Clare & Gilbert Valleys Council v Crawford - [2005] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal)
CLARE & GILBERT VALLEYS COUNCIL v CRAWFORD
Reasons for Decision of His Honour Judge Millsteed
5 October 2005
ADMINISTRATIVE LAW
Appeal against decision by a Master – whether the Master erred in revoking a Destruction Order for a dog under the Dog and Cat Management Act 1995 – whether the Master erred in finding that the dog was not unduly dangerous – whether the Master has the power to impose a substitute order exempting the dog from the requirements of a Control/Dangerous Dog Order - appeal dismissed.
Dog and Cat Management Act 1995 s51(1), referred to.
The Queen v Wilson (1991) 55 SASR 565; Wilson v The Queen (1992) 174 CLR 313; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313; Dairy Farmers Co-operative Ltd v Azar (1990) 170 CLR 293; Walker v Bletchley Flettons Ltd (1936) 1 KBD 170; Inglis v NSW Fresh Food and Ice Co. Ltd (1943) 44 SR (NSW) 87; Boughey v The Queen (1986) 161 CLR 10; McDonald v Hanselmann [1998] NSWSC 171; R v Forrest (1998) 35 A Crim R 421, considered.

CLARE & GILBERT VALLEYS COUNCIL v CRAWFORD
[2005] SADC 135
Introduction

This is an appeal against a decision by a Master.
On 5 February 2005, at Saddleworth, Jacob (Jake) Pryor, a child aged 18 months, was bitten by a dog and, as a result, sustained an injury to his right ear. The dog (Mocha) belonged to Mr Marcus Crawford (the “respondent”). On 22 February 2005, the Clare and Gilbert Valleys Council (the “appellant”) made a Destruction Order in relation to Mocha pursuant to s51(1) of the Dog and Cat Management Act 1995 (the “Act”).
Pursuant to s58(1) of the Act the respondent appealed to the Administrative and Disciplinary Division of the District Court against the Destruction Order on the ground that the dog was not unduly dangerous as required by the Act. The appeal was heard and allowed by Master Rice. The Master rescinded the Destruction Order and subjected the dog to the requirements of a Control (Dangerous Dog) Order specified in s50(3) of the Act save that it was not required to be muzzled and leashed whilst working as a sheep dog on the respondent’s property.
The appellant contends that the Master erred in rescinding the Destruction Order because the dog was unduly dangerous and, further, that the Master had no power to exempt the dog from any of the requirements of a Control (Dangerous Dog) Order.
Factual Background
On the hearing of the appeal, before the Master, the respondent and his father Robert Crawford gave evidence of the dog’s history and disposition. The appellant called Mark Pryor and Kerry Pryor (Jake’s parents) and Cathryn Long who gave evidence about the circumstances of the attack. The appellant also called Steven Woolley, a dog management officer, employed by the appellant. Mr Woolley investigated the incident. The following is a summary of the evidence put before the Master.
The respondent and his parents, Robert and Denise Crawford, own and live on a farming property at Saddleworth. The property is adjacent to a reserve upon which the Saddleworth Caravan Park and oval are situated. The respondent’s dog is a two year old Kelpie. At the time of the incident it was being trained to work as a sheep dog on the respondent’s property. There was no fence surrounding the respondent’s property to prevent the dog from wandering onto the reserve.
On 5 February 2005, Cathryn Long and her husband Richard Long held a picnic in the caravan park to celebrate Mr Long’s birthday. They invited several friends and their children including Mark Pryor, Kerry Pryor and their son Jake. They had an evening meal in the grounds of the caravan park. At about 7.00pm Mocha approached the area where the picnic was being held and chased and annoyed a small dog that had to be put into a motor vehicle by its owner. Mocha then walked around the picnic tables looking for scraps of food but did not display any signs of aggression even when Jake patted him.
Jake subsequently finished his meal and walked towards the oval where some children were playing. The dog followed him. The evidence disclosed that Jake was possibly holding a piece of chicken at the time. A piece of chicken was found inside his jacket following the incident. He may also have had some food on his hands and around his mouth.
As Jake approached the oval the dog attacked him. Mr Pryor witnessed the incident. He testified that the dog nudged Jake with his nose whilst the child was bending over to pick up some sticks and stones. Jake responded by raising his right arm. The dog then “pushed” Jake on to the ground. Mr Pryor said that he saw the dog lunge at his son twice whilst he was on the ground. On the first occasion it bit Jake’s right ear and then stepped back. On the second occasion it bit the boy on the arm. The dog again stepped back and was then chased away by Mr Pryor.
Mrs Pryor and Mrs Long also witnessed part of the attack. They first became aware of the attack after Jake had fallen on to the ground. Upon looking in Jake’s direction they saw the dog standing over him. They saw the dog snap at the boy twice before it was chased away. Mrs Pryor ran over to Jake and discovered that the dog had bitten off the top section of his right ear. The severed portion of his ear was found on the ground nearby. Apparently the child had also sustained a minor bite mark on his right arm.
Jake was immediately taken to the Riverton Hospital by his parents and then conveyed by ambulance to the Women’s and Children’s Hospital in Adelaide. Surgery was performed on Jake that night in an attempt to re-attach the severed portion of his ear. Unfortunately, the operation was not successful and he will require reconstructive surgery in the future.
Mr Woolley investigated the incident and established that Mocha was responsible for the attack. On 6 February 2005 the dog was seized and placed in a council pound for two days. The dog was then impounded at a local boarding kennel. On 22 February 2005 the appellant made a Destruction Order on the basis that the dog was unduly dangerous and had attacked a person in circumstances that would constitute an offence against the Act.
In addition to the circumstances of the attack, the following evidence was put before the Master in relation to the general behaviour and disposition of Mocha.
·For several weeks prior to the incident Cathy Long and her husband Richard Long had been staying at the Caravan Park with their children. Mrs Long gave evidence that Mocha regularly wandered into the caravan park and played with their children. The dog had never behaved aggressively towards them.
·The respondent tendered a letter from, P.I. Jones and Associates, Veterinary Surgeons in which they stated that the dog had never displayed “signs of aggressive or vicious behaviour” on the five occasions when it had been treated at their clinic.
·The respondent, and his father Robert Crawford, deposed that Mocha had never behaved aggressively towards people except on one occasion, when the dog nipped the fingers of Denise Crawford. The incident occurred when she picked up some pellets of dog food that had fallen off the dog’s plate.
·Mr Woolley gave evidence that there was also an occasion when the dog tried to bite him while he was feeding it at the kennels where it had been impounded but added: “that’s quite normal for a dog that’s used to being free and suddenly being confined for awhile and there is a bit of food involved”.
On the evidence presented the Master made certain findings of fact which were not challenged by the appellant on the hearing of the present appeal. The Master stated:
1.The appellants are ordinarily careful and considerate in their concern for others save that they had previously allowed Mocha to wander at large around the caravan park/oval area.
2.Mocha has a disposition to be protective of food and act aggressively where the need to defend his food arises.
3. On the day in question it is likely that Jake was either holding or had been holding food and had the residue of it on hand and around his mouth.
4.That prior to the attack the dog had been annoying [but] it was not to such a level that any particular action needed to be taken to protect the children from the dog or the adults or even the remaining food on the picnic tables.
5.That at the time immediately before the attack Mocha was not acting inappropriately and had not acted in an aggressive way, particularly which would be considered dangerous.
6. Mocha is a working sheep dog that gets a lot of exercise. He is 2.5 years old and has a substantial working life ahead of him.
7.That the attack on Jake was in the form of biting which took place to his right ear and which in and off (sic) itself was not caused by any prolonged or excessive use of force. In my view the injury was moderately severe although extremely frightening and upsetting for the child and those who were at the scene.
It is not my view that the dog acted in an unrestrained aggressive way, as after biting the child the dog stood back and then moved again and bit him on the arm and then stood back again. The injuries other than to the ear were of no significance.
I take into account that the injury whilst permanent has been expertly handled and will be the subject of further surgery in the future. The cosmetic nature of the injury itself is not looking at the pictures, likely to be significant for a boy. The emotional scar is yet to be determined.
8.I note that the dog had an abscess on his ribs but there is no evidence to suggest that in fact any discomfort caused by the abscess was caused by Jake or caused by any intentional or accidental act. I note that Jake was on one account walking, stopping, picking up stones and sticks, throwing them down and moving on. Just like any 18 month old.
9. That the Crawfords consent to a Dangerous Dog Order knowing the full implication of that save as to one submission made by Mr Firth that an order can be modelled that enables the dog to continue to carry out its working function.
10.That save as to the dog’s propensity to protect its food supply there is no evidence on (sic) any aggression on the part of the dog.
Scheme of the Act
Before I turn to discuss the issues raised on the appeal it is necessary to explain the relevant statutory framework.
The Act, which came into operation on 1 July 1995, repealed the Dog Control Act 1979. Section 3 states that the objects of the Act are to (a) encourage responsible dog and cat ownership, (b) reduce public and environmental nuisance by dogs and cats and, (c) promote the effective management of dogs and cats.
Part 5 is headed “Management of dogs” and consists of five divisions. The following divisions are relevant on this appeal.
Offences
Under Division 1 a person who owns or is responsible for the control of a dog is guilty of an offence if the dog:
·is wandering at large (s 43(1));
·attacks, harasses or chases or otherwise endangers the health of a person or an animal or bird owned by another person or in the charge of another person (whether or not actual injury is caused) (s43(2));
·is in, or in the grounds of, a school, kindergarten , child care centre or pre-school centre without the permission of the person in charge of that place unless the dog is an accredited disability dog, guide dog or hearing dog (s45A(2))
·is in a shop without the permission of the shopkeeper unless the dog is an accredited disability dog, guide dog or hearing dog or the shop is not of a specified kind (s 45A(3);
·rushes at or chases a vehicle other than on the premises of which the person is an occupier (s45A(4));
·creates a noise, by barking or otherwise , which persistently occurs or continues to such a degree or extent that it unreasonably interferes with peace , comfort or convenience of a person (S45A(5)); or
·if the dog defecates in a public place and the person responsible for the control of the dog does not immediately remove the faeces and dispose of them in a lawful and suitable manner (s45A(6)).
On appeal it was not in dispute that the respondent was guilty of a breach of s43(1) by allowing the dog to wander at large and that he was also guilty of a breach of s44(2) by reason of the attack on Jake.
Offences relating to prescribed breeds
Division 1A prescribes offences relating to the duties of owners and others responsible for the control of special certain types of dogs, namely, dogs of prescribed breeds (American Pit Bull Terrier, Fila Braziliero, Japanese Tosa, Dogo Argentina and Presa Canario) (s45B), greyhounds (s45C) and attack trained dogs, guard dogs and patrol dogs (s45D). The provisions impose stringent conditions on people responsible for keeping these types of dogs in recognition of the danger they present to the public.
Court orders following conviction
Division 1B empowers a court to make various orders in relation to dogs in criminal proceedings. A court finding a person guilty of an offence under Division 1 or Division 1A can make a range of orders in relation to the subject dog.
In particular, Section 47(1) provides:
(1)If a person is found guilty of an offence against Division 1 or 1A, the court may, in addition to, or instead of, imposing a penalty, make one or more of the following orders:
(a)that the dog be destroyed or disposed of in a specified manner within a specified period;
(b)that the order for destruction or disposal be remitted in specified circumstances;
(c) that the dog be registered under this Act;
(ca) that the dog be identified in a specified manner;
(cb)that the dog be seized and detained for a period specified in the order or until further order of the court;
(d)that the dog be controlled in a specified manner;
(e)that specified action be taken within a specified period to abate any danger or nuisance posed by the dog;
(ea)that the dog be desexed;
(eb)that any other dog owned by the person, or for the control of which the person is responsible, be destroyed or disposed of in a specified manner within a specified period;
(f)that the person not acquire another dog for a specified period or until further order of the court;
(g)that the person pay compensation for injury, damage or loss suffered by a person as a result of the actions of the dog;
(h)any other order that the case requires.
Council orders
Division 3 bestows upon councils the power to make orders in relation to dogs and to give directions about how those orders may be complied with. The orders may be made regardless of whether the owner of the dog or a person responsible for its control is prosecuted for an offence under the Act.
Section 50(1) prescribes five classes of order that a council can make in relation to a dog, namely:
·a Destruction Order;
·a Control (Dangerous Dog) Order;
·a Control (Menacing Dog) Order ;
·a Control (Nuisance Dog) Order ; and
·a Control (Barking Dog) order.
The balance of the section, set out hereunder, specifies the requirements of each type of order.
(2)     A Destruction Order requires-
(a)     the dog to be destroyed within the period specified in the order (but not less than one month after the date the order takes effect); and
(b)     the dog, until destroyed, to be kept or detained at a place specified in the order (or at some other place subsequently approved by the council).
(3)     A Control (Dangerous Dog) Order requires-
(a)     the dog to be desexed within the period specified in the order; and
(b)     the dog to be identified by means of an implanted microchip; and
(c)     the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or in an enclosure that is constructed so as to prevent the dog escaping from it; and
(d)     the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that the wearing of a collar would be injurious to the health of the dog); and
(e)     the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier-
(i)to have a muzzle securely fixed on its mouth so as to prevent it from biting any person or animal; and
(ii)to be under the effective control of a person by means of physical restraint; and
(f)    warning signs (complying with the requirements of the Board) to be prominently displayed at all entrances to premises where the dog is usually kept warning people that a dangerous dog is kept on the premises; and
(g)     the dog and the person who is responsible for the control of the dog to successfully complete an approved training course specified in the order; and
(h)     all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
(4)     A Control (Menacing Dog) Order requires –
(a)     the dog to be identified by means of an implanted microchip; and
(b)     the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or for the premises to be fenced so as to prevent the dog escaping from the premises; and
(c)     the dog, at all times, to wear a collar that complies with the requirements of the Board (except while the dog is suffering from injury, disease or sickness to the extent that the wearing of a collar would be injurious to the health of the dog); and
(d)     the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier-
(i)to have a muzzle securely fixed on its mouth so as to prevent it from biting any person or animal; and
(ii)to be under the effective control of a person by means of physical restraint; and
(e)     all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
(5)     A Control (Nuisance Dog) Order requires –
(a)     the dog, while on premises of which the person who is responsible for the control of the dog is the occupier, to be kept indoors or in an enclosure that is constructed so as to prevent the dog escaping from it; and
(b)     the dog, except while confined to premises of which the person who is responsible for the control of the dog is the occupier, to be under the effective control of a person by means of physical restraint; and
(c)     all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
(6) A Control (Barking Dog) Order requires all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order.
It is evident from the foregoing provisions that the classification of dogs is based on a graduated scale of risk of danger, menace or nuisance. The stringency of orders under s50 increases in accordance with the increased risk that a class of dog presents to the public or other animals.
In summary, a Control Barking Dog Order requires all reasonable steps to be taken to prevent the dog repeating the behaviour that gave rise to the order. A Control Nuisance Dog Order contains the same requirement but also requires:
·the dog to be kept indoors or in an enclosure to prevent it from escaping while it is on the premises of the person who is responsible for its control;
·the dog to be under the effective control of a person by means of physical restraint (except while confined to the premises of the person responsible for its control); and

A Control Menacing Dog Order contains the same requirements as a Control Nuisance Dog Order but also requires:
·the dog to be identified by means of an implanted microchip;
·the dog to wear an approved collar (except in certain defined circumstances);
·the dog to have a muzzle securely fixed to its mouth so as to prevent it from biting any person or animal(except while confined to premises of the person who is responsible for the control of the dog).
A Control Dangerous Dog Order contains the same requirements as a Menacing Control Dog Order but also requires:
·the dog to be desexed;
·signs to be displayed at the entrances to premises where the dog is usually kept warning people that a dangerous dog is kept on the premises; and
·the dog and the person responsible for its control complete an approved training course.
An unduly dangerous dog which sits at the top end of the scale of seriousness is subject to destruction.
Grounds for making an order
The grounds on which Destruction and Control Orders may be made are contained in s51. That section states:
(1)A council may, on its own initiative or on application, make a Destruction Order in relation to a dog if satisfied that-
(a)the dog is unduly dangerous; and
(b)the dog has attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against this Act.
(2)A council may, on its own initiative or on application, make a Control (Dangerous Dog) Order, a Control (Menacing Dog) Order or a Control (Nuisance Dog) Order in relation to a dog if satisfied that-
(a)the dog is dangerous, menacing or a nuisance; and
(b)the dog has attacked, harassed or chased a person or an animal or bird owned by or in the charge of a person in circumstances that would constitute an offence against this Act.
(3)A council may, on its own initiative or on application, make a Control (Barking Dog) Order in relation to a dog if satisfied that-
(a)the dog is a nuisance ;and
(b)the dog has created noise by barking or otherwise in circumstances that would constitute an offence against this Act.”
The construction of the section makes it clear that a council cannot make a Destruction Order unless the dog is unduly dangerous or make any type of Control Order unless it is dangerous, a menace or a nuisance and it has attacked, harassed or chased a person or an animal or bird in circumstances that would constitute an offence against the Act. In other words, a dog does not fall into any of the relevant categories merely because it has attacked a person or behaved in some other prohibited manner. In the present case, the respondent’s dog could not be classified as unduly dangerous merely because it attacked Jake.
However, it does not follow that the nature of a dog attack and the circumstances in which it took place (as distinct from the mere fact of the attack) are irrelevant to the question of whether a dog is unduly dangerous or whether it falls into one of the other classes of dog. In my opinion, the nature and circumstances of a dog attack, standing alone, may demonstrate that a dog is, for example, so vicious and presents such a grave risk to the safety of people that it is unquestionably dangerous.
Despite the Act’s hierarchical classification of dogs it fails to define “unduly dangerous dog”, “menacing dog” and “nuisance dog”. Section 4 defines “dangerous dog” but the definition does not spell out the characteristics of such a dog.
The section merely states:
dangerous dog means a dog in relation to which –
(a) a council has made a Control (Dangerous Dog) Order; or
(b) a court has made an order the terms of which generally correspond to a Control (Dangerous ) Dog Order.
In short, the Act is silent on the characteristics of dogs that attract orders under Division 3. It is also to be observed that there is, as far as my research and that of counsel have been able to disclose, no decision of any Justice of the Supreme Court or Judge of this Court dealing with the meaning of any of the relevant classes of dog. Furthermore, in my view, no appreciable assistance can be gained from cases dealing with the interpretation of classifications of dogs which appear in interstate legislation by reason of the significantly different schemes present in those enactments.
Appeals against council orders
The owner or a person responsible for the control of a dog has a right to appeal against the issue by a council of an order or a refusal to revoke an order (s58 (1)). Section 58 (10) provides:
On the hearing of an appeal, the Court may (in addition to the powers of the Court under Part 6 Division 2 of the District Court Act 1991) make an order in relation to the dog that a court could have made if the proceedings had been criminal proceedings under this Act (and the order takes effect as if it had been made in such proceedings).
In other words, the Court has the same powers that a court can make under s47.
The respondents appeal to the Master
The respondent had the power to make the Destruction Order in the present case if satisfied that the respondents dog was unduly dangerous and had attacked, harmed or chased a person or an animal or bird in circumstances that would constitute an offence against the Act (s51(1)). As I have said, on the hearing of the appeal to the Master it was not in dispute that the attack on Jake was committed in circumstances that would constitute a relevant offence. The sole issue was whether the dog was unduly dangerous.
The Master held that an unduly dangerous dog was one which was “likely to cause injury or harm to a person or animal if unrestrained” subject to a consideration of the circumstances in which the dog was likely to inflict such injury or harm.
The Master concluded that the respondent’s dog was not unduly dangerous though it had “a capacity to act in a dangerous manner in certain circumstances”. He considered that the dog was not “likely to harm any person provided food [was] not involved”. However, if food was involved the dog was “likely to act in an aggressive manner and may well cause harm or injury to a child”. In short, the Master considered that it was inappropriate to classify the dog as unduly dangerous because the circumstances in which the dog was likely to engage in behaviour productive of injury or harm were of a limited nature, namely, where children and food were involved.
In the result, the Master allowed the appeal and made orders in the following terms:
1. On the appellant’s appeal…I allow the appeal in part by varying the Dog Destruction Order to a Control Dangerous Dog Order.
2. The respondent is to return the dog to the appellant upon compliance with the requirements of s 50(3) to the Council’s satisfaction.
3. The dog is to be subject to the requirement of s 50(3)(e) of the Dog & Cat Management Act save that, pursuant to s 47, whilst the dog is at the Crawford property and whilst carrying out its duty as a sheep dog it is permitted to be off the leash and not required to wear a muzzle. At all other times s50 (3) (e) is to be strictly complied with…
………
The Master reasoned that he had the power, under s58 (10), to make an order varying the requirements of s50 (3) because such an order could have been made by a court in criminal proceedings. In particular, the order could have been made using the power contained in s47(1)(h) to make “any other order as the case may require”.
The grounds of appeal
By Notice of Appeal filed on 2 May 2005 the appellant appealed against the Master’s decision on various grounds. However, on the hearing of the appeal, it became clear that the appellant’s complaints were essentially twofold.
The first ground of complaint is that the Master erred in rescinding the Destruction Order. Mr Roder, counsel for the appellant, contended that the Master applied the wrong test in determining whether the dog was unduly dangerous. He argued that the test is not whether a dog is “ likely to cause harm” but whether there is “a real risk that it might inflict serious harm” even if that risk is confined to circumstances where food is present. Mr Roder did not challenge the Master’s factual findings but submitted that the dog met this test. He further argued that the dog was unduly dangerous on the Master’s own test.
The second ground of complaint is that the Master did not have the power to dispense with, or vary, any Control Dangerous Dog Order requirements contained in s50 (3). Mr Roder submitted that if a court had found the respondent guilty of a relevant offence, and there had been a Control Dangerous Dog Order in existence at the time, s47(1)(h) would not have allowed the court to make an order dispensing with any of the requirements of s50(3). Consequently, the Master had no power to allow Mocha to work as a sheep dog on the respondent’s property unmuzzled and unrestrained.
Did the Master err in finding that the dog was not unduly dangerous?
This question raises two issues: first, the meaning of unduly dangerous dog and, second, whether the respondent’s dog falls within the relevant meaning?
As earlier observed, the legislation distinguishes between classes of dog, which may attract council orders, based on a graduated scale of risk of danger, menace or nuisance with unduly dangerous dogs at the top end of the scale. Thus in order to determine the meaning of “unduly dangerous” it is necessary to have regard to the meanings to be attributed to the other classes of dogs.
I commence with nuisance dogs which are at the lowest end of the scale. It is to be observed that a Dangerous Dog Order and a Menacing Dog Order both require the dog to be muzzled “so as to prevent it from biting any person or [pet] animal” and to be physically restrained except while confined to premises of which the person who is responsible for the control of the dog is the occupier. These restrictions do not apply to nuisance dogs. This suggests that a nuisance dog is not one which has a tendency to bite people or pets. Such an interpretation is consistent with the ordinary meaning of nuisance, namely, “any person or thing causing annoyance, inconvenience or trouble”: The Shorter Oxford English Dictionary.
The term “nuisance dog” is not capable of exhaustive definition but to my mind it embraces dogs that are disposed to unreasonably interfere with property or the comfort or convenience of people or animals. In my opinion, a dog is a nuisance for the purposes of the Act if it has a tendency to engage in behaviour of the type proscribed by the following provisions: s 43(1) (wandering at large); s44(2) (harassing or chasing animals or birds which are pets) s45A(4) (rushing at or chasing motor vehicles); s45A(5)(creating noises which unreasonably interfere with the peace, comfort, or inconvenience of a person); s45A(6) (defecating in public) and s66 (damaging property).
Ascertaining the meaning of “dangerous dog ” and “menacing dog” and the distinction to be drawn between these two classes of dog is less simple.
In The Queen v Wilson (1991) 55 SASR 565 the Court of Criminal Appeal considered the meaning of dangerous in the context of manslaughter by an unlawful and dangerous act. Cox and Matheson JJ held that a dangerous act for the purpose of this form of manslaughter was one that all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom. King CJ, dissenting, expressed the view that the relevant test was whether there was an appreciable risk of causing grievous bodily harm.
On appeal, the High Court, by a majority, rejected the definition favoured by Cox and Matheson JJ, and held that a dangerous act was one that gave rise to an appreciable risk of serious injury: Wilson v The Queen (1992) 174 CLR 313. The High Court’s formulation was based on developments in the common law and policy considerations specifically related to the doctrine of unlawful and dangerous act manslaughter and which have no bearing on the meaning of dangerous in the context of the Act.
The relevance of Wilson lies in the observations made in the Court of Criminal Appeal and the High Court regarding the ordinary meaning of dangerous. King CJ considered that the definition of dangerous approved by Cox and Matheson JJ, while it accorded with the ordinary meaning of the word, prescribed a degree of harm too low for the purposes of the doctrine of unlawful and dangerous act manslaughter. His Honour said (at 571):
My conclusion is that … death resulting from the unlawful act will be manslaughter only where a reasonable person in the position of the accused would realise that there was an appreciable risk of grievous bodily harm.
It is now necessary to examine the charge to the jury in the light of that conclusion. The learned Judge did not explain the sense in which the word “dangerous “ is used in the rule relating to unlawful and dangerous acts. Miss Vanstone, for the respondent, argued that such an explanation was unnecessary as the Holzer concept (the test approved by King CJ) is the ordinary meaning of the word… I am unable to agree. The relevant meaning of “danger” in the Shorter Oxford Dictionary is “liability or exposure to harm or injury”. I think that the word “dangerous” in its ordinary meaning is capable of applying to degrees of harm which are less than grievous bodily harm. (My insertion and my emphasis)
Cox J agreed that as a matter of ordinary language the word dangerous could apply to degrees of harm less than serious but held that the common law test of unlawful and dangerous act manslaughter was consistent with the ordinary meaning of the word. After referring to an English decision, with which he approved, Cox J said (at 573):
It will be observed that the Court of Criminal Appeal described a “dangerous” act simply as one that it is likely to injure another person. This conforms with the dictionary definitions of “dangerous”(“fraught with danger or risk; perilous, hazardous, unsafe”: Shorter Oxford English Dictionary) and “danger “(“liability or exposure to harm or injury: risk, peril”: Shorter Oxford English Dictionary
His Honour went on to make the following observation about the ordinary meaning of dangerous (588):
[W]hatever precise shade of meaning the word “dangerous “, without more, may have for different people, plainly it does not necessarily indicate “really serious harm”…and it can hardly imply anything less than “some harm…, albeit not serious harm”..
In the High Court the majority (Mason CJ, Toohey, Gaudron and McHugh JJ) acknowledged that their test of dangerousness involved a degree of danger higher than would be attributed to the word in its ordinary sense. Their Honours said (at 334):
There remains the further question of: were the jury sufficiently directed to assess whether a reasonable person, in the appellant’s position, would have realized that in punching the deceased, he was exposing him to an appreciable risk of serious injury? The trial judge spoke of a “dangerous act” without identifying what that meant. The jury might well have thought that if the punch carried a risk of injury to the deceased, not necessarily an appreciable risk of serious injury, that was enough to constitute manslaughter.
Their Honours went on to say (at 335):
In the end the jury had to determine whether the appellants act in punching the deceased was, from the standpoint of a reasonable person, an act carrying with it an appreciable risk of serious injury to the deceased. They were not so directed; they were told to consider whether it was a dangerous act. The distinction is not merely semantic. An act may be dangerous without carrying with it an appreciable risk of serious injury and, unless the two elements are brought to the minds of the jury, there is a real danger that they may wrongly convict of manslaughter. (My emphasis)
The various remarks in Wilson that I have quoted suggest that, if dangerous is given its ordinary meaning, a dangerous dog is one that exposes people or animals to an appreciable risk of some harm or injury albeit not serious harm.
Was this the test that the legislature had in mind? If it is the correct test what are the characteristics of a menacing dog?
The relevant meaning of nuisance in the Shorter Oxford English Dictionary is “to hold out menaces against; ...to threaten to inflict...”; and, “a declaration or indication of hostile intent, or of a probable evil or catastrophe; a threat of hostile intent: a threat”. The dictionary definitions of menace imply that a menacing dog is one that threatens harm but does not inflict harm.
As earlier observed, a Menacing Dog Order, like a Dangerous Dog Order, requires the dog to be muzzled “so as to prevent it from biting any person or animal” except when confined to premises occupied by it’s controller. It might be argued that the muzzling requirement indicates that a menacing dog is one that possesses a tendency to bite people or pets i.e. a tendency to inflict a degree of harm. However, I am inclined to think that in the case of a menacing dog the muzzling requirement is a precautionary measure. In other words, the muzzling requirement recognises that due to the dog’s threatening behaviour there is a risk that it might bite people or animals though it has never done so.
Nonetheless, does that bring a menacing a dog within the ordinary meaning of dangerous?
In my opinion, the differentiation between dangerous dog and menacing dog can be rationalised on the basis that the latter presents some risk of harm to people or animals whereas the former presents an appreciable or substantial risk of such harm. Such an interpretation accommodates the ordinary meaning of dangerous and the muzzling requirement for menacing dogs. That does not mean that a dog which has engaged in mere threatening behaviour can not be characterised as dangerous. The nature of a dog’s threatening behaviour and the circumstances in which it has engaged in such behaviour may indicate that it presents an appreciable or substantial risk of harm to people or other animals.
The distinction that I have sought to draw between dangerous dogs, on the one hand, and menacing dogs, on the other, also receives a measure of support from the following features of the legislative scheme. As earlier observed a Dangerous Dog Order requires signs to be displayed at the entrances to premises where the dog is usually kept warning people that a dangerous dog is kept on the property and, further, requires the dog and the person responsible for its control to complete an approved training course. A Menacing Dog Order imposes no similar requirements. The occupiers of premises where menacing dogs are kept are not obliged to display any type of warning sign and the dog and its controller are not obliged to receive any form of training.
It is difficult to accept that the legislature would have exempted menacing dogs from such requirements if they exposed people or pets to an appreciable risk of harm. On the other hand it might be said that it would be odd for Parliament to have exempted menacing dogs from the relevant requirements even if they presented only a slight risk of harm. Why insist upon such dogs being muzzled in public but not insist upon the display of warning signs at the entrances to the premises where they are kept? Be that as it may the different requirements are, in my opinion, more easily understood if dangerous dogs are regarded as presenting an appreciable or substantial risk of harm and menacing dogs are to be regarded as giving rise to a lesser risk of harm.
For the reasons that I have expressed, I am of the view that a dangerous dog is one that exposes people or animals to an appreciable or substantial risk of harm subject to the following qualifications. First, I do not believe that a dog should be categorised as dangerous if it exposes a person to no more than slight or trivial injury. To my mind, it is unlikely that parliament would have intended to impose the stringent Dangerous Dog Order requirements upon a dog that was disposed to inflict no more than trivial injury.

Second, the test of dangerous must be applied having regard to the circumstances in which the dog presents a risk of harm. In my view it would be inappropriate to characterise a dog as dangerous if the risk of the dog harming someone is limited, for example, to circumstances where it is mistreated, provoked or being used in the reasonable defence of a person or property (see s44(4)).
In my view, a dog is dangerous if it presents an appreciable risk of injury to any person acting in a way in which a person may be reasonably expected to act in circumstances which may be reasonably expected to occur. A similar approach has been taken in determining whether machinery is dangerous in the context of legislation regulating such machinery: see Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; Dairy Farmers Co-operative Ltd v Azar (1990) 170 CLR 293 at 297; Walker v Bletchley Flettons Ltd (1936) 1 KBD 170 at 175; Inglis v NSW Fresh Food and Ice Co. Ltd (1943) 44 SR (NSW) 87 at 100.
In the present case the Master found that the dog was not likely to harm any person provided food was not involved, but if food was involved, the dog “may well cause harm or injury to a child”. He found that at the time of the attack “Jake was either holding or had been holding food and had the residue of it on his hand and around his mouth”. It was implicit in the Master’s findings that the attack on Jake was triggered by the presence of food on his person. Families having picnics in reserves and parks and children wandering around with food at such functions are circumstances which may reasonably be expected to occur. Indeed, they are commonplace. Furthermore, there was nothing about Jakes conduct that could be construed as unreasonable. There was, on the Master’s findings, no element of mistreatment or provocation of the dog. In my view, a dog which presents a substantial risk of injuring a child, in such circumstances, is a dangerous dog for the purposes of the act. The respondent’s dog demonstrated that it had such a propensity. In my opinion it was clearly open to the Master to find that the dog was, at least, a dangerous dog.
But was it in fact an unduly dangerous dog as the appellant contends?
As a matter of ordinary language unduly means “Without due cause or justification; unrightfully, undeservedly; To excess; beyond the due degree”: Shorter Oxford Dictionary. The use of the word unduly as a qualifier of dangerous is curious in that it is difficult to conceive of circumstances where a dog could be regarded as duly, justifiably, rightfully or deservedly dangerous.
Obviously, the legislature intended the words unduly dangerous to embrace dogs that presented a greater danger to people or animals than dangerous dogs and to the extent that they ought to be destroyed. But what is the test for determining whether a dog falls into that category?
The Master decided that the relevant test is whether a dog “is likely to cause harm.” The appellant contends that the correct test is whether there is “a real risk that it might inflict serious harm.” In my view there is no significant difference between the tests in relation to the degree of risk of harm they postulate. The word “likely” is used in its ordinary meaning to convey the notion of a substantial – a real and not remote – chance regardless of whether it is less or more than 50 percent: Boughey v The Queen (1986) 161 CLR 10 per Mason, Wilson and Deane JJ at 21; see also TheQueen vWilson (1991) 55 SASR 565 per Cox J at 574. In relation to the requisite degree of harm the appellant’s test (serious harm) is in fact higher than the Master’s (harm). Indeed, it seems to me that the Master’s test (likely to cause harm) is too low because it is essentially the same as the test of dangerous based on the ordinary meaning of that word: see The Queen v Wilson (supra) per Cox J at 573.
I have wrestled with the definitions postulated by the Master and the appellant but in the end I have concluded that it is neither possible nor desirable to supply an exhaustive definition of unduly dangerous. The question of whether a dog presents a greater danger than a dangerous dog, and to the extent that it should attract the ultimate sanction of destruction, must be answered by reference to a consideration of the circumstances of the case as a whole.
In order to pose a greater danger than a dangerous dog to an extent warranting destruction, the dog in question must, at least, expose the public, or other animals, to an appreciable risk of serious harm. In the case of people, there must be an appreciable risk of serious harm to any person acting in a way in which a person may reasonably be expected to act in circumstances which may be reasonably be expected to occur.
To my mind, however, the presence of such a risk is not necessarily decisive. Consideration must also be given to the type of situation in which the dog is disposed to present such a danger. A dog may be so ferocious that it presents a risk of serious harm to anyone who has the misfortune to come across it and in any situation that may reasonably be expected to occur. On the other hand a dog of ordinarily mild disposition might present a danger in such limited circumstances that it may be fair and reasonable to address the difficulties that the dog presents by measures other than destruction.
In that regard it is relevant to note that a requirement of a Control Dangerous Dog Order is that the dog and the person responsible for its control complete an approved training course. To my mind that suggests that a factor to consider in determining whether a dog is unduly dangerous or merely dangerous is whether it’s dangerous propensity could be addressed by appropriate training. Such an approach is consistent with the Act’s stated objectives of encouraging responsible dog ownership and promoting the effective management of dogs with the public interest in mind.
On the Master’s unchallenged findings the tendency of the respondent’s dog to engage in aggressive behaviour is limited to situations where food is present. He concluded that the dog “may well cause harm or injury to a child” in the proximity of food. The Master did not expressly determine whether the dog presented an appreciable risk of serious injury in such circumstances no doubt because he expressed his findings in the context of the test that he considered to be appropriate. However, the nature of Jake’s injury, as the Master found, was relatively severe. In light of the Master’s other factual findings it is reasonable to infer that he would have found that the dog poses an appreciable risk of serious injury to children, in particular small children, when food is present.
But the risk of this dog causing serious injury is, as the Master found, confined to very special situations. Furthermore, the Master clearly accepted that the dog might respond to appropriate training. There is certainly no evidence to suggest that the dog’s aggressive tendencies could not be corrected by a reasonable degree of training. Having regard to the Master’s factual findings about the nature and the disposition of the dog I do not think it can be said that he erred in rescinding the Destruction Order.
Did the Master have the power to make an order in the terms in which he did?
The Master stated that he would “allow the appeal in part and substitute in lieu of a Destruction Order a Control Dangerous Dog Order” and proceeded to make an order “varying the Dog Destruction Order to a Control Dangerous Dog Order”. He then made an order that the dog was subject to all of the requirements of a Dangerous Dog Order under s50(3) except that it did not have to be muzzled or restrained while working as a sheep dog.
He reasoned as follows:
When the Council imposes an order the outcome is clear. That is s50 (3) to (5) applies and it seems that no qualification exists in the Statute. However on an appeal the Court has a much broader range of orders.
In my view s42G of the District Court Act does not expand or allow for a qualification of the Council’s orders under s50(3)(e) because the Court’s orders are ancillary or consequential under that provision rather that [sic] determinative of penalty. However under s47 the Court has the power to make further orders by reason of s58(10), as the Court’s powers are those that apply in criminal proceedings.
In my view there is no reason to read down s47 as to limit the effect of s50(3)-(6). Section 50(3) does not prescribe or limit the range of remedies available. If it did there would be no point in having s47.
When the Parliament gave the Court the power to make further orders, in my view, bearing in mind the objects of the legislation it has the effect of allowing the Court to vary the outcome for the dog (and the owner) in appropriate circumstances, subject to the facts. For example, in my view, it does not allow the Court to remove the restriction altogether relating to muzzle and leash but does allow the Court to qualify when that circumstance will apply. The words in s47 (h) “any other order” can be used to make the existing provisions workable where it is appropriate.
As a consequence I am of the view that the Court has the power to qualify the effect of s50 (3)(e). In my view it is appropriate in the circumstances of this case to allow this dog to carry on as a working sheep dog whilst on the Crawford property but only whilst in the process of working as a sheep dog. This means that the muzzle and leash will not be required during that process.
The Master appears to have reasoned that he had the power pursuant to s58(10) to vary the requirements of a Control (Dangerous Dog) Order under s50(3) because such an order could have been made by a court in a criminal proceeding by virtue of s47(1)(h) i.e. pursuant to the power “to make any other order as the case may require”.
In my respectful opinion the Master’s reasoning is erroneous.
The first point is that a court does not have the power to “substitute” a Control Dangerous Dog Order for a Destruction Order or to “vary” one order for another. The power to make a Destruction Order or one of the four types of Control Orders is vested in councils pursuant to s50. Section 47(1) is the source of the courts power to make orders relating to the destruction or control of a dog in criminal proceedings. The court may make an order the terms of which generally correspond with a Destruction Order or a Control Order but it remains an order made by the court pursuant to the power contained in s47(1).
An appellate court picks up those powers by dint of s58(10). So following a successful appeal against a Destruction Order the court, upon revoking the order, may impose an order that could have been made under s47. Once again the court may make an order the terms of which generally correspond with a Control Order made under s50 but it remains an order made by the court pursuant to the combined operation of s47(1) and s58(10).
The distinction between a council order under s50 and a court order under s47 is reflected in the definition of dangerous dog contained in s3. The definition states that a dangerous dog “means a dog in relation to which (a) a council has made a Control (Dangerous Dog) Order or (b) a court has made an order the terms of which generally correspond to a Control (Dangerous Dog) Order.”
The next point is that s47(1)(h) does not give a court power to vary the requirements of a Destruction Order or a Control Order that is in existence at the time. The expression “as the case may require” requires an application of the words to the alternatives to be found in the section: see McDonald v Hanselmann [1998] NSWSC 171. Putting it another way s47(1)(h) is not a power which operates independently of the other powers in the section. It is ancillary to them.
The other powers contained in s47 can only be exercised in the context of criminal proceedings for the purpose of providing an additional or substitute penalty upon a person being found guilty of a relevant offence. In my view, the supplementary power contained in s47(1)(h) clearly does not permit a court in the context of a prosecution to alter the terms of any Destruction or Control Order made by a council that is in existence at the time. The terms of an order made by a council may be reviewed but only on appeal to this Court.
So in my opinion the Master did not have the power to make an order in the terms in which he did for the reasons he expressed. However, it does not follow that the Masters order is invalid for the order could properly have been made, in my opinion (pursuant to the combined operation of s58(10) and s47(1)) for reasons different to those advanced by the Master.
The powers vested in courts in criminal proceedings are clearly wider than those bestowed on councils. For example, a court which makes a destruction order may remit the order in certain circumstances (s47(1)(a) and (b)). By contrast a council which makes a Destruction Order under s50(2) has no power to remit the order. Similarly, a court in criminal proceedings is given broad power to control a dog in a manner specified by the court (s47(1)(d)) whereas the power of a council to make Control Orders is circumscribed by the rigid requirements of s 50(3)-(6). Council has no discretion as to the terms of the orders which it may impose.
To my mind the courts power to make an order that the dog “be controlled in a specified manner” and the supplementary power contained in s47(1)(h) would enable a court to fashion an order that was effectively in the same terms as the order made by the Master in the present case.
Indeed, Mr Roder, counsel for the appellant, conceded that a court could make an order under s47(1) in the terms imposed by the Master if there was no council order in existence at the time. However, he contended that the Master effectively imposed a Control Dangerous Dog Order under s50(3) and then varied the statutory requirements of that provision purportedly pursuant to s47. He submitted that if a court in criminal proceedings has no power to vary a Control Dangerous Dog Order then the master had no such power and consequently the order was a nullity.
He put his argument in these terms:
[T]he order that the Master made was in effect an order dispensing with compliance with the requirements of a dog control order. We just say that under s47 which applies to prosecutions, would never authorise the dispensation of compliance with the provisions of a dog control order. What it authorises is the court to make particular orders, other orders by way of punishment.
A prosecution is not a review as it were of the requirements of a dog control order. One doesn’t get convicted …and then the court says although I’ve convicted you, I will reduce the restrictions of a dog control order on your dog. It just doesn’t seem to be a tenable outcome on the prosecution.
…
[I]n the scenario I’m putting which is equivalent to the scenario we’ve got here , the dog is already restricted by virtue of the dog control order from moving around unmuzzled anywhere. That’s the case here the Master has already made a dog control order. Then he waives compliance with that or dispenses with compliance of that under s 58. If we had a situation in a criminal prosecution. I’m sure if the council had done nothing and there was no control order in place there wouldn’t seem to be any problems with a court on a prosecution saying well I’m going to convict you and I’m going to impose these requirements. But that’s not a proper analogy.
This argument must be rejected. The Master could not impose a Control Dangerous Dog Order and then vary the statutory requirements of such an order when he had no power to do either. However, he did have the power to make an order the terms of which generally corresponded with the requirements of s50(3) save that the dog was not required to be muzzled or restrained while working on the respondents property. In those circumstances the substance of the order is not invalid: see R v Forrest (1998) 35 A Crim R 421 at 424. The respondent will be required to maintain the dog in accordance with requirements mentioned in s50(3) except to the extent identified by the Master.
For these reasons the appeal is dismissed. I will hear the parties as to any consequential orders that may be required.