Sestili v City of Port Adelaide Enfield Menacing Dogs or Not?

12 March 2019

There has been significant publicity in the past week about dog attacks in SA. Relevantly, it is to be noted that we recently successfully defended a District Court appeal against a decision of the City of Port Adelaide Enfield to issue Control (Menacing Dog) Orders in respect of two Bracco Italiano dogs owned by the Appellant (“the Dogs”).

The Court determined (for one of the last times now that the jurisdiction for Control Orders has moved to SACAT) to dismiss the appeal, agreeing with the Council’s position that the Dogs satisfied the test for menacing dogs under the Dog and Cat Management Act 1995 (“the Act”).

In addition to raising legal questions relating to the classification of a dog as ‘menacing’ under the Act, the case largely turned on disputed fact – whether it was the Dogs that were involved in the attack incident that gave rise to the Control Orders being issued. The evidence of the witnesses at trial was critical in determining this issue. The case highlights the importance of contemporaneous evidence and the relevant matters that are to be taken into account when assessing inconsistencies between the evidence of witnesses and/or an accused.

By way of background, the Council determined to issue the Control Orders after the Dogs had attacked and killed a cat on a footpath in its area. The Dogs were being walked off-leash through the streets at the time and had run some distance from their owner who did not witness the attack. The neighbor of the owner of the cat observed the dogs attacking the cat and immediately recognised them from a previous encounter (which involved the Dogs, in the presence of the Appellant, harassing the same cat). He called the police and the Council to report the matter. A Council officer promptly attended and, although the Dogs were not at the scene, the officer observed and took photographs of the deceased cat and spoke with the witness who informed the officer that the Dogs belonged to the Appellant.

The Council interviewed the Appellant approximately one month after the incident. The Appellant recalled that the Dogs were off lead in the area and she had heard a ‘commotion’. She further recalled hearing the dogs being yelled at by the witness before they ran back to her. However, she expressed some uncertainty regarding the exact date of the incident. The Appellant also conceded in interview that she does walk her dogs off-leash from time to time and that it is their nature, as hunting dogs, to run at and ‘flush’ birds.

The Council was satisfied on the evidence that the Dogs were responsible for attacking and killing the cat and, in light of the previous history (which included a wandering at large incident and the separate harassment incident observed by the witness) determined that the Dogs, at the very least, posed a risk of harm to other small animals when not under effective control. Therefore, the Dogs were considered to be within the meaning of ‘menacing dogs’ under the Act and the Council issued Control (Menacing Dog) Orders.

The Appellant initially challenged the Control Orders on the grounds that the Dogs were not menacing. Her appeal was later amended to include a further ground that the Dogs could not have attacked the cat on the night question as the Appellant and the Dogs were, at the time, at her mother’s house in Athelstone.

The Court was charged with determining whether the Dogs were responsible for the attack. Both the Appellant and her mother gave evidence that the Appellant and the Dogs were at her mother’s house on the night of the attack, which was part of a standard Tuesday routine. The Appellant’s mother informed the Court she was able to recollect the events of that Tuesday night specifically. However, the Court found her evidence to be ‘unconvincing and unreliable’. The Court also found the Appellant to be a poor witness who was ‘confusing and confused’. The Court noted that the Appellant’s alibi was not raised at the earliest opportunity but only after the appeal was commenced – a factor that resulted in it being given limited (if any) weight.

The Court preferred and relied upon the Council witness version of events and found his evidence to be ‘truthful and accurate’ and, that “there was no reason to suggest that the memory of either the Appellant or her mother as to a particular Tuesday night would override the events as observed by [the witness] … and communicated to Council within minutes that night”.

At the trial, Counsel for the Appellant also sought to undermine the Council’s investigation by raising concerns as to the thoroughness of it because the cat’s body was not examined by a veterinarian for comment on the cause of death and nor were samples taken for analysis of what was asserted to be saliva on the cat’s fur. The Court did acknowledge that such steps would have aided the investigation, but agreed with our submission that the omission by the investigating officer in not obtaining such evidence was not detrimental to the case. Notwithstanding, had the Council not had the benefit of a convincing, accurate witness, the absence of corroborative evidence could have resulted in a different outcome.

To this end, the case also highlights the need, particularly where decision-making may turn on a single witness’ version of events or where there are contradictory witness versions, for investigating officers to obtain all possible evidence to corroborate the events. Whilst doing so may involve an early commitment of additional resources, it can serve to avoid costs of defending a challenge to a resultant decision at a later stage.

If you have any questions please contact Cimon Burke at  cburke@kelledyjones.com.au.