Changes To The Crimes Act And Domestic Animals Act

[wayrod]

CHANGES TO THE CRIMES ACT AND DOMESTIC ANIMALS ACT

Please note that a new version of the Domestic Animals Act 1994 will commence on Thursday 3rd November 2011. The changes to the Act were introduced on today in the Crimes and Domestic Animals Amendment (Offences and Penalties) Act 2011.

The new legislation will create new indictable offences in the Crimes Act 1958. Owners can be jailed for up to 10 years if their dog kills someone, or for up to 5 years if their dog endangers someone's life, if their dog is a:

• restricted breed dog (registered or unregistered);

• dangerous dog declared due to attack;

• attack trained dog;

• guard dog; or

• declared menacing dog.

The new legislation will amend the Domestic Animals Act 1994 in the following:

1. Major increases in a wide range of penalties in relation to restricted breed dogs

2. Prohibiting the sale, transfer or giving away of restricted breed dogs (with very limited exemptions for death of an owner or surrender for destruction)

3. Creating a new provision that a restricted breed dog should wear a collar that will later be prescribed in regulation.

It is important to note that there is no change to the regulation at this moment and so there is NOT a prescribed collar at this moment for restricted breed dogs.

Within the next few days the new Act, as well as a range of other relevant information, can be downloaded from the following links. You will also be informed when there is a change to regulation in relation to the prescribed collar - this will not be in the immediate future.

More information is available on:

www.dpi.vic.gov.au/animalwelfare (follow links to legislation page)

www.legislation.vic.gov.au click on 'law today' then select Acts beginning with 'D'.

For further information please phone the DPI Customer Service Centre on 136 186 or visit the DPI website www.dpi.vic.gov.au/animalwelfare.

[Ruffles]

So, if you're a knob head with a dog that attacks someone, but it's not any of the above things ie. restricted breed, you just get off scott free if there is no civil suit?

What a crock.How is that addressing the issue of owner responsibility? Or are they saying that only the above dogs are likely to kill or seriously injure someone?

[wayrod]

Crimes and Domestic Animals Acts Amendment

(Offences and Penalties) Bill 2011

Crimes Act 1958 Offences

FAQ For Councils

Q: Is the decision by a Council to declare a dog a dangerous dog, a menacing dog or a

restricted breed dog subject to appeal?

A:

• It should be noted the criminal prosecution and the hearing of a criminal trial in respect of

the new Crimes Act offences is a discrete process from the processes under the Domestic

Animals Act. That is, it is separate to an owner’s right to review to VCAT the determination

of a council that a dog is a particular category of dog.

• In the criminal process, whether a dog is a ‘restricted breed’, ‘menacing’ or ‘dangerous’ dog

is a question of fact and would ultimately be determined by the jury at a trial. The

prosecution would be required to lead evidence and prove beyond reasonable doubt that the

dog that caused death or endangered life was one of these categories of dog. However, this

is only one of a number of elements that need to be proved in respect of these Crimes Act

offences.

• As is the right of any person who is convicted of a criminal offence, a person convicted of

one of these new offences has the right to apply for leave to appeal against that conviction in

the Court of Appeal.

Q: How does the legislation identify who will be held responsible ie. who is the owner?

A:

• Persons who could be liable to a charge under the new Crimes Act offences are owners or

persons who are, for the time being, in charge of the dog. Each new section contains two

offences: one that is applicable to the owner, and one that is applicable to the person who

has temporary care of the dog.

• ‘Owner’ has the same meaning as in the Domestic Animals Act; it ‘includes a person who

keeps or harbours the animal or has the animal in his or her care for the time being whether

the animal is at large or in confinement’. This definition would include a person who was

last in charge of the dog where a dog has escaped from the person's premises. The

definition also includes a person who is deemed to be the owner of a dog, which is where

the owner of a dog is under the age of 17 years, hence the parent or guardian of that person

is deemed to be the owner.

• A person who is, for the time being, in charge of or has care of the dog would cover, for

example, people taking care of a dog while the owner was on holidays or dog walkers. The

legislation recognises that a person who for the time being is in charge of a dog, but is not

the owner of that dog, may or may not be familiar with the dog. That is, they may not be

aware that the dog is a dangerous, restricted breed or menacing dog. Serious criminal

offences, such as these, should not apply where a person is unaware of the classification of

the dog they have care of. Therefore, the offences which are applicable to a person who for

the time being is in charge of the dog have a further element to be proved, namely that the

person was reckless or aware of the probability that the dog was a dangerous, restricted

breed or menacing dog.

• Who is responsible for a dangerous, restricted breed or menacing dog attacks and kills a

person or endangers the life of a person is a question of fact that must be determined on a

case by case basis.

• In proving a person was criminally responsible, the prosecution would also be required to

show that the person acted negligently (where a dog has killed) or recklessly (where a dog

has endangered life) in failing to keep the dog under control.

Q: Why do the Crimes Act offences only apply to dangerous, menacing and restricted breed

dogs?

A:

• The new Crimes Act offences will only apply to dangerous, menacing and restricted breed

dogs. Owners of these categories of dogs should have a higher degree of culpability because

they would be aware of their dog’s dangerousness by virtue of either their previous

dangerous behaviour or training, or by their breed, that carries with it an inherent

dangerousness.

• They should also be aware that they have a responsibility for keeping their dog under

control in accordance with the requirements in the Domestic Animals Act and a failure to do

so, which results in death or life being endangered warrants a serious criminal sanction.

• Owners of dogs that are not restricted breed dogs or have not been declared dangerous or

menacing would not have had the same knowledge or notice of the dangerousness of their

dog prior to any attack. As such, the new Crimes Act offences do not cover these situations.

• However, such owners would still be liable under the strict liability offences contained in

the Domestic Animals Act.

Q: What are the most recent changes to the RBD legislation?

A:

• There have been some additional changes, changes to the Crimes Act 1958 will mean that

owners can be jailed for up to 10 years if their dog kills someone, or for up to 5 years if their

dog endangers someone’s life, if their dog is a:

o restricted breed dog (registered or unregistered);

o dangerous dog declared due to attack;

o attack trained dog;

o guard dog; or

o declared menacing dog

• There have been some major increases in penalties in the Domestic Animals Act 1994 for

owners of restricted breed dogs who fail to comply with the requirements for the keeping of

a restricted breed dog.

• It is now prohibited to sell, give away or transfer the ownership of a restricted breed dog.

The only exemption will be to allow for the surrender of the dog to a pound or shelter for

destruction or if the owner dies to transfer to a family member.

• There is the ability for the Government to prescribe a collar that restricted breed dogs will be

required to wear. The collar has not yet been prescribed and more information will be

available once the Domestic Animals Regulations 2005 have been changed to prescribe the

collar.

Q: Can I put a dangerous dogs collar on my restricted breed dog now?

A:

• NO. A dangerous dogs collar can only be worn by a dog that has been declared dangerous

by council or are deemed dangerous (through training or use as guard dogs around nonresidential

premises). The restricted breed dog collar will NOT be the same as a dangerous

dog collar. If you have a restricted breed dog you will be informed shortly what the collar is

and where to obtain one – this is still not a requirement at this stage.

Q: What do I do if I think I have been sold a restricted breed dog?

A:

• Contact the Council and advise them of your concern. It is an offence for a person to sell,

give or otherwise transfer the ownership to you without advising you in writing of its status.

• You also have rights under consumer affairs legislation if the breed of the dog has been

misrepresented. Contact the Consumer Affairs Victoria Helpline on ph 1300 55 81 81.

Q: My dog has been declared a restricted breed, what do I do now?

A:

• The Authorised Officer must notify you in writing within 7 days that your dog has been

declared a restricted breed. At this point, you have the right to request from Council the

reason why your dog has been declared a restricted breed. The Council is required to

provide details of how you can appeal the decision.

• You can then appeal the declaration that your dog is a restricted breed dog at the Victorian

Civil and Administrative Tribunal (VCAT) within 28 days of receiving the written

declaration.

• Telephone: (03) 9628 9830

Toll Free: 1800 133 055 (Country callers only)

Q: Explain the new criminal offences being introduced which would apply to dog attacks.

A:

• The Crimes Act 1958 is being amended to introduce new indictable offences (subject to trial

by jury) that will apply where a person’s failure to control a dangerous, menacing or

restricted breed dog results in death or endangers life.

• It will be an offence if an owner of a dangerous, restricted breed or menacing dog:

o does not keep that dog under control and the dog kills another person, and

o a reasonable person would have realised that the failure to keep the dog under

control would expose the person who was killed, or any other person, to an

appreciable risk of death.

• A second offence is being introduced that is similar, but applies to a person who is not the

dog’s owner but is in charge of the dog.

• The maximum penalty for these offences will be 10 years imprisonment, similar to

dangerous driving causing death.

• There will also be two indictable offences for ‘recklessness as to whether controlling

dangerous, menacing or restricted breed dog may place another person in danger of death’.

The maximum penalty will be 5 years.

• A similar offence will also apply to a person who is not the dog’s owner, but is in charge of

the dog and is reckless as to the dog being a dangerous, menacing or restricted breed dog.

• These new offences will only apply to:

o registered and unregistered restricted breed dogs;

o dangerous dogs declared due to attack;

o attack trained dogs;

o guard dogs; and

o declared menacing dogs.

• Owners of these categories of dogs should be aware of their dog’s dangerousness by their

previous dangerous behaviour or training, or by their breed, that carries with it an inherent

dangerousness. Owners should also be aware that they have a responsibility for keeping

their dog under control.

• These new offences send a clear message to owners of these dogs that they have a

responsibility to keep their dog under control and a failure to do so which results in death or

life being endangered warrants a serious criminal sanction.

Q: Why are there are no specific defences in respect of the Crimes Act offences?

A:

• The Domestic Animals Act 1994 contains a number of defences to its strict liability offences,

these being if the incident or attack occurred because:

o the dog was being teased, abused or assaulted

o a person was trespassing on the premises on which the dog was kept

o another animal was on the premises on which the dog was kept

o a person known to the dog was being attacked in front of the dog.

• These defences are either not necessary or are inappropriate for the new Crimes Act 1958

offences.

• The Crimes Act offences require proof beyond reasonable doubt that the owner failed to

control their dog or acted recklessly so the dog was not under control. Therefore, any

relevant circumstances are examined at the trial that can be taken into account in assessing

whether these elements have been proved eg was the dog being assaulted or was the victim

trespassing prior to the attack

• Providing a general defence that the offence is not committed if a person was trespassing is

too broad and inappropriate. For example, it would be wrong for a full defence to be

available to a person who failed to keep their dog under control, by not properly securing

their pit bull terrier, and a child entered the front yard to retrieve their ball and was killed by

the dog.

• As such, specific defences, such as those contained in the Domestic Animals Act 1994, are

not necessary for the new Crimes Act offences.

Q: Why are these offences limited to dangerous, restricted breed and menacing dogs?

A:

• These new offences will only apply to:

o registered and unregistered restricted breed dogs;

o dangerous dogs declared due to attack;

o attack trained dogs;

o guard dogs; and

o declared menacing dogs.

• Owners of these categories of dogs have a higher degree of culpability because they would

be aware of their dog’s dangerousness by virtue of either their previous dangerous behaviour

or training, or by their breed, that carries with it an inherent dangerousness.

• They should also be aware that they have a responsibility for keeping their dog under

control in accordance with the requirements in the Domestic Animals Act 1994 and a failure

to do so which results in death or life being endangered warrants a serious criminal sanction.

• Owners of dogs that are not restricted breed dogs or have not been declared dangerous or

menacing would not have had the same notice of the dangerousness of their dog prior to any

attack. As such, the new Crimes Act offences do not cover these situations. However, such

owners would still be liable under the strict liability offences contained in the Domestic

Animals Act.

Q: What would amount to a ‘failure to control’?

A:

• ‘Control’ is defined in the definitions section (section 319A) in the new Division 9AA. The

definition is a broad and inclusive definition. It includes all of the requirements to control a

dangerous, restricted breed or menacing dog under Part 3 of the Domestic Animals Act 1994.

This covers the control of dogs both on and off the owner’s premises, such as –

o keeping a dog from being at large

o not setting or training a dog to attack or bite

o keeping a dog muzzled and leashed when off the owner’s premises

o keeping a dog confined in an enclosure or dwelling

o preventing the dog from attacking or biting a person or animal

o preventing the dog from rushing at or chasing a person.

• The failure of an owner or a person in charge of the dangerous, menacing or restricted breed

dog to control that dog is only one of the elements that need to be proved for a person to be

found guilty of one of the new Crimes Act offences.

• In respect of the failure to control resulting in death offences, it would also need to be

proved that a reasonable person would have realised that the failure to control would expose

another person to an appreciable risk of death.

• In respect of the offences endangering life, it will also need to be proved that there was

reckless conduct that meant the dog was not under control.

Q: Why are there separate offences in each section for a person who, for the time being, is in

charge of a dog?

A:

• The new legislation includes two offences in each section: one that is applicable to the

owner of the dog, and one that is applicable to the person who is, for the time being, in

charge of or has care of the dog.

• A person who for the time being is in charge of a dog, but is not the owner of that dog, may

or may not be familiar with the dog or aware that the dog is a dangerous, restricted breed or

menacing dog. A serious criminal offence, such as these, should not apply where a person is

unaware of the classification of the dog they are walking, for example.

• The offences which are applicable to a person, who for the time being is in charge of the

dog, have a further element to be proved for the offence to be made out. That is, the

Prosecution must also prove that the person is reckless or aware of the probability that the

dog is a dangerous, restricted breed or menacing dog.

• In respect of the offences relating to the owner of the dog, there is no need for this extra

element of recklessness as to the category of the dog, as an owner would be aware that their

dog is a dangerous, restricted breed or menacing dog.

Q: Is there a need for any type of declaration in respect of restricted breed dogs (similar to

the declarations in respect of dangerous or menacing dogs) prior to a prosecution commencing?

A:

• In respect of the new Crimes Act offences, whether a dog is a ‘restricted breed dog’,

‘menacing dog’ or ‘dangerous dog’ is a question of fact and would ultimately be determined

by the fact finder in a particular case.

• The Prosecution would be required to lead evidence that the dog that caused death or

endangered life was one of these categories of dog. In respect of a dangerous or menacing

dog, this would be done by leading evidence of the council’s declaration of that dog being a

dangerous dog (under section 34 of the DAA) or menacing dog (under section 41A of the

DAA). In respect of restricted breed dogs, the position is slightly more complex as there are

no ‘declarations’, as such, for restricted breed dogs.

• A restricted breed dog is a dog of one of the following breeds: Japanese Tosa, Fila

Brasiliero, Dogo Argentino, Perro de Presa Canario, American Pit Bull Terrier, or a dog that

falls within the ‘Standard for Restricted Breed Dogs in Victoria’. The Standard for each

breed provide descriptions of what would fall within that particular breed, including matters

such as height, weight, colour, coat, and type of tail, head, neck, feet and body.

• Under section 10(1) of the Domestic Animals Act 1994, it is an offence for an owner not to

register a dog. It is also an offence under section 10(3) not to include on the application for

registration that the dog is a restricted breed dog. Therefore, owners of restricted breed dogs

are required to register their dogs with the council as restricted breed dogs. The Prosecution

would be able to lead evidence of this registration, which should specify that the dog is a

restricted breed.

• The offence may still apply where the dog is not registered as a restricted breed dog, but the

dog falls within the Standard.

• The definition of restricted breed dog does not require any declaration by a council to be

made nor does it require registration. Therefore, in terms of the Crimes Act offences, this

element would simply be proved by evidence the dog was one of those breeds or falls within

the Standard. Moreover, a declaration or registration is not a requirement for a prosecution

to be commenced or for the offences to be proved.

• An expert witness could be called to give evidence to prove that the dog is a restricted breed

dog.

• The criminal prosecution and the hearing of a criminal trial is a separate and discrete process

from the processes under the Domestic Animals Act and an owner’s right to review to VCAT

the determination of a council that a dog is a restricted breed dog.

• As such, any processes in the Domestic Animals Act would run independently of the

criminal prosecution and are not a pre-condition of any prosecution under the new Crimes

Act offences.

Q: Would the dog need to be kept pending a criminal prosecution, given that dogs that attack

are generally destroyed?

A:

• The prosecution would seek to prove that a dog fell under the definition of restricted breed

dog by calling evidence on the issue. A witness could produce to the court photographs of

the dog along with other evidence collected about the dog, for example measurements,

weight, identification.

• In the normal course of events, it will not be necessary to keep the dog alive for the trial for

the prosecution to prove its case. However, to ensure that legal processes are applied fairly,

it may be that the dog is not put down immediately.

Q: Is there any limitation in time for bringing a prosecution for the new offences?

A:

• All four new Crimes Act offences are indictable offences.

• Under section 7(2)(a) of the Criminal Procedure Act 2009, a proceeding for an indictable

offence may be commenced at any time, except where otherwise provided by legislation.

• As such, there are no time limits for bringing a prosecution under any of these new offences.

Q: Where can I find information about restricted breed dogs?

A:

• From your local Council or by phoning the DPI Customer Service Centre on 136 186 or

review the DPI web page on restricted breed dogs at http://new.dpi.vic.gov.au/pets/aboutpets/

legislation-and-regulation/restricted-breed-dogs

Q: Where can I find information about dangerous dogs?

A:

• From your local Council or by phoning the DPI Customer Service Centre on 136 186 or

review the DPI web page on dangerous dogs at http://new.dpi.vic.gov.au/pets/aboutpets/

legislation-and-regulation/menacing-and-dangerous-dogs

[jacqui835]

Owners of these categories of dogs have a higher degree of culpability because they would

be aware of their dog’s dangerousness by virtue of either their previous dangerous behaviour

or training, or by their breed, that carries with it an inherent dangerousness.

This has never been proven and in fact all the evidence suggests otherwise.

[BJean]

Is there a definition for 'guard dog'?

thanks