Legal Research
Cases
Auckland Council v Hill

Auckland Council v Hill

Link copied

Case Copied 12 March 2020 44 min read

Contents

On this page

For a court-ready version, please follow this link (fee required).

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA33/2019
[2020] NZCA 52

BETWEEN	AUCKLAND COUNCIL Appellant
AND	ADRIAN ARTHUR DENLEAVY HILL Respondent

Hearing:	29 October 2019
Court:	Clifford, Goddard and Stevens JJ
Counsel:	S P Symon and V Schaaf for Appellant B J Meyer and S J Mutch for Respondent
Judgment:	12 March 2020 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BWe make an order for destruction of the dog “Kratos” under s 57(3) of the Dog Control Act 1996.
CThe appellant must pay the respondent costs of $130 and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

The issue before the Court

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]
[1]Auckland Council v Hill [2018] NZDC 14332 [District Court decision].
[2]At [5].
[3]Auckland Council v Hill [2018] NZHC 3315 [High Court decision].
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]

Summary

[4]Auckland Council v Hill [2019] NZCA 296 [Leave decision].

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…

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.

Keep reading for free

Create a free CaseChat account to read Auckland Council v Hill and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZCA 52
Decision Date: 12 March 2020 at 11.00 am

CaseChat Overview and Summary

Auckland Council appealed to the Court of Appeal against a decision of the High Court not to make an order for destruction of a dog that had attacked a person. The dog's owner, Mr Hill, had been convicted of the strict liability offence of being the owner of a dog that attacked a person. The High Court Judge had declined to make an order for destruction of the dog, finding that there were exceptional circumstances that did not warrant destruction of the dog. The Court of Appeal allowed the appeal and made an order for the destruction of the dog. The Court held that the relevant circumstances of the offence were limited to the circumstances of the attack, and that the measures taken by Mr Hill to prevent a future attack did not constitute exceptional circumstances. The Court held that the focus should be 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 in the future. The Court held that the attack was unprovoked and that the dog's owner had failed to take the necessary precautions required by the dog's classification as a menacing dog. The Court held that there was nothing exceptional about the circumstances of the attack, and that an order for destruction of the dog was required in the interests of public safety.

Orders