. As Mr McCreath had pups in his flat Mr Walker was sure that the dog had not stayed with him that night.

3. Russell McCreath, aged 67, described himself as a marine artist. He also resided in the block of flats in Titchfield Road, Troon. He said that the dog was a cross between an African Ridgeback and an Alsation. He maintained that he was looking after the dog overnight for the appellant, at first saying that he did not have the pups and then conceding that he did. He said that he had looked after Alison Cairns' dog before and that the dog had been as good as gold overnight. He gave evidence that on 28^th March 2011 he had taken the dog out to the garden. He said that he had gone up to the dog in the garden but that it did not want anyone to come near it, shaking, showing its teeth and growling. Mr McCreath said that the dog was a rescued dog and he wondered if something had happened to it in the past. He said that he had never seen the dog do this before. Mr McCreath could not remember helping Mr Walker into his flat but acknowledged that 'there was a wee problem with the dog that day'. He said that he was flustered and panicked. Mr McCreath said that the dog did not bite him but that it opened up a previous cycling injury to his right hand. He said that a statement which he gave to the police would certainly have been the truth but that he might have been misquoted. When asked about having said to the police that the dog had bitten him to the back of his hand and given him a bad cut, he said that he did not mean to say that, that the dog had made a gesture towards him but had not bitten him and said that it opened up a previous injury.

4. PC Claire Barrowman gave evidence that she arrived at 2 Titchfield Road, Troon on 28^th March 2011 at about 3 pm. She said that Mr McCreath showed her his left hand and told her that the dog had bitten him. He had a circular shaped wound to the back of his hand. The dog in the rear garden came towards them barking, growling and snarling. The dog ran up to the gate and stood barking, growing and snarling continuously at them. Mr McCreath told her that the dog belonged to the appellant and so she got her mobile number from him and called the appellant. PC Barrowman said that the appellant told her that she was at the hospital with her boyfriend who had been bitten two days earlier by the dog and his wound had become infected. The appellant had gone on to say that the dog was out of control and that she was scared of it. When PC Barrowman told her that she needed someone to come to the garden to see the dog she said that the appellant responded that she was not coming and that PC Barrowman would need to get someone to dart the dog to sedate it. PC Barrowman said that in due course at about 4 pm the appellant's ex-husband and son attended (she thought that the appellant must have called them) and the dog calmed down and went with them. PC Barrowman conceded in cross examination that she had not spoken to the appellant before this date and could only confirm that she had spoken to a female voice on the phone who said that she was the appellant."

Credibility and reliability

[5] The sheriff accepted the evidence of Mr McEwan, Mr Walker, and PC Barrowman. However he commented adversely on the credibility and reliability of the appellant and Mr McCreath at pages 6 to 7 of his Note as follows:

"Russell McCreath was clearly attempting to minimise the incident. He indicated repeatedly that he felt responsible for what had happened. He appeared to feel obligated to the appellant and to feel that he should do what he could to ensure that nothing happened to the dog. He was clearly being dishonest about how he came by his injury and in not remembering assisting Andrew Walker and so his evidence could not be relied upon.

The appellant said that the dog was about 10 years old and that she had acquired it aged one when it was a rescued dog. She said that Mr McCreath had the dog for the night and denied walking past the house at about 11.30 am on 28^th March 2011 with a male friend. She did not recall speaking to the police officer on the phone at about 3 pm that day. She said that she thought that it was safe to leave the dog with Mr McCreath. She was clearly not credible in her denial of having spoken to the police officer on the phone or of not being there at 11.30 am and so equally her evidence could not be relied upon."

Findings-in-fact

[6] Having weighed up the evidence, the sheriff made the following findings-in-fact:

"1. At about 11.30 am on 28^th March 2011 the appellant visited Mr McCreath at 2 Titchfield Road, Troon, and left her dog with him, saying that she would come back in about half an hour but not so returning. At that time the dog was behaving strangely and was out of control. Mr McCreath was not a person whom the appellant could reasonably have believed to be a fit and proper person to be in charge of the dog in that state. The dog was a cross between an African Ridgeback and an Alsation. Mr McCreath could not keep the dog in his flat because he had pups there and he took the dog outside. The dog went into the communal rear garden where Mr McCreath approached it but it did not want anyone to come near it, shaking, showing its teeth and growling. He left it there.

2. Hugh McEwan, aged 87, resided in the block of flats at 2 Titchfield Road, Troon. At about 11.30 am on 28^th March 2011 he was cleaning his car when the appellant came out of the block of flats with a man. They walked past him and then the man turned back and warned him that their dog was out in the back garden 'going a bit mad'. Later at about 1.30 pm Hugh McEwan was at his back door throwing bred to the birds when the dog came running wild towards him, growling and barking. He managed to pull the door closed against the dog but the dog was still barking and growling. The dog was dangerously out of control in a public place.

3. Andrew Walker, a 41 year old staff nurse, also resided in the block of flats at 2 Titchfield Road, Troon. On 28^th March 2011 he returned home at lunchtime and entered the communal area to the rear. The dog continued to be dangerously out of control in a public area. The dog ran towards him and bit him on the leg, on the left upper thigh. It was snarling and barking at him. He exited the gate and when pulling the gate shut the dog bit his right hand above the knuckles. The dog was still snarling and trying to get at him. His leg was bruised and his hand was bleeding. He shouted for Mr McCreath to come down, having previously seen him and the appellant with the dog. He asked him to get the dog under control but Mr McCreath said that he could not control the dog. The dog was still trying to get at him through the gate. In order to gain entry Mr McCreath stood between him and the dog but Mr McCreath was injured by the dog on the hand. His hand was bleeding and Mr McCreath was distressed by it all, very apologetic and was unable to control the dog. Mr Walker spoke to Mr McEwan who told him about the dog forcing him back into the house. For Mr Walker to get out again Mr McCreath used a broom and a dog lead to fend the dog off. He had to use them because the dog was coming to attack Mr Walker. The dog was snapping at the broom handle.

4. PC Claire Barrowman arrived at 2 Titchfield Road, Troon on 28^th March 2011 at about 3 pm. Mr McCreath showed her his left hand and told her that the dog had bitten him. He had a circular shaped wound to the back of his hand. The dog in the rear garden came running towards them barking, growling and snarling. The dog ran up to the gate and stood barking, growling and snarling continuously at them. Mr McCreath told her that the dog belonged to the appellant and so she got her mobile number from him and called the appellant. The appellant told PC Barrowman that she was at the hospital with her boyfriend who had been bitten two days earlier by the dog and his wound had become infected. The appellant went on to say that the dog was out of control and that she was scared of it. When PC Barrowman told her that she needed someone to come to the garden to see to the dog the appellant responded that she was not coming and that PC Barrowman would need to get someone to dart the dog to sedate it. At about 4 pm the appellant's ex-husband and son attended and the dog calmed down and went with them."

Submissions for the appellant

[7] On behalf of the appellant it was submitted that the sheriff had misdirected himself in finding-in-fact 1 by concluding that the appellant had left her dog with Mr McCreath at 11.30 am on 28 March 2011, and that Mr McCreath was not a person whom the appellant could reasonably have believed to be a fit and proper person to be in charge of the dog "in that state". The appellant and Mr McCreath had given evidence that the dog was left with Mr McCreath overnight. Both confirmed that Mr McCreath had looked after the dog before. According to Mr McCreath, the dog had been "as good as gold" overnight. Accordingly when the appellant parted with her dog the previous evening, she thought that it was safe to leave it with Mr McCreath. The proper time at which to assess the statutory defence was about 1 pm or 1.30 pm the next day, when there was direct evidence about the dog's behaviour from Mr McEwan and Mr Walker. But at that time the appellant had not seen the dog since the night before, when the dog's behaviour was unexceptionable. Accordingly as at 1 pm or 1.30 pm the next day, she still had a reasonable belief that Mr McCreath was a fit and proper person to be in charge of the dog.

[8] Mr Gilfedder further submitted that there was no evidence that the appellant had visited Mr McCreath at 11.30 am the next day to leave the dog with him, knowing that the dog was acting strangely. Mr McEwan's evidence about being warned by the appellant's male companion was mere hearsay. In any event the warning had not, on the evidence, been given in the appellant's hearing. Mr Walker's evidence (that he was sure that the dog had not stayed overnight with Mr McCreath as the latter had puppies in his flat) was pure assumption. The police constable's telephone-call with the appellant had related to the dog's behaviour on that particular afternoon, and not to its behaviour in general.

[9] The court was invited to answer Question 3 in the affirmative, to allow the appeal, and to quash the conviction and sentence.

Submissions for the Crown

[10] The Advocate depute submitted that the sheriff had not erred in law. He was entitled to reject both the appellant's and Mr McCreath's evidence that the dog had stayed overnight with Mr McCreath. There was evidence from Mr McEwan, Mr Walker, and the police constable entitling the sheriff to draw the inference that the appellant had left the dog with Mr McCreath at 11.30 am on 28 March 2011 at a time when the dog was dangerously out of control. The sheriff was therefore entitled to make finding-in-fact 1. On the basis that the dog was left with Mr McCreath at 11.30 am on 28 March 2011, and that the dog was already out of control at that stage, the sheriff was correct in holding that the statutory defence had not been made out, even on a balance of probabilities. Question 3 should be answered in the negative and the appeal refused.

Discussion

[11] Credibility and reliability of witnesses are matters entirely for the sheriff. On the basis of the sheriff's assessment of the witnesses (see paragraph [5] above) he was well entitled to reject certain parts of the evidence of the appellant and Mr McCreath, and in particular their evidence that the dog had been left with Mr McCreath overnight. The sheriff was also entitled to prefer the evidence of Mr McEwan, Mr Walker, and Police Constable Barrowman. These witnesses' evidence provided a convincing circumstantial case that the appellant left the dog in Mr McCreath's care at 11.30 am on 28 March 2011, at which time the dog was out of control in a public place. For example, Mr McEwan gave evidence that the appellant and a male companion walked past him at 11.30am on 28 March 2011, and that the male companion warned him that the dog was "going a bit mad" in the back garden. Further, Mr McCreath, in part of his evidence (which the sheriff was entitled to accept, while rejecting other parts) stated that when he took the dog out to the back garden on 28 March 2011, it did not want anyone to come near it, and it was shaking, showing its teeth and growling. The dog's behaviour at about 1 pm or 1.30 pm was described by Mr McEwan, Mr Walker, and Mr McCreath as running wild, growling, barking, snarling, biting, trying to get at people, shaking, showing its teeth, causing Mr McCreath's hand to bleed, and resisting all attempts to control it, including attempts with a broom and a dog lead. Police Constable Barrowman gave evidence about her telephone conversation with the appellant, explaining that the appellant said that the dog had bitten her boyfriend two days earlier; the dog was out of control; she was scared of it; and someone should come and sedate the dog. The sheriff wholly accepted the evidence of Mr McEwan, Mr Walker and the police constable. On the basis of the evidence which the sheriff accepted he was, in our opinion, entitled to conclude that the appellant had left the dog in Mr McCreath's care at 11.30 am on 28 March 2011 at a time when the dog was out of control in a public place, and the dog's behaviour was such that it was clear that Mr McCreath could not control it. Accordingly the sheriff's conclusion that "Mr McCreath was not a person whom the appellant could reasonably have believed to be a fit and proper person to be in charge of the dog in that state" cannot be criticised. It follows that the statutory defence was not made out.

Decision

[12] In the result therefore we answer Question 3 in the negative. Of consent, we answer Question 1 in the negative and Question 2 in the affirmative. It follows that we answer Question 4 in the affirmative. The appeal is refused.