Rapson v Registrar, Domestic Animals Act 2000 (Appeal)
[2024] ACAT 77
•27 September 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
RAPSON v REGISTRAR, DOMESTIC ANIMALS ACT 2000 (Appeal) [2024] ACAT 77
AA 12/2022 (AT 8/2022)
Catchwords: APPEAL – where respondent decided to order that dangerous dog be destroyed – where Supreme Court found that Original Tribunal denied the appellant procedural fairness – whether appellant required to demonstrate factual error – whether appeal tribunal needs to exercise caution in departing from Original Tribunal’s factual findings - whether Original Tribunal’s factual findings were tainted by legal error – whether appeal tribunal can consider exercising a different power from the power exercised by the respondent when making the decision under review – whether dog’s bite caused serious injury to a person – meaning of term “serious injury” in the Domestic Animals Act 2000 – whether the totality of the evidence, including new evidence, indicates that the appellant’s dog poses a risk to public safety and to other animals – whether evidence establishes that the dog could be rehabilitated – whether evidence establishes the dog could be rehomed - appropriate exercise of discretion
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 68, 82
Domestic Animals Act 2000 ss 12, 22, 23, 24, 53B, 53C, 59, 68, 68A, Dictionary
Domestic Animals (Dangerous Dogs) Legislation Amendment Act 2017
Domestic Animals (Dangerous Dogs) Legislation Amendment Bill 2017
Cases cited:AAA v County Court of Victoria [2023] VSC 13
Allesch v Maunz [2000] HCA 40
Australian Steel & Mining Corp Pty Ltd v Corben [1974] 2 NSWLR 202
B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2015] ACTCA 7
CDJ v VAJ (No 1) [1998] HCA 67
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47
Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43
Edwards v Noble (1971) 125 CLR 296
Fox v Percy [2003] HCA 22
Frugtniet v Australian Securities and Investments Commission (ASIC) [2019] HCA 16
Lacey v Attorney-General (Qld) [2011] HCA 10
Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Levet and Levet & Dalla [2013] ACAT 52
Lisa Pye v The Registrar Domestic Animals Act 2000, AT 7/2021 and AT 8/2021
Pye v Registrar, Domestic Animals Act 2000 (Appeal) [2022] ACAT 102
Pye v Registrar, Domestic Animals Act 2000 [2023] ACTSC 247
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Warren v Coombes [1979] HCA 9
Zapari Property Coombs Pty Ltd v Commissioner for Australian Capital Territory Revenue [2022] ACTSC 189
Tribunal:Presidential Member J Lucy
Member W Hawkins
Date of Orders: 27 September 2024
Date of Reasons for Decision: 27 September 2024
Date of Publication: 4 October 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 12/2022
BETWEEN:
LISA RAPSON
Appellant
AND:
REGISTRAR, DOMESTIC ANIMALS ACT 2000
Respondent
APPEAL TRIBUNAL: Presidential Member J Lucy
Member W Hawkins
DATE:27 September 2024
ORDER
The Tribunal orders that:
The appeal is dismissed.
Order 3 of the Original Tribunal, made on 10 May 2022, is confirmed.
………………………………..
Presidential Member J Lucy
For and on behalf of the Appeal Tribunal
REASONS FOR DECISION
Introduction
The main issue in this appeal is whether, in circumstances where the Original Tribunal denied the appellant procedural fairness when confirming the respondent’s decision to destroy her dangerous dog, the Appeal Tribunal should substitute a decision, in light of new evidence, not to destroy the dog.
We have decided to confirm the Original Tribunal’s decision. In making this decision, we have taken into account that the appellant’s dog attacked a stranger without provocation, that he poses a risk to the safety of the public and other animals, and that there is no real prospect of him being rehomed.
Factual and procedural background
The appellant is now known as Lisa Rapson and was formally known as Lisa Pye. She is the owner of Buddha, a male Pitbull cross breed.
The records of the respondent (the Registrar) indicate that:
(a)On 3 March 2020, Buddha and Tonner (another dog owned by the appellant) fought with each other and the injuries sustained to Tonner by Buddha as a result were consistent with a Level 5 bite under Dr Ian Dunbar’s Dog Bite Scale.
(b)On 21 July 2020, email correspondence was received from a complainant that a dog, identified as Buddha, had been roaming for two days around Bonner, was aggressive, had tried to attack people and had nearly been run over.
(c)On 6 August 2020, another complainant reported that a dog roaming in Bonner was behaving aggressively. On 7 February 2021, a ranger spoke to the complainant who said that a dog meeting the description of Buddha had been seen roaming the area on at least three occasions (including on 6 August 2020).
(d)On 24 August 2020, another complainant encountered a dog on a street, unleashed and with no other person around. The dog barked and growled at him and lunged to bite his leg. The complainant jumped back several times, as the dog attempted to bite his leg at least three times. The complainant later identified the dog as Buddha. Rangers attended the appellant’s address, and the appellant advised them that Buddha had escaped their yard.
(e)On 14 September 2020, another complainant stated that a dog roaming the streets approached him and his family, growling and baring his teeth. The complainant saw the same dog roaming on 16 October 2020. He took photographs of the dog, which a ranger identified as Buddha.
(f)On 16 November 2020, a complainant reported two aggressive and roaming dogs which resided at the appellant’s address. Photographs were provided to rangers who identified one of the dogs as Buddha. The complainant advised that Buddha had entered her open garage door and growled at her husband. She stated that Buddha had also harassed a mother and child as they walked up the street.
The Statement of Agreed Facts does not refer to most of these alleged incidents, but indicates that, on 4 March 2020, the appellant brought Buddha and Tonner to the RSPCA for treatment following a fight between them.
On 4 February 2021, rangers seized Buddha under section 59 of the Domestic Animals Act 2000.
On 19 February 2021, Mr Bruno Grutzner of the Balanced Dog Academy, a trainer and assessor, conducted a dog behavioural assessment of Buddha for the Registrar. Mr Grutzner expressed the opinion that Buddha was a dangerous dog. He described Buddha as a dog “that will bite and injure a person when he feels the need, without hesitation.” Mr Grutzner determined that Buddha was not a safe dog to be returned or rehomed.
On 22 April 2021, the appellant was served with a notice of a decision to destroy Buddha under section 68A of the Domestic Animals Act 2000 on the basis that he posed an unacceptable risk to the safety of the public or other animals.
The appellant applied to the tribunal for a review of that decision. On 20 August 2021, the tribunal set aside that decision and made an order that Buddha be declared a dangerous dog.
On 9 September 2021, the appellant was issued with a special licence (a dangerous dog licence) for Buddha. The licence required the appellant to contain Buddha at specified premises in Bonner at which the appellant resided and, if Buddha left those premises, to keep him muzzled, on a leash and wearing a dangerous dog collar. Buddha was released to the appellant that day.
On about 5 October 2021, the appellant was evicted from her premises at Bonner.
On 24 November 2021, the appellant had Buddha with her in the carpark of an apartment complex in Dickson. Buddha was on a lead but was not muzzled and was not wearing a dangerous dog collar, contrary to the requirements of the appellant’s dangerous dog licence. The appellant let go of the lead when she reached her car so that she could open the door. She was required, under the dangerous dog licence, to maintain effective control of Buddha when outside specified premises. After the appellant let go of his lead, Buddha ran towards a stranger, Mr Li, and bit him on his right thigh. The attack was unprovoked.
The appellant called Buddha back and put him in her car.
The incident was captured on CCTV footage.
Mr Li attended a medical centre on the same day. As the wound would not stop bleeding, he attended hospital that evening. A record from Canberra Health Services, Walk in Centre from 24 November 2021 states that Mr Li sustained the following injuries: “3 x small full thickness penetrating wounds noted to posterior upper leg” and “base of wounds visible, nil underlying structures noted.” Mr Li was discharged the same day.
Mr Li reported that after the incident he suffered ongoing pain, difficulty bending his leg, abnormal walking, pain after standing for a long time, difficulty sleeping and loss of income due to inability to work.
On 26 November 2021, an authorised person seized and impounded Buddha under section 59(b) of the Domestic Animals Act 2000.
On 2 December 2021, Mr Bruno Grutzner conducted a dog behavioural assessment of Buddha in a protective bite suit at the location where he was impounded. In a letter to Domestic Animal Services (DAS), Mr Grutzner reported that Buddha demonstrated avoidant behaviour. Mr Grutzner stated that he threw a tug toy up in the air, let it fall, then bent to pick up the toy, and Buddha then launched forward to him with a growl and a bark. Mr Grutzner continued:
The avoidance is getting stronger as we continue. Buddha is getting more stressed. By now I can almost not do anything anymore closer than 2 meters away from Buddha and he growls and or launches for me. He comes in 2 or 3 times and bites my forearm.[1]
[1] Letter from Mr Grutzner to Domestic Animal Services, 2 December 2021, page 1
Mr Grutzner expressed the opinion that Buddha was not a suitable dog to be returned home or rehomed.
On 6 January 2022, the appellant was issued with, relevantly, a notice cancelling the special licence relating to Buddha and a notice of the decision to destroy Buddha. In his reasons for the decision to destroy Buddha, the Registrar stated that he was satisfied that Buddha attacked a person and the attack caused injury, within section 53C of the Domestic Animals Act 2000. He expressed himself not to be satisfied that there were reasonable steps that could be taken to mitigate the risk Buddha poses to the public and other animals.
On 13 January 2022, the appellant applied for review of the Registrar’s decisions to cancel two special licences and to destroy Buddha.
On 1 February 2022, a break-in occurred at the Domestic Animal Services and Buddha and some other dogs escaped. Buddha was captured on 4 February 2022.
On 21 February 2022, Eleni Butler of All Round Good Hounds, a dog trainer engaged by the appellant, conducted a behavioural assessment of Buddha. Ms Butler was unable to conduct a full assessment, which would have involved observing the appellant and Buddha together. That was because the appellant had been denied entry to the premises where Buddha was impounded, and where the assessment was required to take place, because of the appellant’s previous unsatisfactory behaviour towards staff and because of COVID-19 restrictions.
In a report dated 24 February 2022, Ms Butler stated that Buddha was a “happy go lucky friendly boy” but, if threatened, he became “defensive and the reactivity is seen.” She also reported that on a couple of occasions he “opened his mouth around the hand part of the bite suit.” Ms Butler considered that Buddha had the potential to react and bite, if pushed, but expressed the view in her report that he could be retrained.
Relevant legislative provisions
Subsections 53B(1) and (2) of the Domestic Animals Act 2000 provide:
53B Dealing with attacking dogs—death or serious injury to person or death of animal
(1) This section applies if the registrar is reasonably satisfied, because of a complaint or otherwise, that—
(a) a dog attacked a person or an animal; and
(b) the attack caused—
(i) the death of the person; or
(ii) serious injury to the person; or
(iii) the death of the animal.
(2) The registrar must destroy the dog.
Section 53C of the Domestic Animals Act 2000 provides:
53C Dealing with attacking, harassing or menacing dogs generally
(1) This section applies if the registrar is reasonably satisfied, because of a complaint or otherwise, that a dog—
(a) attacked a person or an animal and the attack caused—
(i) an injury (other than a serious injury) to the person; or
(ii) serious injury to the animal; or
(b) harassed a person or an animal; or
(c) is aggressive or menacing.
(2) The registrar may decide to destroy the dog.
(3) In making a decision under subsection (2), the registrar—
(a) must consider—
(i) the safety of the public and other animals; and
(ii) if the dog attacked a person or animal—the circumstances of the attack including whether—
(A) the person or animal provoked the dog; or
(B) the person or animal was attacked because the dog came to the aid of a person or animal the dog could be expected to protect; or
(C) if the attack was on premises occupied by the keeper of the dog—the person or animal was on the premises without lawful excuse; and
(b) may consider any other relevant matter.
(4) If the registrar decides not to destroy the dog, the registrar—
(a) may issue a control order for the dog to the dog’s keeper or carer; and
(b) if the registrar issues a control order to a carer of the dog—must give a copy of the order to the dog’s keeper.
Original Tribunal hearing and decision
On 1 March 2022, the Original Tribunal held a hearing of the appellant’s application. The Original Tribunal had before it documentary evidence, statements and video evidence (including CCTV footage of the incident in which Buddha bit Mr Li).
The appellant gave evidence at the hearing and was cross examined. The focus of the cross examination was upon the appellant’s degree of compliance with the conditions of her licence.
The trainer upon whose evidence the appellant relied, Ms Butler, gave oral evidence and was cross examined. In oral evidence, Ms Butler stated that she thought Buddha was trainable and that he could be rehabilitated. Under cross examination, Ms Butler accepted that her usual work was mainly with pet dogs. She also accepted that Buddha had attempted to bite her twice during the assessment.
Mr Li also gave evidence, and the appellant cross examined him.
Mr Grutzner, the dog expert upon whose evidence the Registrar relied, gave evidence and was cross examined. In oral evidence, he stated, as he had done in his report, that Buddha bit him on the forearm. He expressed the view that there had been a “massive change” in Buddha since his first assessment and that Buddha was no longer confident and had stress problems.
The following witnesses for the Registrar were also cross examined by the appellant:
(a)Bailey Crawford-Ong, who gave evidence in relation to the CCTV footage and Buddha’s dangerous dog collar;
(b)Adam Symes, who gave evidence in relation to the seizure of Buddha; and
(c)Max Roberts, a solicitor for the Registrar.
Following the hearing, the Original Tribunal decided on 10 May 2022 to confirm the Registrar’s decisions to cancel the special licence issued to the appellant for Buddha.
When considering whether to confirm the decision to destroy Buddha, the Original Tribunal stated that a difficulty it had with Ms Butler’s evidence is that Mr Li did nothing that could have caused Buddha to feel pushed or threatened. It noted that the attack was completely unprovoked. The Original Tribunal observed that Mr Grutzner’s assessment in February 2021 that Buddha was dangerous because he “will bite and injure a person when he feels the need, without hesitation” had been proven to be correct by the incident in which Buddha bit Mr Li. The Original Tribunal further observed that Mr Grutzner’s assessment in December 2021 highlights the unpredictability of Buddha’s behaviour in any given set of circumstances as an additional reason why Buddha is dangerous.
The Original Tribunal found that the appellant’s evidence that she had not seen Buddha be aggressive was not truthful, referring to the dog fight between Buddha and Tonner on 3 March 2020 and other evidence.
The Original Tribunal concluded:
The circumstances of the attack, its unprovoked nature, Mr Grutzner’s behavioural assessment of Buddha on 2 December 2021 and his evidence to the Tribunal persuade me that Buddha is more dangerous now that when Mr Grutzner assessed him in February 2021.[2]
[2] Original Tribunal’s reasons dated 10 May 2022 at [77]
The Original Tribunal expressed the view that a decision not to destroy Buddha would result in an unacceptable risk to the safety of the public and other animals. Accordingly, the Original Tribunal confirmed the Registrar’s decision to destroy Buddha.
Appeal to Appeal Tribunal
The appellant appealed to the appeal tribunal from the Original Tribunal’s decisions to cancel the special licence for Buddha and to destroy Buddha. The appeal tribunal differently constituted (the First Appeal Tribunal) dealt with the appeal as a review of the original decisions under section 82(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), which (as it observed) is the usual approach.
One of the appellant’s grounds of appeal was that the Original Tribunal had denied her procedural fairness because Ms Butler was denied the opportunity to perform a full temperament assessment of Buddha. It was said that Ms Butler was denied the ability to perform the part of her assessment with the owner (that is, the appellant) being present.
Before the appeal hearing, the appellant sought an interim order for a further assessment to be conducted by a different dog behaviourist. The appellant proposed that the Registrar arrange for Buddha to be transported to Yass in New South Wales for an assessment. The Registrar refused to do so. The Registrar also informed the appellant that Buddha would not be made available for further assessment in Canberra.
The First Appeal Tribunal dismissed the appeal.[3]
Supreme Court appeal
[3] Lisa Pye v Registrar, Domestic Animals Act 2000 (Appeal) [2022] ACAT 102
The appellant appealed from the First Appeal Tribunal’s decision to the Supreme Court.[4] The Court upheld the appeal from the First Appeal Tribunal’s order confirming the decision to destroy Buddha but dismissed the appeal from the First Appeal Tribunal’s order confirming the decision to cancel the appellant’s special licence.
[4] Pye v Registrar, Domestic Animals Act 2000 [2023] ACTSC 247
The Court found that the appellant had been denied procedural fairness by the Original Tribunal because the appellant was not given the same opportunity as that given to the Registrar to present the expert evidence that she wanted to present. The Court observed that the appellant was denied the opportunity to present a full behavioural assessment of Buddha by Ms Butler. It also found that the First Appeal Tribunal failed to consider the appellant’s procedural fairness ground. The Court commented that the unfairness resulting from the procedural unfairness in the Original Tribunal could have been cured on the appeal but was not.
The Court remitted the proceedings to the appeal tribunal for a rehearing limited to the question of whether Buddha should be euthanised or whether some other orders should be made. The Court also granted the appellant leave to adduce further evidence at the hearing.
The Appeal Tribunal was reconstituted to comprise its present members (the Second Appeal Tribunal).
Second Appeal Tribunal’s function on remitter
Section 82(1) of the ACAT Act provides:
82 Appeal tribunal—general powers
(1) An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—
(a) as a new application; or
(b) as a review of all or part of the original decision on the application by the tribunal.
After the Supreme Court had made its orders remitting the proceedings to the Appeal Tribunal, a Presidential Member of the tribunal made directions on 18 March 2024 that each party provide to the other and to the tribunal a copy of any proposed further evidence for the hearing of the appeal. The appellant was also directed to provide a list of the errors of fact, errors of law, or discretionary errors in the decision which affected the outcome. Both of those directions are consistent with dealing with the appeal as a review of the original decision.
At the beginning of the hearing, we informed the parties that we proposed to deal with the appeal as a review of the original decision, under section 82(1)(b) of the ACAT Act, with further evidence. Neither party objected to that course.
All of the parties’ further evidence was admitted at the hearing. We decided to deal with the Registrar’s objections to the admission of an expert report on which the appellant relied, the report of Susan Turner-Davis, by way of the weight we attributed to the report.
Additional evidence before the Second Appeal Tribunal
The appellant filed a witness statement on 9 May 2024. The statement had a number of annexures including assessments and reports. The annexures are not separately identified but will be referred to as necessary in this decision. In that statement, the appellant provided evidence of her visits to Buddha in the DAS shelter on 8 December 2022 and in June 2023. She stated that she was not required to wear protective clothing and Buddha was not aggressive. She also stated that a staff member from DAS entered the yard when Buddha was there, without protective clothing, and gave him a pat.
The appellant commented in her new statement that when Buddha escaped from the DAS premises on 1 February 2022, news of this was posted on a police Facebook page. The appellant stated that no comment or report indicated that Buddha had shown any aggression towards anyone whilst in the community for four days.
The appellant stated that, whilst still impounded, Buddha was taken to the vet clinic to be desexed. Her evidence is that Buddha was observed and videoed by the appellant’s brother’s girlfriend outside the vet’s premises. The appellant points out that Buddha was not muzzled and was calm.
The appellant stated that, if Buddha were to be released to her, he could be trained by a dog trainer from Bark Busters with whom she had made contact.
The appellant annexed to her statement a behavioural assessment of Buddha conducted by Ms Susan Turner-Davis on 4 December 2023. Ms Turner-Davis describes herself as a Temperament Assessor for OLG NSW (which we take to refer to the Office of Local Government, New South Wales) and Yass Pets’ head dog trainer since 1994.
The appellant’s evidence was that she waited in the reception area at the DAS shelter while Ms Turner-Davis conducted the first part of her assessment of Buddha without the appellant. The appellant waited to be called, so Mr Turner-Davis could assess Buddha in her presence, but Ms Turner-Davis ran out of time to conduct the proposed second part of the assessment with the appellant present.
Ms Turner-Davis indicated in her report that, throughout the assessment, Buddha displayed a relaxed body posture and a wagging tail, typical of a socialized dog in society. She recommended that Buddha should receive rehabilitation training to rehabilitate him back into society.
The assessment was observed by Dave Wright, the Director of Training at Dog Force Australia Pty Ltd. He was engaged by the Registrar. The appellant annexed to her statement Mr Wright’s written observations about the assessment conducted by Ms Turner-Davis:
(a)Buddha’s initial presentation was calm. He was friendly to the two DAS staff who were with him in the yard and with whom he was familiar.
(b)The only assessment of human aggression or reactivity was when another DAS staff member appeared in an adjacent compound holding a dog. The staff member and dog were strangers to Buddha. Mr Wright did not consider that this sufficiently addressed Buddha’s response to potential encounters with strangers. He did not observe any attempt to assess the intrinsic or developed predatory drive in Buddha during the assessment.
(c)Mr Wright described Buddha’s reaction to the other dog as mirroring the other dog along the fence line, then beginning to vocalise with a growl and some higher pitched whining. Based on this, Mr Wright stated that he would not allow Buddha to interact with any other dogs unless in very controlled circumstances.
Mr Wright expressed the following opinion about Ms Turner-Davis’ assessment of Buddha:
I believe this assessment failed to determine the full degree of risk to the public that allowing a dog like ‘Buddha’ to interact in the absence of strict controls, will pose. The assessment time was very short, the reluctance of the assessor to enter the enclosure to conduct the assessment, combined with the apparent design of potential triggers to be kept at a low level and small range, somewhat compromises the confidence I could have in any outcomes of this assessment.
…
The dog-to-dog assessment, whilst conducted in a very brief manner, still demonstrated certain reactivity levels from ‘Buddha’ I would see as posing a risk to other dogs. It is hard to say with certainty in these situations, as so much depends on the context of any interaction – such as social status, neutrality, movement, mood etc.. of other dogs he may encounter. What I can say with certainty is that he is not a ‘neutral’ dog and in certain circumstances, ‘Buddha’ will continue to pose a risk to other dogs and animals (including people).[5]
[5] Observations on Behavioural Assessment of “Buddha” conducted by independent Assessor/Dog Trainer at Domestic Animal Services Canberra on Monday 4 December 2023, pages 4–5
Mr Wright was not required for cross examination and did not attend the hearing of the appeal.
Mr Peter Hockings conducted an assessment of Buddha at the request of the Registrar on 6 December 2023 and provided a report. Mr Hockings has been training dogs for seventeen years, initially training dogs with the dog unit of the Australian Federal Police (AFP). He has been a police dog handler for nearly nine years. From 2016 to 2019, he was a tactical dog handler with the AFP, as part of the AFP’s counter-terrorism response team. He is now a member of the AFP’s general purpose dog team and has trained with services in Australia, America and Europe and has been deployed to Ukraine with a cadaver dog with the Dutch military. He owns and operates a business in having or raising dogs for service dog training and has trained pet dogs for 16 years.[6]
[6] Transcript of proceedings dated 5 June 2024, page 59, lines 26 to 33 and page 60, line 6
Mr Hockings stated in his report that he had interacted with Buddha every time he walked past his enclosure, since 2021. Mr Hockings stated that he had found Buddha to vary in his reaction to him, from aggressive harassment through the fence to being friendly and wanting to interact in a playful manner.
Mr Hockings gave evidence that his assessment of Buddha lasted about an hour.[7] The appellant observed the assessment. Mr Hockings commented that, at the beginning of the assessment, Buddha showed no aggressive or concerning tendencies. He also noted that Buddha was aware of the appellant’s presence a short distance away as he was sniffing the air throughout the assessment.
[7] Transcript of proceedings dated 5 June 2024, page 51, line 3
Mr Hockings reported that, during the dog interaction part of the assessment, Buddha displayed a level of predation and aggressive behaviour. As another dog displayed playful tendencies and pushed into the fence in the adjacent enclosure, “Buddha was seen to curl his lip and bare teeth whilst simultaneously growl and snap.” Mr Hockings stated that Buddha was able to self-regulate, but in that moment the dogs could potentially have started a fight with each other.[8]
[8] Mr Hockings’ behavioural assessment report of assessment conducted on 6 December 2023 (Hockings Report), page 3
Mr Hockings expressed the opinion in his report that Buddha had not received enough training for what he would call an obedient dog.[9] In Mr Hockings’ opinion, Buddha still posed a significant risk to the public.[10] He recommended the imposing of strict controls to enable the safe rehabilitation of Buddha into his home.
[9] Hockings Report, page 3
[10] Hockings Report, page 4
At the hearing of the appeal, Mr Hockings was asked by counsel for the Registrar about the prospects of Buddha becoming an obedient dog. Mr Hockings responded that Buddha “had glimpses of trainability” and “would become a different dog if he bonded to me and I would be able to get a certain element of obedience out of him.”[11] Mr Hockings also commented on “bull breeds” of dog like Buddha, stating:
In the right ways, they're amazing dogs, but in the wrong ways, they are incredible liabilities and will cause immense damage up to and including, you know, fatal attacks that have occurred in Canberra over the last, you know, 15 years that I've been here.[12]
[11] Transcript of proceedings 5 June 2024, page 46, lines 26 to 29
[12] Transcript of proceedings 5 June 2024 page 47, lines 24 to 27
Having made this observation, Mr Hockings said that Buddha “is not a dog to be taken lightly. He has the propensity to change behaviour quite quickly.”[13] Mr Hockings described Buddha as “an animal who has the propensity for great violence.”[14]
[13] Transcript of proceedings 5 June 2024 page 47, lines 30 to 32
[14] Transcript of proceedings 5 June 2024, page 48, lines 28 to 29
Mr Hockings acknowledged in re-examination that Buddha sat on command and waited for a cue to eat, and that he had an intense food drive, which could help with obedience training. He stated that he would not consider Buddha to be disobedient or to be obedient.[15]
[15] Transcript of proceedings 5 June 2024, page 55, lines 39 to 40
The appellant commented upon her observation of Mr Hockings’ assessment of Buddha in her statement, noting times where Buddha did not react to another dog being given food, and saying that the ranger standing with her made positive comments throughout the assessment.
On 11 April 2024, Ms Turner-Davis advised the appellant that she was unable to assist her in the proceedings, for medical reasons. Accordingly, Ms Turner-Davis was not available to give oral evidence at the hearing.
Does the appellant have to establish a further error?
After the hearing had concluded, the Second Appeal Tribunal requested the tribunal’s registrar to invite the parties to make further submissions about the correct approach to factual issues in the appeal. The tribunal’s registrar wrote to the parties, indicating that the Second Appeal Tribunal had formed the preliminary view that, in circumstances where the appellant has established that the Original Tribunal made an error of law and new evidence has been admitted as a consequence:
(a)the appellant does not have to establish any further error; and
(b)it is for the Second Appeal Tribunal to form its own view of the facts, on the basis of all the evidence, including the new evidence.
The tribunal’s registrar invited the parties to make submissions about:
(a)the test the appeal tribunal is to apply when determining factual questions in the appeal, in circumstances where the appellant has established that the Original Tribunal made an error of law and new evidence has been admitted; and
(b)the application of the correct test to the facts in this appeal.
In written submissions made in response to this invitation, the appellant referred to the Supreme Court’s order that the Second Appeal Tribunal decide whether Buddha should be destroyed. She submitted that this was to be determined:
(a)by considering the safety of the public and other animals as per section 53C(3)(a)(i) of the Domestic Animals Act 2000; and
(b)on the basis of all the evidence, including the new evidence.
The appellant submitted that the consideration of the safety of the public and other animals was to reflect the facts at the time of the Second Appeal Tribunal’s decision.
It is implicit in the appellant’s submissions that the appellant did not consider that it was necessary for her to establish any factual error on the part of the Original Tribunal for the Second Appeal Tribunal to make different factual findings.
The Registrar submitted that, ordinarily, an appeal by way of hearing has the following features (adopting the Registrar’s footnote citations):
(a)it is not a completely fresh hearing or all the evidence, but a hearing on the basis of the evidence before the Original Tribunal and any fresh evidence admitted exceptionally;[16]
(b)it requires the facts to be determined, and the law to be applied, at the time of the appeal;[17]
(c)it requires the appellant to demonstrate error in the sense that, having regard to all of the evidence now available, it is the result of some legal, factual or discretionary error;[18]
(d)it allows a factual decision, or a discretionary decision, to be overturned where it is shown that it is plainly wrong,[19] or that no reasonable decision maker could have come to it.[20]
[16] Fox v Percy [2003] HCA 22 at [22]–[23]; The Legal Practitioner v Council of The Law Society of The ACT [2011] ACTSC 207; B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar [2015] ACTCA 7 at [81]
[17] Allesch v Maunz [2000] HCA 40 at [23].
[18] Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298; CDJ v VAJ [1998] HCA 67 at [111]; Allesch v Maunz [2000] HCA 40 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [14]; Lacey v Attorney-General (Qld) [2011] HCA 10; AAA v County Court of Victoria [2023] VSC 13 at [51]
[19] Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; Edwards v Noble [1971] HCA 54
[20] Levetand Levet & Dalla [2013] ACAT 52 at [37]
We accept that that is generally a correct statement of the relevant principles. In relation to (d), there may be circumstances in which a factual or discretionary decision may be overturned when the appellate body concludes that an error has been shown, even if the decision is not “plainly wrong” and even if the appellate body does not conclude that no reasonable decision maker could have come to the decision.[21] That is, however, not a question we have to decide in this appeal.
[21] See Allesch v Maunz [2000] HCA 40 at [23]–[27]
The Registrar submitted that the last proposition (in (d) above) was applicable here and that the Second Appeal Tribunal should be cautious about departing from the Original Tribunal’s factual findings, even though it has power to do so. The Registrar referred to the need to protect the finality of the Original Tribunal’s decision, relying upon Edwards v Noble[22] and Warren v Coombes.[23]
[22] (1971) 125 CLR 296
[23] (1979) 142 CLR 531
The Registrar accepted that the principle of finality only protects findings of fact that are “untainted by error of law” and it does not operate to protect errors of law that are “intimately bound up with … findings of fact,” relying upon Australian Steel & Mining Corp Pty Ltd v Corben.[24] The Registrar also submitted that the Original Tribunal’s breach of procedural fairness did not taint its factual findings.
[24] [1974] 2 NSWLR 202, page 209
In our view, contrary to the Registrar’s position, the Original Tribunal’s breach of procedural fairness tainted its factual findings about the risks posed by Buddha and about his prospects of rehabilitation. As indicated above, the Original Tribunal found that a decision not to destroy Buddha would result in an unacceptable risk to the safety of the public and other animals. The evidence which the appellant wished to adduce but was not permitted to adduce (contrary to the requirements of procedural fairness) was evidence of a full behavioural assessment of Buddha at which the appellant was present. The full behavioural assessment which the appellant wished to obtain and provide to the tribunal was relevant to assessing the risk Buddha posed to the safety of the public and other animals. The Original Tribunal’s finding that Buddha posed an unacceptable risk to the safety of the public and other animals was tainted by that breach of procedural fairness. This is implicit in the Court’s rejection of the respondent’s submission that “the strength of the evidence against Buddha was such that the evidence not adduced from Ms Butler could not possibly have produced a different result.”[25]
[25] Pye v Registrar, Domestic Animals Act 2000 [2023] ACTSC 247 at [99]
The authorities relied upon by the Registrar do not change this conclusion.
In Edwards v Noble,[26] an appellate court set aside a primary judge’s finding of fact in negligence proceedings and substituted a factual finding of its own. A majority of the High Court allowed the appeal, for different reasons given in separate judgments. Barwick CJ (who was in the majority) observed that “the finality of a finding of fact untainted by error of law ought not lightly to be foregone.” His Honour explained that, in that case, “the primary judge is not shown to have made any error of law or to have misapprehended or failed to take account of any material fact.”[27] His Honour acknowledged that the appellate court had power to substitute its view of the facts, but “the appellate court ought not to reverse [a] finding of fact unless it is convinced that it is wrong.”[28]
[26] (1971) 125 CLR 296, page 302
[27] (1971) 125 CLR 296, page 303
[28] (1971) 125 CLR 296, page 304
Edwards v Noble is distinguishable because, here, the Original Tribunal has been shown to have made an error of law, being an error which tainted its factual findings.
In Warren v Coombes,[29] the majority of the High Court (Gibbs ACJ, Jacobs and Murphy JJ) referred to the principles applicable to an appeal by way of rehearing, and to Edwards v Noble, and stated:
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.[30]
[29] (1979) 142 CLR 531
[30] (1979) 142 CLR 531, page 551
Their Honours also observed:
The duty of the appellate court is to decide the case—the facts as well as the law—for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.[31]
[31] (1979) 142 CLR 531, page 552
The Registrar did not point to any particular passage in Warren v Coombes which supported the Registrar’s position that we should give weight to the Original Tribunal’s factual findings, beyond acknowledging the Original Tribunal’s advantage in seeing witnesses give evidence. Warren v Coombes does not support the position that we should be cautious in departing from the Original Tribunal’s factual findings in circumstances where those factual findings are affected by an error of law.
As the First Appeal Tribunal recognised, once error has been found, an appeal tribunal can substitute its own decision based on the facts (including facts established by the further evidence) and the law as they now stand.[32] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[33] Gleeson CJ, Gaudron and Hayne JJ observed:
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker.[34] (emphasis added)
[32] Pye v Registrar, Domestic Animals Act 2000 (Appeal) [2022] ACAT 102 at [21](e)
[33] (2000) 203 CLR 194
[34] (2000) 203 CLR 194 at [14]
In this case, of course, further evidence has been admitted on appeal and an error of law has been found by the Supreme Court.
For these reasons, it is not necessary for the appellant to demonstrate an error in the Original Tribunal’s factual findings for us to make different findings. The principle of finality does not, in the circumstances, require us to be cautious about departing from the Original Tribunal’s factual findings. Our task is to make our own factual findings on the evidence before us, including the new evidence. We will, however, give proper allowance to the advantage of the Original Tribunal which saw and heard the witnesses when making its findings, bearing in mind that we also saw and heard oral evidence which the Original Tribunal did not receive.
What powers may the appeal tribunal exercise?
The Registrar submitted that the appeal tribunal could consider exercising the powers under sections 53B, 53C or 68A of the Domestic Animals Act 2000 to destroy Buddha. There is a question as to whether it is open to the appeal tribunal to exercise powers, when making a substitute decision, other than the power used to make the decision under review.
The task of the Original Tribunal was to review the decision of the Registrar, made under section 53C of the Domestic Animals Act 2000, to decide to destroy Buddha.[35] Pursuant to section 68(3) of the ACAT Act, the tribunal was required to confirm, vary or set aside the decision. If it set aside the decision, it had power either to make a substitute decision or to remit the matter to the original decision-maker. Section 68(2) of the ACAT Act provides that, when reviewing the decision, the tribunal may exercise any function given by an Act to the entity which made the decision “for making the decision.”[36]
[35] Domestic Animals Act 2000 s 120
[36] ACAT Act s 68(2)
The tribunal’s powers under section 68 of the ACAT Act were considered by Kennett J in Zapari Property Coombs Pty Ltd v Commissioner for Australian Capital Territory Revenue.[37] His Honour observed:[38]
… s 68(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act) is closely analogous to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), as to which the High Court has held that “[t]he primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review”: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, 266 CLR 250, [51] (Bell, Gageler, Gordon and Edelman JJ); see also [15] (Kiefel CJ, Keane and Nettle JJ). Section 68(2) of the ACAT Act authorises the ACAT to perform functions given by an Act to the primary decision maker, but only the functions given “for making the decision”. In other words, the ACAT is armed with the powers that were available to the original decision maker for the purpose of making the decision under review, and not with other decision making powers invested in that entity. Its position is therefore substantially the same as that of the Commonwealth Administrative Appeals Tribunal, although the language of s 68(2) is different to that of the equivalent provision in the Commonwealth legislation (see Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, [133] (Kiefel J), citing Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32, 40).
[37] [2022] ACTSC 189
[38] [2022] ACTSC 189 at [68]
In Frugtniet v Australian Securities and Investments Commission,[39] Bell, Gageler, Gordon and Edelman JJ made the following remarks about the Administrative Appeals Tribunal’s function when reviewing an administrative decision:
The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.[40] (footnote omitted)
[39] [2019] HCA 16
[40] [2019] HCA 16 at [51]
Those authorities might suggest that the Original Tribunal was confined to confirming, varying, or setting aside the Registrar’s decision made under section 53C of the Domestic Animals Act 2000 and, if substituting a different decision, substituting one the Registrar had power to make under section 53C. However, we have also considered that it may have been open to the Original Tribunal to make a substitute decision under section 53B, since it is a closely related power which raises many of the same questions the Registrar was required to address; including whether a dog attacked a person, whether the injury was a “serious injury”, and, if so, whether to decide to destroy the dog (albeit that, if the injury was a serious injury, the Registrar was required to destroy the dog). We do not consider that the Original Tribunal was entitled to make a substitute decision under section 68A of the Domestic Animals Act 2000, being a power which does not depend upon a dog attack or an injury.
Assuming, without deciding, that the Original Tribunal was entitled to make a substitute decision under section 53B of the Domestic Animals Act 2000 if the conditions for the exercise of that power were satisfied, there is an additional question as to whether the appeal tribunal may do so. An appeal tribunal “has all the powers and duties of the tribunal that made the order appealed from” and “may make an order confirming, amending, setting aside or replacing the order of the tribunal appealed from.”[41] Accordingly, the appeal tribunal would be entitled to exercise the power in section 53B if the Original Tribunal could do so.
[41] ACAT Act s 82(2)
As indicated above, the Registrar’s decision to destroy Buddha was made pursuant to section 53C of the Domestic Animals Act 2000. It was made on the basis that the Registrar was satisfied that Buddha attacked a person and the attack caused injury (other than serious injury).[42] Where a dog attack causes an injury which is not a serious injury, the decision to destroy a dog is a discretionary one.[43]
[42] Domestic Animals Act 2000 s 53C(1)(a)(i)
[43] Domestic Animals Act 2000 s 53C(2)
Section 53B of the Domestic Animals Act 2000 applies where, relevantly, the Registrar is reasonably satisfied that a dog attack caused serious injury to a person.[44] If so satisfied, the Registrar must destroy the dog.[45]
[44] Domestic Animals Act 2000 s 53B(1)(a) and (b)(ii)
[45] Domestic Animals Act 2000 s 53B(2)
A “serious injury” [46] is defined to mean either of the following:
(a) any injury (including the cumulative effect of more than 1 injury) that—
(i) endangers, or is likely to endanger, the person or animal’s life; or
(ii) is, or is likely to be, a significant or longstanding injury;
(b) 1 or more serious dog bites.
[46] Domestic Animals Act 2000 Dictionary y
A “serious dog bite” means “a wound from a single dog bite that has at least 1 puncture deeper than half the length of the dog’s canine tooth, with or without bruising or lacerations around the wound.”[47]
[47] Domestic Animals Act 2000 Dictionary
The Registrar submitted that the appeal tribunal could infer that Buddha’s bite necessarily involved enough force to break the skin and to cause superficial bruises and bleeding; and could interpolate from the size of the wounds depicted in photographs in evidence that it was more likely than not that the wound was deeper than half of Buddha’s canine tooth.
We do not agree.
The Registrar’s submission requires us to find that the Registrar was wrong in the Registrar’s initial assessment that Buddha’s attack on Mr Li did not cause serious injury to him and, essentially, that the decision under review was made in error. This is an unusual position to take when the Registrar maintained that the decision had been made correctly under section 53C before the Original Tribunal, the First Appeal Tribunal and the Supreme Court.
As the Registrar acknowledged, there is no evidence before us as to the depth of the bite to Mr Li, nor as to the length of Buddha’s teeth. In these circumstances, there is insufficient evidence to conclude that Mr Li’s wound was deeper than half of Buddha’s canine tooth.
Nor are we satisfied that the injury to Mr Li was, or was likely to be, a significant or longstanding injury, within the meaning of the definition of “serious injury.” We were not taken by the parties to any authorities on the meaning of “significant or longstanding injury” and we have not been able to find any.
Mr Li’s evidence, given at the hearing before the Original Tribunal, was that “I have recovered good by four months.”[48] We consider that the word “longstanding” in the definition of “serious injury” refers to an injury of a longer duration. It may be acknowledged that Mr Li’s injury was not insignificant. However, we do not think it meets the description of a “significant … injury,” within the meaning of the definition of “serious injury.”
[48] Transcript of hearing on 1 March 2022, page 26, line 40
Sections 53B and 53C of the Domestic Animals Act 2000 and the definition of “serious injury” were introduced by the Domestic Animals (Dangerous Dogs) Legislation Amendment Act 2017. In the presentation speech to the Domestic Animals (Dangerous Dogs) Legislation Amendment Bill 2017, the then Leader of the Opposition, Mr Coe, referred in support of the need for legislative amendment to separate incidents in which a dog attacked a boy’s throat; a man lost part of his hand in a dog attack; and a woman lost her life after being attacked in her home by her own dog.[49] The supplementary explanatory statement to the Bill provided that the Bill with government amendments would:
… introduce three new classes of responding to a dog attack with proportionate powers to act by the registrar. The registrar will be able to destroy a dog in extreme and serious circumstances with reduced appeal timeframes so that action can be taken promptly and without delay;[50]
[49] Hansard Legislative Assembly for the Australian Capital Territory Week 13–1 November 2017, pages 4761 to 4762
[50] The Legislative Assembly for the Australian Capital Territory Government amendments to the Domestic Animals (Dangerous Dogs) Legislation Amendment Bill 2017 Explanatory Statement 29 November 2017
The examples of attacks given in the presentation speech and the reference to “extreme and serious circumstances” in the explanatory statement strongly suggest that the legislature had in mind injuries more serious than a puncture wound to the back of a person’s thigh, with superficial bruising around the area, when it used the term “significant … injury.”
For these reasons, we consider that we are limited to exercising the power under section 53C of the Domestic Animals Act 2000, when deciding whether to make any substitute decision.
Factual issues
The appellant identified in her original written submissions “the single error of law affecting the original Tribunal’s decision” as being “that the evidence does not support a decision to destroy Buddha under section 53C of the Act.” She submitted that the relevant matter to consider in this matter was “the safety of the public and other animals” within section 53C(3)(a)(i). In her submission, the totality of the evidence (including that which was not before the Original Tribunal) does not support a decision to destroy Buddha.
The contention that the evidence does not support a decision to destroy Buddha does not identify an error of law, unless it were submitted (which it was not) that there was no evidence supporting that decision. However, as indicated above, it is not necessary for the appellant to identify another error of law, having already established one. The questions for the Second Appeal Tribunal, then, are what are the correct factual findings to make about the risk Buddha poses to the safety of the public and other animals and, having made those findings, what is the appropriate exercise of discretion?
Does Buddha pose a risk to the safety of the public and other animals?
The appellant submitted that it was appropriate to have regard to the test in section 68A of the Domestic Animals Act 2000 which applies if the Registrar reasonably believes that a dog “is an unacceptable risk to the safety of the public or other animals” and “cannot be reasonably rehoused, retrained or otherwise rehabilitated so that the dog is no longer an unacceptable risk to the safety of the public or other animals.”[51] That is, she said that we should consider whether Buddha poses “an unacceptable risk to the safety of the public or other animals.”
[51] Appellant’s submissions on 9 May 2024 at [24]
There is a danger importing a test used in one provision as if it were included in another provision. Section 53C(3)(a)(i) requires the Registrar to consider “the safety of the public and other animals” when considering whether to decide to destroy a dog. That is one consideration among others, not a test which has to be satisfied. It would be an error to consider that the power to destroy a dog in section 53C(2) could not be exercised unless the Registrar (or tribunal) were satisfied that a dog posed an unacceptable risk to the safety of the public or other animals.
It is not in dispute that Buddha has been declared by the tribunal, in earlier proceedings, to be a dangerous dog.[52] When giving evidence at the appeal hearing before the Second Appeal Tribunal, the appellant accepted, with some apparent reservations, that Buddha is a dangerous dog.[53] In her closing submissions, the appellant’s solicitor stated that “[t]he appellant is not at all — you know, completely accepts that Buddha is a dangerous dog and would require a dangerous dog licence.”[54]
[52] Domestic Animals Act 2000 s 22; see Pye v Registrar, Domestic Animals Act 2000 (Appeal) [2022] ACAT 102 at [32]
[53] Transcript of hearing on 5 June 2024, pages 33–34
[54] Transcript of hearing on 5 June 2024, page 105, lines 17–18
The appellant submitted that Buddha had “matured during his years of impoundment.”[55] In her closing oral submissions, Ms Ward, for the appellant, submitted that the decision to destroy Buddha had been made about two and a half years ago and that the passage of time reveals how the dog is maturing and responding to their circumstances.[56] This was significant because, as she told the Second Appeal Tribunal:
While the prognosis of the dog was bleak when assessed in February and December 2021 by the same assessor, the dog has since been assessed by four different assessors, none of whom indicated the dog was beyond rehabilitation or could not be trained, or, as the original assessor opined back in February 2021, that he should be destroyed.[57]
[55] Appellant’s submissions on 9 May 2024 at [31]
[56] Transcript of hearing on 5 June 2024, page 61, lines 34–43
[57] Transcript of hearing on 5 June 2024, page 62, lines 6–11
Ms Ward also submitted that, during the period in which Buddha has been impounded:
We have not heard evidence of incidents of undue aggression, no reports of staff not wanting to deal with the dog, no attempted fights with other dogs and no reactions to pound vets whom he would have seen over the years.[58]
[58] Transcript of hearing on 5 June 2024, page 62, lines 19–23
It was relevant, in her submission, that “there has been no recorded undue aggression or desocialisation or difficulty in handling during the last 30 months.”[59]
[59] Transcript of hearing on 5 June 2024, page 66, lines 10–11
We accept that the absence of any reported incidents of undue aggression in the period of 30 months or so whilst Buddha was impounded is a relevant matter. However, the evidence establishes that for the most part Buddha was kept in a cage by himself. He was allowed to exercise, as far as the evidence establishes, once a week in a secure yard, it would appear in isolation from other dogs. Staff members generally, but not invariably, wore bite suits when in Buddha’s presence. On occasion, the appellant or her brother entered the secure yard without a bite suit and were not bitten.
The absence of any reported aggressive behaviour or fights with other dogs provides a fairly limited indication of the risk posed by Buddha to the public and other animals in circumstances where he was always in a controlled environment and generally, but not always, on his own. There is insufficient evidence for us to conclude that Buddha has “matured” or that the risk he posed when he was impounded has decreased significantly, or at all.
The evidence relevant to the question of whether Buddha poses a risk to the public and to other animals also includes:
(a)The evidence of Buddha’s behaviour in 2020, as contained in the Registrar’s records.
(b)Mr Grutzner’s opinion in February 2021, that Buddha is a dangerous dog “that will bite and injure a person when he feels the need, without hesitation”.
(c)Mr Grutzner’s evidence, before the Original Tribunal, that Buddha bit his forearm in 2021 when he was wearing a bite suit.
(d)The incident in which Buddha bit Mr Li on his right thigh in November 2021, in an unprovoked attack.
(e)Ms Butler’s report in February 2022 that Buddha was a “happy go lucky friendly boy” but, if threatened, he became “defensive and the reactivity is seen,” that on a couple of occasions he “opened his mouth around the hand part of the bite suit” and that Buddha had the potential to react and bite, if pushed.
(f)Ms Butler’s evidence that she thought Buddha was trainable and that he could be rehabilitated.
(g)The appellant’s evidence that, when visiting Buddha at the DAS shelter, she was not required to wear protective clothing and Buddha was not aggressive, and that he was calm on a visit to the vet.
(h)The appellant’s evidence that when Buddha escaped from the DAS shelter, there were no reports that he had behaved aggressively whilst in the community for four days.
(i)Ms Turner-Davis’ opinion that Buddha’s behaviour was “typical of a socialized dog in society”.
(j)Mr Wright’s report that Buddha reacted to another dog by mirroring behaviour, then by growling and high-pitched whining.
(k)Mr Wright’s opinion that Mr Turner-Davis’ assessment failed to determine the full degree of risk to the public that allowing a dog like Buddha to interact in the absence of strict controls, would pose.
(l)Mr Hockings’ observations of Buddha over the last three years that he varied from aggressive harassment through the fence to being friendly and wanting to interact in a playful manner.
(m)Mr Hockings’ opinion, following his assessment in December 2023, that Buddha still posed a significant risk to the public.
(n)Mr Hockings’ evidence that Buddha has “the propensity for great violence” along with his evidence that Buddha “had glimpses of trainability” and “would become a different dog if he bonded to me and I would be able to get a certain element of obedience out of him.”[60]
[60] Transcript of hearing on 5 June 2024, page 46, lines 26–29
We have decided not to take into account the evidence contained in the Registrar’s records about Buddha’s behaviour in 2020, other than the evidence that Buddha was involved in a fight with Tonner, which resulted in injuries to both dogs. The reason we have not taken into account the other evidence is that it is hearsay. The Registrar did not obtain statements from the complainants or make them available for cross-examination. Further, the Registrar did not place any emphasis on this evidence in the Registrar’s submissions. In these circumstances, it would be unfair to the appellant to give this material any weight.
The evidence about the dog fight was the subject of the Statement of Agreed Facts, so it is in a different category. The Original Tribunal also made findings about the dog fight which were not challenged on appeal. These included that, following the fight, Tonner had multiple puncture wounds on both of his ears, the back of his neck and on his left elbow and was unable to walk.[61]
[61] Original Tribunal’s reasons dated 10 May 2022 at [12]
We give minimal weight to the absence of evidence that Buddha behaved aggressively whilst in the community, after escaping from the DAS shelter. There is little information about where he was during that time and what he did. If Buddha did act aggressively whilst in the community, it may not have come to anyone’s attention or may not have been reported. It is not possible to determine whether Buddha did or did not act aggressively during this period.
We have given only minimal weight to Ms Turner’s comments that, during her assessment of Buddha, he “presented with behaviours that were above the range of a dog who has been provided with the necessary physical and emotional levels daily” and that his behaviour was “typical of a socialized dog in society.”
The first reason we have given little weight to Ms Turner’s opinions is that she was not available for cross -examination, so that her evidence is untested. Second, we accept Mr Wright’s unchallenged evidence that, during Ms Turner’s assessment, Buddha reacted to another dog by mirroring behaviour, then by growling and high-pitched whining. We also accept his opinions about the limitations of Ms Turner’s assessment, some of which are referred to above and which are set out in more detail in his report. We accept his opinion that Buddha will continue to pose a risk to human beings and animals.
In our view, the evidence, considered as a whole, overwhelmingly supports the conclusion that Buddha poses a risk to the safety of the public and other animals. We give particular weight to Mr Hockings’ opinion that Buddha poses a risk to the public and that he has the propensity for great violence. Mr Hockings has a significant amount of relevant experience and expertise in working with and training dogs such as Buddha. He made appropriate concessions in the course of cross-examination and was a persuasive witness. We also note that Buddha has attacked people or animals or acted aggressively on several occasions over a number of years, including in the fight with Tonner in March 2020; by biting Mr Li in November 2021; by biting Mr Grutzner in December 2021; and by putting his mouth around the hand part of Ms Butler’s bite suit in February 2022. Mr Wright and Mr Hockings both considered, and we find, that Buddha’s more recent behaviour demonstrated a level of aggression or a degree of reactivity which indicates that he poses a risk to other people and animals.
Can Buddha be rehabilitated?
The Original Tribunal stated that it had difficulty in accepting Ms Butler’s evidence that Buddha can be rehabilitated.[62] The new evidence, however, supports the view that he probably could be rehabilitated to some extent with appropriate training. Ms Turner-Davis was of the view that Buddha could be facilitated back into society through rehabilitation training. Mr Hockings also expressed the opinion that Buddha could safely be rehabilitated “through consistent training by a suitable qualified trainer.”[63]
[62] Lisa Pye v The Registrar Domestic Animals Act 2000, AT 7/2021 and AT 8/2021, decision dated 10 May 2022, at [77]
[63] Hockings Report, page 4
On the basis of this evidence, we find that it is more likely than not that Buddha could be trained to be less aggressive and more obedient. This would not, however, mean that Buddha would no longer pose a risk to public safety or to other animals. As Mr Hockings indicated, Buddha would still need to be muzzled in public and all dangerous dog protocols would need to be put in place. Similarly, Mr Wright stated in his report that, if Buddha was returned to his owner or another member of the public, “compliance with very strict controls such as muzzle & on-leash at all times in public, secure compound within yard, signage, locks etc. would be essential.”[64]
Exercise of discretion
[64] Report of David Wright, 7 December 2023, page 5
In deciding whether to depart from the Original Tribunal’s decision to confirm the Registrar’s decision to destroy Buddha, under section 53C(2) of the Domestic Animals Act 2000, we are required to consider, relevantly, the safety of the public and other animals and the circumstances of Buddha’s attack on Mr Li, including the circumstance that the attack was unprovoked.[65] We may also consider any other relevant matter.
[65] Domestic Animals Act 2000 s 53C(3)(a(i) and (ii)(A)
The appellant submitted that it was relevant to consider whether Buddha “cannot be reasonably rehoused, retrained or otherwise rehabilitated so that the dog is no longer an unacceptable risk to the safety of the public or other animals” (being the words used in section 68(1)(b) of the Domestic Animals Act 2000). It is not, in our view, appropriate to ask ourselves this question in circumstances where section 53C(2) does not require us to consider unacceptable risk. However, we accept that it may be of some relevance to consider whether Buddha could be trained to modify his behaviour (as we have done above), and what options might arise, should we decide to substitute a decision not to destroy Buddha.
The appellant sought an order setting aside the decision to destroy Buddha and remitting the question as to whether to issue a control order under section 53(4) of the Domestic Animals Act 2000 to the Registrar. Section 53C(4) provides:
…
(4) If the registrar decides not to destroy the dog, the registrar—
(a) may issue a control order for the dog to the dog’s keeper or carer; and
(b) if the registrar issues a control order to a carer of the dog—must give a copy of the order to the dog’s keeper.
Ms Ward submitted at the hearing that the appellant could apply for a licence to keep a dangerous dog, under section 24 of the Domestic Animals Act 2000. Ms Ward also submitted that there may be options for keeping Buddha with another person, since ownership of dangerous dogs may be transferred.
It is an offence to keep a dangerous dog without a licence under section 24 of the Domestic Animals Act 2000.[66] As mentioned above, the appellant’s dangerous dog licence was cancelled by the Registrar on 6 January 2022. The Original Tribunal confirmed that decision, the First Appeal Tribunal dismissed an appeal from the decision of the Original Tribunal to confirm the Registrar’s decision, and the Supreme Court confirmed the Original Tribunal’s order confirming the Registrar’s decision.
[66] Domestic Animals Act 2000 s 23
The appellant did not apply for another licence to keep a dangerous dog under section 24 of the Domestic Animals Act 2000 before the hearing. In her additional submissions filed after the hearing, however, she said she had made such an application on 15 July 2024 but that no decision about that application had been made.[67] There was no evidence of this application and the appellant did not seek leave to adduce further additional evidence after the hearing. Had she done so, we would have sought the respondent’s views and possibly reconvened to consider the application.
[67] Appellant’s additional submissions dated 15 August 2024 at [14] and at footnote 2
The appellant relies upon evidence provided in accordance with the timetable which she says would support the grant of a licence to her to keep a dangerous dog. This includes the appellant’s own evidence of her “vastly changed and improved personal and mental circumstances,” her evidence that she has suitable premises to keep Buddha and that an organisation called “Bark Busters” could train Buddha.
The appellant’s contention that she may be granted a dangerous dog licence is speculative. There are some strong factors which would tend against the grant of a licence to the appellant, including her failure to comply with the conditions of a dangerous dog licence in the past. The possibility that she may be granted a dangerous dog licence is not a strong factor in support of us substituting a decision not to destroy Buddha for the Original Tribunal’s decision. The appellant submitted that we could, if minded, set aside the Original Tribunal’s orders and the Registrar’s decision to destroy Buddha and order instead that the Registrar endeavour to determine within a set timeframe whether to grant a dangerous dog licence in relation to Buddha.[68] We doubt we have power to make that order. Even if we do, we are not inclined to do so. If the Registrar did not grant a licence to the applicant, the question (which is before us now) as to whether to destroy Buddha is likely to arise again. There is a public interest in finally determining that question.
[68] Appellant’s additional submissions dated 15 August 2024 at [14]
There is no evidence that anyone other than the applicant is considering applying for a dangerous dog licence for the purposes of looking after Buddha, or that any person has agreed to accept the transfer of ownership of Buddha under section 12 of the Domestic Animals Act 2000. The appellant has not put forward any suitable candidate with whom to rehome Buddha.
In circumstances where the evidence does not establish any real prospect of any person looking after Buddha in the community under a dangerous dog licence, who could keep him in a way that protects the safety of the public and other animals, a decision to set aside the Original Tribunal’s decision would mean, in all likelihood, that Buddha would remain impounded indefinitely.
Having regard to the circumstances that Buddha’s attack on Mr Li was unprovoked, that he poses a risk to the safety of the public and other animals, and that there is no real prospect of him being rehomed at present, we have decided to dismiss the appeal and to confirm the Original Tribunal’s decision to destroy Buddha.
………………………………..
Presidential Member J Lucy
For and on behalf of the Appeal Tribunal
| Date of hearing: | 5 June 2024 | |
| Solicitor for the Appellant: | Ms T Ward | |
| Counsel for the Respondent: | Mr D Ager | |
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