SACAT dismisses Destruction Order Appeal against a dog involved in three separate attacks

Norman Waterhouse recently acted in the South Australian Civil and Administrative Tribunal (the Tribunal) on behalf of the City of Tea Tree Gully (the Council) against an Applicant who sought review of a Destruction Order issued by the Council (the Destruction Order) against a male Staffordshire Terrier cross type dog (the Dog) owned by them and subject to the Destruction Order.

Facts

On several occasions during the Applicant’s ownership of the Dog, the Dog had escaped from the Applicant’s property and attacked other people and their dogs. On two separate occasions during December 2022, the Dog attacked, without provocation or warning, two other dogs being walked by their owners outside the Applicant’s premises. Both attacks were sustained and required bystander intervention to stop.

In mid-February 2023, the Dog, together with another dog owned by the Applicant, once again attacked, without provocation or warning, a person and her dog walking near the Applicant’s premises (the Attack). The victim was knocked to the ground, and repeatedly bitten by the Dog, suffering severe injuries requiring medical intervention by ambulance as well as specialist treatment.

Following the Attack, the Council seized the Dog, and issued the Destruction Order pursuant to the Dog and Cat Management Act 1995 (SA) (the Act) on the basis that the Dog was unduly dangerous, and had attacked a person or animal in circumstances constituting an offence under the Act. The Applicant subsequently sought a review of the Destruction Order.

Hearing

The Applicant submitted that it was appropriate to set aside the Destruction Order and substitute that order with a Control (Dangerous Dog) Order.

The Applicant did not dispute that the Dog was involved in the attacks, however, suggested that due to the Dog’s young age, he was unduly influenced by another dog that lived with the Applicant, who could display aggressive behaviour on some occasions. The Applicant submitted that dogs follow a hierarchy, and that it was the influence of this other dog that caused the Dog to become involved in the attack. To remedy this, the Applicant suggested that she was able to arrange for the Dog to be rehomed.

The Applicant further submitted that, contrary to the Council’s assessment, the Dog was not unduly dangerous, and was able to interact with other people and other dogs in a socially acceptable manner. The Applicant called on witness evidence from a behavioural assessor who had prepared a report on the Dog following the attack in support of this submission. Whilst the witness stated the behaviour displayed by the Dog during the assessment could be classified as an ‘untrained play style’, the witness did note that, in her view, the dog was unduly dangerous.

In reply, the Council maintained that in all the circumstances, the correct and preferrable decision was to issue the Destruction Order. It submitted that given the nature of the harm suffered by the victim of the February 2023 attack, this attack alone was both severe and would constitute an offence against Section 44(2) the Act.

Further, the Council submitted evidence of previous incidents involving dogs owned by the Applicant dating back to 2017 to the Tribunal. In light of these previous incidents, the Council held that inadequate measures had been taken by the Applicant to prevent further attacks, considering the Dog’s repeated reoffending.

The Council obtained multiple witness statements in respect of each of the attacks. It submitted that, taken together, these witness statements created a strong inference that the Dog was the dog responsible for the attacks. Given each witness statement confirmed the severity and unprovoked nature of the attacks, the Council submitted that this supported a finding that the Dog is unduly dangerous.

Decision

In affirming the Council’s decision to issue the Destruction Order, the Tribunal made a number of relevant observations in relation to the evidence. Firstly, the Tribunal noted that it was satisfied the Dog was, in fact, the dog involved in the December 2022 and February 2023 incidents, and was satisfied that each of these attacks was unprovoked. The Tribunal noted the severity of the injuries suffered by the victims of the attacks, drawing particular attention to the fact that one of the attacks caused harm severe enough to require an ambulance to be called. In light of these circumstances, the Tribunal was satisfied that the Council made the correct and preferable decision in issuing the Destruction Order in the first instance.

The Tribunal then turned to consider whether any events that occurred following the issuing of the Destruction Order would result in a different decision being made.

The Tribunal considered the Applicant’s evidence that the Dog was able to be rehomed. In doing so, the Tribunal noted that although rehoming was, in fact, possible, this did not change the fact that the Dog was unduly dangerous, nor the real risk that it could reoffend if it were to escape from its new home.

Accordingly, the Tribunal concluded that even in light of new evidence concerning a potential new home for the Dog, the Council’s decision to issue the Destruction Order remained the correct and preferable decision. Accordingly, the Tribunal affirmed the decision under review.

Take Home Messages

This case demonstrates that it will at time be appropriate for a Council to issue a Destruction Order in relation to a dog, even where that dog has no previous orders. Additionally, the antecedent history of the dog’s owner/s compliance with the requirements of the Act may be a relevant consideration. The legislative framework supports the issuing of a Destruction Order in cases where it is deemed necessary to protect the community from harm.

For more specific information in relation to the prosecution of public safety offences, or if you are interested in attending training sessions about general regulatory issues such as dog and cat management, please contact Paul Kelly on 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on 8210 1221 or dmazzachi@normans.com.au