Who let the dog out?

Norman Waterhouse recently acted in a successful prosecution in the Magistrates Court of South Australia on behalf of the City of Burnside (the Council) against the defendant, a legal practitioner, as an owner or person responsible for the control of a dog found wandering at large (the Defendant).

Facts

On several occasions between 2020 and 2021, an officer of the Council (the Officer) found the dog to be wandering on paths outside the Defendant’s property. The Officer had spoken to the Defendant several times about securing the fences to ensure the dog could not wander off the property.

In May 2021, the Officer once again located the dog outside the property and took further photographs. This formed the basis of the Officer issuing an expiation notice to the Defendant, who subsequently elected to be prosecuted.

Trial

The Defendant relied upon the statutory defence in Section 86 of the Dog and Cat Management Act 1995 (SA). His defence rested on proving that he had taken ‘all reasonable steps’ to prevent the dog from wandering at large.

The Defendant identified that the most likely point where the dog had escape was under a wooden slat fence and gate at the rear of the property. To prevent this, he placed trestle tables against the fence blocking off the holes. On the morning of the incident, the Defendant left his property. When he received communication that the dog had once again escaped the property, the Defendant promptly returned home. Upon a further inspection of the fence, he contended that the tables had been removed. He assumed contractors may have attended the property that day and subsequently moved the tables.

The prosecution put to the Defendant that placing an unsecured trestle table against the fence was not an adequate response to the need to secure the area so that the dog could not again escape. The Defendant submitted that the dog had not wandered off the property between October 2020 and May 2021, which meant that the precautions had been taking to secure the property had worked. The Defendant, in his defence, reiterated that he had been in communication with the agents for the landlord concerning the need for certain repairs to be undertaken, however, none were completed.

In short, the Council argued that the Defendant’s evidence fell well short of establishing that ‘all reasonable steps’ had been taken by him to ensure the dog was not wandering at large. Absent any corroborative evidence, such as a witness statement of a contractor who attended his property on the day and moved the trestle table reduced his defence to mere speculation.

To further its case, the Council called two witnesses. The first was a director of the company that owns the property the Defendant resides in. He confirmed that he was aware of previous requests by the Defendant to repair the fences and gates at the rear of the property, however, upon further inspection, was of the view that the condition of the fences were adequate. While the Defendant intimated that it was the landlord’s responsibility to ensure the fences and gates were fit for purpose, it is important to note that the property lease did not account for the issue of pets. Accordingly, if the tenant wanted a dog, it was his obligation to secure the fence so that the dog could not get out.

The second witness for the Council was the Officer, who identified that he attended the property on three previous occasions when the dog was found to be wandering at large. On a previous inspection, the Officer advised the Defendant to fasten a piece of plyboard to address the gaping hole at the bottom of the fence. On the day of the incident, the Officer inspected the fence and the side gate and noted that the bottom of the wooden side fence had not been blocked off by any secure structure. He did not consider the plastic topped trestle table that partially blocked the gaps in the fence an adequate measure of preventing the dog from escaping.

The prosecution’s case was simple. It was apparent that the Defendant had declined to accept that it was his responsibility to ensure that the dog remained on the property at all times. It was not the Council’s obligation to identify which route the dog had taken to escape and subsequently remedy it. Had the Defendant been more vigilant in checking the condition of the fence, he would have been aware of the hole in the galvanised fence which could then be easily fixed.

Decision

In finding that the prosecution proved its case beyond reasonable doubt, the Magistrate made a number of relevant observations in relation to the evidence. Firstly, His Honour considered that while some steps were taken to secure the premises after previous instances of the dog wandering at large, the steps were insufficient to prevent the dog escaping yet again. The photographs taken by the Officer on the day of the incident showed that the tables placed against the wooden fence were easily movable. Secondly, the Defendant’s assertion that contractors may have moved the tables is not supported by any objective evidence and is to be considered as speculation.

The Magistrate concluded by stating that the risk of the dog’s escape could have been eliminated by properly securing the perimeter, rear and the side fences. It is improper for the Defendant to avoid responsibility and shift the blame onto the landlord for delays and issues in repairing the fence. His Honour ultimately disagreed with the Defendant’s submission that he took all reasonable steps to prevent the dog from wandering at large.

No conviction was recorded.

Take Home Messages

This prosecution is demonstrative of the application of the general defences in the Act to offences of wandering at large and provides insight into how the Court may interpret and apply this defence.

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.