Auckland Council v Hill - [2018] NZHC 3315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-230

[2018] NZHC 3315

BETWEEN
AUCKLAND COUNCIL

Appellant

AND

ADRIAN ARTHUR DUNLEAVY HILL

Respondent

Hearing: 17 September 2018 and further submissions 21 September 2018

Appearances:

S Wilson for the Appellant

B J Meyer and S J Mutch for the Respondent

Judgment:

14 December 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 14 December 2018 at 1.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Meredith Connell, Auckland High Street Law, Auckland

AUCKLAND COUNCIL v HILL [2018] NZHC 3315 [14 December 2018]

Summary

[1] Kratos, a menacing dog, was unmuzzled near the workplace of his owner, Mr Adrian Hill. Kratos attacked a person who got out of her car near him, unprovoked. He has subsequently had behavioural treatment, no longer attends Mr Hill’s workplace, is kept at home, responds well to his “meet and greets” with dogs and humans, and uses a muzzle. Under s 57(3) of the Dog Control Act 1996 (the Act), the court is required to order Kratos be destroyed unless “satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog”. The District Court was satisfied of that and did not order destruction of Kratos.

[2] The Council appeals against sentence but I treat it as a right of general appeal against exercise of a statutory power. I consider the test is whether the court is satisfied 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. Here, I consider the treatment and the comprehensive measures taken by Mr Hill are compelling reasons that rebut any assumption Kratos will attack again. In light of the treatment and measures taken, I consider the circumstances of Mr Hill’s offending can now be regarded as exceptional and do not warrant destruction of Kratos. I decline the appeal.

What happened?

[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…

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: [2018] NZHC 3315
Decision Date: 14 December 2018

CaseChat Overview and Summary

The Auckland Council appealed the decision of the District Court to not order the destruction of a dog, Kratos, who had attacked a person. The District Court had considered the circumstances of the owner's offence sufficiently exceptional, in light of what was known about the dog's risk of attacking again, to warrant that destruction of the dog was not required. The court considered the treatment and comprehensive measures taken by the owner were compelling reasons that rebut any assumption Kratos would attack again. The court declined the appeal and held that the circumstances of the owner's offence could now be regarded as exceptional and did not warrant destruction of Kratos. The court noted that while dogs have an ambivalent place in New Zealand culture as both favoured friends and threats to safety, the Act deals primarily with the control of dogs and, in the context of this case, imposes obligations to ensure they do not injure people. The court emphasised that destruction orders should not be seen as part of any sentencing process but as a separate risk avoidance mechanism.

Orders