The accused shot and killed her neighbour’s dog after it had chased her cattle. She made a statement to the police that included details of the events. She saw her neighbour’s dog run into her cattle pasture to chase the cattle and “was attacking by jumping and biting at them”. One of the accused’s dogs barked thereby distracting the dog, at which time it came towards the accused. Believing herself and dogs to be in danger, she got her gun. The dog was sniffing the ground in her yard when the accused shot it.
The arguments on trial were based on s.11.1(2) of the Livestock Act. The Crown argued that while there was no dispute the dog was “running at large”, it was not “attacking or viciously pursuing livestock”. The trial judge convicted her, finding that there was no reliable evidence the dog was barking when he was chasing the cattle and no evidence that he nipped, bit or injured the cattle.
The accused appealed on the basis that the trial judge erred in law by misapprehending the evidence by failing to consider Exhibit 2 that included more details of the incident than her viva voce evidence. She also appealed on the basis that the trial judge erred in failing to consider the defences of legal justification or colour of right.
The Crown argued that the trial judge was not required to refer to every piece of evidence in their reasons and it was open to the trial judge to make a finding based on the accused’s viva voce evidence. In rejecting this argument, the court found the trial judge failed to consider the evidence found in Exhibit 2 that could have supported the defence under s.11.1(2) of the Livestock Act. The court also found that even though the defences of legal justification and colour of right had not been argued at trial, the accused was entitled to have all possible defences and evidence considered. The court allowed the appeal and directed a new trial.