VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
review and regulation LIST	
vcat reference No. Z669/2019	
CATCHWORDS	
Review and Regulation List – section 34 of the Domestic Animals Act 1994 (Vic) – council made a dangerous dog declaration after injuries caused by dog to off-duty police officers – whether the relevant chain of events were all the one ‘incident’ – whether the dog’s owner was being attacked or arrested at the time one set of injuries were inflicted – whether serious injuries inflicted by a dog to an off-duty police officer were caused because the dog’s owner was being attacked in front of the dog – whether to set aside dangerous dog declaration.	
First APPLICANT	Ronald Dunn	
Second Applicant	Simon Jack	
RESPONDENT	Latrobe City Council  	
WHERE HELD	Melbourne	
BEFORE	A Dea, Senior Member	
HEARING TYPE	Videoconference Hearing	
DATE OF HEARING	17 November 2021 	
DATE OF ORDER and reasons	8 December 2021	
CITATION	Dunn v Latrobe City Council (Review and Regulation) [2021] VCAT 1485	
Orders
1	The proceeding is listed for an administrative mention before me on 14 January 2022.  By that date, the applicants must write to the Tribunal advising whether they intend to pursue the application.
(a)	if not, final orders will be made in chambers.
(b)	if so, the parties will be required to advise the Tribunal whether they seek:
(i)	a compulsory conference; or 
(ii)	a final hearing.  
2	If the parties seek a compulsory conference, they are required to file with the Tribunal all the material upon which they will seek to rely at the compulsory conference.  If filed electronically, the document must be hyperlinked.  If filed in hard copy, this material should be printed double sided.  Whether filed electronically, or in hard copy, or both, it must be indexed, with page numbering.  No further documents may be filed after this date without the leave of the Tribunal.
3	If the parties seek a final hearing, they are required to file with the Tribunal a joint electronic Tribunal Book, to be compiled by the respondent, containing all the material upon which the parties will seek to rely at the hearing, including written submissions and copies of key authorities to be relied upon. The Tribunal Book must be paginated, indexed and hyperlinked.  No further documents may be filed after this date without the leave of the Tribunal.
4	In order for the Tribunal to determine whether the matter can proceed to a compulsory conference or final hearing, the parties must also jointly:
(a)	specify the likely duration of the compulsory conference or hearing; 
(b)	in the case of a final hearing, specify whether witnesses are required to give evidence and, if so, how many; 
(c)	provide at least 3 dates from March 2022 onwards when all necessary participants in the proceeding (ie relevant parties/counsel/witnesses) will be available to attend the compulsory conference or hearing particularly noting any (un)available dates of any witnesses or lawyers;
(d)	advise the Tribunal of any other matters that may impact on the hearing process, such as the need for an interpreter or another form of assistance; and 
(e)	advise the Tribunal as to the preferred hearing process (see below).
5	The parties are directed to respond promptly to all registry requests for information (including about their access to technology) and to cooperate with the Tribunal’s requirements for the conduct of the hearing.
6	All contact with the Tribunal must include the VCAT case number, and the date of the administrative mention.
Note: Whether or not a proceeding is suitable to be listed for hearing will depend on a number of factors namely:
For a teleconference: All participants (including witnesses) having access to a reliable telephone line and a reliable speaker function. The participants must be available to remain on the telephone for the duration of the hearing.
For a videoconference: All participants (including witnesses) having access to a computer, mobile phone or other device with reliable internet access, a camera and microphone. The parties must be available to remain online for the duration of the hearing process.

A Dea
Senior Member			
APPEARANCES:		
For Applicants	Mr J Cameron, solicitor	
For Respondent	Ms A May, solicitor	

Reasons
1	This proceeding is Mr Ronald Dunn’s application for review of a decision made by the City of Latrobe (Council) declaring Mr Ronald Dunn’s dog to be a dangerous dog under section 34 of the Domestic Animals Act 1994 (Vic) (the DA Act).  Mr Ronald Dunn is the registered owner of Bruiser, a female black and white Staffordshire Cross type dog but his son, Mr Simon Jack, is the effective owner.
2	The parties asked the Tribunal to decide as a preliminary issue whether section 34(2)(d) of the DA Act applies to the circumstances of this case.  That provision prohibits the making of a dangerous dog declaration if the relevant incident occurred because another person known to the dog was being attacked in front of the dog.  
3	As described in more detail below, Bruiser injured two off-duty police officers (referred to as Officers A and B in these Reasons) during an incident which led to Mr Jack being arrested.  
4	The applicants say Bruiser reacted as she did because Mr Jack was being ‘attacked’ by the two Officers.  
5	The Council says that there was no attack; rather Officers A and B were acting lawfully and were arresting Mr Jack at the time Bruiser bit Officer A and then Officer B.  
6	Ms May, representing the Council, also contended that, immediately before Officer A was bitten by Bruiser, he had been assaulted and threatened by Mr Bryce Dunn (Mr Ronald Dunn’s nephew) and so the bites did not follow and were not caused by any interaction Officer A had with Mr Jack.
7	Mr Jack’s solicitor, Mr Cameron, contended that it was not open to analyse each part of the events in issue second by second – rather, they were part of one event which would have lasted a matter of seconds or minutes and, at all points in time, Mr Jack was said to be under attack.
8	Before the hearing commenced, the parties agreed between them that no witnesses were required for the preliminary issue.  They asked me to decide the question having regard to the written statements made by Officers A and B and other materials contained in the joint Tribunal Book. 
9	As will become apparent, I have been unable to make definitive findings on all factual matters as evidence on some important points would be required to do so.  However, consistent with the parties’ agreed approach, I have discussed the factual matters having regard to the written materials and have indicated my preliminary views based on those alone. 
10	I have made findings on the legal issues relevant to the application of section 34(2)(d) having regard to the parties’ submission.
11	At this stage of the proceeding and given the limitations mentioned, I have concluded that, it would be open to find a part of the altercation between Mr Jack and Officer A amounted to an attack for the purposes of section 34(2) of the DA Act and so Bruiser may be considered to have been protecting her owner at that point in time.  However, I consider it would be open to find the circumstances in which Bruiser bit Officer A for a second time falls outside section 34(2)(d) and so the Council would have been entitled to make the Declaration. 
12	It will be a matter for the applicants whether a final hearing on the application of section 34(2)(d) of the DA Act is sought.  If so, the parties should ensure they are prepared to present evidence as to all matters relevant to the exercise of the Tribunal’s review power under sections 34(1) and (2) of the DA Act.  I have also made provision for the listing of a compulsory conference should that be preferred by the parties. 
13	It is convenient to record now that, after the application was made to the Tribunal, the parties agreed to delay the hearing of this proceeding until criminal matters had been finalised.  I was advised that the DA Act related criminal charges were withdrawn after it was made plain that Mr Jack would contend that he was attacked by Officer A and so a defence to the criminal charge (worded similarly to section 34(1)(d) of the DA Act) would apply.  As the standard of proof in this matter is different to that applicable before the criminal courts (beyond reasonable doubt), the decision to withdraw the related criminal charges is not directly relevant to this proceeding.
14	In these Reasons, I start with a description of the facts based on the written statements made by Officers A and B.  I then set out the applicable law and refer to dictionary meanings of ‘attack’ relied on by the parties, before reaching my conclusions.
The events on 1 January 2019
15	In the very early hours of 1 January 2019, Mr Jack was driving a car and Mr Bryce Dunn was a passenger.  The car was in a street in Traralgon and a revving engine and screeching tyres were heard.  As I understood it, other people were also present with Mr Jack and Bryce Dunn.  The car crashed into a fence between two houses.  The Victoria Police preliminary brief indicates Mr Jack and Bryce Dunn were drunk and/or drug affected at the time.  
16	People from the houses the car crashed into came outside and, it seems, other neighbours gathered around.  Officers A and B came out of their house after hearing the crash.  Officer A heard a neighbour and others saying things like ‘turn the car off’, ‘get out of the vehicle’ and ‘the police are here, turn it off’.  
17	An occupant from one of the houses climbed into the passenger side of the car and attempted to take hold of the gear stick.  He struggled with Mr Jack and the car moved further forward, crashing into a letterbox and then ending up on the road.
18	Officer A ran around the back of the car while it was on the road and the driver was continuing to rev the engine loudly.  He opened the driver side door, identified himself as a police officer and instructed Mr Jack to get out of the vehicle.  Mr Jack remained in the vehicle.  Officer A believed Mr Jack was about to drive off and so he pulled Mr Jack from the vehicle.  Mr Jack attempted to break Officer A’s hold and told him to ‘fuck off’.  Officer A took Mr Jack to the ground and pinned him facedown.  Mr Jack continued to try to break Officer A’s hold.  Officer B was holding Mr Jack’s legs down.  In her statement, Officer B suggested another person was also helping restrain Mr Jack.  According to Officer B’s statement, one of Mr Jack’s associates called out to him to ‘stop it’ (apparently resisting being held down) because they were ‘all off duty coppers’.
19	Officer A noticed the driver side door closed and he saw a light coloured dog jump from the driver’s side window.  He lost sight of the dog when it ran around the front of the vehicle. 
20	While trying to control Mr Jack, Officer A heard someone call out to ‘get off him’ and he was then struck on the back of the head.  The force of the blow meant Officer A lost hold of Mr Jack.  He fell forward onto the kerb face first and was struck on his left eye and cheek.  Officer A became dizzy.  I understood there was no dispute that Mr Bryce Dunn threw that punch.
21	While still on the ground, Officer A saw the light coloured dog running at him.  Officer A tried to stand and the dog lunged at his face.  He turned and was bitten on the shoulder and then started to back away.  Mr Bryce Dunn continued to advance towards him, as did the dog.  
22	Officer A told Mr Bryce Dunn to call off the dog and again identified himself as a police officer.  Mr Bryce Dunn responded saying ‘I don’t care who you are you cunt, what are you going to do about it?’
23	Officer A saw Officer B was calling police to attend.  The dog was behaving aggressively towards her and so Officer A kicked at Bruiser to deter her from attacking himself or Officer B. 
24	Mr Bryce Dunn told Officer A not to touch his ‘fucking dog’ and advanced on him with fists raised.  Bruiser was advancing on Officer A too.  Officer A raised his hands to defend himself and continued to tell Mr Bryce Dunn to back away.  When Mr Bryce Dunn advanced towards him and was within reach, he pushed Mr Bryce Dunn away using clenched fists to his chest and felt pain in his right hand.  The confrontation continued.  Officer A believed he was going to be assaulted further.  He was able to get some distance away from Mr Bryce Dunn and Bruiser and used a wheelie bin as a something of a shield.  Mr Bryce Dunn continued to advance asking Officer A what he was going to do about it.  It was later discovered that Officer A’s phone was recording part of the confrontation and it showed he was telling Mr Bryce Dunn to ‘get back, get back’.  Officer A pushed the bin hard at Mr Bryce Dunn who then backed away. 
25	Officer A’s statement said Bruiser had been behaving aggressively towards others in the street as it moved away.  
26	By that time, on-duty police officers had arrived.  Officer A warned them about Bruiser.
27	Officer A saw Mr Jack and Mr Bryce Dunn attempting to secure the dog. 
28	As the police were taking Mr Jack into custody, Bruiser approached them.  Officer A warned them about Bruiser’s aggressive behaviour.  Bruiser again approached Officer A and jumped at him, biting at his chest.  No injury was sustained but Officer A’s t-shirt was torn.  A police officer deployed capsicum spray and Bruiser disengaged.
29	In the meantime, Officer B was assisting the on-duty police officers.  By then Mr Bryce Dunn had run off.  Bruiser barked and rushed at Officer B.  Bruiser was circling while an on-duty police officer was restraining Mr Jack.  Mr Jack ended up on the ground and Bruiser rushed at Officer B again, biting her on the right forearm.
30	Officer A’s injuries included a laceration on his left shoulder, obstructed vision in the eye together with swelling and bruising (the shoulder and face injuries).  He also had swelling to his left little finger.  An x-ray showed he had also suffered a fracture to the right hand (the right hand injury).
31	Officer B’s injury was described as a ‘laceration’ to her right forearm.  The photographs showed one puncture wound which had torn the skin and another mark surrounded by bruising.
The applicable law
32	In this proceeding the critical provisions are contained in the following parts of section 34 of the DA Act as follows:
(1)	A Council may declare a dog to be a dangerous dog –  
(a)	if the dog has caused the death of or serious injury to a person or animal by biting or attacking that person or animal . . .
. . . 
(2) 	The Council must not make a declaration under subsection (1)(a) if the incident occurred – 
(a) 	because the dog was being teased, abused or assaulted; or 
(b) 	in the case of injury to a person, because the person was trespassing on the premises on which the dog was kept; or 
(c) 	in the case of injury to another animal, because the animal was on the premises on which the dog was kept; or 
(d) 	because another person known to the dog was being attacked in front of the dog; or 
(e) 	as part of a hunt in which the dog was taking part and which was conducted in accordance with the Prevention of Cruelty to Animals Act 1986.
33	Mr Jack contends he was the person being attacked within section 34(2)(d) at all relevant points in time.  
34	For completeness, I note there was some discussion at the hearing about whether Officer B’s injury fell within the section 3 definition of ‘serious injury’.  If not, the bite to her was not regarded as relevant to the proceeding.  If so, the same arguments as to the meaning of ‘attacked’ and the nature of her role were to be relied on.  
35	As stated earlier, the Council says that there was no attack, rather Officers A and B were acting lawfully and were arresting Mr Jack.  Council referred me to section 458(1)(a) of the Crimes Act 1958 (Vic) (Crimes Act) which, relevantly, provides:
(1)  	Any person, whether a police officer or not, may at any time without warrant apprehend and take before a bail justice or the Magistrates' Court to be dealt with according to law or deliver to a police officer to be so taken, any person – 
(a)  	he finds committing any offence (whether an indictable offence or an offence punishable on summary conviction) where he believes on reasonable grounds that the apprehension of the person is necessary for any one or more of the following reasons, namely – 
(i)  	to ensure the attendance of the offender before a court of competent jurisdiction; 
(ii) 	to preserve public order; 
(iii) 	to prevent the continuation or repetition of the offence or the commission of a further offence; or 
(iv) 	for the safety or welfare of members of the public or of the offender . . .
The nature of the prohibition in section 34(2)(d)
36	The Council’s written submissions, dated 15 October 2020, included the following:
5. 	In this case, the owner’s son, a person known to the dog, was being arrested by police and resisting.  It may be thought that the dog would not understand this distinction so it may well appear to the dog that the owner’s son is being attacked in front of it.  To do so is to commit the fallacy of anthropomorphic extension.  The defence applies to the benefit of the owner, a human, not the dog.  The fact of the matter is a person resisting arrest is not being attacked by the police.  Therefore, there is no defence.
6. 	Lest anyone think that this is unfair to the dog, then the owner or persons known to the dog, should conduct themselves in such a way that there is no confusion caused to the dog.  It is within the power of the owner, or those known to the dog, to prevent the situation and any confusion in the mind of the dog to the extent that it is possible to know what is in the mind of a dog.
37	The Council also relied on the purposes of the DA Act which are to promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment by providing for matters including:
•	A scheme to protect the community and the environment from feral and nuisance dogs and cats; and
•	The identification and control of dangerous dogs, menacing dogs and restricted breed dogs.  
38	Although the Council referred to section 34(2)(d) of the DA Act as being a ‘defence’ in the written submissions, at the hearing, it took issue with the applicants’ use of the same term.  The Council contended that the provision contains a prohibition.  I accept that is a better characterisation and it is of assistance in understanding the purpose of the provision.
39	I was referred to the Supreme Court of Victoria’s decision in Gubbins v Wyndham City Council, which concerned an application for judicial review of the decision made by Wyndham City Council to destroy Mr Gubbins’ dog.  At paragraph 36, the court said:
The Act is not, as counsel said, a mere charter of canine rights to which the safety of persons and other animals is secondary. The Act should be interpreted in a manner that promoted the purpose of protecting the public from dangerous dogs.
40	Although that case concerned different provisions in the DA Act, I accept the above statement has an overarching relevance to the powers relating to dangerous dog declarations.
41	I understood the Council’s submission as set out in paragraph 6 quoted above to align with the DA Act’s focus on dog owners behaving responsibly and ensuring their dogs are managed in such a way that they do not present a risk to people or other animals.  A dangerous dog declaration imposes stringent – and costly – requirements in respect to the way the dog is housed and how it may move around in the community, including a requirement that the dog be on lead, under effective control and muzzled.  The owner is required to comply with those requirements.  The DA Act requirements have a wider effect too because they apply to the dog for life and travel with it in terms of geography and ownership. 
42	A question raised by the Council’s submissions is whether section 34(2) is directed to the owner’s behaviour or to that of the dog.
43	In my view, section 34(2) of the DA Act is primarily focussed on the dog’s behaviour.  It recognises that dogs are animals and that, even when they are domesticated, their natural instincts may lead to them causing harm which would otherwise lead to a dangerous dog declaration being made.  
44	It is common for the Tribunal to hear expert evidence from animal behaviourists about those instincts when considering the inherent nature of a dog which has attacked a person or another animal and whether that particular dog presents an ongoing risk.  It is sometimes difficult to reach firm conclusions on those questions even with assistance from highly qualified experts.  Dogs which are comfortable at home with their owners can react with aggression, stress, anxiety or fear in different circumstances.  We are well familiar with the flight or fight reactions dogs have when confronted with another dog, an unexpected loud noise or being in the community off leash.  Experts have said that assessing behaviour is difficult regardless of species because it is a complex process affected by factors including genetics, an individual’s personality and temperament and what it has learnt from previous experiences.  
45	As set out above, section 34(2) of the DA Act makes provision for circumstances where:
•	A dog might be provoked into action due to a person’s conduct (section 34(2)(a) or (b)); 
•	It perceives a threat to its owner or territory (section 34(2)(c) and (d)); or 
•	It is behaving in a lawful manner in accordance with its training (section 34(2)(e)).  
46	In each circumstance, it seems to me that the dog is reacting to events which activate their natural instincts.  In my view, the prohibition in section 34(2) shows that the legislature has decided, even when serious injury is caused, the dog’s reactions will not always lead to a dangerous dog declaration being made.
47	On the question of a dog’s training, I note section 34(2)(e) makes it plain any hunt must be lawfully conducted.  
48	Section 34A says: 
A dog is a dangerous dog if:
(a) 	the dog is kept, or at any time has been kept, as a guard dog for the purpose of guarding non-residential premises; or 
(b) 	the dog, at any time, has been trained to attack or bite any person or any thing when attached to or worn by a person.
49	As I read the provisions, the prohibition in section 34(2) cannot arise where an owner has trained a dog to attack because that very conduct makes it a dangerous dog by definition.  As a result, in the case of a guard dog or dog trained to attack or bite, section 34(2) will not assist an owner (or dog) to avoid a dangerous dog declaration being made.
50	That leads me to the view that, when considering whether section 34(2)(d) applies in this case, I may have regard to the expectation that dog owners will act responsibly but, as best I can, give particular weight to whether the action of a person caused the dog to act in the reactive sense to which section 34(2)(d) is directed. 
Identifying the incident
The parties’ submissions 
51	Mr Jack’s solicitor, Mr Cameron, contended that it was appropriate to consider the ‘incident’ as referred to in section 34(2) as being the whole of the events which occurred.  He suggested the events leading to Officer A’s injuries would have taken only seconds and it would be artificial to break down each step.
52	The Council contended that the cause of the injuries to Officer A was not an ‘attack’ on Mr Jack because, by the time they were inflicted, Officer A was away from Mr Jack having just been punched and then pursued by Mr Bryce Dunn.  It submitted that the event should be broken down into segments.  It said, if that approach was accepted, it was apparent that the first bite to Officer A followed him being punched by Mr Bryce Dunn and not because of his physical altercation with Mr Jack.  Equally, the second bite occurred when Mr Bryce Dunn was behaving in a threatening manner towards Officer A and at a time when Officer A was physically away from Mr Jack.
53	In support of its position, the Council referred me to the decision of Bell J in Johnson v Buchanan.  That case considered the defence contained in section 29(9)(b) of the DA Act which is consistent with the terms of section 34(2)(b).  
54	The facts were as follows.  Mr Ellis lived next door to Mr Buchanan.  One day Mr Ellis was standing in the driveway talking to his son.  In the course of the conversation, he leaned his arm on the boundary picket fence which was around four to five feet high.  His arm went over the fence and Mr Buchanan’s dog jumped up and bit him.  Mr Ellis was only able to free his arm by distracting the dog with his other hand.  That hand was also bitten.  
55	The Magistrate decided the circumstances amounted to trespass and that the incident occurred because of that trespass.  Accordingly, the defence was proven and the charge was dismissed.
56	That decision was upheld on appeal.  In the context of a consideration of the nature of trespass for the purposes of the DA Act, Bell J described the common law right to protect property with a dog.  He expressly stated that the DA Act was not intended to qualify a person’s common law right to guard their own property and that, in general, a trespasser cannot complain when they are bitten by a properly bounded guard dog.  His Honour approved the Magistrate’s application of the causation test in a common sense way, which was to consider whether there was a sufficient nexus between the bite and the trespass.  He concluded that the submission that the dog had a propensity to bite and that was the cause of the bite was circular and must be rejected. He agreed with the Magistrate’s finding that the Mr Ellis’ arm was bitten when he allowed it to go into Mr Buchanan’s property.
57	The Council also referred me to the NSW Supreme Court, Court of Appeal decision in Wilson v State of New South Wales.  That case considered the entry of police officers onto private property and whether they were trespassers at common law.  The facts showed the police officers approached the front door and asked to speak to Mr Wilson.  When Mr Wilson came to the door, he told the police officers to leave and then there was a struggle.  One of the officers told Mr Wilson he had committed assault and he was under arrest.  Mr Wilson went back into the house and then came out again with his car keys.  He got into the car intending to leave but one of the officers went to the car, took the keys and told Mr Wilson he was under arrest.  There was another altercation and Mr Wilson was sprayed with capsicum spray.  
58	One of the issues before the Court was whether, when Mr Wilson told the officers to leave and they did not do so, they had committed trespass.  There was a discussion as to whether there was an implied licence to be on the property arising from the fact the officers were there to enforce a property seizure order and then the legal basis on which the officers were on the property at the time of the actual arrest.  
59	I understood the Council to rely on Wilson to show that it is appropriate to break down a chain of the events and that the legal analysis of the status of actions may change even during a short interaction. 
60	Accordingly, the Council contended that, in this case, it was appropriate to focus on precisely what led to Bruiser inflicting the serious injuries on Officer A and in that way to identify the cause of the injuries. 
Preliminary findings
61	As no witnesses were called, I could not make a definite finding about the period of time over which the incident unfolded.  I anticipate the steps between Officer A approaching the car and forcing Mr Jack onto the ground took a matter of seconds and that the blow to his head and fall onto the curb took only a few more.  Whether that amounts to seconds or a minute, I consider it likely that the action occurred quickly in a dynamic and fast moving fashion.
62	Having read Officer A’s statement, it seems the further interaction between him and Mr Bryce Dunn also unfolded quickly with them moving away from the car and Mr Jack.  On Officer A’s statement, Officer A was trying to get away and also again announced he was a police officer.  He told Mr Bryce Dunn to call off the dog and back off.  Mr Bryce Dunn and Bruiser continued to advance on Officer A with Mr Bryce Dunn’s fists raised.  Mr Bryce Dunn had time to, in unsavoury language, let Officer A know he would not be calling off Bruiser or cease his aggressive actions.  When Officer A kicked out in Bruiser’s direction, Mr Bryce Dunn apparently identified the dog as his own.  That was when Officer A pushed Mr Bryce Dunn away and he suffered the right hand injury. 
63	Based on the written statement, I anticipate that the time which elapsed between Officer A moving away from Mr Bryce Dunn and Bruiser, kicking out at Bruiser and pushing Mr Bryce Dunn away took only a minute or so.  
64	In broad terms, I am inclined to agree with Mr Cameron’s submission that a step by step approach ought not to be taken when analysing the application of section 34(2)(d).  That is because, section 34(2) is directed towards a consideration of the events prior to the attack and the overall circumstances. 
65	However, it appears that Officer A’s attempts to get away from Mr Dunn and the altercation which followed was different in nature and was separate in time and location from the altercation Officer A had with Mr Jack.  To that extent, that second part of the incident seems to be able to be distinguished from the interactions with Mr Jack.
66	Officer A states that he informed Mr Bryce Dunn he was a police officer, told him to call the dog off and to himself back off.  It appears Mr Bryce Dunn had time to reply and continue to move forward.  He appears to have been the aggressor at that point in time and he proceeded to approach even after being given a chance to cease.  At the moment in time when Officer A was injured again by Bruiser, on his statement, he was not engaged with Mr Jack.  He appears to have been seeking to defend himself from Mr Bryce Dunn and Bruiser and trying to protect others.
67	Accordingly, on the evidence currently before me, it is open to assess the events in two parts and to consider the injuries which resulted from each separately.
Arrest or attack?
The parties’ submissions 
68	As noted earlier, the Council submitted that Officers A and B were lawfully exercising powers of apprehension and arrest under section 458(1)(a) of the Crimes Act and so their actions could not be characterised as an attack on Mr Jack.  Ms May (representing the Council) contended that Officers A and B engaged in ‘lawful bodily contact’ and that could not be an attack for the purposes of section 34(2)(d) of the DA Act.
69	Mr Cameron (representing the applicants) contended that no such distinction could be drawn from the words and that, had Parliament intended the word ‘attack’ to only apply to unlawful actions, it could readily have made that plain.  
70	I invited the parties to send any dictionary definitions they considered would assist me to determine the meaning of the word ‘attack’ in the context of section 34(2)(d) of the DA Act. 
71	Mr Jack’s solicitor referred me to a definition contained in the online Oxford University Press, being ‘an aggressive and violent act against a person or place’.
72	The Council’s solicitor relied on definitions which indicated an intention to hurt or kill was required.  For example, ‘fall upon, assault, assail, act destructively on’ and ‘an act of using violence to try to hurt or kill somebody’.
Preliminary findings 
73	The word ‘attacking’ appears in section 34(1)(a) and the word ‘attacked’ is used in section 34(2)(d).  As both are derived from the word ‘attack’, the same definition ought to apply. 
74	I accept that the meaning to be applied most likely carries an intention to hurt or possibly kill.  I also agree the word indicates aggression and violence.  However, that does not much advance the understanding as to whether the cause of Bruiser biting Officer A twice was an attack or arrest.  I agree with the Council’s submission that a dog cannot be expected to understand the difference and so it is necessary to consider the word in context.
75	Under section 34(1), the prospect of a dangerous dog declaration arises if a dog has attacked a person or animal and caused serious injury.  Given the nature of the shoulder, face and right hand injuries caused to Officer A, it seems to me that they were caused by acts of aggression or violence and, in so far as one could understand Bruiser’s intention, it is likely she intended to cause physical harm.  
76	As discussed, section 34(2)(d) is directed to the circumstances which led to the dog acting in a manner which caused the injury.  If the legal and conceptual differences between an arrest and an attack are put to one side, it is the physical action which leads to the dog’s response which must be analysed.  That is because section 34(2)(d) is directed towards the dog’s natural instincts to protect those known to it who are the subject of physical threat.  
77	On the facts as contained in the written statements, Officer A had pulled Mr Jack from the car, forced him to the ground and then used his body weight to hold Mr Jack face down.  Officer B was holding Mr Jack’s legs down and a third person may have been helping restrain him.  That initiated the physical involvement of Mr Bryce Dunn and Bruiser.  
78	Assuming for now there is no evidence that Bruiser had been trained to attack, it appears open to find she reacted in a protective manner because she perceived the physical confrontation between Officer A and Mr Jack as an attack on Mr Jack.  If that was the case, the incident which led to the shoulder and face injuries to Officer A would have been caused as a result of Bruiser’s protective reaction.  I consider it would be open to find that was the case despite Mr Bryce Dunn’s intervention because the events followed on from Mr Jack being physically restrained face down on the ground and that all likely occurred within seconds. 
79	To the extent that the injury suffered by Officer B might also enliven the discretion to make a dangerous dog declaration, I apply the same reasoning.  As I understand it, at that time, Officer B was assisting another on-duty police officer to physically restrain Mr Jack on the ground and Bruiser reacted.
80	However, I consider it appropriate to approach the right hand injury to Officer A differently.  
81	According to the statements, neither Mr Jack nor Mr Bryce Dunn was being threatened by Officer A – in fact, the threat seems to have been directed towards him.  Even if I were to assume Mr Bryce Dunn was a person known to Bruiser for the purposes of section 34(2)(d), there are no facts presently before me to indicate he was being attacked by Officer A – at most Officer A pushed him away in self-defence because Mr Bryce Dunn was advancing on him in a threatening manner.
82	While that altercation also seemed to have happened quickly, Mr Bryce Dunn was apparently given an opportunity to call off Bruiser and, having asserted Bruiser was his dog, he should have done so.  It appears that, had he ceased advancing on Officer A, Officer A would not have needed to defend himself.
83	As explained in his written statement, Officer A suffered ‘an injury which required medical attention in the nature of a broken bone’, namely a fracture which required a cast and splint.  It appears highly likely that Officer A suffered that serious injury because Bruiser attacked him at a time when Officer A posed no immediate threat to Mr Jack and was not engaged in an attack on anyone.  As a consequence, the discretion to make a dangerous dog declaration appears to be enlivened because, on the statements, the cause of the injury seems to have been Bruiser’s action (and Mr Bryce Dunn’s lack of action).   
84	I record that, in considering the statements made by Officers A and B, I make no criticism of either of them.  As I understood it, they were attempting to stop Mr Jack from doing more property damage and to stop him placing others in danger.  It is unfortunate they were harmed in the process.
85	Further, my comments as to the application of section 34(2)(d) in respect of Officer A’s altercation with Mr Jack ought not be taken to suggest a future arrest of a suspect, whether under section 458(1)(a) of the Crimes Act or by police exercising lawful powers, would amount to an attack for the purposes of section 34(2)(d) of the DA Act.  As illustrated by this case, the whole of the circumstances would need to be considered, including whether the dog had been trained to attack and whether the dog owner or person known to the dog had an opportunity to call it off or restrain it.  
86	For the reasons given, I am not persuaded on the limited material before me that the Declaration should be set aside under section 34(2)(d) of the DA Act.  In those circumstances, it will be for the applicants to decide whether they wish to seek a final hearing on all matters relevant to the making of the Declaration.

A Dea 
Senior Member