R. v. Moser Date:, 2011 BCPC 22

Citation: R. v. Moser Date: 20110124 2011 BCPC 0022 File No: 30302 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EMILIA MOSER REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE OF THE PEACE Z. MAKHDOOM Appearing for the Crown: E. Gerber Appearing for the Defendant: J. Schenk Place of Hearing: Vancouver, B.C. Date of Hearing: May 28, 2009; November 6, 2009; May 26, 2010 & August 18, 2010 Date of Judgment: January 24, 2011 INTRODUCTION [ 1 ] The disputant, Ms.

Emilia Moser, is disputing a charge laid by the City of Vancouver (the City) pursuant to its Animal Control Bylaw 9150 (the Bylaw) for failing to muzzle an aggressive dog in a public place. At trial Ms. Gerber represented the City while Mr. Schenk represented the accused. BACKGROUND [ 2 ] Ms. Moser resides in the City and is the registered owner of a male Shepherd cross dog-named Leo. [ 3 ] In 2002, Leo was considered a vicious dog pursuant to then City Bylaw 7528. [ 4 ] In May 2008, consequent to a complaint by a letter carrier for Canada Post, Ms. Naomi Hanson, the City charged Ms.

Moser for failing to muzzle an “aggressive dog” on 6 th of February 2002. CHARGE [ 5 ] The following was sworn on 13 May 2008: On or about February 6, 2008, being the keeper of an aggressive dog, did permit, suffer or allow said dog to be on street, in a public place not owned on controlled by her, to wit, at 6210 St. George Street, Vancouver, British Columbia, without said dog being muzzled to prevent it from biting another animal or human, contrary to the form of the enactment in such case made and provided.

Section 4.3 By- law 9150.

FACTS The following facts are not in dispute: [ 6 ] Ms. Moser, who resides at 6210 St. George Street in the City of Vancouver, owns a German Shepherd Cross male dog, Leo. [ 7 ] On 27 July 2002, the City Pound notified Ms. Moser that Leo was considered a vicious dog as defined in the City of Vancouver Animal Control By-law 7528. Kevin Mazer, an Animal Control Officer sent a notice on a standard form on behalf of P. Teichroeb, Chief Licensing Officer of the City of Vancouver, to Ms. Moser. The following extract of this notice is pertinent: On June 23,1987, City Council enacted amendments to the Pound By-law to regulate the keeping of vicious dogs. A vicious dog is defined as: (

a) any dog with a known propensity, tendency or disposition to attack without provocation another domestic animal or human; or (

b) any dog which has bitten another domestic animal or human without provocation; or (

c) a Pitbull Terrier, American Pitbull Terrier, Pitbull, Staffordshire Bull Terrier, American Staffordshire Terrier, or any dog of mixed breeding which includes any of the aforementioned breeds. This letter is to inform you that the City of Vancouver Pound staff has received the following information: That on May 25th 2002, your dog "Leo" (Male Neutered/German Shepherd X Retreiver ), Did attack and injure another animal in the 6200 Block of St. George St. Vancouver B.C. Your dog, in the opinion of Animal Control as defined as per Section 2(10)(

b) of the Animal Control Bylaw #7528, is considered "vicious", Any dog that has bitten a person may be seized and impounded for a period of up to 21 days, as per

Section 4.13 of the Animal Control By-law.

In accordance with the by-law, a vicious dog is required to be kept securely confined either indoors or in an enclosed pen or other structure capable of preventing the entry of young children and adequately constructed to prevent the dog from escaping, Furthermore, when off your property, it must be on a leash, in full custody and controlled by a competent person, and muzzled to prevent it from biting another animal or human, Should you, as the owner or keeper of a vicious dog, fail to have the dog securely confined on your property or take it off your property without a leash and muzzle, you will be liable to a fine and penalty of not more than $2,000 and not less than $200 for each offense, [ 8 ] Ms.

Moser acknowledged the receipt of the foregoing on 27 th of July 2002. [ 9 ] Nancy Clarke, Manager, Licences and Inspections, Animal Control of the City of Vancouver sent a similar letter to Ms. Moser, on 7 February 2008. Portions of the letter read as follows: The purpose of the Animal Control By-law 9150,

Section 1.2, is to regulate the keeping of aggressive dogs. An "Aggressive Dog" as defined by

Section 1.2 of the Animal Control By-law 9150 states: "(

a) a dog with a known propensity, tendency or disposition to attack without provocation other domestic animals or human beings, or (

b) a dog which has bitten another domestic animal or human being without provocation. " The City of Vancouver Animal Control Services has received the following information: That on July 27, 2002 your dog Leo (Shepherd X & LICENCE #00457) has been considered "Aggressive" per the Animal Control By- law 9150,

Section 1.2. On February 27, 2007 your dog was off leash without a muzzle and ticket T 03807 was issued. On February 6, 2008 your dog was off your property, walked without a muzzle and F charged at your letter carrier, biting her on the back. Ticket LA 10127 was issued. This letter is being sent to you to remind you about the terms of keeping an aggressive dog in the City of Vancouver."

Your dog is considered an "aggressive dog" as defined by

Section 1.2 of the Animal Control By-law 9150. This letter is sent so that you may review the terms and conditions of an "aggressive" dog. PLEASE NOTE: •

Section 4.2 of the Animal Control By-law states, “A person who keeps a dog must not permit, suffer, or allow the dog to be on a street or other public place unless the dog is under the immediate charge and control of a competent person by means of a leash that is not more than 2.5 m long or another by-law allows the dog to be off-leash under certain circumstances.” •

Section 4.3 of the Animal Control By-law states, “In addition to complying with

section 4.2, a person who keeps an aggressive dog must not permit, suffer, or allow the dog to be on a street or other public place or on any other property that such person does not own or control unless such person has muzzled the dog to prevent it from biting another animal or a person, except when the dog is participating in an event sanctioned by the Canadian Kennel Club.” •

Section 4.5 of the Animal Control By-law states, "A person who keeps an aggressive dog must, at all times while the dog is on property owned or controlled by such person, securely confine the dog, either indoors or in an enclosed pen or other structure capable of preventing the entry of young children and adequately constructed to prevent the dog from escaping or from biting a domestic animal or human being." Should you, as the owner, possessor or harbourer of an aggressive dog, fail to have the dog securely confined on your property or take it off your property without being leashed and muzzled; you will be liable to a fine and penalty not less than $500.00 for each offence.

CROWN EVIDENCE [ 10 ] The Crown presented four witnesses: Animal Control Officers (ACOs), Karen Sinclair, Jeanette Nelson, Kevin Mazer, and Ms. Naomi Hanson, a letter carrier for Canada Post. [ 11 ] On 6 February 2008, Letter Carrier Hanson was walking down the sidewalk in 6200 block of St. George Street when she saw Ms. Moser and her dog coming out of the side gate of the property at 6210. The dog appeared agitated and was growling. However, upon observing it being leashed and held tight by its keeper, Ms. Hanson continued on, subsequently feeling the dog bite her left bum cheek.

She jumped ahead and as she turned around she saw Ms. Moser pulling the dog back saying no. [ 12 ] Hanson was in her uniform that consisted of pants, shirt, sweater and a Gore-tex type of jacket. She carried a “postie satchel” full of mail with two pouches secured on her hips but not touching either side. Although she felt the bite neither of her clothing items was ripped or her skin punctured. She sustained some red markings. Her employer instructed her to report the incident to the Animal Control Office. [ 13 ] ACO Karen Sinclair received the complaint and interviewed Ms.

Hanson over telephone and since there was no injury or any other damage sustained by Ms, Hanson, no photographs were taken. [ 14 ] Upon searching records kept by her employer, ACO Sinclair found that Leo was deemed or considered an aggressive dog in 2002 as a consequence of a couple of complaints, one for barking and second for an off-leash aggression. A day after receiving the complaint on 7 th of February 2008, Sinclair attended at the Moser residence where she met with Ms. Moser advising her of the complaint of a dog bite made by a letter carrier. Ms.

Moser replied that her dog Leo doesn’t bite and now Canada Post has stopped delivering her mail. DEFENCE EVIDENCE [ 15 ] Three witnesses, Messrs. Vincent Kwok Woon, Mario Suratos, and Gary Gibson appeared for the defence. In effect, all three were Leo’s “character witnesses” who gave evidence that during their visits at the Moser residence their interaction with Leo was pleasant and that they did not observe any signs of aggression in Leo’s behaviour. The last of the three witnesses, Mr. Gibson was an “expert witness”.

REGULATORY CONTEXT [ 16 ] The City of Vancouver is authorized pursuant to the Vancouver Charter S.B.C. 1953, c.55, to enact bylaws regulating civic conduct of individuals and corporations within its jurisdiction. These powers include establishing a pound as well as licence and regulate keeping of dogs and other animals. By-Law No. 7528 which was in force in 2002:

2. In this By-law, unless the context otherwise requires (1) “Vicious dog” means (

a) any dog with a known propensity, tendency or disposition to attack without provocation other domestic animals or humans, or (

b) any dog which has bitten another domestic animal or human without provocation, or (

c) a Pit Bull Terrier, American Pit Bull Terrier, Pit Bull, Staffordshire Bull Terrier, American Staffordshire Terrier or any dog of mixedbreeding which includes any of the aforementioned breeds. [17] In November 2055, the City of Vancouver Council enacted Bylaw 9150, which repealed Bylaw 7528. Bylaw 9150 1.2 In this By-law “aggressive dog” means: (

a) a dog with a known propensity, tendency, or disposition to attack without provocation other domestic animals or human beings,or (

b) a dog which has bitten another domestic animal or human being without provocation; 3.1 A person must not keep a dog that is older than three months unless such person has acquired an annual licence for the dog, andhas paid the annual licence fee. 4.3 In addition to complying with

section 4.2, a person who keeps an aggressive dog must not permit, suffer, or allow the dog to be ona street or other property that such person does not own or control unless such person has muzzled the dog to prevent it from bitinganother animal or a person, except when the dog is participating in a an event sanctioned by the Canadian Kennel Club. [18] The aggressive dogs provisions of Bylaw 9150 have thus been in place since its enactment in 2007.

No authority was presentedin Court setting out that the “vicious dog” provisions of the Bylaw 7528 have been subsumed and incorporated in the Bylaw. [19] The Bylaw does not prescribe procedure for the Pound officials when they are engaged in considering a dog “aggressive”. Theevidence was that upon reviewing a written or a verbal complaint, an ACO engages in an investigation that may involve (

a) interviewingthe complainant or canvassing information from neighbours, (

b) checking the repository of information kept by the City concerningdomestic animals, or (

c) interviewing the owner of the allegedly aggressive dog. If an ACO forms an opinion that a dog is “aggressive”its owner is notified on a standard form advising them of keeping their dog muzzled when in public and for their lack of complianceleading to higher penalties. The notification does not contain any information on how an ACO’s consideration maybe appealed. In Lee,supra, which was an application by a couple of dog owners for judicial review of a decision of an ACO in which he deemed their dogs“vicious” pursuant to the Bylaw 7538, Mr.

Justice Goepel wrote: The purpose of the notice is to put the dog owner on notice that in the opinion of the investigating officer the dog in question is a viciousdog within the meaning of the By-law; to inform and educate the dog owner regarding the By-law’s vicious dog provisions and to warnthe dog owner of the possibility of prosecutions and penalties for any violation of those provisions. [20] In addition to serving a notification that their dog has been considered aggressive, the City may serve a dog owner a “Notice of aBylaw Violation” with an opportunity to voluntarily pay a higher penalty of $500 instead of the usual $250 fine for an offence against theBylaw.

The prosecution follows in the event a dog owner fails to pay the penalty within the stipulated period of time. I will take a judicial notice of a well-known fact that only a small percentage of theforegoing “notices of bylaw violation” are unheeded thus triggering a prosecution and the consequent opportunity for the Court toexercise its jurisdiction to decide whether a dog is aggressive. In other words, although not sanctioned by the law, an ACO’s“consideration” reflects fait accomplii and causes dog owners to pay higher penalties.

Lee, supra, clarified that an ACO or any otherinvestigating officer … has no power to deem or designate dogs to be “vicious dogs” and the dog is only a “vicious dog” within the meaning of the By-law ifits behaviour fits within the definition set out in Section 2(10) of the By-law. It is ultimately for a court to decide, if charges are laidunder the By-law, if a particular dog is in fact a “vicious dog” as defined. (emphasis is mine) CASES CONSIDERED AND/OR APPLIED Anderson v. Victoria (City) [2002] B.C.J. No. 2378. Application to Destroy dog “Tuppence”, 2004 BCPC 27 , 2004 BCPC 0027. Lee v.

City of Vancouver and Cristofoli [2002] B.C.J. 240.

R. V. Chaulk (SCC), [1990] S.C.J. No. 139. R. v. Dalen 2008 BCCA 530 , [2008] B.C.J. No. 2455. R. v. Dyck [1969] B.C.J. No. 373. R. v. Florness [2005] S.J. No. 764. R. v. Parrot 2001 SCC 3 , [2001] S.C.J. No. 4. R. v. S.G.G. [1997] 2. S.C.R. 716. R. v. Sault Ste. Marie (1978) (SCC), 40 C.C.C. (2d) 353. R. v. Wholesale Travel Group Inc. (1991) (SCC), 3 S.C.R. 154. Whitehorse (City) v. Trenary [1997] Y.J. No. 97. ANALYSIS ISSUE 1: The Crown’s application to reopen its case by calling rebuttal evidence. [21] At the conclusion of the disputant’s case, Ms. Gerber applied to reopen the Crown’s case by calling rebuttal evidence on thegrounds that (

a) it was not warned or alerted in any way that lack of propensity to attack would be raised as a defence or that the defencewould expand its case to include evidence of the lack of aggression, (

b) it did not hold back any evidence, (

c) it is not obligated to call, inits case, evidence to rebut possible defences. [22] Clauses A and B of

section 1.2 of the Bylaw are subjunctive, proof of either would create prima facie presumption of aggression. The Crown relied upon proving that Leo had bitten a human being (Branch B). Since the question of propensity to aggression (BranchA) was immaterial to its case, the Crown led no evidence in this regard. Respectfully, while I agree that clauses A and B aresubjunctive, I disagree that the Crown led no evidence respecting propensity to attack. The transcripts of the examination of chief of theCrown witnesses furnish ample proof that the Crown was keen to prove propensity.

Crown exhibits 2, 6, and 7, concern antecedents ofLeo’s behaviour. The Crown expanded the case; the defence replied by properly addressing both branches of sec.1.2 of the Bylaw. [23] In S.G.G. supra, writing for the majority Mr.

Justice Cory emphasises: The decision of a trial judge to allow the Crown to reopen its case at any time prior to a verdict is discretionary, and as a result willgenerally be accorded deference...where the defence has already begun to answer the Crown’s case – the discretion is extremelynarrow...The emphasis during the third phase must be on the protection of the accused’s interests. [24] The Crown initially had two witnesses, Ms. Naomi Hanson and ACO Sinclair, both testified on 28 May 2009. We simply ran outof time that day and adjourned.

Thereafter, the Crown made an indication that they would have at least one more witness. The reality ofbacklog in our Court caused the matter to be recalled several months later on 6 November 2009. On this day the Crown led evidencefrom two more witnesses, ACOs Kevin Mazer and Jeanette Nelson. Neither of these witnesses gave any evidence respecting Branch B.Their evidence concerned Branch A.

In my respectful view, by linking Leo’s alleged bite of 6 February 2008, to the alleged 2002incidents of barking and aggression towards another animal, the Crown opened the doorway for the defence to address the issue ofpropensity to aggression. As such, the defence addressing the issue of propensity could not logically be construed either as an obliqueattack or an unanticipated defence. [25] The Crown applied to reopen its case at the conclusion of the second phase of the trial. On the third day of trial, Ms. Gerberconducted an exhaustive cross-examining Mr. Gibson; it’s his evidence that she wished to rebut.

In proffering evidence showing lack ofpropensity to aggression, the defence merely led evidence to rebut allegations of Leo’s propensity to attack without provocation.Granting the Crown leave to reopen its case in the third phase would be tantamount to a second kick at the can and likely prejudicial tothe accused. Given the foregoing and applying S.G.G. and Chaulk, supra, I denied the Crown’s application. ISSUE 2: Substance of the impugned charge - Branch A,

section 1.2 of the Bylaw [26] Does Leo have a “known propensity, tendency, or disposition to attack without provocation other animals or human beings”? AllACOs who testified had visited the Moser residence where they saw Leo unrestrained. Neither one witnessed Leo’s aggressivebehaviour. The defence witnesses also found Leo demonstrating either pleasant or a nonchalant behaviour during their visits to the Moserresidence. [27] Mr. Gibson, an expert witness conducted his own tests to conclude lack of aggression in Leo. [28] Mr. Gibson’s expertise is derived primarily from life experiences.

He doesn’t have any academic credentials or experienceworking with veterinarians or allied professionals. His past experience consists mainly of working with his spouse in the area of dog careand behavioural management. As a consultant he consulted with various municipal pounds. He has previously founded and managed anassortment of dog care and behavioural management programmes.

Indeed in his oral reasons of judgment in Tuppence, supra,Honourable Judge Rodgers of this Court commented as follows: “...Gary Gibson, accepted as an expert with respect to canine aggression.He has an impressive curriculum vitae dealing with dogs that have behavioural problems.”

[ 29 ] Some flaws or deficiencies in his evidence as well as methodology must be mentioned. The accused provided Mr. Gibson with reports from the Vancouver Pound dating back to 2002, but he did not refer to these. Instead finding his conclusions purely on his observations of Leo’s behaviour in a variety of situations. I find his deliberate oblivion to the antecedents of Leo’s behaviour - whether real or alleged, somewhat puzzling.

In his evidence he often alluded to the “hundreds of books” or the “many experts” yet he failed to cite any authority to back up his claims of “vaccinosis” and other chemically induced forms of aggression. Given the principles of the philosophy of science and acceptable methods of scientific enquiry, his inability to cite even a single source was rather troubling. Notwithstanding the foregoing, his model for behavioural assessment seemed methodologically consistent as such capable of generating helpful empirical data. In his written report, Exhibit 10, Mr.

Gibson concluded that Leo is an easy-going and a highly intelligent dog having no propensity to aggression. [ 30 ] Towards the end of the Crown’s cross-examination, Mr. Gibson demonstrated hostility and lack of patience. I realise Ms. Gerber’s cross examination was vigorous and long to say the least. Mr. Gibson’s patience began to wear off after he had been on the stand for several hours and only after the clock read 5:30. His outburst was understandable. I am attaching no weight to some of the answers he gave in that state. [ 31 ] Several documents concerning 2002 and 2007 events were admitted in the evidence.

The facts therein consisted of complaints based upon which the City Pound considered Leo a “vicious dog”, pursuant to sec. 2(10) of the City Bylaw 7528. These documents must be accorded presumption of regularity. In The Law of Evidence in Canada. (Toronto & Vancouver: Butterworths, 1992), at 119. Sopinka et.al., write: The common law presumption of regularity is sometimes referred to by its Latin label omnia praesumnutur rite esse acta. In its narrower application, the presumption serves to regularize the appointment and acts of persons acting in an official capacity.

Where a person is shown to have acted in an official capacity it is supposed that the person would not intrude herself or himself into a public situation without authorization. Furthermore, the person’s acts are presumed to be regular. [ 32 ] The presumption of regularity does not import accuracy. Hence I would attach fairly low weight to the facts contained therein, see, for example, Cross on Evidence, 6th ed. (1985).

An officer’s observations or a civilian witnesses complaint cannot enjoy the presumption of accuracy that is accorded to the evidence gathered through the use of devices prescribed pursuant to the Criminal Code of Canada or Motor Vehicle Act , R.S.B.C. such as breathalysers or photo red light cameras. Only latter are caught within the meaning of s. 24 of the

Interpretation Act R.S.B.C. 1996, c. 238: If an enactment provides that a document is evidence or proof of a fact , unless the context indicates that the document is conclusive evidence, the document is admissible in evidence in any proceeding, and the fact is deemed to be established in the absence of any evidence to the contrary. (Emphasis is mine) [ 33 ] Merriam-Webster Dictionary (see http://www.merriam-webster.com/dictionary/vicious) defines the adjective “vicious” as follows: 1: having the nature or quality of vice or immorality : depraved — (see 1 vice ) 2 : defective , faulty ; also : invalid 3 : impure , noxious 4 a : dangerously aggressive : savage <a vicious dog> b : marked by violence or ferocity : fierce <a vicious fight> 5 : malicious , spiteful < vicious gossip> [ 34 ] Merriam-Webster Dictionary (see http://www.merriam-webster.com/dictionary/aggressive?show=0&t=1296529877) defines the adjective “aggressive” as follows: 1 a : tending toward or exhibiting aggression < aggressive behavior> b : marked by combative readiness <an aggressive fighter> 2 a : marked by obtrusive energy b : marked by driving forceful energy or initiative : enterprising <an aggressive salesman> [ 35 ] There is no evidence of Leo demonstrating either of the foregoing characteristics.

ISSUE 3: Substance of the impugned charge - Branch B

section 1.2 of the Bylaw [ 36 ] Ms. Hanson gave evidence that after passing the side gate of the Moser residence, where she saw the accused holding Leo tightly on leash, she “felt a bite”. Leo is a big dog. If what Ms. Hanson felt as a bite was indeed as such, there would have been some mark or a bruise or at the least torn clothing item of its victim. There is no evidence of either, just a feeling of a bite. When she turned around to look back she saw Ms. Moser in control of Leo and heard her issuing a verbal command of “no”. [ 37 ] Ms.

Hanson was no doubt startled when a growling large dog lunged at her as she walked on a sidewalk. There is evidence that despite firm suggestions or directions issued by the keeper of the dog, the dog did make contact with the left bum cheek area of Hanson.

The contact, Mr. Gibson identified as “bunting”. Per his methodology, a presumed demonstration of stress and Leo’s capacity to make a good choice in not biting into the cause of its stress. [ 38 ] The simple fact that Ms. Hanson was startled and she felt a bite cannot be a prima facie proof of a bite. There were no markings, no punctured skin not even ripped or as Mr. Schenk puts it “slobbered” clothing. When Ms. Hanson turned around to look she saw Ms. Moser in control of Leo.

It’s unfortunate that she was startled while she was simply engaged in performing her job, minding her own business. [ 39 ] It’s a notorious fact that there exist an inexplicable yet obvious acrimony between dogs and postal workers. The fact is that Leo was agitated upon observing Ms. Hanson, a postal worker, walking up the sidewalk. I agree with Ms. Gerber that no dog is allowed a free bite. However, as Gibson noted, Leo made a good choice in containing his stress and not biting. I accept the evidence that it did not bite. [ 40 ] Leo was “considered” vicious pursuant to the now repealed bylaw 7528.

The Crown presented no authority to support a presumption that the “vicious dog” provisions of the old bylaw were subsumed under the “aggressive dog” provisions of the new Bylaw. [ 41 ] I accept the defense argument that this is not a dog bite case but a case in which the defendant has been charged for failing to muzzle a dog considered aggressive by the City. [ 42 ] At the time of Ms. Hanson’s experience with Leo, the 2002 notification that Leo was “vicious” did not apply.

There was no notification made by the City prior to 6 February 2008 that Leo, a vicious dog pursuant to the repealed Bylaw 7538 is now considered an “aggressive” dog pursuant to the new Bylaw in force. [ 43 ] It’s only after Ms. Hanson complained that on 7 February 2008, Nancy Clarke wrote Ms. Moser that Leo was “considered aggressive” pursuant to the Bylaw. Several months later in May the charge was laid. [ 44 ] Mr. Gerber is correct that the purpose of the Bylaw is to protect public from harm associated with unprovoked animal aggression. In Wholesale, supra , Mr.

Justice Cory wrote that: "It is absolutely essential that governments have the ability to enforce a standard of reasonable care in activities affecting public welfare." Taking the evidence in its entirety, I have come to a conclusion that Leo demonstrated a normal animal trait by reacting to the presence of an unknown person in the proximity of the place where it lives. However, its ability to contain stress demonstrates lack of aggression. [ 45 ] Even if Leo’s growling and bunting of Hanson is a sign of aggression, Ms. Moser must not be held liable as her behaviour demonstrated diligence expected of a dog owner.

The offence pursuant to s. 4.3 of the Bylaw is that of strict liability wherein defence of due diligence is available to an accused, see Sault Ste. Marie, supra. [ 46 ] Ms. Hanson testified that she saw Ms. Moser holding tight on to Leo’s leash and subsequent to her being startled when she looked back, she saw Ms. Moser issuing a verbal command and continuing holding Leo.

While being mindful of the fact the Court must not be creating an evidential burden that would thwart the Crown capacity to enforce a thoughtful regulatory regime, it is also important that the Court must not render available due diligence defence illusory. [ 47 ] Accordingly I must enter an acquittal. ________________ Zahid Makhdoom Judicial Justice