Auckland Council v Paul

[2022] NZHC 1898

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-126

[2022] NZHC 1898

BETWEEN

AUCKLAND COUNCIL

Appellant

AND

JOANNE FRANCES PAUL

Respondent

Hearing:	7 June 2022
Appearances:	D J Collins and B V Magill for Appellant J B Carter for Respondent
Judgment:	3 August 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 3 August 2022 at 2 pm

Registrar/Deputy Registrar

Solicitors:
James Carter Law, Hamilton

AUCKLAND COUNCIL v PAUL [2022] NZHC 1898 [3 August 2022]

Introduction

[1]    Auckland Council (the Council) appeals against a decision of Judge Pecotic in the Auckland District Court on 25 March 2022 in which her Honour declined the Council’s application to impose a dog destruction order for a dog owned by Ms Joanne Paul (the respondent).1 The dog is a Shar Pei named “Zeus”. Zeus bit the hand of a person who was attempting to pat him.

[2]    The respondent pleaded guilty to one charge of being the owner of a dog that attacked a person.2 Under s 57(3) of the Dog Control Act 1996, the court must make an order for the destruction of the attacking dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog. Judge Pecotic found that there were exceptional circumstances which did not warrant Zeus’s destruction, and she declined to make an order for his destruction.3 She instead sentenced the respondent by imposing a fine of $1,000 and ordered that $500 of the fine be paid to the Council and $500 to the complainant as emotional harm reparation.

[3]The Council now appeals against that sentence.

Background

[4]The factual basis for the sentence was set out in an agreed summary of facts:

The [respondent] is the owner of a brown and white coloured male Shar Pei named Zeus.

On 23 June 2020 at approximately 10.00am the complainant visited Waiheke Movers for work purposes. On arrival he opened the sliding door to their office and closed the door behind him. The [respondent] was sitting at her desk. The [respondent]’s dog, which was known well by the complainant, was free to roam in the office area and came up to him. The complainant bent down and played with the [respondent]’s dog, scratching him on the bum and back all over. The [respondent]’s dog then picked up a shoe and brought it to him. The complainant took this as a sign the dog wanted to play and put his hand on the shoe to take it from the him. The [respondent]’s dog growled and the [respondent] said “don’t do that”. The complainant immediately stopped but kept rubbing the [respondent]’s dog on the bum and chest.

1      Auckland Council v Paul [2022] NZDC 7990 [District Court decision].

2      Dog Control Act 1996, s 57(2).

3 At [30].

When the [respondent] came off the phone they engaged in business which involved the complainant making a call on his mobile. While on the mobile the complainant walked back towards the [respondent] and extended the top of his hand to the [respondent]’s dog, who was lying down, so that the dog could smell him and he could subsequently pat him. The [respondent]’s dog jumped up and grabbed the complainant’s right hand and locked on. The complainant screamed out. The [respondent] yelled at her dog. The [respondent]’s dog let go and moved away. The complainant went and sat in a chair and the [respondent]’s dog then came back towards him. The [respondent] yelled at her dog not to move towards the complainant again, but the complainant said it was okay as he could see the [respondent]’s dog wanted to show he was sorry, and let him come over to his feet and rub against his feet.

The complainant grabbed a small white towel off the [respondent] as there was lots of blood and asked for a glass of water. The complainant applied pressure to the wound at the top of his hand and felt light-headed. The [respondent] drove the complainant to the Ostend Medical Centre. The complainant sustained a large wound to his right hand approximately 40mm x 10mm in size and multiple puncture wounds and required stitches.

The Judge’s sentencing decision

[5]    Judge Pecotic commenced her decision by noting that the onus was on the respondent to show that exceptional circumstances exist such that Zeus should not be destroyed. She observed that two previous infringement notices have been issued in relation to Zeus. One related to him jumping up and scratching a courier driver. The Judge noted the respondent maintains the scratch was caused by a nail. The Judge noted that the second notice related to Zeus having chased and attacked a chicken (although not fatally) which had come onto the respondent’s property. The Judge commented that it was clear that neither occasion warranted prosecution of the respondent under the Dog Control Act.

[6]    The Judge also noted the respondent’s explanation that she had offered to put Zeus away when the complainant entered her office premises, but did not do so as the complainant knew the dog and had continued to pet him. The Judge noted the submissions made by the respondent’s counsel that the biting was an exceptional circumstance, was a one-off incident, and that it was unusual. And that immediately before and immediately after the bite occurred there had been good play between the complainant and Zeus. There had also been a relationship between the complainant and Zeus beforehand which by all accounts had been a good one.

[7]    The Judge then noted the Council’s submissions that the incident amounted to an unprovoked attack and that Zeus had not been under the respondent’s control at the time, and there could be no assurance that this situation would not be repeated. There were no exceptional circumstances that would mitigate against the need for a destruction order and accordingly such an order should be made.

[8]    The Judge rejected the Council’s submission that the attack was unprovoked, and found that the aggravating features of the offending included that the attack had caused actual harm to the complainant and that two previous infringement notices had been issued in relation to Zeus. As to mitigating factors, she noted the respondent’s age, her full statement with admissions, her plea of guilty, her conduct in assisting the complainant immediately after the incident, her obvious remorse, the fact that she has no previous criminal convictions and is a person of very good character, and her offer of amends. The Judge said that she also took into account the trauma and anxiety the respondent had experienced with the matter coming before the Court.

[9]    By reference to the Court of Appeal’s decision in Auckland Council v Hill, Judge Pecotic adopted the two-step approach for assessing whether exceptional circumstances exist such that a dog destruction order should not be made.4

[10]   The first step involves identifying the relevant circumstances of the offence. The second step involves determining whether those circumstances were exceptional and do not warrant destruction of the dog.

[11]   As to the first step, the Judge identified the circumstances of the offence as follows:5

(i)[The complainant] entered an enclosed area in which the dog was contained. It was Zeus’ private space. Even though it was a place where members of the public could enter, it was still a private place that Zeus was able to stay in. It was not a situation where he was free to roam in an open public area.

(ii)[The complainant] said in his statement that Zeus is well known to him as his owner … had worked with him doing bookkeeping and that

4      Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603 at [5]–[6].

5      District Court decision, above n 1, at [24].

he interacted with the dog in the years 2017 to 2018. This is important as it shows the familiarity between Zeus and [the complainant].

(iii)The interaction between Zeus and [the complainant] from the time [the complainant] entered the office until the time he left was all in all friendly. While in the office [the complainant] petted and scratched and played with Zeus. It was only when Zeus had approached [the complainant] with the toy – this being the shoe – that Zeus indicated a possessiveness over that toy by growling when [the complainant] went to take it from him.

(iv)You had warned [the complainant] not to remove the toy from Zeus and in this regard it is not uncommon, as the material that has been provided to me by your lawyer, that dogs would behave in a similarly possessive manner over food or toys.

(v)In continuing on with the narrative, [the complainant] did continue to pet Zeus. A phone call was made, so presumably he was unable to pet Zeus while that call was being made. He then went to pat Zeus again, Zeus was lying down. [The complainant] reached down towards him and it was at that point that Zeus bit [the complainant].

(vi)Immediately after this event [the complainant] allowed Zeus to rub against his feet as he interpreted this behaviour as Zeus showing he was sorry.

[12]   With respect to the second step of determining whether those circumstances were exceptional and do not warrant destruction of the dog, the Judge found that the biting incident had taken place in exceptional circumstances and did not warrant Zeus’s destruction. She described the incident as being an “unusual situation” in which there had been clearly friendly interaction and play between the complainant and Zeus before the bite occurred.6 The complainant knows Zeus well and did not feel threatened or frightened of him at all.

[13]   The Judge found that Zeus’s behaviour was explicable on the basis that the complainant’s actions had been perceived by the dog as being a threat. She said:

[31] Immediately before the bite, Zeus was lying on the ground. [The complainant] approached Zeus standing above him in what could be considered an intimidating stance. I consider [the complainant]’s actions in leaning down towards the dog with his hand extended towards him was a motion that caused Zeus alarm. His response has the features of him wanting to protect himself or the toy that was with him, protecting his toy, is no different to what any dog would do in those circumstances. Zeus’ actions after the bite of immediately rubbing himself against [the complainant] clearly gave the impression to [the complainant] that Zeus was apologising and it

6 At [30].

demonstrated that Zeus had misconstrued [the complainant]’s approach to him. Zeus was acting in a manner to defend himself from what he perceived to be an aggressive action on the part of [the complainant].

[14]   The Judge commented that there had been ongoing petting and playing between the complainant and Zeus, including the complainant attempting to take a toy from the dog. She commented that it is “common knowledge … for dogs to become protective over their toys, food and even themselves when they believe that they are to be harmed”.7 Zeus had been kept in a confined area and was under the respondent’s control, unable to access the outside of the building as the doors were closed.

[15]   On this basis, the Judge concluded that the complainant’s actions, although unintentionally, had provoked Zeus to respond in the way that he did. Zeus’s action immediately following the biting showed that he had not expected to cause the complainant any harm and, “if it is possible to accept a dog can apologise, he did exactly that by rubbing himself against [the complainant]”.8 The Judge considered that this sort of incident was unlikely to be repeated and she drew further support for that proposition from the fact that Zeus had been playing with other young children after the event and there had been no subsequent attack. These amounted to exceptional circumstances that did not warrant destruction of the dog.

Submissions

The appellant

[16]   Mr Collins, for Auckland Council, submits that the Judge erred in law and in principle in applying the test under s 57(3) of the Dog Control Act. He submits that the Judge erred by placing undue weight on a number of factors and by concluding that there were exceptional circumstances such that a dog destruction order was not warranted.

[17]   As to the test under s 57(3), Mr Collins refers to the Court of Appeal’s decision in Hill.9 He says that the Court of Appeal confirmed that the focus of s 57(3) is to

7 At [32].

8 At [34].

9      See Hill, above n 4, at [64].

prioritise public safety and prevent dog attacks.10 Following a conviction under that provision, an order for the destruction of the dog “will normally follow”.11 The Court also clarified the matters that can and cannot be considered by a sentencing judge when assessing exceptional circumstances. The inquiry is limited to the immediate circumstances of the attack and cannot take into account prior history or post-attack conduct.

[18]   Mr Collins submits that the Judge erred in finding that the location of the incident was “Zeus’ private space” and in concluding that this was a factor in favour of showing exceptional circumstances.12 He submits that the attack occurred at a workplace accessible to the public similar to the location of the attack in Hill.13 The location of the attack did not in any way mitigate the attack that resulted. Mr Collins submits that the respondent still has obligations to prevent an attack on visitors to the premises, particularly where the person is there by arrangement or the public have access.

[19]   Mr Collins further submits that the Judge erred by finding that the complainant attempting to pat the dog was a provocation. He says such an action falls well short of conduct that would qualify as provocation.14 Several decisions following Hill have endorsed a high threshold for provocation for the purposes of s 57.15 Given that behaviours such as a bite to the nose, barking or baring teeth have not previously amounted to a provocation, standing over a dog and extending a hand for the purpose of petting could not amount to provocation. Moreover, Mr Collins submits that a person attempting to pat Zeus is typical behaviour that clearly falls short of an unusual or one-off occurrence that is unlikely to be repeated. If a dog was under its owner’s control then it would not bite the person in such circumstances. Mr Collins submits that if a dog bites a person merely attempting to pat it, then the dog can properly be seen as intrinsically dangerous and a destruction order is required.

10 At [65].

11 At [4].

12     District Court decision, above n 1, at [24(i)].

13     Hill, above n 4, at [86].

14 At [76].

15     See van Delden v Waitaki District Council [2021] NZHC 2264; Page v Auckland Council [2022] NZHC 951; and Ding v Auckland Council [2022] NZHC 45.

[20]   Mr Collins submits that Zeus’s prior show of aggression by growling and display of possessiveness over the toy were behaviours which did not support a finding of exceptional circumstances. Nor did the respondent’s warning to the complainant support such a finding. He submits it was not the complainant’s responsibility to maintain control and prevent an attack — the Dog Control Act places that responsibility directly and solely on the dog owner.16 He submits that it was incumbent on the respondent to have promptly responded to her dog’s aggression by restraining or removing him from the presence of the complainant to prevent a possible attack. The respondent failed to do so, and warning the complainant was not enough. A situation where a dog is behaving in a possessive manner over food or a toy is, as the Judge observed, “not uncommon”,17 and provides no support to a finding that the circumstances were unusual or unlikely to be repeated.

[21]   Mr Collins says that the Judge also erred by relying on allegations outside the agreed summary of facts, including matters that were the subject of dispute between the prosecutor and defence. He notes that sentencing must proceed on the basis of the material in the agreed summary of facts and caution needs to be exercised when drawing additional inferences that are not addressed in the agreed summary of facts.18 The Court of Appeal has made clear that prior history and post-attack conduct cannot be taken into account, yet Mr Collins submits it is clear that the Judge placed weight on these matters alongside other disputed facts in reaching her decision.19

[22]   Further, Mr Collins submits that the Judge erred in drawing inferences regarding the psychology of the attacking dog as a factor supporting a finding of exceptional circumstances.20 The Court of Appeal in Hill made clear that the relevant test:21

16 Dog Control Act, ss 4(a)(iii), 5(1)(b) and (f), 52A and 53.

17 District Court decision, above n 1, at [24(iv)].

18 See Pokai v R [2014] NZCA 356 at [30]; and Chadderton v New Zealand Police [2019] NZHC 2072 at [17].

19    In particular, the Judge took into account the two previous infringement notices issued in relation to Zeus and explicitly drew support from Zeus’s conduct with a neighbouring family subsequent to the incident. Mr Collins also submits that the Judge took into account that the respondent offered to put the dog away following the attack but the complainant refused, matters which remained in dispute between the parties.

20 District Court decision, above n 1, at [31] and [34].

21 Hill, above n 4, at [75].

… 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.

[23]   The Judge nevertheless inferred from Zeus’s behaviour that he was alarmed by the complainant’s attempt to pat him, that he wanted to protect himself or his toy, that he perceived the complainant to be acting aggressively towards him and that he apologised to the complainant after  the  attack  by  rubbing  up  against  his  feet.  Mr Collins submits that Zeus’s thinking and motivations are not able to be inferred with any accuracy. Likewise, the inferences drawn by the Judge as to the psychology of dogs generally were not relevant to the test set out in Hill and were in fact inconsistent with that decision.

[24]   Finally Mr Collins submits that the Judge erred by finding that a destruction order was not required in the circumstances of this case. He submits that there was no reasonable or principled basis upon which the circumstances of the offence could be considered “exceptional” under s 57(3). This was not an “unusual or one-off occurrence that is most unlikely to be repeated”.22 To the contrary, a “one-off” failure by an otherwise responsible dog owner to control a dog does not constitute exceptional circumstances.

[25]   Mr Collins accordingly submits that the Judge erred in finding the test for exceptional circumstances under s 57(3) of the Dog Control Act had been met, and this Court should allow the appeal and make a dog destruction order.

The respondent

[26]   Mr Carter, for Ms Paul accepts that the two-step approach described in Hill applies and that prior history or post-attack conduct of the dog cannot be taken into account. However, he submits that the circumstances of the offence must necessarily include the events comprising the leading up to the attack, and particularly the minutes directly preceding connection between the complainant and the dog. In this respect he says it is relevant to note that Zeus was well known to the complainant. It can reasonably be inferred that Zeus did not act aggressively when the complainant entered

22 At [64].

the respondent’s premises. Upon entering the premises the complainant interacted with Zeus, and Mr Carter says that it can be inferred that Zeus appeared to enjoy the interaction and attention he was receiving. Zeus then picked up a shoe and brought it to the complainant, from which Mr Carter says it can be inferred that he was entering into play. While Zeus then growled at the complainant, Mr Carter says that it is common for any dog involved in a ‘tug of war’ game to growl as part of their play, and in that context growling is not indicative of aggression. A short time after this play had ended Zeus bit the complainant when he extended his hand towards Zeus to pat him. The complainant and respondent both yelled, and Zeus immediately let go and moved away.

[27]   From these facts Mr Carter submits that this was not a sustained attack and the dog was under voice command. Mr Carter notes that shortly after biting the complainant, Zeus went over to him in an unaggressive manner and put his weight on the complainant’s feet. Mr Carter submits that this is a “recognised behaviour when a dog wishes to be close to a person and is deemed harmless and a sign of love and comfort”. Mr Carter submits that this is an inference which the sentencing Judge could reasonably infer from the facts. Furthermore he says, to ignore the behaviour of the dog during what was still part of the “circumstances of the offence” would be artificial and inconsistent with the Court of Appeal’s decision in Hill. He accordingly submits that the Judge did not stray beyond what could reasonably be inferred from the agreed facts.

[28]   Mr Carter submits that the incident was, as the Judge found, both “one-off” and “unusual”. Any other conclusion would be untenable when all of the surrounding circumstances are taken into account, and what happened should not be considered to have been an unprovoked attack.

[29]   Responding to the appellant’s submission that the Judge erred in finding that the incident occurred in Zeus’s private space, Mr Carter says that it was an “office” located within the garage of a private residence. He submits that the Judge’s reference to the location of the incident being a “private place” is correct, and says that the scene of the attack is a relevant factor to be considered when deciding whether exceptional circumstances are present. Unlike the circumstances in Hill, Zeus was not outside and

in a public place, but secured within a private dwelling at the time he bit the complainant’s hand. Mr Carter submits that having regard to the circumstances in which the attack occurred and the location where it happened, the risk of any future attack is very low.

[30]   As regards provocation, Mr Carter says that difficulty arises when attempting to assess what the dog perceives as a threat or considers to be rough play such as a ‘tug of war’ over the dog’s toy. Mr Carter submits that it is unrealistic to characterise a dog as inherently dangerous when it bites a person standing over it and ignoring all of the surrounding circumstances. He says that it is relevant that the complainant had engaged in active play with the dog shortly before the biting occurred, and failing to take that into account effectively isolates different parts of the Judge’s decision in a way that fails to take into account all of the factors relevant to the assessment required in accordance with the approach described in Hill.

[31]   Mr Carter disagrees with the appellant that the thinking and motivations of Zeus cannot be inferred with any accuracy. And he notes that the Council has acknowledged that the complainant himself interpreted the actions of Zeus after the attack as an attempt by the dog to say “sorry”. He submits that the Judge was entitled to draw that inference and draw support for that finding from the opinion of the complainant.

[32]   In summary, Mr Carter submits that the biting that occurred here was not one of the “all too common scenario[s] that is similar to other dog attack cases”, as characterised by the appellant. He submits that the Judge did not err in law or principle when assessing the unique circumstances of the case and she was entitled to exercise her judgment and discretion when deciding that exceptional circumstances existed. He submits therefore that the appeal should be dismissed.

Approach on appeal

[33]   Section 250(2) of the Criminal Procedure Act 2011 states that the court must allow the appeal if satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[34]In any other case, the court must dismiss the appeal.23

[35]   The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.24 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.25

[36]The approach taken under the former Summary Proceedings Act was set out in

R v Shipton:26

(a)There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error principle”.

(b)To establish an error in sentencing it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of additional material submitted to the appeal court.

(c)It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.

Law

The Dog Control Act 1996

[37]Section 57 of the Dog Control Act relevantly provides:

57       Dogs attacking persons or animals

23     Criminal Procedure Act 2011, s 250(3).

24     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

25     At [33] and [35].

26     R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].

(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.

[38]   In Hill the Court of Appeal considered an appeal in a case where a District Court Judge had declined to make an order for the destruction of a dog which had made a serious and unprovoked attack on a passer-by outside the dog-owner’s workplace, and which had caused significant physical injury to the complainant. The District Court Judge considered that the dog’s owner had taken steps following the attack which reduced the likelihood of a future attack, and justified a finding of exceptional circumstances. The Auckland Council appealed unsuccessfully to the High Court, and noting that there were conflicting High Court decisions about the appropriate approach to be adopted by courts when applying s 57(3), the Court of Appeal granted leave to the Council to bring a second 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). The Court of Appeal explained:

[3]        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”. …

Summary

[4]        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.

[5]        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.

[6]        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.

[7]        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.

[8]        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.

[9]        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.

Discussion

[39]   Addressing the first stage of the approach prescribed by Hill, the Judge found that the relevant circumstances of the offence included the continuing course of Zeus’s conduct from the time the complainant entered the respondent’s premises until when he left.27 I accept Mr Carter’s submission in this respect that the “circumstances of the offence” for the purposes of s 57(3) includes relevant events occurring during the immediate lead up to the attack. That must be the case. The relevant circumstances informing an assessment of the offence are not limited to consideration of the time between when the dog lunged towards the complainant’s hand and when it

27     District Court decision, above n 1, at [25].

subsequently released its grip. A properly informed assessment of the incident alleged to be the dog’s conduct requiring that it be destroyed, necessarily includes consideration of any dog behaviour and events which immediately preceded the contact between the dog and the complainant as comprising the circumstances of the attack. The Court of Appeal in Hill observed:28

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.²⁹ 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.

[40]   I also accept Mr Carter’s submission that this was not a sustained attack and the place where it happened is a relevant circumstance for the purpose of the test in Hill.

[41]   However, I agree with the Council’s submission that the Judge erred in finding that the place where the incident occurred was “Zeus’ private space”.30 The Judge considered that even though it was a place where members of the public could enter it was still a private place where Zeus was able to stay in and it was not a situation where he was free to roam in an open public area. However, although the office where the attack occurred was a private space in the sense that it was indoors and within an office area, it was nevertheless a place readily accessible to members of the public visiting the premises to discuss and arrange the moving services offered by the business operated from that otherwise residential address. The attack did not occur in a place where Zeus was kept away from members of the public or from where the public was excluded. If members of the public were able to and were invited to enter the enclosed office premises, the place where the attack occurred cannot be accurately characterised as being Zeus’s private space.

[42]   I also find that the Judge erred in her finding that Zeus was being kept in a confined area and was under the respondent’s control at the time the attack occurred.31 That was plainly not the case. Although Zeus was confined to the property, and

28     Hill, above n 4, at [67] (emphasis added).

29     Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005 at [42].

30     District Court decision, above n 1, at [24(i)].

31 At [33].

appears to have responded to some voice commands from the respondent,32 she was unable to control his behaviour so as to prevent him from attacking and biting the complainant. It was incumbent on the respondent to respond promptly when Zeus began growling in the course of the ‘tug-of-war’ over the toy by restraining or removing him from the situation as a precaution, even if she believed that his growling was only part of the game. Merely warning the complainant following signs of aggression from Zeus was inadequate to maintain control of the situation and prevent an attack.

[43]   I also find that the Judge erred in her characterisation of the complainant’s act of attempting to pat Zeus as a provocation.33 While the complainant’s action of bending down towards Zeus with his hand extended prompted the dog to bite him,34 that gesture falls well short of anything that could amount to provocation.35 Arguments of self-defence or defence of another are irrelevant here36 notwithstanding that the complainant had earlier been engaged in what Mr Carter describes as being “active” or “rough” play with the dog. A person leaning down and attempting to pat a dog could hardly be described as unusual or provocative behaviour — to the contrary, it could hardly be more mundane.

[44]   The Judge also drew a number of inferences from the dog’s behaviour about its intentions during the incident.37 In particular, she commented that Zeus was alarmed by the complainant trying to pat him, desired to protect himself or his toy, perceived the complainant as acting aggressively toward him and that Zeus later “was apologising” to the complainant by rubbing up against his feet.38   While I accept    Mr Carter’s submission that the Judge is entitled to draw reasonable inferences about the dog’s behaviour,39 to delve into the psychology of Zeus’s motivations for his

32     The dog released its grip of the complainant’s hand when the respondent shouted out.

33     At [18] and [34].

34 At [31].

35     The threshold for which has been discussed in several decisions since Hill, see the decisions in

van Delden, Page and Ding, above n 15

36 Mr Carter submitted that a dog should be permitted to act in self-defence or defence of its owner, and to consider otherwise would result in the dog not being able to defend itself from cruel treatment under the Animal Welfare Act 1999 without the risk of being destroyed. In my view, concerns regarding cruel treatment have no relevance to the present case.

37 At [31] and [34].

38 At [31].

39 For example, clearly something the complainant did caused Zeus to lash out in response.

actions and the intentions behind his actions in the context of determining whether exceptional circumstances exist misapplies the test in Hill. That test requires the court to focus on the circumstances of the attack and the risk that such an attack will occur again in the future, precisely to avoid the “difficult, if not impossible” task of inquiring into the psychology of the dog.40 The Judge’s findings as to Zeus’s motivations and intentions were inherently speculative and could not provide a secure foundation or basis for a finding of exceptional circumstances under s 57(3).

[45]   I further consider that the Judge also erred in her conclusion as regards the second stage of the Hill test by finding that the circumstances of the offence were exceptional and do not warrant the destruction of Zeus. As the Court of Appeal observed in Hill, there is nothing exceptional about a “one-off” failure by an otherwise responsible dog owner to control their dog.41 Although Zeus was contained within a fully fenced property, it cannot be said that he was under the control of the respondent at the time of the attack or that the complainant did anything to provoke his aggressive reaction.

[46]   Likewise, there is nothing in Zeus’s intention that is relevant to this assessment. The Judge’s observations about the general behaviour and psychology of dogs do not take the point any further.42 The fact that the complainant had previously interacted with Zeus and had been playing with Zeus shortly prior to the attack, and that Zeus had appeared to “apologise” to the complainant after biting him, do not render the circumstances of this attack exceptional as described in Hill.43 It is also not relevant that Zeus may have been harmlessly playing with young children on other occasions following the attack, as such post-incident events have no bearing on the circumstances of the offence.44 The Judge’s observation that dogs frequently behave in a similar manner over food or toys in fact underscores how common such interactions are.45

40     Hill, above n 4, at [75].

41 At [78].

42     See District Court decision, above n 1, at [31] and [32].

43     See the examples of exceptional circumstances described in Hill, above n 4, at [84] including “where the dog’s owner was under attack, or where the dog was provoked”.

44     Hill, above n 4, at [79].

45     District Court decision, above n 1, at [32].

[47]   I accordingly find that the Judge erred in applying the test under s 57(3) of the Dog Control Act when she found that the circumstances of the offence were exceptional and do not warrant destruction of the dog. It follows that there must be an order for the destruction of Zeus.

[48]   The fact that the attack occurred while Zeus was in a place which was familiar to him and when there was no expectation that he would act aggressively towards the complainant, in my view illustrates a completely unpredictable aspect of his nature and shows that despite measures being taken to reduce the likelihood of a future attack occurring, the risk would nevertheless remain and he would present a significant risk to the public. If in the future a child rather than an adult offers and extends its hand towards Zeus and the dog reacts by biting the child, the injuries it could cause are likely to be considerably more serious and severe than was the case with the adult male complainant here.

[49]   This offending essentially involved a dog reacting aggressively to an attempt by someone to pat it.   These are not exceptional circumstances for the purposes of    s 57(3). It is unfortunately a necessary consequence of the Dog Control Act that the Court is required to make an order for the destruction of the dog.

Result

[50]The Auckland Council’s appeal is allowed.

[51]   I make an order for the destruction of the dog “Zeus” pursuant to s 57(3) of the Dog Control Act 1996.

Paul Davison J