Intro

In early January, a Solicitor for an animal rights legal organization contacted a state Legal Assistance Team requesting urgent representation in defending a criminal matter involving the alleged slaughter of livestock by an escaped dog.

The legal organization is a national non-profit community legal centre specializing in animal law. Although they are based in one territory, the organization is a member of state and national associations of Community Legal Centres. The office works to advance animal interests through law reform, while providing free advice and representation for individuals and groups who want to take action for animals. The office is run entirely by volunteers and receives no government funding.

Their client in this matter had been charged under a section of the state Companion Animals Act.

Specifically, s16 of the NSW Companion Animals Act 1998:

(1) 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–
(a) the owner of the dog, or
(b) if the owner is not present at the time of the offence and another person who is of or above the age of 16 years is in charge of the dog at that time–that other person,
is guilty of an offence.
: Maximum penalty–
(a) 100 penalty units except in the case of a dangerous, menacing or restricted dog, or
(b) 400 penalty units in the case of a dangerous, menacing or restricted dog.
(1AA) If a dog (other than a dangerous, menacing or restricted 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–
(a) the owner of the dog is guilty of an offence if the incident occurs as a result of a reckless act or omission by the owner, or
(b) if the owner is not present at the time of the incident and another person who is of or above the age of 16 years is in charge of the dog at that time–that other person is guilty of an offence if the incident occurs as a result of a reckless act or omission by that other person.
: Maximum penalty–200 penalty units or imprisonment for 2 years, or both.
(1AB) If a dangerous, menacing or restricted 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–
(a) the owner of the dog is guilty of an offence if the incident occurs as a result of a reckless act or omission by the owner, or
(b) if the owner is not present at the time of the incident and another person who is of or above the age of 16 years is in charge of the dog at that time–that other person is guilty of an offence if the incident occurs as a result of a reckless act or omission by that other person.
: Maximum penalty–500 penalty units or imprisonment for 4 years, or both.
(1A) The owner of a dangerous dog, a menacing dog or a restricted dog is guilty of an offence if–
(a) the dog attacks or bites any person (whether or not any injury is caused to the person), and
(b) the incident occurs as a result of the owner’s failure to comply with any one or more of the requirements of section 51 or 56 (as the case requires) in relation to the dog.
: Maximum penalty–700 penalty units or imprisonment for 5 years, or both.
Note : Conviction for an offence under this subsection results in permanent disqualification from owning a dog or from being in charge of a dog in a public place. See section 23.
(2) It is not an offence under this section if the incident occurred–
(a) as a result of the dog being teased, mistreated, attacked or otherwise provoked, or
(b) as a result of the person or animal trespassing on the property on which the dog was being kept, or
(c) as a result of the dog acting in reasonable defence of a person or property, or
(d) in the course of lawful hunting, or
(e) in the course of the working of stock by the dog or the training of the dog in the working of stock.
(3) This section does not apply to a police dog or a corrective services dog.
(4) If, on the trial of a person charged with an offence against subsection (1AA) or (1AB) the trier of fact is not satisfied that the person committed the offence but is satisfied that the person committed an offence against subsection (1), the trier of fact may find the person not guilty of the offence charged but guilty of an offence against subsection (1), and the person is liable to punishment accordingly.
(5) For the purposes of this section, recklessness may also be established by proof of intention.

The client’s application for legal aid had been refused as the offence does not carry a term of imprisonment. It is strictly a fine-only offence. Two barristers accepted the unusual case pro bono, with less than a week to prepare.

Background

The client is the volunteer manager of a charity that fosters rescue dogs on a not-for-profit basis at a rural property. The shelter takes in dogs and dingos who would otherwise be euthanized. One winter, the property was threatened by bushfires, which were converging nearby. As a result, the client and other volunteers moved all the animals residing at the shelter to another rural property. Due to the number of animals, a makeshift shelter was erected at the new property, consisting of enclosed paddocks and a shed. The client resided at the property with the shelter animals until the threat of bushfire had passed.

On Christmas Eve, the client took one of the dogs for a walk outside of the enclosures. The dog, a small black and white border collie mix, had resided at the shelter for over two years and was known to be timid and gentle. She was microchipped and registered in the client’s name and wore an ID tag on her collar. During the walk, the dog’s lead came undone and she disappeared into nearby bushland. The client searched extensively for the dog, notified nearby farmers, placed “Missing Dog” fliers around the local area, set dog traps, and even engaged a heat-seeking drone operator. All attempts were unsuccessful.

Over the next several weeks, a dog similar in appearance to the missing dog was observed attacking sheep at three properties. One of the owners contacted the client via the ‘Missing Dog’ fliers, and the client offered to compensate the owner for lost stock.

About two months after the dog went missing, it was observed attacking sheep at a property. The property owner shot the dog to prevent the attack from continuing. The following day, the property owner took the dog’s body to local authorities to obtain microchip and owner details. These enquiries revealed that the dog was the client’s missing dog. After unsuccessful attempts to contact the client, the property owner reported the incident to local police about ten days later.

Police investigated the incident, observing multiple sheep carcasses and injured sheep at the property. They obtained statements and photographs from nearby property owners who had also reportedly lost sheep to dog attacks in the weeks prior to the dog’s death.

A few weeks later, the client participated in an interview with police. At the completion of the interview, the police facilitated the exchange of details between the client and the three owners who had lost livestock to enable direct compensation arrangements. In total, the owners were seeking $27,650 in damages. The client did not have substantial assets or ability to pay that amount and was subsequently charged under the Companion Animals Act.

Issue/Findings

The police evidence was inconclusive regarding the dog’s involvement in most of the livestock deaths for which compensation was claimed. At the time, there were other dogs active in the area attacking and killing sheep, both before and after the client’s dog was killed. Additionally, foxes are present in the area and are known to attack livestock. The police failed to provide evidence as to the exact number of sheep or lambs alleged to have been killed or injured by the client’s dog and could not confirm the exact dates and locations of the killings. Veterinary reports determining the cause of death or the condition of injuries sustained by any of the animals subject to the charge were not obtained.

Resolution

The legal team contacted the officer in charge of the case in writing, requesting evidence relating to the above issues. This letter was ignored, as was a further letter offering to settle the matter out of court, with the client offering to pay one quarter of the amount claimed by the farmers as compensation.

A review of the brief by the pro bono barristers confirmed that the police case was lacking in evidence. After discussions with the officer in charge and the police prosecutor, the legal team was successful in having the police case against the client withdrawn.

To protect the client from any future civil matters arising from this incident, a deed of settlement was drawn up, whereby an amount of $6,912.50 would be apportioned between the three farmers over a one-year period by the client as compensation for their losses, with all parties bearing their own legal costs. The client was extremely relieved at the outcome, which could not have been reached without the involvement of the pro bono legal team comprising of myself (Anthony Strik) and Jeremy Holt (Barrister at FJC).