Breeds affected by Breed specific legislation...

Breed Specific Legislation or "BSL" is exactly what it sounds like...regulation of your right to own or, in many cases, not own, a dog based solely on the breed or "type" of dog - not your responsibility as an owner.  While most people associate BSL to laws that ban the ownership of specific breeds of dogs, it also refers to regulations such as muzzling, insurance, and a host of other strict requirements placed only owners of specific breeds of dogs. 

No matter the type of BSL in a community, it targets all dogs of a specific breed -- the innocent as well as the guilty - and it removes the responsibility from the dog's owner and places it on the dog itself.   Laws are created to punish or deter the actions of humans - not those of animals - and the failure to recognize the integral role or irresponsible ownership is the biggest reason that breed specific legislation fails. 

Breed specific laws take away the right to own particular dogs for no reason other than their perceived breed or their resemblance to a certain breed.   Most instances are fueled by media hype and the fears induced by media hype and sensationalism.  There is no such thing as a vicious breed of dog, and a dog's appearance has nothing to do with his actions or behavior.    

BSL is an inadequate and uneducated "band-aid" quick fix to address the gushing "wound" of irresponsible ownership and lack of personal accountability.  

States that prohibit breed specific legislation 

California, Colorado, Connecticut, Florida, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New York, Oklahoma, Pennsylvania, Rhode Island, Texas and Washington. 

BSL... not just for "pit bulls"

If you think only pit bull owners need to be concerned about breed specific legislation ("BSL"), the following list should shatter your illusions:

American Pit Bull Terrier	American Staffordshire Terrier	Staffordshire Bull Terrier
Akita	Doberman Pinscher	Scottish Deerhound
Belgian Malamois	Cane Corso	Fila Brasileiro
Great Dane	Bull Mastiff	St. Bernard
Dogo Argentino	Boxer	Shar Pai
Alaskan Malamute	Siberian Husky	American Bulldog
Presa Canario	German Shephard	Rottweiler
Chow Chow	Rhodesian Ridgeback	Dogue de Bordeaux
Tosu Inu	Irish Wolf Hound	English Mastiff
Mastiff	Great Pyrenees	Wolf Hybrids

Why breed specific legislation is a concern 

forALL dog owners!

Do you still think you can't be affected by breed specific legislation because you don't own a pit bull?    If so, think again... 

As previously mentioned, breed specific ordinances focus on the way a dog looks rather than the actual breed of the dog....this is particularly true with so-called "pit bull bans."  Why?  Because accurate "pit bull" identification is difficult, if not impossible.  These ordinances are worded extremely broadly in order to include ANYany dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier

Who Makes the Decisions?

With the knowledge that pit bull ordinances target dogs that simply look like pit bulls, the obviously leads to the question:  WHO is charged with identification of a "pit bull" in cities that have enacted breed specific ordinances.  What special criteria do they have?  What is their area of expertise that entitles them to condemn your dog? 

In many cities, the determination as to whether a dog is or is not a "pit bull" is made by a police chief, police officers and/or animal control officials.  In other words, the people charged with enforcing these ordinances are not experts in breed identification.  The mere fact that animal control officers come in daily contact with various breeds in the course of their job, does not mean they can properly identify all those breeds.  In fact, many veterinarians  - who also come in daily contact with a variety of breeds on a daily basis - have stated there is no way to positively identify a "pit bull." 

To emphasize the incredible potential for arbitrary enforcement of these laws, Tom Skeldon, an Ohio dog warden, testified in a court of law that "there is really no way to tell if a dog is or is not a pit bull, and the determination is made by animal control officers' subjective judgment."  To add to the irony of this statement, Mr. Skeldon was testifying as an "expert" on behalf of the city defending its ban on pit bulls

Among the many problems associated with breed specific legislation and its enforcement against pit bulls are the issues associated with identification.  "Pit bull" is not a breed, but rather a generic term used to describe the American Pit Bull Terrier, American Staffordshire Terrier and Staffordshire Bull Terrier.  However, the physical traits and characteristics shared by "pit bulls" are also shared by approximately twenty-five (25) other breeds that are not typically classified as bully breed dogs.  Obviously, this causes great difficulty in identification and allows for discriminatory and subjective actions by animal control officers. 

This clearly illustrates the importance of why every dog owner should be against breed specific legislation.  Could your dog fall into the category of "looking like" a pit bull?  Does your dog "closely resemble" a breed that could  look like a pit bull?

All across the country, non-pit bull owners ARE being affected by pit bull bans.  If you think otherwise, you are simply ignoring the obvious as set forth in ordinances above.  

Your dog could be next.  Responsible dog owners of ALL breeds need to help in the fight against breed specific legislation. 

As evidenced above, it is unreasonable for laws to be passed based simply on what a dog looks like or what breed it not necessarily is, but what breed it appears to be.  As dog bite statistics show, every breed of dog will bite. 

The focus of legislators should be on implementing and enforcing generic, non-breed specific dangerous dog laws.  These laws deem a dog dangerous based on individual dangerous or vicious acts of the dog - not by breed.  Existing laws should be strictly enforced and irresponsible owners should be held accountable for the actions of their dogs. Breed specific legislation removes the responsibility from the dog's owner and places it solely on the dog itself.   

Breed bans and other forms of BSL do not work because they target all dogs of a breed -- the innocent as well as the guilty; they are difficult to enforce; and they do not end the use of guardian dogs by criminals. If a breed that is popular with criminals and/or unethical breeders is banned, they simply move on to another breed. 

Removing all "pit bulls" or "rottweilers" or "fill in the breed here" does not instantly render a community safe.  Rather, it instills a false sense of security among residents because the truly dangerous dogs remain in the community because those dogs do not meet the criteria of the banned breed.

BSL and the Cost to Taxpayers

1.  Cost of additional animal control offers to enforce the ban or restrictions.  **Remember, most cities do not have sufficient animal control departments to enforce leash laws, which if enforced would reduce many of the problems that lead to bite incidents.

http://www.blessthebullys.com/breed-specific-legislation.html

22 POINT FRAUD

This page contains the witness statements of the expert witnesses called by Mr Da Fre.

The main thing to know about this body of evidence is that the Council called no-one with similar or comparable qualifications or experience to contradict it.  It called only Messrs Pomeroy and Perkins, and 4 ordinary animal control officers. 

For the most part, this sworn evidence now stands on the public record, subjected to cross-examinaton by counsel for the Council, and nevertheless uncontradicted except by mere assertion of Messrs Pomeroy and Perkins.

Scientific, technical or other professional backup for those contrary assertions apparently does not exist anywhere in the world.  The Council certainly did not produce it to the Court if it does exist.

Ms C Cooke,  

legislative consultant to the UKC, lawyer and dog breeder and, most importantly, auther of the current UKC  breed standard for the APBT. She told the Court that the use being made of the standard by Ms Pomeroy and others was simple nonsense.

http://www.dafrevlogancc.bigpondhosting.com./

Dino Da Fre v Logan City Council

This web site contains all of the significant court documents relating to this case, including witness statements and legal submissions.

Each of the links at left takes you to a particular category of document, and the page link gives a brief explanation to help understand the content and significance of the documents in that category. The information provided is factual and explanatory.  Except for the following notes on this page, there is no editorial comment or "spin". 

The material is here for readers to form their own views.

Logan City Council has, sadly and disappointingly, put a "spin" on the outcome of this case which the site authors do not consider to be consistent with the facts. 

The documents on this site demonstrate, by speaking for themselves, the factual truth of 2 things which Logan continues to publicly deny.

First, the evidence in this case did expose the scientific and technical falsity of the "22 point test" as a breed identification process. Mr Da Fre called a range of professional witnesses with dog breeding, dog judging and scientific qualifications who all stated absolutely and unequivocally that the use of a breed standard as a "breed ID" tool for dogs of unknown parentage is professional and scientific nonsense.  They all testified without qualification that a breed standard is a document designed and useful only for judging and related purposes when the breed of the dog being  judged or assessed is already known and undisputed. See their statements. 

The Council called no evidence to the contrary by any similarly qualified person.

It leading witness Ms Pomeroy could point to no-one anywhere in the world who supports her theory about using breed standards as a breed ID tool. She admitted that her assessment technique was entirely "self-taught", and her ultimate response when pressed about the professional or scientific basis for her system was "I use the standards. So obviously I think it works".

Ms Perkins asserted, and firmly maintained, that her undergraduate veterinary degree was a relevant breed identification qualification. A past President of the Australian Veterinary Association, 29 years in practice, told the Court unequivocally that it was not.  That aside, her evidence was that her only other formal breed identification qualification was a course designed and taught by Ms Pomeroy. She otherwise asserted, and relied upon, her general experience and expertise.

The author of the breed standard gave evidence (by telephone from the USA). She dismissed use of  the breed standard as a breed ID tool as entirely misconceived. 

Second, the Council's public position that it withdrew before final judgement because of the "late" DNA evidence is  simply untrue, at least so far as concerns what it said and did in Court.

As the transcripts show, the DNA evidence was given to the Council nearly 3 weeks before the trial resumed on 19 June 2006. The Council did seek an adjournment at the opening on 19 June to further consider the DNA evidence.  The public does not know what may have been said, done or intended "behind the scenes".  However, that adjournment was refused (in fairness to Mr Da Fre).  The Council was then asked by the Court whether it still opposed the appeal.  The Council's lawyers told the Court that it did, and the appeal ran, hotly contested by the Council, for the next 3 days, making 6 days in total.

During that period, the Council first tried and failed to attack the DNA evidence and then, when that evidence had been, if anything, strengthened by the Council's cross-examination, turned tack 180 degrees and called Ms Perkins to give further evidence that, yes, she now accepted the DNA evidence after all, but that the (Staffy) mother was also a pit bull.  Her final statements to the Court were to "reinforce my already firmly held view that Rusty is a pit bull terrier type of dog".

That was the Council's case, as put before the Court, with full knowledge of the DNA evidence.  To say that it then withdrew  - about a week later - after evidence but beforejudgement - because of the DNA evidence is contrary to the clear and simple facts on the public record. It withdrew because it acknowledged in an open letter to Mr Da Fre that it could not prove that Rusty was an APBT. 

Despite full knowledge of the DNA evidence, the Council's witnesses, Messrs Pomeroy and Perkins, never modified or withdrew their evidence that, based on the 22 point test, they were absolutely certain that Rusty was a pit bull. The DNA evidence made Ms Perkins morecertain about her identification, not less.

The only rational inference is that Council withdrew because it knew that the Court would find that this evidence was incapable of proving its case.  

Each ratepayer and resident can form their own opinion of the Council's actions.

http://www.dafrevlogancc.bigpondhosting.com./

Enforcement of all dog management regulations. Resourcing is often a major barrier to effective enforcement, and this problem needs to be addressed to achieve tangible reductions in dog bite incidents

The facts about dog bites

While genetics are an important factor, the impact of the environment and learning are critical to the behaviour of a dog. The tendency of a dog to bite is dependent on at least five interacting factors:  heredity (genes, breed)  early experience  socialisation and training  health (physical and psychological) and  victim behaviour (Beaver 2001, Seksel 2002, Snyder 2005).

Other factors include the sex and age of the animal, along with a range of other social and environmental factors.

1 Dog bite incidents generally occur either in domestic settings where the animal is known to the victim, or by dogs at large (refer to the definition on page 33) unknown to the victim. While dogs at large are responsible for a minority of dog bites2 , they attract disproportionate media and political interest.

They are the public face of the dog bite problem, and most legislation is designed to control this part of the problem.

 However, most bites occurred in the dog’s own home and involve victims bitten by their own dog (Kizer 1979 cited in Overall and Love 2001). In Australia, 73% to 81% of attacks occur in the domestic environment (Ashby K 1996 quoted in Ozanne-Smith et al 2001, Thompson 1

 Other factors include:  Male dogs are 6.2 times more likely to bite than females (Gershman 1994, Shuler 2008)  Entire (undesexed) dogs are 2.6 times more likely to bite than those that are spayed or neutered (desexed) (Gershman 1994 although see Guy 2001, Messam 2008)

 Chained dogs are 2.8 times more likely to bite than unchained dogs (Gershman 1994, although see Messam 2001, Yeon 2001)  Dogs with “dominance aggression” are more likely to be 18-24 months old (Overall and Love 2001) 

Dogs bred at home are less likely to bite, compared to those obtained from breeders and pet shops (Messam 2008)  Dogs are more likely to bite the older they are when they are obtained (Messam 2008)

 Biting dogs are more likely to live in areas of lower median income (Shuler 2008)  Dogs are more dangerous when acting as a pack (Kneafsey et al 1995, Avis 1999 cited in Patronek and Slavinski 2009; Raghavan 2008) 2 Owned dogs at large in public places (stray, escaped or being walked off-leash) were responsible for 13-25% of reported bites in Baltimore (Berzon cited in Overall and Love 2001), 35% of reported bites to children in Belgium, 38% of reported bites in the Netherlands (Cornelissen 2010), and 42% of reported bites in Toronto (Bandow 1996). Only 10% (cited in Beaver et al 2001) to 27% (Messam et al 2008) of biting dogs are not known to the victim.

https://attachment.fbsbx.com/file_download.php?id=499324150152166&eid=AStfxvZPsF2IC2LQThfkXLhVQRtMz_-0foriyOecdkAynHmAgArOlJdojp8-av-j_UQ&inline=1&ext=1435334815&hash=ASv2b1qCB6XV3POd

Dangerous dogs – a sensible solution Policy and model legislative framework

Executive summary As individuals and a society we value the positive role that companion animals play in our lives. However there is a persistent gap between the community’s desire to live alongside animals and its knowledge of how to properly interact with those animals. Dog attacks on humans, other companion animals, livestock and wildlife in Australia are similar to other developed countries in most respects. Some breeds of dogs receive more media attention when attacks take place, even though the frequency of attacks by these breeds may be small. For many years countries including Australia have attempted to regulate certain breeds in an attempt to reduce the frequency of dog bites. The Australian Veterinary Association (AVA), along with the national veterinary associations of Britain, the United States and Canada, has recognised that breed-specific approaches to dog regulation are not effective as they do not protect the public by reducing dog bite incidents. This report sets out the facts about dog bites in Australia, along with a detailed critique of breed-specific legislation that bans particular breeds of dog perceived to be more inclined to be aggressive. The association is advocating a legislative approach based on the identification of individual potentially dangerous animals and preventing them from inflicting harm. To develop this model, the association has:  reviewed relevant legislation in Australia  reviewed overseas initiatives and their results in reducing dog bite incidents  drawn on the scientific literature for the most up-to-date information on dog behaviour and welfare  identified the key elements of dog management legislation in relation to dangerous dogs and dog attacks  developed the key principles and elements of a model legislative framework. Dog bites are the result of a complex behaviour caused by the interaction of many factors. While regulation is an important foundation, to reduce dog bites an effective policy response must also include:  Identification and registration of all dogs.  A national reporting system with mandatory reporting of all dog bite incidents to the national database.  Temperament testing to understand the risks and needs of individual animals, to help owners make more appropriate choices for their new pets, and to guide breeders to improve the temperament of puppies.  Comprehensive education programs for pet owners, dog breeders, all parents and all children.
http://www.brisbanetimes.com.au/queensland/zeus-the-dog-escapes-the-death-sentence--but-now-faces-life-in-chilly-canberra-20140319-352re.html

Expert Evidence and the Family Pet

It has been held that "the rules relating to expert evidence at common law are largely based on good sense and fairness"¹. 

The essence of the good sense referred to in this context is reflected in the well- worn truism that opinions are like navels; everyone has one and, in themselves, they are essentially useless. Other anatomical variations may be heard. 

Reflecting that general lack of utility, and the fact that it is the role of the court rather than any witness to draw inferences from primary facts in order to determine an ultimate fact in issue, the law of evidence parallels commonsense by generally rejecting as inadmissible the opinion of a witness about a factual matter on which there is no direct evidence (and universally rejecting the opinion of a witness about which case or which party should ultimately prevail). 

There are some minor exceptions in relation to matters which are accepted as being able to be reliably inferred by any witness². The primary exception, however, is that which permits experts to give, as evidence, their opinions about the conclusions which may be inferred from the facts proved or assumed before the court.   

The rules of expert evidence are designed to ensure that opinions which fall within the "essentially useless" category do not affect the disposition of litigation. They are, of course, nothing new, and form part of the general legal knowledge of all practitioners. However, some recent experience suggests that their detail can be overlooked in the heat of battle, possibly to the significant detriment of a client against whom purported expert evidence is sought to be asserted by the opponent. 

One particular aspect of those rules which, at least in my view, does not always receive the careful and critical consideration required on occasions when one is either faced with or proposes to call expert evidence is the "area of expertise" rule. 

The rules generally 

Subject to some minor qualifications in later judgements , the seminal contemporary summary of the requirements for admissibility of expert opinion evidence is that by Heydon JA, as he then was, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. At 743-744, His Honour stated:- 

“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness's expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight."

Area of expertise 

This is the first of Heydon J’s elements. It represents the fundamental threshold for the admissibility of expert opinion, and poses the question as to:-. 

“... whether the subject matter of an opinion forms part of a body of knowledge or experience which is sufficiently organised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court” ⁴.

In Clarke v Ryan (1960) 103 CLR 486, Menzies and Windeyer JJ required that there be “an organised branch of knowledge in which the witness is an expert”⁵. The learned author of Cross on Evidence (again, Justice Heydon) observes that “organised branches of knowledge are normally those in which those who are trained or experienced share generally accepted principles and techniques”⁶. 

Also in Clarke, Dixon CJ required that the subject matter so far partake “of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it”.  Again, the learned author of Cross observes that “a ‘science’ is usually regarded as something turning on generally accepted principles”⁷. 

This rule is related to, but nevertheless quite distinct from, the rule requiring the particular witness to demonstrate appropriate qualifications, training or experience in a relevant area of expertise. The horse must come before the cart. 

Obviously, there will be many contexts in which the existence of the relevant area of expertise will be quite uncontroversial and not a matter requiring forensic enquiry by counsel.  Nevertheless, in areas where the asserted expertise is not "mainstream", the question can be overlooked, particularly when presented with a professionally prepared "expert report" replete with an impressive CV and a collection of apparently scientific or technical appendices which are said to support the witness’ analysis and conclusions. 

The example which I offer may well be viewed as mundane or even trivial in terms of its subject matter, but it graphically demonstrates, at least in my view, how failure to apply the fundamentals of expert evidence can lead to a clearly wrong result, possibly accompanied by significant injustice. 

The keeping of “pit bull terriers” as domestic pets is restricted generally by State laws⁸, and entirely prohibited by many local governments in their particular areas⁹. Under either legislative scheme, it is an offence to keep a dog contrary to the applicable provisions. More importantly for the ordinary pet owner, Councils which have taken the prohibition route generally have local laws which empower them, without having prosecuted, to seize and destroy a dog which they assert to be of a proscribed breed. 

When these matters end up in court¹⁰, the ultimate question for the court is a question of fact as to whether the dog in question is of the prohibited breed or, at least, whether there exists probative evidence of that matter upon which the Council was entitled to act. 

The Council, of course, does not know and cannot know the breed of dog in question as a fact, at least in the absence of an admission by the owner¹¹. A number of local governments have sought to bridge this gap by developing their own breed identification process, and by presenting witnesses to the courts as experts in this field, and therefore qualified to give evidence of opinion as to the breed of the dog. 

The methodology which these witnesses employee involves comparison of the physical appearance of the dog with descriptions of physical features in a document called a "breed standard", assigning a score of zero to three against each of the descriptions in that document, and coming up with a final score where some number of points (typically 46 of the possible 66) leads to a conclusion that the dog is of the breed alleged. 

These witnesses have been accepted by the Magistrates Court on at least one occasion, including glowing judicial endorsement of their expertise¹². Anecdotally, there have been many similar outcomes. 

The problem with all this is that, as revealed by the evidence in a subsequent case in which the matter was squarely raised¹³, the area of expertise which might be described as "breed identification by application of breed standards" appears to be non-existent. The evidence presented in that case, which was unchallenged by the Council except by bare contrary assertion, was that a "breed standard" is a show judging document describing the ideal qualities of a prize-winning specimen, intended to be used by judges and breeders only in a context where the dogs are already known to be pedigreed  examples of the breed. The use of a breed standard for “breed identification” (where breed is unknown and in dispute) was completely rejected in evidence by the author of the standard (called for the owner, and never previously contacted by the Council), and was shown to be unsupported by any professional or technical literature, or any dog breeder, dog judge or other animal professional anywhere. 

I should, importantly, point out that the case did not go to judgement on this issue as the Council withdrew and returned the animal to the owner after the completion of evidence but before judgement. The threshold "area of expertise question" was not required to be judicially determined. However, the evidence seems to be objectively compelling, to the point of being overwhelming, that the area of expertise upon which all of the purported expert evidence was based was entirely unrecognised anywhere as a “body of knowledge or experience” meeting the required test. 

Accepting that to be the case, it is clear that an injustice has occurred as a result of failure to properly apply the rules of expert evidence in earlier cases in which the evidence has been accepted. In case any reader thinks that “injustice” is too strong in the context of an issue about public safety, all of the cases of which I have direct knowledge concerned ordinary family pets, acquired from friends or acquaintances as backyard cross-breeds of unknown origin, none of which had ever displayed the slightest hint of dangerous or aggressive behaviour. It was all about what the Council thought they looked like. The subject matter may be of minimal money value, but the tears of the owners and their children were real enough. 

No criticism is made of anybody appearing for the owners in those earlier matters, as the writer knows nothing about the extent to which counsel, in particular, had an opportunity to fully consider the matter prior to trial, or the extent to which individual owners would have had the financial resources to properly investigate the technical issues in any event. Self-evidently, at least from the owner’s perspective, these cases were not major commercial litigation with a budget to match. 

Whether the much better resourced local governments had a responsibility to more carefully investigate these matters in terms of their own evidence, having regard to their "model litigant" responsibilities as a government agency, is, perhaps, a question for another time. 

The point for present purposes is to highlight the importance of never assuming (except where the matter is well settled and clearly uncontroversial) that an area of expertise exists merely because the witness (or a government agency) says it does, or merely because the witness has been "accepted" as an expert in previous cases. As long ago as 1960, Clarke v Ryan (supra) illustrated how a purported expert witness who is not in fact entitled to testify can nevertheless carve out a long and lucrative career in that capacity unless the right questions are asked by opposing counsel.   

The dog cases to which I have referred, while obviously conducted in a much less rarefied judicial forum, and with much less at stake (at least objectively, though the families would disagree) confirm that the lessons from that decision remain just as important today, perhaps even more so given that litigation in some jurisdictions (such as the Land Court and Planning and Environment Court) depends almost entirely on the acceptance or rejection of expert evidence¹⁵. 

In short, it cannot be assumed that self-appointed expert is an extinct species. The area of expertise rule, while unimportant for the many well-settled areas of expertise encountered day to day, remains an essential part of the armoury to guard against the introduction of purported evidence which in fact lacks any probative value at all.

Stephen Fynes-Clinton 

---

1. See Lipovac v Hamilton Holdings Pty Ltd (unreported, ACT Supreme Court, 13 September 1996) per Higgins J at p 102
2. Such as identification of persons, apparent age, and the bodily plight or emotional state of a person:  see Frecketon & Selby, Expert Evidence, para [7.10] 
3. His Honour's judgment was revisited by the New South Wales Court of Appeal on 20 May 2005 inAustralian Securities and Investments Commission v Rich [2005]  NSWCA 122. Spiegleman CJ (IPP and Giles JJA agreeing), explained that it was sufficient if an expert identifies and asserts the facts upon which his or her opinion is based (without having to disclose other facts known to the expert which could have been relied upon but which he or she says were not relied upon), but otherwise endorsed and applied the principles identified by Heydon JA. Special leave to appeal from that decision was refused by the High Court: [2005] HCA Trans 416.
4. R v Bonython (1984) 38 SASR 45 at 46–47.  See also in HG v R (1997) 141 CLR 411, at 432 andVelevski v R (2002) 76 ALJR 402, at 416, both per Gaudron J.
5. at 501–2 and 508.
6. Cross on Evidence, 7th Australian Edition, 2004, para [29055].
7. Ibid.
8. Local Government Act 1993, chapter 17A.
9. Individual Councils can make their own local laws which override the State regime in this regard – LGA, s 1193D.
10. Either by way of prosecution, which appears to be very rare, and more commonly by way of an administrative appeal to the Magistrates Court (where a local law so provides) or by way of proceedings under the Judicial Review Act 1991.
11. Or the unlikely occurrence of a Council witness having been present at the mating of its parents!
12. Maroske v Logan City Council, Magistrates Court, Beenleigh, No. 7195 of 2004, decision given on 22.07.2005.
13. Da Fre v Logan City Council, Magistrates Court, Beenleigh, No. 5440 of 2005 The evidence has been made publicly available at http://www.dafrevlogancc.bigpondhosting.com.
14. The ultimate disposition was that the owner’s appeal was allowed, and the Council ordered to pay the owner’s costs.
15. Even in the ordinary civil courts, the conduct of any substantial litigation without an attempt to introduce expert evidence on some issue or other seems to be the exception rather than the rule

http://www.hearsay.org.au/index.php?option=com_content&task=view&id=257&Itemid=48

Zeus the dog escapes the death sentence - but now faces life in chilly Canberra

Zeus is briefly united with his owner after being released from the pound on Wednesday, before he left for Canberra. Photo: Supplied

Kim Stephens

Journalist

View more articles from Kim Stephens

A Brisbane family's dog has been spared a death sentence,after a social media campaign to save him helped secure his release on Wednesday.

But it is a bittersweet affair for the family who, after an eight month court battle and an impoundment fee nearing $5000, were forced to relinquish their beloved pet in order to obtain his freedom.

Zeus is now on his way to the Australian Capital Territory, one of the few states or territories not to have banned breed legislation, Melanie Isaacs, a founding member of the Sydney-based advocacy group Team Dog, said.

Zeus, the dog at the centre of a social media storm Photo: Supplied

"It's incredibly bittersweet for his family, they are absolutely ecstatic because for a long time it was on the table he would be killed," she said.

"They are ecstatic he can now get what he deserves, and that is a full, long and healthy life but then he can't come home and live with them."

Zeus was detained after being captured by Brisbane City Council rangers in Sunnybank in late August last year.

A destruction order was issued when he was deemed to be partly American Pitbull, a breed banned within the municipality.

A council spokesperson said independent advice was sought to verify the dog's breed.

Both council veterinary officers and the head of veterinary science at the University of Queensland assessed him as a pit-bull.

Zeus' owners disputed the order through a number of court hearings, arguing they believed him to be a labrador/Staffordshire terrier cross breed.

However, after a number of court appearances, it was only when Team Dog launched the Facebook group Save Zeus and more than 1500 people joined, council agreed to release the animal.  

Ms Isaacs said the public reaction to Zeus' possible death showed many people did not support breed specific legislation.

"I have no doubt dogs are being put to sleep everywhere with breed specific legislation and no one knows about it," she said.

"It's extremely costly to take anything to court and the sad thing about breed specific legislation is it's targeting families without the knowledge and finances to fight the orders."

Ms Issacs said one of the major drawbacks of the legislation was its subjectivity, with appearance being the only determining factor.

"A lot of people have the impression this legislation targets people who break the law, this case is a perfect example this is not true," she said.

"In 99 per cent of cases this legislation targets families like yours and mine and the huge public outcry shows the general public is not okay with families being treated like this and dogs having their lives ended for nothing more than their appearance."

Zeus will soon arrive at his new home in Canberra, Ms Issacs said, where he will live with a woman who recently lost her dog to cancer.

http://www.brisbanetimes.com.au/queensland/zeus-the-dog-escapes-the-death-sentence--but-now-faces-life-in-chilly-canberra-20140319-352re.html

Dangerous dog bans tough to police

By Malcolm Brown

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The biggest problem in proclaiming a ban on pit bull terriers is that it won't work, the Kennel Council of Australia has warned.

The council's national president, Hugh Gent, said the ban had been introduced in England several years ago and had become such a muddle - with arguments raging over what constituted a pit bull terrier - that eventually officialdom gave up.

The Australian Kennel Council and the Australian Companion Animal Council said yesterday they were opposed in principle to "breed-specific legislation".

The Companion Animal Council has been lobbying local governments in south-east Queensland to remove bans that had been imposed on pit bulls.

Mr Gent said: "I don't know why the authorities here have not taken note of what happened overseas. There were court actions in England and while all this was going on some dogs were in the pound for up to two years. So finally they just let all the dogs out and left it at that."

Commonwealth legislation was in place banning imports of pit bulls but it had been circumvented by people bringing the dogs in as American Staffordshires.

"They all look the same," he said. "A dog might only have 10 per cent bull terrier. Does that make it a banned breed?"Andrew Windsor, a pit bull owner from Oatley, said when he took his dog to the vet as a pup it was called a Staffordshire terrier cross.
Mr Gent said the American Kennel Club referred to "bull terriers".

But the rival United Kennel Club called the same breed of dog an American Staffordshire bull terrier.
"The Commonwealth bans the importing of bull terriers," he said. "But you can circumvent the law by bringing them in as American Staffordshire bull terriers. It is just ridiculous."

Logan City Council on the Gold Coast announced its own ban on pit bull terriers in the last year and rangers had been given a "template" containing 22 points of anatomy by which a dog could be identified.

But they were inexact. "If you used those 22 points you could identify my labrador as a bull terrier," Mr Gent said.
Pit bull owners say Government agencies appointed to implement the ban will have their work cut out because the breed is popular and there are a lot of the dogs.

Mr Windsor said he and a fellow pit bull owner had recently sold off a litter of nine puppies for up to $500 a pup.
Like the Companion Animal Council, the Kennel Council's policy is that it is "the deed, not the breed" that should be condemned. Other breeds and cross-breeds could be dangerous.
"You get a bull mastiff crossed with a Rhodesian ridgeback and you can get a dangerous dog," Mr Gent said.

John Cornwall, general manager of the Delta Society, a national organisation dedicated to educating the public on interaction with companion animals, said that apart from difficulties of policing a ban, other complications arose.


"Once you go down this track, where are you going to stop?" he asked. "Any dog if it is pushed hard enough will bite. Are we going to ban blue heelers?"

http://www.smh.com.au/news/National/Dangerous-dog-bans-tough-to-police/2005/05/04/1115092567814.html

VCAT to rule on death sentence for 'restricted breed' dogs

A BALLARAT couple will bring the first challenge in the Victorian Civil and Administrative Tribunal to changes to restricted breed dog legislation as they try to save their pit bull's life.

With at least 600 calls to the Department of Primary Industries regarding possible restricted breed dogs, and 10 appeals lodged in VCAT already, Victoria's revised restricted breed legislation faces many tests. But questions remain about what a ''pit bull'' is. Many of Victoria's 835,000 dogs would fit the bill.

The Victorian government dedicates more than 800 words and uses 41 images to define the breed standard for the restricted American pit bull terrier.

The problem? There is no such breed. Experts say that ''pit bull'' is actually a generic term for a type of dog, much like ''hound'' or ''terrier''. ''I don't know that anyone can categorically say what a pit bull is because there is no genetic profile,'' said Dr Susan Maastricht, Victorian president of the Australian Veterinary Association.

''What we have now in our legislation is a standard, but in fact it's a standard for a type of dog.'' The American Kennel Club, the leading pure-bred dog authority in the US, said the term ''pit bull'' comes from the early 19th century, when bulldog-terrier crosses were used for bull baiting and dog fighting. The three breeds that emerged are the bull terrier, the Staffordshire bull terrier and the American Staffordshire terrier. All three are considered pit bull-type dogs.

In Victoria, a dog that fits the description of an ''American pit bull terrier'' can escape the label provided the owner has American Staffie papers. ''An American Staffie has three generations of pedigree, so it's that history of the dog that has to go back,'' said Sue Glasgow, chief executive for DOGS Victoria, a division of the Australian National Kennel Council.

Ms Glasgow said the council did not recognise the American pit bull terrier as a breed.

Owners without pedigree papers can turn to veterinarians for certification, but that puts vets in a difficult position. While there are dog DNA tests available, vets ultimately have to rely on appearance, and the standard for the American Staffie is virtually identical to the Victorian government description of an American pit bull.

''There is a lot of similarity, which means, from a veterinary point of view, it is difficult to differentiate from the two in a meaningful way,'' Dr Maastricht said. Allie Jalbert, manager of animal shelters at RSPCA Victoria, has similar problems. ''It's extremely difficult, if not impossible, to determine what breed a dog is simply by appearance,'' she said.

Not even all branches of government can agree on that point. Last year a Queensland court ruled that for the purposes of restricted breed legislation, the Staffie and the American pit bull are the same breed.

Meanwhile, a court case for a man charged over a dog attack that killed a Melbourne girl has been adjourned until next year.

Ayen Chol, 4, was mauled to death by a neighbour's pit bull mastiff in her St Albans home, on August 17. Lazor Josevski, 57, was due to face the Sunshine Magistrates Court yesterday charged with eight offences under the Domestic Animals Act, but his case was adjourned.

With AAP

http://www.theage.com.au/victoria/vcat-to-rule-on-death-sentence-for-restricted-breed-dogs-20111206-1oh83.html