Auckland Council v Hill - [2019] NZCA 296

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA33/2019
[2019] NZCA 296

BETWEEN	AUCKLAND COUNCIL Appellant
AND	ADRIAN ARTHUR DENLEAVY HILL Respondent

Hearing:	3 July 2019
Court:	Courtney, Venning and Dunningham JJ
Counsel:	RJA Marchant and V S Rewi for Appellant B J Meyer and S J Mutch for Respondent
Judgment:	8 July 2019 at 2.30 pm

JUDGMENT OF THE COURT

A. The application for leave to appeal is correctly brought under s 253(2) of the Criminal Procedure Act 2011.

B. The application for leave to bring a second appeal is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

In November 2017 Mr Hill’s dog, Kratos, attacked a woman, inflicting puncture wounds. At the time, Kratos was classified as a menacing dog and was required to be muzzled.[1] Mr Hill pleaded guilty to owning a dog that attacked a person. Judge D G Sharp fined Mr Hill and ordered him to pay reparation and court costs.[2] The Judge declined Auckland Council’s request for an order that Kratos be destroyed.[3] Palmer J dismissed Auckland Council’s appeal against the decision not to order destruction.[4]
[1]Classification was made by the Auckland Council on 9 May 2017 pursuant to s 33A and 33E(1)(a) of the Dog Control Act 1996 following a reported attack on another dog in May 2017.
[2]Auckland Council v Hill [2018] NZDC 14332 at [6]-[7].
[3]At [5].
[4]Auckland Council v Hill [2018] NZHC 3315.
Auckland Council seeks leave under s 253(2) of the Criminal Procedure Act 2011 (CPA) to appeal Palmer J’s decision.[5] The proposed grounds of appeal are that the Judge wrongly:
(a)treated the dog destruction order as a civil matter. As a result, there is doubt over the correct appeal pathway; and
(b)treated post attack conduct as relevant to whether the circumstances of the offence were exceptional for the purposes of s 57(3) of the Dog Control Act 1996.
[5]An appeal under s 253(2) of the Criminal Procedure Act 2011 requires the consent of the Solicitor General, which has been given.
Mr Hill does not oppose Auckland Council’s application for leave to appeal.
Counsel agreed that if leave to appeal were granted, the first proposed ground of appeal would be otiose, because the grant of leave itself would have the effect of determining that the proposed appeal is correctly brought under s 253(2) of the CPA. That would leave the only proposed ground of appeal as the status of post attack events. Leave to appeal on that ground can only be given if this Court considers that the proposed appeal involves a question of general or public importance.[6]

Appeal pathway

[6]Criminal Procedure Act 2011, s 253(3)(a).

Mr Hill was prosecuted under the Dog Control Act 2000, s 57, which relevantly provides that:
(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…

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: [2019] NZCA 296
Decision Date: 8 July 2019 at 2.30 pm

CaseChat Overview and Summary

In Auckland Council v Hill, the Auckland Council sought leave to appeal a decision of the High Court to the Court of Appeal. The issue arose after Mr Hill's dog, which had previously been classified as menacing, attacked a woman. Mr Hill was fined and ordered to pay reparation and court costs, but the Judge declined the Council's request for an order that the dog be destroyed. The Council appealed this decision, but the appeal was dismissed. The Council now seeks leave to appeal to the Court of Appeal on the basis that the Judge wrongly treated the matter as a civil appeal and wrongly considered post attack events when deciding whether the circumstances of the offence were exceptional.

The Court of Appeal held that the proposed grounds of appeal were correctly brought under the Criminal Procedure Act 2011. The Court found that an order for destruction is a criminal matter, separate to the sentencing of the dog's owner. The Court also found that the proposed appeal involved a matter of general or public importance because the issue of whether post-attack events can be considered in determining whether exceptional circumstances exist for the purposes of s 57(3) of the Dog Control Act 1996 is unsettled and of broad importance.

The Court of Appeal granted leave to appeal 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. This decision provides much needed clarity to the law in this area and will benefit both local authorities and dog owners.

Orders