Declaration as Dangerous Dog - Appeal to Magistrate from decision of Executive Officer

Dog Control Act 2000 ss20, 31

Peters v Commissioner of Police [1993] TASSC 153

R v Oldham ex-parte Registrar of Motor Vehicles [1966] Tas SR 80; Commissioner of Police v Lewis [1994] TASSC 13; R v Dixon [1993] TASSC 121; [1993] 2 Tas R 42 referred to

1. Jack and Harry are Siberian husky dogs which have been declared to be dangerous dogs by the General Manager of the Central Coast Council pursuant to section 29 Dog Control Act 2000. Their owners, Katrina and Craig Turner, have appealed against the declaration in respect of each dog pursuant to Section 31 of that Act.

2. A preliminary question arises as to the nature of an appeal pursuant to section 31, and the basis on which such an appeal should be determined. There is no guidance with respect to either question in the Act itself. Section 31(2) simply provides that the Magistrate may order that:

"(a) the declaration is confirmed or

..(b) the declaration be set aside."

3. In Peters v Commissioner of Police (1993) TASSC 153, Crawford J (as he then was) considered the nature of an appeal to a Magistrate from a decision of the Commissioner of Police under the Guns Act 1991. In relation to that question, His Honour followed a decision of Burbury CJ in R v Oldham ex-parte Registrar of Motor Vehicles (1966) Tas SR 80, and held that as the appeal is from an executive officer to a judicial officer, the Magistrate must act judicially and not administratively. He concluded as follows:

"The question whether the licence should be granted therefore fell to be determined judicially by the Magistrate. The so called "appeal" to the Magistrate was in substance an original proceeding and the question whether the licence should be granted to the applicant had to be tried on fresh evidence and independently of the process by which the Commissioner's delegate reached his conclusion. It was for the Magistrate to be satisfied for himself upon the evidence called before him, whether the applicant was a fit and proper person to hold the licence and whether having regard to all other relevant matters the licence should be granted."

4. Burbury CJ had reached a similar conclusion in Oldham in respect of an appeal to a police magistrate under the Traffic Regulations. Peters was followed by Underwood J in Commissioner of Police v Lewis (1994) TASSC 13 and he took a similar approach with respect to an appeal to a magistrate against the grant of an application for a permit for a fish farm under the Fisheries Act 1959 in R v Dixon [1993] TASSC 121; (1993) 2 Tas R 42.

5. Although, as Underwood J made clear in Dixon the word "appeal" has no fixed meaning and its nature in respect of any piece of legislation is to be determined in the context of the legislation in question, it seems to me that I should apply these authorities in determining the nature of the appeal in this case. The appeal is clearly one which is to a judicial officer, a magistrate, from the decision of an executive or administrative officer i.e. the General Manager. This alone indicates that it is intended that the appeal, as opposed to the administrative process, be determined judicially and it is therefore not appropriate that there simply be a review of the decision making process of the General Manager. I should regard the appeal as an original proceeding to be determined by me upon the evidence called before me, in accordance with the provisions of the Act which relate to such a declaration. They are to be found in section 29.

6. Section 29(1) provides that the General Manager may declare a dog to be a dangerous dog if:

"(i) the dog has caused serious injury to a person or another animal or

(ii) there is reasonable cause to believe that the dog is likely to cause serious injury to a person or another animal."

7. There are a number of points to note about this provision:

(a) The preconditions to the declaration are disjunctive. One or the other will provide a basis for the declaration.

(b) "animal" is defined by section 3. It includes any bird kept for farming, breeding or other commercial purposes, any domestic animal or any native bird.

(c) The section provides that if one or the other of the preconditions is established, then the General Manager "may" declare the dog to be a dangerous dog.

8. Mr Williams for the Council submitted that a declaration is mandatory if one of the pre-conditions has occurred or is established. I do not agree with this submission. Section 10A, Acts Interpretation Act, provides that the word "may" is to be construed as being discretionary or enabling, as the context requires. In my view, the context in which the word is used in section 29 clearly establishes a discretion which is enlivened if one of the preconditions exists. Hence, I agree with the submission made by Mr Mihal that a determination under section 29(1) involves a two-step process namely:

(a) Does one or the other or both of the preconditions exist?

(b) If so, then should the declaration be made in the exercise of discretion? In the case of this appeal, that discretion must, of course, be exercised judicially.

10. Jack and Harry came to the attention of authorities on the 11th May 2009. At that time they were seen at large on Picnic Point Beach at West Ulverstone. They were seen by Darryl Hind, the Animal Control Officer for Central Coast, running on the beach and chasing birds. They were not seen to catch any birds whilst on the beach. Constable Martin, who had followed the birds as they ran towards the beach also observed them on the beach. At one point she saw them run over to an elderly couple and their small white dog. She noticed that the dogs were not aggressive towards these people or the small dog.

11. Both officers followed the dogs after they left the beach. Harry was located in a residence in Penguin Road by Mr Hind. Mr Hind took possession of him. There is no suggestion that Harry had attacked any person or, indeed, any animal, apart from chasing birds whilst on the beach.

12. Jack was located by Constable Martin on a property a short distance from where Harry was found. The property consisted of a large paddock area with ponds and compounds containing a substantial amount of birdlife. Constable Martin located an injured bird, saw feathers floating in the area and found three or four dead birds lying in a trench. She called to Jack but he ran towards a coup containing geese or ducks, was barking at them and trying to get to them through the barrier of the coup. Eventually, she was able to take control of Jack.

13. I am satisfied that Jack did cause serious injury to the birds found dead and injured by Constable Martin on the said property. This finding can be inferred from the observations of Constable Martin. Although she did not see Jack directly injure an animal, he was clearly in the process of chasing birdlife on the property at the time. The fact that at least one of the birds was injured and still breathing, and feathers were floating in the air, and Jack was the only possible culprit, leaves open no other reasonable possibility other than an attack by Jack, to explain, at least, the injury to the bird in question. I consider it highly likely that Jack also killed the other birds, and would have proceeded to attack birds on the property had Constable Martin not intervened.

14. In arriving at this finding, I have taken into account the evidence of the property owner, Mr Maney. His evidence does not affect the probative force of the circumstances described by Constable Martin.

15. In relation to Jack, accordingly, at least one of the pre-conditions for the declaration has been satisfied i.e. that he has caused serious injury to an animal. However, there is no evidence to support this finding in relation to Harry. The evidence that Harry was at large and chasing animals on the beach would not, of itself, cause me to conclude that there is reasonable cause to believe that he is likely to cause serious injury to a person or an animal. Indeed, his passive conduct when he approached the couple with their smaller dog whilst on the beach would indicate to the contrary. The likelihood that he would cause serious injury to a person or animal is also negative by the evidence called by his owners discussed below.

16. Accordingly, in my view, there is no basis for making a declaration in relation to Harry and I will set aside the declaration relating to him.

17. In relation to Jack, having established the pre-condition for the exercise of discretion, I must now exercise that discretion in relation to him. In doing so, I will take into account the evidence of his actions on the day in question described above. However, I must also consider evidence given by Mrs Turner, one of his owners, and the expert evidence of Barbara Suckling.

18. At the outset, I can say that I was impressed by Mrs Turner's evidence. I accept that she and her husband are responsible dog owners who have gone to great lengths to ensure that their dogs are properly cared for and kept under appropriate control. This has included obtaining professional obedience training for both dogs. I note, however, that Jack, who is a younger dog than Harry, had only been in the possession of Mr and Mrs Turner for two to three months at the time that the incident occurred, and had only been in obedience training for a short time prior to same. On the other hand, Harry had been in such training for a period of 12 months as at the time of the incident.

19. After the incident, both dogs continued training. Mrs Turner gave evidence of an incident which occurred only a couple of weeks before the day that she gave her evidence, in which both dogs displayed obedience and restraint when menaced by another dog, which was at large. It is clear from their conduct during this incident that both dogs have benefited to a significant extent from the training.

20. Mrs Suckling has assessed both dogs. She has substantial experience in the obedience training of dogs. I accept her as an expert in the field of animal behaviour, and this finding was not challenged by counsel.

21. Her assessment of the dogs in question can be summarised as follows:

(a) Both dogs are gentle with humans and are not likely to attack another dog.

(b) Harry, except in the most extraordinary circumstances, would be highly unlikely to cause serious injury to another animal. During a test to assess the "prey drive" of the dogs, Harry completed ignored the lure in question. This was considered remarkable by Mrs Suckling.

(c) Jack displayed normal interest during the said test. Mrs Suckling considers that he, if unsupervised, might play with an animal and, therefore, could unintentionally harm it. This, however, would be the normal response of most dogs.

(d) The dogs because of their breed become bored easily. If taken into public they should be restrained on a leash because they may be tempted to run off and investigate. Again this is a normal recommendation in relation to most dogs.

(e) Neither dog could be considered dangerous. They are much less dangerous than many other dogs that Mrs Suckling has encountered. Most of the precautions that would be applicable to a dangerous dog would be unnecessary in relation to both. Some precautions, in particular applying a muzzle whilst in public, would be inappropriate, cruel and unnecessary.

22. The evidence of Mrs Turner and Mrs Suckling was not the subject of any significant challenge. I accept the evidence of both.

23. Taking all of the circumstances into account, I decline to exercise my discretion to declare Jack to be a dangerous dog. In doing so, I take into account the opinions expressed by Mrs Suckling and the training that Jack has received since the incident on the 11th of May 2009. I also take into account that the pre-cautions which would be applicable were he to be declared a dangerous dog, are in his case, according to the opinion of Mrs Suckling which I accept, unnecessary and in some respects so intrusive as to border on cruelty.

24. Accordingly, the declarations in respect of both Jack and Harry, which are the subject of these appeals, are set aside.