AU: Supreme Court rules Kerser gets a new hearing!

We have an exciting update in the Australian case involving Kerser, a dog who was seized by Monash animal control in December 2012 after he escaped from his yard.  The City of Monash judged the 10-month-old dog to be an American pit bull terrier, a restricted breed under Victorian law, and a Victorian Civil Administrative Tribunal (VCAT) upheld that determination. 

Jade Applebee, Kerser’s owner, filed an appeal to the Supreme Court seeking to overturn the VCAT decision, but that initial appeal was rejected by the Court, and Kerser was scheduled to be destroyed in June.  Just hours before he was to be put down, one final appeal was lodged by Ms. Applebee’s attorney, and the Court granted Kerser a death row reprieve.  

The appeal went before the Supreme Court, and we’ve been awaiting the Court’s ruling, which came down yesterday.

In his December 10, 2013 judgment, Justice Croucher held that Justice Rita Zammit, the judge who upheld the tribunal’s decision, erred in finding no grounds for appeal because the VCAT official based her breed determination on “an overall impression” after viewing the dog.

In fact, Justice Croucher opined that there were several reasons why that decision was in error, and he stated:

The [VCAT] deputy president approached the matter first by forming an “overall impression” of the dog in view of the criteria under the headings “General appearance and characteristics” and “Height and weight,” and then by going on to consider the other criteria in the standard to test whether her overall impression was correct.

I accept that it is not sufficient to form an “impression”, an “overall impression” or a “general impression” that the dog complies with the standard or any criterion within it.

The deputy president said that, because of what she perceived to be differences in measurements of the dog, she was “left to rely on [her] overall impression of the animal rather than being assisted with precise measurements”, which, she said further, “is in keeping with the philosophy of the standard.

Justice Croucher said the deputy president had to be “of the opinion” that Kerser was a restricted breed dog and an “overall impression” fell short of that criteria.  

He went on to state in the judgment:

In truth, her conclusion – whether it be described as being based on her own observation or an impression – could be no more than speculation. The tribunal’s ability to inform itself in any way it sees fit does not extend to engaging in guesswork.

As a reminder, in addition to visual identification, breed identification was also made by taking measurements of Kerser’s head, eyes, cheeks and neck.  Interestingly, 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.”

So if I understand correctly, physical measurements that are defined by the government’s cumbersome legislation can be flawed, but the subjective manner of visual identification is flawless?  Right… 

Fortunately, Justice Croucher didn’t buy that argument either, and he set aside the original VCAT decision.

Jade and Kerser will get a new hearing.

In a clear display of frustration over losing yet another appeal and accumulating attorneys fees of $100,000 in defending the Victorian government’s law regulating restricted breeds, a statement was released on the City of Monash website calling the state government’s laws “unworkable,” and declaring that residents should not have to keep paying for their “lazy and half-baked law making.”

Under Victorian law, restricted dog breeds are defined as dogs that fit the Approved Standard for Restricted Breed Dogs in Victoria, and may be purebred or mixes of American Pit Bull Terriers, Presa Canarios, Dogo Argentinos, Japanese Tosas, or Fila Brasileiros. 

Moreover, by definition, restricted breed dogs “have not attacked a person or animal or displayed signs of aggression, but they are considered a higher risk to community safety than other breeds of dogs.”

To put it simply, animal control laws are in place to maintain order and safety in the community, and efforts to maintain that safety should be focused on dogs that truly pose a danger by their actions, not because they meet a 6-page checklist of physical characteristics which, as we’ve learned with Kerser, a checklist the individual determining breed doesn’t necessarily have to comply with.  

After spending $100,000 (and counting) on Kerser’s case alone, is Monash safer because a dog that never posed a threat to anyone has been impounded and separated from his family for an entire year…for what amounts to over half his life?  

Wouldn’t the taxpayers’ money be better spent enforcing laws that DO maintain community safety?   I have a feeling Monash residents would answer with a resounding “yes!”

We certainly wish Jade and Kerser much luck in their new hearing, and we hope that their struggle will push much needed change to this devastating and highly subjective law.   

Previous posts related to Kerser:

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