Clare & Gilbert Valleys Council v Crawford

Appellant: CLARE & GILBERT VALLEYS COUNCIL Counsel: MR M RODER - Solicitor:

NORMAN WATERHOUSE

Respondent: MARCUS JAMES CRAWFORD Counsel: MR J FIRTH - Solicitor: JENKINS,

ANDERSON, ALLARD & FOWLER

Hearing Date/s: 15/06/2005

File No/s: DCADD-05-72

B

[2005] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA (District Court Administrative Appeals Tribunal)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply

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breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

CLARE & GILBERT VALLEYS COUNCIL v CRAWFORD

Reasons for Decision of His Honour Judge Millsteed

5 October 2005

ADMINISTRATIVE LAW

Appeal against decision by a Master – whether the Master erred in revoking a Destruction Order for a dog

under the Dog and Cat Management Act 1995 – whether the Master erred in finding that the dog was not

unduly dangerous – whether the Master has the power to impose a substitute order exempting the dog

from the requirements of a Control/Dangerous Dog Order - appeal dismissed.

Dog and Cat Management Act 1995 s51(1), referred to.

The Queen v Wilson (1991) 55 SASR 565; Wilson v The Queen (1992) 174 CLR 313; Dunlop Rubber

Australia Ltd v Buckley (1952) 87 CLR 313; Dairy Farmers Co-operative Ltd v Azar (1990) 170 CLR 293; Walker v Bletchley Flettons Ltd (1936) 1 KBD 170; Inglis v NSW Fresh Food and Ice Co. Ltd

(1943) 44 SR (NSW) 87; Boughey v The Queen (1986) 161 CLR 10; McDonald v Hanselmann [1998]

NSWSC 171; R v Forrest (1998) 35 A Crim R 421, considered.

CLARE & GILBERT VALLEYS COUNCIL v CRAWFORD

[2005] SADC 135

Introduction

1 This is an appeal against a decision by a Master.

2 On 5 February 2005, at Saddleworth, Jacob (Jake) Pryor, a child aged

18 months, was bitten by a dog and, as a result, sustained an injury to his right

ear. The dog (Mocha) belonged to Mr Marcus Crawford (the “respondent”). On

22 February 2005, the Clare and Gilbert Valleys Council (the “appellant”) made

a Destruction Order in relation to Mocha pursuant to s51(1) of the Dog and Cat

Management Act 1995 (the “Act”).

3 Pursuant to s58(1) of the Act the respondent appealed to the Administrative

and Disciplinary Division of the District Court against the Destruction Order on

the ground that the dog was not unduly dangerous as required by the Act. The

appeal was heard and allowed by Master Rice. The Master rescinded the

Destruction Order and subjected the dog to the requirements of a Control

(Dangerous Dog) Order specified in s50(3) of the Act save that it was not

required to be muzzled and leashed whilst working as a sheep dog on the

respondent’s property.

4 The appellant contends that the Master erred in rescinding the Destruction

Order because the dog was unduly dangerous and, further, that the Master had no

power to exempt the dog from any of the requirements of a Control (Dangerous

Dog) Order.

Factual Background

5 On the hearing of the appeal, before the Master, the respondent and his

father Robert Crawford gave evidence of the dog’s history and disposition. The

appellant called Mark Pryor and Kerry Pryor (Jake’s parents) and Cathryn Long

who gave evidence about the circumstances of the attack. The appellant also

called Steven Woolley, a dog management officer, employed by the appellant.

Mr Woolley investigated the incident. The following is a summary of the

evidence put before the Master.

6 The respondent and his parents, Robert and Denise Crawford, own and live

on a farming property at Saddleworth. The property is adjacent to a reserve upon

which the Saddleworth Caravan Park and oval are situated. The respondent’s dog

is a two year old Kelpie. At the time of the incident it was being trained to work

as a sheep dog on the respondent’s property. There was no fence surrounding the

respondent’s property to prevent the dog from wandering onto the reserve.

7 On 5 February 2005, Cathryn Long and her husband Richard Long held a

picnic in the caravan park to celebrate Mr Long’s birthday. They invited several

friends and their children including Mark Pryor, Kerry Pryor and their son Jake.

They had an evening meal in the grounds of the caravan park. At about 7.00pm

2

Mocha approached the area where the picnic was being held and chased and

annoyed a small dog that had to be put into a motor vehicle by its owner. Mocha

then walked around the picnic tables looking for scraps of food but did not

display any signs of aggression even when Jake patted him.

8 Jake subsequently finished his meal and walked towards the oval where

some children were playing. The dog followed him. The evidence disclosed that

Jake was possibly holding a piece of chicken at the time. A piece of chicken was

found inside his jacket following the incident. He may also have had some food

on his hands and around his mouth.

9 As Jake approached the oval the dog attacked him. Mr Pryor witnessed the

incident. He testified that the dog nudged Jake with his nose whilst the child was

bending over to pick up some sticks and stones. Jake responded by raising his

right arm. The dog then “pushed” Jake on to the ground. Mr Pryor said that he

saw the dog lunge at his son twice whilst he was on the ground. On the first

occasion it bit Jake’s right ear and then stepped back. On the second occasion it

bit the boy on the arm. The dog again stepped back and was then chased away by

Mr Pryor.

10 Mrs Pryor and Mrs Long also witnessed part of the attack. They first

became aware of the attack after Jake had fallen on to the ground. Upon looking

in Jake’s direction they saw the dog standing over him. They saw the dog snap at

the boy twice before it was chased away. Mrs Pryor ran over to Jake and

discovered that the dog had bitten off the top section of his right ear. The severed

portion of his ear was found on the ground nearby. Apparently the child had also

sustained a minor bite mark on his right arm.

11 Jake was immediately taken to the Riverton Hospital by his parents and

then conveyed by ambulance to the Women’s and Children’s Hospital in

Adelaide. Surgery was performed on Jake that night in an attempt to re-attach the

severed portion of his ear. Unfortunately, the operation was not successful and he

will require reconstructive surgery in the future.

12 Mr Woolley investigated the incident and established that Mocha was

responsible for the attack. On 6 February 2005 the dog was seized and placed in

a council pound for two days. The dog was then impounded at a local boarding

kennel. On 22 February 2005 the appellant made a Destruction Order on the

basis that the dog was unduly dangerous and had attacked a person in

circumstances that would constitute an offence against the Act.

13 In addition to the circumstances of the attack, the following evidence was

put before the Master in relation to the general behaviour and disposition of

Mocha.

For several weeks prior to the incident Cathy Long and her husband

Richard Long had been staying at the Caravan Park with their children.

3

Mrs Long gave evidence that Mocha regularly wandered into the caravan

park and played with their children. The dog had never behaved

aggressively towards them.

The respondent tendered a letter from, P.I. Jones and Associates, Veterinary

Surgeons in which they stated that the dog had never displayed “signs of

aggressive or vicious behaviour” on the five occasions when it had been

treated at their clinic.

The respondent, and his father Robert Crawford, deposed that Mocha had

never behaved aggressively towards people except on one occasion, when

the dog nipped the fingers of Denise Crawford. The incident occurred when

she picked up some pellets of dog food that had fallen off the dog’s plate.

Mr Woolley gave evidence that there was also an occasion when the dog

tried to bite him while he was feeding it at the kennels where it had been

impounded but added: “that’s quite normal for a dog that’s used to being

free and suddenly being confined for awhile and there is a bit of food

involved”.

14 On the evidence presented the Master made certain findings of fact which

were not challenged by the appellant on the hearing of the present appeal. The

Master stated:

1. The appellants are ordinarily careful and considerate in their concern for others save that they had previously allowed Mocha to wander at large around the caravan park/oval area.

2. Mocha has a disposition to be protective of food and act aggressively where the need to defend his food arises.

3. On the day in question it is likely that Jake was either holding or had been holding food

and had the residue of it on hand and around his mouth.

4. That prior to the attack the dog had been annoying [but] it was not to such a level that any

particular action needed to be taken to protect the children from the dog or the adults or even the remaining food on the picnic tables.

5. That at the time immediately before the attack Mocha was not acting inappropriately and had not acted in an aggressive way, particularly which would be considered dangerous.

6. Mocha is a working sheep dog that gets a lot of exercise. He is 2.5 years old and has a

substantial working life ahead of him.

7. That the attack on Jake was in the form of biting which took place to his right ear and

which in and off (sic) itself was not caused by any prolonged or excessive use of force. In my view the injury was moderately severe although extremely frightening and upsetting

for the child and those who were at the scene.

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It is not my view that the dog acted in an unrestrained aggressive way, as after biting the child the dog stood back and then moved again and bit him on the arm and then stood

back again. The injuries other than to the ear were of no significance.

I take into account that the injury whilst permanent has been expertly handled and will be the subject of further surgery in the future. The cosmetic nature of the injury itself is not

looking at the pictures, likely to be significant for a boy. The emotional scar is yet to be

determined.

8. I note that the dog had an abscess on his ribs but there is no evidence to suggest that in

fact any discomfort caused by the abscess was caused by Jake or caused by any

intentional or accidental act. I note that Jake was on one account walking, stopping, picking up stones and sticks, throwing them down and moving on. Just like any 18 month

old.

9. That the Crawfords consent to a Dangerous Dog Order knowing the full implication of

that save as to one submission made by Mr Firth that an order can be modelled that

enables the dog to continue to carry out its working function.

10. That save as to the dog’s propensity to protect its food supply there is no evidence on

(sic) any aggression on the part of the dog.

Scheme of the Act

15 Before I turn to discuss the issues raised on the appeal it is necessary to

explain the relevant statutory framework.

16 The Act, which came into operation on 1 July 1995, repealed the Dog

Control Act 1979. Section 3 states that the objects of the Act are to (a) encourage

responsible dog and cat ownership, (b) reduce public and environmental nuisance

by dogs and cats and, (c) promote the effective management of dogs and cats.

17 Part 5 is headed “Management of dogs” and consists of five divisions. The

following divisions are relevant on this appeal.

Offences

18 Under Division 1 a person who owns or is responsible for the control of a

dog is guilty of an offence if the dog:

is wandering at large (s 43(1));

attacks, harasses or chases or otherwise endangers the health of a person or

an animal or bird owned by another person or in the charge of another

person (whether or not actual injury is caused) (s43(2));

is in, or in the grounds of, a school, kindergarten , child care centre or pre-

school centre without the permission of the person in charge of that place

unless the dog is an accredited disability dog, guide dog or hearing dog

(s45A(2))

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is in a shop without the permission of the shopkeeper unless the dog is an

accredited disability dog, guide dog or hearing dog or the shop is not of a

specified kind (s 45A(3);

rushes at or chases a vehicle other than on the premises of which the person

is an occupier (s45A(4));

creates a noise, by barking or otherwise , which persistently occurs or

continues to such a degree or extent that it unreasonably interferes with

peace , comfort or convenience of a person (S45A(5)); or

if the dog defecates in a public place and the person responsible for the

control of the dog does not immediately remove the faeces and dispose of

them in a lawful and suitable manner (s45A(6)).

19 On appeal it was not in dispute that the respondent was guilty of a breach of

s43(1) by allowing the dog to wander at large and that he was also guilty of a

breach of s44(2) by reason of the attack on Jake.

Offences relating to prescribed breeds

20 Division 1A prescribes offences relating to the duties of owners and others

responsible for the control of special certain types of dogs, namely, dogs of

prescribed breeds (American Pit Bull Terrier, Fila Braziliero, Japanese Tosa,

Dogo Argentina and Presa Canario) (s45B), greyhounds (s45C) and attack

trained dogs, guard dogs and patrol dogs (s45D). The provisions impose stringent

conditions on people responsible for keeping these types of dogs in recognition

of the danger they present to the public.

Court orders following conviction

21 Division 1B empowers a court to make various orders in relation to dogs in

criminal proceedings. A court finding a person guilty of an offence under

Division 1 or Division 1A can make a range of orders in relation to the subject

dog.

22 In particular, Section 47(1) provides:

(1) If a person is found guilty of an offence against Division 1 or 1A, the court

may, in addition to, or instead of, imposing a penalty, make one or more of the

following orders: (a) that the dog be destroyed or disposed of in a specified manner within a

specified period;

(b) that the order for destruction or disposal be remitted in specified circumstances;

(c) that the dog be registered under this Act;

(ca) that the dog be identified in a specified manner; (cb) that the dog be seized and detained for a period specified in the order or

until further order of the court;

(d) that the dog be controlled in a specified manner;

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(e) that specified action be taken within a specified period to abate any

danger or nuisance posed by the dog;

(ea) that the dog be desexed;

(eb) that any other dog owned by the person, or for the control of which the

person is responsible, be destroyed or disposed of in a specified manner within a specified period;

(f) that the person not acquire another dog for a specified period or until

further order of the court; (g) that the person pay compensation for injury, damage or loss suffered by

a person as a result of the actions of the dog;

(h) any other order that the case requires.

Council orders

23 Division 3 bestows upon councils the power to make orders in relation to

dogs and to give directions about how those orders may be complied with. The

orders may be made regardless of whether the owner of the dog or a person

responsible for its control is prosecuted for an offence under the Act.

24 Section 50(1) prescribes five classes of order that a council can make in

relation to a dog, namely:

a Destruction Order;

a Control (Dangerous Dog) Order;

a Control (Menacing Dog) Order ;

a Control (Nuisance Dog) Order ; and

a Control (Barking Dog) order.

25 The balance of the section, set out hereunder, specifies the requirements of

each type of order.

(2) A Destruction Order requires-

(a) the dog to be destroyed within the period specified in the order (but not less

than one month after the date the order takes effect); and

(b) the dog, until destroyed, to be kept or detained at a place specified in the order (or at some other place subsequently approved by the council).

(3) A Control (Dangerous Dog) Order requires-

(a) the dog to be desexed within the period specified in the order; and

(b) the dog to be identified by means of an implanted microchip; and (c) the dog, while on premises of which the person who is responsible for the

control of the dog is the occupier, to be kept indoors or in an enclosure that

is constructed so as to prevent the dog escaping from it; and (d) the dog, at all times, to wear a collar that complies with the requirements of

the Board (except while the dog is suffering from injury, disease or sickness

7

to the extent that the wearing of a collar would be injurious to the health of the dog); and

(e) the dog, except while confined to premises of which the person who is

responsible for the control of the dog is the occupier- (i) to have a muzzle securely fixed on its mouth so as to prevent it from

biting any person or animal; and

(ii) to be under the effective control of a person by means of physical restraint; and

(f) warning signs (complying with the requirements of the Board) to be

prominently displayed at all entrances to premises where the dog is usually

kept warning people that a dangerous dog is kept on the premises; and (g) the dog and the person who is responsible for the control of the dog to

successfully complete an approved training course specified in the order; and

(h) all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.

(4) A Control (Menacing Dog) Order requires –

(a) the dog to be identified by means of an implanted microchip; and (b) the dog, while on premises of which the person who is responsible for the

control of the dog is the occupier, to be kept indoors or for the premises to be

fenced so as to prevent the dog escaping from the premises; and

(c) the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness

to the extent that the wearing of a collar would be injurious to the health of

the dog); and (d) the dog, except while confined to premises of which the person who is

responsible for the control of the dog is the occupier-

(i) to have a muzzle securely fixed on its mouth so as to prevent it from

biting any person or animal; and (ii) to be under the effective control of a person by means of physical

restraint; and

(e) all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.

(5) A Control (Nuisance Dog) Order requires –

(a) the dog, while on premises of which the person who is responsible for the

control of the dog is the occupier, to be kept indoors or in an enclosure that

is constructed so as to prevent the dog escaping from it; and

(b) the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier, to be under the

effective control of a person by means of physical restraint; and

(c) all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.

(6) A Control (Barking Dog) Order requires all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.

26 It is evident from the foregoing provisions that the classification of dogs is

based on a graduated scale of risk of danger, menace or nuisance. The stringency

of orders under s50 increases in accordance with the increased risk that a class of

dog presents to the public or other animals.

8

27 In summary, a Control Barking Dog Order requires all reasonable steps to

be taken to prevent the dog repeating the behaviour that gave rise to the order. A

Control Nuisance Dog Order contains the same requirement but also requires:

the dog to be kept indoors or in an enclosure to prevent it from escaping

while it is on the premises of the person who is responsible for its control;

the dog to be under the effective control of a person by means of physical

restraint (except while confined to the premises of the person responsible

for its control); and

28 A Control Menacing Dog Order contains the same requirements as a

Control Nuisance Dog Order but also requires:

the dog to be identified by means of an implanted microchip;

the dog to wear an approved collar (except in certain defined

circumstances);

the dog to have a muzzle securely fixed to its mouth so as to prevent it from

biting any person or animal(except while confined to premises of the person

who is responsible for the control of the dog).

29 A Control Dangerous Dog Order contains the same requirements as a

Menacing Control Dog Order but also requires:

the dog to be desexed;

signs to be displayed at the entrances to premises where the dog is usually

kept warning people that a dangerous dog is kept on the premises; and

the dog and the person responsible for its control complete an approved

training course.

30 An unduly dangerous dog which sits at the top end of the scale of

seriousness is subject to destruction.

Grounds for making an order

31 The grounds on which Destruction and Control Orders may be made are

contained in s51. That section states:

(1) A council may, on its own initiative or on application, make a Destruction

Order in relation to a dog if satisfied that- (a) the dog is unduly dangerous; and

(b) the dog has attacked, harassed or chased a person or an animal or bird

owned by or in the charge of a person in circumstances that would constitute an offence against this Act.

9

(2) A council may, on its own initiative or on application, make a Control (Dangerous Dog) Order, a Control (Menacing Dog) Order or a Control

(Nuisance Dog) Order in relation to a dog if satisfied that-

(a) the dog is dangerous, menacing or a nuisance; and (b) the dog has attacked, harassed or chased a person or an animal or bird

owned by or in the charge of a person in circumstances that would

constitute an offence against this Act.

(3) A council may, on its own initiative or on application, make a Control (Barking

Dog) Order in relation to a dog if satisfied that-

(a) the dog is a nuisance ;and (b) the dog has created noise by barking or otherwise in circumstances that

would constitute an offence against this Act.”

32 The construction of the section makes it clear that a council cannot make a

Destruction Order unless the dog is unduly dangerous or make any type of

Control Order unless it is dangerous, a menace or a nuisance and it has attacked,

harassed or chased a person or an animal or bird in circumstances that would

constitute an offence against the Act. In other words, a dog does not fall into any

of the relevant categories merely because it has attacked a person or behaved in

some other prohibited manner. In the present case, the respondent’s dog could

not be classified as unduly dangerous merely because it attacked Jake.

33 However, it does not follow that the nature of a dog attack and the

circumstances in which it took place (as distinct from the mere fact of the attack)

are irrelevant to the question of whether a dog is unduly dangerous or whether it

falls into one of the other classes of dog. In my opinion, the nature and

circumstances of a dog attack, standing alone, may demonstrate that a dog is, for

example, so vicious and presents such a grave risk to the safety of people that it

is unquestionably dangerous.

34 Despite the Act’s hierarchical classification of dogs it fails to define

“unduly dangerous dog”, “menacing dog” and “nuisance dog”. Section 4 defines

“dangerous dog” but the definition does not spell out the characteristics of such a

dog.

35 The section merely states:

dangerous dog means a dog in relation to which –

(a) a council has made a Control (Dangerous Dog) Order; or

(b) a court has made an order the terms of which generally correspond to a Control (Dangerous ) Dog Order.

36 In short, the Act is silent on the characteristics of dogs that attract orders

under Division 3. It is also to be observed that there is, as far as my research and

that of counsel have been able to disclose, no decision of any Justice of the

Supreme Court or Judge of this Court dealing with the meaning of any of the

10

relevant classes of dog. Furthermore, in my view, no appreciable assistance can

be gained from cases dealing with the interpretation of classifications of dogs

which appear in interstate legislation by reason of the significantly different

schemes present in those enactments.

Appeals against council orders

37 The owner or a person responsible for the control of a dog has a right to

appeal against the issue by a council of an order or a refusal to revoke an order

(s58 (1)). Section 58 (10) provides:

On the hearing of an appeal, the Court may (in addition to the powers of the Court under

Part 6 Division 2 of the District Court Act 1991) make an order in relation to the dog that a court could have made if the proceedings had been criminal proceedings under this Act

(and the order takes effect as if it had been made in such proceedings).

38 In other words, the Court has the same powers that a court can make under

s47.

The respondents appeal to the Master

39 The respondent had the power to make the Destruction Order in the present

case if satisfied that the respondents dog was unduly dangerous and had attacked,

harmed or chased a person or an animal or bird in circumstances that would

constitute an offence against the Act (s51(1)). As I have said, on the hearing of

the appeal to the Master it was not in dispute that the attack on Jake was

committed in circumstances that would constitute a relevant offence. The sole

issue was whether the dog was unduly dangerous.

40 The Master held that an unduly dangerous dog was one which was “likely

to cause injury or harm to a person or animal if unrestrained” subject to a

consideration of the circumstances in which the dog was likely to inflict such

injury or harm.

41 The Master concluded that the respondent’s dog was not unduly dangerous

though it had “a capacity to act in a dangerous manner in certain circumstances”.

He considered that the dog was not “likely to harm any person provided food

[was] not involved”. However, if food was involved the dog was “likely to act in

an aggressive manner and may well cause harm or injury to a child”. In short, the

Master considered that it was inappropriate to classify the dog as unduly

dangerous because the circumstances in which the dog was likely to engage in

behaviour productive of injury or harm were of a limited nature, namely, where

children and food were involved.

42 In the result, the Master allowed the appeal and made orders in the

following terms:

1. On the appellant’s appeal…I allow the appeal in part by varying the Dog

Destruction Order to a Control Dangerous Dog Order.

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2. The respondent is to return the dog to the appellant upon compliance with the requirements of s 50(3) to the Council’s satisfaction.

3. The dog is to be subject to the requirement of s 50(3)(e) of the Dog & Cat Management Act save that, pursuant to s 47, whilst the dog is at the Crawford

property and whilst carrying out its duty as a sheep dog it is permitted to be off the

leash and not required to wear a muzzle. At all other times s50 (3) (e) is to be

strictly complied with…

………

43 The Master reasoned that he had the power, under s58 (10), to make an

order varying the requirements of s50 (3) because such an order could have been

made by a court in criminal proceedings. In particular, the order could have been

made using the power contained in s47(1)(h) to make “any other order as the

case may require”.

The grounds of appeal

44 By Notice of Appeal filed on 2 May 2005 the appellant appealed against the

Master’s decision on various grounds. However, on the hearing of the appeal, it

became clear that the appellant’s complaints were essentially twofold.

45 The first ground of complaint is that the Master erred in rescinding the

Destruction Order. Mr Roder, counsel for the appellant, contended that the

Master applied the wrong test in determining whether the dog was unduly

dangerous. He argued that the test is not whether a dog is “ likely to cause harm”

but whether there is “a real risk that it might inflict serious harm” even if that risk

is confined to circumstances where food is present. Mr Roder did not challenge

the Master’s factual findings but submitted that the dog met this test. He further

argued that the dog was unduly dangerous on the Master’s own test.

46 The second ground of complaint is that the Master did not have the power

to dispense with, or vary, any Control Dangerous Dog Order requirements

contained in s50 (3). Mr Roder submitted that if a court had found the respondent

guilty of a relevant offence, and there had been a Control Dangerous Dog Order

in existence at the time, s47(1)(h) would not have allowed the court to make an

order dispensing with any of the requirements of s50(3). Consequently, the

Master had no power to allow Mocha to work as a sheep dog on the respondent’s

property unmuzzled and unrestrained.

47 Did the Master err in finding that the dog was not unduly dangerous?

48 This question raises two issues: first, the meaning of unduly dangerous dog

and, second, whether the respondent’s dog falls within the relevant meaning?

49 As earlier observed, the legislation distinguishes between classes of dog,

which may attract council orders, based on a graduated scale of risk of danger,

menace or nuisance with unduly dangerous dogs at the top end of the scale. Thus

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in order to determine the meaning of “unduly dangerous” it is necessary to have

regard to the meanings to be attributed to the other classes of dogs.

50 I commence with nuisance dogs which are at the lowest end of the scale. It

is to be observed that a Dangerous Dog Order and a Menacing Dog Order both

require the dog to be muzzled “so as to prevent it from biting any person or [pet]

animal” and to be physically restrained except while confined to premises of

which the person who is responsible for the control of the dog is the occupier.

These restrictions do not apply to nuisance dogs. This suggests that a nuisance

dog is not one which has a tendency to bite people or pets. Such an interpretation

is consistent with the ordinary meaning of nuisance, namely, “any person or

thing causing annoyance, inconvenience or trouble”: The Shorter Oxford English

Dictionary.

51 The term “nuisance dog” is not capable of exhaustive definition but to my

mind it embraces dogs that are disposed to unreasonably interfere with property

or the comfort or convenience of people or animals. In my opinion, a dog is a

nuisance for the purposes of the Act if it has a tendency to engage in behaviour

of the type proscribed by the following provisions: s 43(1) (wandering at large);

s44(2) (harassing or chasing animals or birds which are pets) s45A(4) (rushing

at or chasing motor vehicles); s45A(5)(creating noises which unreasonably

interfere with the peace, comfort, or inconvenience of a person); s45A(6)

(defecating in public) and s66 (damaging property).

52 Ascertaining the meaning of “dangerous dog ” and “menacing dog” and the

distinction to be drawn between these two classes of dog is less simple.

53 In The Queen v Wilson (1991) 55 SASR 565 the Court of Criminal Appeal

considered the meaning of dangerous in the context of manslaughter by an

unlawful and dangerous act. Cox and Matheson JJ held that a dangerous act for

the purpose of this form of manslaughter was one that all sober and reasonable

people would inevitably recognise must subject the other person to, at least, the

risk of some harm resulting therefrom. King CJ, dissenting, expressed the view

that the relevant test was whether there was an appreciable risk of causing

grievous bodily harm.

54 On appeal, the High Court, by a majority, rejected the definition favoured

by Cox and Matheson JJ, and held that a dangerous act was one that gave rise to

an appreciable risk of serious injury: Wilson v The Queen (1992) 174 CLR 313.

The High Court’s formulation was based on developments in the common law

and policy considerations specifically related to the doctrine of unlawful and

dangerous act manslaughter and which have no bearing on the meaning of

dangerous in the context of the Act.

55 The relevance of Wilson lies in the observations made in the Court of

Criminal Appeal and the High Court regarding the ordinary meaning of

dangerous. King CJ considered that the definition of dangerous approved by Cox

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and Matheson JJ, while it accorded with the ordinary meaning of the word,

prescribed a degree of harm too low for the purposes of the doctrine of unlawful

and dangerous act manslaughter. His Honour said (at 571):

My conclusion is that … death resulting from the unlawful act will be manslaughter only

where a reasonable person in the position of the accused would realise that there was an

appreciable risk of grievous bodily harm.

It is now necessary to examine the charge to the jury in the light of that conclusion. The

learned Judge did not explain the sense in which the word “dangerous “ is used in the rule

relating to unlawful and dangerous acts. Miss Vanstone, for the respondent, argued that

such an explanation was unnecessary as the Holzer concept (the test approved by King CJ) is the ordinary meaning of the word… I am unable to agree. The relevant meaning of

“danger” in the Shorter Oxford Dictionary is “liability or exposure to harm or injury”. I

think that the word “dangerous” in its ordinary meaning is capable of applying to degrees of harm which are less than grievous bodily harm. (My insertion and my emphasis)

56 Cox J agreed that as a matter of ordinary language the word dangerous

could apply to degrees of harm less than serious but held that the common law

test of unlawful and dangerous act manslaughter was consistent with the ordinary

meaning of the word. After referring to an English decision, with which he

approved, Cox J said (at 573):

It will be observed that the Court of Criminal Appeal described a “dangerous” act simply as one that it is likely to injure another person. This conforms with the dictionary

definitions of “dangerous”(“fraught with danger or risk; perilous, hazardous, unsafe”:

Shorter Oxford English Dictionary) and “danger “(“liability or exposure to harm or injury: risk, peril”: Shorter Oxford English Dictionary

57 His Honour went on to make the following observation about the ordinary

meaning of dangerous (588):

[W]hatever precise shade of meaning the word “dangerous “, without more, may have for different people, plainly it does not necessarily indicate “really serious harm”…and it can

hardly imply anything less than “some harm…, albeit not serious harm”..

58 In the High Court the majority (Mason CJ, Toohey, Gaudron and McHugh

JJ) acknowledged that their test of dangerousness involved a degree of danger

higher than would be attributed to the word in its ordinary sense. Their Honours

said (at 334):

There remains the further question of: were the jury sufficiently directed to assess

whether a reasonable person, in the appellant’s position, would have realized that in punching the deceased, he was exposing him to an appreciable risk of serious injury? The

trial judge spoke of a “dangerous act” without identifying what that meant. The jury

might well have thought that if the punch carried a risk of injury to the deceased, not necessarily an appreciable risk of serious injury, that was enough to constitute

manslaughter.

59 Their Honours went on to say (at 335):

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In the end the jury had to determine whether the appellants act in punching the deceased was, from the standpoint of a reasonable person, an act carrying with it an appreciable

risk of serious injury to the deceased. They were not so directed; they were told to

consider whether it was a dangerous act. The distinction is not merely semantic. An act

may be dangerous without carrying with it an appreciable risk of serious injury and, unless the two elements are brought to the minds of the jury, there is a real danger that

they may wrongly convict of manslaughter. (My emphasis)

60 The various remarks in Wilson that I have quoted suggest that, if dangerous

is given its ordinary meaning, a dangerous dog is one that exposes people or

animals to an appreciable risk of some harm or injury albeit not serious harm.

61 Was this the test that the legislature had in mind? If it is the correct test

what are the characteristics of a menacing dog?

62 The relevant meaning of nuisance in the Shorter Oxford English Dictionary

is “to hold out menaces against; ...to threaten to inflict...”; and, “a declaration or

indication of hostile intent, or of a probable evil or catastrophe; a threat of hostile

intent: a threat”. The dictionary definitions of menace imply that a menacing dog

is one that threatens harm but does not inflict harm.

63 As earlier observed, a Menacing Dog Order, like a Dangerous Dog Order,

requires the dog to be muzzled “so as to prevent it from biting any person or

animal” except when confined to premises occupied by it’s controller. It might be

argued that the muzzling requirement indicates that a menacing dog is one that

possesses a tendency to bite people or pets i.e. a tendency to inflict a degree of

harm. However, I am inclined to think that in the case of a menacing dog the

muzzling requirement is a precautionary measure. In other words, the muzzling

requirement recognises that due to the dog’s threatening behaviour there is a risk

that it might bite people or animals though it has never done so.

64 Nonetheless, does that bring a menacing a dog within the ordinary meaning

of dangerous?

65 In my opinion, the differentiation between dangerous dog and menacing

dog can be rationalised on the basis that the latter presents some risk of harm to

people or animals whereas the former presents an appreciable or substantial risk

of such harm. Such an interpretation accommodates the ordinary meaning of

dangerous and the muzzling requirement for menacing dogs. That does not mean

that a dog which has engaged in mere threatening behaviour can not be

characterised as dangerous. The nature of a dog’s threatening behaviour and the

circumstances in which it has engaged in such behaviour may indicate that it

presents an appreciable or substantial risk of harm to people or other animals.

66 The distinction that I have sought to draw between dangerous dogs, on the

one hand, and menacing dogs, on the other, also receives a measure of support

from the following features of the legislative scheme. As earlier observed a

Dangerous Dog Order requires signs to be displayed at the entrances to premises

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where the dog is usually kept warning people that a dangerous dog is kept on the

property and, further, requires the dog and the person responsible for its control

to complete an approved training course. A Menacing Dog Order imposes no

similar requirements. The occupiers of premises where menacing dogs are kept

are not obliged to display any type of warning sign and the dog and its controller

are not obliged to receive any form of training.

67 It is difficult to accept that the legislature would have exempted menacing

dogs from such requirements if they exposed people or pets to an appreciable risk

of harm. On the other hand it might be said that it would be odd for Parliament to

have exempted menacing dogs from the relevant requirements even if they

presented only a slight risk of harm. Why insist upon such dogs being muzzled in

public but not insist upon the display of warning signs at the entrances to the

premises where they are kept? Be that as it may the different requirements are,

in my opinion, more easily understood if dangerous dogs are regarded as

presenting an appreciable or substantial risk of harm and menacing dogs are to be

regarded as giving rise to a lesser risk of harm.

68 For the reasons that I have expressed, I am of the view that a dangerous dog

is one that exposes people or animals to an appreciable or substantial risk of

harm subject to the following qualifications. First, I do not believe that a dog

should be categorised as dangerous if it exposes a person to no more than slight

or trivial injury. To my mind, it is unlikely that parliament would have intended

to impose the stringent Dangerous Dog Order requirements upon a dog that was

disposed to inflict no more than trivial injury.

69 Second, the test of dangerous must be applied having regard to the

circumstances in which the dog presents a risk of harm. In my view it would be

inappropriate to characterise a dog as dangerous if the risk of the dog harming

someone is limited, for example, to circumstances where it is mistreated,

provoked or being used in the reasonable defence of a person or property (see

s44(4)).

70 In my view, a dog is dangerous if it presents an appreciable risk of injury to

any person acting in a way in which a person may be reasonably expected to act

in circumstances which may be reasonably expected to occur. A similar approach

has been taken in determining whether machinery is dangerous in the context of

legislation regulating such machinery: see Dunlop Rubber Australia Ltd v

Buckley (1952) 87 CLR 313 at 320; Dairy Farmers Co-operative Ltd v Azar

(1990) 170 CLR 293 at 297; Walker v Bletchley Flettons Ltd (1936) 1 KBD 170

at 175; Inglis v NSW Fresh Food and Ice Co. Ltd (1943) 44 SR (NSW) 87 at 100.

71 In the present case the Master found that the dog was not likely to harm any

person provided food was not involved, but if food was involved, the dog “may

well cause harm or injury to a child”. He found that at the time of the attack

“Jake was either holding or had been holding food and had the residue of it on

16

his hand and around his mouth”. It was implicit in the Master’s findings that the

attack on Jake was triggered by the presence of food on his person. Families

having picnics in reserves and parks and children wandering around with food at

such functions are circumstances which may reasonably be expected to occur.

Indeed, they are commonplace. Furthermore, there was nothing about Jakes

conduct that could be construed as unreasonable. There was, on the Master’s

findings, no element of mistreatment or provocation of the dog. In my view, a

dog which presents a substantial risk of injuring a child, in such circumstances, is

a dangerous dog for the purposes of the act. The respondent’s dog demonstrated

that it had such a propensity. In my opinion it was clearly open to the Master to

find that the dog was, at least, a dangerous dog.

72 But was it in fact an unduly dangerous dog as the appellant contends?

73 As a matter of ordinary language unduly means “Without due cause or

justification; unrightfully, undeservedly; To excess; beyond the due degree”:

Shorter Oxford Dictionary. The use of the word unduly as a qualifier of

dangerous is curious in that it is difficult to conceive of circumstances where a

dog could be regarded as duly, justifiably, rightfully or deservedly dangerous.

74 Obviously, the legislature intended the words unduly dangerous to embrace

dogs that presented a greater danger to people or animals than dangerous dogs

and to the extent that they ought to be destroyed. But what is the test for

determining whether a dog falls into that category?

75 The Master decided that the relevant test is whether a dog “is likely to cause

harm.” The appellant contends that the correct test is whether there is “a real risk

that it might inflict serious harm.” In my view there is no significant difference

between the tests in relation to the degree of risk of harm they postulate. The

word “likely” is used in its ordinary meaning to convey the notion of a

substantial – a real and not remote – chance regardless of whether it is less or

more than 50 percent: Boughey v The Queen (1986) 161 CLR 10 per Mason,

Wilson and Deane JJ at 21; see also The Queen v Wilson (1991) 55 SASR 565

per Cox J at 574. In relation to the requisite degree of harm the appellant’s test

(serious harm) is in fact higher than the Master’s (harm). Indeed, it seems to me

that the Master’s test (likely to cause harm) is too low because it is essentially the

same as the test of dangerous based on the ordinary meaning of that word: see

The Queen v Wilson (supra) per Cox J at 573.

76 I have wrestled with the definitions postulated by the Master and the

appellant but in the end I have concluded that it is neither possible nor desirable

to supply an exhaustive definition of unduly dangerous. The question of whether

a dog presents a greater danger than a dangerous dog, and to the extent that it

should attract the ultimate sanction of destruction, must be answered by reference

to a consideration of the circumstances of the case as a whole.

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77 In order to pose a greater danger than a dangerous dog to an extent

warranting destruction, the dog in question must, at least, expose the public, or

other animals, to an appreciable risk of serious harm. In the case of people, there

must be an appreciable risk of serious harm to any person acting in a way in

which a person may reasonably be expected to act in circumstances which may

be reasonably be expected to occur.

78 To my mind, however, the presence of such a risk is not necessarily

decisive. Consideration must also be given to the type of situation in which the

dog is disposed to present such a danger. A dog may be so ferocious that it

presents a risk of serious harm to anyone who has the misfortune to come across

it and in any situation that may reasonably be expected to occur. On the other

hand a dog of ordinarily mild disposition might present a danger in such limited

circumstances that it may be fair and reasonable to address the difficulties that

the dog presents by measures other than destruction.

79 In that regard it is relevant to note that a requirement of a Control

Dangerous Dog Order is that the dog and the person responsible for its control

complete an approved training course. To my mind that suggests that a factor to

consider in determining whether a dog is unduly dangerous or merely dangerous

is whether it’s dangerous propensity could be addressed by appropriate training.

Such an approach is consistent with the Act’s stated objectives of encouraging

responsible dog ownership and promoting the effective management of dogs with

the public interest in mind.

80 On the Master’s unchallenged findings the tendency of the respondent’s

dog to engage in aggressive behaviour is limited to situations where food is

present. He concluded that the dog “may well cause harm or injury to a child” in

the proximity of food. The Master did not expressly determine whether the dog

presented an appreciable risk of serious injury in such circumstances no doubt

because he expressed his findings in the context of the test that he considered to

be appropriate. However, the nature of Jake’s injury, as the Master found, was

relatively severe. In light of the Master’s other factual findings it is reasonable to

infer that he would have found that the dog poses an appreciable risk of serious

injury to children, in particular small children, when food is present.

81 But the risk of this dog causing serious injury is, as the Master found,

confined to very special situations. Furthermore, the Master clearly accepted that

the dog might respond to appropriate training. There is certainly no evidence to

suggest that the dog’s aggressive tendencies could not be corrected by a

reasonable degree of training. Having regard to the Master’s factual findings

about the nature and the disposition of the dog I do not think it can be said that he

erred in rescinding the Destruction Order.

82 Did the Master have the power to make an order in the terms in which he

did?

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83 The Master stated that he would “allow the appeal in part and substitute in

lieu of a Destruction Order a Control Dangerous Dog Order” and proceeded to

make an order “varying the Dog Destruction Order to a Control Dangerous Dog

Order”. He then made an order that the dog was subject to all of the requirements

of a Dangerous Dog Order under s50(3) except that it did not have to be muzzled

or restrained while working as a sheep dog.

84 He reasoned as follows:

When the Council imposes an order the outcome is clear. That is s50 (3) to (5) applies and it seems that no qualification exists in the Statute. However on an appeal the Court

has a much broader range of orders.

In my view s42G of the District Court Act does not expand or allow for a qualification of

the Council’s orders under s50(3)(e) because the Court’s orders are ancillary or consequential under that provision rather that [sic] determinative of penalty. However

under s47 the Court has the power to make further orders by reason of s58(10), as the

Court’s powers are those that apply in criminal proceedings.

In my view there is no reason to read down s47 as to limit the effect of s50(3)-(6).

Section 50(3) does not prescribe or limit the range of remedies available. If it did there

would be no point in having s47.

When the Parliament gave the Court the power to make further orders, in my view, bearing in mind the objects of the legislation it has the effect of allowing the Court to

vary the outcome for the dog (and the owner) in appropriate circumstances, subject to the

facts. For example, in my view, it does not allow the Court to remove the restriction altogether relating to muzzle and leash but does allow the Court to qualify when that

circumstance will apply. The words in s47 (h) “any other order” can be used to make the

existing provisions workable where it is appropriate.

As a consequence I am of the view that the Court has the power to qualify the effect of

s50 (3)(e). In my view it is appropriate in the circumstances of this case to allow this dog

to carry on as a working sheep dog whilst on the Crawford property but only whilst in the

process of working as a sheep dog. This means that the muzzle and leash will not be required during that process.

85 The Master appears to have reasoned that he had the power pursuant to

s58(10) to vary the requirements of a Control (Dangerous Dog) Order under

s50(3) because such an order could have been made by a court in a criminal

proceeding by virtue of s47(1)(h) i.e. pursuant to the power “to make any other

order as the case may require”.

86 In my respectful opinion the Master’s reasoning is erroneous.

87 The first point is that a court does not have the power to “substitute” a

Control Dangerous Dog Order for a Destruction Order or to “vary” one order for

another. The power to make a Destruction Order or one of the four types of

Control Orders is vested in councils pursuant to s50. Section 47(1) is the source

of the courts power to make orders relating to the destruction or control of a dog

in criminal proceedings. The court may make an order the terms of which

19

generally correspond with a Destruction Order or a Control Order but it remains

an order made by the court pursuant to the power contained in s47(1).

88 An appellate court picks up those powers by dint of s58(10). So following a

successful appeal against a Destruction Order the court, upon revoking the order,

may impose an order that could have been made under s47. Once again the court

may make an order the terms of which generally correspond with a Control Order

made under s50 but it remains an order made by the court pursuant to the

combined operation of s47(1) and s58(10).

89 The distinction between a council order under s50 and a court order under

s47 is reflected in the definition of dangerous dog contained in s3. The definition

states that a dangerous dog “means a dog in relation to which (a) a council has

made a Control (Dangerous Dog) Order or (b) a court has made an order the

terms of which generally correspond to a Control (Dangerous Dog) Order.”

90 The next point is that s47(1)(h) does not give a court power to vary the

requirements of a Destruction Order or a Control Order that is in existence at the

time. The expression “as the case may require” requires an application of the

words to the alternatives to be found in the section: see McDonald v Hanselmann

[1998] NSWSC 171. Putting it another way s47(1)(h) is not a power which

operates independently of the other powers in the section. It is ancillary to them.

91 The other powers contained in s47 can only be exercised in the context of

criminal proceedings for the purpose of providing an additional or substitute

penalty upon a person being found guilty of a relevant offence. In my view, the

supplementary power contained in s47(1)(h) clearly does not permit a court in

the context of a prosecution to alter the terms of any Destruction or Control

Order made by a council that is in existence at the time. The terms of an order

made by a council may be reviewed but only on appeal to this Court.

92 So in my opinion the Master did not have the power to make an order in the

terms in which he did for the reasons he expressed. However, it does not follow

that the Masters order is invalid for the order could properly have been made, in

my opinion (pursuant to the combined operation of s58(10) and s47(1)) for

reasons different to those advanced by the Master.

93 The powers vested in courts in criminal proceedings are clearly wider than

those bestowed on councils. For example, a court which makes a destruction

order may remit the order in certain circumstances (s47(1)(a) and (b)). By

contrast a council which makes a Destruction Order under s50(2) has no power to

remit the order. Similarly, a court in criminal proceedings is given broad power

to control a dog in a manner specified by the court (s47(1)(d)) whereas the power

of a council to make Control Orders is circumscribed by the rigid requirements of

s 50(3)-(6). Council has no discretion as to the terms of the orders which it may

impose.

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94 To my mind the courts power to make an order that the dog “be controlled

in a specified manner” and the supplementary power contained in s47(1)(h)

would enable a court to fashion an order that was effectively in the same terms as

the order made by the Master in the present case.

95 Indeed, Mr Roder, counsel for the appellant, conceded that a court could

make an order under s47(1) in the terms imposed by the Master if there was no

council order in existence at the time. However, he contended that the Master

effectively imposed a Control Dangerous Dog Order under s50(3) and then

varied the statutory requirements of that provision purportedly pursuant to s47.

He submitted that if a court in criminal proceedings has no power to vary a

Control Dangerous Dog Order then the master had no such power and

consequently the order was a nullity.

96 He put his argument in these terms:

[T]he order that the Master made was in effect an order dispensing with compliance with

the requirements of a dog control order. We just say that under s47 which applies to

prosecutions, would never authorise the dispensation of compliance with the provisions

of a dog control order. What it authorises is the court to make particular orders, other orders by way of punishment.

A prosecution is not a review as it were of the requirements of a dog control order. One

doesn’t get convicted …and then the court says although I’ve convicted you, I will reduce the restrictions of a dog control order on your dog. It just doesn’t seem to be a tenable

outcome on the prosecution.

…

[I]n the scenario I’m putting which is equivalent to the scenario we’ve got here , the dog is already restricted by virtue of the dog control order from moving around unmuzzled

anywhere. That’s the case here the Master has already made a dog control order. Then he

waives compliance with that or dispenses with compliance of that under s 58. If we had a situation in a criminal prosecution. I’m sure if the council had done nothing and there was

no control order in place there wouldn’t seem to be any problems with a court on a

prosecution saying well I’m going to convict you and I’m going to impose these requirements. But that’s not a proper analogy.

97 This argument must be rejected. The Master could not impose a Control

Dangerous Dog Order and then vary the statutory requirements of such an order

when he had no power to do either. However, he did have the power to make an

order the terms of which generally corresponded with the requirements of s50(3)

save that the dog was not required to be muzzled or restrained while working on

the respondents property. In those circumstances the substance of the order is not

invalid: see R v Forrest (1998) 35 A Crim R 421 at 424. The respondent will be

required to maintain the dog in accordance with requirements mentioned in

s50(3) except to the extent identified by the Master.

98 For these reasons the appeal is dismissed. I will hear the parties as to any

consequential orders that may be required.