By Hikari Kato and Hollie Harber, University of Technology Sydney
This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.
Citation: Council of the City of Lake Macquarie v Morris  NSWSC 387
Court – Supreme Court of New South Wales
Judge – Johnson J
Date of Judgment – 26 April 2005
FACTS OF THE CASE
Morris, the defendant, owned a Rottweiler named Sole and an American Pit Bull Terrier named Mishka, who were alleged to have attacked a Staffordshire Terrier. On 25 March 2004, rangers found Sole and Mishka standing near the Staffordshire Terrier who was lying injured and motionless in the gutter. Rangers also observed that the Mishka displayed aggression towards the injured dog by lunging towards him or her, although the witnesses did not witness any actual physical contact between the dogs which was assumed to have been made.
The Council of the City of Lake Macquarie prosecuted Morris for a breach of s 16(1)(a) of the Companion Animals Act 1998 (NSW) (‘the Act’), alleging that his dogs had committed an attack which caused injury to, and the subsequent death of, the Staffordshire Terrier. Section 16(1)(a) stipulates that “If a dog rushes at, attacks, bites, harasses or chases any person or animal (other than vermin), whether or not any injury is caused to the person or animal, the owner of the dog is guilty of an offence”. An American Pit Bull Terrier is also classified as a restricted breed, under s 55(1)(a) of The Act.
Morris claimed that there was no evidence as to which dog attacked whom; as such, it was claimed that the deceased dog’s injury was the result of a “dog fight”, rather than the consequence of a “dog attack”. Morris also claimed the defence of provocation under s 16(2)(a) of the Act, which stated that an attack would not amount to an offence where it was “a result of the dog being teased, mistreated, attacked or otherwise provoked”.
At the original trial, the Magistrate found that the Council of the City of Lake Macquarie could not negate a defence of provocation, put forward by Morris pursuant to s 16(2)(a) of the Act. Accordingly, the Magistrate found that there was insufficient evidence to prove the case against Morris beyond reasonable doubt, and dismissed the charge. The Council of the City of Lake Macquarie appealed. The appeal concerned only Mishka, the American Pit Bull Terrier. Morris submitted a Notice of Contention, claiming that it was not open to the Magistrate to find a prima facie case against him.
- Whether the dog’s conduct fell within the definition of an “attack”.
- Whether the Magistrate was incorrect to find that the Council was required to negative the defences, particularly provocation, without first considering whether the evidentiary burden required to raise the defence had been discharged by Morris.
- Whether the Magistrate erred in finding a prima facie case against Morris.
The appeal was allowed based on a finding of an error of law. The matter was accordingly remitted to the Local Court to be heard and determined according to law.
The definition of an “attack”
To determine the definition of “attack” as used in s 16(1)(a), the Court considered the meaning of the term under s 16(1) of the Dog Act 1966 (NSW), as interpreted in Eadie v Groombridge (1992) 16 MVR 263. In that decision, the Court noted that “attacking” occurred if there was “an act of hostility or aggression”. The case also found that if a dog “came at” a person in the street this was an attack under s 20(1) of the Dog Act 1966 (NSW). Furthermore, circumstances involving a “growling and barking dog charging at a person” might amount to an attack (see Zappia v Allsop  NSWCA 355), as might running, barking and yapping at a horse (Crump v Sharah  NSWSC 884; Coleman v Barrat  NSWCA).
The Court indicated that based on the wording of the section itself, to constitute an “attack” under s 16(1), it was not necessary to prove that injury, or physical contact, actually occurred between the dog and the person or animal who is said to have been attacked. Further, an offence could be based on a single act or a series of acts. In this case, rangers witnessed the act of aggression by Mishka towards the deceased dog, and this satisfied the requirement of a dog attack under s 16(1) of the Act. The Court noted that conduct comprising the attack for the purposes of The Act was not limited to the first act of aggression. It also held that “[i]t might be inferred from the presence of the two attacking dogs in the vicinity of the badly injured Staffordshire terrier that those two dogs had occasioned injuries to the third dog”.
The operation of the defence
The Court identified that s 16(2)(a) of the Act established a defence of provocation to a charge under s 16(1), which placed an evidentiary onus on Morris to raise the matter contained within the defence. Once the matter was raised, it would be for the Council to negative beyond reasonable doubt. Section 16(2) stated that the attack would not be an offence if “the incident occurred as a result of” the provocation. As such, it was necessary to show that the attack was caused by the provocation. In this case, the minor injury on the American Pit Bull Terrier’s head was not adequate to discharge the evidentiary burden for the purpose of s 16(2)(a).
The presence of a prima facie case against Morris
The Court also found, contrary to Morris’s submission, that the aggressive conduct of Mishka as observed by the rangers was sufficient to establish a prima facie case.
This case established the kind of behaviour which could constitute an attack for the purposes of s 16(1) of the Act. An injury is not required to conclude that an “attack” took place; moreover, an absence of physical contact between the dog and the person or animal will not preclude liability under the provision. Evidence of “lunging”, “hostile action” or “initial (offensive) movement” is sufficient. It is also important to note that the severity of the offence is increased if the dog is classified as either a “restricted” or “dangerous” dog (Companion Animals Act 1998 (NSW) s 16(1)(b)(b)).