The Council Strikes Back!

As I have previously noted, I am not a regular petitioner. In fact, my petition on change.org Freedom for Fleurieu Dogs is the first and only time I have initiated a petition on a matter of public interest, or indeed anything else. I am told by change.org that 85% of petitions never even reach 50 supporters,  but since my petition was launched earlier this week, it has already found over 500 supporters. If you have not supported it, but would like to do so; please do so.

The response of the Chief Executive of Yankalilla District Council was initially to show interest in the petition[1], but this interest now appears to have somewhat waned[2].

But what has happened, since the launch of the petition, is that approximately 5:50 PM on Wednesday I was visited by an officer of the Council, who personally served on me an Expiation Notice[3] alleging that that Perdita was “wandering at large” on the beach on 5th January.

e2

It is a surprising document, because it provides details saying

Myponga foreshore

Sited[4] English Setter (Perdita) wandering at large

Running along foreshore unattended

The concept of a dog “wandering at large” is hardly new in law, at least since the decision of Hood J in 1901 in Alherd v. Hickenhotham:

Hood, J., held that the dog, which was quite passive in the street, could not, under the circumstances, be described as being “wandering at large,” an expression which meant roaming about without any control whatever.

attending_ink_liWhat is remarkable is that the Council had already sent me their photographic evidence of the alleged offence, including a video showing me attending to Perdita as she ran past me (I was paddling in the sea at the time).

Foff-leashor completeness, I should say that this was not the first Expiation Notice that the Council had issued in relation to Perdita running up and down on the beach on 5 January. They had previously issued but never effectively served an Expiation Notice alleging that Perdita was “off leash in a dogs on leash at all times area.” That one was equally bizarre, because at the relevant time, and still today, the beach is signed “DOGS ALLOWED OFF LEASH”. Anyway, that first expiation notice was abandoned following a meeting I had with the Council.

another-dog_ink_li

As far as I know, the owner of the other dog in the Council’s photo is not being prosecuted

As matters stand, other dog owners still regularly exercise their dogs off leash on Myponga Beach. Sometimes they are, like me, walking up and down. Sometimes, they are kayaking or surfing.  I have never seen those dogs causing any harm to anyone or anything; instead, they run up and down, playing chasing games with themselves and with Perdita. According to the new by-law which the Council is now seeking to impose, all of these other dog owners will be criminalised. I wonder how many of them so far have been prosecuted? As far as I know, I am the only one to have launched a petition on the matter.

As a lawyer, I am not particularly intimidated by threats of prosecution, although it is of course a nuisance. But were I not a lawyer, I think I would find this move by the Council particularly inappropriate.

It is possible, I suppose, that the timing is sheer coincidence. Indeed, the Chief Executive of the Council did explain to me why he was taking a stand on the issue:

Over the weekend I have received an e-mail from a mother on another beach explaining how scared her children were with big dogs simply fetching a ball and playing in the shadows[5] away from her children.  This is what I was trying to explain to you, even Perdita, well trained and friendly may still scare children[6]

One might think that a better response would have been to have persuaded this neurotic mother that the sight of a couple of dogs playing ball a distance is not something that children should be taught to be afraid of.

 

 

[1] On Tuesday, he wrote:

I thank you for letting me know of your petition.  If I ever see a copy I may compare the results to our consultation process results.

 

[2] He has indicated that he no longer wants updates on it.

[3] For the benefit of readers not familiar with the concept of expiation, a prosecuting authority sends a notice out under the Expiation of Offences Act  1996 demanding an “expiation fee”. If the recipient does not pay that expiation fee, then the prosecuting authority then prosecutes, seeking to impose a larger fine. It is not quite blackmail in legal terms, because a demand with menaces only constitutes blackmail if the threatened prosecution is one that carries a term of imprisonment. Rather, it is a sort of statutory “blackmail lite”.

In 2001, the Act was amended by the Expiation of Offences (Trifling Offences) Amendment Act  2001 such that it is now unlawful for prosecuting authorities to give an expiation notice in respect of a trifling offence. Unsurprisingly, this is a provision that prosecuting authorities frequently ignore.

[4] I think it meant “sighted”.

[5] I think he means “shallows”.

[6] His email 19 February.

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1 Comment

Filed under Legal, Manners, Myponga Beach, News from at home, Uncategorized, Yankalilla

One response to “The Council Strikes Back!

  1. Don’t give up, keep on with this. We should have a public meeting as there are less than 5000 in the entire Council district and as you say, over 500 have signed the petition. That means there would be more than 500 who support it as many people are not aware of the petition.

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