Exit Distraction Free Reading Mode
- Unreported Judgment
- Puopolo v Brisbane City Council[2020] QCAT 442
- Add to List
Puopolo v Brisbane City Council[2020] QCAT 442
Puopolo v Brisbane City Council[2020] QCAT 442
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Puopolo v Brisbane City Council [2020] QCAT 442 |
PARTIES: | enzo marcello puopolo (applicant) v Brisbane city council (respondent) |
APPLICATION NO/S: | GAR448-19 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 28 October 2020 |
HEARING DATE: | 8 October 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kent |
ORDERS: |
|
CATCHWORDS: | ANIMALS – VARIOUS STATUTORY PROVISIONS – REGULATION OF COMPANION ANIMALS – OTHER MATTERS – dangerous dog declaration – where dog caused bodily harm to a person – identity of dog carrying out attacks Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 59, s 60, s 70, s 89, s 90, s 94, Schedule 1 Criminal Code Act 1899 (Qld), Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Curley v Brisbane City Council [2020] QCAT 357 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | M Spencer, City Legal, Brisbane City Council |
REASONS FOR DECISION
Introduction
- [1]This is an application for review of decisions made by the Brisbane City Council on 2019, to declare Zizou to be a dangerous dog pursuant to the Animal Management (Cats and Dogs) Act 2008 (Qld) (the Animal Management Act).
- [2]Mr Puopolo is the owner of Zizou.
- [3]The dangerous dog declaration relates to separate incidents with separate victims which took place on 21 August 2019 (Ms Sue Podger) and 3 September 2019 (Ms Sandra Butler).
- [4]In respect of the incidents there is no dispute that both victims were attacked by a dog and suffered bodily harm. Ms Podger was bitten on the arm as she was walking down the road early in the morning. Her injury required her to attend a doctor to have the wound cleaned and dressed. Ms Butler was also attacked while walking down a road in the same area as Ms Podger. This incident also occurred early in the morning. Ms Butler’s wound required her to be transported via ambulance from her friend’s house to hospital to have the wound stitched and cleaned in surgery.
- [5]The central issue in this matter is whether Mr Puopolo’s dog, Zizou, is the dog who attacked either both or one of these victims. So, the identity of the dog involved in the two incidents is crucial to my decision.
The legislative regime for regulated dogs
- [6]Chapter 4 of the Animal Management Act deals with the legislation governing a declaration of a dog to be dangerous. A dog may be declared to be dangerous if grounds for that declaration exist under s 89(2), which provides that a dog may only be declared dangerous if:
- (a)the dog has ‘seriously attacked’, or acted in a way that caused fear to, a person or another animal; or
- (b)the dog may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.
- (a)
- [7]Section 89 in the Animal Management Act also contains a definition of ‘seriously attack’, which provides that a dog attack constitutes a ‘serious’ attack if it results in either bodily harm, grievous bodily harm, or death.[1] The dictionary contained in Schedule 2 of the Animal Management Act requires that ‘bodily harm’ be given the same meaning attributed to those terms by section 1 of the Queensland Criminal Code. Relevantly, ‘bodily harm’ is defined in the Criminal Code to mean ‘any bodily injury that interferes with health or comfort’.[2]
- [8]In this case there is no dispute that Ms Podger’s and Ms Butler’s respective injuries amounted to bodily harm within the definition found in the Queensland Criminal Code. It therefore follows that the attacks upon these two persons were serious attacks within the definition in s 89 of the Animal Management Act.
- [9]The chronology of events in this matter are as follows:
- (a)On 9 September 2019 the Council issued Mr Puopolo with the proposed Declaration Notice Dangerous Dog under s 90 of the Animal Management Act;
- (b)Mr Puopolo was given until 25 September 2019 to provide submissions to the Council as to why Zizou should not be declared a dangerous dog;
- (c)Mr Puopolo made these submissions on 18 September 2019;
- (d)On 30 September the Council issued Mr Puopolo with a notice of a Regulated Dog Declaration Dangerous Dog in accordance with section 95;[3]
- (e)Mr Puopolo requested an internal review and after this the Council confirmed the dangerous dog declaration on 16 October 2020.
- (a)
- [10]On 20 November 2019 Mr Puopolo filed in the Tribunal an application to review the Dangerous Dog Declaration. On 2 December 20219 the Tribunal directed that the decision to declare the dog as a dangerous dog was stayed and Mr Puopolo was required to keep the dog in accordance with the provisions of keeping of a declared dangerous dog.
- [11]Details that form part of the factual narrative of events also include that on the 4 September 2019 Council officers attended Mr Puopolo’s house and seized Zizou and another dog, Houdini, pursuant to the Animal Management Act. Mr Puopolo was not home at the time. Houdini was registered to another person and only being cared for by Mr Puopolo for a short time. Houdini was quickly returned to Mr Puopolo. On 9 December 2019 a member of the Council Animal Management team conducted an inspection of Mr Puopolo’s property and it was determined to be suitable to house a dangerous dog. Zizou was then returned to his owner.
- [12]In a review proceeding it is the responsibility of the Tribunal to arrive at ‘the correct and preferable decision’ by way of a fresh hearing on the merits.[4] The review must be conducted in accordance with the enabling Act, in this case the Animal Management (Cats and Dogs) Act 2008 (Qld). As previously stated, the central issue in this matter is the identification of Zizou as the dog that attacked each of the victims. Any other Council decisions relating to the seizure of Zizou are not part of the review. Although they may be the subject of proceedings in other jurisdictions, they are not a matter of interest to the Tribunal in this matter and will not be further discussed.
- [13]I note that if the local government entity is satisfied that the relevant ground under s 89 still exists after the internal review, it must make the regulated dog declaration.[5] There is no discretion in a situation such as the current one where the council did determine after the review that the relevant ground still existed.
- [14]In deciding whether the facts in this case reached the requisite standard I must consider if the affirmative of the allegation that Zizou is a dangerous dog is made out to my reasonable satisfaction.[6]
Discussion of evidence and findings of fact
- [15]Oral evidence was given to the Tribunal by Mr Puopolo. Witnesses for the Respondent included Council decision makers and inspectors Shane Millard, Scott Talbot (via telephone), Nicholas Tucker and Derek Cairns. The two victims of the attacks, Sue Podger and Sandra Butler also gave evidence at the Tribunal hearing.
Mr Puopolo
- [16]The applicant gave evidence to the Tribunal that he was the owner of the dog Zizou. At the time of the alleged attacks he was also caring for another dog called Houdini who belonged to a friend of his. It was Mr Puopolo’s evidence that he admitted that the dogs had gotten out on the Sunday before he was visited by the Council inspectors. He said they were not out at time of the alleged attack on 3 September 2020. His evidence was that at the time of the alleged second incident his dogs were in his backyard. He stated that they were in the yard when he went to bed and when he got up in the morning they were still there. He was at a loss to explain how they could have gotten out and then let themselves back in again and shut the gate. Therefore, he had drawn the conclusion that they had not left his yard. His basic premise was that it was not his dog who had done this. He said that he did not deny that those injuries had taken place, he simply denied that it was his dog that had caused the injuries.
- [17]He described Zizou as a gentle dog by nature and one that had not previously attacked. He was happy to leave the dog around children and he always considered the dog to be safe. It was his evidence, with reference to photographs of Zizou, that the dog was brindle in colour and that the dog had soft, floppy ears that never went up. He described the ears as “having no cartilage” and that they never stood up. He also indicated that Zizou’s height and build were smaller than the witness box measurement height referenced by one of the victims. It was his evidence that his dog was much smaller in build than a Rottweiler.
- [18]Mr Puopolo admitted that the gate to his property was propped up with a stick, but it was his contention that this would make it extremely difficult for any dog to get out.
Evidence and discussion
- [19]I will now consider each incident which formed the basis of the respective declarations.
Incident on 21 August 2020
- [20]In her oral evidence and tendered statements Ms Podger said that around 6.00 am on 21 August 2019 she had been walking along her usual route to her public transport journey when she was attacked by a dog. Prior to the attack she had noticed a large black coloured dog on the footpath barking at another dog who was inside the property. The black dog on the footpath was not recognised by Ms Podger as one she had seen before. She did not see where it had come from. She did not know what the breed was, but she said it looked quite large, larger in size than a Labrador and that it may have looked something like a Rottweiler. She said as she walked towards the dog it turned without provocation, ran at her and bit her on the forearm. She said she screamed and shook the dog free and ran to the opposite side of the road. The dog desisted and did not follow. She experienced pain from the bite and consulted a doctor who cleaned and dressed the wound. She also contacted the Brisbane City Council. At the request of the Council officer she spoke to she took a photograph of her injury and sent it to Officer Cairns. Three days after the incident Ms Podger returned to the same street where the attack occurred to try to locate the dog that attacked her. She knocked on the door of the house that is now known to be the home of Mr Puopolo and there was a male teenager who opened the door. She observed two dogs in the house through the security door. She said that she immediately recognised one of the dogs as the dog who bit her. In her evidence before the Tribunal she described that she was surprised by how shaken and upset she had been by the dogs inside the house barking at her. Ms Podger described her response as panic, and she had held the screen door of the house shut. She recalled coming to the realisation that it was not her business to investigate the matter and she quickly left the property after that.
- [21]I accept that going to a stranger’s house and having dogs bark would likely have been an unsettling event, particularly when it appears only a minor is present with the dogs. Any concern may have been magnified by Ms Podger’s experience of having been bitten by a dog in the same street a few days before. I have considered this sequence of events when considering Ms Podger’s ability to accurately assess whether the dog barking at her from inside the house was the one who bit her. I accept that the event of being bitten was traumatic, it took place before full light and evoked a very understandable fear on the part of the victim. Equally I note that Ms Podger’s visit to Mr Puopolo’s house a few days after the incident was short and unexpectedly anxiety-provoking for her. She described that her reaction, including holding the door shut, came as a surprise to her and perhaps to the teenage male who was behind the door. I assess from her evidence that it would have been difficult for her to clearly identify a dog at a time when it was in the house, she was outside looking through a door that she was holding shut, two dogs were barking and only a minor was present. these actions were occurring simultaneously in a short space of time. Ms Podger described the dog that attacked her as a large black dog. She said she had not seen the house the dog had come out of on the day of the attack. The dog was stated to be on the footpath outside of the applicant's house. She said this dog was barking at a dog inside the yard of Mr Puopolo’s house. Under cross examination, Ms Podger stated that she possibly may not have been able to pick the dog out if shown a photograph. She said that if she had 20 dogs in front of her she would not have been able to pick which dog it was.
- [22]Ms Podger gave her evidence in a very clear and ultimately believable manner. She did not shy away from the fact that she was unsure about what the dog looked like or what breed it was. When photographs of Zizou were shown to her she was equivocal about whether that may well be the dog. She agreed that Zizou, as identified in the photograph was not black and smaller in size than a Rottweiler. She said she was not good at identifying different breeds of dogs.
- [23]The witness should be commended for her thoughtful and detailed recounting of what was no doubt a very traumatic experience for her. On the central issue of the identification of the attacking dog i.e. was it Zizou? I find that I cannot be satisfied to the requisite standard that Zizou was that dog.
- [24]I make this finding referred to in the paragraph above on the following basis:
- (a)it was early in the morning in August therefore it would not have been full light at 6.00 am when the attack took place. This would have hampered Ms Podger’s ability to see the dog and later describe it;
- (b)she could only identify the dog as being on the footpath outside the applicant's house. She could not state it came from Mr Puopolo’s property;
- (c)her description was of a larger black dog something like a Rottweiler – evidence indicated that Zizou is not black, does not look like a Rottweiler and was smaller in size than that breed;
- (d)on examination of the photographs of Zizou Ms Podger said that may have been the dog but was equivocal;
- (e)the stressful events of her visit to Mr Puopolo’s property could have mitigated against a valid identification of the dog;
- (f)it was her evidence that if she had 20 dogs in front of her she may not have been able to identify Zizou as the dog that attacked her; and
- (g)Mr Puopolo's evidence was that he was unaware of his dogs getting out of his yard at any time other than the Sunday before the second attack. Based on the totality of the evidence before me I find that:
- Ms Podger was attacked;
- this amounted to a serious attack as she suffered bodily harm; and
- I am not reasonably satisfied that Zizou has been identified as the dog that had attacked her.
- (a)
Incident of 3 September 2019
- [25]Ms Butler said on the morning of the attack it was very dark. It was 4.45 am when she was walking down the street where the attack occurred. As part of her description of the dog that attacked her, Ms Butler indicated via holding her hand up to the witness box table that she thought that the dog was just below the height of that table. She said it was extremely hard to tell. She recounted the morning of the attack saying that she was walking down the street. When she was doing this, she saw a dog looking straight at her and another dog next to that dog. They were both on the footpath. “It happened all very quickly, I stepped away and the dog latched onto my arm.”[7] She managed to get the dog off her and she went and hid behind a car and then continued her walk down the street. On walking down, the street she felt dizzy and unwell, so she made the decision to walk back up the street on the other side to go to her friend’s house. She said that the dog did not bother her on her way back.
- [26]When asked about the colour of the dog Ms Butler stated that she could not describe the colour of the dog apart from it being dark as it happened very quickly. She described the house that the dog was out the front of as unusual house. When shown of a copy of photograph of the home of Mr Puopolo she agreed that it was the house that the dog was out the front of on the morning of the attack. She said it all happened very quickly however she thought that the dog’s ears had gone up. She was not sure of the details as the dog had come at her from behind, so she said that she had not had a good look at it. Ms Butler described hearing a bark, she had looked, and she saw the dog outside the fence line outside of the house. She said that without any warning or provocation the dog came up from behind and bit the upper part of her left arm and then let go and then bit her again. Ms Butler emphasised the speed that the events occurred at and the impact this may have had on her ability to describe the events. She yelled out for help, that the dog was attacking her, but no one came to her assistance. She said it was her friend who took photographs of her injury and contacted the Brisbane City Council.
- [27]After the attack Ms Butler was shown photographs of two separate dogs by Mr Nicholas Tucker, Brisbane City Council officer. “From examination of those photographs, I formed a belief that the photographs of the larger dog resembled the dog which attacked me. I could not say with any certainty however that the photograph I signed those photographs”.[8] ”. She said that she formed the belief that the photographs of the larger dog resembled the dog that attacked her.[9] Ms Butler described that she still felt anxious after the attack.
- [28]Like Ms Podger, Ms Butler gave her evidence in a forthright and believable manner. She is to be commended for her attempts to clearly describe what was no doubt an extremely traumatic situation for her. After considering the totality of the evidence I find that I am not satisfied to the requisite standard that Zizou has been identified as the attacker of Ms Butler. A summary of the major considerations supporting this finding is as follows:
- (a)the attack took place early in the morning when, by Ms Butler's evidence, it was still dark and therefore difficult to clearly see;
- (b)the dog that attacked her came from behind and therefore she did not get a good look at it;
- (c)she could not be certain which dog it was that attacked her. She thought it may well have been one of the dogs that she was shown in the photographs by the Council officer, but she could not be certain of this;
- (d)Ms Butler placed the dog that attacked her on the outside of the fence of Mr Puopolo’s property;
- (e)she thought the dog’s ears had gone up and there was no challenge to Mr Puopolo’s evidence that Zizou’s ears were soft and floppy and never went up as they were not the type of ear that did so;
- (f)Ms Butler was unable to identify the type of dog;
- (g)the events happened very quickly, and this limited the opportunity to examine the appearance of the dog attacking her;
- (h)the Council officer gave Ms Butler a limited choice of photographs of dogs, only two, to look at and indicate if one of them was the dog that attacked her. This course of action may well have influenced her identifying one of the dogs as her attacker. An inference may be drawn that by her being shown the photographs of these two particular dogs there was an underlying suggestion that the Council officer was not showing her random photographs of dogs but had based the selection of dog photographs on the belief that one of the dogs in the photograph was the dog that attacked her. This series of events may have coloured her assessment of whether that was the dog responsible for the attack; and
- (i)even after seeing the photographs, Ms Butler was “unable to say with any certainty” that the larger dog in the photographs was the dog that had bitten her.
- (a)
- [29]The above points have cumulatively led to me being unable to be satisfied to the requisite degree that Zizou was correctly identified as the dog responsible for the attack on Ms Butler. Again, the Tribunal takes no issue with the fact that this was a traumatic and terrible attack that occurred. The parties take no issue with the attacks having taken place and both attacks amounting to serious attacks. The only issue is if Zizou has been identified as the attacking dog in both or either of the incidents. After consideration of all of the available evidence, including the eyewitness evidence of the victims, I cannot be satisfied to the requisite standard that Zizou was the dog who can be identified as the attacker of Ms Butler or as already stated the attacker of Ms Podger.
Mr Derek Cairns
- [30]Mr Cairns described himself as a member of the Rapid Response Unit (Dogs) of the Brisbane City Council. On 21 August 2019 he was the first responder to a complaint made by Ms Podger that she had been bitten by a large black coloured dog. Ms Podger told him that she was unsure of where the dog had come from. The action he took was to interview Ms Podger and to patrol the street she said she was attacked in to locate the dog who attacked her. He said this location attempt was unsuccessful. He then referred the complaint to another team.
- [31]On 3 September 2019 he was asked to assist as a first responder to a complaint from a friend of Ms Butler's. This person said that her friend had told her that she had passed a house with two dogs in the front of the property and that the larger dog ran at her and had bitten her on the arm. Mr Cairns took photographs of the house Mr Puopolo resides at and attended that house for the purpose of speaking to the occupant. When he attended saw that there were two dogs in the yard of the property, and they became agitated when he approached the property. There was a young male within the property, and he asked that person to secure the dogs. Then Mr Puopolo identified himself and Mr Cairns had a conversation with him which was digitally recorded. Mr Puopolo advised that only one of the two dogs was his i.e. the larger dog Zizou; the second dog Houdini belonged to a friend. Mr Cairns said he took no further part in the investigation.
Mr Nicholas Tucker
- [32]Mr Tucker gave evidence that he was the Brisbane City Council dog inspector for the suburb where both attacks took place. On 4 September 2019 he was given the task of investigating an attack on Ms Butler which occurred on the morning of 3 September 2019. Based on information provided by the Council Rapid Response team he believed that a dog had bitten Ms Butler on the upper arm as she walked down the street and he believed that the dog that was involved in an attack had come from a property identified as Mr Puopolo’s. He looked up Council records and found out that at the premises there was a Dogue de Bordeaux breed of dog named Zizou. Prior to this date he had also been involved in another investigation, relating to a different dog attack. He believed that both attacks involved a dog from Mr Puopolo’s property. He based this in part on his being advised by the Rapid Response Team that Ms Podger alleged a large black dog exited Mr Puopolo’s premises and bit her on the left arm. His evidence was that information from Ms Podger’s incident lead him to believe it was the same dog involved in Ms Butler’s incident.
- [33]Mr Tucker's evidence also related to his seizing of the dog but as previously mentioned in these reasons this is not a matter for the Tribunal’s decision on this date. Mr Tucker said that he had formed the belief that these two attacks were from the same dog and that the dog was from the house where Mr Puopolo lived. He based this belief on the fact that the attacks were in the same area, there was a similar sort of description of the dog and it was a large black dog. It was obvious from the cross examination and evidence of the victims that they did not support Mr Tucker's belief that the dog came from Mr Puopolo’s. He referred to a dog exiting the premises. It is the clear evidence of both victims that they saw the dog on the footpath and could not say where it had come from. Whilst it is understandable how Mr Tucker put together the series of events that led him to the belief that Zizou was the dog involved in both attacks, he was relying, as is necessary in his job, on information from others. This caused him to form the mistaken belief that the victims said the dog had exited from Mr Puopolo’s premises. Subsequent evidence from the victims indicates that this a false premise. They did not see the dog that attacked them in Mr Puopolo’s yard, nor did they see the dog exit from that yard.
Mr Shane Millard
- [34]Mr Millard gave evidence that he was the Acting Business Manager, Safety Amenity, Brisbane City Council. He was an authorised officer and for the purposes of the Animal Management Act, he was a delegate for the review of decision. In October 2019 he conducted a review of the original decision to issue a Regulated Dangerous Dog Declaration regarding Zizou. Mr Puopolo had lodged the application and provided representations as to why this dog should not be subject to the declaration. From his review of the decision he could find nothing within the decision which was contrary to the procedures in place within the Council at the time, therefore he determined there was sufficient evidence within those investigations and as prescribed by the provisions of the Animal Management Act to warrant the issuance of a regulated Dangerous Dog Declaration to Mr Puopolo regarding the dog Zizou. He also considered Mr Puopolo’s submissions and determined there was nothing in the submissions which would justify amending or overturning the original decision. On 16 October 2019 he forwarded to Mr Puopolo a notice of internal review decision which indicated the original decision had been confirmed.
- [35]Mr Millard’s evidence was that that he held the relevant delegation under the Animal Management Act. He provided a statement of reasons. Under cross examination by Mr Puopolo, it was established that it was not his role to re-investigate matters and that he just considered submissions and did a desktop review of the written material that was in front of him.
Mr Scott Talbot
- [36]It was Mr Talbot’s evidence that he was a member of the Animal Attack Team of the Brisbane City Council. On 30 September 2019 he was asked to review an investigation regarding a dog called Zizou. Upon review of all the information he concluded that the dog Zizou should be declared a dangerous dog in accordance with the Animal Management Act. On 30 September 2019 he drafted and signed a Notice of Regulated Dog Declaration in relation to Zizou. Under cross examination he agreed that he had not attended the property or asked for an inspection of the property where Mr Puopolo resided with his dog.
Summary
- [37]To conclude, I return to my initial comment that the central issue in this matter is the identity of the dog that bit Ms Butler and Ms Podger i.e. was it Zizou? I have considered the identification evidence given by the unfortunate victims of these two dog attacks, I have considered the applicant’s information and that of the Council officers. For the reasons I have already stated I do not find that the identification of Zizou as the dog is so clear cut that I can be reasonably satisfied to the standard required that Zizou is the dog who attacked one or both of the women.
- [38]I make no comment, nor is it my role to do so, on the investigation; however given the turn of events with two attacks in a relatively close time period in the same area one can see perhaps why the Council inspectors may have drawn a conclusion it may have been Zizou. He lives in the area, although he is not a black dog but may in a peripheral way meet the description of the attacking dog. There seems to have been a breakdown in communication that led Mr Tucker to believe that the attacker dog was seen to come from Mr Puopolo’s yard, and this is not the case based on the eyewitness evidence of the victims. However, it is not enough for the purposes of this decision for me to be satisfied by some assumptions drawn by the Council officers.
- [39]Based on the evidence and findings already discussed above, I find that the ground in s 89(2)(a) has not been established for Zizou in respect of the 21 August 2019 incident, nor in respect of the 3 September 2019 incident. Accordingly, the application is allowed, and the Tribunal sets aside the decision under review and substitutes its decision that the grounds upon which a declaration of dangerous dog was made in respect of the applicant’s dog are not met.
Footnotes
[1]Animal Management Act, s 89(7).
[2]Curley v Brisbane City Council [2020] QCAT 357.
[3]Animal Management Act.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[5]Animal Management Act, s 94(2).
[6]Briginshaw v Briginshaw (1938) 60 CLR 336, 361-2.
[7]Ms Butler’s evidence under cross examination on 8 October 2020.
[8]Exhibit 3 Ms Butler’s affidavit dated 17 December 2019.