Fountain v Auckland Council

• Jurisdiction: New Zealand
• Judge: Wylie J
• Judgment Date: 29 March 2018
• Neutral Citation: [2018] NZHC 591
• Court: High Court
• Docket Number: CRI-2017-404-000470
• Date: 29 March 2018

In the Matter of Dog Control Act 1996

Between

Rebecca Fountain

Appellant

and

Auckland Council

Respondent

[2018] NZHC 591

CRI-2017-404-000470

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Animals, Statutory Interpretation — appeal against an order of the District Court under s57(3) Dog Control Act 1996 (DCA) for the destruction of her dog — appellant was discharged without conviction under s106(1) Sentencing Act 2002 (discharge without conviction) — appellant charged under s57(2) DCA (dogs attacking persons or animals) — dog had attached domestic animals and poultry — whether the Court had jurisdiction under s57(3) DCA to order the destruction of a dog if the owner had not been convicted under s57(2) DCA — effect of s106(3) Sentencing Act 2002 (may make any order that the court was required to make on conviction).

Appearances:

P L Borich QC for Appellant

A R Govind for Respondent

JUDGMENT OF Wylie J

Issues

1 This appeal raises two interesting issues:

• (a) Does the Court have jurisdiction under s 57(3) of the Dog Control Act 1996 (the Act) to order the destruction of a dog that has attacked poultry and a domestic animal, if the owner of the dog has not been convicted of an offence under s 57(2) of the Act?

• (b) Where the owner has not been convicted of an offence under s 57(2), because he or she has been discharged without conviction under s 106(1) of the Sentencing Act 2002, what is the effect of s 106(3)(c) of that Act?

2 There are four High Court decisions discussing the first issue. Two suggest one answer. The other two suggest the opposite answer. There is no authority I am aware of on the second issue.

Relevant facts

3 Ms Fountain is the owner of a Gordon Setter cross dog named Bear. On 15 July 2016, at approximately 2.45 pm, she was walking Bear and another dog she owns in Churchill Park, Glendowie. She entered the park's off-leash area and removed Bear's muzzle and leash.

4 Bear caught sight of a cat sitting on the deck of an adjoining property. He jumped over the fence into the property, chased and then attacked the cat. Bear then ran around the side of the house and down a drive. Bear jumped over another fence into another property and attacked another cat.

5 The complainant – the owner of the second property – heard his cat screaming. He intervened. Bear was shaking the cat in his mouth. The complainant yelled at Bear, but he kept up the attack. The complainant then punched Bear. Bear dropped the cat and ran away. The complainant then ran around to the rear of his property and saw Bear running from his chicken coop towards Ms Fountain, who was still in Churchill Park.

6 The complainant checked his chickens. He found that all four chickens had been killed. He then went to check his cat. It had retreated under the house. The cat was unable to move its hind legs.

7 The complainant approached Ms Fountain, obtained her details, and then took his cat to the Glendowie-St Heliers Veterinary Clinic for treatment. The cat was obviously traumatised, but it was not seriously injured.

8 Bear was seized and impounded. He was subsequently released to Ms Fountain on strict conditions.

9 Ms Fountain was charged with owning a dog that attacked both a cat and poultry, contrary to s 57(2) of the Act. There was one charge relating to the attack on the second cat and another charge relating to the attack that killed the four chickens.

The Dog Control Act

10 Relevantly, s 57 of the Act provides as follows:

• (1) A person may, for the purpose of stopping an attack, seize or destroy a dog if—

  • (a) the person is attacked by the dog; or

  • (b) the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.

• (2) The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding $3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

• (3) If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, 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.

  …

District Court decision

11 Judge Thorburn granted Ms Fountain discharges without conviction under s 106(1) of the Sentencing Act in respect of both charges. 1

12 After setting out the factual background, the Judge identified the leading case of Halliday v New Plymouth District Council 2 and the factors there identified relevant to an assessment of whether or not there were exceptional circumstances under s 57(3). 3

13 The Judge then stated in his view that the circumstances were quite straightforward. 4 He commented:

[7] … Bear went on his own agenda. He was released from the lead and that is perfectly okay. There is no abrogation [of] responsibility there, but he behaved in a way which demonstrates that he is a dog who is capable of attack and he did and badly [hurt] other animals. There is no explanation for it other than that. I do not put any real store on the fact that Ms Fountain had a bad back and could not chase if she was able to. The narrative is pretty clear that [Bear] had that, as we say, rush of blood to the head, stimulated no doubt by the instinctive interest in other forms of competitive life or vulnerable life and behaved as a dog might behave when its impulses revert to the primitive which usurp the trained impulses and he did what he did.

14 The Judge concluded that there was nothing exceptional in the circumstances pertaining to Bear's behaviour. 5 He elaborated:

[8] … A quick look at the cases where an order avoiding destruction has been allowed on the basis of exceptional circumstances seem to relate to some aberrant unpredictable event that has impacted on the dog but the dog itself being distracted by something else that has dominated its behaviour …

He cited the case of Sefton v Manukau City Council, 6 and noted as follows:

[9] … a small fox terrier bit the leg of a pedestrian walking outside a property and an order for destruction was made of the dog, and on appeal it was submitted the dog was a family pet and had not previously bitten anyone but the Court held that the order was mandatory. There were no special circumstances on those facts.

By way of comparison to this case, the Judge commented:

[10] … the conduct of Bear is more serious conduct than the conduct of the Fox Terrier who bit a person walking past the gate and that is a pretty simple scenario without anything else to say about it whereas in this particular case, Bear obviously was right out of control on an agenda known only to him of course, that was more than he could deal with, and he attacked and also killed other forms of life, poultry and the cat …

15 Judge Thorburn made an order for the destruction of Bear under s 57(3) of the Act.

The appeal

16 Ms Fountain appeals against Judge Thorburn's order that Bear should be destroyed. The appeal was filed on 20 December 2017 – a few days out of time. There had, however, been a change of counsel, and the file and the sentencing notes were not available to replacement counsel. Ms Fountain seeks an extension of time within which to appeal. This application was not opposed by Mr Govind for the Council. I am satisfied that it is appropriate to make an order granting the extension of time requested, and I do so.

17 Ms Fountain filed a further affidavit in support of the appeal. That affidavit contained medical information related to Ms Fountain. She asserted that her medical condition restricted her ability to control Bear on the day. The affidavit also sought to explain various infringement notices which have been issued against Ms Fountain in relation to Bear. It also dealt with training that Bear has had since the attacks occurred and annexed a report from the trainer who had assessed Bear's responsiveness to that training. Mr Govind consented to the Court receiving Ms Fountain's further affidavit, and I will have regard to it.

Submissions received

18 Mr Borich QC, appearing for Ms Fountain, first submitted that Judge Thorburn failed to correctly apply the test in Halliday by confining his analysis at the first stage of the enquiry to an examination of the “event”. He also argued there are exceptional circumstances in the case. He noted that the attack did not result in an injury to any person, and argued that cases involving death or injury to a domestic animal must be seen as less serious than those involving an attack or injury to persons. He submitted that Judge Thorburn erred when he assessed attacks on humans in previous cases as less serious than Bear's attack in this case. It was put to me that some allowance should be made for a dog's natural instincts and that Bear was simply displaying what is common behaviour for a dog.

19 Dealing with the circumstances of the attack, Mr Borich submitted that Ms Fountain was responsibly exercising two dogs in an off-leash area. He said that there was no significant fencing in the area. He argued that the keeping of chickens in an urban area is unusual and has risks when the area is adjacent to an off-leash dog area. He also submitted that Ms Fountain was suffering from medical difficulties on the day, resulting in an inability to fully control Bear. It was argued that Bear has no history of attacking people or animals. Although Ms Fountain has had seven infringement notices issued against her previously, it was said that they were largely irrelevant. Ultimately, Mr Borich said...