A Disobedient Dog Comes Back to Bite Owners

A nuisance dog and the decision to elect to be prosecuted by Mr and Mrs Cooke (the Defendants) has turned a $500 expiation notice into penalties exceeding $7,000.

Facts

On 29 March 2019 Postman Grieves (the Victim) attended the Defendants’ premises located within the City of Burnside (the Council) to carry out his usual postal round. As the Victim approached the property, he noticed the gate was open and spotted a Golden Labrador Retriever named Mick (the Dog) in the driveway. Upon attempting to deliver the Defendants’ mail, the Dog entered the footpath and lunged towards the Victim’s foot. In fear of the Dog, the Victim rapidly accelerated away from the property. He noticed the Dog pursue him for a short distance before returning to the Defendants’ premises.

The incident was reported to the Council and an Officer arrived at the premises shortly after. The Officer noted the unsecured gates and observed the Dog in the front yard of the premises, capturing photographs and video footage of same. Appropriately, the Council issued an expiation notice to which the Defendants elected to be prosecuted.

The Dog was, at the time of the offence, the subject of a Control (Nuisance Dog) Order previously issued by the Council as a result of a separate incident involving the harassment of an Australia Post employee in 2018. In accordance with section 50(5) of the Dog and Cat Management Act 1995 (the Act), the Control Order required reasonable steps be taken to prevent the Dog escaping the premises.

Trial

Five charges were brought against the Defendants as owners and/or persons responsible for the control of the Dog. These included:

• two charges for a breach of section 55(1)(b) of the Act alleging the Defendants contravened the Control (Nuisance) Order issued in 2018;

• one charge for a breach of section 43(1) of the Act alleging the Dog wandered at large;

• one charge for a breach of section 44(2) of the Act alleging the Dog attacked, harassed, chased and otherwise endangered the health of a person; and

• one charge for a breach of section 45A(4) of the Act alleging the Dog rushed at or chased a vehicle.

The matter was heard in the Magistrates Court of South Australia where the Defendants were self-represented and maintained a plea of not guilty to all five counts. The Council submitted evidence relating to the incident, including the oral testimony of Council Officers and the Victim.

It was clear the Dog had escaped the Defendants’ premises on the date of the alleged offence, however, this matter turned on the application and availability of any statutory defences. While the Council has an obligation to prove the elements of each offence beyond a reasonable doubt, the burden on the Defendants to raise and prove a defence was on the balance of probabilities.

It was the Defendants’ submission that all reasonable steps or reasonable care was taken to prevent the Dog from escaping the premises. Specifically, each member of the household was careful to ensure the front gate was closed when they left each day. However, the Council asserted further reasonable steps were required, and could have been implemented by the Defendants, to ensure the Dog did not escape the premises. Indeed, the Defendants had, since the incident, installed a self-closing mechanism on a gate, preventing the Dog from accessing the front yard of the premises.

Decision

The Court found, beyond a reasonable doubt, the Dog had escaped the premises and that the Defendants had failed to take all reasonable steps to prevent this from occurring. The Magistrate determined no statutory defences were available to the Defendants in this matter. Accordingly, the Magistrate found the Defendants guilty on Counts 1, 2, 3 and 4. However, the Court delivered a finding of not guilty in relation to the fifth count, where the Magistrate was not satisfied, beyond reasonable doubt, the Dog had “rushed at or chased” the Victim upon his departure from the property.

The Defendants were each fined $1,500 and ordered to pay victims of crime levies and costs totalling $6,280. No conviction was recorded.

Take Home Message

Norman Waterhouse was pleased to assist the Council in these proceedings and commends the Council’s investigative action. This matter supports the legislative framework in place and serves as a reminder to councils to take action under the Act to protect the wider community from dogs that may pose a threat. Pet owners must take responsibility for ensuring their dog’s behaviour complies with the requirement of the Act, not only to protect those around them but to avoid significant penalties.

For more specific information on any of the material contained in this article please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au or Viviana Paradiso on +61 8 8210 1292 on vparadiso@normans.com.au.