Administrative and disciplinary - dog and cat management - review of destruction order - whether dog is unduly dangerous - distinction between dangerous dog and unduly dangerous dog - must be an appreciable risk of serious harm - presence of risk may be circumstantial - effect of appropriate training on dangerous propensity - dog found to present clear risk of future serious harm - destruction order upheld

Dog and Cat Management Act 1995 s 51, s 72

Ivka v City of Charles Sturt [2019] SACAT 5

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

Craig v Medical Board of SA [2001] SASC 169; (2001) 79 SASR 545

Mr Dale Mazzachi, Norman Waterhouse Lawyers for the respondent

1. This is an application for review under s 72 of the Dog and Cat Management Act 1995 (the Act).
2. On 23 January 2019 the respondent Council (through a delegate) made a destruction order in respect of the dog, Chino. The order required Chino to be destroyed by 25 February 2019, but that order has been stayed pending this decision. The destruction order is a reviewable decision under the Act.
3. Under s 51 (a) of the Act, a destruction order can be made if

(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. It is conceded in this case that the second criterion has been made out. On 29 November 2018 Chino attacked a person in circumstances that would constitute an offence under the Act. The remaining issues for the Tribunal are:
   • (a) Is Chino "unduly dangerous"?
   • (b) Is a destruction order the correct and preferable order in all of the circumstances?

1. In a recent decision of Ivka v City of Charles Sturt,[1] I discussed the legislative scheme and various principles that emerged from relevant judgements of the District Court. I will not repeat what I said there.
2. This case requires consideration of the distinction between a "dangerous dog" and a dog that is "unduly dangerous". A finding that a dog is "unduly dangerous" is required before a destruction order can be made.
3. In Clare and Gilbert Valleys Council v Crawford [2005] SADC 135, the Court suggested that a dangerous dog was one which presented an appreciable or substantial risk of harm, being something more than slight or trivial harm.[2]
4. 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.[3]
5. 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.[4]

1. In the present case Chino is clearly a dangerous dog. The issue is whether he is "unduly dangerous". The following extracts from the Clare and Gilbert Valley case address this issue:[5]

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. Addressing submissions that were made before me, I would add that the purpose for imposing an order under Division 3 of Part 5 of the Act is never to impose a penalty or punishment. Rather, it is to achieve the public objectives of the Act, including the promotion of responsible dog ownership and ensuring the safety of persons and animals. Those objectives may be achieved in various ways.[6]

1. The respondent Council relied on three incidents as a basis for the order:
   • On 9 May 2018 Chino escaped from the owners' property and attacked and bit three persons. This led to the making of a dangerous dog order by the City of Marion Council.
   • On 17 August 2018 Chino escaped from the owners' property and was involved in a fight with another dog on the neighbour's premises.
   • On 29 November 2018 Chino attacked and bit a person riding a bicycle.
2. I received documentary evidence concerning the first two incidents. As to the event on 29 November 2018, documentary evidence was received but I also heard oral evidence from the victim and both applicants. There was a substantial dispute as to the facts relevant to this event.
3. I am conscious of the seriousness of the allegations and the potential consequences of the destruction order. I must make findings as to disputed matters on the balance of probabilities, but do so with due regard to the principle arising from the case of Briginshaw v Briginshaw.[7] In that context I have subjected the evidence to careful consideration and I am well satisfied of the findings I make in this decision.

1. The applicants have at all relevant times been the owners of Chino and the persons responsible for his control. On 9 May 2019 they lived at 1 Norrie Avenue, Clovelly Park. Chino was left at home within that property as they were at work.
2. At about 12pm Mr Bojan Despinic was walking on Norrie Avenue near to No 1. The dog Chino clawed open the gate to No 1 and escaped the property. He immediately approached Mr Despinic and another person walking with him. Mr Despinic tried to remain calm with his hands crossed at his chest but Chino jumped up and bit his jacket from behind. Chino then went towards the other person but came back at Mr Despinic and bit his right leg. The two men were able to slowly walk away. Mr Despinic sustained a cut and laceration to his leg from the bite. He attended Dr Sean O'Toole and was treated with antibiotics and a tetanus injection. The injury was described as minor and is depicted in a photograph at page 60 of the book of documents.
3. Shortly after this Mr Wayne Wallace was also walking on Norrie Avenue near No 1. Chino came out of a lane between No 1 and a Spa Shop. Chino ran up to him and sniffed him. He looked at Chino and moved on. Chino moved away and then ran up to Mr Wallace again. Mr Wallace backed away and Chino suddenly lunged at him without warning and bit him on the left calf. Chino then moved away and Mr Wallace moved swiftly to the centre of the road where he spoke to a man and a woman. As he was doing so Chino approached again and bit him again on the leg. Chino then ran off. Mr Wallace saw that his leg was bleeding and went to his home at 14 Norrie Avenue to attend to this. After about 10 minutes he returned and found that a third victim had been bitten (Mr Kansy). Police and ambulance attended. Mr Wallace went by ambulance to Flinders Medical Centre (FMC) where he was treated for puncture wounds to his left calf. He was x-rayed for possible internal damage. He was given a tetanus injection and IV antibiotics. He was advised that surgery would have been required if the bites were deeper and went near blood vessels and bone. He was at FMC for about 5 hours.
4. Mr Joseph Kansy was the occupier of No 8 Norrie Avenue. At about 12.15pm he saw Chino heading in an easterly direction along Norrie Avenue. He was standing on the footpath of No 8 when Chino attacked him and bit and clawed at his legs. Two tradesmen came to Mr Kansy's aid and removed the dog. Mr Kansy was subsequently taken by ambulance to FMC. He had two puncture wounds to the calf of his left leg and a graze to his right leg.
5. I am fully satisfied that these were totally unprovoked attacks. There is no evidence to suggest otherwise. In a letter of instruction to behavioural specialist, Dr Parker, dated 9 February 2019 the applicants' solicitor suggested in relation to this event that:

... it appears that whilst being chased by neighbours (who we believe were trying to capture Chino and put him back in his yard) Chino bit three people.

There is no evidence of anyone chasing Chino and that is certainly not the context in which the three victims were bitten. The victims were going about their normal affairs and were attacked for no apparent reason. It is concerning that the applicants seek to minimise Chino's level of responsibility for these attacks in a manner that is unsupported by any evidence.

1. I am satisfied that at least the attacks on Mr Wallace and Mr Kansy caused serious harm. They both required treatment at the FMC Emergency Department. Mr Despinic required treatment by a medical practitioner. All three attacks could easily have caused even more serious harm.

1. The female applicant gave a statement to the investigating officer from the City of Marion. She stated that it was the first time Chino had got out and that he had never attacked or been aggressive to any person or animal. The Council issued a Control (Dangerous Dog) Order concerning Chino. The owners were given an opportunity to make submissions but did not do so. The order was issued on 29 June 2018.
2. The order included standard provisions requiring that Chino wear a dangerous dog collar at all times. It also required that when Chino was away from the owners' property he wear a muzzle securely fixed on his mouth "capable of preventing (him) from biting any person or animal" and that he be under the effective control of a person by means of physical restraint.
3. The Order also contained a provision that all reasonable steps be taken to prevent the dog from repeating the behaviour that gave rise to the order.

1. In July 2018 the applicants moved address to 20 Scotia Street, West Croydon, in the area of the respondent Council. This move was notified to the City of Marion.
2. On 17 August 2018 Chino escaped from the Scotia Street property into the neighbour's yard. He was found fighting with the neighbour's dog. The neighbour returned him to the applicants' property and tied him up. Council officers attended on 18 August 2018 and the applicants agreed to repair the fences where Chino had escaped. The applicants declined a request from the officers to hand Chino into their custody temporarily until the fences were repaired.

1. In this incident it is alleged that Chino attacked a 17 year-old young lady, Ms Jemma Jones, when she was riding her bicycle on the footpath of South Road. It is alleged that Chino lunged at Ms Jones and bit her on her right leg in the area of the calf.
2. The applicants challenged the account given by Ms Jones and questioned whether Chino had actually bitten her. They suggested other possible causes for her injuries.
3. I found Ms Jones' evidence to be honest, reliable and convincing. She made concessions where appropriate and candidly admitted uncertainty on some details. Her evidence was unshaken on crucial issues. In contrast, I found the evidence of both applicants to be speculative, inconsistent and unreliable. I formed the view that parts of the applicants' evidence had been invented by them jointly in a desperate attempt to save Chino. In coming to these conclusions, I have carefully considered the submissions of counsel for the applicants who suggested that they were unsophisticated witnesses who faced certain difficulties in understanding questions and expressing themselves. I do not consider that this adequately explains the problems that I perceived with their evidence.
4. I accept generally that the incident occurred in the manner described by Ms Jones. I make the following findings of fact.
5. At about 7.45pm on 29 November 2019 the female applicant, Ms Kerr, was walking Chino in Dartmouth Street near the intersection with South Road. Chino was wearing a harness to which was connected a leash. The leash was being held by Ms Kerr. The male applicant, Mr Parker-Benton, had spotted Ms Kerr and Chino whilst driving on South Road and had driven around the block so that he could approach them from Dartmouth Street to speak to Ms Kerr. He was driving east on Dartmouth Street towards South Road. By this time Ms Kerr and Chino were on the footpath near the South Road - Dartmouth Street intersection.
6. Ms Jones had left her place of employment and was riding a bicycle in a southerly direction along the western footpath of South Road. Ms Kerr saw Ms Jones when she was still some distance north of the intersection. It appears to have been clear to Ms Kerr that Ms Jones intended to cross the intersection and continue south on the South Road footpath. This meant that Ms Jones was heading towards the position where Ms Kerr was with Chino. Ms Kerr had Chino sit and stood next to him holding his leash close to the harness. Ms Kerr and Chino were in the positions depicted by the cross and circle respectively in the photograph on page two of exhibit R1. This meant that they were partially blocking or very close to the route that Ms Jones would be expected to take as she crossed Dartmouth Street and continued up the ramp to travel further south on the footpath. The evidence establishes that they had plenty of time to move further away from Ms Jones' path but Ms Kerr chose not to do so.
7. I reject the suggestion that Ms Jones approached and crossed Dartmouth Street at a fast speed or that Mr Parker-Benton had to brake suddenly to avoid hitting her. On his own evidence Mr Parker-Benton was stopping to talk to Ms Kerr. I consider that he may well have stopped before Ms Jones arrived, somewhat back from South Road. He told the Council that he had already had a conversation with Ms Kerr. I reject the evidence that Ms Jones waved to or otherwise acknowledged Mr Parker-Benton in his vehicle. I accept her evidence that she did not notice the presence of Mr Parker-Benton or his vehicle until after the dog attack. I accept her evidence that she slowed as she approached and crossed Dartmouth Street. She was somewhat concerned by the presence of the dog.
8. Ms Jones had seen Ms Kerr standing with Chino and holding him closely. She observed that Chino had seemed to be suddenly alert. She veered her bicycle slightly to the left as she reached the southern side of Dartmouth Street so as to travel further away from Chino. This meant that she was to the left of the smooth portion of the ramp and went up the left side of the ramp where there was a slight rise. She veered towards the unsealed portion of the footpath and was thus travelling about one metre from the position where Chino was located. As she passed Chino, Chino suddenly lunged at her (escaping from the close hold of Ms Kerr) and bit her on the right leg. This brought her to a halt. She looked down, whilst still astride the bicycle, and saw Chino's jaw still clamped onto her right leg. Ms Kerr managed to pull him off her leg.
9. Ms Kerr and Mr Parker-Benton both claimed in evidence that they had not seen Chino bite the cyclist. This claim is difficult to accept in the light of their interviews with the Council where they both gave descriptions of how the biting occurred. I accept the evidence of Ms Jones that she saw the dog still hanging on to her leg following the bite. It is instructive that Mr Parker-Benton told the Council that Chino "was hanging on to her leg". The belated attempt by both applicants to claim that they had not seen any bite (and that Chino may not have bitten Ms Jones at all) does them no credit. I find that they did see the bite and have not been truthful in their sworn evidence.
10. Ms Jones sustained two puncture wounds to the calf of her right leg. The wounds caused bleeding which had to be controlled by pressure bandage at triage. The wounds were situated on the outside rear area of the lower calf, consistent with the incident as described by Ms Jones. The medical evidence is entirely consistent with the wounds being caused by a dog attack in the way described to the medical staff by Ms Jones. The applicants belatedly suggested that the wounds may have been caused by the bicycle chain or some other trauma. I regard that suggestion as entirely fanciful. The position of the wounds make it improbable. The medical evidence was never challenged on the basis that the given history might be incorrect. I have complete confidence that the wounds were caused as described by Ms Jones.
11. I reject the suggestion that Ms Jones rode so close to Chino that she collided with him or any part of his equipment. I reject the suggestion that Ms Jones was in any way responsible for dislodging a muzzle allegedly worn by Chino. I accept Ms Jones' evidence that she was passing about one metre away from Chino when the dog attacked her. I reject the suggestion that Chino jumped up on Ms Jones to the upper part of her body. I reject the suggestion that Ms Jones at any time kicked or hit Chino or otherwise provoked him.
12. Ms Kerr had provided to the Council a joint statement of the two applicants. In it the applicants claimed that

The young woman did not see us until she almost hit us. Chino got excited and jumped up. The young woman's response was to kick the dog and he reacted by biting.

1. In her interview with the Council on 15 January 2019 Ms Kerr repeated the claim that Chino had jumped up on the cyclist, the cyclist had kicked Chino and then Chino bit her. Mr Parker-Benton said the same in his interview on 8 January 2019.
2. When she gave evidence-in-chief, Ms Kerr related that she had felt an impact on Chino as the cyclist reached them. She stated that Chino had jumped up on the cyclist, Ms Kerr had told Chino to get down and he had done so "and came straight back to me". There was no mention of the cyclist kicking Chino.
3. In cross-examination, Ms Kerr's attention was directed to her earlier statements about Chino jumping up and the cyclist kicking him. She was asked why she had not mentioned the kicking in her evidence-in-chief. Ms Kerr then stated that she had only told the Council that the cyclist had kicked Chino because Mr Parker-Benton had told her so. She had not seen it herself.
4. Later in her cross-examination, however, Ms Kerr claimed that she had seen the cyclist kick Chino. She said it was a deliberate act - a "get off" thing. I was unimpressed by Ms Kerr's efforts to explain this apparent inconsistency in her evidence. I do not accept that she saw the cyclist kick or otherwise provoke Chino. I do not accept that Chino jumped up on the cyclist as distinct from lunging at and biting her right calf as she attempted to pass on her bicycle.
5. Ms Kerr also claimed that she had never let go of her close hold on Chino which would mean that Chino could not have moved any significant distance from her. However, in evidence she stated that, after Chino had jumped up on the cyclist, "he came straight back to me." In her interview with the Council she stated that :

...when he bit her it was very quick. We said, 'Chino, get down'. And he got down straight away and walked straight back to us (sic).

In this passage, the references to 'we' and 'us' must be understood as intended references to 'I' and 'me'. What is significant is the implication that Chino was obviously some distance from Ms Kerr and had to walk back to her. She obviously did not still have the close hold on him that she had earlier described. This is consistent with Ms Jones' version of the events.

1. Mr Parker Benton also gave evidence which was substantially different from his earlier statements. He described seeing Chino "swung around" by an apparent impact as the bicycle reached Chino's position. He stated that Chino then jumped up on the cyclist and then got down again. He did not claim to have seen the cyclist kick Chino, as he had stated in the earlier interview. When cross-examined, he tried to explain this by suggesting that the cyclist must have struck Chino with her leg as she rode past. However, this simply isn't consistent with his earlier claim that the cyclist had kicked Chino after Chino had jumped up. He also claimed that his earlier statement that Chino was "hanging on to her leg" was a reference to hanging on with his paws. However, when it was pointed out that this was inconsistent with Chino having jumped up to the upper body of the cyclist, he had no explanation. Mr Parker-Benton was most unconvincing in cross-examination on this topic.
2. There was a dispute as to whether Chino was wearing a muzzle prior to the incident. The applicants both claimed that Chino was wearing a muzzle but that it was dislodged during the incident. They say the muzzle was on the ground after Ms Jones suffered her injury. I have already rejected any suggestion that Ms Jones was in any way responsible for dislodging the alleged muzzle. Ms Jones states that she observed Chino before the attack and saw no muzzle. She saw no muzzle after the attack. In cross-examination and re-examination, Ms Jones conceded that she could not be certain that there was no muzzle, but that was her belief. I suspect that Chino was not wearing a muzzle, but I do not need to make a positive finding about this. If Chino was wearing a muzzle, it clearly was not properly fitted so as to prevent him from biting. It simply fell off when Chino attacked. Ms Kerr, after claiming to the Council that the cyclist came into contact with Chino, added the following (emphasis added) :

...I honestly cannot tell you how the muzzle came off, but it didn't snap off., it was maybe not pushed in correctly, I'm not sure.

Muzzle or not, there was a clear breach of the Dangerous Dog Order.

1. The Order was also breached in the sense that Ms Kerr did not have Chino under effective control. He was able to lunge at Ms Jones from a metre away and bite her. Ms Kerr failed to take reasonable steps to prevent the attack.
2. There was a dispute as to whether Chino was wearing the required dangerous dog collar. The evidence does not permit me to make a positive finding one way or the other about that. I do not have confidence in the evidence of the applicants. Ms Jones thought there was a collar but not a bright-coloured one. It is not a matter of central importance.
3. Ms Jones was taken by Mr Parker-Benton to the Queen Elizabeth Hospital. She required 5 stitches in one puncture wound and was advised after treatment to leave the other puncture wound unstitched to avoid infection. She was off work for a week and could not play netball for two weeks. She was still receiving treatment for the injury from a physiotherapist at the time of the hearing in March 2019.
4. In summary, I find that this also was an unprovoked attack. It caused serious harm.

1. Prior to this matter coming before the Tribunal, the applicants indicated to the respondent that:

We have organised for Elle Parker, a highly recommended behavioural assessor, to assess Chino.

1. At a directions hearing on 7 February 2019 counsel for the applicants indicated that they wished to have Chino assessed by Mr Bob Yeo and would require an order from the Tribunal for that to occur. I suggested that a request should first be made to the Council as that had not occurred. There followed a discussion during which the Council representative expressed some concerns, but I expressed no view at all about the foreshadowed application. The applicants' counsel eventually said:

However, my clients put forward a further possibility and that's Elle Parker who I forwarded to you before and she is an accredited dog trainer under the Dog and Cat Management Board.

1. The following exchange then occurred between the Tribunal, counsel and Mr Filipi of the respondent Council:

Member Stevens: Well, if you are prepared to use her as an alternative, there may be no objection to that occurring.

Mr Filipi: No, no.

Member Stevens: Look I'll .... I'm sure that will sort itself out if you communicate with the Council and I give you liberty to apply if it doesn't.

Ms O'Toole: Thank you.

1. Dr Eleanor Parker assessed Chino on 18 February 2019 and provided a detailed report.
2. The Tribunal was surprised to see it suggested on behalf of the applicants, after receipt of Dr Parker's report and just one week before the hearing date, that the Tribunal had refused an application that it make an order to facilitate an assessment by Mr Yeo. Such application had not been pressed and was therefore never ruled on by the Tribunal.

1. Dr Parker is a veterinary surgeon and a behavioural expert. She assessed Chino at the Animal Welfare League on 18 February 2019 and provided a report of the same date. Her assessment was limited as she considered it too dangerous to enter Chino's enclosure or to attempt to fit a lead or muzzle. Dr Parker provided her opinion based on observations of Chino in his enclosure and the history provided. I am satisfied that the evidence before the Tribunal fully supports her understanding of the history.
2. Dr Parker indicated that staff at AWL had had some success in modifying Chino's behaviour in his enclosure by the use of treats. This provided encouragement that he could be responsive to behaviour modification. However, in the absence of treats, Chino was observed to avoid engagement or interaction and showed persistent signs of being generally anxious and mildly fearful.
3. Dr Parker reported as follows:

Unfortunately, even though Chino manifested no overt aggression during the assessment today, his prognosis is guarded because of his prior offences. His previous attacks have shown evidence of poor impulse control and a default response of biting people when he feels threatened or gets over-aroused, despite minimal or no direct provocation. When triggered, Chino has proven that he is likely to use the 'fight' response rather than other alternative behavioural strategies such as flight or freeze. Furthermore, Chino's bite history shows that when he does bite, he does so with limited bite inhibition ie he uses his jaws with significant force and consistently causes harm to his victims, inflicting full thickness puncture wounds and lacerations in all cases. Chino has also now invariably learnt that using aggression is a successful way of coping when he is feeling threatened and is therefore more likely to do the same in the future. Past behaviour is a reliable indicator of future behaviour.

To clarify, there are 4 major factors which render Chino potentially dangerous:

Presence of underlying social anxiety and fear / discomfort around unfamiliar people

Predisposition to choose aggression as the default coping strategy when threatened - learning history has reinforced aggression as a successful option

Lack of impulse control - bites with minimal / no provocation

Limited / impaired bite inhibition - when he does bite he uses significant force to cause harm.

In the light of the above, Chino does undoubtedly present a risk and liability and does need to be considered a dangerous dog.

Recommendations

In regards to whether in my opinion, Chino should be under a destruction or dangerous dog order, an important consideration is that sadly, the only way to 100% invariably guarantee that Chino never again causes harm to a another person is to destroy him. As long as he is alive, Chino does undeniably represent a level of risk to people. In specific relation to the applicable legislation under the Dog and Cat Management Act, Chino has committed offences consistent with warranting a destruction order and therefore I cannot in good faith argue that a destruction order is not appropriate, as heart-breaking as this is. However, it is possible that given the appropriate diagnosis and intervention (ie diligent treatment and management of Chino) that he could be kept alive without ever inflicting harm on anyone again.

If Chino were to escape destruction and be granted a downgrade to a dangerous dog order, then he would need to be responsibly managed lifelong to ensure no complacency, accidents, mistakes, or oversights ever occurred. Unfortunately, Chino's history proves that even when a dangerous dog order is in effect, enforced and even complied with that sometimes mistakes can happen and the dog can reoffend, leading to further injury and harm to a human victim.

1. Dr Parker goes on, as she was requested to do in the letter of instructions, to outline some precautions that would need to be put in place if Chino was not destroyed. She stresses that these precautions would be "non-negotiable" and would need to be in place for the rest of Chino's life.
2. These included wearing a basket / cage muzzle whenever leaving the property or whenever people may visit the property ("whenever interaction with a person is possible"). Other precautions required signage at the property, confinement so that Chino could not escape and so no person could enter his area accidentally or otherwise, wearing very obvious vests and equipment to indicate that he was a dangerous dog, being under a dangerous dog order lifelong and never leaving the jurisdiction.
3. Significantly, a further precaution was that Chino must receive lifelong veterinary treatment and supervision for anxiety, ongoing behavioural modification and training, and must never leave his present owners' care except by humane euthanasia.

1. The appellants gave evidence that they had purchased Chino after losing a child through miscarriage. Chino had assisted both applicants to cope with this. Medical evidence was received from Ms Kerr's general practitioner concerning this. Dr Hughes reported that Ms Kerr had suffered significant anxiety and stress following Chino's removal by the Council and that it had reminded her of her previous loss experiences. I give these matters such weight as is appropriate.
2. The appellants also deposed to steps they would take if Chino was returned to their care. They had already heightened and strengthened the fencing at their property to ensure Chino could not escape. They would construct a concrete run within the yard where Chino would be housed when they were absent from the property. They would ensure appropriate signage was in place and would purchase a basket-cage muzzle custom-made to fit Chino. They have already made enquiries about arranging training with an appropriately qualified behavioural expert.
3. The appellants also tendered a report of Dr Claire Moore, a veterinary surgeon, dated 29 January 2019. She had seen Chino on two occasions in her practice and had observed no signs of aggression. Chino had been wearing a muzzle. She reported that Chino was a gentle, happy and excitable dog, but easy to handle and examine. It does not appear that Dr Moore had been made aware of the events the subject of this hearing.

1. Based on my findings of fact and the report of Dr Parker, I find that Chino is an unduly dangerous dog. He presents a significant risk of serious harm to persons. Chino has attacked and bitten four persons who were at the time acting in a reasonable manner in circumstances that were to be reasonably expected. There was no provocation or apparent reason for the attacks. Serious harm was caused and the bites could well have caused even greater injury. There is a clear risk of serious harm being caused in the future. Past behaviour is a reliable indicator of future behaviour.
2. There is no clear evidence upon which I could be confident that the risk is limited to any particular type of situation. Dr Parker's report suggests that the risk may be at its greatest when Chino perceives some sort of threat or encounters an unfamiliar person or becomes over-aroused. That is a broad spectrum. Dr Parker states that wearing of a muzzle would be essential whenever a person may visit the property.
3. In my view, the level and extent of risk is sufficiently high and broad as to fully justify the making of the destruction order. I am not satisfied that the risk could be adequately managed by the precautions outlined by Dr Parker. The precautions go far beyond what is required by a dangerous dog order. There is no certainty that life-long medical treatment, or ongoing training would necessarily be successful in modifying Chino's behaviour. The need for such extreme precautions, and the fact that they would not guarantee the absence of future attacks, suggests that this is a case where the preferable outcome is to affirm the destruction order. Chino is unduly dangerous to the degree that destruction is the only appropriate response.
4. There is a further factor which strongly supports this conclusion. Dr Parker states that

Chino must never be re-homed or surrendered to an institution as this carries the risk of a break in the above necessary management and treatment. He should only leave his current owners' care via humane euthanasia.

1. This raises the issue as to whether the current owners can be trusted to diligently and effectively comply with a dangerous dog order or the more stringent regime outlined by Dr Parker for the rest of Chino's life. Whilst the applicants clearly love Chino and would probably agree to do anything to save him, their record as responsible dog owners is poor. They have failed to meet the requirements of the dangerous dog order. They have failed to honestly accept responsibility for Chino's conduct in the latest attack and have attempted to deceive the Council and this Tribunal as to the true facts. They appear, on the evidence, to be unable to accept that Chino is truly dangerous or that precautions are really necessary for any reason other than to satisfy the authorities.
2. I have no confidence in the applicants' resolve or ability to comply effectively with stringent requirements for the rest of Chino's life. This is a further reason why destruction is the only appropriate outcome.

1. Counsel for the respondent submitted at the end of the hearing that the Tribunal should vary the decision subject to review by substituting a prohibition order which would also have a direction that Chino be destroyed. This submission had not been foreshadowed at any earlier time. Counsel indicated that it was based on evidence given at the hearing.
2. In my view, the evidence before the Tribunal may be such as to justify a prohibition order, but it would not be the preferable decision on review to substitute such an order in these circumstances. It may have been different if the submission had been foreshadowed earlier, but I express no concluded view about that.
3. This means that the applicants will be free to obtain another dog. They would be wise to choose carefully as they would clearly face the prospect of a prohibition order in the future if a further dog in their care was to attack a person or animal.

1. I consider that the correct and preferable decision is to affirm the decision subject to review. There will be an order to that effect.
2. I will make an ancillary or consequential order that Chino be destroyed between 8.00am on Tuesday 21 May 2019 and 5pm on Monday, 27 May 2019.[8] This will provide time for the applicants to seek leave to appeal to the Supreme Court (and a stay of this order) if they are so minded.

[1] [2019] SACAT 5.

[2] Clare and Gilbert Valleys Council v Crawford [2005] SADC 135, [68].

[6] Cf. Craig v Medical Board of SA [2001] SASC 169; (2001) 79 SASR 545, 553-554.

[8] Cf. Gilbertson v District Council of Grant [2010] SASC 81; SACAT Act 2013 s37.