Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 60

HCA/2015-001534-XJ

Lady Paton

Lord Bracadale

Sheriff Principal M M Stephen QC

 

OPINION OF THE COURT

delivered by LORD BRACADALE

in

STATED CASE

by

PAULINE REID

Appellant;

against

PROCURATOR FISCAL, PERTH

Respondent:

Appellant:  Jones; Faculty Services Ltd

Respondent:  Edwards AD; Crown Agent

30 June 2015

[1]        On 9 February 2015 after trial at Perth Sheriff Court the appellant was convicted on summary complaint of a contravention of section 3(1) of the Dangerous Dogs Act 1991 in that on 16 June 2014 at 31 Douglas Court, Perth, she being the owner of a dog, namely a Staffordshire cross Labrador dog, which was dangerously out of control in any place in respect that the dog did bite Margaret Anne McLeod on the body to her injury. 

[2]        The sheriff made a community pay-back order with a requirement of 150 hours of unpaid work.  She ordered the destruction of the dog in terms of section 4(1)(a) and she disqualified the appellant from having custody of a dog for a period of three years, in terms of section 4(1)(b). 

[3]        The appeal is against conviction and sentence.  The first question in the stated case is whether the sheriff erred in law in repelling a submission on behalf of the appellant made in terms of section 160 of the Criminal Procedure (Scotland) Act 1995.  The Crown evidence came from three witnesses:  the complainer;  Sheena Milne, the mother of the appellant;  and police constable Martin Buchan.  In addition, certain evidence was agreed by joint minute. 

[4]        The evidence of the complainer was that she lived next door to the appellant.  The appellant had a dog which the complainer described was a cross between a Pit Bull and a Labrador.  He was a strong, sturdy big dog that was the size of a Labrador.  The complainer was terrified of the dog and would not go into her garden if the dog was in the appellant’s garden.  This was because when she was in the garden the dog would come to the fence and snarl at her.  The complainer had previously told the appellant that the dog was dangerous. 

[5]        On the day of the incident the complainer went into her garden intending to leave by the garden gate.  She thought that the dog was in the appellant's house as she could not hear him.  As she reached up to unlock the gate she saw the dog out of the corner of her eye as he flew over the fence straight at her.  There was no warning of this action.  The dog caught the complainer on the right hip in its jaw, taking hold of her trousers and some flesh.  She was unable to lift her leg to ward off the dog.  She flung her handbag at the dog and the dog tore her bag away.  The dog let go and then latched onto the bare left arm of the complainer.  The dog was pulling the complainer down towards the ground and appeared to be vicious.  The complainer was petrified;  she was screaming, crying and shouting.  The complainer’s evidence was that the incident lasted for at least a couple of minutes and possibly as long as four minutes.  The appellant did not respond to the complainer’s shouts for help.  The incident started by the garden gate and ended some 10 to 12 feet away at the end of the house.  After some minutes the appellant, and then her mother, came to see what the shouting was about.  The complainer was unable to say how the appellant brought the incident to an end.  The complainer was treated at the accident and emergency department at Perth Royal Infirmary.  She sustained injuries to her arm and her hip.  The hip injury required a daily dressing over a two week period.  She was also prescribed antibiotics. 

[6]        The evidence of Sheena Milne, the mother of the appellant, was that the dog, which was a Labrador and Staffordshire cross, was a lovely dog.  She had been looking after the dog at the weekend and had returned him to the appellant’s house on the morning of the incident.  The dog was in the sitting room and went through to the kitchen for a drink.  Mrs Milne alerted the appellant to the fact that the dog had left the room and the appellant followed the dog into the kitchen.  The appellant did not return to the sitting room.  Mrs Milne heard screaming and went outside.  The appellant who was at the fence with the dog asked Mrs Milne to take the dog inside.  She took him inside and put him in his cage.  She estimated that the entire incident from the dog going into the kitchen until he was handed across the fence lasted only about 30 seconds. 

[7]        PC Buchan, who attended at the home of the complainer on the following day, stated that there were spots of blood on the paved area some eight metres away from the garden gate.  The joint minute agreed that the complainer had two puncture wounds to her left arm, which were cleaned but could not be closed due to the cause of the injuries.  The wounds were dressed and bandaged and a course of antibiotics prescribed. 

[8]        Section 3(1) of the Dangerous Dogs Act provides that if a dog is dangerously out of control, in any place, the owner is guilty of an offence;  or if the dog, whilst so out of control injures any person, an aggravated offence.  Section 10(3) provides that a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for a reasonable apprehension that it will injure any person whether or not it actually does so.  The test as to whether there are grounds for reasonable apprehension if the dog were to injure a person is an objective one.  The apprehension is not restricted to the owner’s apprehension;  rather it is a question of whether the court is entitled, in the whole circumstances, to conclude that there are grounds for reasonable apprehension that the dog would injure someone (McLaughlin v Harvie 2014 SLT 961). 

[9]        Before the sheriff the submission of no case to answer focused on whether there was corroborated evidence that there were grounds for a reasonable apprehension that the dog would injure a person.  In repelling the submission the sheriff took account of the following evidence:  the evidence from the complainer and from Mrs Milne that the dog was a large, strong dog of a particular breed;  the evidence of the complainer as to the behaviour of the dog on previous occasions and that she had previously warned the appellant that the dog was dangerous;  the evidence of Mrs Milne that when the dog left the sitting room, apparently for a drink of water, she had alerted the appellant to the fact that the dog had left the room and the appellant had followed the dog;  the evidence from the complainer, which was supported by the evidence of Mrs Milne, that the dog had escaped from his own garden before carrying out the attack;  the evidence from the complainer and PC Buchan that the attack was a sustained one which had lasted for a number of minutes and had involved dragging the complainer for a distance. 

[10]      On behalf of the appellant, Mr Jones, advocate, submitted that the Sheriff had erred.  There was insufficient corroboration of the evidence of the complainer to allow the inference to be drawn that there were grounds for a reasonable apprehension that the dog would injure any person.  The evidence as to the previous behaviour of the dog and any warning given to the appellant came only from the complainer.  As to the nature of the attack itself, Mr Jones submitted that the circumstances were similar to those in Tierney v Valentine 1995 SLT 564:  there was a single incident of attack with no appreciable time interval;  there was, accordingly, no stage at which there were grounds for a reasonable apprehension that the dog would injure any person. 

[11]      As Mr Jones pointed out, proof of the fact that there were grounds for reasonable apprehension that the dog would injure some person was essential and required corroboration (Littlejohn v McLeod 1999 JC 333).  While we accept that the attack was a single incident and that the evidence indicated that the appellant was able to get the dog under control, we consider that there was sufficient evidence pointing to knowledge on the part of the appellant beforehand as to the potential behaviour of the dog.  There was evidence from the complainer and Mrs Milne as to the size, strength and breed of the dog.  The complainer had previously warned the appellant that the dog was dangerous.  In addition, there was evidence of Mrs Milne as to the reaction of the appellant to the information that the dog had left the sitting room which was indicative of an unusual concern about the dog.  At the stage of no case to answer the sheriff was entitled to take the Crown case at its highest.  It seems to us that having regard to the evidence of the complainer, together with the surrounding circumstantial evidence, the sheriff was entitled to conclude that there was sufficient evidence prima facie satisfying the objective test set by the 1991 Act.  In our opinion she was entitled to repel the submission of no case to answer.  Accordingly, we answer the first question in the stated case in the negative. 

[12]      The appellant gave evidence.  The sheriff formed the impression that both the appellant and her mother were anxious to minimise what had happened and were unreliable as to the length of time between the dog leaving the sitting room and their awareness of the screams of the complainer.  She rejected their evidence as to the timings involved.  The sheriff also rejected the evidence of the appellant as to what had previously been said by the complainer to the appellant about the dog’s behaviour.  The sheriff preferred the complainer’s evidence that she had alerted the appellant to her concern that the dog was dangerous.  The sheriff gave reasons as to why she found the complainer to be an impressive witness and had no concern in relation to her credibility and reliability.  The sheriff then made a number of findings in fact which reflected the Crown evidence set out above. 

[13]      Mr Jones submitted that based on the findings in fact which the Sheriff had made, there was insufficient to found her conclusion that there were grounds for a reasonable apprehension that the dog would injure any person.  We disagree.  Findings in fact 2 and 3 relate to the breed, size and strength of the dog.  Findings in fact 4, 5, and 6 relate to the previous behaviour of the dog:  he would snarl at the complainer from the appellant’s garden;  the complainer was afraid of the dog and would not go into her own garden when the dog was in the appellant’s garden;  and the complainer had spoken to the appellant about what she considered was the dog’s dangerous behaviour.  Findings in fact 15 and 16 are relevant in that the dog had been unsupervised in the appellant’s garden immediately before the incident and the dog had escaped from the appellant’s garden while unsupervised.  Finding in fact 18 is to the effect that the appellant was aware that the dog had left the sitting room and the appellant followed the dog to the kitchen.  That shows an unusual degree of concern about the dog’s movement and acquires significance when seen in the light of the earlier findings in fact.  It seems to us that in light of these findings in fact the sheriff was entitled to make finding in fact 29 that there were grounds for reasonable apprehension that the dog would injure someone if it were to escape from the appellant’s garden.  She was entitled to go on to convict the appellant of the charge.  

[14]      In these circumstances we take questions two, three and four in the stated case together and answer them in the affirmative.  In the result the appeal against conviction must be refused. 

[15]      For administrative reasons we were unable to hear submissions in relation to the appeal against sentence which will be continued to a later date.