By Matthew Jones, 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: Holland v Crisafulli [1999] 2 Qd R 249

Court – Supreme Court of Queensland
Judge – Wilson J
Date of Judgment – 28 September 1998

FACTS OF THE CASE

On 2 July 1997, a dog entered a residence, turned over a cage and attacked and killed a guinea pig who was inside the cage. Brisbane City Council (‘The Council’) declared the dog “dangerous” pursuant to s 33(i)(b) of the Dog Registration and Control Ordinance 1984 (Qld) (‘the Ordinance’). Holland, the applicant, took the issue to court on the basis that there was “no evidence to justify the making of the decision” (Judicial Review Act 1991 (Qld) s 20(2)(h)).

THE ISSUE

Whether there was evidence upon which The Council could declare the dog dangerous.

THE DECISION

The Court held that the classification of the dog as “dangerous” was appropriately made.

The Ordinance classified dogs according to three groups:

• General Dogs;
• Prescribed Dogs – whose entire breed are deemed dangerous (for example greyhounds); and
• Dangerous Dogs – who are determined to be dangerous on a case by case basis by the relevant council.

The Court noted that “the description of a dog as ‘dangerous’ or ‘ferocious’ relates to its nature or disposition”.

Holland argued on the basis of the English decision of Sansom v Chief Constable of Kent [1981] Crim LR 617, with respect to the propensities of dogs to chase other animals. In that case, a dog was found not to be dangerous even though he or she entered a neighbour’s premises, opened a rabbit cage and killed two tame rabbits. In that case, the Court held “that it was in the nature of dogs to chase, wound and kill other little animals; that wild rabbits were game; that it was lot to ask a dog to distinguish a tame from a wild rabbit or to distinguish [his or her] colour”. Holland further argued that rabbits were similar to guinea pigs and that her dog was only exhibiting natural, rather than dangerous, behaviour when he or she wounded and killed the smaller animal.

The Court, did not accept any “logical distinction between a dog’s propensity to pursue animals such as sheep and its propensity to pursue other animals such as guinea pigs”. The Court held that the size of the prey is irrelevant in determining whether a dog is dangerous or whether the species of animal is of a type normally pursued by a dog. Further, the Ordinance imposed an obligation upon an owner of a dangerous dog to keep the dog under proper control by ensuring that, when in public, he or she was fitted with a muzzle so as to prevent him or her from biting “any person or animal”. The definition of “animal” was deemed “inclusive”; despite the exclusion of undomesticated birds from the class of animals upon which The Ordinance sought to confer protection, the Court identified “no reason to distinguish between four-legged animals according to whether they are of a type which dogs normally pursue or whether they are wild or tame.”

The Court therefore held that there was sufficient evidence to satisfy the Council officers orders that the dog be classified as “dangerous”.

COMMENTARY

This case supports the view that dogs are dangerous if they have the tendency to wound, attack, harm or kill either another animal or a human, regardless of whether the animal attacked is small, tame or even wild, and regardless of whether the dog has a higher tendency to pursue these smaller animals. Significantly, this is one decision in which the Court eschewed an approach to animal protection on the basis of species; the size of guinea pigs was irrelevant to the consequence of their destruction for the purposes of characterising the dog as dangerous.