Auckland Council v Hill
| Jurisdiction | New Zealand |
| Judge | Clifford,Goddard,Stevens JJ |
| Judgment Date | 12 March 2020 |
| Neutral Citation | [2020] NZCA 52 |
| Court | Court of Appeal |
| Docket Number | CA33/2019 |
| Date | 12 March 2020 |
Clifford, Goddard and Stevens JJ
CA33/2019
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Animals — refusal to order the destruction of a dog that had inflicted serious injuries on a person based on post-attack training — whether post-attack events, such as training, could be taken into account as circumstances of the offence in determining whether exceptional circumstances exist — Dog Control Act 1996
S P Symon and V Schaaf for Appellant
B J Meyer and S J Mutch for Respondent
A The appeal is allowed.
B We make an order for destruction of the dog “Kratos” under s 57(3) of the Dog Control Act 1996.
C The appellant must pay the respondent costs of $130 and usual disbursements.
(Given by Goddard J)
Under s 57(2) of the Dog Control Act 1996 (Act) it is a strict liability offence to be the owner of a dog that makes an attack on a person, or on certain animals. Mr Hill was convicted of that offence following an attack by his dog Kratos. It was a serious and unprovoked attack on a passer-by outside Mr Hill's workplace, which caused significant physical injury to the victim. Section 57(3) provides that where an offence is committed under s 57(2) the court must make an order for the destruction of the dog “unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog”.
In the District Court, Judge Sharp declined to make an order for destruction of the dog. 1 He considered that Mr Hill had taken steps following the attack which made the likelihood of a future attack less and justified a finding of exceptional circumstances. 2 Auckland Council (Council) appealed to the High Court. The appeal was unsuccessful. 3
There are conflicting High Court decisions about the appropriate approach to be adopted by a court under s 57(3). In particular, the authorities differ on whether events that occur after the attack by the dog — for example, training of the dog or measures taken by the owner to control the dog — can be taken into account as “circumstances of the offence”. This Court granted leave to the Council to bring a second appeal under s 253(2) of the Criminal Procedure Act 2011 on the question of whether post-attack events can be taken into account in determining whether exceptional circumstances exist for the purposes of s 57(3). 4
Where the owner of a dog is convicted of the strict liability offence created by s 57(2), an order under s 57(3) for destruction of the dog will normally follow.
The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog's history does not form part of the circumstances of the offence. Events that occur after the offence is complete —
The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
It is not open to the dog's owner to argue that the dog can be expected to behave differently in similar circumstances in the future — for example, as a result of post-attack training. Rather, the focus is on the risk that the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.
Nor is it open to the owner to argue that the s 57(3) test is met because the attack was caused or contributed to by a one-off failure by the owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate that destruction of the dog is not warranted.
Circumstances that were not exceptional at the time the attack occurred cannot become exceptional as a result of post-attack events. If there was nothing exceptional about the circumstances of the attack when they occurred — nothing out of the ordinary which can be identified as a relevant factor in the attack — the s 57(3) exception does not apply. In particular, assurances given by the current owner about the future management and control of the dog are not relevant to the s 57(3) inquiry.
In this case, we consider that the approach adopted by the District Court and High Court Judges incorrectly treated post-attack events as forming part of the circumstances of the offence. As a result, the decisions below wrongly relied on the measures taken by Mr Hill post-attack and on his assurances about the precautions that he would take in the future. Those matters are not circumstances of the offence, and are not relevant when it comes to asking whether the circumstances of the attack were exceptional and do not warrant destruction of the dog. There was nothing exceptional about the circumstances of this attack: it was an unprovoked attack on a passer-by in a place to which the public had access. We allow the appeal and make an order for destruction of the dog.
We adopt with gratitude Palmer J's summary of the relevant facts: 5
[3] Kratos is a black six-year-old Bull Mastiff Labrador cross. In May 2017, apparently after a report about an attack on another dog in a dog park, Kratos was rehomed with Mr Hill and classified as menacing under s 33A of the Act. The information available to me about this incident is sketchy and not the subject of formal evidence but it does not appear to be disputed. Mr Hill was accordingly required not to allow Kratos to be at large in a public place or private way without being muzzled.
[4] On the morning of 5 November 2017, Kratos was outside Mr Hill's workshop, unmuzzled and unleashed and possibly asleep. Two women pulled up in a car into what appears to have been a marked carpark with signs indicating it was private parking only, outside the workshop. When one woman got out of the car, Kratos jumped up at her, unprovoked, and bit her on the forearm. She shouted and cried in shock. She sustained three nasty puncture wounds on her forearm and required medical treatment. Mr Hill came out of the workshop, apologised, secured Kratos and helped treat the wounds. He says he did not envisage a member of the public would park in a no-parking zone but accepts he should have maintained better control over Kratos.
[5] Kratos was seized and impounded and subsequently released on strict conditions. Mr Hill took Kratos to Mr Mark Vette's Animal Behaviour Clinic for three weeks in April 2018 where he was seen by Mr Vette, an Animal Behaviour Consultant. In his report of 23 May 2018 Mr Vette diagnosed Kratos with fear-induced aggression, dog-to-dog aggression, touch sensitivity and sensitivity to novel environments. He notes Kratos was extremely mal-socialised as a puppy and guard-trained before he was re-homed with Mr Hill and his family.
[6] Kratos is reported to have responded well to his treatment over the three weeks with Mr Vette. He responds well to his “meet and greets” with dogs and humans, and uses a muzzle. He went home with training aids and a safe home environment was designed for him so he is not walked in upon in his private area. Mr Vette “feels confident that if the owners continue his training and generalize this well, then [Kratos] will continue to be a safe and lovely dog”. Kratos no longer goes to work with Mr Hill but stays at home with Mr Hill's partner. I am told an Animal Management Officer has
inspected Mr Hill's fully-fenced property since the incident and found it suitable for release of Kratos there, subject to conditions.
Kratos had previously been classified as a “menacing” dog pursuant to the Act. We discuss below the significance of that classification.
The Act is the successor to a series of Acts, the earliest of which was the Dog Registration Act 1880 (1880 Act), requiring the registration of dogs, controlling the behaviour of dogs, imposing various obligations on the owners of dogs, and creating offences for breach of those obligations. 6
The objects of the Act are set out in s 4:
4 Objects
The objects of this Act are—
(a) to make better provision for the care and control of dogs—
(i) by requiring the registration of dogs; and
(ii) by making special provision in relation to dangerous dogs and menacing dogs; and
(iii) by imposing on the owners of dogs, obligations designed to ensure that dogs do not cause a nuisance to any person and do not injure, endanger, or cause distress to any person; and
(iv) by imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife; and
(b) to make provision in relation to damage caused by dogs.
Section 5 summarises the obligations of dog owners that are imposed by the Act in order to achieve those objects:
5 Obligations of dog owners
(1) The obligations imposed on dog owners by this Act require every owner of a dog—
(a) to ensure that the dog is registered in accordance with this Act, and that all relevant territorial authorities are promptly notified of any change of address or ownership of the dog:
(b) to ensure that the dog is kept under control at all times:
(c) to ensure that the dog...
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Johnston v Auckland Council
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