AU: Reprieve granted for Kerser! Appeal to be heard in October

We have an important update in the Australian case involving Kerser, a dog who was seized by Monash animal control officers because he resembled a banned breed.

If you recall, Kerser was seized in December after he escaped from his yard, and City of Monash council officers judged him to be an American pit bull terrier, a restricted breed under Victorian law.  An appeal to the Supreme Court seeking to overturn the breed determination decision of the Victorian Civil Administrative Tribunal was rejected, and it seemed all hope was lost.

Kerser was scheduled to be destroyed in June, however, just hours before he was due to be put down, Ms. Applebee’s lawyers lodged one final appeal, granting Kerser a death row reprieve, and Ms. Applebee more time to fight her cause.

In the most simple of terms, Kerser, a dog who has done nothing wrong and has never posed a threat to anyone, has been given a death sentence because he looks like a “pit bull.”

In a judgment released on Friday, September 6, 2013, the Supreme Court of Appeal granted another reprieve for Kerser, who has been on death row since December.

Justice Michael Croucher of the Court of Appeal overturned a decision by Supreme Court Judge Rita Zammit not to allow the dog’s owner to appeal against ruling by the Victorian Civil and Administrative Tribunal.

The Appeals Court judge found that Justice Zammit erred in saying there were no grounds for appeal because the VCAT deputy president had determined the dog called Kerser was an American pit bull on the basis of ”an overall impression”.

Under Victorian legislation, dogs must be judged on a number of criteria collectively called the “standard”, including muzzle, head profile, skull, lips, teeth, nose, eyes, ears, neck, forequarters, body (forechest, back and loin), hindquarters, feet, tail, coat, colours, and height and weight.

Justice Croucher found:

There is a real or significant argument that an ‘overall impression’ of compliance with the standard is something short of an opinion based on an assessment of the criteria in the standard.  Secondly, there is a real or significant argument that the deputy president erred by forming an ‘overall impression’ based on her own observation of the dog and then going on to consider the criteria in the standard to test whether her overall impression was correct.

Justice Croucher also said the tribunal should have taken into account the conflicting measurements – partly used to determine Kerser’s breed – of the dog taken by a council officer and a dog breed judge.

At Kerser’s 2-day hearing in February, three Monash animal management officers testified that Kerser was a restricted breed. This determination was made by visual identification, as well as measurements by tape measure of the dog’s head, eyes, cheeks and neck. Interestingly enough, the tape measurements indicated that Kerser was not a pit bull, but the animal management officer simply stated that the dog can have “flaws,” and the measurements don’t necessarily mean the dog is not a “pit bull.” Moreover, testimony was rendered by an international dog judge who argued that the council’s animal officers had erred in their measurements of Kerser.

Regardless, VCAT upheld the declaration by the Monash Council that Kerser is a “pit bull.” In upholding the declaration, VCAT Deputy President Lambrick found that Kerser’s head, muzzle, skull, body and eyes matched the pit bull standard as outlined under Victoria’s restricted breed laws. (i.e., the very same outline that was harshly criticized by the Supreme Court in December.) Specifically, Ms. Lambrick stated that while Kerser “may not be a perfect example of a pit bull, but he meets the standard to some degree and, importantly, in the areas of musculature and strength.”

Monash is certainly no stranger to wasting money defending cases using the VCAT standards to judge alleged banned breeds, and the city was dealt a scathing blow from the Supreme Court in January in a similar case.  As a result of that Court’s ruling, the Monash council was ordered to pay more than $100,000 in legal fees and pound costs, a move which was expected to discourage other legal challenges by local governments. Yet…here they are again, defending the same standards so harshly criticized by the Court.  With respect to Kerser’s case, Monash Mayor Micaela Drieberg said the council had accrued about $70,000 in legal costs in fighting the matter.

The appeal goes back to the court on October 11, 2013.  You can keep up with Kerser and his plight for freedom at https://www.facebook.com/FreeKerser

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