The respondent relied upon the evidence before the original decision-maker, namely witness statements and medical evidence as to the severity of the incident, to support its argument that Rambo is an unduly dangerous dog and that the issue of a destruction order is the correct or preferable decision.

• I am satisfied for the purposes of s 51(a)(i) on the established facts and circumstances of this case that Rambo is an unduly dangerous dog;
• The criterion under s 51(a)(ii) has been satisfied in relation to Rambo;
• There is no preferable decision other than to affirm the dog Destruction Order.

I am satisfied that the dog Destruction Order is the correct and preferable decision and should be affirmed.

Administrative Review - Dog and Cat Management Act 1995 - Review of a decision of a council or Board to issue a destruction order - Unduly dangerous

Dog and Cat Management Act 1995 ss 7, 44, 50, 51, 60, 72, 86

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

Aldridge v Whyalla City Council [2020] SACAT 13

Ash v City of Burnside (District Court unreported judgement delivered 3 March 2016)

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

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

Tester v District Council of Yankalilla [2022] SACAT 23

Mr J Napier with Mr M Woon, Norman Waterhouse Lawyers, appeared for the respondent

1. Rambo is a two-year-old un-desexed male Tibetan Mastiff dog registered in the name of the applicants.
2. In summary, on 22 September 2023, it is alleged that the dog escaped from the premises where it was usually kept (the applicants' home) ran across the road and attacked and bit a child who was riding her bike alone along the footpath. The child tried to cycle away but the dog chased her and bit her again on the leg when she fell off her bike. The child sustained very serious injuries to her right arm and right leg. The injuries to the child's arm required her to be hospitalised for surgery and skin grafts. These facts are not in dispute.
3. The incident was investigated by the respondent Council, the City of West Torrens. Numerous witness statements were obtained. The statements revealed that shortly after the dog had attacked the child it jumped onto and pushed an adult male off his bike, although that person apparently managed to escape unharmed (he was not identified or interviewed as part of the investigation).
4. Immediately after the incident the dog was located and detained under s 60 of the Dog and Cat Management Act 1995 (the Act). The Council issued a notice of intention to issue a Destruction Order to the applicants. The applicants sent a submission to the Council seeking that the Destruction Order be set aside; they proposed a lesser type of order and indicated that they would rehome the dog. However, on 16 October 2023 a delegate of the Council decided to issue a Destruction Order regarding the dog under s 50(2) of the Act.
5. The Destruction Order referred to the incident on 22 September 2023 and indicated that the child had sustained four bite wounds to her arm and two superficial wounds to her right thigh. The Order required that the dog be destroyed within one month of the date of the Order (by Wednesday 15 November 2023).
6. The Destruction Order was subsequently stayed until further Order by the Tribunal (by consent of the Council). The dog is currently held at boarding kennels at Kip Pet Boarding, Adelaide.

1. Under s 72 of the Act the applicants are entitled to seek a review of the Order in the South Australian Civil and Administrative Tribunal (SACAT). The proceedings are heard in the review jurisdiction of SACAT and are governed by s 34 - 38 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act).
2. The Tribunal is required to have regard to the evidence that was before the decision maker. The respondent produced a booklet containing that evidence (tendered and marked R1), along with the delegate's Statement of Reasons (R3).
3. The respondent also tendered the "Incident Severity Scale Guideline" (R2), a booklet produced by the Dog and Cat Management Board and available on its website.
4. The applicants are entitled to adduce additional evidence and the Tribunal has the discretion to permit this to be placed before the Tribunal on the review. In this case I admitted into evidence four photos of the rear of the applicants' premises depicting a caged area with a concrete floor and a padlocked door (A1).
5. I also admitted a letter from Ms M Beckett, Assistant Manager of Kip Kennels Adelaide North, dated 4 March 2024 (A2); a report from Tenelle Rosser - Behaviour Trainer with 'Pawly Understood', Veterinary Behaviour and Pet Psychiatry Services, dated 28 February 2024 (A3) and; a bundle of photos and videos filed with the Tribunal on 26 April 2024 depicting photos and videos of the dog playing with Ms Beckett at Kip Kennels plus photos of the proposed dog housing area at the rear of the applicants' premises and at industrial premises at Wingfield (A4).
6. The Tribunal is required by s 34(4) of the SACAT Act to give appropriate weight to the decision of the original decision-maker. As I have received quite a bit of additional evidence on review, that was not available to the decision-maker I consider that I should consider the matter afresh without giving much weight to the original decision of the Council's delegate. However, I do place weight on the submissions of the Council as to the exercise of the discretion in this case regarding the request to reduce the order to a Control (Menacing Dog) Order or some other type of order. The Council has considerable expertise in this area and considers many different scenarios involving many different types of dogs; its views are highly relevant in this respect.
7. I am required to conduct a review on the merits and reach the correct or preferable decision.

1. The Tribunal needs to be satisfied that the facts have been proved to its satisfaction on the balance of probabilities. The respondent was asked to present its case first and the applicants made submissions in reply and gave brief oral evidence.

1. The Victim is 12 years of age. I accept the contents of her witness statement in full. The child was riding her bicycle on Harvey Avenue, having just turned left from Fletcher Street (the street where the applicants reside) when she was approached by Rambo (a large black dog) at about 5 pm on Friday, 22 September 2023. There is no dispute that the dog in question was Rambo (this is confirmed by all the other witnesses including by the applicants' next-door neighbour who knows the dog).
2. The dog was not in the company of any person. It was later ascertained that the dog had pushed its way through a hole in the fence on the property owned by the applicants.
3. I find that the dog was 'wandering at large' within the meaning of s 7 of the Act.
4. The child rode her bike a few meters along the footpath on Harvey Avenue (two streets away from the applicants' premises) when she saw the dog on the footpath. She stopped and remained still and quiet; I accept that the child did nothing at all to provoke, scare or antagonise the dog. The dog silently watched the Victim, before approaching her on her right side. The Victim was still standing motionless on her bicycle when the dog jumped up and bit her on her right arm causing very serious injuries to her arm. The Victim began pedalling her bicycle, but she lost control of her bicycle and she and the bicycle fell to the ground. The Victim got back up, but by this time the dog had caught up to her. The dog bit the Victim a further time on the thigh area of her right leg.
5. The child began screaming after the dog first bit her on the arm. This has been variously described by witnesses as "a gut-wrenching scream"[1] and "a terrible scream".[2]
6. I accept the evidence from the child Victim about the incident in its entirety.
7. The Victim ran to a neighbouring house to seek help, with the dog still following her. A neighbour, Mr J Sandford, heard a child screaming outside of his house followed by "frantic knocking" at his door. Mr Sandford assisted the child with her injuries (she was bleeding profusely from her arm) and rang an ambulance and the child's mother. When he opened the door Mr Sandford saw the dog standing on the footpath at the end of his driveway "watching us". He recognised the "big, black dog" as a dog from a nearby street that "would bark at me when I walk down the street".[3]
8. Ms V Ritter gave a statement. She lives in the street where the incident occurred. Ms Ritter heard a child screaming on the date of the incident and looked out of her window where she saw a dark coloured dog near a child, who was on the ground. She saw the child get up and run away, screaming, with the dog chasing her. She said the dog made no noise. She went outside and picked up the child's bicycle. She observed blood on the ground and on the bike. She later spoke to the police. I accept Ms Ritter's evidence in its entirety.
9. Ms A Capoccia gave a witness statement. She lives next-door to the applicants and was acquainted with the dog, Rambo. She says that on 22 September 2023 at or around 10:00 am a postman attended at her door and told her 'I can see the dog next door through the fence' (the implication being that there was a hole in the fence). She did not see the dog at this time. Later that same day, between 4:00 pm and 4:30 pm, she went out the front of her property and heard the dog barking and saw it had pushed a fence panel out. She told the dog to go inside, and it did. She attempted to ring the applicants, but no one responded. She saw the dog's head was poking through the fence again. With her daughter's assistance, they placed bins against the fence panel and did not hear the dog again. She later learned from a neighbour that the dog had escaped and had attacked someone.
10. I accept this witnesses' evidence, which is uncontradicted.
11. Ms W van Rensburg gave a witness statement. She says that on 22 September 2023 at or around 5:15 pm she returned home to Harvey Avenue and approximately five minutes later heard a terrible scream. Ms van Rensburg looked out of her front window and saw a young girl wearing a pink top running along the road with a large black dog jumping up against her. She went out to her front garden and was speaking to her neighbour, but they could not see the girl. She then saw the same big black dog running in the middle of Harvey Avenue and recognised it as a dog from a house in Fletcher Street. She then saw this dog approach a male person (who she could not identify) riding a bicycle and push him off it. The witness said she saw the man get up after being pushed off his bike and ride away in the opposite direction.
12. I accept this evidence, which is uncontradicted.

1. I have medical evidence before me, together with photographs of the child's injuries pre-surgery and post-surgery. This is decisive and uncontradicted evidence which establishes to the Tribunal's satisfaction that the child had four (4) dog bite wounds to her right forearm with extensive avulsion (removal or tearing back) of the skin and two (2) superficial laceration type wounds to her right thigh.
2. The child required surgery to her right forearm with numerous stitches placed on the significant injury to her arm, with some stitches also placed on her thigh wound. I have no doubt, based on the photos of the injuries, that the child will be left with very significant and extensive scarring, particularly on her right arm. The child had her arm in a splint for four weeks after the surgery and required hand therapy for some weeks afterwards.
3. There is no psychological evidence before the Tribunal, but I am well satisfied, due to the evidence about the nature of the attack, the eyewitness accounts of the child's distress and the extent of the injuries, that the child was significantly traumatised because of the incident and is likely to have ongoing emotional or psychological issues.

(c) The applicants' submissions about the facts

1. The applicants were unrepresented and did not call any contrary evidence as to the facts. Neither of them witnessed the incident and they did not require any of the witnesses to be called for cross examination. In submissions they indicated that the facts (in the main) were not in dispute.
2. The applicants said that Rambo was two years old at the time of the incident, was not desexed, had been taken to puppy training when they first purchased him from a breeder, but there had been no further training. They said the dog was walked about two to three times per week.
3. They admitted that the dog escaped from the premises on 22 September 2023 by pushing through a rusty area on the fence on the perimeter of their house. Mr Hurrell was inside his home at the time of the incident taking a shower. Ms Valente was not at home. They lived in the home with their 10-year-old daughter.
4. The applicants said the dog had not previously been aggressive towards people, although it had shown some aggression towards smaller dogs when provoked at the dog park on occasions (although there was no suggestion that Rambo had ever attacked another dog). They had previously taken Rambo to children's soccer games where the dog was exposed to many other adults and children, and he had not displayed any aggression towards anyone previously.
5. Mr Hurrell agreed that Rambo was a large, strong breed of dog and would be over six feet tall if standing on his hind legs.
6. The applicants could not explain the dog's behaviour on the 22nd of September. They speculated that Rambo may have been teased or provoked by other children passing their property prior to this incident (although they were not suggesting that the Victim was involved in any alleged teasing or previous provocation of the dog).
7. No evidence was put before the Tribunal to support the suggestion of prior provocation of the dog by other children. There is absolutely no evidence to support this submission and I am unable to make any findings that any previous incident involving children teasing the dog has occurred.
8. Mr Hurrell also submitted that the child had only been bitten twice in total, not four times as alleged by the respondent. He said that only two bites had been discussed with the respondent's solicitor in conversations before the hearing.

1. I accept the uncontradicted evidence placed before the Tribunal by the respondent in the various sworn witness statements and the medical evidence (detailed above). Each witness's testimony is probable, inherently reasonable, and in most cases corroborated.
2. The medical evidence and photographs of the child's injuries are decisive as to the number of bites inflicted by the dog (four on the child's arm and a bite to her thigh area) and the extent of the injuries to the child's arm and leg; I accept that evidence.
3. I conclude that this was a vicious, very serious, completely unprovoked attack on a young child in a public place resulting in very severe injuries. The child was acting at the time like any other member of the public might act. In fact, at the time of the attack she was standing silently and motionless on her bike on the footpath.
4. I am satisfied that the dog was wandering at large before and after the incident involving the child. I find that shortly after the incident the dog approached and pushed another person off his bike before it was restrained and then detained.

The Dog and Cat Management Act

1. The stated objects of the Act are to encourage responsible dog and cat ownership, to reduce public nuisance caused by dogs and cats, and to promote effective management of dogs and cats.
2. This is to be achieved by a scheme of "Destruction and Control orders". I set out s 50 and s 51 of the Act in their entirety:

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

(a) a Destruction Order;

(b) a Control (Dangerous Dog) Order;

(c) a Control (Menacing Dog) Order;

(d) a Control (Nuisance Dog) Order;

(e) a Control (Barking Dog) Order.

(2) A Destruction Order requires -

(a) the dog to be destroyed within the period specified in the order (but not less than one month after the date the order takes effect); and

(b) the dog, until destroyed, to be kept or detained at a place specified in the order (or at some other place subsequently approved by the council or the Board (as the case requires)).

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

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

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

(c) the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or for the premises to be fenced so as to prevent the dog escaping from the premises; and

(d) the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that the wearing of a collar would be injurious to the health of the dog); and

(e) the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier -

(i) to have a muzzle securely fixed on its mouth capable of preventing it from biting any person or animal; and

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

(f) warning signs (complying with the requirements of the Board) to be prominently displayed at all entrances to premises where the dog is usually kept warning people that a dangerous dog is kept on the premises; and

(g) the dog or the person or both to undertake such approved training courses as may be specified in the order; and

(h) all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.

(4) A Control (Menacing Dog) Order requires -

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

(b) the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or for the premises to be fenced so as to prevent the dog escaping from the premises; and

(c) the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that the wearing of a collar would be injurious to the health of the dog); and

(d) the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier -

(i) to have a muzzle securely fixed on its mouth capable of preventing it from biting any person or animal; and

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

(da) the dog or the person or both to undertake such approved training courses as may be specified in the order; and

(e) all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.

(5) A Control (Nuisance Dog) Order requires -

(a) the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or for the premises to be fenced so as to prevent the dog escaping from the premises; and

(b) the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier, to be under the effective control of a person by means of physical restraint; and

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

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

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

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

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

(7) In this section -

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

51 - Grounds on which orders may be made

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

(a) in the case of a Destruction Order -

(i) the dog is unduly dangerous; and

(ii) the dog has attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against this Act; or

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

(i) the dog -

(A) is dangerous; and

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

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

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

(i) the dog -

(A) is menacing; and

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

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

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

(i) the dog -

(A) is a nuisance; and

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

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

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

(i) the dog is a nuisance; and

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

The criteria for making a dog Destruction Order

1. As indicated above, there are two criteria in s 51(a) of the Act which must be established before a dog Destruction Order can be made:

(a) The dog is unduly dangerous; and

(b) The dog has attacked, harassed or chased a person, animal or bird, owned by or in charge of a person in circumstances that would constitute an offence against the Act. (Emphasis added)

What is the proper interpretation of an "unduly dangerous" dog?

1. In Hastwell v The City of Holdfast Bay,[4] Judge Slattery referred to the various types of orders that can be made under ss 50 and 51 and observed that the grounds upon which orders can be made are deliberately broad. In that case his Honour stated.

The factual circumstances arising under a consideration of each of those subparagraphs will, quite obviously, be different (in the usual course) because of the different types of orders that the council may make in the exercise of its discretion. I say 'in the usual course' because it being an assessment by the council based upon the whole of the circumstances of the case, there will be cases where in largely similar circumstances, the discretional judgment of the council will be different.[5] > > ... > > This approach is entirely consistent with the existence of the discretion reposed in a council under the wording of the legislation. As in all such cases, it is not appropriate to attempt to formulate a list of criteria or particular characteristics that must be satisfied or identified before a decision may be made in a particular case. The appropriate approach is to have regard to matters that are properly described as considerations which, in a particular case, may assist to inform the judgment of a decision maker.[6] > > Matters that the council may have identified as considerations that may inform its decision about any dog...may include: the particular breed and species of the dog; whether following a particular event there has been intervention in relation to the dog and if so the response (including the failure to respond) to the intervention; the health of the dog and its environment; the measure (if any) that may be made of the dog's predictability or unpredictability; the dog's antecedent history or, conversely, the absence of any knowledge of its antecedent history; the level of aggression displayed by the dog; the 'sociability' of the dog; the lability (if any) of any attitude or mood of the dog; whether and if so to what extent there has been any escalation of the aggression displayed by the dog; the nature of the harm caused by the dog in any incident brought to the attention of the council; whether there has been any escalation in the type of conduct that caused the harm including a repetition of the conduct; the hardship that may be suffered by the dog following the implementation of orders for the housing of the dog following any orders that may be made by council; and any other relevant matter.[7] > > ... > > In my opinion, it is the objective assessment of the disposition of the dog that is the key to the operation of the Act. That assessment must be made in the whole of the circumstances of the case and the background of the dog as it is known and the assessment of the dog on the day. This will include the assistance obtained from any expert evidence.[8] (Emphasis added)

2. In Clare & Gilbert Valleys Council v Crawford[9] (Clare v Crawford) his Honour Judge Millsteed was considering the review of a dog Destruction Order regarding a dog which had been categorised as an "unduly dangerous dog". His Honour discussed the difference between a "dangerous dog" and an "unduly dangerous dog".
3. Judge Millsteed stated at [74 - 78]:

1. Obviously, the legislature intended the words unduly dangerous to embrace dogs that presented a greater danger to people or animals than dangerous dogs and to the extent that they ought to be destroyed.

4. In order to pose a greater danger than a dangerous dog to an extent warranting destruction, the dog in question must, at least, expose the public, or other animals, to an appreciable risk of serious harm. In the case of people, there must be an appreciable risk of serious harm to any person acting in a way in which a person may reasonably be expected to act in circumstances which may be reasonably be expected to occur.
5. To my mind, however, the presence of such a risk is not necessarily decisive. Consideration must also be given to the type of situation in which the dog is disposed to present such a danger. A dog may be so ferocious that it presents a risk of serious harm to anyone who has the misfortune to come across it and in any situation that may reasonably be expected to occur. On the other hand, a dog of ordinarily mild disposition might present a danger in such limited circumstances that it may be fair and reasonable to address the difficulties that the dog presents by measures other than destruction
6. In Clare v Crawford the District Court set aside the Destruction Order and placed the dog under a Control (Menacing Dog) Order. Millsteed J concluded that the dog was dangerous but not unduly dangerous. The decisive or differentiating factor in the case was that there was some explanation for the dog biting the victim (a young boy) in the premises where it usually resided. The factual findings were that the subject dog was of a normally calm and non-aggressive disposition but that it was triggered by its proximity to food. The Court found that the dog bit a child who was walking away from it with food (or the remnants of food) and that the risk of the dog causing serious injury to a person was confined to the very specific situation where food was involved (with young children around).
7. The inference from Clare v Crawford was that the child had inadvertently teased or provoked the dog. I also observe that the dog attack in that case did not occur in a public place where the dog was wandering at large. Furthermore, the Court found that the subject dog in that case might respond to appropriate training.
8. Senior Member Stevens discussed the test expressed in Clare v Crawford in the Tribunal case of Aldridge v Whyalla City Council [10]. He made the following observations at [117 - 119] which I respectfully agree with:
   1. I gratefully adopt the guidance found in those passages, but with one reservation as to how the issues are expressed. Whilst the comments cited may have been apt to deal appropriately with the issues in the Clare and Gilbert Valleys case, I consider, with respect, that they conflate two issues. A destruction order can only be made if a dog is unduly dangerous. However, a Council has a discretion as to the type of order that is made. A dog may be unduly dangerous and yet the Council may be persuaded that appropriate intervention is likely to change that situation. The council might make a dangerous dog order (rather than a destruction order), even though it considers the dog unduly dangerous at the time of making the order.
   2. A finding that a dog is unduly dangerous is not equivalent to a finding that the dog should be destroyed. The judgement that a dog is unduly dangerous implies a degree of risk that prima facie justifies destruction, but it does not necessarily mean that a destruction order must be made.
   3. It follows that the decision as to whether a dog is unduly dangerous should be confined to a consideration of the degree of risk presently presented by the dog rather than predictions as to the degree of risk that may remain after rehabilitative interventions that have yet to occur. Those predictions as to the likelihood of successful rehabilitation are relevant to the Council's discretion as to what order should be made, rather than to the issue of whether the dog is presently unduly dangerous. The issue of whether the dog is unduly dangerous must be determined by reference to the state of affairs existing at the time of the review hearing. This will take into account, of course, interventions that have already occurred and their outcomes.(Emphasis added)
9. In a recent case in the Tribunal (Tester v District Council of Yankalilla),[11] a dog Destruction Order was set aside, and a Control (Menacing Dog) Order was substituted. There were several distinguishing factors in that case, which persuaded the Tribunal that the dog was a dangerous dog but not an unduly dangerous dog. Those factors were: the attack was not in public, and the premises were secure, so the risk to the public was low; it was an isolated incident; the victim was a relative of the dog's owner, who had resided with the dog and was well-known to the dog and; there was a loud sound immediately before the incident which was the trigger or provocation for the attack. The Tribunal specifically found that the attack was provoked. The Tribunal also found that the applicant was a responsible dog owner who had taken significant steps since the incident to build appropriate secure accommodation for the dog and would institute training for the dog.
10. To summarise, whether a dog is an unduly dangerous dog is to be determined against the following factors:
    • the objective assessment of the disposition of the dog and a judgement as to the degree of risk that it presents at the time of the review hearing;
    • that assessment must be made in the whole of the circumstances of the case and the background of the dog as it is known, and the assessment of the behaviour of the dog on the day;
    • the test of whether the dog is dangerous should be applied having regard to the circumstances in which the dog presents a risk. Hence a dog should not be considered dangerous if the risk of the dog harming someone is limited, for example, to circumstances where the dog is mistreated, provoked or used in the reasonable defence of property;
    • the assessment will include the assistance obtained from any expert evidence;
    • a dog is dangerous if it presents an appreciable risk of injury to any person acting in a way in which a person may reasonably be expected to act in circumstances which may be reasonably expected to occur;
    • an unduly dangerous dog is one which exposes animals or people (in those circumstances) to an appreciable or substantial risk of harm, being something more than slight or trivial harm;
    • the judgement that a dog is unduly dangerous implies a greater degree of risk than a dangerous dog, namely a degree of risk that prima facie justifies destruction;
    • but it does not necessarily mean that a destruction order must be made (whether the dog requires destruction at the date of the review hearing is discretionary);
    • a dog may be so ferocious that it presents a risk of serious harm to anyone who has the misfortune to come across it and in any situation that may reasonably be expected to occur. On the other hand, a dog of ordinarily mild disposition might present a danger in such limited circumstances that it may be fair and reasonable to address the difficulties that the dog presents by measures other than destruction;[12]
    • it follows that the decision as to whether a dog is unduly dangerous should be confined to a consideration of the degree of risk presently presented by the dog rather than predictions as to the degree of risk that may remain after rehabilitative interventions that have yet to occur. Those predictions as to the likelihood of successful rehabilitation are relevant to the Council's discretion as to what order should be made, rather than to the issue of whether the dog is presently unduly dangerous.
11. I will now address the statutory criteria in s 51 of the Act regarding the facts of this matter.

Did the dog attack, harass or chase a person, animal or bird, or is it likely to do so, in circumstances that would constitute an offence against the Act?

1. In relation to whether the attack would constitute an offence, the relevant offence provision is set out in Div 1 of Pt 5 of the Act. Section 44(2) of the Act reads:

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

1. Senior Member Stevens discussed the meaning of the words "attack, harass or chase" in Aldridge v Whyalla City Council[13] (Aldridge) but it is not necessary to canvass that discussion in detail in this case because the facts here are so clear. I have found that the dog initially jumped on and attacked the child and then chased the child down, before attacking the child a second time whilst she was on the ground, and it then followed her when she ran for help. The child's health was endangered. Immediately following that incident, the dog approached and jumped on another adult member of the public. These events are not in dispute and have been absolutely established on the evidence before me.
2. Accordingly, the facts here would clearly constitute an offence against s 44(2) of the Act.
3. The grounds to make a dog destruction order in s 51(a)(ii) requires that the relevant behaviour of the dog must be "in circumstances that would constitute an offence against this or any other Act". The intent behind those specific underlined words is not entirely clear.
4. The wording of s 51(a)(ii) of the Act was considered by Senior Member Stevens in Aldridge[14]. The Tribunal said at [101]:

The word 'circumstances' (in s 51 (a) (ii)) refers to the circumstances of the attack, harassment or chase that has occurred. Attention is directed to the circumstances of that event, not to the broader circumstances of the person responsible for the dog. The word 'would' is included for a reason ... By its inclusion, the intention is to embrace situations where the attack, harassment or chase would constitute an offence, if not for a statutory defence. [Emphasis in original]

5. In Aldridge, Senior Member Stevens also observed that there may be some cases of a dog attacking another person in circumstances that would not constitute an offence (such as a guard dog protecting property from trespassers, or a police dog being utilised during police duties). I agree with that observation.
6. Senior Member Stevens also surmised in Aldridge[15] that it was arguable that the s 51(a)(ii) criterion will not be met if it is proved that one of the statutory defences in the Act (such as s 86) can be made out. However, after some reflection Senior Member Stevens concluded that the statutory defences were not applicable to the making of a dog Destruction Order but rather applied in criminal proceedings in a court for a criminal charge, noting that the introductory words of s 86 refers to "a defence to a charge for an offence" (my emphasis) and there is also reference in s 86 to "the defendant" (wording used in criminal proceedings). Senior Member Stevens also noted that this interpretation corresponded with the approach of Master Rice in the District Court in the matter of Ash v City of Burnside[16] who concluded that the defence was only applicable to a charge for a criminal offence.[17]
7. With respect I agree with that reasoning and adopt it. However, in case that reasoning is wrong, for completeness, it will assist to consider the applicability of the defence in this matter.
8. The statutory defence in the Act in s 86 provides as follows:

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

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

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

1. If the s 86 defence is applicable, the onus is on the applicant to prove the relevant facts on the balance of probabilities.
2. Council submits that the statutory defence would not be established on the known facts and evidence in this case. I accept that submission.
3. I accept that the applicants did not intend for the offences to occur. However, the wording of s 86 also requires reasonable care to have been exercised by the applicants to avoid the commission of the offence.
4. I have found that the dog was wandering at large having escaped from the applicants' premises through a rusty fence on the perimeter of their property. Mr Hurrell admitted that he was aware that the fence was rusty or damaged. The applicants have not raised any facts or arguments to support a finding that they had taken reasonable care to avoid the dog escaping from the premises, or to ensure that the dog was properly trained or socialised so that it would not approach a child and attack him or her.
5. Accordingly, even if a "defence" under s 86 was available, it has not been made out. The criterion under s 51(a)(ii) has been satisfied in relation to Rambo.

1. I am satisfied for the purposes of s 51(a)(i) on the established facts and circumstances of this case that Rambo is an unduly dangerous dog.
2. The attack on the child was entirely unprovoked and occurred in a public place where the child was doing what a person may reasonably be expected to do in such a place (namely ride a bike or stand motionless on a footpath holding a bike).
3. The child was attacked twice in a short period of time in what can only be described as a terrifyingly ferocious manner. The nature of the injuries to the child's arm inflicted in the first attack demonstrate that the dog had no bite control and repeatedly savaged the child's arm (I accept there were four bites to her arm and that the skin was ripped off the child's arm).
4. Between the two separate attacks the child was chased by the dog when she was then set upon again by the dog (after she fell to the ground) in what I can only imagine must have been a horrifying experience for the child. Her "terrible" and "gut wrenching screams" (as described by witnesses) attest to the trauma that she must have suffered during and after the attack. It is expected that she will continue to suffer long term physical and emotional distress as result of this traumatic attack by a large, strong, and imposing animal. The video and photographic evidence produced by the applicants, of the dog playing at the kennels after the incident, does nothing but emphasise the dogs' imposing strength and physical characteristics.
5. The incident demonstrates that the dog presents an appreciable risk of serious injury to any person acting in circumstances which may be reasonably expected to occur.
6. Even though this was the first incident involving the dog attacking a person I find that the circumstances of this incident involving the child (and the later physical contact with another person) is such that the dog is an unduly dangerous dog presenting a greater degree of risk to members of the public than a dangerous dog. The degree of risk presented by the dog prima facie justifies destruction.
7. The decision to make the dog destruction order was and remains the correct decision at law.

Exercise of Discretion - consideration of expert evidence

1. The applicants submit that the dog could and should be rehabilitated and rehomed rather than euthanised. Essentially, they submit that the order should be downgraded to a Control (Dangerous Dog) Order.
2. Mr Hurrell proposed two options for rehoming the dog. One is in a secure dog cage at the back of his home which has a concrete floor and a padlock (purpose built to house his "staffies" when he owned them). The other is at his industrial work premises at Wingfield where he proposes building higher fences and ensuring that the dog is kept tethered and away from members of the public. He stated that very few clients visit the industrial premises and only he and his business partner work there. Photos were tendered of these rehoming options.
3. The applicants tendered an expert report from Ms T Rosser of "Pawly Understood". However, the expert report does not really support their case and the applicants chose not to make any submissions about the report.
4. The expert behavioural assessor, Ms T Rosser, had limited information about the incident or the extent of the victim's wounds, however, she did have the notice of intention to place a Destruction Order which gave some detail about the incident.
5. Ms Rosser met with the dog on one occasion and assessed his behaviours. She noted that some of the antisocial observations that she made of the dog (panting, whinging, pacing, cage biting, reticence to engage with her, dropped tail, barking and growling at her, lack of eye contact, avoidance or looking away, failure to initiate interactions, initial refusal to accept food), may have been attributed to his environment, namely the kennels where he is being held away from his owners. Equally those observations are consistent with anti-social behaviours.
6. Ms Rosser stated in the report that "whilst Rambo did not show aggressive behaviours towards (her) that did not mean he will never show aggressive behaviours in the future".
7. Ms Rosser stated that when a dog learns that aggressive behaviour is a successful coping strategy, they may be more inclined to repeat it. She also stated "My main concern is the safety of the community. It is impossible for me to determine exactly what happened on the day (but) ... I cannot offer a guarantee that it will not happen again...the only way to ensure Rambo never repeats the behaviours in the future would be to have Rambo humanely euthanised".
8. The only option to euthanasia suggested by Ms Rosser would involve the dog being carefully and strictly managed for the rest of his life and housed in a secure, locked enclosure with a concrete floor whenever visitors attended or when left unsupervised. When let out to exercise the dog would need to be kept on a lead, attached to an escape proof harness, and securely muzzled.
9. I accept this objective expert opinion and prefer the opinions expressed about future management of the dog to the rehoming options proposed by the applicants.
10. I have also considered the views expressed by the kennel owner at Kip Kennels (Ms Beckett) who has submitted in a letter to the Tribunal that the dog is playful, friendly, not aggressive and of mild temperament. The applicants submitted photos and videos of Ms Beckett playing with the dog at the Kennels. I have placed less weight on this evidence as it is apparent that the dog has come to know Ms Beckett (it has been housed at the kennels since November) and that Ms Beckett may have become attached to the dog, losing her objectivity. Further, it is not apparent whether she has the same level of expertise as Ms Rosser. Further, Ms Beckett's observations are contradicted by the account of the subject incident and belie the observations of the dog's aggressive, unpredictable, and anti-social behaviour around strangers when in a public place.
11. The rehoming options proposed by the applicants are not practicable or acceptable and, in my view, will not completely ameliorate the risk of any further dangerous incidents involving the dog. The applicants have failed to have the dog properly trained to date, have not had the dog desexed, walk him perhaps 2-3 times per week (which may be considered inadequate for a dog of his size and energy levels) and allowed a fence on their property to be so poorly maintained that the dog was able to push through it. I have no confidence in the ability of the applicants to manage this dangerous dog's behaviour in the future.
12. There is no evidence at all before me to suggest that the dog can be rehabilitated or trained not to attack or bite visitors to the applicants' home or Mr Hurrell's business premises even when unprovoked. Further, I am not satisfied that this unduly dangerous dog will be securely housed or muzzled or restrained in either of the applicants' rehoming options.
13. The only reasonable option to euthanasia suggested by Ms Rosser indicates that the dog would likely have a sad and isolated existence in quite dire living circumstances. I find that Rambo, a two-year-old un-desexed male Tibetan Mastiff, presents a risk of serious harm to any member of the public who has the misfortune to come across it in any situation that may reasonably be expected to occur, and that there is no reasonable option for this dog other than humane euthanasia.
14. The respondent submits that in the table attached to the "Incident Severity Guideline" booklet produced by the Dog and Cat Management Board (the Board) this incident falls within category 5, namely a "Dog that inflicts multiple bite wounds without provocation" and that the incident is a Level 5 incident given the nature and circumstances of the dog bites to the Victim. This corresponds with the description of "an unduly dangerous dog requiring euthanasia".
15. In all the circumstances, being satisfied that the dog falls within the legal criteria for the making of a dog Destruction Order under s 51 of the Act I am also satisfied that there is no basis to exercise my discretion to vary the type of order imposed by the Council. There is no preferable decision other than to affirm the dog Destruction Order.
16. I have reached the decision in this matter based on my independent review of the evidence and the expert report, but I note that this opinion is strongly supported by the respondent Council and corresponds with the guidance set out in the Board's booklet. I consider that the exercise of this discretion is a matter on which the conclusions of the decision-maker in this matter should be afforded considerable weight.

1. I am satisfied that the dog Destruction Order is the correct and preferable decision and should be affirmed.
2. The Order remains stayed until further Order. I will hear from the parties in writing as to the time frame in which the Order should come into effect and will make ancillary orders on the papers as required.[18]

[4] [2014] SADC 132.

[9] [2005] SADC 135 (Clare v Crawford).

[10] [2020] SACAT 13.

[11] [2022] SACAT 23.

[13] [2020] SACAT 13 (Aldridge).

[16] (District Court unreported judgement delivered 3 March 2016, at para [174]).

[17] See also Zhang v City of Burnside (unreported decision SADC Master Keith delivered 18 August 2017).

[18] After the reasons were delivered, at the conclusion of the appeal period, the Destruction Order was brought into effect.