OH and CITY OF COCKBURN
[2022] WASAT 81
•8 SEPTEMBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION: OH and CITY OF COCKBURN [2022] WASAT 81
MEMBER: MS N OLDFIELD, MEMBER
HEARD: 6 MAY 2022 AND 21 JUNE 2022
DELIVERED : 8 SEPTEMBER 2022
FILE NO/S: CC 1795 of 2021
BETWEEN: STEVEN OH
Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Dog Act - Application for review of decision declaring dog dangerous - Whether dog engaged in attacks - Steps taken by owner to address risk of further attacks - Turns on own facts
Legislation:
Dog Act 1976 (WA), s 33
Freedom of Information Act 1982 (WA)
State Administrative Tribunal Act 2004 (WA), s 13(1), s 15(1), s 17(1), s 27, s 29
State Administrative Tribunal Rules 2004 (WA), r 10
Result:
Application unsuccessful
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr P Gillett |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Ioppolo and City of Wanneroo [2013] WASAT 172
Isbester v Knox City Council [2015] HCA 20
Keatings and Town of Victoria Park [2008] WASAT 205
Melanie and City of Kwinana [2020] WASAT 32
Robinson and Shire of Mundaring [2016] WASAT 53
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 1 December 2020 the City of Cockburn (City) issued a dangerous dog declaration (Declaration) in relation to a dog named Tiger owned by Steven Oh (Mr Oh). The Declaration was based on incidents alleged to have occurred on 30 January 2020 and 30 September 2020.
On 8 February 2021 Mr Oh applied to the Tribunal seeking a review of the Declaration. Pursuant to the terms of an agreement between the parties (Agreement), on 18 June 2021 Mr Oh requested and was granted leave to withdraw his application. On 5 November 2021 Mr Oh lodged the present application which was expressed to seek orders that the City withdraw the Declaration pursuant to the parties' Agreement.
Issue for determination
The central issue for determination is whether the Declaration ought to be set aside. This involves consideration of both the basis on which the Declaration was originally made, and the present situation.
Proceedings in the Tribunal
A final hearing of the application was held on 6 May 2022 and 21 June 2022. In accordance with the Tribunal's usual procedure, a hearing book was compiled of the various documents lodged with the Tribunal by the parties and taken into evidence.[1] Prior to the first hearing day, Mr Oh lodged several videos. Mr Oh played one of those videos during the hearing and that is the only one of those videos taken into evidence. On 2 June 2022, Mr Oh lodged a further video. This and another version of that video were played on the second day of the hearing and accepted into evidence with the consent of the City.
[1] Noting the hearing book (HB) contains documents which do not constitute evidence being the submissions and contentions of the parties and the orders of the Tribunal in this matter.
The Tribunal heard oral evidence from Mr Oh, Dr Sara Oh, Tim Scrine, Christopher Brittenden, John Dempsey, Andrew Wang and Marcel Lee Wai Cheong (for Mr Oh) and Wendy Everett, Mellisa Thorn, Ranger Michael Emery and Ranger Janine Hauck (for the City). On 20 June 2022 Mr Oh lodged a document which was described as a witness statement of Dr Oh. The City did not object to this document, and it was included accordingly.
On both days of the hearing, I had the benefit of oral submissions by Mr Oh and counsel for the City.
Statutory framework
The SAT Act
The Tribunal has jurisdiction only to the extent conferred by the provisions of the relevant enabling Acts: s 13(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). A matter which does not involve the review of a decision falls within the Tribunal's original jurisdiction,[2] whilst a matter which expressly or necessarily involves the review of a decision forms part of the Tribunal's review jurisdiction.[3]
[2] SAT Act, s 15(1).
[3] SAT Act, s 17(1).
When exercising the review jurisdiction, the Tribunal exercises the functions and discretions of the corresponding decision-maker and has the discretion (amongst other orders) to affirm, vary or set aside the decision being reviewed.[4] The nature of review proceedings is by way of a fresh hearing, and accordingly the Tribunal may consider additional or new information not before the original decision-maker. The purpose is to produce the correct and preferable decision, as at the time of the review.[5]
The SAT Rules
[4] SAT Act, s 29.
[5] SAT Act, s 27.
The Tribunal may on application or by its own initiative extend the time fixed for commencement of proceedings under r 10 of the State Administrative Tribunal Rules 2004 (WA). This is so even if the time has already expired prior to the application for extension or the exercise of initiative on the part of the Tribunal.
The Dog Act
The power of a local government to issue a Declaration is contained within s 33E of the Dog Act 1976 (WA) (Dog Act) which provides relevantly as follows:
(1)A local government, or on behalf of the local government an authorised person or person specifically authorised by the local government for the purposes of this section either generally or in a particular case, may, by a notice in writing given in accordance with section 33F, declare an individual dog to be a dangerous dog (declared) if, in the opinion of the local government or that person -
(a)the dog has caused injury or damage by an attack on, or chasing, a person, animal or vehicle; or
(b)the dog has, repeatedly, shown a tendency -
(i)to attack, or chase, a person, animal or vehicle even though no injury has been caused by that behaviour; or
(ii)to threaten to attack; or
(c)the behaviour of the dog meets other criteria prescribed for the purpose of this section.
…
(3)The owner of a dog declared to be a dangerous dog (declared), or detained under this Division, shall have the rights referred to in this Division to object and to apply for a review.
Under s 33F, the owner of a dog the subject of a Declaration must be notified of the making of the Declaration and may lodge an objection or seek a review:
…
(2)A notice to be given under subsection (1) -
(a)shall give reasons for the making of the declaration; and
(b)shall specify that the owner has a right under this Division, to be exercised within not more than 7 days after the giving of the notice, either -
(i)to lodge a written objection with the local government, with a subsequent right to apply to the State Administrative Tribunal for a review of the decision made by the local government on the objection; or
(ii)to apply directly to the State Administrative Tribunal for a review,
as to the declaration.
(3)Whether or not an objection is lodged or application for review is made, the declaration of a dog as a dangerous dog (declared) has effect 7 days after the giving of a notice under subsection (1).
(6)Where an objection is lodged with a local government in accordance with subsection (2)(b)(i) the local government shall consider it and -
(a)if the local government dismisses the objection, the owner may, within 7 days after the giving of a notice by the local government as to the dismissal of the objection, apply to the State Administrative Tribunal for a review of the decision; or
(b)if the local government has not given notice to the owner stating that the objection has been considered, and setting out its determination on the objection, within 35 days after the giving under subsection (1) of the notice of the making of the declaration, the owner may, within 42 days after the giving of the notice under subsection (1) , apply to the State Administrative Tribunal for a review of the decision to which the owner objected.
The jurisdiction conferred upon the Tribunal is detailed in s 33I which is relevantly reproduced below:
(1)An application may be made under this Division to the State Administrative Tribunal for a review of -
(a)the decision made by a local government –
(i)where an objection as to a declaration is lodged with the local government under section 33F(2)(b)(i) … is dismissed; or
…
(b)the declaration under section 33E of a dog as a dangerous dog (declared), where no objection is lodged with the local government, where the owner elects to proceed under section 33F(2)(b)(ii) directly; or
…
(d)where an objection or application is lodged with the local government but section 33F(6)(b) … applies.
(2)Where, under this Division, an application for a review is made to the State Administrative Tribunal, the orders that the State Administrative Tribunal may make include -
(a)where the dog is detained, an order for the release of the dog to the owner;
(b)on being satisfied that the dog will be kept without the likelihood of any contravention of this Act, an order cancelling any previous order made in respect of that dog by the State Administrative Tribunal.
Case law
Previous decisions regarding applications to review Declarations must be approached cautiously as each decision is highly dependent upon the particular circumstances of each case. However, the general approach is protective:
The object of the relevant sections of the Dog Act is not to punish but rather to promote the safekeeping of the dog population in the state[.][6]
The purpose of s 33E of the Dog Act is public safety. The public should feel safe and be safe from dogs that are aggressive. The restrictions and requirements that flow from a declaration serve to warn the public about dogs that have been aggressive. The purpose of s 33E is not to punish the dog or the owner of the dog. It not penal in nature[.][7]
As submitted by counsel for the City, '[i]t is all about responsible ownership' … The purpose of s 33E of the Dog Act is public safety. The public should feel safe and be safe from dogs[.][8]
[6] Keatings and Town of Victoria Park [2008] WASAT 205 (Keatings) at [33].
[7] Ioppolo and City of Wanneroo [2013] WASAT 172 at [54].
[8] Melanie and City of Kwinana [2020] WASAT 32 at [84].
It is noted the object is not only to promote the safety of persons but also the animals they own, and the Tribunal may consider the risk of attack upon livestock[9] and 'the public interest in safeguarding the rights of people and their pets to go freely about their business'.[10]
The facts
[9] Robinson and Shire of Mundaring [2016] WASAT 53.
[10] Keatings at [33].
Based upon the evidence of the parties, I make the following findings of fact.
Mr Oh is the owner of Tiger. In 2020 and 2021 Mr Oh also owned another dog, Happy. Each dog is male and was registered by Mr Oh as being a Bull Arab and Mastiff crossbreed.[11] At all relevant times Mr Oh and the dogs lived on a five acre property within the local government area of the City (Property).
[11] HB, page 257.
On the morning of 30 January 2020, a bricklayer was attending the Property for the purpose of constructing a wall at the front boundary. The dogs had been 'keeping him company'. Mr Oh departed to purchase food and left the dogs unrestrained, after asking the bricklayer if he 'was okay with the dogs', to which the bricklayer replied 'yes'.
Ms Everett lives on a rural block (block) next door but one to the Property. Her daughter Ms Thorn lives on the same block in a separate building. On 30 January 2020 at about 7.30 am Ms Everett was in her kitchen when she heard barking. She initially thought it was their dog Murphy but upon going outside she observed Murphy was near Ms Thorn's house.
Ms Everett walked towards the back paddock, towards the sound of barking. She observed two dogs standing over a sheep lying on the ground. Ms Everett opened the gate and ran towards the dogs, waving her arms and shouting at them to get away. She was within approximately 10 metres of the dogs when they looked at her. For a moment the dogs appeared to Ms Everett to consider approaching her before they turned away and jumped over two fences into a neighbouring property.
Ms Everett saw both dogs clearly - both were of medium to large size and one was white and the other was white with tan patches. Ms Thorn, having heard the noise, ran towards her mother who told her in what direction the dogs had departed, and Ms Thorn gave chase. Ms Thorn briefly saw a white or light coloured dog on the firebreak, at the rear of her and a neighbour's property, before she lost sight of it.
Ms Thorn returned and saw that two sheep were injured and bleeding. Ms Thorn thought she knew which dogs were involved because she had seen them wandering on the road on previous occasions. She returned to her home to change out of her pyjamas and both Ms Thorn and Ms Everett went looking for the dogs in their car. They turned left out of their driveway and Ms Everett saw both dogs on the verge across the road from the Property. Ms Thorn was on the phone to the rangers to report the attack and described the dogs. Ms Thorn did not know how to operate the camera on her phone without ending the call and so the women returned home to collect a camera and returned to take a photograph[12] of the dogs at 8.08 am.
[12] HB. pages 218-219.
The women returned to check on their animals. Ms Everett saw a lamb lying under trees unmoving and wounded. Its mother was standing nearby, also wounded. A ranger, who used to be a veterinarian arrived and assisted Ms Everett to apply bandages to both sheep. The ranger advised Ms Everett to have both sheep euthanised and this was done.
On 19 February 2020 the City issued Mr Oh three infringements for 'dog attack causing injury', 'dog not held or tethered' and 'dog in a place without consent'.[13] By agreement with Mr Oh the third infringement was withdrawn. The fines of the two remaining infringements totalled $600 which Mr Oh paid. Mr Oh was distressed to be told his dogs had attacked sheep. He asked the ranger who spoke to him if he could have the contact details of the owners to speak to them about it, but the ranger declined for reasons of privacy. Mr Oh was not provided the evidence which caused the City to conclude his dogs were at fault, but trusted the City had good reason.
[13] HB, pages 220-225.
On 30 September 2020 at about 8.25 am Ms Everett was again standing in her kitchen when she noticed Murphy sitting at the fence line, which was unusual for him. She then saw a lamb run past, followed by the ram and this was also unusual. Concerned, she collected her phone and a gardening fork and went to investigate. Ms Everett saw a white and tan dog she recognised and called Ms Thorn saying 'the dogs are back'. Ms Everett ran towards the dog shouting. It ran away and jumped two fences. She was able to take two photographs[14] before it jumped another fence and disappeared from sight.
[14] HB, pages 245-246.
Ms Everett returned to check the sheep and observed the ram was sitting down. Ms Thorn arrived and after speaking with her mother went looking for the dog but did not find it. Dr Fowler from the West Coast Veterinary Clinic[15] attended their home, cleaned and stapled wounds to the neck of the ram and provided antibiotic and antiinflammatory treatment.
[15] HB, pages 249-250, 253.
On 1 December 2020 the City wrote to Mr Oh notifying him of its decision to declare Tiger a dangerous dog pursuant to s 33F(2)(a) of the Dog Act, and the implications of that decision.[16] On 6 December 2020 Mr Oh sent an email stating that he wished to appeal the decision and providing various reasons why he felt the decision should be reconsidered.[17] There is no information before the Tribunal as to what, if any, reply the City made to this email.
[16] HB, pages 171-173.
[17] HB, pages 26-30.
As a result of the Declaration, Mr Oh constructed a pen inside the Property which complied with the requirements of an enclosure for declared dangerous dogs (Enclosure).[18]
[18] HB, pages 147-148.
On 8 February 2021 Mr Oh lodged with the Tribunal an application seeking a review of the Declaration.[19] That application was accepted by the Tribunal and allocated matter number CC 148/2021.
[19] HB, pages 12-42.
On or about 18 June 2021 the parties reached the Agreement whereby the City agreed to withdraw the Declaration on 1 December 2021 on the condition that until that date Mr Oh complied with the Declaration and there were no further attacks for which an infringement notice was issued, or a prosecution commenced. During this period the City agreed to not enforce s 33GA(7) of the Dog Act so that Tiger could be exercised off leash inside the Property on the condition Mr Oh was actively supervising Tiger when he was being exercised outside of the Enclosure. It was agreed Tiger would wear a muzzle whilst being so exercised.
On the basis of the Agreement, Mr Oh sought and was granted leave to withdraw his application to the Tribunal. Accordingly matter CC 148/2021 was brought to an end.
In or about August 2021 the City received complaints that Tiger had been seen loose within the Property without a muzzle. On 24 August 2021 Ranger Hauck observed Tiger and Happy at the rear boundary of the Property. Tiger was not wearing a muzzle, nor the prescribed dangerous dog collar, and Ranger Hauck did not observe Mr Oh (nor any other person) supervising the dogs.[20]
[20] HB, pages 399-400.
On 24 August 2021 the City issued infringement notices to Mr Oh for the offences under the Dog Act in relation to a declared dangerous dog not wearing a muzzle or the prescribed collar.[21] Mr Oh paid both fines and on 3 October 2021 sent an email to the City requesting an appeal of both infringements.[22] On 14 October 2021 the City sent a letter to Mr Oh stating that because the fines had been paid, the appeal could not be accepted.[23]
[21] HB, pages 289-290.
[22] HB, pages 291-292.
[23] HB, page 295.
On 29 October 2021 solicitors acting for the City wrote to Mr Oh advising that the City would not withdraw the Declaration because the infringements breached the Agreement.[24] Accordingly, on 5 November 2021 Mr Oh lodged an application with the Tribunal under s 33F(6)(a) of the Dog Act seeking orders upholding the Agreement.[25]
The City's evidence and contentions
[24] HB, page 10.
[25] HB, pages 1-11.
The City contends Tiger's attacks upon the sheep which took place on 30 January 2020 and 30 September 2020 provide reasonable and sufficient grounds upon which to issue a Declaration. The City submits there is insufficient evidence to establish on the balance of probabilities that Tiger is no longer a danger to sheep and therefore the correct and preferable decision is to confirm the Declaration.
The City called as witnesses, Ms Everett and Ms Thorn and Rangers Emery and Hauck who gave evidence regarding the City's investigations of the complaints and the issuing of infringements and the Declaration. Various documents which comprised the records of the City regarding investigations of the complaints, the issuing of infringements and the Declaration and correspondence with Mr Oh and Dr Oh were lodged with the Tribunal and formed part of the hearing book.
Mr Oh's evidence and contentions
Mr Oh does not dispute the attacks upon the sheep occurred nor that Happy and Tiger are the dogs photographed by Ms Thorn on 30 January 2020. Mr Oh does however dispute his dogs were responsible for either attack, asserting:
1)No one saw what attacked the sheep on either occasion.
2)It is possible the sheep hurt themselves on barbed wire, or that a fox attacked the sheep.
3)There are other dogs which roam in the area.
4)In relation to the first attack, it is possible Happy and Tiger were simply curious regarding the injured sheep.
5)If Happy and Tiger were responsible for the first attack, they would have been bloodied about their mouths, faces or chests, but he observed no blood on either animal. The photograph taken on 30 January 2020[26] confirms the absence of blood.
6)The photographs taken by Ms Everett on 30 September 2020[27] show the dog which attacked the sheep on that occasion did not have the same markings as Tiger.
7)The records of the City lodged with the Tribunal in the course of these proceedings indicate (in the view of Mr Oh) that officers of the City had a biased view against Mr Oh and his dogs and did not investigate the possibility that other dogs could have been responsible for the second attack.
[26] HB, pages 218-219.
[27] HB, pages 245-246.
Mr Oh further submits that even if Tiger had attacked the sheep, further attacks are not likely. This is partly due to the 1.8 metre high wire fencing surrounding the Property and the training which Tiger has undertaken so that he now evinces no interest in sheep or other animals brought near to him. Accordingly, Mr Oh suggests Tiger is not a risk to persons or livestock and the maintenance of the Declaration is an unfair burden upon him and his dog. Mr Oh states Tiger appears to be uncomfortable and dispirited when wearing the muzzle and the wearing of the muzzle and collar tend to cause sores on the skin of Tiger's neck or snout.
Mr Oh called as witnesses himself, his wife Dr Oh, dog trainer Mr Scrine, and friends and character witnesses Messrs Brittenden, Dempsey, Wang and Cheong. Various documents were lodged by Mr Oh and included a report from Dr Katherine Lindsey (whose qualifications include that of veterinarian and animal behaviourist), photographs of the current fencing at the Property and videos of Tiger.
Consideration
The reviewable decision
In his application lodged on 5 November 2021, Mr Oh stated he sought orders upholding 'the Agreement to revoke the Declaration on December 2021' which was made in relation to matter CC 148/2021.
Issues of performance and breach of the Agreement are not within the jurisdiction of the Tribunal to determine. The Declaration made by the City is a reviewable decision and to the extent it may have been necessary to do so, the City consented to this matter being treated as an application to review the Declaration.
The present application was lodged well outside the time provided in the Dog Act for seeking a review of a Declaration. The first application in matter CC 148/2021 may also have been out of time. However, the City stated it took no issue with Mr Oh regarding the time in which an application ought to be made and felt it would be unfair to now suggest Mr Oh may have been out of time in relation to the first application.
On that basis the Tribunal extends time so that the application may be given due consideration.
The declaration
The primary issue for determination in this matter is whether the Declaration ought to be affirmed, which involves a consideration of two subsidiary concerns:
1)the basis on which the City made the Declaration; and
2)the current situation, including events which took place following the Declaration.
The basis of the City's decision
The evidence of the City is that the Declaration was issued after its investigations indicated Tiger had been involved in two separate attacks upon sheep.
No person saw either attack take place. Ms Everett and Ms Thorn came upon the sheep shortly after each attack. I found them to be credible witnesses, and their recollections of events are described above.
After the first attack, Ms Everett had an opportunity to see both dogs clearly before they ran away and confirmed the photograph[28] taken later that morning depicted the two dogs she had seen standing over the sheep. Ms Thorn stated at the time she recognised her mother's description of the dogs because she had seen them before. Mr Oh confirmed the photograph was of his dogs Happy and Tiger.
[28] HB, page 218.
Ms Everett stated the Ranger who assisted her to bandage the sheep took photographs, and Ms Everett confirmed those photographs at pages 194 to 202 of the HB depicted the two sheep injured in the attack.
After the second attack, Ms Everett recognised the dog as being one of the dogs from the first attack and took the photographs at page 245 and page 246 of the HB. Both Ms Everett and Ms Thorn confirmed the photographs[29] taken by the Ranger depicted the injuries suffered by their ram in the attack.
[29] HB, pages 251-252.
Mr Emery gave evidence regarding the investigations and prosecution by the City, which is recorded in documents lodged by the City including records of complaint calls received, investigator notes, information taken from witnesses, photographs, aerial images and completed dog attack risk assessment forms.
The investigation notes regarding the first attack record that initially Mr Oh denied his dogs could be involved because they were inside an enclosure, but later admitted his dogs were off leash and unsupervised between 7.30 am and 8.30 am on the day of the attack.[30] The investigation notes also record the dogs were known by neighbours to roam but that none reported having any problems with them.[31] A Ranger spoke with Mr Oh by telephone on 11 February 2020 and the following day at the Property. The topics discussed included the results of the investigation, the infringements which would be issued, Mr Oh's responsibility for keeping the dogs contained and potential consequences if there were any further attacks.[32]
[30] HB, pages 179 and 180.
[31] HB, pages 180-181.
[32] HB, page 182.
The investigation records of the second attack do not contain references to the City contacting neighbours in the same manner as following the first attack,[33] which may indicate the City's officers considered Ms Everett's recognition of the dog with the sheep, and her photographs, as sufficient evidence of the identity of the dog.
[33] For example, HB, page 230.
Mr Oh raised various grounds upon which he submitted it was not reasonable to conclude Tiger was involved in those attacks. However, without evidence they are little more than conjecture:
1)The fact no one saw the attacks occur does not preclude a conclusion Tiger was involved if the weight of the evidence supports that conclusion on the balance of probabilities.
2)There is no evidence before me of fox attacks upon sheep in the area, nor of fox attacks resulting in wounds similar to those suffered by the sheep the subject of the attacks to which this matter relates.
3)There is no evidence before me that sheep may wound themselves on barbed wire in the manner depicted in the photographs.[34] It seems to me unlikely a sheep (and even less so a lamb) would injure itself on a single strand of barbed wire at the top of the fence in the manner which occurred.
4)In relation to the first attack, there is no evidence of the likely time which elapsed between when the sheep were injured and when they were found by Ms Everett. There is no basis upon which to reach (and the evidence of Ms Everett is inconsistent with) a conclusion so much time had elapsed that the dog or dogs which had attacked the sheep had departed and Tiger and Happy had then become curious and wandered over.
5)In relation to the first attack, there is no evidence of how much blood the sheep would have lost nor the extent to which that blood might have marked the dog or dogs which caused those injuries. A consideration of that issue would naturally lead to the question of what occurred in the time between when Tiger and Happy were seen with the sheep and when they were photographed, but that equally would be speculation in the absence of facts.
6)There is insufficient evidence of other dogs then living in the area which might have been responsible for either attack. Mr Oh pointed to the rangers' investigation notes following the first attack in which one neighbour noted they had seen boxer dogs and another mentioned seeing 'Fallows dogs'.[35] However, there is no evidence those dogs were visually similar to Tiger and Happy, were roaming at the relevant time or had behaved in a manner to raise concern.
7)The photographs taken by Ms Everett on 30 September 2020 show a dog with colouration and markings very similar to those in the photographs of Tiger. There is no evidence of any other dog in the area bearing similar markings.
8)There is a witness statement of a neighbour who knew Happy and Tiger and saw both dogs roaming outside the Property on the morning of the second attack.[36]
[34] HB, pages 194-202, 251-252.
[35] HB, page 181.
[36] HB, page 254.
Mr Oh alleged there were many errors or inconsistencies in the records of the City which proved it did not adequately investigate the attacks, it had a bias against Mr Oh's dogs and there had been a manipulation of the evidence. Mr Oh claimed:
1)The investigation records of the City were incorrect because they described Mr Oh's dogs as 'Mastiff/Bull Arab' or 'Bull Arab x Mastiff'. In his evidence at the final hearing Mr Oh said Happy and Tiger were American Bulldog and Bull Arab crossbreeds. The documents lodged by the City demonstrate (and Mr Oh conceded) Happy and Tiger were registered as crossbreeds of Bull Arab and Mastiff. Mr Oh suggested in cross-examination the information regarding the breed of the dogs had been recorded incorrectly by the City when initially processing the registration. Counter to this, the document which appears to form part of Mr Oh's registration and payment for Tiger's training with Allbreeds Dog Training Bootcamp, also states Tiger's breed to be 'mastiff + arab b'dog'.[37] Accordingly, I see no basis on which to criticise the City for describing the dogs in accordance with their registration.
2)The investigation records indicate when Ms Thorn first called to report the first attack she described the dogs as 'Golden Retriever X & Tan & White Bull Terrier X'.[38] Mr Oh contends this proves another dog was involved because a Golden Retriever has a very different appearance and the fact he was fined demonstrates pre-judgment or bias on the part of the City. Mr Oh presented no evidence on the appearance of Golden Retriever/Bull Terrier crossbreeds as compared to Tiger. Further, it was the evidence of Ms Everett that she was within metres of both dogs and saw them clearly before they ran away, and that she recognised them approximately half an hour later and confirmed the photograph[39] of Happy and Tiger as the dogs she saw that morning. To the extent there may be any conflict in the evidence, I find more credible the evidence of Ms Everett as to what she witnessed as compared to the City's note of a phone call made by Ms Thorn.
3)The statement taken from Ms Thorn after the first attack included a reference to a person seen at a distance,[40] and this has been perceived by Mr Oh as an inconsistency in the City's evidence. However, there is no evidence the presence of this figure bears any relevance to Tiger or the attacks upon the sheep.
4)The investigation records indicate that Ms Everett told the investigating Ranger after the second attack she and Ms Thorn wanted 'the book thrown at the dog owner'[41] and an email from Ms Thorn in November 2020 which might be said to express a strong wish that there be some consequence to Mr Oh as a result of the attacks on the sheep.[42] Mr Oh contends this demonstrates Ms Everett and Ms Thorn pressured the City into making the Declaration. However, there is evidence of investigations into both incidents and without additional evidence, the communications by Ms Thorn and Ms Everett do not prove on the balance of probabilities any coercion of or undue influence upon the City.
5)Mr Oh contends the dog attack risk assessment table[43] which Mr Emery said is used by the City to guide rangers' decision-making, can be manipulated to produce any result the person completing the assessment may desire. This is an expression of opinion without evidence by Mr Oh. There is nothing inherently objectionable in the City using tools to guide rangers in their decision-making process and to support the consistency of decision-making between different rangers.
6)The infringement notices issued after the first attack appear to contain typographical errors - the infringement notice dated 19 February 2020 for 'dog attack causing injury' stated the date of the offence was 30 March 2020, the infringement notice dated 19 February 2020 for 'dog not held or tethered' stated the date of the offence was 30 February 2020 and the infringement notice dated 19 February 2020 for 'dog in a place without consent' stated the date of the offence was 3 June 2018.[44] There was no evidence Mr Oh had raised these errors with the City prior to paying the fines and Mr Oh did not explain how these errors proved either his dogs were not involved in the attacks or that the City was biased against him.
7)Mr Oh alleges a ranger of the City initially agreed to provide him with photographs relating to the first attack and later declined to do so. Mr Oh claims this demonstrates deceptiveness on the part of the City, but without further explanation or evidence. Mr Oh's evidence is that he was invited to seek copies of the photographs through an application pursuant to the Freedom of Information Act 1982 (WA) but that he did not do so.
8)The documents[45] which suggest officers of the City decided to take a second statement from Ms Everett after the decision was made to issue the Declaration is alleged by Mr Oh to be evidence of witness tampering on the part of the City. Mr Oh pointed to the first statement stating the dog 'looked similar' to a dog which had been observed in the first attack whereas the later statement said Ms Everett recognised the dog as one which had been involved in the earlier attack.[46] However, the initial report to the rangers stated the attack was by the same dogs[47] and there is a statement from a neighbour stating that he was told by someone from 115 Gutteridge Road that the same dogs had attacked again.[48] Ms Everett in her evidence before the Tribunal was adamant she had recognised Tiger at the time of the second attack. There is nothing inherently objectionable in the City taking a second statement from a witness. Given Ms Everett consistently and from the beginning stated she recognised the dog, I can see no impropriety.
9)Mr Oh alleges the City failed to offer him an opportunity to provide a written statement before issuing infringement notices on 24 August 2021 and Mr Oh claims this to be a failure of due process and demonstrates bias on the part of the City. Mr Oh did not point me to anything which obliged the City to take a statement. In any event, Mr Oh agrees Ranger Hauck discussed the matter with him; and it may be noted in relation to the second attack upon the sheep, Mr Oh declined to provide a written statement.[49] Therefore, it appears Mr Oh was given a fair opportunity to comment upon the proposed infringement. Furthermore, once the infringement was issued, Mr Oh had the option to challenge the infringement in court. If Mr Oh later regretted the decision to pay the infringement instead of challenging the same, that is no grounds upon which to reproach the City. For completeness I will note Mr Oh complained that when Ranger Hauck spoke to him on 24 August, she recorded him without his consent. There was no evidence of that occurring and it is not clear even had it occurred, it would bear significant relevance to the issues for determination by the Tribunal in this matter.
[37] HB, pages 341-342.
[38] HB, page 178.
[39] HB, page 218.
[40] HB, page 192.
[41] HB, page 229.
[42] HB, pages 267-268.
[43] HB, pages 228 and 231.
[44] HB, pages 220-225.
[45] HB, pages 230 and 234.
[46] HB, pages 239-244.
[47] HB, page 229.
[48] HB, page 254.
[49] HB, pages 230 and 256.
It is a serious matter to allege bias or manipulation of evidence by a party. Despite Mr Oh's strong held beliefs, the evidence falls well short of establishing the truth of his allegations. Ms Everett and Ms Thorn were both credible witnesses. The evidence of the City establishes an investigation of both attacks took place, decisions regarding enforcement were made after the investigations and there is nothing which indicates Ms Thorn or Ms Everett had any control over the actions of the City. Indeed, the evidence that the City agreed to waive the infringement for 'dog in a place without consent' and did not declare both Happy and Tiger dangerous dogs after the first attack weighs against the allegations of bias on the part of the City.
Mr Oh in his opening referred to the decision of the High Court in Isbester v Knox City Council[50] (Isbester). Mr Oh did not explain the basis on which he believed Isbester was applicable to this matter. He may have considered it relevant to his allegations the City was biased, or manipulated evidence. However, I do not consider that decision to be useful to Mr Oh. Firstly, this is not a matter in which there is any allegation of apprehended bias. Secondly, this is not an appeal from the decision of the City, but a hearing de novo to make a new determination as to what is the correct and preferable decision based on the evidence of the parties.
[50] Isbester v Knox City Council [2015] HCA 20.
I find it established on the balance of probabilities that Tiger was involved in the attacks upon sheep on 30 January 2020 and 30 September 2020. The result of the attack on 30 January 2020 was that two sheep were required to be euthanised, as a result of injuries sustained in the attack. The result of the attack on 30 September 2020 was that one sheep required veterinary treatment for what appeared to be significant wounds. Each attack satisfies the criteria under s 33E(1)(a) for the issuing of a declaration in that Tiger 'caused injury or damage by an attack on … [an] animal'.
The current situation
Mr Oh submitted that even if Tiger had been responsible for the sheep attacks, he could not now be considered a dangerous dog due to the fences which had been installed, the training which had been undertaken and the alteration of Tiger's behaviour. In contrast the City submitted there is inadequate evidence Tiger is no longer a danger to sheep and the evidence suggested a lack of responsibility by Mr Oh in managing the risks.
Fencing
It is agreed the fencing along the boundary of the Property has been improved and now (save for the front brick wall) comprises Ringlock wire strung between wooden posts and steel pickets. The size of the square apertures created by the Ringlock wire has not been specified but Ranger Hauck described them as large enough through which a small child might easily insert body parts.[51] From the photographs[52] it would appear one set of Ringlock wire is strung from ground level to approximately waist height on wooden posts (the lower section). A second set of Ringlock wire is strung above (but somewhat overlapping) the lower section and attached to the steel pickets (the upper section). The steel pickets are driven into the ground closely to the wooden posts. It was the uncontested evidence of Mr Oh that the total height of the fence is 1.8 metres.
[51] HB, page 400.
[52] HB, pages 314-323.
It appeared from the photographs, and Dr Oh confirmed, that the upper section is not attached to the lower section but is only attached to the steel posts. Dr Oh conceded there were gaps between the lower and upper sections at some points in the fence and said that this was something which could be addressed. Dr Oh further confirmed that the lower section did not extend below the ground and sat at approximately ground level.
Mr Oh and Dr Oh expressed the view there was nothing further they could have done to ensure Tiger would not escape from the Property. It was conceded it was not impossible a dog could escape by digging under the fence or going through the gaps between the upper and lower sections, but Dr Oh rejected this possibility because she had never observed Tiger to dig or jump. It is noted Tiger had been observed by Ms Everett and Ms Thorn to have jumped several fences after the two sheep attacks, and the Rangers' notes record another neighbour also reported seeing Tiger and Happy jump fences.[53] Presumably those fences were not 1.8 metres high. There is no evidence as to whether it is possible or likely Tiger might be able to go through a gap between the lower and upper sections of Mr Oh's boundary fence.
Training
[53] HB, page 181.
Mr Scrine gave evidence that he has been training dogs since the 1990's and operating a professional training facility for 17 years. He is the owner and founder of Allbreeds Dog Training Bootcamp.[54] His evidence was that he worked with Tiger and Mr Oh, and observed them interacting with other dogs, dog owners and the general public as part of his 'dog club' held at a local park. Mr Scrine said Tiger was very compliant on the leash, worked well with him around chickens and geese and he had observed the behaviour of Tiger at 'dog club' to be excellent.
[54] HB, page 94.
Mr Oh tendered a video which showed Mr Oh holding the leash of a muzzled Tiger in a small fenced area with approximately eight sheep and two lambs. Mr Scrine stated Tiger was muzzled and on leash at the request of the sheep owner. In his opinion, it was common for a dog to be corrected for pulling on the leash. In the opinion of Mr Scrine, being on leash does not prevent dogs from showing signs of aggression or prey drive and he did not observe those signs in Tiger in the video. Although the sheep running would commonly trigger prey drive, he saw no such reaction in Tiger.
Mr Scrine stated Tiger did not present a high risk if on lead with a competent person or in a secured property. In his opinion no dog should be left alone with livestock, and that a dog which had received training was likely to be less of a risk to livestock than a dog which had never received training. In cross-examination Mr Scrine was asked if, accepting Tiger was responsible for the sheep attacks, Tiger presented a greater risk to sheep than other dogs. Mr Scrine appeared uncomfortable and after some hesitation responded that Tiger may present a greater risk, but he was not sure. He said any dog left alone with sheep is at risk of attacking because prey drive is a primal instinct in dogs.
Tiger's behaviour
Mr Oh filed a report by Dr Katherine Lindsay dated 17 December 2020[55] which expressed an opinion regarding Tiger. In her report Dr Lindsay states:
[55] HB, pages 96-101.
…
3)My instructions are to consider and provide my expert opinion on whether the dog Tiger can be kept without the likelihood of contravention of the Dog Act … and any training regime I recommend Steve Oh implement to control Tiger's behaviour and prevent any contravention of the Act[.]
It is my opinion in relation to Tiger that:
a.Tiger is an 18-month-old male neutered American Bulldog X; and
b.Tiger underwent a comprehensive temperament test using standard Veterinary behaviour protocols that includes a thorough clinical and behavioural history and examination; and
c.Tiger has been screened for behaviours relevant and relating to the current 'dangerous dog legislation'; and
d.Tiger did not display concerning behaviours during the assessment period; and
e.Tiger has a 18-month history of being socialised with countless people of different ages and dogs of different breeds. Over this 18-month exposure Tiger has never been engaged in any behaviour that could be interpreted as aggressive toward a dog or a human; and
f.Tiger has been thoroughly assessed and does not exhibit any behaviours that could be considered dangerous; and
g.Tiger is unlikely to exhibit any behaviours that could be considered dangerous in the future; and
h.Tigers [sic] declaration of dangerous dog can be safely revoked; and
i.Tiger is a well-behaved, social dog. There is no need for any further training or behaviour modification[.]
The report of Dr Lindsey does not disclose the instructions or the history of Tiger she received from Mr Oh. It is not clear from the report that Dr Lindsey was aware of the attacks upon the sheep which formed the basis for the City issuing the Declaration. The manner in which Dr Lindsey assessed Tiger is not clear, including whether the assessment was in the presence or absence of Mr Oh or if Tiger was wearing or not wearing a muzzle. It does not appear from the report that the behaviour of Tiger was assessed in relation to sheep. Dr Lindsay was not called as a witness, which means the City lost the opportunity to cross-examine her. As a result of these concerns, the opinion of Dr Lindsey must be taken with some caution.
Messrs Brittenden, Dempsey, Wang and Cheong all gave evidence to the effect Mr Oh is known to them as a good and responsible person who would never knowingly own a dangerous dog. None of the gentleman had observed any behaviour of Tiger which would cause them concern and they requested the Tribunal consider revoking the Declaration. Mr Oh filed with the Tribunal statements from other persons expressing similar sentiments.[56] I accept each of these witnesses were truthful. However, as has been conceded by the City, there is no evidence Tiger has been aggressive towards a person or another dog. The issue is whether Tiger presents a danger to the sheep living in the area and the testimonies of these witnesses is of limited usefulness in determining Tiger's risk to sheep.
[56] HB, pages 31-36, 103-109.
Dr Oh in her evidence expressed the view that even if it were accepted Tiger had been involved in the sheep attacks, he was now a different dog:
1)The first attack occurred when Tiger was about eight months old and the second when he was about 18 months old. Tiger is now almost three years of age and his behaviour is now more stable, measured and predictable.
2)Tiger is more settled and happier without the presence of Happy because he now does not have to compete for competition or engage in sibling rivalry.
3)She has now taken responsibility for Tiger's care and training. He is a very intelligent dog and teachable. For example, Tiger has learned to go no further if she tells him 'trespass', has learned to not tug at the leash and will consistently obey spoken and gestured commands. When she takes him for walks, he no longer stares at the sheep and behaves as if they are not there. He has no interest in sheep.
I acknowledge Dr Oh was genuine, however:
1)There is no evidence before me which suggests a dog which is inclined to attack sheep when it is young, is less likely to do so as it ages.
2)Given that on 30 September 2020 Tiger apparently attacked the sheep alone, it may not be relevant that Happy now lives elsewhere.
3)It appears from the statements made by Dr Oh that she believes Tiger did not take part in either sheep attack. It therefore appears to me her opinion that Tiger is now not a threat to sheep, should be taken with some caution.
It is noted that if Tiger were eight months old on 30 January 2020, he would have been about 16 months old on 30 September 2020, and on 21 June 2022 he would have been approximately two years and four months old.
The thrust of the evidence and submissions of Mr Oh were that it had not been proven Tiger was responsible for either attack upon the sheep and the City had (in his opinion) acted wrongfully in issuing the Declaration. Mr Oh also submitted that even if Tiger were responsible for the attacks, he could not now be considered a danger because:
1)a 1.8 metre fencing has been installed along the perimeter of the Property and an automatic gate is installed at the front;
2)Tiger underwent a week long residential course at Allbreeds Dog Training Bootcamp; both he and Tiger underwent subsequent one-on-one training with Mr Scrine; and they have attended dog club meetings since;
3)there has never been any suggestion of Tiger behaving aggressively towards humans, even children or unfamiliar visitors;
4)Tiger has not escaped the Property since the second attack; and
5)Ms Everett and Ms Thorn no longer own sheep. Tiger has shown no tendency to attack the sheep in another neighbour's property and his videos of Tiger prove he is no danger to sheep.
Mr Oh lodged two videos of Tiger with sheep. The first (lodged by Mr Oh on 4 May 2022) had been arranged by Mr Scrine and was discussed during the course of Mr Scrine's evidence. It shows Mr Oh walking Tiger into and around pens containing approximately eight sheep and two lambs. Tiger is leashed and muzzled and Mr Oh can be seen on several occasions providing correction through gestures or the lead. Verbal instructions are inaudible. Tiger's head is variously lowered to sniff the ground or raised to watch the sheep and his tail maintains a lowered, relaxed position. The video is 48 seconds in duration, with five edits so that the video shows six short clips. The second clip appears to be in a different pen and in the fourth clip no sheep are visible. Mr Scrine stated the breaks in the video were because they needed to move around to get close to the sheep as they moved away.
The second video was lodged by Mr Oh on 2 June 2022. Mr Oh said he took the video to provide 'categorical proof' Tiger is not dangerous. He said he was doing nothing other than taking the video and observing Tiger's behaviour. He said he had obtained the sheep 'only a few weeks ago' and it was kept in the Enclosure with Tiger.
The video that was lodged by Mr Oh on 2 June 2022 showed Tiger with a sheep in a fenced area with a house in the background. The video starts with Tiger sniffing the surface of a concrete pathway adjacent to the house and the sheep approaching from behind. As Tiger turns towards the sheep, it trots away a few steps and Tiger turns his attention to the grass (the 'first encounter'). After a few seconds, the sheep again approaches Tiger from behind, who raises his head to look at the sheep. When Tiger makes no further move, the sheep approaches closer. Tiger then walks towards the sheep and the sheep steps backwards. After taking about six steps towards the sheep, Tiger stops and then walks away and returns his attention to the grass (the 'second encounter').
In the video, between the 'encounters', Tiger appears to be locating and eating small items from in the grass. Mr Oh denied there had been left any food in the grass, and said Tiger was interested in the smells or possibly eating sheep droppings. It was evident that when Tiger had his head down towards the concrete or grass, his tail was downward and relaxed and his ears forward. When Tiger was facing the sheep his ears came back and his tail was raised and wagging. On the first encounter Tiger's tail (other than the curled end) was in line with his back. On the second encounter Tiger's tail was raised above the level of his back.
The video lodged on 2 June 2022 had no sound. In crossexamination counsel for the City, Mr Gillett, asked Mr Oh about the lack of sound and Mr Oh said he did not want any sound to distract from the video and muted the sound due to the noise from the flightpath over the Property. Mr Gillett asked Mr Oh if he had muted the sound so his directions to Tiger could not be heard, and Mr Oh denied giving instructions to Tiger in the video.
Upon being asked if he had the video on his mobile phone with the sound file attached, Mr Oh played the video on his phone. The voice of Mr Oh could be heard saying, 'Tiger' in a warning tone during the second encounter at the moment Tiger stopped moving towards the sheep and then turned away. The instruction occurred at the 31st second and the video continued for another 16 seconds. Mr Oh explained that he was not giving instructions to Tiger but calling him back at the end of the video. He stated the video contained 31 seconds before his instruction where Tiger was no threat to the sheep and that in any event it proved his control over Tiger.
I find both videos of limited usefulness in addressing the question of whether Tiger would be dangerous to sheep if not under control. The video lodged in May 2022 is edited and shows Tiger leashed and muzzled and controlled by Mr Oh, whose verbal commands are inaudible. The video lodged in June 2022 (and its counterpart with sound) shows Tiger with one sheep he has lived with for weeks; Mr Oh made a verbalisation which had the effect of terminating the second encounter; and Tiger is distracted by items in the grass. Neither video satisfies me that Tiger has no interest in sheep.
Owners' responsibility
Mr Oh in his email to the Tribunal and the City dated 28 December 2021 states that he and Dr Oh are respectable members of society and responsible dog owners. I have no reason to doubt Mr Oh and Dr Oh are respected members of the community.[57] The evidence establishes Tiger has been trained and both Mr Oh and Dr Oh have good control of Tiger when he is on lead.
[57] HB, pages 80-81.
One might suggest the training of Tiger and the erection of the 1.8 metre perimeter fence is evidence of Mr Oh and Dr Oh taking responsibility, as this was not required in addition to a dangerous dog enclosure. It is unclear as to when the height of the perimeter fencing was raised, and it may have been installed prior to the Declaration.
On the other hand, Mr Oh and Dr Oh in their correspondence and various statements in the course of the final hearing repeatedly denied Tiger (or Happy) was responsible for the sheep attacks; accused the City in strong terms of acting improperly; minimised their own conduct; stated there was nothing else they could do to address the City's concerns; and complained of the effects of the Declaration upon themselves and Tiger.
I accept the Declaration has had negative effects upon Mr Oh and Dr Oh, including the costs of erecting the Enclosure, the social consequences of the prescribed warning signs at the Property, difficulties in making care arrangements for Tiger if they wish to travel, the inconvenience of supervising Tiger when he is not within the Enclosure and the disappointment of not being able to enjoy Tiger freely without a muzzle or leash. I would imagine many if not all owners of dogs the subject of a dangerous dog declaration feel similarly and I do not see that in itself as being a basis for revocation.
Mr Oh and Dr Oh believe Tiger is unhappy and dispirited when wearing the muzzle and wearing the collar and muzzle causes sores. There was no veterinary evidence regarding these claims, nor evidence that alternative appropriate muzzles or collars have been unsuccessfully investigated.
Although in a particular situation the consequences of a dangerous dog declaration upon a dog or its owner may be relevant, the central issue is whether or not the dog in question may be reasonably apprehended to be a danger.
It appears that prior to the Declaration, Mr Oh and Dr Oh did not prevent their dogs from wandering. They were known to roam by neighbours.[58] To illustrate her belief Tiger is not dangerous, Dr Oh stated 'the dogs were roaming around all over before they were declared dangerous and never attacked the sheep next door' and referred to the City's record that a neighbour said she had found Happy and Tiger on her land a couple of times and she had not observed them stalking, chasing or biting.[59]
[58] HB, page 180.
[59] HB, page 181.
In relation to the attack on 30 January 2020, it was Mr Oh's evidence that he left Tiger and Happy with a bricklayer who was building what became the front wall of the Property whilst he went to the shops to buy food for approximately half an hour. Mr Oh blamed the bricklayer for allowing the dogs to escape the Property, even though at that time there was insufficient fencing to contain the dogs and the dogs were unrestrained. Mr Oh did not claim, and there was no evidence indicating, the bricklayer assumed responsibility for supervising the dogs. Mr Oh gave no explanation as to why he did not secure the dogs in some manner before departing.
In his oral evidence at the final hearing Mr Oh did not describe the events in relation to the attack on 30 September 2020. In his correspondence to the Tribunal on 28 December 2021, Mr Oh wrote:[60]
In the second incident some months later my wife had let the dogs out of the garage where we usually house them without telling me. I was late for an appointment so drove off hurriedly. Our automatic gate operates extremely slowly so I gather the dogs must have slipped out before the gates closed.
[60] HB, page 87.
Mr Oh in his correspondence to the City and the Tribunal described the dogs' departure from the Property on both dates as 'accidental and due to unforeseen circumstances'[61] and 'unfortunate incidents - unintentional'.[62]
[61] HB, page 29.
[62] HB, page 87.
In relation to the infringement on 24 August 2021, Mr Oh stated that he had started to mow the lawn in the Enclosure. The mower was very noisy. Tiger and Happy were scared of the noise and 'running all over the place'. There is a grassed area and shed next to the Enclosure and, not thinking about the Declaration, he let the dogs out and left them by the shed for between 10 and 20 minutes. He kept his eye on the dogs whilst mowing, but must have taken his eyes off them momentarily because he did not realise they had gone to the back fence. He stopped mowing when the fuel ran out and the dogs were sitting where he had told them to wait. This last statement differs from Mr Oh's email to the Tribunal dated 21 February 2022 in which he states that Tiger and Happy were scared by the noise, so he let them out of the Enclosure and they 'came back immediately after I stopped mowing'.[63]
[63] HB, page 115.
Mr Oh believes Ranger Hauck must have enticed his dogs to the fence and they would only have been in that location for one or two minutes. He agreed that during the mowing the dogs were not under supervision for 'every second every minute', but said 'they have never needed that level of supervision'. Mr Oh characterised this as a 'minor infringement' and 'a technicality' which did not harm anyone or result in an escape from the Property. He said he had been very harshly treated and the error did not merit the Declaration. In his email to the City on 3 October 2021 Mr Oh described Ranger Hauck's actions as a 'snoop' visit, a 'harsh and pedantic enforcement of the technicality' and himself as 'being targeted for harsh penalties over something ... minor' and the actions of the City as 'bordering on an abuse of power'.[64]
[64] HB, pages 291-292.
In relation to Ranger Hauck's evidence that the City had received several complaints that Tiger had been seen outside the Enclosure without his muzzle in place, Mr Oh said the neighbours must have been mistaken because the Enclosure is difficult to see from outside of the Property and could have thought Tiger was supposed to be contained in another unused pen on the Property.
In his email to the Tribunal on 4 May 2022 Mr Oh stated:
[h]ad my neighbour not snitched on me, and the rangers capitulated to her undue pressure, Tiger would be a free dog today. It is irrational to apply a minor technical breach of the Dog Act in suddenly determining the dog is dangerous'.[65]
[65] HB, page 145.
Mr Oh also accused a neighbour of vindictiveness and malice,[66] presumably believing the neighbour reported Tiger as being out of his Enclosure without his muzzle. I put it to Mr Oh that it seemed unlikely, if that was the only occasion, there was time for a ranger to attend and photograph the dogs given he said they were not long outside the Enclosure. Mr Oh did not agree.
[66] HB, page 146.
Dr Oh's evidence was similar to that of her husband. She stated the dogs were 'frightened and frenzied' by the mower. She believed that whilst mowing the lawn inside the Enclosure, Mr Oh had control of the dogs whilst they were outside the Enclosure. She also stated someone must have enticed the dogs to the boundary and that the terms of the Agreement did not make it clear that to let Tiger out of the Enclosure without his muzzle was not permitted. Upon reading the email exchange in which the terms of the Agreement were decided, Dr Oh conceded Mr Oh had it clearly in mind and agreed with the obligation to keep Tiger muzzled when outside the Enclosure.
The bulk of the evidence and submissions presented in Mr Oh's case related to a criticism of the City's investigation of the two attacks. Mr Oh repeatedly stated the City's officers were deceitful, had an intention to 'stitch him up' and there was a 'conspiracy to stitch him up' or 'conspiracy to throw the book at him'. Dr Oh in turn stated the way the City had approached this matter was 'farcical' and that the City was 'biased before there was evidence and that [it] had to manufacture evidence, coach the witnesses'.
It is also noted that although Dr Oh stated she was prepared to promise Tiger would always be on a leash when taken off the Property, Mr Oh made no such statement.
Conclusions regarding the current situation
There is no dispute Tiger has undergone training and the perimeter fence of the Property is now 1.8 metres high. There is no evidence as to the effectiveness of the fence in preventing Tiger from escaping because under the terms of the Agreement Tiger must always be muzzled and under supervision when being exercised outside of the Enclosure. Mr Oh and Dr Oh consider it highly unlikely Tiger would go under, through or over the fence. That opinion is not shared by the City and there is no evidence on which I can reach a conclusion.
Tiger was provided training which addressed leash manners and aggression. The training did not include observing or socialising Tiger with sheep. However, Mr Scrine believes his training and subsequent observations were sufficient for him to express the opinion Tiger is not a high risk to sheep and should not be a declared dangerous dog. Mr Scrine also expressed the view that no dog should be permitted unsupervised access to livestock and he was unsure if Tiger would present a greater risk than another dog unsupervised with sheep.
I am satisfied that when on a leash held by a person capable of controlling Tiger, he poses minimal risk to sheep. I am concerned however Tiger would pose a substantial risk to sheep if he escaped the Property.
Further, on the evidence, including a consideration of Mr Oh's behaviour in the final hearing, I am concerned Mr Oh cannot be relied upon to keep Tiger inside the Property. He consistently blamed other persons, took no responsibility for the present situation and was not a credible witness.
Mr Oh said repeatedly the effect of the Declaration was burdensome and unjust upon him and inhumane for Tiger. If Mr Oh had complied with the terms of the Agreement, the Declaration would have been revoked by the City in December 2021. Instead, the complaints received by the City are indicative that Mr Oh may have repeatedly breached the terms of the Agreement. Certainly, he did so on 24 August 2021, and I do not find credible Mr Oh's claim to be in control of Tiger and Happy when they were photographed by Ranger Hauck.
I am concerned Mr Oh's lack of insight regarding his actions, his perception he is a victim of the City's and a neighbour's animosity and his firmly held belief Tiger was not responsible for either of the attacks upon the sheep means he cannot be relied upon to ensure Tiger does not escape the Property and is kept appropriately under control when exercised outside of the Property.
Conclusion
The question for the Tribunal is whether the correct and preferable decision is that Tiger be declared dangerous. I am satisfied the evidence establishes on the balance of probabilities Tiger was involved in two unprovoked attacks upon sheep, the first of which caused the euthanasia of two sheep due to the injuries suffered and the second which resulted in serious injury to a sheep. These attacks satisfy the criteria for declaring Tiger a dangerous dog on the basis that he caused injury by an attack upon an animal[67] or that he has repeatedly shown a tendency to attack an animal.[68]
[67] Dog Act, s 33E(1)(a).
[68] Dog Act, s 33E(1)(b)(i).
There is evidence Tiger underwent some training and the height of fencing at the Property has been raised considerably. The evidence does not satisfy me on the balance of probabilities that the current fencing will be effective in keeping Tiger contained if he were unmuzzled and unsupervised, nor that Tiger is no longer a danger to sheep. Further, I am not satisfied Mr Oh appreciates the seriousness of the danger Tiger represents and will take all reasonable steps to ensure Tiger does not escape.
The object of s 33E is not to punish dogs or their owners, but to promote the safety of the public and their animals. It is concluded the Declaration that Tiger is a dangerous dog pursuant to s 33E(1)(a) of the Dog Act was the correct and preferable decision and the decision of the City is affirmed accordingly.
Orders
The Tribunal orders:
1.The Declaration made on 1 December 2020 by the respondent that the applicant's dog Tiger (registration number L7455) is a dangerous dog is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
8 SEPTEMBER 2022
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