50 - Destruction and control orders

(1) A council or the Board may, in accordance with this Division, make an order of any of the following classes in relation to a specified dog:

(a) a Destruction Order;

(b) a Control (Dangerous Dog) Order;

(c) a Control (Menacing Dog) Order;

(d) a Control (Nuisance Dog) Order;

(e) a Control (Barking Dog) 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 or the Board (as the case requires)).

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

(a) if the dog has not been desexed - the dog to be desexed within the period specified in the order; and

(b) if the dog has not been microchipped - the dog to be microchipped within the period specified in the order; 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 for the premises to be fenced so as to prevent the dog escaping from the premises; 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 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 capable of preventing 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 or the person or both to undertake such approved training courses as may be 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) if the dog has not been microchipped - the dog to be microchipped within the period specified in the order; 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 capable of preventing it from biting any person or animal; and

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

(da) the dog or the person or both to undertake such approved training courses as may be specified in the order; 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 for the premises to be fenced so as to prevent the dog escaping from the premises; 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; and

(d) the dog or the person or both to undertake such approved training courses as may be specified in the order.

(6) A Control (Barking Dog) Order requires -

(a) all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order; and

(b) the dog or the person or both to undertake such approved training courses as may be specified in the order.

(7) In this section -

approved training course means a training course approved for the time being by the Board for the purposes of this section.

51 - Grounds on which orders may be made

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; or

(b) in the case of a Control (Dangerous Dog) Order -

(i) the dog -

(A) is dangerous; and

(B) has attacked, harassed or chased a person or an animal or bird, or is likely to do so, in circumstances that would constitute an offence against this or any other Act; or

(ii) the dog is subject to an order made under a law of another jurisdiction that corresponds with a Control (Dangerous Dog) Order; or

(c) in the case of a Control (Menacing Dog) Order -

(i) the dog -

(A) is menacing; and

(B) has attacked, harassed or chased a person or an animal or bird, or is likely to do so, in circumstances that would constitute an offence against this or any other Act; or

(ii) the dog is subject to an order made under a law of another jurisdiction that corresponds with a Control (Menacing Dog) Order; or

(d) in the case of a Control (Nuisance Dog) Order -

(i) the dog -

(A) is a nuisance; and

(B) has attacked, harassed or chased a person or an animal or bird, or is likely to do so, in circumstances that would constitute an offence against this or any other Act; or

(ii) the dog is subject to an order made under a law of another jurisdiction that corresponds with a Control (Nuisance Dog) Order; or

(e) in the case of a Control (Barking Dog) Order -

(i) the dog is a nuisance; and

(ii) the dog has created noise by barking or otherwise in circumstances that would constitute an offence against this or any other Act.

The criteria for making a Control (Menacing Dog) Order

1. As indicated above, there are two criteria which must be established before a Control (Menacing Dog) Order can be made:

(a) The dog is menacing; and

(b) The dog has attacked, harassed or chased a person or animal or bird, or is likely to do so, in circumstances that would constitute an offence.

1. The second of these criteria is conceded in this case. Counsel for Mr Ivka concedes that Roko has attacked a person in circumstances which constitute an offence. I consider that that concession is properly made. Counsel was careful to emphasise that no concession was made as to the likelihood of future behaviour by Roko.
2. It is the first criterion that is in issue in this review. Is Roko a dog who is "menacing"?

What is the proper interpretation of "menacing"?

1. There is no definition in the Act of the word "menacing", nor of the terms "nuisance", "dangerous", or "unduly dangerous".
2. I consider that the following guidance can be gleaned from relevant authorities:
   • (a) The characterisation of dogs is based on a graduated scale of risk of danger, menace or nuisance. The stringency of orders under s 50 increases in accordance with the increased risk that a class of dog presents to the public or other animals.[6]
   • (b) The terms "unduly dangerous", "dangerous", "menacing" and "nuisance" are to be interpreted within the context of that graduated scale.
   • (c) The proper interpretation is informed at least in part by the precautions that the respective orders require to be taken for the safety of the public.
   • (d) Dangerous dog and menacing dog orders both have a requirement for the dog to wear a muzzle "capable of preventing it from biting any person or animal" when away from the owner's premises. This indicates that they are orders designed (at least in part) to deal with a dog which presents a risk of biting persons or animals.[7] A nuisance dog order has no such requirement.
   • (e) A "dangerous dog" is one which exposes people or animals to an appreciable or substantial risk of some harm or injury, albeit not necessarily serious harm.[8]
   • (f) The test of "dangerous" must be applied having regard to the circumstances in which the dog presents a risk of harm. It may be inappropriate to characterise a dog as dangerous if the risk is limited, for example, to circumstances where the dog is mistreated, provoked or being used in the reasonable defence of person or property.[9]
   • (g) A dog may be regarded as 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 reasonably be expected to occur.[10]
   • (h) A "menacing dog" presents a lesser risk, but nonetheless, some risk of harm to people or animals. This may be less than an appreciable or substantial risk. The risk may be (but need not be) such as to require a muzzle to prevent biting.[11]
   • (i) "Menacing" may be an apt descriptor where the risk is evident from the dog's threatening behaviour, even though there has been no actual incident of attack.[12]
   • (j) A dog may properly be characterised as dangerous or menacing due to threatening behaviour although no actual harm has been caused.[13]
   • (k) A dog may properly be characterised as dangerous or menacing based on a solitary incident.
   • (l) On the other hand, the occurrence of an incident causing injury may not necessarily mean that the dog is dangerous or menacing. The evidence may establish that the dog presents no risk of future harm.[14]
   • (m) A "nuisance dog" order is not primarily designed for a dog where there is a risk of it biting people or pets. It is more suited to a dog that poses a risk of causing annoyance, inconvenience or trouble rather than harm.[15]
   • (n) Whether a dog is to be characterised as dangerous, menacing or nuisance (or as none of these) is a question of fact to be assessed in the whole of the background circumstances of the case. Particular facts, circumstances or things may attract greater or lesser importance depending upon the factual substratum in which the decision is made.[16]
   • (o) Relevant considerations may include the breed and species of the dog, subsequent interventions (e.g. training) and the dog's response, the health of the dog and its environment, the dog's predictability or unpredictability, antecedent history, level of aggression (and any escalation thereof), sociability, lability of mood, the nature of the harm caused and any hardship likely to be suffered by the dog following implementation of the order.[17]
   • (p) The provisions require an objective assessment of the disposition of the dog. Expert evidence may be relevant to that assessment.[18]
3. While the graduated scale provides guidance as to interpretation, I consider that it would be an error to characterise a dog in a particular way because it falls outside of alternative characterisations. The critical question is whether the dog is properly characterised as meeting the criteria for the order sought (or made).

1. Roko has attacked and bitten a person, causing serious injury. This suggests, without more, that he may do so again in the future. Any future attack would involve the risk of serious harm, as demonstrated by the injuries to Mr Reilly.
2. Counsel for Mr Ivka submitted that the risk of future incidents is remote. He submitted that a dog should only be characterised as "menacing" if there is a continuing and apparent danger or threat.
3. He relied on the uncontested evidence of Mr Ivka that Roko is obedient and well-trained. There have been no other known instances of aggression, before or after this incident.
4. Counsel pointed to the evidence of persons who have made deliveries to Mr Ivka's premises and describe Roko as friendly and as posing no problem, even to strangers.
5. He relied on a report of Dr Jenny Weston, a veterinary surgeon, dated 3 January 2019. She reported that Roko was very obedient with great owner control and trust. She reported that Roko displayed no fear or anxious behaviour when in a small room with a stranger. He was relaxed and in no way hyper vigilant to other dogs or people when they arrived. Dr Weston recommended bite inhibition training and consideration of some formal dog schooling.
6. Counsel submitted that the incident on 26 July 2018 was a "one-off situation". The incident occurred on the private property of Mr Ivka. The dog was protective of Mr Ivka's property. The victim's actions of looking in and underneath the car were unusual. It was an unexpected action by the victim and a very unusual set of circumstances.
7. Counsel argued that the circumstances in which any future risk might occur were so limited as to be not real. They did not give rise to a likely threat.
8. In this regard counsel indicated that Mr Ivka would in future confine Roko to the back of his premises (rather than the front yard) and that he would not take him to work sites as previously. This would reduce the risks that might otherwise arise.
9. The applicant also provided a canine evaluation report dated 16 January 2019 and compiled by Mr Ryan King. Mr King holds relevant qualifications as a canine trainer and assessor. He carried out various assessments relevant to the issue before the Tribunal. Firstly, he observed Roko interacting with Mr Ivka in play and basic obedience to commands. Mr King observed that the applicant and Roko have a strong bond, with Roko demonstrating good response to commands and positive temperament.
10. The assessor then introduced an unknown person into the environment and Roko accepted this, including when patted by that person. The assessor then began to handle Roko, touching his ears, neck and collars. He states that Roko "appeared to feel uncomfortable with stiffening of the body (ears back and tail low, showing signs to bite)". The assessor says that there were signs of aggressive behaviour. However, the applicant gave the command to sit and Roko moved to the applicant.
11. Mr King concluded as follows:

The assessment was conducted with Mr Ivka and his canine Roko in response to an allegation of human aggression. During the assessment of Mr Ivka, as the handler, and Roko, the assessor observed that Roko had a strong bond with his handler and responded well to commands. When other people were introduced into the environment Roko shows no problems with their presence, until he feels threatened or cornered. Since the first evaluation Roko has undergone a further 2 hours of training under the guidance of Ryan King at OzcorpK9 with improvements to his decisions in the situations, we are training him to first avoid or accept the discomfort from people and that he can feel safe as they are not trying to hurt him when within his personal space.

1. Counsel for Mr Ivka submitted that the negative reactions recorded in this report were only elicited when the trainer pushed Roko to his limits (in the context of testing his boundaries).
2. I accept the evidence that Roko is generally an obedient and well-trained dog. He appears to have a friendly disposition and a good relationship with Mr Ivka. The reports of Dr Weston and Mr King have positive aspects which I also accept.
3. However, the evidence demonstrates that Roko may pose a risk in the future, albeit in limited circumstances. He has demonstrated the capacity to attack and bite when he perceives a risk to property of Mr Ivka. There is evidence that he might also become aggressive if he felt threatened by invasion of his personal space or comfort. Neither Mr King nor Dr Weston have denied the possibility of Roko attacking again if subjected to such circumstances. Dr Weston has recommended bite inhibition training and that behavioural training be considered. Mr King's report seems to suggest that further training may be desirable.
4. I do not consider that the future risk can be described as remote or fanciful. It is likely that from time to time Roko may be in a situation where he perceives a risk to Mr Ivka's property or person. It is likely that at some stage his personal space and comfort may be unwittingly invaded by a well-meaning person (perhaps a child). These things can occur in ordinary situations. There is a real risk of a future incident, albeit in limited circumstances. Roko is a "menacing dog" because he presents a real risk of harm to people. The circumstances of that risk may be limited, but not so limited as to make it inappropriate to describe Roko as "menacing".

Should the Control (Menacing Dog) Order be affirmed?

1. The risk which Roko presents is a risk of serious harm by biting. It is precisely the type of risk that dangerous dog and menacing dog orders are designed to protect against.
2. A nuisance dog order is not primarily designed to protect against that risk. Nonetheless I have considered whether a nuisance dog order may be adequate to address the concerns in this case.
3. Counsel for Mr Ivka submits that the use of a muzzle (as required under the order subject to review) would be oppressive for Roko. He tendered a policy document produced by the RSPCA. This expresses the view that muzzles should only be used where there was an adequate reason to do so. The reason in this case (as stipulated in the Act) would be to protect persons who might otherwise be bitten. That would seem to be an adequate reason if the risk of harm is real. I have already made a finding that it is.
4. I have considered whether the requirements of a nuisance dog order might provide adequate protection against the risk. That order would provide some measure of protection, but the real risk of serious harm would remain. Roko has demonstrated the capacity to cause significant injury by a single bite. The attack on Mr Reilly was unpredictable and without warning. A nuisance dog order would not be adequate in this case.

The criteria for the making of the Control (Menacing Dog) Order have been made out. It is appropriate to affirm the decision of the delegate to issue the order.

[6] Clare & Gilbert Valleys Council v Crawford [2005] SADC 135, [28].

[8] Ibid, [67]-[68]. This does not include the risk of no more than slight or trivial injury.

[14] Zhang v City of Burnside (District Court of South Australia, Master Keith, 18 August 2017) [58]-[61].

[15] Clare & Gilbert Valleys Council v Crawford [2005] SADC 135, [50]-[51].

[16] Hastwell v The City of Holdfast Bay [2014] SADC 132, [71]-[72].