Primary Source

6 September 1951

Circular Memorandum No. 287

To Field Officers [and?] Departmental Institutions

Legal opinion – Dog Act

Recently a number of natives were prosecuted before the Marble Bar Police Court on charges of hindering and assaulting the Police, and violently resisting the Police in the execution of their duty. The charges arose out of the indiscriminate shooting of natives’ dogs by the Police. It is as well to draw the attention of Departmental Officers to the summing up by the Magistrate in this case, and the relevant Section 29 of the Dog Act, 1903-1948, which reads as follows:

“Any adult male aboriginal native may register one male dog free of charge, the collar and disc for which shall be supplied free of charge by the registering authority, but such a dog shall be kept free from mange or other contagious disease. Upon representation being made by any person to a justice of the peace that such dog is a dangerous dog or is liable to spread disease by reason of its neglected state, the justice may order the destruction of the dog.

Whenever the number of dogs found in the possession of one or more natives shall be in excess of the number of adult natives in such party, such dogs which are in excess, except such of the said dogs as are duly registered, shall be liable to be destroyed, and all the Police Officers and Constables are hereby authorised to destroy the same.”

The Magistrate in his summing up made the following remarks:

“In this case I have considerable sympathy with the accused natives. If the Police Officers had acted reasonably and in a proper manner I don’t think this trouble would have occurred. There may have been justification under Section 13 of the Cruelty to Animals Act for the destruction of the first two dogs owing to their physical condition as alleged by the Police, but there was no justification for the shooting of Jacob’s dog, which he rightfully claimed, and in doing so the Police Officers acted without lawful authority. A Supreme Court case in W.A.L.R. which is quoted in the Police Code for the benefit of Police Officers, clearly shows that Police Officers are under obligation, before shooting natives’ dogs, to make inquiries and ascertain who owns the dogs and which dogs are in excess of the number they are entitled to keep. It is only reasonable that each male native should be given the opportunity of claiming the one dog which by law he is allowed to keep before Police Officers proceed to shoot dogs, in natives’ camps. In future, Police Officers would be well advised to assemble all the adult male natives in the camp, ask them if they are all there, explain what is intended and what the natives’ rights are, and then tell each one to claim his own dog. They would then be justified in destroying the remaining dogs if they are not claimed.

In this case it appears from the evidence that the natives were not questioned as to whether there were any other adult male natives in the camp and it also appears that the Police Officers gave no indication of their intention to shoot only dogs in excess of the number of natives and from their action in proceeding to shoot dogs without making inquiries as to who owned the dogs and in shooting Jacob’s dog in the face of his claim that it was his dog and against his wishes, the natives may well have believed that the Police Officers intended to shoot all the dogs in the camp.

I might add that I think these cases indicate the need for the presence in the district of an officer of the Department of Native Affairs to whom the natives can appeal for help, and who can help the natives to register their dogs and advise them of their rights under the law.

Also, I suggest that it would be advisable for Police Officers when destroying natives’ dogs to be accompanied by a Protector of Natives (preferably an officer of the Department of Native Affairs) to advise the natives on what the law requires and their rights in that regard, but in any case they should do so themselves if a Protector is not available.”

The Crown Solicitor has confirmed that the opinion expressed by the Magistrate is correctly interpreted.

For your information, please.

S.G. Middleton

Commissioner of Native Affairs