Appeal by Crown, defendant acquitted at trial. Comber killed a dog that he believed was a stray, in a wildlife conservation area. He first injured it accidentally, then killed it to put it out of its misery. The dog belonged to Russel Wark. The judge held that the sincere and honest belief by the accused that the dogs are strays is not a legal justification for killing them. If the evidence indicates the dogs are dangerous to human beings or animals, lawful justification may be present but in the absence of evidence of such danger, there is no defence of legal justification under Code s. 401; however, that killing a dog to put him out of his misery did indeed constitute colour of right defense in this case.
The accused had accidentally shot the dog and then shoot the dog again to put it out of its misery. A vet testified the dog could have been saved. The Court accepted that he had a colour of right and was justified in his actions. Acquittal upheld.