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Allow Dog or Cat To Be a Nuisance

– section 32(1) of the Domestic Animals Act 1994

This charge is generally filed against a person to cover a prosecution for the persistent barking of dogs. It is commonly fought in court on a matter of principle given that the penalty is so low (i.e. do you want to pay a lawyer when the fine is only 3 penalty units?). An accused may also choose to fight this charge to avoid getting a conviction recorded against their name, as even non-convictions still go on a person’s criminal record and that may be a concern for people.

Allow Dog or Cat To Be a Nuisance is considered a summary offence and hence will be heard at the Magistrates’ Court.
 
The Prosecution must prove:

  1. That a dog or cat was kept or permitted to remain on the premises of the accused, and
  2. That dog or cat had been a nuisance by:
    1. Injuring or endangering the health of any person, or
    2. Creating a noise, such as barking, which persistently occurs and unreasonably interferes with the peace, comfort or convenience of any person in any other premises, and
  3. That the accused must have then been the occupier of the premises

Some of the criminal defences used to fight this charge in court are impossibility, lack of intent, honest and reasonable mistake of belief, incorrect facts, and the concept of beyond reasonable doubt. The overall circumstances of a case will determine what will be an appropriate defence to the charge. Questions that we might raise in a matter like this could include:

  • Did your neighbour confuse another dog’s barking with your dog’s barking?
  • Did the victim trespass on your property, and whilst doing so they were injured by your dog?
  • Is it actually a dog or a cat? Rabbits, guinea pigs and birds would not be covered under this section.
  • Was the barking actually persistent – did it continue for a few days, or weeks, or months?

This offence carries a fine of 3 penalty units (around $483) as the highest possible sentence.

Sentencing in the Magistrates’ Courts

From 1 July 2013 to 30 June 2016, there were a total of 42 cases involving 286 charges of Allow Dog or Cat To Be a Nuisance that were heard at the Magistrates’ Courts of Victoria. Of these cases, 25 (59.5%) resulted in a fine while the remaining (17) 40.5% resulted in an adjourned undertaking/discharge/dismissal
.