1. There has been some suggestion in the applicant's materials that the decision of the Council was improperly made.
2. This is not an enquiry into to the decision-making process of the Council. This is a hearing de novo. I stand in the shoes of the original decision-maker and must reach my own decision as to whether Brutus conforms to the standard. I endorse and apply the words of a former President of this Tribunal Justice Morris in Young and Central Goldfields SC 2006 VCAT 1376 where he says this.

In exercising the power of review on the merits the Tribunal does not concern itself with the validity of the primary decision, whether caused by bad faith or bias or the like. Rather it is required to deal with the substance of the matter at hand. What flows from this is that even if Mr Young's questions of law have substance they do not require a response from the Tribunal; rather the proper course for the Tribunal to undertake is to hear and determine the application on its merits.... The Tribunal's task does not required to consider whether the Council acted in good faith or not; or whether the Council officer was biased or hypocritical; or the like.

WHAT IS THE CORRECT STANDARD BY WHICH BRUTUS IS TO BE JUDGED?

1. The approved standard by which this application to is to be judged was published in the Victorian Government Gazette on 31 January 2014.
2. I am aware that there has recently been some controversy as to the time from which this new standard is to be applied. Does it apply only to dogs that are declared as restricted dogs after 31 January 2014 or does it also apply to dogs that had been declared restricted dogs previous to that date?
3. The President of this Tribunal has made a determination on this issue in Applebee v Monash City Council (2014) VCAT 257. For the purpose of this hearing I adopt the decision made by him that the new standard applies to all dogs declared to be restricted dogs, regardless of the date on which that determination was made. There has been no argument to the contrary put to me in this case.

1. It is important to recognise at the outset that although the Act uses the word "standard", this is not to be confused with any existing breed standard of the American Pit Bull Terrier. I am told that internationally at least two different breed standards exist for the American Pit Bull Terrier. There is no breed standard recognised in Australian dog show controlling bodies because this breed is not recognised by the Australian National Kennel Council, the peak Australian body controlling breed standards and dog competitions.
2. Thus there has been no evidence in this case about what is contained in those American Pit Bull Terrier standards, or how any dog show judge or other expert would interpret those standards in the show ring. To put it another way, the question is not whether Brutus is an American Pit Bull terrier as defined by common knowledge or show standards, but whether he is deemed to be an American pit-bull terrier by application of the gazetted standard. I will return to this point later in considering the reception of expert evidence.
3. The respondent has drawn my attention to the fact that section 3(3) of the act uses the expression "falls within the standard". It was submitted by the respondent that this is a commonsense test and so each individual aspect of the standard in contention must be dealt with on a commonsense basis.
4. Relying upon these words, counsel for the respondent submitted that the standard does not require that this Tribunal make elegant distinctions, or to make the assessment of the dog to the same level of satisfaction as may be required in a dog show or other competition which is focused on assessing to a high degree the level of conformity of a dog with a breed standard.
5. The respondent has submitted that in assessing each of the points of conformity required by the standard I should bear in mind the intention of the legislation as set out in the Minister's Second Reading Speech to Parliament.
6. In that speech the Minister identifies the issue that the new standard is designed to address. He says it in this way.

Council's authorised officers have been frustrated with the lack of clear standards for identifying pit bull type dogs. Identification has proven difficult due to the breeding of these dogs not being in the more traditional pure bred or pedigree style, thus ruling out DNA testing to confirm breed identification. Councils have found their decisions frequently challenged thereby draining resources. This has also created uncertainty in the community on what constitutes a restricted breed dog.

The Bill will provide that a dog that falls within the approved standard that relates to restricted breed dogs in Victoria is taken to be a restricted breed dog.

The published standard will provide clear guidance to the Council is authorised officers and the general public on what type of dog constitutes a restricted breed.

This is important because Councils are seeking certainty that a dog can be declared a restricted breed and that the declaration will be endorsed by the VCAT when challenged. Without that certainty counsel authorised officers may be reluctant to declare restricted breed dogs and enforce the act."

1. In other words, a determination as to whether the dog meets the cumulative requirements in the standard is to be determined on a commonsense basis , as to do otherwise would undermine the purpose of the Act set out in section 3 and perpetuate the difficulties identified in the Minister's Second Reading Speech.
2. I agree with this submission.
3. In deciding this application, I do so on the basis that the standard is designed to give Council officers a simple and straightforward means of identifying a restricted breed dog. It is not designed to find the best example of a restricted breed dog. It does not presuppose any expert knowledge of dog judging terms or examination of pedigree. It is designed to be used by laypersons rather than experts in canine anatomy.
4. I also take the view that, with some exceptions outlined later in these reasons, it is a self-contained document. It consists of a written description of each characteristic, accompanied by a photographic model of a dog and what appear to be close up photos of some particular parts of the dog, and also accompanied by some line drawings of particular parts of the dog's anatomy. The written description contains references to both the model and the line drawings. Some of the words used are given definitions.
5. This reinforces my conclusion that the gazetted standard is designed to be used as a standalone instrument, not reliant on expert knowledge of this breed of dog or as to how the individual characteristics of the breed would be judged in the show ring.
6. That is not to say that my decision may be slapdash or made without due regard to the evidence put before me. My decision carries serious consequences. It may result in the dog being destroyed. Both parties agreed that the respondent carries the burden of proving that Brutus falls within the standard. It is proof on the balance of probabilities. Given that the consequence of my decision may be the destruction of the dog, I must be well satisfied, after taking into account and assessing all of the evidence put before me, that the dog falls within each of the requirements of the standard before making a determination that the dog is a restricted breed dog.

1. There was a body of law relating to the old standard indicating that although it was not necessary for each of the criteria in that standard to be present, it was necessary for there to be a high or substantial level of compliance between the dog and the applicable standard.
2. In considering the new standard, the President of this Tribunal has proceeded in Appleby on the basis that it is a question of the cumulative requirements being present, rather than any general comparison between the dog and the standard, or any overall impression of compliance being relevant.
3. The applicant has referred me to a document produced by the Department of Environment and Primary Industries in relation to the new standard entitled new standard for restricted breed dogs in Victoria, 2014: FAQ is for authorised officers.
4. The applicant refers me particularly to that part of this document in which the question is raised as to why the standard has been amended, and in particular suggests that this document endorses the approach of Justice Kaye in Dudas that there must be a substantial or high level of correspondence between the characteristics of the dog and the criteria in the standard.
5. The document goes on to say this.

"Therefore the expectation is that the physical characteristic of the dog must meet the criterion specified in the standard exactly as the standard specifies or it must be determined that the dog does not meet this criterion."

1. On the basis of this document, the applicants submitted to me that each aspect of the particular criterion that I am considering must be met, and that if one such aspect is missing, I must determine that the dog does not meet the criterion I am considering.
2. I agree that this is the appropriate approach to take and will do so when considering each individual criterion.

1. Both applicant and respondent provided evidence as to the points of Brutus' compliance and deviation from the gazetted standard. The evidence of the respondent was led through a veterinarian, Dr Choi and a dog show judge, Colin Muir. The evidence of the Council was led through two authorised Council officers. The respondent submitted that those Council officers had no expertise in the field in which they gave evidence and that their evidence should be rejected.
2. Acknowledging that the Tribunal was not bound to do so, the applicant nevertheless submitted that this Tribunal should apply the rules of evidence to the reception of expert evidence, given that the entire subject matter of the decision to be made is one about which the Council officers claimed some expertise, and given also the disastrous consequences for Brutus should the application be unsuccessful.
3. The applicants submitted that I should apply section 76 (1) of the Evidence Act 2008 which provides for the general exclusion of opinion evidence.
4. The only relevant exception to that section is contained in section 70 of the Evidence Act which provides that where it is established that the opinion is wholly or substantially based on specialised knowledge, based in itself on the persons training study or experience, then the evidence may be received.
5. Whilst recognising that this Tribunal is not bound by the rules of evidence, I have determined to approach the question of the reception of expert evidence within the general framework of sections 70 and 76 of the Evidence Act.
6. Section 70 of the Evidence Act provides a different test than the previous common law test as to the reception of expert evidence. Significantly it does not require the person giving evidence to prove recognised expertise in the field. It broadens the scope of expert evidence to include specialised knowledge based on experience as well as academic study or training.
7. The applicant submitted that neither of the Council officers had established expertise in relation to the identification and characterisation of dogs with respect to the new standard. On the contrary the applicant contended that its experts Dr Choi, a veterinarian and Colin Muir, a dog show judge were clearly experts in the field and their expert evidence should be accepted.

1. The standard which I am to apply in this case has just been gazetted. There have been no decisions as to the reception of expert evidence under this new standard.
2. However the applicant referred me to two decisions of single judges of the Supreme Court in relation to the previously gazetted standard.
3. In Dudas v Monash City Council;Tarawarashira v Darebin City Council (2012) VSC 578, Justice Kaye observed at paragraph 100 that in an individual case, the question of whether there is the requisite high or substantial level of correspondence between the dog and the standard will ultimately be one of appropriate judgement in the particular case.
4. He went on to say that this judgement may depend upon the expert opinion if any available to the authorised officer or, on review, to the Tribunal, as to whether any particular characteristics or criteria, specified in the standard, are of particular importance in determining whether there is a high or substantial level of correspondence between the characteristics in the standard and a particular dog in question, so that it can properly be concluded that the dog meets the description of the dog in the standard.
5. The applicant also referred me to some comments of Justice Croucher in Applebee and Monash City Council (No 2) 2013 VSC 680. He said this.

If there is any deviation from approximate equality, then, depending upon the extent of the deviation, this may be a factor telling against a finding that the dog meets the description of an American Pit Bull Terrier. Ordinarily, whether the deviation is significant or not would be a matter of expert evidence. An untrained Council officer, and less still a Tribunal member, ordinarily, could not reasonably make such a judgement without expert opinion of both measurements and as to the significance of such measurements. It is not for a Tribunal member to estimate the distances simply by looking at the dog. That is guesswork. Last whilst ultimately it will be for the relevant Council officer in the first instance or for the Tribunal on review to determine whether there is a substantial or high level of correspondence between the characteristics of the particular dog in question, and the description of those characteristics in the standard, usually an untrained officer or a Tribunal member could not say whether there is a difference between the relevant measurements and what significance, if any, are particular difference may have without first hearing from an expert or experts."

1. I lastly refer to Gray v Brimbank CC (2014)VSC 13. In that case, Rush J was critical of the presiding VCAT member for failing to give adequate reasons for conclusions he had reached on the contentious items of the standard.
2. In the course of his decision, he referred to the decisions in Dudas and Applebee, and in the course of doing so, appears to have endorsed the approach taken by Justice Croucher in the passage I have reproduced above. It is fair to say, however, that his judgment was directed not principally to the question of the reception of expert evidence in hearings of this nature, but to the need for adequate reasons and the danger of stating conclusions unsupported by evidence.

MY APPROACH TO THE RECEPTION OF EXPERT EVIDENCE

1. In deciding this case, it seems to me that the first question to be asked is whether the impugned evidence is in fact opinion evidence, or whether it is evidence of observation. Clearly even if an expert is giving evidence, in so far as that expert's evidence relates to what the expert saw, that evidence is evidence of observation and does not assume the character of expert evidence.
2. To use some examples from the matters in contention in this case.
3. One of the issues which I am to determine is whether the tail of the dog reaches approximately to the hock joint - that is the back elbow joint of the dog. I do not see how any of the evidence regarding this from any of the witnesses can be classified as expert evidence. It is simply evidence of observation.
4. To take another example. I am asked to determine whether the neck is free from loose skin or dew lap. There may be an expert veterinary or a show definition of the term "dew lap", but this term is well defined in the Act as meaning loose pendulous skin under the throat. Given that the term is so precisely defined there scarcely seems any room for expert evidence about what the term may mean in other contexts. In determining whether there is loose pendulous skin visible under the throat I am making a determination of fact based upon observation.
5. In deciding matters such as these the evidence of observations of the Council officers is clearly as relevant and admissible as evidence of observations of these characteristics by the applicant's witnesses and the Council Officers do not need to be qualified as experts to give that evidence.
6. In saying this I am setting aside any decision as to the credibility of the witnesses claiming expertise, whether they be the Council's witnesses or the applicant's witnesses. The applicant has suggested that as the Council's witnesses are Council employees, they are not truly independent. This is a separate question. It goes to the weight of the evidence, not to the ability of any of those witnesses to give evidence, expert or not. I will return to this issue later.
7. I turn to another more difficult example. There may be situations where evidence of measurement, on its surface a matter of observation, may be more appropriately given by witnesses who have particular expertise in measuring dogs. For instance there are some instruments designed to be used in measuring the height and length of a dog. One of those instruments is a dog frame. The Council witnesses used this device.
8. It was suggested to the Council witnesses that the measurements they took using this frame were not accurate because they had either not measured from the correct point of the dog, or that they had otherwise used the dog frame inappropriately. Clearly the question of whether there is an appropriate way to measure the dog so as to obtain the measurements required under the standard may be the subject of expert evidence.
9. However, the question still needs to be asked as to how a person would qualify as an expert in the use of such a device. Would the fact that a witness had a degree in veterinary science qualify that person in this area? Are veterinarians taught how to use such a device? If the evidence was that such devices were regularly used at dog shows, would a dog show judge have the appropriate expertise rather than a veterinarian?
10. My point is that if expert evidence is sought to be introduced, the Tribunal must carefully examine the field about which expert evidence is sought to be led, and satisfy itself that the witness has the required experience, skill or training in that field.
11. It may also be that certain of the terms used in the standard are terms recognised by experts in the field as having a particular meaning. One of examples I give in this respect is the term "well ribbed with a moderate tuck up."
12. The gazetted standard defines the tuck up as being the concave underline of the body curving upwards from the end of the ribs to the waist. This seems to me to be a factual matter not assisted greatly by the reception of expert evidence, once the particular parts of the dog described by this requirement are determined.
13. However the standard does not define the word "well-ribbed". It may be argued that it is impossible without expert assistance to determine what those words mean.
14. This difficulty is illustrated by the evidence of the Council officer Rosemary Walsh about this requirement. I asked her what she thought that meant and she said that it meant a dog with all its ribs, and also referred to the rib cage of the dog allowing for expansion of the lungs. She said that she had consulted veterinarians and could get no better answer than that. One of her suggestions was that some dogs may be born without ribs and so would not be well ribbed whereas a dog with all its ribs could be described as well ribbed.
15. Her answers in this area illustrate her lack of expertise as to this issue.
16. However I do not take the view that because of this one area of lack of understanding that all of her evidence is thereby called into question, as Dr Choi also admitted to not being able to give a conclusive answer to what is meant by the expression "well ribbed". He told me that it was not a technical term known to veterinary science.
17. Mr Muir told me that this expression was well understood in dog show circles. I will return to his evidence about this later in my reasons .
18. In this decision I must make a determination as to many aspects of the anatomy of Brutus. The view that I take is that some of those decisions may be assisted by the reception of expert evidence and others not.
19. There is no assistance in the standard itself as to how some of the terms in the standard are to be applied. This is a particular difficulty given that some of those terms are imprecise.
20. In this respect I merely point out some of the terms - a "broad "back,- a "short thick" neck, -and "strong" forelegs. There is no assistance in the standard as to whether these terms - broad, short, strong - are to be interpreted having regard to the way those terms are used in the show ring or whether they are, for instance, as suggested by the Council witness Emma Ellis, to be interpreted by comparing the drawings in the relevant figures in the standard with the outline of the dog in question as she observes it to be.
21. Muir gave evidence that it was his experience in dog show judging which informed his interpretation of various words in the standard. For instance, he relied on that experience to inform himself what the words "in balance" meant where used in the standard.
22. My view is that Ellis has followed the correct approach - that is, where a word seems of uncertain meaning, looking for assistance in the photos and drawings in the standard itself, rather than trying to ascertain what those words mean in other contexts.
23. This is however not possible when considering some of the more subjective words in the standard. Here I refer to words such as a "glossy" coat of "harsh" texture. I will return to this issue when discussing the particular items in contention. But before doing so, I wish to make some preliminary observations about the witnesses called in this case.

1. Dr Choi is a veterinarian. He has worked in a small animal practice in Maidstone, on the outskirts of Melbourne, for about 8 years. He told me he studied anatomy of animals as part of his degree in veterinary science. However he has not undertaken any particular detailed study in the anatomy of dogs, let alone the anatomy of Pit Bull Terriers. He is not an academic. He has published no papers and undertaken no research in any area of veterinary science, let alone an area related to the standard to be applied under this Act. He does not appear to have treated pit bulls in his practice, or have had any contact with them. He has not treated Brutus.
2. It is true that a veterinarian undertakes a formal course of study in anatomy. His opinion as to the anatomy of the dog may be expert opinion, provided he has studied the anatomy of the dog rather than the anatomy of animals in general.
3. It does not however follow that because a veterinarian is an expert in anatomy, even in the anatomy of dogs as a species, he is also an expert in the application of this standard.
4. Dr Choi readily agreed that he was not applying any accepted peer reviewed methodology in giving his evidence. He had simply read the standard and formed his own opinion as to how that standard should be interpreted. There were some terms in the standard which he identified as veterinary terms, but these were few and far between. Most of the terms in the standard he agreed had no technical scientific meaning.
5. He told me that he thought one of the terms - the word "wellribbed" had a particular meaning amongst dog show judges, although it was not a veterinary term- and the meaning he had applied was based upon enquiries he had made of show judges about that term. He could not name or describe those show judges. He appeared then to change that evidence to say that the only time he had heard show judges speak about interpretations of various terms was when giving evidence in this Tribunal.
6. Of relevance to the evidence later given by Colin Muir, Dr Choi then said that there were no terms in the standard which required to be interpreted by specialist dog show judges.
7. His report contained references and an addendum with examples designed to illustrate some of the conclusions he had reached. Those references were sparse and basic.
8. When he was pressed as to where those references had been obtained, his evidence was that he had received two of the references from an individual who was not known by him. The circumstances under which he had obtained the information were obscure, to say the least. Another of the references he cited was to an American Pit Bull Terrier chat website he had found on the internet. I was perplexed at the relevance of some of the other references, particularly in respect of the unexplained citing of the Australian National Kennel Council Extended Breed Standard for the cocker spaniel.
9. I was left with the distinct impression that he had accessed these references principally to obtain the colour photographs he used in his report rather than for any scientific or academic research.
10. Given all of this, I regard the applicant's claim that Dr Choi should be regarded as an expert on the gazetted standard as tenuous.
11. There were some other aspects of Dr Choi's evidence which I found disturbing. Firstly, he examined Brutus only once, on 6 October 2013, some six months ago. The examination which he did on that occasion was for the old standard, which is not the standard I am to apply in this hearing.
12. He said that in compiling his report on the new standard he just extrapolated that criteria from the information he had already obtained for the purposes of the old standard.
13. In my view this significantly detracts from his evidence.
14. Further, he told me that at the time he inspected the dog, he was accompanied by two other persons to assist him- Ken and Jan Campbell. He said this was because he needed someone to hold the dog whilst he assessed it.
15. He said that Jan Campbell was a dog judge. He could not tell me who arranged for them to be present at the time of his inspection. He thought it may have been a woman by the name of Bonnie Norton, who he conceded had been involved in other similar cases before VCAT. He said that Jan Campbell made her own assessment of Brutus under the standard on the same occasion as he conducted his assessment, although he was not present in the enclosure when she did this. He appeared to have had no idea why she was doing so.
16. He appeared to know very little as to how the Campbells came to be with him, or as to how he had received information about Bonnie Norton. Although he said he did not discuss the conclusions he had reached about Brutus with any of these persons, for an expert assessment to be carried out under these circumstances seems to me to be odd.
17. Further, in preparing his previous reports to the Tribunal in other cases he openly told me that in formatting those reports he was assisted by the Australian Veterinary Association. That Association has now provided him, apparently without charge, with an assistant to hold dogs whilst he makes assessments. The provision of this technical assistance and the provision of a staff member was unexplained. He agreed that the Australian Veterinary Association had a published policy of opposition to this legislation. He agreed that he also opposed the legislation, and agreed that there were articles to this effect on his website.
18. Given the presence of the Campbells when he assessed the dog, the involvement of Norton, and the assistance of the Australian Veterinary Association in formatting previous reports, I was left deeply concerned as to whether in undertaking his assessment he was carrying out the role of an advocate, seeking to discredit this legislation, rather than understanding his role as an independent expert.
19. I acknowledge that his evidence was that he understood that he was required to be objective in giving his evidence. However I note his evidence that he has carried out six assessments so far under the previous standard and that in relation to each of those dogs his conclusion has been that none of them match the standard. Is he an expert for hire, or a truly independent witness?

1. Colin Muir is the President of the American Pit Bull Terrier Association in Australia. He had previously been appointed as part of a pool to conduct reassessments under previous legislation relating to Pit Bull Terriers. He said that he was a show judge, and that he had been an American Pit Bull judge since 1994.
2. He assessed Brutus twice. The first time was in accordance with the old standard. The second time was a few weeks before this hearing where he saw Brutus and assessed him again in accordance with the new standard.
3. I will refer to his evidence as to the particular items in contention about which he gave evidence later in these reasons. I deal here with the question of his expertise, or more precisely the assistance he could give as an expert in this hearing as to the application to Brutus of the gazetted standard.
4. In approaching a breed standard, a dog show judge has quite a different task than the task before me. A dog show judge is to determine which out of a series of potential candidates most exactly fits each requirement of the relevant breed standard. Each of the candidates may well be described as falling within each of the requirements. If they did not, they would not be eligible to be entered in the competition. They have been bred to conform to these characteristics to the highest degree possible. The dog show judge must maintain make fine distinctions between each of those candidates to choose the dog which most closely resembles the ideal.
5. This is not my task. My task is to determine whether, on applying the standard referred to in the Act, the dog falls within each of the requirements set out. I am not to determine whether he is the best example of each requirement, but simply whether he falls within the definition set out in the standard for each requirement.
6. Mr Muir is a union organiser by occupation. Although he referred to himself as being a show judge of American Pit Bull Terriers, Mr Muir has undertaken no recognised course in show judging. He is not authorised by any Australian authority to judge dogs. He said that his authorisation to judge Pit Bull Terriers came through his accreditation as the President of the Australian Pit Bull Terrier Association. He readily agreed that he had not received any formal training as a show judge, certainly not to the onerous degree required of show judges recognised under the Australian Canine Association rules.
7. He described himself as being qualified by his practical experience, and he gave some elliptical evidence about his qualifications as a show judge, referring to himself as having undertaken some course of a less arduous nature than is required of show judges by the Australian Kennel Control Council, but not identifying the course or its authorising body.
8. He has not judged any other breed than American Pit Bull Terriers, and does not appear to have had any contact with any of the recognised dog show authorities in Australia. That is of course because the American Pit Bull Terrier is not recognised as a breed by those authorities.
9. Further, although at various points during his evidence he referred to particular phrases having a recognised meaning by dog show judges, he did not explain how he had acquired that knowledge, given his apparent lack of contact with any recognised show judges or show judging authority.
10. I am concerned about Mr Muir's independence in giving evidence. He said that he had resigned from a government panel in protest against the introduction of this legislation. Like Dr Choi, he has never encountered a dog which complies with the standard. This may be a coincidence, but it adds to my concern as to whether he is an entirely disinterested witness.

1. The applicant submitted that neither of the Council officers shall be permitted to give evidence in this case apart from describing the sequence of events by which the dog was seized and declared.
2. It was submitted that neither of those witnesses had attained specialised knowledge in the area of dog breed identification, and that in particular they were incapable of giving expert evidence as to the use of technical phrases and terminology in the standard, and for those parts of the standard which involve the consideration of canine anatomy.
3. Neither of the Council officers had academic qualifications in veterinary science or related disciplines. However each of them had experience in applying the previous standard gazetted under this Act. For instance. Rosemary Walsh, the senior local laws officer at Hume Council has assessed approximately over 100 dogs under the previously gazetted standard since 2011. Her evidence was that she presently seizes 3 to 5 dogs a day, not of course just restricted to restricted breed dogs.
4. Of the 100 dogs she has assessed so far, ( all except Brutus being under the previous standard) she has found 60% of them to comply with the standard.
5. She has undertaken several courses of one and two day duration aimed at giving Council officers undertaking assessments under this Act some basic training to enable them to do so.
6. Emma Ellis has less practical experience. She has only been a senior local laws officer since May 2013. She has only assessed 8 dogs herself, but she has shadowed other officers undertaking assessments on approximately 10 to 15 other occasions. Of the 8 dogs she has assessed four of them as meeting the standard. 80% of her workload consists of handling dogs.
7. She has commenced but not completed a Certificate IV in anatomy of dogs and has also undertaken some other Council based courses in this general area.
8. Clearly neither of the Council officers can claim academic expertise in the assessing of restricted breed dogs or the application of the standard.
9. From what I have said in relation to the applicant's expert witnesses, it will be clear that I take the view that there is only a very limited area in which any expert evidence can be of assistance in dealing with the gazetted standard.
10. Counsel for the applicant has pointed out some areas in which it says that Walsh in particular, but also Ellis had made observations which disclose their lack of knowledge. I will deal with these particular criticisms when dealing with the criteria to which they applied., In particular in relation to Walsh it was suggested that she fell into serious error by looking at the dog initially, making an initial assessment that it was a pit bull, and then taking measurements to test that impression.
11. Clearly the forming of an impression is now no longer appropriate under the new standard. However I do not accept the proposition that the findings of Walsh have been tainted by this over all impression which she sought to test.
12. I accept that each of the Council officers can provide evidence of their observations of Brutus. I do not consider any of the evidence they gave to be expert evidence. I do accept that they honestly gave evidence of their observations. Their evidence of those observations provides assistance to me on some aspects relevant to the application of this standard.
13. Of course it is the Council officers' job to identify dogs to be destroyed under this legislation, and the question of their independence has been legitimately raised by the applicant.
14. However I note that the Council officers have often assessed a dog as not complying with the standard. I do not find them to be partial witnesses, but (as I have with the applicants witnesses) I have been wary of accepting their evidence of observation where it is unsupported by other evidence.

1. I agreed to the application of the Council to view Brutus. In undertaking that view I did so for two purposes. The first was so that I could better understand the evidence which had been presented to me by each of the witnesses. The second was that my view of the dog could in certain aspects be treated as evidence in itself.
2. I note the observations of Croucher in Appleby where he indicates that it is not for an untrained Tribunal member to say whether there is a difference between the standard and the measurements of the dog and what significance they have without hearing from expert witnesses. However it seems to me that in so far as that is true, it must apply only to differences from the standard about which measurements may be made.
3. That is, it would be inappropriate for me to determine whether a particular measurement submitted by one witness is to be preferred over that of another witness simply by running my eye over the dog.
4. In saying that, I must point out that this question of accurate measurement assumes a particular difficulty for the Tribunal in these cases. It is experience of the Tribunal that often there are multiple witnesses claiming to have measured the length or breadth or height of the dog with various implements, and that often each of those witnesses disagree about these basic measurements. Often this is because the dog is moving at the time of the assessment. Unless the dog is exceptionally still, or rendered unconscious, there will inevitably be small differences in measurements.
5. Those small differences can have significant consequences, when the Tribunal is asked to assess comparative measurements of different parts of the dog's anatomy y- for instance the relative proportions between height and length.
6. The Council officers used a measuring frame to measure height and length. They were challenged about the accuracy of that method. However there was little evidence about whether it was appropriate to use a measuring frame to measure length. Muir and Choi said that using a dressmaker's tape measure was a more accurate way of measuring a dog, as by doing so he could feel the appropriate parts of the dog's anatomy which he was measuring. He also said that he did not use a measuring frame because he did not own one.
7. Muir and Choi were also challenged as to the accuracy of using a dressmakers tape as a method of measurement. The obvious point was made that by using a flexible tape he may not have taken a measure that was a perfect straight line from one point to another, given that some parts of the body measured are rounded in shape.
8. In many cases the Tribunal is left with the impossible task of being required to prefer one witness's evidence of measurement over the other with no means of deciding which to prefer. It would be much better if the proposed witnesses in these cases were required to agree upon basic measurements before the matter is put before the Tribunal.
9. However the point to be made in this case is that apart from measurements, the Tribunal may be in just as good a position to assess particular characteristics as are other witnesses, whether those witnesses claim expertise or not.
10. Once the Tribunal determines whether or not to accept that expert evidence, it is well within the Tribunal's role, and indeed it is the duty of the Tribunal, to assess for itself whether the particular dog is appropriately to be described as falling within the standard on each point of contention, and be satisfied on that point to the level of satisfaction required by the standard. The role of making the decision cannot be abdicated to any expert, no matter how highly qualified. The Tribunal must clearly identify the areas in which expert evidence is accepted and applied to each of the criterion, and then to make its own determination to the required level of satisfaction as to whether the dog complies with the standard.
11. Having said that I record that I found the process of inspecting Brutus relatively unhelpful. All that one can gain from such an inspection is a general impression. It was impossible to independently assess each of the items in contention in this case from viewing a large moving dog in a small cage. I did not gain very much more understanding of the points in contention from having done so.
12. I was aware of the dangers of attempting to conduct my own experiments - for instance by running my hand over his coat to determine whether it felt harsh, or seeking a demonstration of any of the contentious aspects -such as the circumstances in which wrinkling to the face could be observed. If I had done such things I would then have been required to put my findings to counsel and perhaps to the experts, and seek submissions as to the accuracy of my observations. I decided to use the view simply to help me to understand the evidence presented to me, rather than as evidence to be used by me in deciding this case.
13. I have counted fifteen aspects of Brutus anatomy which are in contention. In assessing whether Brutus anatomy complies with the standard, I will need to assess the evidence of all the witnesses as to each of these aspects. In doing so I will need to assess the extent to which that evidence is evidence of observation rather than expert evidence, and whether in giving that evidence the particular witness has the requisite training study or experience to be able to lead the evidence required. I will then need to make my own assessment of the relative strength of the evidence in respect of every point in contention.

1. Before dealing in detail with the aspects which are in contention, I need to make some general observations about the use of photographs by each of the witnesses in this application.
2. It is notoriously difficult to photograph dogs. Although photographs can be very useful in illustrating particular aspects of the dog's anatomy, there is also the potential for photographs to be misleading.
3. A photograph may be very valuable in showing that a dog has particular markings or colours. However it may not be as valuable in illustrating other features of the dog. This is because features may be obscured or magnified, or proportions exaggerated depending on the angle at which the photo is taken or on whether the dog is in an active or resting position at the time the shutter is pressed.
4. For instance, the length of the tail compared to the hock is a matter of visual observation. The relative distances captured in a photo may not be accurate if at the time the photograph was taken the dog's tail was wagging or the photo was taken at an angle.
5. A dog is moving animal. It is not photographed unconscious or when absolutely still. Features such as wrinkling to the cheek may be affected by the collar being pulled upward or downward. The relationship between height and length maybe not accurately photographed if the dog is on the angle. The very act of breathing may distort some features.
6. Each of the witnesses conceded these limitations in the photographs taken. I have indicated below the areas in which there was dispute about the accuracy of the photograph used to illustrate particular points. All of the witnesses conceded that they had taken many other photos than those which were in their reports, and that the photos had been chosen by them (Rosemary Walsh used the words "handpicked") for use in this proceeding where they most clearly illustrated the point which that expert was making.
7. Where there is a difference between the evidence of observation of the witnesses and the evidence of the photo, these inherent limitations of the photograph need to be taken into account.
8. I now turn to the evidence given in respect of each of the characteristics of Brutus which are in dispute in this case. I have not dealt with the areas of clear agreement. There seems to me to be little point in simply reciting my concurrence with undisputed evidence. I acknowledge my responsibility to come to my own decision regarding these matters, but I record that insofar as each party has produced evidence of compliance or noncompliance which is accepted by the other, I have had no difficulty in also accepting that conclusion.

CONFORMATION CRITERIA - MUST MEET THREE OUT OF FIVE OR CANNOT CONTINUE WITH ASSESSMENT

1. I turn first to consider what are described in the standard as the conformation criteria. Brutus must meet three out of the five criteria in this section..
2. All witnesses agreed that he complied with two of these criteria. The first was his height, and the second was his weight. I agree, and I will not dwell further on those two criteria.
3. All witnesses agreed that he did not comply with one of the criteria, that is that his muzzle ratio to the skull was not the ratio set out in the standard. I accept that this is so.
4. I must therefore determine whether he complies with either of the remaining two conformation criteria.

The overall outline of the breed indicates it to be slightly longer in length from point of shoulder to buttocks than height from withers to ground.

1. Three of the witnesses agreed that Brutus complied with this criterion. Each of the Council witnesses gave evidence that this was so, relying upon the overall length of the dog at 53.5 cm and a height of 52.5 cm.
2. Mr Muir also agreed that the dog complied with this criterion, remarking that the dog gave the appearance of being long in the body. However his measurements indicated that the dog was 58 cm long, 5 ½ cm more than the measurements taken by the Council witnesses. It is interesting to note that Muir agreed that he had previously measured the dog and the measurement at that time was 50 cm.
3. Those very measurements illustrate the point I was trying to make earlier as to the imprecision of measurement of dogs, whether done by a layperson or a person claiming expertise in the anatomy of dogs.
4. Choi said he used a measuring tape as it was easier in that way to feel the two points of the back - being the back of the shoulder and the hip- to be measured.
5. I reject the applicant's suggestion that use of the measuring device by the Council officers produced an inaccurate reading. Both gave credible evidence that they had carefully used the measuring device, being aware of the two points from which the measurement was taken. I accept that evidence.
6. I note also Muir's concession that it was extremely difficult to measure a moving dog with any level of accuracy.
7. There was a particular method which Dr Choi used when considering the standard. He gave evidence that he considered several of the criteria in the standard to be imprecise, and that he had developed a mathematical equation to inform his use of the standard.
8. In relation to the question of the length as compared to the height of the dog, he said that Brutus was very difficult to measure on the day. He said that in order to make his judgement he needed to have a reference point of an objective form of measurement.
9. He consulted the Australian Macquarie Dictionary and found the definition of the word slight as being "of little weight or importance, or trifling"
10. The calculation that he arbitrarily allocated on the basis of that definition was that the difference between the height and length must be 3%. The difference in the calculations he had made between height and length was 9% (using 55cm as the length he measured) and on that basis he found that Brutus did not comply with the standard.
11. On cross-examination Choi agreed that the figure of 3% was an arbitrary figure and that there was no body of learning on which he had based that figure. He also agreed that the standard did not require such a limitation although there were some measurements set out in the standard for other criteria.
12. I will come back to Dr Choi's method of approaching the standard when dealing with some of the other criteria.
13. The applicant contends that Dr Choi's measurements of the dog at 55cm and Muir's measurement of the length of the dog at 58cm should be accepted, rather than the measurements of the Council officers. Both the Council officers accepted that if those measurements were accurate, Brutus will be described as more than slightly longer than high, and therefore would not satisfy this criterion.
14. I therefore need to make a decision of fact as to whether those measurements are to be preferred over those of the other witnesses.
15. I have determined not to accept those measurements as accurate. There is a disparity between them. Dr Choi said in evidence that Brutus was very difficult to measure on the day that he did so. There is no evidence before me that Dr Choi has by reason of his training as a veterinarian or Muir as a dog judge any more expertise in measuring dogs than any of the Council witnesses. Rosemary Walsh, in particular appears to have had a great deal more experience in measuring dogs than either of the applicants witnesses.
16. Muir said his observation was that Brutus was slightly longer in length than in width.
17. Dr Choi has based his conclusion on a process of importing into the standard a mathematical calculation which is not there. I see no reason to constrain the words "slightly longer" to a particular mathematical formula.
18. I am satisfied that Brutus is slightly longer than high in the terms of the criterion.
19. I find that the dog does comply with this criterion.

The distance from withers to the elbow and the elbow to the ground is generally equal.

1. Three of the witnesses agreed that Brutus did not comply with this criterion. The only witness to say that he did was the Council officer Rosemary Walsh. In doing so she used the same calculations as her fellow Council officer Emma Ellis that is that from the Withers to the elbow was 27 cm and from the elbow to the ground was 25.5 cm. However she appears to have taken a more broad approach to the words "generally equal" than her fellow Council officer, and certainly more broad approach the matter of either of the applicant's witnesses.
2. Although it is not strictly necessary for me to make a finding as to this criterion, given that I have now found that three of the conformation criteria are met, is my view that the preponderance of the evidence is that Brutus does not comply with that criteria. In other words, I am satisfied that the relevant distances are not generally equal.

PHYSICAL CHARACTERISTICS CRITERIA - MUST MEET NOT LESS THAN 10 OUT OF 18 OF THESE CRITERIA.

1. The next stage is analysing the physical characteristics criteria of the standard. All witnesses agreed that Brutus's teeth are large and that he had a complete scissor bite. All witnesses also agreed that when the dog was alert wrinkles formed on his skull. Therefore two of the criteria are agreed to be present and I will not dwell further on those criteria. The respondent must prove that a further eight of these criteria apply to Brutus. I now need to analyse each of these criteria in detail.

Head is proportionate to the dog. (refer to figure 2)

1. Both of the Council witnesses formed the view that Brutus's head was proportionate to the dog. Both described his head as large and the body as large.
2. Both of the applicant's witnesses gave evidence that the head was disproportionately large when compared to the body. Colin Muir described the head as being "overly large and mastiff like". Dr Choi described Brutus as having a disproportionately large head. He said that a variation of more than 3% between head width and length was unacceptable. He gave no reason for this arbitrary calculation and I reject it. The correct approach should be to compare the head as shown in the photographs in the standard and the line drawings in the standard to the head of Brutus.
3. I have compared the photographs and line drawings in the standard to the photographs of Brutus and I agree that the head of Brutus appears to be of a significantly larger proportion to his body than the heads in the various depictions in the standard. When the photos are taken in combination with the evidence of Muir and Choi, I do accept that Brutus has a disproportionately large head width.
4. I reject the evidence of the Council witnesses as to this aspect.
5. Thus Brutus does not comply with this criterion.

The general shape of the head is that of a blunt wedge, large and broad. (refer to figure 3)

1. Both of the Council officers formed the view that Brutus complied with this criterion. They described the skull as being large and broad and shaped like a blunt wedge.
2. Both of the applicant's witnesses disagreed. Colin Muir described the head as overly large and overly broad. He said that viewed from above the muzzle joins to the head forming a noticeable deviation from the line of cheeks into the muzzle. He agreed that the head does form a blunt wedge but he said that it was hugely over blunt and almost brick shaped.
3. Dr Choi gave evidence that the blunt wedge needs a muzzle to skull ratio of 2 to 3. He said that Brutus' muzzle to skull ratio was 1 to 2. He said that the muzzle tapered significantly resulting in a triangular shaped wedge and thus was not the blunt wedge required in the standard.
4. I do not accept the validity of Dr Choi's mathematical assessment of this criterion. I accept that the head is large and broad and shaped like a blunt wedge, and that falls within the standard in this respect, being substantially of the same description as the words and visual depictions in the standard. I accept also that the head is shaped as a blunt wedge, and reject the submission that it is almost triangular in shape.
5. Dr Choi made the obvious point in giving evidence that no dog would have a triangular shaped head. His conclusion from that was that if the shape of the muzzle was narrow that it could not be described as a blunt wedge.
6. I do not accept Dr Choi's conclusion that Brutus has a narrow muzzle. It is contradicted by the evidence of the Council witnesses and the evidence of Muir. It is contradicted by observation of figure 3 in the standard compared to the photographs of Brutus provided in Dr Choi's report.
7. I do not accept Muir's description of the head as being "overly " large and broad. The word "overly " has no basis in the standard.
8. Brutus does comply with this criterion.

The skull and muzzle are on parallel planes separated by a moderately deep stop. (figure 4)

1. One of the Council officers Emma Ellis and both of the applicant's witnesses agreed that the dog did not comply with this criterion. Dr Choi and Emma Ellis did so on the basis that the skull was too rounded to allow the skull and muzzle to be on parallel planes. Dr Choi gave evidence that unless the skull was flat calculation of parallel planes could not be made, as there would be no point from which plain indicated by the skull could be assessed. Mr Muir described the skull and muzzle to be on separate planes with the skull having a slight downward slope whilst the muzzle had an inclined towards the nodes
2. Rosemary Walsh took the view that Brutus complies with this criterion.
3. I accept the evidence of the applicant's witnesses and Emma Ellis that Brutus does not comply with this criterion as the head is too rounded to be measured.

The skull is large, fairly flat, broad and deep, slightly tapering towards the stop. (figure 4)

1. Emma Ellis agreed with the applicant's witnesses that Brutus did not comply with this criterion. The Council officer Rosemary Walsh gave evidence that it did comply.
2. She agreed that the skull was slightly rounded. However the other witnesses described the skull is rounded rather than flat.
3. I agree that the head is rounded and cannot be described as fairly flat. Brutus therefore does not comply with this criterion.

The muzzle is broad, deep and powerful with a slight taper to the nose and falls away slightly under the eyes. (figure 5)

1. Both of the Council officers gave evidence that the dog complies with this criterion, describing the muzzle as broad, deep and powerful with a taper to the nose and a visible fall away under the eyes.
2. Muir said that it did not comply because the muzzle was narrow where it was attached to the skull and that the nose was overly deep with no fall away under the eyes. Dr Choi agreed that there was fall away under the eyes but said that this trait carried little weighting as it was common to most canines. He described the muzzle as not being broad but narrow and tapering more than is described in the standard.
3. In considering this criterion, Dr Choi compared a photograph of Brutus with figure 5 in the standard. He said that in figure 5 it is possible to see the muzzle on either side of the nose. He said that when he examined Brutus this was not so. It was therefore put that there was not much tapering to the nose in figure 5 in comparison with Brutus head which had a significant taper.
4. A comparison of the photos tendered by all of the witnesses with the depictions in the standard together with the evidence of the Council officers satisfies me that Brutus complies with this requirement. The muzzle appears to be of very similar size and overall proportions to the muzzle in the visual depictions in the standard.
5. I consider that Dr Choi has adopted too restrictive an approach to the words "slight taper". His description of a "considerable taper" appears to me to correspond with the visual depictions in the standard.
6. Once again I reject Muir's use of the description "overly deep "to describe the muzzle. I reject Choi's suggestion that the fall away under the eyes carries little weight as it is common to most dogs. In making this comment Dr Choi is importing into the standard a consideration which does not appear in it.
7. I note also that Choi and Muir could not advance any suggestion that there was any expert or technical definition of the words broad, deep, powerful or slight. I have determined to apply the ordinary everyday meaning of these words in considering this criterion . In doing so I assess that meaning within the context of the visual depictions set out in the standard.
8. My conclusion is that Brutus complies with this criterion.

There is a deep median furrow reducing in depth from stop to occiput.

1. Three of the witnesses gave evidence that Brutus complies with this criterion. Both of the Council witnesses referred to a deep furrow reducing in depth from stop to occiput as did Colin Muir.
2. Dr Choi gave evidence that there is median furrow but it was not deep and that it disappeared midway to the occiput and did not extend to the occiput.
3. The applicant submitted that Dr Choi's evidence should be preferred because he gave evidence of having palpated the skull to determine exactly where the median furrow stopped as it could not be determined by sight.
4. I do not accept Dr Choi's evidence. The evidence of three witnesses is that they observed that the furrow extends to the occiput. I accept that this is not visible from the photographs tendered. I also accept the evidence of these witnesses that the furrow is properly to be described as deep.
5. To the extent that Mr Muir appeared in giving his evidence to have revised his opinion, saying in evidence that the median furrow finished before the occiput, I reject that evidence. It is inconsistent with the description in his report, which was prepared shortly after his examination of Brutus.

1. Both Council officers gave evidence that the cheek muscles were very prominent and free of wrinkles.
2. Mr Muir gave evidence that the cheek muscles were not evident that there were significant loose skin and wrinkling over the cheeks. Dr Choi also gave evidence that the cheek muscles are not prominent and did have wrinkles. Both Muir and Choi produced photographs in which wrinkles over the cheeks were displayed. Rosemary Walsh gave evidence that if the dog was turning its head that would create wrinkles, but that the dog in its usual position at rest did not display wrinkles in the cheek muscles. She made this comment in relation to Dr Choi's photograph 18 which is at paragraph 17 of his report. She pointed out that none of the photos she had taken showed wrinkles on Brutus.
3. I consider the difference in evidence between the evidence of the witnesses and the differences in the photographs is impossible for me to reconcile. I am unable to make a positive finding that the cheek muscles are free from wrinkles.
4. I find that Brutus does not comply with this criterion.

1. Each witness agreed that the lips were loose and I find that Brutus does not comply with this criterion.

Ears are set high on the skull, not large and half pricked or rose shaped(i.e. folding backwards exposing the inner burr of the ear. (figure 8)

1. In their reports, each of the witnesses agreed that Brutus complied with this criterion. However, when he gave his evidence Mr Muir said he had reconsidered his position. He said that on his reading of this criterion the criterion excluded ears that were rose shaped. He said that the ears were rose shaped and therefore the criterion does not comply. His reading was based on the word "not" applying not just to the word large, but also to the words half pricked and rose shaped.
2. I reject that interpretation of the criterion. It is inconsistent with every photo and line drawing in the standard.
3. I find this criterion proven.

The neck is of moderate length and with great strength, tapering from the head to the shoulders.

1. All witnesses were agreed that Brutus does not comply with this criterion and I find that Brutus does not comply with this criterion.

1. Dewlap is defined in the standard as loose pendulous skin under the throat.
2. Both the Council officers gave evidence that there was no dewlap visible under the throat. Both Council officers said that there was. Mr Muir described significant skin folds running over the cheeks and under the throat. Dr Choi described Brutus neck as having large amounts of loose skin.
3. Rosemary Walsh agreed that Dr Choi's photograph 23 on page 22 showed loose skin. There was a suggestion that the folds of skin in the applicants photos may have been caused by the dog being pulled on a lead from above. I am unable to be satisfied either way as to whether this is so.
4. My conclusion as to this is as with my determination as to wrinkling to the cheek. I consider the difference in evidence between the evidence of the witnesses and the differences in the photographs is impossible for me to reconcile. I am unable to make a positive finding that the neck is free from loose skin or dewlap.
5. I find that Brutus does not comply with this criterion.

Forequarters of the dog to have strong forelegs, well boned and muscular with elbows fitting close to the body. (figure 10)

1. Both Council officers described the dog as having strong thick well-boned forelegs with elbows fitting close to the body and complying with this criterion.
2. Rosemary Walsh said that she had felt the muscularity of the forequarters and that that this could be seen visually as well.
3. She disagreed that the elbows were turned out and said that this appeared to be so only because of the camera angle when Dr Choi's photograph 26 were shown to her. However she pointed out that photograph 27 did not show the same space between the elbow and the body wall.
4. Both Dr Choi and Mr Muir described the dog as having elbows held out from the body and not close-fitting. Dr Choi agreed that the forelegs were strong and well boned but described those components as being subjective in nature and not directly measurable or observable making them of lesser importance in the overall assessment of this subsection. He and Mr Muir described the dog as lacking well-defined musculature and muscle mass expected by the standard.
5. Council officers pointed out that the dog has been confined in close quarters since last August and therefore some wasting of muscle is to be expected.
6. In giving evidence as to this criterion, Mr Muir said that well boned referred to bone density; that is that the dog must be able to "take punishment". He pointed out that this breed of dog is used for dog fighting. He said that the bones must be of such density as to not be broken in the course of a dog fight.
7. Dr Choi gave evidence that well boned did not mean thick bones. He said it was an assessment of whether the bones were structurally sound and this could be done by feeling the bones.
8. He did however agree that this description did not refer simply to the width of the bones. A dog could be thin boned and still well boned. Accepting Dr Choi's, it seems difficult to see how one could tell just from observation whether a dog was well boned or not.
9. I also note that he conceded that there was no expert veterinary definition of what "well boned "meant.
10. I note that Emma Ellis said in cross-examination that well boned meant bones that are thick and dense. Clearly there is understandable confusion as to whether to describe a dog as well boned is a description of the thickness of its bones or something else.
11. However both Muir and Choi agreed with the Council witnesses that the dog was well boned and I accept that this description is accurate for the purposes of this criterion.
12. I accept the evidence of the Council officers that Brutus has strong forelegs and is well boned. Dr Choi agrees with those observations. I accept that the dog is also to be described as muscular. I accept that his muscularity may have suffered from being in close confinement since last August. Whether that is so or not, there are clearly different degrees in muscularity between dogs. My view is that both Choi and Muir applied too high a standard to their observations of muscularity. The photographs tendered by all witnesses showed significant muscularity.
13. I turn now to the question of whether the dog's elbows fit close to the body. Some photos show this to be true, some not. Dr Choi and Mr Muir gave evidence that the elbows were clearly not close to the body when photographed and observed by them.
14. The applicant relied upon the fact that Rosemary Walsh conceded that when shown a photo of Brutus that photo indicated the left front leg was marginally out from the body.
15. My determination is that although this may be the case on certain angles, I accept the evidence of the Council's officers that they observed that when at rest the elbows are close to the body. I consider the difference in the observation of the Councils and the applicant's witnesses is explained by the movement of the dog into different positions at the various times of observation.

The hindquarters are strong and muscular and are in balance with the forequarters. Thighs are well developed and muscular (refer to figure 11)

1. Both Council officers gave evidence that Brutus complied with this criterion. Dr Choi agreed. Mr Muir gave evidence that the hindquarters were weak with no apparent strength or musculature and thighs were underdeveloped for a dog of this size. He described the hindquarters as being narrower than the front and not in balance.
2. I consider Muir has based his opinion not on the standard, but on a comparison with " dog of his size " - that is an ideal dog, a show ring specimen or some other dog which he had in mind when making the comparison. He gave evidence that in his overall assessment under the standard he took the view that the words of the standard must be understood by reference to the way these words were used in dog shows generally. I consider that he has applied that approach to the examination of this criterion.
3. As I have said before this approach is not appropriate. The appropriate approach is to compare the words with the photographs and line drawings in the standard itself. When the photographs of Brutus are compared to the depictions in the standard, this criterion appears to me to be clearly met.

The tail is set in line with the back and tapers to a point. (figure 11)

1. Both of the Council officers gave evidence that the tail was set in line with the back tapering to a point. Colin Muir described the tail is being set low and not in line with the back. Dr Choi described the tail as tapering to a point and not set in line with the back but set in line with lower than the level of the back.
2. One can readily see the difficulties posed to anyone who attempts to make an assessment of whether a wagging tail is set in line with the back of a dog. It is perhaps easier to see whether it tapers to a point, and each of the witnesses agreed that it did so.
3. Muir's evidence was that when the dog is seen from the side, the tail is not set in line with the back, as it commences at a point below the natural curve of the dogs back.
4. I could discern no difference between the point of commencement of the tail on the photographs of Brutus submitted by the applicant, and the visual representations in the standard.
5. I accept the evidence of the Council witnesses, together with the photos provided by all the witnesses, as showing compliance with this criterion.

The length of the tail should reach approximately the hock joint. (figure 12.

1. Both of the Council officers gave evidence that the tail reached the hock approximately. Colin Muir gave evidence that the tail length was roughly level with the hock. Dr Choi's evidence was that at rest that the tail was higher than the position as required by the standard and did not reach the length of the hock joint.
2. In my view the evidence of the Council witnesses and Choi is to be preferred. Photos showing the tip of the tail at a higher level are of limited value, given that it would be very rare to be able to photograph a dog with its tail completely still. I consider Choi has set the bar too high. The word "approximately" allows for a degree of flexibility.
3. The applicant criticised Ellis and Walsh for reaching their conclusions after holding the tail of the dog down to compare it with the position of the Hock. Both conceded they had taken no photograph of doing so and also that the line drawing in the standard does not show the tail being held down.
4. I reject those criticisms. The criterion is clearly described in the standard. I accept that there are practical difficulties in ascertaining whether the tail reaches approximately to the hock joint if the tail is moving. In my view it is perfectly acceptable for the tail to be held if it is moving so that the appropriate observations can be made. I note that Mr Muir also agreed that the tail length was roughly level with the hock and that he considered Brutus complied with this criterion.
5. My conclusion is that this criterion is established.

The coat is short, smooth, glossy and of a harsh texture free of undercoat.

1. Both Council officers described the coat as short and smooth with no undercoat. Rosemary Walsh described the coat as glossy and harsh textured. Emma Ellis described the coat as smooth but with a harsh texture. Colin Muir also described the coat is short glossy and harsh.
2. The only witness who did not agree that this criterion was met was Dr Choi who described the coat as short smooth glossy and free of undercoat. However he also described as not being of a harsh texture.
3. In cross-examination, Walsh described having run her hand over the coat and found it to be smooth along the grain but harsh when she ran it against the grain. I understand the applicant's argument to be that this diminishes the value of her observation that the coat was smooth.
4. It is true that there is nothing in the standard which says whether the harshness of the coat should be determined by running a hand along the grain or against the grain.
5. I fall back on the observations of the Minister in the second reading speech to which I have earlier referred. This standard is in my view to be interpreted on a commonsense basis. It is not to be interpreted on the basis of fine distinctions. In my view the commonsense interpretation of the words harsh texture, is that is the texture felt by running the hand along the grain of the coat.
6. I acknowledge that questions of harshness or smoothness are very subjective. There is nothing in the depictions in the standard which helps me. I deliberately decided not to run my hand over the dog to make my own assessment. Doing the best I can as to this criterion, I have determined to accept the evidence of the three witnesses who described the coat as smooth and reject Choi's assessment of it as harsh.
7. I have therefore determined that Brutus meets ten of the criteria set out in the standard and described as physical characteristics criteria. This means that I must continue on to consider the supplementary characteristics criteria set out in the standard.

SUPPLEMENTARY PHYSICAL CHARACTERISTICS CRITERIA - MUST MEET NOT LESS THAN 10 OUT OF 19.

1. The next stage is analysing the supplementary physical characteristics criteria set out in the standard. There are 19 of these criteria and Brutus must meet not less than 10 of them. All witnesses agreed that his body had a deep chest of moderate width and that the forechest did not extend far beyond the point of shoulder or below the elbow and further that the footpads are hard and well cushioned, the nails are strong, and that at rest the tail is carried low and when excited may be carried raised. All witnesses also agreed that the eye rims of the same colour as the skin colour.
2. This makes six of the supplementary criteria as being agreed on by all witnesses, and I shall not dwell further on these six criteria. This means that the Council must demonstrate that Brutus meets at least four more of these physical characteristics criteria.

Nose is large with wide open nostrils and may be of any colour.

1. Both Council officers described Brutus' nose as being large with wide open nostrils and complying with this criteria. Colin Muir agreed that this was the case. Dr Choi described the nostrils as being narrower and not typical of an American Pit Bull Terrier. He said that the nose structure was very similar to that of a Dogue de Bordeaux. He said that the proportion of nose width to skull with would be significantly less than expected by the standard and he gave a calculation that dogs within the standard would generally have a nose to skull width of 1 to 3 whereas Brutus is 1 to 4.
2. He was asked to compare a photograph of Brutus nose with the figure 13 in the standard. Although he disagreed, I find that the image of Brutus nose in the photographs exhibited very closely match the nose depicted in the standard.
3. I note Choi has purported to compare the nose and nostrils to a typical American Pit Bull Terrier. Putting aside his lack of demonstrated expertise in American pit bull terriers, there is nothing in the standard justifying the making of this comparison. When he was cross-examined on the basis for this comparison, he said he had made it after looking at photos on an American Pit-bull terrier website.
4. I note in relation to this criterion that Rosemary Walsh was criticised in the applicant's submissions for describing Brutus' nostrils to be wide and when asked on what basis she said that, saying that they were wide enough to allow air in and out. I presume the basis of this criticism was that this was a self evident observation, applicable to all dogs, and revealing her lack of expertise in this area.
5. However Muir gave evidence that there is a particular issue with the width of the nostrils of an American pit bull terrier. He said that this dog being bred to attack other dogs, needed to have nostrils which were wide enough to allow it to breathe easily whilst it was simultaneously biting another dog or holding it with its jaws.
6. Seen in this context, Rosemary Walsh' observations make perfect sense.
7. I find that Brutus conforms to this criterion.

Eyes are medium in size rounded in shape and set low in the head and are not prominent.

1. Both Council officers described the eyes as complying with the standard. Colin Muir described the eyes as being almond shaped and set mid skull above the line of the muzzle. He agreed that they were not prominent.
2. Dr Choi described the eyes as being medium in size and not prominent but he described the eyelids as being more almond shaped than round.
3. Each of the witnesses agreed that in considering the eyes, what was to be considered was not the eyeball itself, but the area of skin or aperture around the eyes. I accept that this is so.
4. There is a clear conflict in the evidence as to whether the dogs eyes, - that is the area of skin or aperture around the eyes- is round or almond shaped.
5. I am conscious of the observation of Rush J in Brimbank as follows

"It is not the role of the senior member to look at photographs and form his own opinion in circumstances where the Tribunal had the benefit of expert evidence. The statement of the senior member that the eyes "were more rounded than what one normally sees in these matters" indicates that the senior member had regard to an irrelevancy, to evidence not raised or discussed in the hearing before him, a matter not put to witnesses called....Finally why the senior member would substitute his own untrained opinion to that of a qualified vet is unexplained in the reasons."

1. This paragraph read superficially may be said to require me to accept the evidence of Dr Choi that the eyes are almond shaped.
2. I also note that this paragraph appears to have been endorsed by Justice Rush in Grey where he said this.
3. "Whilst the comment of His Honour did not apply to the standard as it concerns eyes, in my opinion, the comments are apposite to the matter before me."
4. However, I have set out my reservations about the expertise of Dr Choi and Mr Muir. I have received no information as to any of the witnesses' expertise in ascertaining the shape of a dog's eye. Indeed, it is hard to see how such expertise could exist. All witnesses agreed that this criterion referred not to the eye itself, but to the eye socket - the rim of skin surrounding the eye. This is not hidden in any way - it is simply a matter of observation as to what shape this rim is and comparing it to the photographs and line drawings in the standard.
5. It was put to the applicant's witnesses that what they described as almond shaped was in fact identical to the drawings in the standard. Although they denied this, it seemed to me that this was plainly the case.
6. Dr Choi relied on a reference to a text entitled "Canine Terminology" by Harold R Spiva, in which round eyes were defined as eyes set in circular shaped apertures.
7. This begs the question as to what circular shaped means.
8. I place great weight in determining this issue on the visual representations of the eye aperture in the standard. I accept the evidence of the Council witnesses, and the photographs tendered by each party, and conclude that the eyes are round in the way this word is used in the criterion.
9. Brutus complies with this criterion.
10. I also find it established by the evidence that the eyes are medium size, set low in the head, and not prominent.

Neck has a slight arch over the crest - figures 1 and 2.

1. Emma Ellis observed that there was a slight arch over the crest of the neck, and Dr Choi also agreed.. Both the Council officer Rosemary Walsh and Colin Muir disagreed. Rosemary Walsh said she was unable to determine this because the neck was on the short side and Colin Muir also described the neck is being short and thick with no evidence of an arch over the crest.
2. I am not satisfied as to the presence of this criterion.

The forelegs are set moderately well apart and in a straight line to the ground. (figure 14)

1. Both of the Council officers described Brutus in the terms of this criterion. Colin Muir agreed that the forelegs are moderately well apart. However he said that the leg from the wrist through to the pastern sits forward and outward, thus not forming a straight line to the ground. Dr Choi also gave evidence that the right leg splayed outward resulting in the forelegs not being a straight line to the ground. He also said that the front legs were not set moderately apart. He described the front legs as being narrower set than required by the standard.
2. Emma Ellis agreed in cross-examination that the dog should be standing square when assessing this criterion. She agreed that he did appear to be standing square in various photos she was shown taken by Dr Choi. However she maintained that her observation was that when standing square the forelegs were set well apart. Rosemary Walsh agreed in cross-examination that one of the photos showed the left legs slightly turned out. However her evidence was that her observation when she examined Brutus was that the forelegs were set moderately apart and in straight lines.
3. Dr Choi made various criticisms of the photographs taken by the Council witnesses on this issue, saying that a side view photograph would not show the elements of this criterion.
4. I am left then with a clear conflict in evidence between the applicant's witnesses and the respondent's witnesses. I am unable to determine from the evidence before me whether Brutus complies with this criterion.
5. The burden of proof is on the respondent. I find that Brutus does not comply.

The legs straight with some flexibility in the pasterns. (figure 14)

1. Both Council officers described the legs straight until the pasterns, where there is some flexibility. Rosemary Walsh described strong flexible pasterns, as did Emma Ellis.
2. Dr Choi gave some evidence as to what flexibility in the pasterns means. He said that a flexible pastern means that when the leg is picked up and flexed, the act of flexing is not restricted. He said that all dogs should comply with this regardless of the breed. If the pastern was not flexible, then this would mean that there was some disability in the dog's leg, such as arthritis.
3. I accept that Dr Choi is qualified as an expert to give this opinion and I accept this opinion as a basis of my consideration of the issue of what a flexible pastern is.
4. Dr Choi agreed that there was some flexibility in the pasterns. Mr Muir said that the pasterns had little flexibility. He said that he understood this to mean that the pastern should be able to display and allow movement and that Brutus' pasterns do not.
5. In this respect I note Emma Ellis and Rosemary Walsh gave evidence that there was flexibility in the pasterns, but their answers about what that term meant were in my opinion uninformed. Emma Ellis suggested that flexibility meant that the pasterns were not completely straight, and Rosemary Walsh suggested that flexible pasterns meant a pastern that was strong and causes the dog to sit higher on its toes rather than being flat-footed.
6. As I have said, I accept that this is an issue of expert evidence and I accept Dr Choi's evidence that there is flexibility in the pasterns.
7. The further part of this criterion is that the legs are straight. Both Council officers described the dog's legs as straight. Muir described the leg from the wrist through the pastern to the foot sitting forward and outward and therefore not forming a straight line to the ground. Dr Choi also said that the right leg was not straight. I was referred to several photographs taken by him which showed this to be the case.
8. On the other hand, photographs taken by the Council officers show the legs to be straight.
9. Once again, there is a conflict in the evidence of the witnesses. I am not able to decide between that evidence.
10. Given that the Council carries the onus of proof, I find that Brutus does not comply with this criterion.

1. Both of the Council officers described the dogs within the terms of the standard. I note in passing that all of the witnesses and Council have presumed that the criterion should read the dog has a well ribbed back with moderate tuck up rather than the dog is well ribbed back with a moderate tuck up. I have considered this criterion as if that were the wording.
2. Rosemary Walsh gave evidence that the dog did have a well ribbed back but as I have earlier observed she thought that that term meant that it has all its ribs and that all dogs would have a well ribbed back unless the dog had too many or too few ribs.
3. I reject her definition as being inappropriate and inadequate.
4. Emma Ellis said that the dog was well ribbed and she defined that term as meaning ribs extending back to where the loin begins. Dr Choi said that the word well ribbed was not a term known to veterinary science, and that he had ascertained its meaning by talking to various unidentified show judges.
5. He based his opinion upon presuming that the word meant that the dog had a long rib cage in comparison to the body length. Mr Muir also said that the dog was not well ribbed and he said that well ribbed referred to the length of the rib cage, although it was not clear to me as to the basis on which she express that opinion.
6. I was not satisfied with the description of the word well ribbed given by any of the witnesses. None of them appear to have the appropriate expertise to be able to explain that term to me.
7. The consequence of this is that I am unable to be satisfied whether or not Brutus is well ribbed.
8. I therefore find that Brutus does not comply with this criterion.

The back is broad, strong, firm and level and with a slight incline at the withers. (figure 17)

1. Both Council officers described the dog in the terms of this criterion.
2. In cross-examination Emma Ellis said that firm meant firm to the touch and that a dog without a well-muscled back- that is a dog with fat over its back- would not be firm to the touch. She said that she had learnt from her own experience how to distinguish between muscles and fat.
3. Her evidence about this was I note confirmed by Dr Choi when he said that the dog's back must be palpated to see whether it was firm and that fat needed to be distinguished by touch from muscles. This appears to be exactly what Ellis did. Dr Choi said that he did this and, like Ellis, he also found the back to be firm. Muir agreed that the back was firm as well.
4. Ellis also said she had tested the back was level by putting a dog biscuit on Brutus' back on the biscuit did not fall off.
5. Muir said that the back of the dog was overly broad and that it had a relatively steep incline at the withers and roaches over the loin into the buttocks.
6. Dr Choi described the back as being broad firm and strong. He agreed that the incline at the withers was consistent with the criterion. He however said that Brutus did not comply with this criterion because the back was not level.
7. Whether the back of the dog is level seems to me to be not an issue of expert evidence, but an issue of observation. The photographs and line drawings in the standard do not display a perfectly level back. This is the case whether the back is treated as being the portion which is described as the back on the line drawing accompanying figure 17 and figure 1, or whether the back is treated as a general term covering the back loin and croup.
8. I consider that both Choi and Muir have taken an unduly restrictive approach to the question of whether the back is level. The photographs produced to me when compared with the photographs and line drawings in the standard appear identical. I accept the evidence of the Council witnesses that the back of the dog is level.
9. Brutus complies with this criterion.

The loin is short and deep with a slight slope to the croup. (figure 17)

1. The Council officer Rosemary Walsh gave evidence that Brutus complies with the standard although she agreed that the croup dropped off. The other Council officer Emma Ellis agreed with the applicant's witnesses that Brutus does not comply with the standard as he had more than a slight slope to the croup. Colin Muir described Brutus is having a short overly deep loin without a slope to the croup. Dr Choi described Brutus as having a short loin but said that his depth and croup angled do not meet the standard.
2. I have determined to accept the evidence of the three witnesses Walsh, Choi, and Ellis that Brutus has more than a slight slope to the croup.
3. Therefore Brutus does not comply with this criterion.

The hock joint should be well bent and the rear pasterns close to the ground perpendicular and parallel to each other. (figure 18)

1. Both the Council officers described Brutus in terms of this criterion. Colin Muir agreed that the hock joint was reasonably well bent and that the pasterns were perpendicular but he said that the dog was cow hocked and as a result the pasterns were not parallel. Dr Choi said that the pasterns were not parallel to each other or perpendicular to the ground and that the dog did not have well angled hocks.
2. Mr Muir described cow hocked as meaning that looking from the rear view, the hock on one or other side splays out. That is that the hocks do not look perpendicular or parallel.
3. The photographs tendered in evidence appear to show this cow hock prominently on the right back leg.
4. I have determined to accept the evidence of the photographs, combined with the evidence of Muir and Choi.
5. Brutus does not comply with this criterion.

The feet are round and in balance with the size of the dog, well arched and tight. (figure 19)

1. Both Council officers described Brutus in terms of this criterion. Colin Muir disagreed because he described the dog as being reasonably flat-footed with splayed toes. Dr Choi described the dog's feet as ovoid -that is oval shaped and not round as required by the standard. He also gave evidence that his view was that the front feet are big for the size of the dog and the front feet lack significant arching. He agreed that the back feet were well arched and that the hind feet were in balance with the size of the dog. He described the toes of the dog as tight.
2. In cross-examination Emma Ellis said that she took the word round feet as meaning that the feet were not splayed. She said that she did not believe the standard required perfectly round feet.
3. Once again it appears to me that the question of whether the feet are round or not is a matter of observation, to be determined on a commonsense basis.
4. The determination of the Council officers of the feet were around appears to me to correspond with all of the photographs tendered in evidence seen in comparison with figure 19, which is the photograph and line drawing to which this criterion relates.
5. I find that Brutus does comply with this criterion.

White feet with a splash of white on the chest on solid coloured dogs.

1. Rosemary Walsh did not give evidence at all about this criterion in her examination in chief at. She appeared to be confused as to whether the standard required white feet.
2. Counsel for the applicant emphasised that when she was cross-examined Walsh appeared to say that if the standard required white feet, Brutus did not comply. However it appeared to me that when she was cross-examined about this she had no clear recollection of this issue, as she had not grappled with it during her examination of Brutus. She gave confused evidence about this issue. I put aside her evidence for this reason.
3. Emma Ellis gave evidence that she observed a white splash on the chest and white on the back of each of the feet.
4. Colin Muir agreed that the dog had white on each foot a splash of white on his chest. In his written report he conceded that the dog did comply with this criterion. However when he gave his evidence before me he said that he had changed his mind. His view now was that the dog needed to have feet which were totally white, rather than just some white on the back.
5. This appears to be the same position taken by Dr Choi.
6. Each of the applicant's witnesses was shown the photographs which clearly displayed some white on each foot and the white splash on the chest.
7. In my view there is no reason to import into this criterion a suggestion that the dog's feet must be totally white.
8. I conclude that Brutus complies with this criterion.

Arches over the eyes are well-defined but not pronounced.

1. Both of the applicant's witnesses gave evidence that the arches over the eyes were well-defined and not pronounced. Rosemary Walsh agreed with this. The Council officer Emma Ellis gave evidence that this did not comply in that the arches over the eyes were pronounced.
2. This criterion calls for the application of a very subjective criterion. It is significant in my view that each of the applicant's witnesses agreed that Brutus complied with it.
3. None of the photographs produced give me any assistance in evaluating this issue for myself, and the visual aids in the standard are also of not much assistance.
4. I have determined to accept the evidence of Choi, Muir and Walsh. I accept the presence of this criterion.
5. This means that I have identified twelve of the Supplementary Physical Characteristics as applying to Brutus.
6. Having made that finding, there are no other steps set out in the legislation required of me. In particular, in applying the new standard I have no obligation to take any further observations or steps before reaching the conclusion that Brutus is a restricted breed dog. The conclusion that he is follows naturally from the identification of the requisite characteristics.

1. My conclusion is therefore that Brutus is a restricted breed dog, namely an American Pit Bull Terrier.

1. I expect that there will be many more of these applications under the Act.
2. It is regrettable that the process requires a great deal of detailed and difficult analysis. I make no comparison between the new and old standards. However I observe that in deciding these cases, an extraordinary amount of detailed analysis and argument about various aspects of a dogs anatomy is required.
3. In my view it is unlikely that the new standard has reduced uncertainty, either for owners or councils, as to what constitutes a dangerous dog, or that it will lead to reduced costs or reduced time spent in determining applications under the Act.
4. I make this further comment. The legislation requires Tribunal members to make difficult distinctions about the bodily features of a dog based on loosely defined criteria. The task is not made any easier by being confronted with cases when the persons held out as experts on each side cannot even agree on basic measurements or proportions which underpin the application of the standard, or where the evidence presented appears to muddy the distinction between evidence of observation and truly expert evidence.
5. This Tribunal expects that expert witnesses called on to give evidence in these cases will be able to clearly demonstrate their area of expertise, as opposed to that part of their evidence which is merely evidence of observation. If the witness claims particular expertise, the Tribunal expects that such a witness should clearly identify the basis of that expertise, concede areas of substantial agreement and offer robust and impartial opinions and observations.
6. Finally, my opinion is that this jurisdiction calls out for a procedure whereby all witnesses are required to examine the dog simultaneously and put in a joint report to the Tribunal. Issues of significant dispute may then be able to be dealt with by the Tribunal in a more cost effective and efficient way.