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Queensland Supreme Court

Holland v Crisafulli
Queensland
[1998] QSC 199

Case Details
Printable Version
Summary:   A dog, on two separate occasions, entered residential premises, turned over a cage and killed a guinea pig. The applicant claimed that this was insufficient evidence for the dog to be declared 'dangerous'. The judge found that a dog's propensity to pursue one animal should not be distinguished from a propensity to pursue all animals and that the finding of the dog as 'dangerous' should stand.

Judge Wilson J delivered the opinion of the court.


Opinion of the Court:

1 This is an application to review the decision of a Brisbane City Council officer that a dog be declared a dangerous dog pursuant to s 33(i)(b) of the Dog Registration and Control Ordinance 1984.

2 The applicant is an owner of the dog, which she keeps in a residential area of Brisbane. It is common ground between the parties that she is a "person aggrieved" within the meaning of s 7 of the Judicial Review Act 1991 and that the decision to declare the dog a dangerous dog in terms of the ordinance is a reviewable decision made under an enactment within the meaning of that legislation.

3 The sole ground of the application which was argued before me was that there was no evidence to justify the making of the decision: Judicial Review Act s 20(2)(h).

4 Part 4 of the ordinance is headed "Control of Dogs." It is divided into 3 divisions: Division 1 - General; Division 2 - Prescribed Dogs; and Division 3 - Dangerous Dogs. A distinction is drawn between "prescribed dogs" (dogs of a species, kind or class which are dangerous per se, eg greyhounds) and "dangerous dogs" (dogs which the Council is satisfied, on a case by case basis, are dangerous or ferocious). Generally the requirements for the control of prescribed dogs are more onerous than those for the control of dangerous dogs.

5 Section 33(1), which is part of Division 3, provides -

"33 (1) Where the Council is satisfied that a dog is a dangerous or ferocious dog it may -

(a) declare that dog to be a dangerous dog; and

(b) cause to be served on the owner of the dog a notice in writing informing the owner of that declaration."

Such a declaration may be revoked by the Council at any time: subsec (3)(b). By s 34 the owner of a declared dangerous dog is guilty of an offence if the dog is not "kept under proper control" at all times while the declaration is in force. A declared dangerous dog is not kept under proper control unless -

(a) a sign or signs in the prescribed form are erected on the premises where it is ordinarily kept warning of the presence of a declared dangerous dog;

(b) at any time the dog is in a place to which the public has access it

(i) has a muzzle securely fixed upon its mouth in such a manner as will prevent it from biting any person or other animal; and

(ii) it is under the effective control of a person aged 16 years or more;

(c) the dog wears a collar identifying it as a declared dangerous dog;

(d) fencing is erected where it is ordinarily kept; and

(e) the dog is desexed if so ordered.

6 Clearly the description of a dog as "dangerous" or "ferocious" relates to its nature or disposition. The issue is whether there was evidence from which the Council officer could be satisfied that the dog was dangerous.

7 The evidence relied on was that on two separate occasions on 2 July 1997 the dog had entered residential premises, turned over a cage containing a guinea pig and attacked and killed the guinea pig. There was also evidence that it may have attacked and killed guinea pigs on a previous occasion, and evidence that it had "confronted" the wife of a resident. There was no evidence as to what was involved in the confrontation.

8 In the course of submissions, counsel agreed that the issue for my determination was whether evidence of the attacking and killing of guinea pigs was legally admissible evidence of dangerous propensity. By "legally admissible" I have taken them to mean whether such evidence is logically probative of that propensity: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356-58; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479; andMahon v Air New Zealand [1984] AC 808 at 821.

9 It was common ground that "dangerous" was not restricted to "dangerous to human beings," an interpretation which is consistent with decisions on similar English legislation. For example, in Williams v Richards [1907] 2 KB 88 it was held that the fact that a dog had attacked and killed sheep was evidence that it was "dangerous" within s 2 of theDogs Act 1871. The argument was focussed on whether I ought to follow another English decision, Sansom v Chief Constable of Kent (Queen's Bench Divisional Court, Comyn J, 21 May 1981). A copy of the full text of that decision is not available, but it is noted in (1981) 125 Sol Jo 529 and [1981] Crim L R 617. It was an appeal by case stated from the decision of justices that a dog was dangerous within the meaning of s 2 of the Dogs Act 1871. The dog had entered the garden of a next-door neighbour, opened two cages in which tame white rabbits were kept and killed two of them. Allowing the appeal, Comyn J observed that it was in the nature of dogs to chase, wound and kill other little animals; that wild rabbits were game; that it was lot to ask a dog to distinguish a tame from a wild rabbit or to distinguish its colour; and that taking a common sense view, it would be wrong to let the justices' finding stand. Relying on this decision, counsel for the applicant submitted that it is in the nature of dogs to wound and kill small animals and that consequently evidence that the dog killed guinea pigs, which are strictly rodents, is insufficient to support a finding that it was dangerous.

10 I do not accept this submission. I do not accept that there is a logical distinction between a dog's propensity to pursue animals such as sheep and its propensity to pursue other animals such as guinea pigs. There was no evidence that it is the natural instinct of a dog to pursue some animals (such as a guinea pig, be it wild or tame), but not others. Further, one of the elements of keeping a dangerous dog under proper control is ensuring that, at any time it is in a place to which the public has access, it has a muzzle securely fixed on its mouth in such a manner as will prevent it from biting "any person or other animal." The ordinance contains a definition of "animal" which is inclusive - the word includes poultry and domesticated birds. While this may be some indication that undomesticated birds are not to be protected from prescribed dogs and dangerous dogs, there is no reason to distinguish between four-legged animals according to whether they are of a type which dogs normally pursue or whether they are wild or tame.

11 Accordingly, I consider that there was evidence from which the Council officer could be satisfied that the dog was a dangerous dog. The merits of his decision cannot be reviewed in this application.

12 I order that the application be dismissed.

 

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