Administrative and disciplinary - Dog and cat management - Review of destruction order - Whether dogs are unduly dangerous - Distinction between dangerous dog and unduly dangerous dog - Must be an appreciable risk of serious harm - Has the dog attacked, harassed or chased a person - Effect of appropriate training on dangerous propensity - Dogs found to present clear risk of future serious harm - Destruction orders upheld

Dog and Cat Management Act 1995 ss 33, 43, 44, 50, 51, 52, 64E, 72, 80

South Australia Civil and Administrative Tribunal Act 2013 ss 34, 35, 36, 37, 38

Selvanera v City of West Torrens [2019] SACAT 14

Re AKS [2016] SACAT 19

Commissioner for Consumer Affairs v McMurray [2017] SASCFC 16

Ivka v City of Charles Sturt [2019] SACAT 5

Clare and Gilbert Valleys Council v Crawford [2005] SADC 135

Hastwell v The City of Holdfast Bay [2014] SADC 132

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

King v Department of State Development & McFetridge, unreported SACAT decision delivered 24 January 2020

Mr Mark Aldridge representing the applicant by leave of the Tribunal

Ms C Burke, Kelledy Jones Lawyers, for the respondent

1. Roxy, Tank, Lilly and Makita are Staffordshire Bull Terriers. On 19 August 2019 the respondent Council issued destruction orders in relation to each of these dogs.
2. At the relevant time the persons jointly responsible for the control of these dogs were the applicant and his then girlfriend, Cherri Murphey.
3. The applicant has sought a review of the destruction orders under s 72 of the Dog and Cat Management Act 1995 (the Act). The Tribunal finds that he has standing to make the application. As the applicant suffers from a disability,[1] the Tribunal gave leave for his father, Mr Mark Aldridge, to represent him in the proceedings. Mr Aldridge was able to present the applicant's case competently.
4. The initial application for review was lodged within the required time. It was subsequently determined that four separate applications were necessary. Insofar as required, the Tribunal grants an extension of time for the bringing of the applications. The matters have been heard together.
5. Since the issue of the destruction orders, the dogs have been detained at the Whyalla City Council Dog and Cat Centre (the Centre), as was required by each of the orders. The respondent Council agreed to stay that part of the orders requiring the destruction of the dogs until the determination of this review.

1. The review is to be dealt with in the manner outlined in ss 34-38 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). The Tribunal is required to reach the correct or preferable decision but in doing so must have appropriate regard to, and give appropriate weight to, the decision of the original decision-maker.
2. The Tribunal is required to have regard to the evidence or material before the decision-maker but has a discretion to receive further evidence on review. Further evidence was tendered by both parties on this review and received by the Tribunal.
3. The nature of the review is therefore different from the nature of the appeal that previously existed to the Administrative and Disciplinary Division of the District Court.[2]

1. Having carefully considered the evidence and material before it, the Tribunal makes the following findings of fact.
2. During the relevant period, the applicant was living with his then girlfriend, Cherri Murphey at 11 Brearley Street, Whyalla Playford.
3. They already had two Staffordshire bull terrier dogs. The applicant's dog was an older dog, named Chase[3]. Ms Murphey had a dog described by both Constable Scott and Mr Andre Sliedrecht as a "light coloured puppy"[4]. These dogs are not the subject of the current proceedings. There is no suggestion they were involved in the relevant events.
4. However, in about May 2019 a friend or relative of Cherri Murphey left four additional Staffordshire bull terrier dogs in their care. Their names are Makita, Roxy, Tank and Lilly. These four dogs are the subject of the proceedings. Hence the applicant and Ms Murphey were responsible for the control of six dogs, all kept at the Brearley Street premises. This was in breach of regulations that required that no more than two dogs be kept on the premises.
5. I interpose that, on the evidence, the persons who previously had ownership or control of the four subject dogs cannot now be located.[5]
6. The applicant's father was unhappy about the applicant having six dogs and persuaded him that the four additional dogs should be surrendered to a shelter. This was somewhat against the applicant's wishes as he wanted to keep at least one of the dogs.[6] The applicant's father arranged for the Moorook shelter to take the dogs. He asked the applicant to bring the dogs to Adelaide for that to occur. However, the applicant failed to do that at any time before the dogs were seized by the respondent on 19 July 2019.
7. The applicant's father deposed that the applicant "kept saying he would bring the dogs down, and he would find an excuse not to".
8. After the premises suffered a break-in on 17 June 2019 and the dogs escaped, the applicant's father became more concerned about the dogs and problems his son was having with his neighbours. He renewed his efforts to have the dogs surrendered to a shelter. He also made arrangements for his son to move to a house in Adelaide. However, the dogs remained at the premises with the applicant and his girlfriend up until the events of 19 July 2019.

1. At about 4pm on 17 June 2019 Mr Duncan Peat left his home in McBryde Terrace to walk to the Eyre hotel. He described himself in evidence as a dog-lover, who had never been uncomfortable with dogs before this incident. He had previously owned at least one dog. As he turned into Brearley Street he heard barking. He saw three dark coloured dogs. When they saw Mr Peat, they ran straight at him. The three dogs were barking and jumping at him. One dog lunged at him and went past him. He was trying to defend himself. One dog grabbed his left leg in the calf area. Mr Peat described the event as "absolutely terrifying". He described it as a "pack attack" with one dog coming from behind. The dogs were "going mental - jumping, barking, snarling". Mr Peat expressed concern as to what might have happened if he had lost his balance and fallen. He deposed that the event had "really damaged my head", meaning that he was now frightened to walk down the street. He described the dogs as "absolutely viscous". He managed to get away, perhaps because the dogs were distracted by another dog in a nearby yard barking and moved away in that direction. Mr Peat took refuge on top of a shed in another yard and stayed there for 20-30 minutes. He then went to the Eyre Hotel where his daughter attended to his wounds. He suffered three bite marks on his left leg.
2. Photographs of the injuries appear at page 72-73 of Exhibit C1, the s 35 Book of Documents. He received medical treatment from Dr Rozendaal whose report is to be found at page 71 of that book. This included a tetanus injection. Dr Rozendaal describes the bite marks as "each approximately 3 cm, superficial and required medical management".
3. The Tribunal considers that Mr Peat was accurately describing a very traumatic event, without any undue embellishment or exaggeration. It accepts his evidence.
4. Mr Ray Dickinson is a Senior Shelter Officer employed by the RSPCA at the Whyalla Shelter. He has been so employed for two years. The RSPCA has a contract with the respondent to manage the respondent's Dog and Cat Centre. Mr Dickinson is responsible for the day to day running of the Centre. He has been appointed by the Council as an authorised officer under the Act.
5. During his employment as a shelter officer he has dealt with an average of about 10 dogs per week. The dogs have been of different breeds. He is responsible for day to day care of the dogs, including feeding them, exercising them and cleaning their cages. He does not have formal qualifications as an animal behaviouralist but has undergone on-the-job training and workshops organised by his employer. He has completed the 'Animal Management Officer Training Course" presented by animal behaviouralist Tracy Irons which included training on:

(4) dangerous dog programme and dog behaviour assessments.

1. I accept that Mr Dickinson has sufficient training and experience to express an opinion as to the behaviour of dogs and the degree of risk that they pose.
2. At about 4.10pm on 17 June 2019 Mr Dickinson received a call from a member of the public stating that dogs were in their yard at 10-12 Brearley Street. He drove to Brearley Street where he saw three dark coloured Staffordshire bull terriers running around the street and coming in and out of the yard at 11 Brearley Street.
3. Mr Dickinson parked his van and got out. He was near the front headlights of the van. All three dogs turned their attention towards him and started slowly charging. They were snarling, growling, barking and appeared very excitable. Mr Dickinson was immediately concerned for his own safety and that of the public.
4. He became even more concerned when one dog separated from the others and moved to go behind him and the van, whilst the other two continued aggressively approaching and barking. Mr Dickinson deposed that he was terrified by the behaviour of the dogs and considered that action was necessary to protect himself from attack by the dogs. He withdrew a can of Citronella spray and sprayed it towards the dogs. This deterred the dogs sufficiently to give him enough time to retreat back into the van. He called the police.
5. Mr Dickinson deposed that he had never previously had to use citronella spray or call for police assistance in responding to a dog or dogs. Ordinarily, he could modify behaviour of dogs by befriending them, giving treats and being patient. On this occasion he formed the view that the dogs were particularly vicious, and he was certain they would have attacked him if he had not used the spray.
6. The Tribunal accepts Mr Dickinson's evidence concerning this incident, including his assessment that the behaviour of the three dogs was so aggressive and threatening that it gave rise to a significant and reasonable concern for Mr Dickinson's safety.
7. The applicant, Mr Chalande Aldridge, arrived before the police did. He called out to the three dogs and secured them.
8. Mr Rod Masters is the Dog and Cat Management Officer for the respondent. He arrived at about this point in time, having received a call from Mr Dickinson. He identified himself to the applicant. The applicant stated: "It's not my fault. Someone has let the dogs out." Mr Masters advised the applicant that, as the dog owner, he was responsible for control of his dogs. The applicant then started yelling and screaming, saying: "I'm sick of dealing with you. It's not my fault".
9. Mr Masters again stated to the applicant that he needed to ensure that the dogs were contained to his property. The applicant again began yelling and screaming. Mr Masters and Mr Dickinson left the area.
10. On 19 June 2019 Mr Masters attended with others at 11 Brearley Street to interview the persons responsible for the dogs. The applicant was not at home, but Cherri Murphey was interviewed. She was advised that the dogs had attacked a person whilst at large. Ms Murphey stated that she had taken her stepmother to Centrelink at the time of the incident. She stated that the house was broken into and that was how the dogs had got out. A police report had been made. Ms Murphey repeatedly stated that the dogs do not bite. She claimed that others in the street did not like "us", inferring that the claims of a dog attack might be fabricated.
11. The investigation conducted by the respondent failed to conclusively identify the three dogs involved in the incidents with Mr Peat and Mr Dickinson on 17 June 2019. It appears that the applicant was never asked to do so. However, they were clearly dogs under his control. On returning home, he had restrained the dogs and eventually had driven away with them. It has not been disputed that they were three of the four dogs eventually seized. The evidence supports that conclusion.
12. Ms Murphey was recorded as telling the investigator that two dogs, Chase and Makita, were with her at the time and therefore not at home. It was therefore submitted by the respondent that, by a process of deduction, the dogs involved in the incident must have been Roxy, Tank and Lilly. This is logically so.
13. Mr Dickinson was able to positively confirm the involvement of Roxy. He took a photograph of her before getting out of his vehicle. He was unsure about the other two dogs, but he thought they may have been Tank and Makita. His evidence therefore provides some confirmation (albeit tentative) for the involvement of Tank. On the whole of the evidence I am comfortably satisfied that Roxy and Tank took part in both incidents on 17 June 2019.
14. As to the third dog involved in these incidents, I prefer to err on the side of caution and make no finding. I consider that the information provided by Ms Murphey is more reliable than Mr Dickinson's tentative identification. He was engaged in a frightening experience and readily concedes that he is unsure of the identification. The evidence points to Lilly being involved but Mr Dickinson does not confirm that. Having regard to the principles set out in Briginshaw v Briginshaw,[7] I find myself not quite reaching a comfortable satisfaction concerning Lilly's involvement.
15. On 21 June 2019 the Council sent a letter to the applicant concerning the incident. The letter referred to the seriousness of dog attacks and the applicant's responsibilities as a dog owner or person responsible for the control of a dog. The applicant was cautioned concerning possible consequences if any further incident was to occur. The applicant was issued with an infringement notice concerning the dog Roxy, alleging offences on 17 June 2019 under ss 33(2) and 44(2) of the Act (respectively unregistered dog; and attack, harass, chase a person).
16. I am satisfied that the applicant and Ms Murphey were aware of the allegation that the dogs had been involved in an attack on a person whilst they were at large. Nonetheless, they still had the six dogs residing at their house when a subsequent incident occurred a month later.

1. In July 2019 Ms Gillian Sweeting resided at No 19 Brearley Street. At some time near the middle of the day on 19 July 2019, she was sitting just outside the front door of her house, having a smoke. She saw dogs running up and down the street a couple of times. They ran up her driveway and then out again. They were "Staffy" dogs, black in colour.
2. She had seen these dogs on two or three previous occasions over the previous two or three weeks running at large in a pack up and down the street. On these occasions, there was no person with or in control of the dogs. She also said that there were no people in the street at those times to attract the attention of the dogs. Hence the dogs had caused no trouble on those occasions.
3. The dogs then returned to Ms Sweeting's driveway. There were four dogs. They were loud and aggressive. Ms Sweeting stood up and told them to go. Two dogs advanced towards her. They were "barking and growling, not friendly". Two other dogs remained about four foot behind them, barking but not moving forward. These two dogs were "ready to go, but holding back, barking and growling". Ms Sweeting was frightened. She turned to go inside, being very close to the wire screen door. As she did so she felt a tug on her legs. One dog had hold of her right leg and one the left leg, biting her. She managed to get inside and asked her husband to call the police. I accept her evidence.
4. Ms Sweeting had teeth mark wounds. There were puncture marks on the left and right side of the calf of the left leg. Her right leg was not injured but her jeans had been torn on that leg by the dog. The wounds were bleeding. Ms Sweeting cleaned the wounds and bandaged the legs. Photographs of the injuries appear at pages 22-23 of Exhibit C1. Scars from the bites remain.
5. Constable Miriam Scott of Whyalla police attended the area at about 1.25pm. She was informed by radio that there were dogs on the loose and that they had attacked someone. She was advised that the owner of the dogs had been contacted and was expected to be home within a few minutes.
6. She observed four dogs run from an alleyway that runs between Brearley Street and Rudall Avenue. She observed that they appeared very excitable and were all panting heavily. She followed the dogs as they ran along Brearley Street, towards McBryde Terrace.
7. She beeped her horn at the dogs to scare them towards their home. Two of the dogs turned towards her vehicle and ran up to the front of it. They were snarling at the front of the vehicle and appeared very aggressive. One dog appeared to attempt to bite the front of the vehicle. She yelled at the dogs, the window of her car being open. She watched the four dogs run into the yard of No 11 Brearley Street.
8. Constable Lieberwirth of Whyalla Police arrived in another vehicle and Constable Scott warned her not to get out of the vehicle as the dogs appeared viscous.
9. Mr Daniel Eyels had been visiting a friend who lived at No 7 Brearley Street and was, at this time leaving those premises. As he stood in the driveway, Constable Scott drove past. She yelled out to him that "there were viscous dogs on the loose in the street and he should go inside". He did not do so. It is not clear whether he heard or understood.
10. The four dogs ran out of 11 Brearley Street and spotted Mr Eyels at or near the driveway of No 7. The four dogs charged straight at Mr Eyels and two of them lunged in an attempt to bite him. He tried to move backwards and ended up falling over. I accept Mr Eyels' account[8] that one dog jumped up on him and he fell a second time while trying to defend himself. He sustained a scratch or bite to his right arm,[9] The dogs eventually ran off, possibly after Constable Scott shouted at them. I accept the statement of Constable Scott that the four dogs were running as a pack throughout this incident. Two of the dogs were more aggressive but the four stayed in a close-knit pack. I am satisfied that the incident would have been frightening for Mr Eyels.
11. At about this time the applicant and Ms Murphey arrived by car. The applicant got out and had an altercation with Mr Eyels. The applicant was able to control the dogs and put them in his car. In the car the dogs continued to bark and snarl. The police officers had not been prepared to get out of their vehicles until the dogs were restrained. When they did so, the dogs continued to snarl at them from the car.
12. The applicant was screaming and yelling. He told police that someone must have broken into their place to let the dogs out. The police attempted to calm him down.
13. Mr Dickinson arrived and the four dogs that had been at large were seized and placed into RSPCA vehicles. The applicant assisted the officers by transferring the dogs to their vehicles. I am satisfied, on the evidence of Constable Scott, that the four dogs seized were those involved in the incidents with Ms Sweeting and Mr Eyels. No-one has suggested otherwise. There were two other dogs in the vehicle in which the applicant and Ms Murphey had arrived. These dogs had not been part of the incidents[10].
14. An affidavit of Ms Cherri Murphey was tendered on the review[11]. The respondent indicated to the Tribunal that it accepted the contents of the affidavit without Ms Murphey being called. She stated that the house at 11 Brearley Street was broken into on 17 June and again on 19 July 2019. The dogs had been let free on both occasions. I find that to be the case. If the respondent wished to argue otherwise, Ms Murphey should have been required to attend (by telephone) for cross-examination.
15. It was not suggested that there had been any other break-ins. Neither Ms Murphey nor the applicant (who also provided an affidavit[12]) stated that the dogs had been loose on any other occasion. Neither provided any explanation for such an occurrence if such did occur. I return to this aspect later.
16. The applicant's affidavit suggested that the police officers at the scene (Scott and Lieberwirth) had informed Ms Murphey and him that they had pepper sprayed the dogs. Ms Murphey does not corroborate this claim in her affidavit. The claim is contrary to the evidence that the police officers stayed in their vehicles until the dogs were secured and did not intervene in a physical way in the incident with Mr Eyels. I am satisfied on the evidence of Constable Scott that the dogs were not pepper sprayed. I reject the hearsay evidence of the applicant to the contrary. The applicant was very upset at the time and may have misunderstood.

1. The Council served notice of its intention to issue destruction orders for the dogs on both the applicant and Ms Murphey. The applicant did not respond but the council received two emails from his father, Mr Mark Aldridge dated 21 and 28 July 2019 respectively.[13] Ms Murphey also responded by email dated 28 July 2019. I have regard to these documents, which essentially raise matters that were re-iterated at the review hearing.
2. In his email dated 28 July 2019,[14] Mr Aldridge (senior) offered to have the dogs housed, at his expense, during any period of detention at an independent facility. He argued that the dogs could best be assessed in such a facility.
3. The Council did not consider that it was appropriate to accept this offer. This was a matter for the Council. Given the concerns that were expressed to the Council regarding the dogs, this decision was easily understandable. In any event, the decision to keep the dogs at the Council Centre is not a live matter for review by the Tribunal at this time.
4. On 19 August 2019, the destruction orders were issued, referring specifically to events on 19 July 2019 but also making broader reference to the high levels of aggression of the dogs.

Further evidence re observations and assessments of the Dogs

1. On review the Tribunal received an affidavit of Mr Andre Sliedrecht. He is the Regional Manager of the Whyalla Branch of the RSPCA. He is an inspector under the Animal Welfare Act 1985. He has been employed by the RSPCA for about eight years and has managed shelters at Whyalla and Port Lincoln. His responsibilities include the Whyalla Council Dog and Cat Centre which is managed by RSPCA pursuant to a contract with the Council. He is Mr Dickinson's superior. The RSPCA Shelter is situated adjacent to the Centre.
2. Mr Sliedrecht does not have formal qualifications as an animal behaviouralist, but he has 25 years continuous experience as a dog trainer. This has included the training of security dogs, tracking dogs and companion dogs.
3. For six years he was responsible for the behavioural assessment of dogs surrendered to the shelters at Whyalla or Port Lincoln. It was his task to assess the temperament of the dogs and whether they posed any risk to the community. This was so that a decision could be made as to whether the dogs could be re-homed or whether they should be euthanized.
4. Mr Sliedrecht estimates that he has attended about 7,000 to 8,000 dog callouts during his employment with RSPCA. He has regularly assisted police when they are dealing with situations where animals are present.
5. He has completed training workshops, including an Animal Management Officer Training Course presented by a pre-eminent animal behaviouralist, Ms Tracy Irons. The Tribunal accepts that Mr Sliedrecht is a person qualified to express an opinion about the behaviour of dogs and an assessment of the risk they may pose.
6. Mr Sliedrecht attended at 11 Brearley Street after receiving a call from Mr Dickinson. It is clear that both of these men, as well as the attending police officers, were very concerned about the level of aggression shown by the dogs and the risks involved in attempting to handle the dogs. They persuaded the applicant to place the dogs into the RSPCA vehicles for them. When placed in the RSPCA vehicles, the dogs were snarling, growling and barking.
7. When they reached the Council Dog and Cat Centre, the dogs were still very agitated. They were jumping, barking, growling, snarling and backing into their cages. Mr Sliedrecht assessed that the dogs were fearful and therefore presented a biting risk. The officers were patient and attempted to give the dogs treats and befriend them. This appeared to aggravate the dogs and they refused to eat the treats.
8. It was decided that the safest way to unload the dogs was to use a catchpole. Dickinson had never previously had to use a catchpole, Sliedrech only rarely in his long experience. All four dogs reacted negatively to the catchpole and attempted to escape by "crocodile rolling". Mr Sliedrecht formed the view that the dogs were not used to being on a lead and saw it as a negative and fearful thing. The dogs were successfully moved using the catchpole to their individual enclosures.
9. The above incident occurred on a Friday afternoon. It is clear that both Mr Sliedrecht and Mr Dickinson expected, from their experience, that the dogs would have settled by the following Monday morning. However, they discovered that the behaviour of the dogs had not changed. All four dogs appeared agitated and were growling, showing teeth, lunging and charging at the doors of their enclosures, and then retreating to the back of their cages. They maintained this behaviour whenever anyone approached. The weekend staff had been unable to enter the enclosures to feed or clean due to this behaviour. Food had to be given under or through the door.
10. The failure of the dogs to settle was regarded by Mr Sliedrecht and Mr Dickinson as very unusual. As Mr Dickinson stated, most dogs tend to "come around" and calm down after two to three days. As a result of the behaviour of the dogs, it was necessary to use a sedative prescribed by a veterinarian on a regular basis so their enclosures could be safely cleaned. This practice continued for about three to six months whilst the dogs continued to show the same aggressive behaviour, even to Dickinson. It was finally stopped when Mr Dickinson had built sufficient rapport with the dogs so as to be able to handle them safely. This happened first with Tank and Lilly, and a couple of months later with Makita and Roxy. Roxy still shows signs of anxiety, even with Dickinson.
11. Mr Dickinson stated in his affidavit:[15]

"Concerningly, however, all four dogs have not changed their aggressive and dangerous behaviour towards other persons, including other staff at the centre. In fact, when they see a person other than me, the dogs immediately revert to displaying the aggressive behaviours described above.

In my opinion, and having spent now over 8 months as the primary carer for the four dogs, notwithstanding that the dogs' behaviour has changed towards me, I still have serious concerns that if they are released, they all , both individually and as a pack, pose a serious and real risk of attacking and seriously hurting someone.

This opinion is reinforced by the fact that their behaviour remains unpredictable. Especially with how quickly they revert back to displaying aggressive behaviours when persons other than me are in their vicinity.

...

Even though I have now built a rapport with the dogs and the idea of them being euthanised is sad for me, I consider euthanasia of the dogs may be the best option to address the risk to other persons."

1. In his oral evidence, Mr Dickinson stated that the previous day (the day before the hearing) Mr Masters had visited the Centre whilst Dickinson had Tank and Makita in the holding yard. The dogs became extremely agitated, barking and growling. Dickinson confirmed that no other staff can handle the dogs and that sedation had to be re-introduced when he had a period of leave.
2. It is fair to say that Mr Dickinson in his evidence expressed deference to those with greater experience as to rehabilitation. However, he confirmed that he would be "100% concerned" if the dogs were in public due to the risk at the present time.
3. I return to Mr Sliedrecht. He had made an assessment after that first weekend that the four dogs were dangerous and posed a significant risk to the community. He thought it highly unlikely that they would calm down and considered that on humane and safety grounds they should be euthanised.
4. Mr Sliedrecht has continued to make regular observations of the dogs, and to receive updates from Dickinson, during the subsequent period of eight months that the dogs have been at the centre. In his view, the four dogs have continued to display fearful and aggressive and dangerous behaviour. Whereas most dogs will calm down within a few days of being at the Centre, he is concerned that these dogs continue to show the same aggressive behaviour that was evident when they were seized.
5. He deposes that the only time that the dogs do not show aggressive behaviour is when they are interacting with Dickinson. This is because Dickinson has been successful in building a rapport with them. However, this took from 4 to six months.
6. Mr Sliedrecht stated in his affidavit:

"The dogs' behaviours continue to be unsafe and, as at the time of signing this affidavit, the weekend staff at the Centre are still unable to access their enclosures to clean them or to put them on a lead to exercise them. This behaviour, in my opinion, demonstrates their fearfulness which exacerbates the risk that if they were to be released, they might bite and seriously hurt someone; and

I am aware that there is a suggestion of the possibility of having the dogs retrained and/or rehabilitated. In my opinion, this is not likely to be humane with these dogs. The level of aggression that they are showing, especially after being at the centre for a long period of time is quite concerning. Even if it was possible, you cannot train four dogs at a time, especially not four dogs that are displaying the same characteristics as these four dogs. For any training to be successful, the dogs would have to be kept apart from each other, they would need to be desensitised and trained individually by a skilled and qualified person in behaviour. This process would not only be expensive but also very time intensive and may cause undue and inhumane stress on the dogs."

1. In oral evidence, Mr Sliedrecht confirmed his view that the dogs were dangerous and, if they escaped into community, they would almost certainly bite someone at the first opportunity. Any one of the four dogs would be capable of biting. He conceded that it might be possible to rehabilitate them, but the risk to the public (of the dogs reverting to previous behaviour) would still be too high.
2. I understood Mr Sliedrecht to indicate that he might defer to the views of a qualified animal behaviourist as to the prospects of rehabilitation but there has been no assessment by such a person in this case.
3. The Tribunal heard further oral evidence from Ms Rachel Coles, the respondent's Senior Compliance Officer as to her observations of the dogs on various occasions at the Centre. This evidence generally corroborated the observations of Mr Sliedrecht and Mr Dickinson. The Tribunal also received a movie film taken by Mr Ngugi, which showed aggressive behaviour from some of the dogs when visited in their enclosures. This evidence is of lesser importance compared to the regular observations by Sliedrecht and Dickinson.
4. The applicant arranged for the dogs to be assessed by Mr Bob Yeo. Mr Yeo does not have formal qualifications as an animal behaviourist. However, he has 30 years' experience in handling and training dogs. This included 17 years as a Corrections dog handler/trainer. His duties in this role included training German shepherd dogs for obedience, substance and article searching, handler protection, searching for offenders and tracking. He also trained and handled specialist drug detection dogs. He was required to source and assess dogs for their suitability and test the temperament of the dogs. Subsequently, Mr Yeo has continued to train dogs for the security industry and for disabled persons. I accept that Mr Yeo is qualified to express an opinion about the behaviour of dogs and the risk that they might pose to the public.
5. Mr Yeo's assessment occurred on 27 November 2019 at the Centre and he provided a report dated 30 November 2019.[16] In the report Mr Yeo described the assessment that he conducted which consisted of eyeballing the dog from outside of the enclosure to observe its reaction, feeding the dogs treats and going just inside of the enclosure whilst doing so. He did not attempt to put a lead on any of the dogs as he considered them to be "stressed enough without me adding to their stress".
6. Mr Yeo expressed an opinion that each of the dogs "can be rehabilitated, given the correct training and management". He opined that this could more readily occur if the dogs were removed from the Centre which he did not regard as a suitable long-term placement. He suggested that the mode of accommodation at the Centre had probably contributed to the dogs' behaviour. Mr Yeo made specific reference in his report to placing the dogs in a "non-kill" shelter which may suggest an aversion on Mr Yeo's part to the idea of euthanasia.
7. In his oral evidence Mr Yeo was asked about the possible effect of the events of 19 July 2019 on the subsequent behaviour of the dogs. He was wrongly asked to assume that the dogs had been pepper sprayed, so that evidence is of limited value.
8. As to his assessment Mr Yeo stated that the dogs were all fearful. He said that two dogs came within a metre of him and the other two backed away to the corner of their respective enclosures. He denied that he was afraid of the dogs or that this was the reason he had not attempted to put any of them on a lead. He said: "One of the other two may have attacked, I don't know". All of the dogs appeared stressed which indicated that they were not comfortable with him.
9. Mr Yeo did not accept the suggestion that the dogs were aggressive. He said: "I accept they are fearful". He acknowledged that they might react aggressively if they were put under stress when in public. He said that they would "have to be under effective control, obviously, they'd need to have a muzzle on". However, when he was asked whether he would be concerned if they were in public and not under effective control, he was not prepared to directly concede that to be so, answering: "It could be." I find these answers somewhat contradictory. If the dogs require effective control and a muzzle, one would obviously be concerned if the dogs were not under control, Mr Yeo's reluctance to answer this question directly causes me to view his evidence with some caution.
10. Mr Yeo re-iterated his view that the dogs could be rehabilitated. He said: "No-one can guarantee it. What I'm saying is - let's give them a chance."

1. The destruction orders were made under Division 3 of Part 5 of the Act. Section 52 relevantly provides:

A Council or the Board may make an order in relation to a dog under this Division if satisfied that:-

(a) in the case of a Destruction Order -

(i) the dog is unduly dangerous; and

(ii) 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;

1. Relevant offences are found in Division 1 of part 5:
2. Relevantly (in relation to this case), s 43 and 44 provide as follows:

43- Dogs not to be allowed to wander at large

(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. ...

(2) It is a defence to a charge of an offence under this section if it is proved that the defendant had taken all reasonable steps to prevent the dog from wandering at large.

...

44- Dogs not to be allowed to attack, etc

(1) ...

(2) A person who owns or is responsible for the control of a dog is guilty of an offence if the dog attacks, harasses or chases or otherwise endangers the health of a person or an animal or a bird owned by or in the charge of another person (whether or not actual injury is caused).

...

(4) It is a defence to a charge for an offence against this section if it is proved that the dog was at the time of the offence being genuinely used in the reasonable defence of a person or property, or for droving or removing an animal found trespassing.

It is a defence to a charge of an offence against this Act if it is proved -

(a) that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence; or

(b) if the offence involves a dog - that the dog was at the time of the alleged offence in the possession or control of another person without the defendant's consent.

1. The issues in this case fall to be considered in the context of the broader legislative scheme. In Ivka v City of Charles Sturt[17] I examined the scheme of destruction and control orders set up by s 50 and 51 of the Act. I summarised some general guidance that appeared to arise from decisions of the District Court. I will not repeat that summary here, but I adhere to what was said in that decision.

1. There are three issues that the Tribunal must consider in relation to each individual dog:

(1) Did the dog attack, harass or chase a person in circumstances that would constitute an offence against the Act?

(3) If yes to both of the above, is the making of a destruction order the correct and preferable decision?

1. The words "attack, harass or chase" appear in the provisions relating to dangerous dog, menacing dog and nuisance dog orders, as well as those relating to destruction orders. The words are intentionally broad, consistent with the objectives of the Act. A primary objective is to protect the public from dangerous, menacing, and nuisance behaviour by dogs.
2. The criterion is satisfied if a dog has chased a person. Like "chase", the word "attack" does not require actual contact with a victim. If a person runs at another with a knife, the other is under attack, even if he can successfully run away or evade the attack. When a dog runs at a person in an aggressive manner, such as to reasonably cause fear that is an attack. The word "harass" is apt to describe threatening, menacing, intimidating or aggressive behaviour, such as to reasonably cause fear to a person.[18]
3. I have no doubt that the four dogs attacked and harassed Mr Eyels on 19 July 2019. They ran at him in a close-knit pack in a threatening manner. They caused him to twice fall to the ground and to sustain a minor injury. It matters not that two dogs lunged to bite. The behaviour of all four dogs met the statutory criterion.
4. I also find that all four dogs harassed and/or attacked Ms Sweeting on 19 July 2019. Two dogs attacked her by lunging at her and biting or attempting to bite her legs. The other two were part of a pack that together harassed and threatened Ms Sweeting. These dogs stood nearby in an aggressive manner, growling and snarling as the two other dogs moved forward.
5. I also have no doubt that Roxy and Tank and one other dog attacked and harassed Mr Peat on 17 June 2019. The same dogs clearly harassed Mr Dickinson that same day.

"In circumstances that would constitute an offence"

1. S 51(a)(ii) requires that the relevant behaviour of the dog must be "in circumstances that would constitute an offence against this or any other Act". The intent behind these words is not entirely clear.
2. It is arguable that the s 51(a)(ii) criterion will not be met if it is proved that one of the statutory defences (such as s 86) can be made out. I understood it to be argued in this case that the applicant and Ms Murphey had taken reasonable care to avoid the commission of the offence and that in such circumstances the statutory defence in s 86 was made out and therefore the criterion under s 51(a)(ii) was not met.
3. In Ash v City of Burnside (unreported judgement delivered 3 March 2016, at para [174]), Master Rice expressed the view that the statutory defences had no application to the making of a control order by the Council. Their application was limited to the context of a charge for a criminal offence. In Zhang v City of Burnside (unreported decision delivered 18 August 2017), Master Keith formally adopted that view, but appeared to stop short of wholeheartedly endorsing it.
4. If the view of Master Rice is to be accepted, it is necessary to identify the purpose for which the words "in circumstances that would constitute an offence against this or any other Act" have been included. I consider that such purpose may be to accommodate persons or bodies that have been granted exemptions under s 80A of the Act. For example, I assume that police may have an exemption from the provisions of s 44 which enables them to use police dogs to chase and apprehend criminals. Such a chase or attack would not constitute an offence against the Act because it would come within an exemption from the provisions of s 44. Section 44 would have no application. This, to my mind, sufficiently explains the purpose of including these words in s 51(a)(ii).
5. I do not consider that the statutory defences are of any relevance to this present case. I note that s 51(a)(ii) uses the following language:

"attacked, harassed or chased a person ... in circumstances that would constitute an offence" (my emphasis).

1. The word "circumstances" refers to the circumstances of the attack, harassment or chase that has occurred. Attention is directed to the circumstances of that event, not to the broader circumstances of the person responsible for the dog. The word "would" is included for a reason. It only has work to do if Master Rice is correct. Otherwise, it could be left out. By its inclusion, the intention is to embrace situations where the attack, harassment or chase would constitute an offence, if not for a statutory defence.
2. This approach finds support, in my view, from the terms of s 86. Firstly, the introductory words refer to "a defence to a charge for an offence" (my emphasis). Then there is a reference to "the defendant". These references support the views of Master Rice. The section itself does not purport to have any application to issues under s 51 and is drafted in terms which are inapt for such application.
3. Secondly, the section suggests that it is a defence that "the offence was not committed intentionally and did not result from...". This language is consistent with an understanding that the offence was nonetheless committed even if the defendant is not to be held liable for it. The same understanding (or perhaps looseness of expression) is found in s 51(a)(ii), and what is meant is made clearer by the insertion of the word "would".
4. For this reason, I would hold that it is not relevant to this case to examine the possible application of the defence set out in s 86. However, in case I am found to be wrong in that conclusion, I will nonetheless proceed to consider whether the defence provision is made out on the evidence.
5. S 86 provides:

It is a defence to a charge of an offence against this Act if it is proved-

(a) that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence; or

(b) if the offence involves a dog - that the dog was at the time of the alleged offence in the possession or control of another person without the defendant's consent.

1. Paragraph (b) obviously has no application. At the relevant time (when the incidents occurred) the dogs were not in the possession or control of any person. They were "at large".
2. As to paragraph (a), I accept that the offences were not committed intentionally. However, I do not accept that they did not result from any failure on the part of the applicant or Ms Murphey to take reasonable care to avoid the commission of the offence. If the s 86 defence is applicable, the onus is on the applicant to prove the relevant facts on the balance of probabilities. The evidence from the applicant and Ms Murphey was meagre. It does not establish to my satisfaction what they did to prevent the dogs escaping. It goes no further than proving that on the two days in question the dogs were left in the house, the house was broken into and the dogs let out.
3. The applicant and Ms Murphey ought not to have had six dogs at the house. The regulations provided that only two were allowed. Three dogs got out due to a break-in on 17 June and engaged in aggressive pack behaviour towards Mr Peat and Mr Dickinson. The applicant and Ms Murphey immediately blamed neighbours with whom they had ongoing disputes. They claimed neighbours had broken into the house and deliberately let the dogs loose. That could obviously happen again, given the acrimonious relationships. Having so many dogs at the premises clearly increased the likelihood of dogs engaging in serious pack behaviour if they got out. The applicant and Ms Murphey appear to have done nothing to ascertain the exact behaviour of the dogs when they escaped or to take any action to address that behaviour.
4. The applicant was given an official caution about dog attacks. The applicant and Ms Murphey ought to have immediately transferred four of the dogs to the Moorook shelter as had been already arranged by his father. That was a reasonable precaution that ought to have been taken in a timely way. The applicant says that he had trouble having the dogs transported to Adelaide due to his finances and not being able to drive. However, he concedes that he had failed to do so over a considerable period. It has not been demonstrated that he acted with reasonable care to avoid the dogs causing trouble again. Whilst the six dogs remained there was always the possibility of escape and further pack activity, particularly given the situation that they describe with the neighbours.
5. Furthermore, Ms Sweeting's evidence, which the Tribunal accepts, suggests that she saw the dogs at large in the street on two or three occasions before the incident which occurred on 19 July. It is possible that one of those occasions was on 17 June, although that would be somewhat surprising given that Ms Sweeting did not see any of the incidents that occurred on 17 June. If we assume, however, that this accounts for one of the occasions when they were seen at large by Ms Sweeting, there was at least one other occasion before 19 July when the dogs were at large. They were roaming the street as a group. There is no suggestion they had been let free on that occasion by a third party. There is no explanation by the applicant for the dogs being at large. Mr Aldridge Senior conceded that they must have escaped.
6. Despite all this, the six dogs were still at the house on 19 July 2019. The applicant and Ms Murphey went out, leaving four dogs within the house. There is no suggestion they were restrained in any way. There is no evidence as to the security of the house. On the applicant's own case, the neighbours broke in again and let the dogs loose. That was a predictable event. The dogs engaged in the conduct previously described. The applicant has failed to prove to my satisfaction that this did not result from failure on his part to take reasonable care to avoid the commission of the offences.
7. Hence, even if a "defence" under s 86 was available, it has not been made out. The criterion under s 51(a)(ii) has been satisfied in relation to all four dogs.

1. In Clare and Gilbert Valleys Council v Crawford [2005] SADC 135, the Court suggested that a dangerous dog was one which exposes animals or people to an appreciable or substantial risk of harm, being something more than slight or trivial harm.[19]
2. The Court added the qualification that the test of dangerous should be applied having regard to the circumstances in which the dog presents a risk. Hence a dog should not be considered dangerous if the risk of the dog harming someone is limited, for example, to circumstances where the dog is mistreated, provoked or used in the reasonable defence of property.[20]
3. The Court further stated:

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 reasonably be expected to act in circumstances which may be reasonably expected to occur.[21]

1. In the present case the issue is whether each dog is "unduly dangerous". The following extracts from the Clare and Gilbert Valley case address this issue[22]:

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?

... 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.

In order to pose a greater danger than a dangerous dog, to an extent warranting destruction, the dog 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 expected to occur.

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.

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 its 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.

1. I gratefully adopt the guidance found in those passages, but with one reservation as to how the issues are expressed. Whilst the comments cited may have been apt to deal appropriately with the issues in the Clare and Gilbert Valleys case, I consider, with respect, that they conflate two issues. A destruction order can only be made if a dog is unduly dangerous. However, a Council has a discretion as to the type of order that is made. A dog may be unduly dangerous and yet the Council may be persuaded that appropriate intervention is likely to change that situation. The council might make a dangerous dog order (rather than a destruction order), even though it considers the dog unduly dangerous at the time of making the order.
2. A finding that a dog is unduly dangerous is not equivalent to a finding that the dog should be destroyed. The judgement that a dog is unduly dangerous implies a degree of risk that prima facie justifies destruction, but it does not necessarily mean that a destruction order must be made.
3. It follows that the decision as to whether a dog is unduly dangerous should be confined to a consideration of the degree of risk presently presented by the dog rather than predictions as to the degree of risk that may remain after rehabilitative interventions that have yet to occur. Those predictions as to the likelihood of successful rehabilitation are relevant to the Council's discretion as to what order should be made, rather than to the issue of whether the dog is presently unduly dangerous. The issue of whether the dog is unduly dangerous must be determined by reference to the state of affairs existing at the time of the review hearing.[23] This will take into account, of course, interventions that have already occurred and their outcomes.
4. In Hastwell v The City of Holdfast Bay [2014] SADC 132, Judge Slattery referred to the various types of orders that can be made under ss 50 and 51. He commented that the grounds upon which orders can be made are deliberately broad. He stated as follows[24]:

Consistent with the approach that I have set out above there is no definition in the Act of a dog that is 'unduly dangerous', that is merely 'dangerous' or 'menacing' or a 'nuisance'. These are all questions of fact and in my opinion these questions must be assessed in the whole of the background circumstances of the case under consideration. As with all such assessments, particular facts, circumstances or things may attract greater or lesser importance depending upon the factual substratum in which the decision is made. Obviously enough there will be a difference between a dog that is 'unduly dangerous' and one that is 'dangerous'. These are two different categories of dog and so the difference between the categories must have some meaning. However, in my opinion that difference in meaning is not completely informed by subparagraph (b) of each of the subsections, the content of which is identical.[25] The fulfilment of the requirements of each of those subsections is a prerequisite to the making of an order by the council. The factual circumstances arising under a consideration of each of those subparagraphs will, quite obviously, be different (in the usual course) because of the different types of orders that the council may make in the exercise of its discretion. I say 'in the usual course' because it being an assessment by the council based upon the whole of the circumstances of the case, there will be cases where in largely similar circumstances, the discretional judgment of the council will be different.

This approach is entirely consistent with the existence of the discretion reposed in a council under the wording of the legislation. As in all such cases, it is not appropriate to attempt to formulate a list of criteria or particular characteristics that must be satisfied or identified before a decision may be made in a particular case. The appropriate approach is to have regard to matters that are properly described as considerations which, in a particular case, may assist to inform the judgment of a decision maker. In my opinion, that is the approach taken by Judge Millsteed in his Honour's decision in Clare & Gilbert Valleys Council v Crawford. In this case, the question for the decision of the council was the appropriate classification of Stomper under s 50 of the Act, having regard to the operation of s 51 of the Act.

Matters that the council may have identified as considerations that may inform its decision about any dog in the position of Stomper may include: the particular breed and species of the dog; whether following a particular event there has been intervention in relation to the dog and if so the response (including the failure to respond) to the intervention; the health of the dog and its environment; the measure (if any) that may be made of the dog's predictability or unpredictability; the dog's antecedent history or, conversely, the absence of any knowledge of its antecedent history; the level of aggression displayed by the dog; the 'sociability' of the dog; the lability (if any) of any attitude or mood of the dog; whether and if so to what extent there has been any escalation of the aggression displayed by the dog; the nature of the harm caused by the dog in any incident brought to the attention of the council; whether there has been any escalation in the type of conduct that caused the harm including a repetition of the conduct; the hardship that may be suffered by the dog following the implementation of orders for the housing of the dog following any orders that may be made by council; and any other relevant matter.

It is necessary to again emphasise that what I have set out above are only to be described as considerations that may be taken into account. They are not matters of prescription nor may it be said that only those considerations must be satisfied because to so state the position would put an unstated limitation upon the discretion established under the Act.

Just as there is no measure of decrescendo of barking dogs nor may it be said that there is a measure of the declinatio of the seriousness of behaviour, such as biting, sufficient to measure a dog as either dangerous or unduly dangerous. In the whole of the circumstances of the case, an assessment based upon objective facts must be made by the council in the fulfilment of its obligations and in the knowledge that such behaviour identified in each of the assessments will be different. The measure or indicia of differences is impossible to state nor is it appropriate to attempt to do so because of the breadth of features and considerations that may be taken into account. This includes the assessment by a council of similar behaviours of two dogs of the same breed but with quite different results.

In my opinion, there will be those (perhaps rare) occasions when a dog has done no more than expose a person or another animal to slight or trivial injury but where that dog may properly be categorised as a dangerous dog. It is quite foreseeable that a council would be in a position to form that view notwithstanding that at first glance it might be thought that the behaviour of the dog exposed a person or another animal to no more than slight or trivial injury.

In my opinion, it is the objective assessment of the disposition of the dog that is the key to the operation of the Act. That assessment must be made in the whole of the circumstances of the case and the background of the dog as it is known and the assessment of the dog on the day. This will include the assistance obtained from any expert evidence.

(Emphasis added)

1. I come then to the question as to whether these four dogs are unduly dangerous. This requires an examination of the disposition of the dogs and a judgement as to the degree of risk that they present. My consideration should be based on the objective evidence available at the time of the review hearing. I must consider each dog individually.
2. Tank and Roxy were involved in the incidents on 17 June 2019 when they attacked Mr Peat and harassed Mr Dickinson with the assistance of another dog. All four dogs were involved in the incident with Ms Sweeting. However, it is not known which dogs bit her and which held back. All four dogs attacked Mr Eyels, but it is not known which dogs attempted to bite.
3. The evidence of the applicant and Ms Murphey suggests that they had no concerns during the period they were responsible for the dogs. The dogs were easy to handle and were never aggressive.
4. However, it is a concern that these dogs do not appear to have been socialised in any way at all. Ms Murphey advised the Council in her email dated 28 July 2019 that "myself and partner are the only people they know".[26] Apart from the events of 17 June and 29 July 2019, there is no evidence of these dogs having social contact with any other person prior to their detention. The only known occasions of contact were situations where the dogs acted aggressively and dangerously. Since detention, they have continued to show aggressive and threatening behaviour to all persons other than Mr Dickinson. He took 3-6 months to win their confidence.
5. There is substantial evidence gathered over a significant period of time as to the disposition of the dogs. I prefer the evidence and opinions of Mr Sliedrecht and Mr Dickinson where they differ from those of Mr Yeo. They have had a far better opportunity to observe and assess the dogs over a substantial period. I regard their evidence and opinions as objectively given whilst I perceived that Mr Yeo was more inclined to advocate for a particular result. Even so, the thrust of Mr Yeo's evidence was not to deny that the dogs presently would pose a risk to the public. It was to suggest that the dogs have been the victim of circumstances and that they could be rehabilitated. His views as to the prospect of rehabilitation were based on minimal assessment on one occasion.
6. I have heard additional evidence on this review which was not before the decision-maker. That evidence has not persuaded me that the approach of the decision-maker was affected by any error or deficiency of information. It is appropriate to give weight to the Council's decision. However, that is a somewhat academic consideration as I would independently come to the same conclusion. I consider, on the whole of the evidence, that each of the four dogs is unduly dangerous. I consider that they each pose a substantial risk of serious injury to persons if action is not taken. Their behaviour is unpredictable. Over a sustained period, they have demonstrated excessive and highly unusual levels of fearfulness, agitation and aggression.
7. Mr Aldridge submitted that the behaviour of the dogs should be understood in the context of what had happened to them. He suggested that they may have been abused at the time of the break-in on 19 July. There is no evidence to suggest this and I think it unlikely, given that the four dogs would have presented a significant challenge to anyone acting in such a way. Mr Aldridge also submitted that the actions of seizing the dogs, placing them in a stranger's vehicle, using the catchpole, and placing them in unfamiliar enclosures would have been likely to frighten and agitate the dogs. That is undoubtedly so, but one would expect the dogs to settle from that agitation within a relatively short time.
8. Mr Aldridge also submitted that the housing for the dogs at the Centre was detrimental to their welfare and might explain their continued behaviour. Mr Yeo expressed similar concerns. The housing may not have been ideal for a longer-term stay, but I find that Mr Dickinson acted with patience and kindness in an attempt to befriend the dogs and make their environment as good as their behaviour would allow. He was successful in improving his own interactions with the dogs, but their general behaviour towards others remained unchanged. This has continued to be so, regardless of Dickinson being able to broaden their experiences and routines. This suggests the presence of pre-existing issues, consistent with the behaviour of the dogs that had originally brought them to the attention of the Council. I do not accept that the present behaviour of the dogs can be attributed to their stay in the Centre or that their behaviour would suddenly change if released.
9. In summary, I am not dissuaded by Mr Aldridge's submissions from any of the conclusions I have outlined.

1. A central thrust of the applicant's case was that these dogs could and should be rehabilitated rather than euthanised. Mr Mark Aldridge proposed that they be rehoused at his expense at a "non kill" shelter that has the skill to work with animals.[27] He proposed the SAHARA shelter. Mr Yeo was prepared "to assist".
2. Thus, this case is different from some other cases in that the applicant was not seeking return of the dogs or wanting responsibility for their future care. Mr Mark Aldridge conceded that he also was not able to accept personal responsibility for care of the dogs. He stated that SAHARA rescue and he would take responsibility, but (apart from the reference to funding) it was not clear what, if any, role he would play.
3. The applicant tendered a letter from SAHARA.[28] It confirmed the intention of SAHARA, subject to the decision of the Tribunal, to rehabilitate and rehome the dogs. It claimed that SAHARA's experience in successful rehabilitation was extremely high. The respondent challenged that claim and expressed the view that the SAHARA shelter was not a suitable facility for the dogs. In that context, the Tribunal advised Mr Mark Aldridge that only limited weight could be given to this letter if the applicant did not call the author to give evidence.[29] There was no subsequent application to call the author, despite that opportunity being left open.
4. The Tribunal was therefore in the position where many possible questions were left unanswered. In addition to the concerns raised by the respondent, there was no indication of what would happen if Mr Aldridge's funding was withdrawn or if the Shelter ceased operating for any reason. There was no evidence as to the quality or stringency of assessment before rehoming might occur. Nor was there any confirmation of what would happen to the dogs if they could not be rehomed. Mr Aldridge suggested they could become guard dogs but the details of that were not able to be explored.
5. Importantly, it was conceded that no-one from SAHARA had seen or assessed any of the dogs. It is not known what information has been provided to SAHARA about their history and the events leading to this proceeding. There was no direct confirmation that SAHARA would not back out of the suggested arrangement upon obtaining further information or making their own assessment of the dogs.
6. It is important to note that the approach advocated by Mr Aldridge does not involve any individual accepting full responsibility for the long-term care of the dogs. They would be surrendered to SAHARA and what might happen thereafter would be an unknown.
7. There are limitations placed upon the Tribunal by the legislative framework. If the destruction orders were set aside, dangerous dog control orders might be imposed in their place.[30] However, the legislation prescribes exactly what such orders require, and the Tribunal cannot fashion its own requirements. The normal result of destruction orders being set aside is that the dogs would be returned to the owners. Arguably, the Tribunal could make its order conditional on the dogs being surrendered to SAHARA (or another body), but thereafter there is no control over what happens to the dogs. In a sense, the responsibility for adequately protecting the public would be transferred to a third party which has not committed to the ultimate care of the dogs. One can readily understand why the Council are not supportive of this approach. This is particularly so when the body concerned adheres to a "non-kill" philosophy which does not reflect the legislative scheme apparent within the Act.
8. On the evidence of Mr Sliedrecht (which I accept), it would appear that the proposed rehabilitation is likely to be unsuccessful. At best, it may have some success but, even if the behaviour of the dogs is substantially changed, they might revert to dangerous behaviours if placed under stress. I accept the evidence of Mr Sliedrecht about these matters. Mr Yeo's plea that the dogs be "given a chance" is not a sufficient basis for taking undue risks with the safety of the public. The proposal for the dogs to be surrendered to SAHARA has not been shown to be appropriate. Each of the dogs is unduly dangerous and there is no adequate proposal for their future care and control.
9. I have concluded that the decision to issue the destruction orders should be affirmed in each case. I have come to this conclusion on my independent review of the matter, but I also consider that the exercise of this discretion is a matter on which the conclusions of the decision-maker should be afforded considerable weight.
10. The Tribunal will affirm the destruction orders made by the Council. It will invite brief submissions from the parties (to be received by noon on Tuesday, 7 April 2020) as to the time frame for the implementation of the orders. After considering those submissions the Tribunal will make ancillary orders as appropriate.
11. The respondent sought an order that the applicant pay the costs of the detention of the dogs. However, counsel was unable to direct me to any provision that empowers this Tribunal to make such an order. Section 64E of the Act refers to recovery in a court of competent jurisdiction.

[1] He is autistic and, in his father's words, has severe mental health issues.

[2] Selvanera v City of West Torrens [2019] SACAT 14 at paragraphs 9-15; Re AKS [2016] SACAT 19; Commissioner for Consumer Affairs v McMurray [2017] SASCFC 16.

[3] Exhibit C1: s 35 Book of Documents page 74.

[4] C1 page 32, para 11. See also affidavit of Andre Sliedrecht Exhibit R8 para 10.

[7] [1938] HCA 34; (1938) 60 CLR 336.

[9] A photograph of his arm appears at page 28 of the s 35 book of documents.

[17] [2019] SACAT 5 at [24] - [26].

[18] That such conduct would meet the criteria is implicit in the dicta of Millsteed J in Clare and Gilbert Valleys v Crawford [2005] SADC 135 at para [62] - [63].

[23] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 per Hayne and Heydon JJ at [101]; King v Department of State Development & McFetridge, unreported SACAT decision delivered 24 January 2020, at para [20].

[25] It is noted that this is no longer so, following the amendments which commenced on 1 July 2017. The criteria for control orders have been broadened by inclusion of the words: "or is likely to do so".

[29] The attention of the applicant had earlier been drawn to this issue by means of a formal direction given to the parties in advance of the hearing.

[30] Although there are authorities that might be thought to question the Tribunal's power to do that.