Anand v Auckland Council - [2013] NZHC 445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-407 [2013] NZHC 445

BETWEEN SHIKAH ANAND Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing: 4 March 2013

Counsel: M D Whitlock for Appellant
V Tamatea for Respondent

Judgment: 8 March 2013

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 4.30 p.m. on 8 March 2013.

Solicitors: Auckland Council, Auckland – vernon.tamatea@aucklandcouncil.govt.nz
Whitlock & Co, Mairangi Bay – mwhitlock@internet.co.nz

ANAND V AUCKLAND COUNCIL HC AK CRI-2012-404-407 [8 March 2013]

Introduction

[1] The appellant, Shikah Anand, pleaded guilty under s 57 of the Dog Control Act 1996 to owning a dog that attacked a person. On 23 October 2012 District Court Judge J P Gittos fined Ms Anand $500 together with Court costs of $132.89. He also ordered the destruction of the dog. Ms Anand appeals against the destruction order. Auckland Council opposes the appeal and submits that the destruction order should stand.

Factual background

[2] Ms Anand owns a pitbull terrier named “Chico.” The dog lived with Ms Anand on the top floor of a two storey dwelling. Mrs Bowman lived in the flat on the bottom storey. The top storey opened out onto a large deck which had an external staircase which led down into the yard. The dog spent most of its time either inside the upstairs flat or on the deck. The property was not fully fenced and there were no gates.

[3] The Judge was provided with a statement from Mrs Bowman in which she stated that due to Chico’s “playful” nature Ms Anand had made it a “house rule” that Mrs Bowman would let her know whenever she had a visitor. This was so that Ms Anand could ensure Chico remained upstairs.

[4] Unfortunately the “house rule” did not accommodate the situation of unexpected visitors. On the morning of 1 June 2012 Mrs Bowman’s daughter came to visit, together with Mrs Bowman’s two year old granddaughter. The child was playing outside the door of the flat. The dog apparently ran down the stairs from the top flat, grabbed the child by the head and dragged her. The child’s mother rushed out of the house and pulled her daughter away from the dog. The dog attacked again while the mother was holding her child. The mother was bitten on her right thumb while trying to fend the dog off.

[5] Ms Anand’s partner then rushed down the stairs from the top flat and pulled the dog away. The mother’s thumb later required two stitches, while the child was treated for a puncture wound to her head which had to be glued together. The daughter also had scrape marks on her back from where the dog dragged her. The dog was unregistered at the time of the incident.

[6] Following the attack extra fencing was erected around the property and a secure area created for the dog. More recently Ms Anand has moved home…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 445
Decision Date: 8 March 2013

CaseChat Overview and Summary

The High Court of New Zealand was called upon to review a decision by the District Court in Anand v Auckland Council. Shikah Anand, the appellant, had pleaded guilty to owning a dog that attacked a person, resulting in injuries requiring medical attention. The District Court fined Anand and ordered the destruction of the dog. Anand appealed the destruction order, which Auckland Council opposed.

The court had to determine whether the circumstances of the offence were exceptional and did not warrant the destruction of the dog, as required under section 57(3) of the Dog Control Act 1996. The court considered factors such as the nature of the attack, the dog owner's history, whether the dog had behaved in this way in the past, the steps taken by the owner to prevent such an attack, and why the steps taken did not prevent such an attack from occurring on this occasion. The court also noted that post-dating events, such as the subsequent erection of fencing, should not be taken into account in the first stage of the inquiry.

The court found that the circumstances of the offence were not exceptional. The attack involved a young child who was visiting her grandmother and was bitten in the head area and dragged. The child's mother, who intervened to save her daughter, was also attacked, sustaining injuries to her thumb. The court concluded that the nature of the attack, the lack of a previous history of attacks by the dog, and the reasons why the house rule did not prevent the attack on this occasion did not bring the circumstances of the offence into the "exceptional" category. The appeal was dismissed, and the destruction order for the dog stood.

Orders