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.

Examples of Allow Dog or Cat To Be a Nuisance

• You buy a new puppy and make it sleep outside because it isn’t toilet trained yet. It barks and whines throughout the next few weeks. Your neighbour calls the police and complains because they couldn’t get any sleep.
• You have a feisty cat which roams free during the day. The cat wanders next door and your neighbour’s child tries to pat the cat. The cat scratches the child in the face and injures the child.

Legislation

The legislation for this offence can be found at section 32(1) of the Domestic Animals Act 1994.

Under this section, the occupier of any premises where a dog or cat is kept or permitted to remain must not allow that animal to be a nuisance.

Elements: When can a person be found guilty of this offence?

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

Questions in cases like this

• Did you 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?

What are some of the possible defences to Allow Dog or Cat To Be a Nuisance?

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.
 

Maximum penalty and Court that deals with this charge

This offence carries a fine of 3 penalty units (around $483) as the highest possible sentence. The charge is considered a summary offence and hence will be heard at the Magistrates’ Court.

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.

Other Important Resources

• SAC Statistics – Domestic Animals Act 1994 (Vic) : s 32(1) – allow dog or cat to be a nuisance