Auckland Council v Hill
[2020] NZCA 52
•12 March 2020 at 11.00 am
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| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA33/2019 [2020] NZCA 52 |
| BETWEEN | AUCKLAND COUNCIL |
| AND | ADRIAN ARTHUR DENLEAVY HILL |
| Hearing: | 29 October 2019 |
Court: | Clifford, Goddard and Stevens JJ |
Counsel: | S P Symon and V Schaaf for Appellant |
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 history does not form part of the circumstances of the offence. Events that occur after the offence is complete — that is, after the attack occurs — also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
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.
Background
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.
[5]High Court decision, above n 3.
Kratos had previously been classified as a “menacing” dog pursuant to the Act. We discuss below the significance of that classification.
Dog Control Act 1996
The purpose of the Act
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]
[6]Dog Registration Act 1880; Dog Registration Act 1908; Dogs Registration Act 1955; Dog Control and Hydatids Act 1982; and Dog Control Act 1996.
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 receives proper care and attention and is supplied with proper and sufficient food, water and shelter:
(d) to ensure that the dog receives adequate exercise:
(e) to take all reasonable steps to ensure that the dog does not cause a nuisance to any other person, whether by persistent and loud barking or howling or by any other means:
(f) to take all reasonable steps to ensure that the dog does not injure, endanger, intimidate, or otherwise cause distress to any person:
(g) to take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife:
(h) to take all reasonable steps to ensure that the dog does not damage or endanger any property belonging to any other person:
(i) to comply with the requirements of this Act and of all regulations and bylaws made under this Act.
(2) Nothing in this Act limits the obligations of any owner of a dog to comply with the requirements of any other Act or of any regulations or bylaws regulating the control, keeping, and treatment of dogs.
Who is the “owner” of a dog?
The term “owner”, in relation to a dog, is defined in broad terms in s 2:
owner, in relation to any dog, means every person who—
(a) owns the dog; or
(b) has the dog in his or her possession, whether the dog is at large or in confinement, otherwise than for a period not exceeding 72 hours for the purpose of preventing the dog causing injury, damage, or distress, or for the sole purpose of restoring a lost dog to its owner; or
(c) the parent or guardian of a person under the age of 16 years who—
(i) is the owner of the dog pursuant to paragraph (a) or paragraph (b); and
(ii) is a member of the parent or guardian’s household living with and dependent on the parent or guardian;—
but does not include any person who has seized or taken custody of the dog under this Act or the Animal Welfare Act 1999 or the National Parks Act 1980 or the Te Urewera Act 2014 or the Conservation Act 1987 or any order made under this Act or the Animal Welfare Act 1999
The extended definition of the term “owner” means that a person who has possession of a dog for more than 72 hours has all the duties of an owner under the Act, and commits an offence under s 57(2) if the dog attacks a person or an animal during that period. Conversely, during that period the actual owner of the dog is not exposed to criminal liability for attacks by the dog.
Dangerous dogs and menacing dogs
Section 31(1)(a) provides for classification of dogs as “dangerous dogs” in certain circumstances, including where the owner of the dog has been convicted of an offence in relation to the dog under s 57A(2). A dog may also be classified as dangerous if the territorial authority has, on the basis of sworn evidence attesting to aggressive behaviour by the dog on one or more occasions, reasonable grounds to believe that the dog constitutes a threat to the safety of any person, stock, poultry, domestic animal, or protected wildlife.[7] The owner has an opportunity to object to that classification. The matters that a territorial authority must take into account when considering an objection are set out in s 31(4):
(4) In considering any objection under this section, the territorial authority shall have regard to—
(a) the evidence which formed the basis for the original classification; and
(b) any steps taken by the owner to prevent any threat to the safety of persons and animals; and
(c) the matters advanced in support of the objection; and
(d) any other relevant matters—
and may uphold or rescind the classification.
[7]Section 31(1)(b).
Section 32 sets out the consequences of a dog being classified as a dangerous dog. The dog must be kept within a securely fenced portion of the owner’s property that it is not necessary to enter to obtain access to the dwelling.[8] The owner must not allow the dog to be at large or in any public place or in any private way, except when confined completely within a vehicle or cage, unless it is muzzled and controlled on a leash (there are certain exceptions that are not relevant here).[9] The dog must be neutered.[10] It is an offence to fail to comply with those requirements.[11] It is also an offence to sell or transfer, or offer to sell or transfer, a dog known by a person to be classified as a dangerous dog without disclosing the fact of that classification to the other person.[12]
[8]Section 32(1)(a).
[9]Section 32(1)(b).
[10]Section 32(1)(c)(i).
[11]Section 32(2).
[12]Section 32(4).
A group of provisions inserted in the Act in 2003 create an additional category of “menacing dogs”. Section 33A provides that a territorial authority may classify a dog as menacing where it has not been classified as a dangerous dog under s 31, but the territorial authority considers that the dog may pose a threat to any person, stock, poultry, domestic animal, or protected wildlife because of observed or reported behaviour of the dog, or any characteristics typically associated with the dog’s breed or type.[13] The owner of a dog may object to its classification as menacing.[14] The matters that a territorial authority must take into account when considering an objection to a dog being classified as menacing under s 33A are set out in s 33B(2):
(2) The territorial authority considering an objection under subsection (1) may uphold or rescind the classification, and in making its determination must have regard to—
(a) the evidence which formed the basis for the classification; and
(b) any steps taken by the owner to prevent any threat to the safety of persons or animals; and
(c) the matters relied on in support of the objection; and
(d) any other relevant matters.
[13]Section 33C also provides that a territorial authority must classify a dog as menacing if it has reasonable grounds to believe that the dog belongs wholly or predominantly to one or more breeds or types listed in sch 4 to the Act.
[14]Sections 33B and 33D.
The consequences of a dog being classified as menacing are set out in s 33E:
33E Effect of classification as menacing dog
(1) If a dog is classified as a menacing dog under section 33A or section 33C, the owner of the dog—
(a) must not allow the dog to be at large or in any public place or in any private way, except when confined completely within a vehicle or cage, without being muzzled in such a manner as to prevent the dog from biting but to allow it to breathe and drink without obstruction; and
(b) must, if required by the territorial authority, within 1 month after receipt of notice of the classification, produce to the territorial authority a certificate issued by a veterinarian certifying—
(i) that the dog is or has been neutered; or
(ii) that for reasons that are specified in the certificate, the dog will not be in a fit condition to be neutered before a date specified in the certificate; and
(c) must, if a certificate under paragraph (b)(ii) is produced to the territorial authority, produce to the territorial authority, within 1 month after the date specified in that certificate, a further certificate under paragraph (b)(i).
…
(5) Subsection (1)(a) does not apply in respect of any dog or class of dog that the territorial authority considers need not be muzzled in any specified circumstances (for example, at a dog show).
Section 33ED was inserted in the Act by the Dog Control Amendment Act 2006. It provides that a dog must be classified as either a dangerous dog or a menacing dog where an offence is committed under s 57(2) or 57A(2)(a) and (exceptionally) no destruction order has been made:
33ED Territorial authority to classify certain dogs as dangerous or menacing
(1) A territorial authority must classify a dog as a dangerous dog under section 31 or a menacing dog under section 33A if—
(a) the owner of the dog has been convicted of an offence against section 57(2) or 57A(2)(a); and
(b) no destruction order for the dog has been made by the court concerned.
(2) Subsection (1) applies unless the territorial authority is satisfied that the circumstances of the attack, rush, or startle by the dog (being the circumstances relating to the offence for which the owner was convicted)—
(a) were exceptional; and
(b) do not, in the territorial authority’s opinion, justify classifying the dog as dangerous or menacing.
We note in passing that s 33ED(2) equates “the circumstances of the attack, rush or startle by the dog” with “the circumstances relating to the offence for which the owner was convicted”. We return to this point below, when we address the question whether the reference to “the circumstances of the offence” in s 57(3) directs the court’s attention to matters beyond the circumstances of the relevant attack by the dog. Section 33ED proceeds on the basis that the two phrases are equivalent.
Section 33F requires the owner of a dangerous or menacing dog to advise another person who has possession of the dog for a period not exceeding 72 hours of the requirement that the dog be muzzled and leashed in public. (If the other person has possession of the dog for more than 72 hours, they are the “owner” of the dog during that period for the purposes of the Act, and are subject to all the duties of an owner.[15])
Obligations of dog owners
[15]Section 2, definition of “owner”, para (b).
Section 52(1) requires the owner of a dog to keep that dog under control at all times. If a dog is not under control, it may be seized by a dog control officer or dog ranger.[16] It may also, in certain circumstances, be seized by another person and delivered to its owner or into the custody of a dog control officer or dog ranger.[17] Section 52A makes specific provision for control of dogs on the owner’s property. The owner of a dog must ensure that either the dog is under the direct control of a person, or it is confined within the land or premises in such a manner that it cannot freely leave the land or premises.[18] The owner of a dog who fails to keep that dog under control commits an offence.[19]
[16]Section 52(3).
[17]Section 52(4).
[18]Section 52A(2).
[19]Section 53.
Since 1880, the behaviour of dogs has been subject to direct control by legislation providing for their destruction. Thus, for example, the 1880 Act provided for the destruction of a dog:
(a)by a landowner who found a dog on his land without proper registrational labels;[20]
(b)by any person whom the dog rushed at, attacked or startled so as to endanger life or limb, or whom the dog attacked and bit, or who witnessed the same;[21] or
(c)by the owner of any cattle or sheep amongst which the dog ran at large.[22]
[20]Dog Registration Act 1880, s 13.
[21]Sections 16 and 17.
[22]Section 18.
Since 1880, the courts have also had the power to order the destruction of a dog. Section 14 of the 1880 Act first gave the courts that power where a dog was declared to be dangerous.
Immediately prior to the 1996 Act the court had a discretionary power to order the destruction of dogs in certain circumstances. In particular, that power was available where an owner had breached their control obligations and the dog had acted in such a way as to entitle a private person to destroy it.[23]
[23]Dog Control and Hydatids Act, s 56. See also ss 57(2), 58, 59 and 60.
Sections 57 and 58 of the Act introduced the provision with which this appeal is concerned requiring the court to order the destruction of a dog that attacks any person unless the relevant circumstances are exceptional and do not warrant destruction of the dog. The relevant limbs of ss 57 and 58 as originally enacted in 1996 read as follows:
57 Dogs attacking persons or animals or rushing at vehicles—
(1) Any person who sees a dog attacking any person, stock, poultry, domestic animal, or protected wildlife or who is attacked by any such dog, may forthwith either seize or destroy the dog.
…
(5) The owner of any dog that makes any such attack commits an offence and is liable on summary conviction to a fine not exceeding $1,500 in addition to any liability the owner may incur for any damage caused by the attack; and, where the dog has not been destroyed, the Court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction of the dog.
…
58Dogs causing serious injury
The owner of any dog that attacks any person or any protected wildlife and causes—
(a)Serious injury to any person; or
(b)The death of any protected wildlife; or
(c)Such injury to any protected wildlife that it becomes necessary to destroy the animal to terminate its suffering,—
commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $5,000, or both, and the Court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction.
Both ss 57(5) and 58 required the court to make an order for the destruction of the dog, subject to the exceptional circumstances proviso. But the penalty for the offence committed by the owner was greater under s 58 than it was under s 57(5).
Section 57(6), as originally enacted in 1996, dealt with dogs which rush or startle but do not attack. It provided:
(6) Where any dog in any public place—
(a) Rushes at or startles any person or animal in such a manner that any person is killed, injured, or endangered, or any property is damaged or endangered; or
(b)Rushes at any vehicle in such a manner as to cause or be likely to cause an accident,—
the owner of the dog commits an offence and is liable on summary conviction to a fine not exceeding $1,500 in addition to any liability the owner may incur for any damage caused by the dog; and the Court may, on convicting the owner, make an order for the destruction of the dog.
Parliament’s assessment — reflected by the discretionary power in s 57(6) — was that dogs which actually attack present a greater future danger than ones which only rush or startle, even where death results. Sections 57 and 58 were amended, and s 57A inserted, by the Dog Control Amendment Act 2003. Those provisions are at the heart of the issues addressed on this appeal. As relevant, they read as follows:
57 Dogs attacking persons or animals
(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.
…
57A Dogs rushing at persons, animals, or vehicles
(1) This section applies to a dog in a public place that—
(a) rushes at, or startles, any person or animal in a manner that causes—
(i) any person to be killed, injured, or endangered; or
(ii) any property to be damaged or endangered; or
(b) rushes at any vehicle in a manner that causes, or is likely to cause, an accident.
(2) If this section applies,—
(a) the owner of the dog 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 dog; and
(b) the court may make an order for the destruction of the dog.
…
58 Dogs causing serious injury
The owner of any dog that attacks any person or any protected wildlife and causes—
(a) serious injury to any person; or
(b) the death of any protected wildlife; or
(c) such injury to any protected wildlife that it becomes necessary to destroy the animal to terminate its suffering,—
commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or a fine not exceeding $20,000, or both, and the court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction.
The effect of the 2003 amendments was principally to increase the maximum penalties for each of the three offences formerly found in ss 57(5), 57(6) and 58, and now set out in ss 57(3), 57A(2) and 58. At the same time, Parliament replaced the reference to “the circumstances of the attack” in the original s 57(5) with the reference to “the circumstances of the offence” in the current s 57(3). In a number of High Court decisions since 2003, it has been suggested that this represented a deliberate broadening of the matters to be taken into account. We return to this point below.
District Court decision
Mr Hill pleaded guilty to being the owner of a dog that attacked a person under s 57(2) of the Act. The District Court Judge sentenced Mr Hill to a fine of $500, emotional harm reparation of $1,000 and court costs of $130.[24] It appears the Judge did not have any evidence before him except the summary of facts, which was not contested. Counsel for the defendant made submissions at the sentencing which referred to the steps taken by Mr Hill after the attack, which the counsel did not dispute.
[24]District Court decision, above n 1, at [6]–[7].
The Judge briefly summarised how the attack occurred when the victim parked her car outside Mr Hill’s work. The Judge did not think that the fact that the victim had parked illegally helped Mr Hill much — people did so habitually. The Judge noted that where a dog had already been classified as menacing, a very high degree of care was required from the owner. The Judge then went on to set out the circumstances of the attack, and recorded the steps that had been taken by Mr Hill to reduce the risk of further attacks including taking the dog to behavioural experts, and making more secure arrangements at his home to prevent the dog getting out. The Judge said he was required to have regard to post-attack matters, referring to Halliday v New Plymouth District Council.[25] The Judge recorded his understanding that Halliday established “that exceptional circumstances need to consider the attack itself and [focus] on events which post-date the offence”.[26] The Judge set out his reasoning in relation to his decision not to make a destruction order as follows:
[5] The power under [s 57(3)] is discretionary and I need to be satisfied that the circumstances were exceptional and do not justify it. Widening of the circumstances from those only relating to the attack are in order to make a predictive assessment. It seems to me that the steps that are done here are significant and that what you are doing is to ensure that there is not a repeat of the behaviour which caused the injury here. Of course, you need to know now that having gone through this process if something happens and someone else is attacked it is inevitable that your dog will not survive. But that said, I consider that you have done, in line with a more responsible attitude in general, the things that are required to make that likelihood less and to justify a finding of exceptional circumstances.
High Court decision
[25]Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005.
[26]District Court decision, above n 1, at [4].
The Council appealed to the High Court. After reviewing the statutory provisions and the leading cases, the Judge set out his approach to s 57(3) as follows:[27]
[19] Varying judicial views have been expressed as to the meaning of the proviso conferring a discretion in s 57(3): “unless it is satisfied that the circumstances of the offence were exceptional and do not warrant the destruction of the dog”. Like Heath J in Halliday, I agree the purpose of Parliament’s wording is to require a broader assessment than under the previous statutory regime of the likelihood the dog will attack again in future, based on the unusual circumstances of the offending. I do not consider that purpose is best achieved by conceptualising a two-stage test in which one stage is directed at an abstract concept of “exceptional”. What is exceptional must be read in light of the risk-prevention purpose of the discretion, as must what warrants destruction of the dog.
[20] I consider the resulting cumulative test is whether the circumstances of the owner’s offence are sufficiently exceptional, in light of what is known about the dog’s risk of attacking again, that destruction of the dog is not warranted.
[21] That is to be assessed by reference to the factors identified by Heath J and the additional factor of the post-attack circumstances of the dog. Like Woodhouse J in Korewha and Brewer J in Xu, I do not consider s 57(3) requires a Court necessarily to disregard relevant considerations that post-date the attack. Post-attack circumstances can clearly bear on whether destruction of the dog is warranted. And assessment of whether the circumstances of the owner’s offence were “exceptional” also requires reference to some comparator. If the circumstances of an owner’s offence were exceptional in the sense they are highly unlikely to happen again, given the owner’s remorse and risk-prevention measures taken, that must be a relevant consideration in achieving Parliament’s purpose. So, I can see no reason the assessment of exceptionalism should exclude circumstances after the owner’s offending. Rather, it should include them if they are relevant to prevention of further attacks.
(Footnotes omitted.)
[27]High Court decision, above n 3.
Applying that approach, the Judge noted that the nature of the attack does not inspire confidence in the dog’s future.[28] However the Judge placed considerable emphasis on the steps taken by Mr Hill to ensure the circumstances of the offending would not happen again.[29] On the basis of those factors, and particularly the measures taken by Mr Hill to comply with his obligations as owner of the dog, the Judge considered the circumstances of the offence could now be regarded as exceptional and did not warrant destruction of the dog.[30] The appeal was dismissed.
Leave to bring second appeal
[28]At [29].
[29]At [30].
[30]At [31].
This Court granted leave to the Council to appeal under s 253(2) of the Criminal Procedure Act 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) of the Dog Control Act.[31]
Submissions of the Council on appeal
[31]Leave decision, above n 4, at [16]–[17].
The principal thrust of the Council’s submissions on appeal was that the District Court Judge and the High Court Judge erred in taking into account post‑attack conduct when determining whether the circumstances of the offence were exceptional. The Council argued that that approach was inconsistent with the text and purpose of the legislation, and with the weight of authority.
On a plain reading, the Council said, the circumstances of the offence cannot include conduct that happens afterwards. The offence is complete upon the attack ending. So post-attack conduct cannot have a bearing on the circumstances of the offence.
The Council argued that this interpretation is supported by the purpose and content of the Act, which has public safety at its heart. The Council placed considerable emphasis on the purpose of the law being deterrence of irresponsible behaviour on the part of dog owners. That goal would be undermined, the Council submitted, if it is possible for a dog owner to avoid destruction of the dog after an attack has occurred by belatedly taking responsible steps that ought to have been taken previously. In effect, every dog owner would get a “free pass” in relation to a first attack by the dog, which would significantly weaken the incentives created by the legislation.
The Council accepted that reference to circumstances of the offence may be wide enough to enable consideration of whether the dog has a history of prior attacks, and the circumstances relating to the way in which the owner controlled the dog at the time of the attack. The Council also accepted that if exceptional circumstances have been established, post-attack factors may be taken into account by the Court in determining whether the destruction of the dog is warranted.
In its written submissions the Council said that exceptional circumstances had not been made out, and a destruction order should have been made. The Council submitted that if the appeal was allowed, this Court should make a destruction order. However, in oral submissions, counsel for the Council accepted that the absence of any relevant evidence before this Court on factual matters that may be relevant under s 57(3), properly interpreted, may mean that if the appeal is successful the question of whether a destruction order should be made should be referred back to the District Court.
Mr Hill’s submissions on appeal
Counsel for Mr Hill submitted that the Courts below had been right to take post-attack conduct into account. The circumstances of the “attack” cannot include conduct that happens after the attack, but the circumstances of the “offence” can extend to subsequent conduct. On normal sentencing principles, post-attack conduct is relevant to an assessment of the appropriate consequences of the offending. So, counsel argued, an assessment of whether there were exceptional circumstances “of the attack” under s 58 cannot take into account events that occur post-attack. However, under s 57, which refers to the circumstances of the offence, post-attack conduct is relevant.
Counsel for Mr Hill accepted that the focus of the Act is preventive, and that it aims to protect public safety. In this case, Mr Hill had demonstrated through his lack of criminal history and the extensive steps that he took in respect of the dog that the risk of a similar attack recurring is very low.
Mr Hill sought costs pursuant to s 8(6) of the Costs in Criminal Cases Act 1967.
Analysis
The nature of the s 57(2) offence
The offence provided for in s 57(2) is a strict liability offence: being the owner of a dog that makes a relevant attack. The prosecution is not required to establish a lack of care on the part of the owner. The owner of the dog may be convicted without any consideration of the precautions (if any) that were taken by the owner to prevent an attack, the reasons why those precautions failed, and whether the owner should have taken additional precautions. Indeed, the offence may be committed even if the owner did not, at the relevant time, have possession of the dog because it had been left in another person’s care for less than 72 hours.[32]
[32]We did not hear argument on the issue of whether s 57(3) imposes absolute liability, or whether a defence may be available to an owner who establishes that the dog was under control and nothing could reasonably have been done to prevent the attack: see Hamilton City Council v Fairweather [2002] NZAR 477 (HC), but contrast the view expressed in relation to a provision with a similar structure in Police v Taylor [1965] NZLR 87 (SC).
Where an offence has been committed under s 57(2) — in other words, where a relevant attack has occurred — s 57(3) applies. An order for destruction of the dog is the normal consequence of such an attack taking place, unless a judge finds that the exception in s 57(3) applies.
The differing authorities on s 57(3)
Prior to the enactment of the Act, the courts recognised the significance of destruction being a discretionary response to dog behaviour. Thus, in McElligott v Police, a case decided under the Dog Control and Hydatids Act 1982, the Court suggested that an order for destruction of an uncontrolled or vicious dog would not ordinarily be made without a prior warning from the court.[33]
[33]McElligott v Police HC Timaru GR123/84, 23 November 1984 referred to in Columb v Police HC Timaru AP83/89, 6 March 1990 at 3.
In one of the first cases to consider s 57(5) as originally enacted in 1996, the High Court upheld a District Court decision to destroy an attacking dog. The District Court Judge had approached the issues in this way:[34]
… I thus have to determine this issue as to whether the circumstances of the attack were exceptional and do not justify the destruction of the dog. I do not think the way in which the dog has been cared for, what the home circumstances have been like for the dog and the way in which it is restrained are really relevant at all under the new subsection. I think the function of the Court is simply to look at what happened in terms of the attack and to decide whether there is some exceptional feature that does not warrant destruction.
[34]Sutherland v Rotorua District Council HC Rotorua AP 9/97, 14 April 1997 at 8.
In upholding that decision, Williams J said of the new s 57(5):[35]
… it is clear that the Legislature, in enacting the present s.57(5) in the terms it did by contrast with the similar sections in earlier statutes, has plainly perceived dog attacks as an increasing problem and has clearly intended that dogs which attack are destroyed on Court order unless the circumstances of the attack, not those of the attacker, are exceptional.
[35]At 6.
Noting that s 57(6) did not provide for mandatory destruction, the Judge observed:[36]
That stiffening of policy in respect of dog attacks may be contrasted with s.57(6) which, as with the earlier statutes, provides for discretionary destruction notwithstanding that charges under that subsection relate to the more serious circumstances of death or personal injury, accidents to vehicles and damage to property.
The altered legislative intent is plain. If a dog attacks a person, stock, poultry, domestic animal or protected wildlife, then, on conviction of the owner, the Court must order its destruction unless the circumstances of the attack, not those of the attacker, are exceptional. …
[36]At 7.
That approach was consistently applied by the courts prior to the 2003 amendments to the Act.[37]
[37]See for example Milner v Hastings District Council HC Napier AP 5/04, 1 April 2004.
In the first High Court decision to consider the post-2003 wording of s 57, Halliday v New Plymouth District Council, Heath J concluded that the replacement of the words “circumstances of the attack” in the original s 57(5) with the words “circumstances of the offence” that are now found in s 57(3) required a different approach to the interpretation of that provision. The Judge considered that the prior history of the dog is relevant to the circumstances of the offence, but not the circumstances of the attack. Similarly, the Judge said, circumstances relating to the way in which the owner controlled the dog at the time of the attack might be relevant to the reason for the offence occurring but not necessarily to the attack itself.[38]
[38]Halliday v New Plymouth District Council, above n 25, at [42].
The Judge said that the focus of the provision on the “offence” meant that events which post-date the offence ought not to be taken into account: “[t]hat is because, quite simply, the circumstances of the offence cannot include any circumstances that had not yet occurred”.[39]
[39]At [43].
The Judge considered that the underlying rationale for this change of approach — a broader frame of reference extending to the history of the dog and the way in which it was controlled at the time of the attack — was the need to focus on the likelihood of the dog behaving in a similar fashion in the future and, therefore, endangering people or other animals:[40]
… The underlying principle in ss 57 and 58 seems to be that, in the absence of exceptional circumstances of the type decreed by each of those provisions, past behaviour is regarded as the best predictor of future behaviour. In other words, once a dog has attacked it will be assumed it will attack again unless there are compelling reasons justifying an alternative view.
[40]At [44].
The Judge summarised the approach which he considered the amended legislation required as follows:
[47] In summary, I hold that a different approach is now required to the exercise of the Court’s jurisdiction to make a destruction order under s 57(3) of the Act. The previous approach, focussing on the “attack”, is no longer the law. What is now required is a broader assessment of the likelihood that the dog will behave in a similar way in the future, based on unusual or unique circumstances arising out of the particular offence.
[48] In the context of this particular case factors that might be relevant in determining whether there were exceptional circumstances that do not require a destruction order to be made would include:
a)the nature of the attack (including the fact that injury resulted);
b)Mr Halliday’s history as an owner of the dog;
c)whether the dog had behaved this way in the past;
d)the steps that had been taken by Mr Halliday to prevent such an attack occurring, and
e)the reason why the steps taken by Mr Halliday did not prevent an attack on the occasion in question.
…
The difference in approach to s 57(3) in recent High Court decisions is illustrated by a comparison of that decision and the more recent decision of Woodhouse J in Korewha v Whangarei District Council.[41]
[41]Korewha v Whangarei District Council [2017] NZHC 3178.
There Woodhouse J adopted a broader approach to the relevant “circumstances”. By analogy with the principles of the Sentencing Act 2002, the Judge considered there was no reason why relevant information arising from conduct or behaviour after the attack, both of the offender and of the dog, should not be taken into account. The Judge said:
[40] It has been suggested in some cases that circumstances of the offence cannot include events which post-date the offence. This is obviously intended to mean that anything occurring after the attack by the dog should not be taken into account. In my judgment, the “circumstances of the offence” should not be limited in that way. The cases, including those endorsing this limit, extend “circumstances of the offence” to take account of what amount[s] to circumstances of the offender and relevant information relating to the general behaviour of the dog. There seems no reason why relevant information arising from conduct or behaviour after the attack, both of the offender and of the dog, should not be taken into account. This is the approach on the application of s 107 of the Sentencing Act 2002, directed to the question whether an offender should be discharged without conviction and requiring the Court to have regard to the “gravity of the offence”. This may include consideration of relevant purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act, which include events occurring after commission of the offence. In principle, a similar approach should apply when considering what amounts to sentencing under s 57(3) of the Act, and there does not appear to be anything in the Act to preclude that approach.
(Footnotes omitted.)
We were referred to a number of decisions of the District Court and High Court reflecting this divergence in approach, with some decisions treating the relevant circumstances as extending to post-attack matters, and others declining to do so.[42]
[42]See Fountain v Auckland Council [2018] NZHC 591, [2018] 3 NZLR 216; Millar v Invercargill City Council [2018] NZHC 335; McClintock v Taupo District Council [2017] NZHC 58, [2017] NZAR 272; Selwyn-Mallinson v Rotorua District Council [2016] NZHC 1437; Snodgrass v Kapiti Coast District Council [2014] NZHC 1333, [2014] NZAR 834; and Xu v Auckland Council [2015] NZHC 3024.
In the case under appeal, Palmer J adopted a broad approach to the circumstances relevant to the assessment of exceptionality, consistent with the approach in Korewha. We turn to consider that issue.
Step One: what are the relevant circumstances?
Section 57(3) requires the court to consider whether the circumstances of the offence were exceptional, and do not warrant destruction of the dog. The starting point must be to identify the circumstances of the offence. The court then goes on to ask if those circumstances were exceptional, and do not warrant destruction of the dog.
As noted above, the offence created by s 57(2) is being the owner of a dog that makes a relevant attack. The prosecution is not required to establish a lack of care on the part of the owner. Precautions taken or omitted by the owner at the time of the attack are relevant to an assessment of culpability when it comes to sentencing the owner for the offence. Matters such as remorse, practical steps taken by the owner to reduce the risk of similar attacks in the future, and offers of reparation may also be relevant when it comes to sentencing. These can all be described as circumstances that are, broadly speaking, relevant to the offending. But are they “circumstances of the offence”?
The answer is to be found in the text of the provision, read in light of its purpose.[43] The text suggests a two-step inquiry. At step one the question is simply “what happened?” At step two the question is whether what happened was exceptional — an unusual or one-off occurrence that is most unlikely to be repeated — and whether, in light of the exceptional nature of what happened, the Judge is satisfied that destruction of the dog is not necessary in order to remove the risk of a future attack.
[43]Interpretation Act 1999, s 5(1).
That reading is consistent with the purpose of the provision: to protect public safety, by ensuring that the dog does not commit future attacks. The reason for a default rule that the dog should be destroyed is that the Act proceeds on the basis that where a dog has attacked once, there is a risk that the dog will behave in the same way again in similar circumstances. That risk must be removed by destruction of the dog, unless the risk is immaterial because the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely. Lesser precautions — classification of the dog as menacing or dangerous, with the constraints that imposes — will usually be inadequate to remove the risk of a future attack.
We do not see the purpose of s 57(3) as punishment of the owner, or for that matter of the dog. Nor do we accept the Council’s submission that deterrence is a significant purpose of s 57(3). The goal of deterrence of owners is achieved by the sentence imposed under s 57(2). Section 57(3) is concerned with ensuring that there is no real risk that the dog will attack again.
Against this backdrop, what are the relevant circumstances of the offence? We agree with the Judge in Halliday that the reference to the circumstances of the offence must include all the (immediate) circumstances that caused or contributed to the attack.[44] We consider that these matters can also be described as the circumstances of the attack: the language that was used in the version of s 57 originally enacted, and that still appears in s 58.
[44]At [42].
We doubt that in 2003 Parliament intended to introduce a distinction between the matters that can be taken into account in the context of ss 57 and 58 when it used the phrase “circumstances of the offence” in s 57(3). The attack is the foundation of the offence — with liability for the offence attaching to the “owner”, who may be the person who actually owns the dog or a person who happens for whatever reason to have possession of the dog for 72 hours or more.
Our view that references to the circumstances of the attack and to the circumstances of the offence are equivalent is confirmed by the approach in s 33ED (set out at [22] above), which as noted above was inserted in the Act by the Dog Control Amendment Act 2006.
Section 33ED(2) refers to the circumstances of the attack, rush, or startle by the dog, then goes on to add by way of clarification that these are “the circumstances relating to the offence for which the owner was convicted”. An amendment to an Act does not usually affect the interpretation of existing provisions of that Act.[45] However, we see this provision as providing helpful confirmation that our reading of s 57(3) is consistent with Parliament’s understanding of the scheme of the Act.
[45]Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 681.
We do not see the pre-attack history of the dog as forming part of the circumstances of the offence. The offence does not depend in any way on the history of the dog. We differ from Heath J in Halliday on this point.
We agree with the observation in Halliday that the circumstances of the offence cannot extend beyond the time of the offence itself.[46] As a matter of ordinary language, the circumstances of the offence must be complete when the offence is complete: that is, once the attack has happened.
[46]Halliday v New Plymouth District Council, above n 25, at [43].
In particular, the reference to the circumstances of the offence in s 57(3) cannot in our view be read as including a reference to precautions taken by the owner after the attack. We do not accept the analogy suggested in Korewha with Sentencing Act principles, and matters that are relevant to a discharge without conviction. In that context, matters such as the post-offence remorse of the offender, reparations, and consequences of a sentence are all relevant factors. However, those cannot be described as circumstances of the offence/attack.
Step Two: are those circumstances exceptional and such that they do not warrant destruction of the dog?
The court must then go on to consider whether the circumstances of the offence/attack were exceptional and do not warrant destruction of the dog. As this Court observed in Easthope v Auckland Council, the requirements imposed by this test are cumulative.[47] But they are linked, and should be applied together. The second requirement informs the first — the circumstances must be exceptional in a way that means that destruction of the dog is not warranted.
[47]Easthope v Auckland Council [2018] NZCA 234 at [13].
This test requires the court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake the difficult, if not impossible, task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future. The inquiry contemplated by the Act is in our view much simpler. Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So 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.
If for example the owner of dog A was rushed or attacked by dog B, and dog A attacked dog B in order to protect its owner, a Judge might well conclude that the circumstances were exceptional and do not warrant the destruction of dog A.
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 in the future.
Nor is it open to the owner to argue that the test is met because the attack was caused or contributed to by a one-off failure by an otherwise responsible 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. The case law under the Act is replete with examples of precautions that ought to have been taken but were omitted, or were undermined by the actions of innocent third parties (failing to properly shut doors or gates is a common theme), or that failed for a host of other reasons. This case illustrates that very point: Mr Hill omitted to keep his dog muzzled and (it appears) on a leash, even though, because Kratos had been classified as menacing, Mr Hill was required to do so by law. It would be inconsistent with the scheme of the Act and the purpose of s 57(3) to treat such failures as a justification for not making an order for destruction of a dog.
Circumstances that were not exceptional at the time of an attack cannot retrospectively become exceptional as a result of post-attack events. The language of s 57(3) suggests that the question is whether the circumstances were exceptional at the time of the attack. That approach is consistent with the focus described above on the likelihood of the circumstances in which the attack occurred being repeated.
Assurances given by the current owner about the future management and control of the dog are not relevant to the s 57(3) inquiry. Such assurances are not enforceable. There is no mechanism for checking that they are consistently implemented over time. The ownership of the dog may change. The owner will at times be dependent on others to take responsibility for the dog — for example, during holidays and other absences from home. And, as noted above, there is nothing exceptional about precautions being omitted, or failing, even where those precautions are required by law.
It follows that the s 57(3) test is not met by the owner promising to take exceptional precautions to keep the dog under control in the future, and establishing that if such precautions are taken another attack is unlikely. If anything, the need for such precautions tends to suggest that there was nothing exceptional about the circumstances in which the attack took place, and that an attack is a real risk in ordinary circumstances (that is, absent such precautions). There is considerable force in the observation of Judge Matheson in another s 57 case that the post-attack steps taken in that case “to my mind, simply underline how dangerous this dog is”.[48]
[48]Wanganui District Council v Reweti [2018] NZDC 3208 at [25].
The Act provides that steps taken by an owner to prevent threats to the safety of persons and animals may be relevant to an objection to the classification of a dog as dangerous or menacing.[49] Such steps are relevant in those contexts because the consequences of classification of a dog as dangerous or menacing include a number of requirements in relation to the precautions to be taken by the dog’s owner. A territorial authority might consider that the steps already taken by the owner achieve substantially the same outcome as formal classification of the dog as a dangerous or menacing dog, with the result that such a classification is not warranted. The s 57 context is different: steps taken by an owner to manage the risk posed by a dog cannot achieve substantially the same outcome as destruction of the dog, as they cannot wholly remove the risk of a future attack by the dog.
[49]See ss 31(4)(b) and 33B(2)(b).
Other elements of the sentence imposed on the owner (such as a fine and reparation orders) also are not relevant factors as they shed no light on the likelihood of a repeat of the circumstances in which the attack took place.
This approach is consistent with the broader scheme of the Act. A dog that is classified as dangerous, even if it has not attacked a person or another animal, is subject to stringent requirements in relation to its confinement at the owner’s residence and its control in public places. But where the risk of an attack has actually materialised, the Act proceeds on the basis that those precautions will usually be insufficient.[50] Rather, the appropriate response in the interests of public safety is destruction of the dog. If the circumstances of the attack are exceptional, in the sense that the dog can properly be seen as not intrinsically dangerous — for example where the dog’s owner was under attack, or where the dog was provoked — then a court may be satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog. But where the court cannot be satisfied that the attack occurred in truly exceptional circumstances that are unlikely to be repeated, a destruction order is required.
Disposition
[50]They are a fall-back if, exceptionally, a destruction order is not made: s 33ED.
The Courts below proceeded on the basis of the statement of facts, and submissions about the circumstances of the offence and about steps taken after the attack to reduce the risk of future attacks by the dog. The submissions for Mr Hill at sentencing (which we have seen) attached a letter from Mr Vette, an expert in animal behaviour, which included a mix of factual information about the dog and opinions about its likely future behaviour.
For the reasons set out above, we consider that the submissions made in the Courts below about post-attack steps taken to reduce the risk of a future attack by the dog are not relevant under s 57(3). There was nothing exceptional about the circumstances of the attack/offence at the time it occurred. It was a simple case of an unprovoked attack by a dog on a passer-by in a place to which the public had access. Mr Hill’s failure to take the precautions required by the dog’s classification as a menacing dog does not establish that the circumstances of the attack/offence were exceptional and do not warrant destruction of the dog. Nor do his assurances about precautions that he intends to take in the future. We consider that the s 57(3) test clearly was not met in this case. We allow the Council’s appeal, and make an order for the destruction of the dog.[51]
Costs
[51]Section 257 of the Criminal Procedure Act provides that if this Court allows a second appeal, it can exercise any powers that the first appeal court could have exercised if it had allowed the appeal. Section 251 provides that if a first appeal court allows an appeal, it may set aside their sentence and impose another sentence (whether more or less severe) that it considers appropriate, or vary the sentence or part of it, or remit the sentence to the court that imposed it and direct that court to take any of those actions.
Mr Hill sought costs under s 8(6) of the Costs in Criminal Cases Act. Section 8(6) provides that if the court which determines an appeal considers that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings must be paid by any other party to the proceedings irrespective of the result of the appeal.
In this case, the Council brought the appeal primarily to clarify the law in relation to an issue that arises frequently in the District Court, and where there were conflicting High Court authorities. If Mr Hill had not instructed counsel to appear, the Court would have had to appoint counsel to act as a contradictor. We consider that it is reasonable for an order to be made under s 8(6) for the Council to pay costs to Mr Hill for a half day appeal against sentence of $130 and usual disbursements, in accordance with sch 1 of the Costs in Criminal Cases Regulations 1987.
Result
The appeal is allowed.
We make an order for destruction of the dog “Kratos” under s 57(3) of the Dog Control Act 1996.
The appellant must pay the respondent costs of $130 and usual disbursements.
Solicitors:
Auckland Council, Auckland for Appellant
Nicholls Law Ltd, Auckland for Respondent
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