The Court of Appeal sent a clear message to dog owners, upholding the conviction of a citizen whose dog was walking without a leash on a public road and clarifying that the owner's responsibility is not negated even if he was not at the scene at the time of the incident. Therefore, the Court of Appeal upheld the conviction of the dog's owner by the Famagusta District Court for the offense of free movement of a dog, rejecting in its entirety the appeal it had registered against the first instance decision.
The appellant was fined €350 after being found guilty under the Dogs Act 2002. According to the indictment, as a dog owner, he allowed the animal to roam freely on a public road without being leashed.
In his appeal, he argued that a key element of the offense was not proven, i.e. that he himself knew or tolerated the fact that his dog was walking free. The defence argued that at the time in question the owner was at work and therefore could not have known or prevented the situation.
The Court of Appeal, in a unanimous decision, held that the Court of First Instance never found as a fact that the appellant was absent from work at the time in question. On the contrary, he noted that the whereabouts of the owner was, under the circumstances, irrelevant to the establishment of the offense.
The decision provides an extensive analysis of the meaning of the term 'allows' in the relevant legislation. The Court held that the condition presupposes knowledge of the circumstances on the part of the owner, to the extent that his failure to check them is tantamount to acceptance of the fact that the dog was in the wild.
At the same time, the Court of Appeal ruled that in such cases the burden of proof is transferred to the accused to present evidence that he was not aware of the circumstances that led to the commission of the offense. As noted in the decision, the dog's storage conditions are primarily within the owner's knowledge and it would be extremely difficult for the Prosecution to prove what was happening inside his residence or premises.
The Court underlined that the appellant chose to respect the right to remain silent and did not present any testimony to overturn the burden of proof which, in the judgment of the Court of Appeal, had been placed on his shoulders.
Rejecting the allegations of violation of the presumption of innocence, the Court of Appeal held that the transfer of the burden of proof was reasonable and compatible with both the Constitution and the European Convention on Human Rights, given that the accused was required to prove circumstances that were solely within his knowledge.
In conclusion, the Court ruled that the Prosecution Authority proved the objective substance of the offense and that the appellant did not shed the burden due to him. Therefore, the appeal was dismissed and the first-instance conviction was upheld.
