Cheeky, a loved pet was squeezed forcefully around the neck, then hit with a sledgehammer. Her body was tossed onto a lawn, rolling like a bowling ball. She landed legs in the air, tongue lolling out, her eyes fixed and staring. An eye witness believed she was dead. Andrew Fischer, the man who did these things to Cheeky, thought she could be dead. But she disappeared from the lawn within 10 minutes, at the same time as Mr Fischer and his wife left in their car. Cheeky was never seen again. Mr Fischer was acquitted of the charges of cruelty and unlawfully killing an animal in May 2018.

RSPCA Queensland have been left utterly disappointed after an unsuccessful appeal against Mr Fischer’s acquittal in Cheeky’s case. The appeal was heard before Judge Koppenol in Brisbane District Court yesterday.

Cheeky, a tiny four year old Staffordshire Bull Terrier, was never seen again after the incident in Mr Fischer’s yard at Gaythorne, Brisbane in July 2017. Mr Fischer admitted squeezing Cheeky’s neck with both hands forcefully, and then hitting her with a sledgehammer and throwing her onto the lawn, but claimed he was protecting himself and his wife and dogs.

Magistrate Jacqui Payne, in her original decision in May 2018, found that she could not be sure beyond a reasonable doubt that Cheeky was dead.

Neither the RSPCA nor those involved in the investigation could understand how the Magistrate could arrive at that decision. After having her neck squeezed forcefully and being hit by a sledgehammer and tossed onto the lawn, Cheeky was lying at least unconscious, and likely dead, upside down on the lawn. Mr and Mrs Fischer left the property around 10 minutes later, and Cheeky also disappeared within this time. She was never found by the army of friends and family who spent the following nights and days looking for her everywhere.

Mr Fischer gave evidence that when he and his wife returned home, Cheeky was gone from the lawn and he thought she must have ‘just wandered off’. Mr Fischer’s evidence was that Cheeky savagely attacked his dog and continually tried to attack him. RSPCA question why he then left a supposedly savage dog on his lawn and then did not report the attack to Council later when he thought she had ‘just wandered off’, and when he had incurred a vet bill from the attack. Mr Fischer said he did not see the lost poster for Cheeky that was posted on the light post at his driveway.

RSPCA Chief Inspector Daniel Young said, “We believe Cheeky was dead when Mr Fischer tossed her body onto the lawn. But even if she was not, the court would have us believe that she recovered from her beating within 10 minutes, got to her feet, dragged herself out the only exit at the front gate, onto the street where people were calling her name and looking everywhere for her, yet nobody saw her or located her. An army of people continued searching all that night and for weeks afterwards – but Cheeky was never located. That to us seems almost impossible.”

By law, RSPCA could not appeal the Magistrate’s finding that Cheeky was not dead. Their appeal related to the Magistrate’s finding that Mr Fischer was acting in self defence when he squeezed Cheeky’s neck forcefully with both hands, before he took her to the shed and hit her with a sledgehammer.

Fischer’s evidence was that he had restrained Cheeky after she attacked his Maltese Terrier cross. The report from Mr Fischer’s vet stated that there were no obvious injuries to his dog, and no puncture wounds. The blood found on Mr Fischer’s dog did not belong to his pet and likely belonged to Cheeky.

Mr Fischer continued to squeeze Cheeky around the neck forcefully with both hands after his dog and wife were out of sight and he had moved to the front of his property. He said this was necessary be-cause the entire time he was holding Cheeky, squeezing her forcefully around the neck, she was growling and struggling and trying to bite him. However an eye witness that the Magistrate found to be truthful, who stood about 2 metres away, said this was not true, and that the dog was limp and silent the whole time. Mr Fischer said that the entire time his wife was screaming in panic. The eye wit-ness said he heard one single scream that brought him to the street, and nothing after that. Mr Fischer said that when he took Cheeky to the shed and threw her onto the ground inside, she immediately jumped up and tried to bite him, so he hit her with the nearby sledgehammer.

Jake Cawley, Cheeky’s owner, said this seemed ‘completely unbelievable’.

"Cheeky was a tiny sweet dog, and had been raised with many other dogs and children. She was gentle and always wanting to please. I can’t see how she could have turned into this savage beast like this man described in court,” he said.

Magistrate Payne found Mr Fischer was not guilty of cruelty, as he was acting in a case of “extraordinary emergency” to protect himself and his dog. RSPCA argued that Mr Fischer continued to squeeze Cheeky’s neck even after his dog and wife were safe, and after the eye witness was offering to assist him.

Yesterday, Judge Koppenol dismissed the RSPCA’s appeal, saying that the Magistrate had good reason to make the findings that she made. Judge Koppenol said he had not had time to read all of the evidence in the case, but said, “These Staffies are pretty scary dogs.”

RSPCA Queensland Prosecutions Officer Tracey Jackson said that this case raises some concerning is-sues about how far people can legally go when dealing with dog fights. 

"We had hoped that this appeal would make it clear that the defendant was acting out of anger and revenge in killing Cheeky, rather than acting in defence of his property,” she said. “He was perfectly entitled to restrain Cheeky, but we argued he did not need to continue squeezing her neck and then hit her with a sledgehammer. Not when the threat of harm to his dog was over, and when there was a neighbour standing there offering to assist.

"All around the country dogs get into scuffles – in dog parks, in back yards, on the streets. But there are appropriate ways to deal with these situations. If you can safely restrain a dog, if you have some-one offering to help, if you can contact council – all of these are better options than an option that leaves a family without their beloved dog family member.

"Once an immediate threat is removed, people need to be held responsible for any violence or cruelty to animals which is done, it would seem, in anger or out of revenge.

"We are concerned that this case sets a horrible precedent for our community – a community where dogs are members of our families.”

If you witness a dog attack please contact RSPCA Queensland by email on [email protected] or by phone on 1300 ANIMAL (07) 3426 9999.