Baker v Whakatane District Council
[2021] NZHC 66
•3 February 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-463-000140
[2021] NZHC 66
BETWEEN JOSEPH BAKER
Appellant
AND
WHAKATANE DISTRICT COUNCIL
Respondent
Hearing: 2 February 2021 Appearances:
Appellant in person
L Ebbers for Respondent
Judgment:
3 February 2021
JUDGMENT OF VENNING J
This judgment was delivered by me on 3 February 2021 at 4.00 pm.
Registrar/Deputy Registrar
Date……………
Solicitors: Hamertons Lawyers Ltd, Whakatane Copy to: Appellant
BAKER v WHAKATANE DISTRICT COUNCIL [2021] NZHC 66 [3 February 2021]
[1] Joseph Edward Baker faced two charges laid under ss 57(1)(b), (2) and (3) of the Dog Control Act 1996 (the Act).1
[2] Following a defended hearing in the District Court at Whakatane on 18 September in which Mr Baker represented himself Judge J E MacDonald found both charges proved.2
Background/District Court proceeding
[3] The facts can be relatively briefly stated. They were summarised by the Judge in finding the charges proved. Mr Baker is the owner of two dogs, the first a male white and black bull terrier named Ice, the other a male brindle and white bull terrier named Khaos. On 30 November 2019 on Douglas Street, Whakatane, the dogs attacked another animal, a dog owned by Ms Tyson, called Nita.
[4]Ms Tyson, the owner of Nita, and Mr Baker both gave evidence.
[5] Mr Baker explained how his dogs happened to get out and cross the road to attack Ms Tyson’s dog. He had subsequently written to Ms Tyson with an offer to pay the veterinary fees of $344.40. He also said that he had taken steps in relation to the dogs to ensure that a similar incident would not happen again. Mr Baker’s defence was that as he had offered to pay the $344.40 and Ms Tyson’s silence was acquiescence then there was a contract which prevented further action.
[6] The Judge rejected the defence. He was satisfied the charge was proved and convicted Mr Baker on both charges.
[7] The Judge recorded that Mr Baker had accepted the necessary elements of each charge that needed to be proved. Mr Baker accepted he was the owner of the dogs which had both attacked another dog. The attack had taken place in Douglas Street, Whakatane. The Judge had no doubt the street was a public place and that the attack happened on 30 November 2019.
1 Although s 57(1)(b) is referred to in the charge sheet, the offence is described in s 57(2).
2 Whakatane District Council v Baker [2020] NZDC 24882.
[8] The Judge ordered Mr Baker to pay vet fees of $344.40, together with Court costs of $130 on each charge. The Judge also ordered Mr Baker to make an emotional harm reparation payment to the owner of the dog that had been attacked in the sum of
$250 and to pay $500 towards the cost of prosecution.
[9]Following conviction on the charge under s 57(2) of the Act, s 57(3) applied:
(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.
[10] The Judge was not satisfied there were exceptional circumstances and therefore made orders for destruction of both dogs.
The appeal in this Court
[11] Mr Baker has filed a number of documents with this Court. The documents are convoluted, verbose, and in a number of instances, incomprehensible.
[12] The file was referred to Katz J on 26 November 2020. The Judge noted that many of the documents filed were incomprehensible. She directed that a number of the documents be rejected and noted that, insofar as other documents may potentially be relevant to the proposed appeal they should be attached to an affidavit and Mr Baker should file an application seeking leave to file fresh evidence on the appeal.
[13] Katz J noted that, while she had directed Mr Baker’s notice of application be accepted for filing, it lacked clarity. Mr Baker was directed to file an amended notice of application for leave to appeal, together with a copy of the District Court decision.
[14] In response Mr Baker filed a document described as an “Affidavit of Truth by the Will of Lord Joseph Edward of the house Baker” on 18 January 2021. Again, substantial parts of that document are incomprehensible. Nevertheless, a number of the attachments to the document are relevant to the appeal and I apprehend that Mr Baker seeks to appeal the order for destruction of the two dogs, Ice and Khaos.
[15] Mr Baker appeared in support of the appeal. He repeated his argument that because he had offered to pay the veterinary costs of $344.40 and Ms Tyson’s acquiescence was confirmed by her silence the matter was resolved by contract and at an end.
Discussion
[16] Having reviewed the notes of evidence and the materials filed by Mr Baker, this Court, like the Judge, is satisfied that the charge under s 57(2) of the Act was established beyond reasonable doubt. The two dogs, owned by Mr Baker, Ice and Khaos, both attacked and injured another dog, Nita, on 30 November 2019 on a public street. Mr Baker has confirmed as much himself.
[17] In his material filed in support of the appeal Mr Baker said, under his heading of “Summary of Facts”:
1.On the 30th day of November 2019 at around 7.30am, [I] was playing with mine and my dad’s property and asked them if they wanted to go for a ride. They got all excited. [I] went out to my truck to get it ready, but when [I] closed the gate, it bounced off the lock and did not close properly. [I] did not realise that our property had followed me out of the gate until I heard them running and barking while crossing the road. [I] yelled out to my dad who came and helped me to retrieve them.
2.By time we got across the road, our property had latched on to someone else’s property on the other side of the road. Being the breed that our property is, it is naturally difficult to get them to release something once they are latched on so me and my dad were struggling to do this and ended up dragging Nita across the road while we were trying to get them to release her. The attack was not a frenzied one as there would have been more damage done if it were.
3.After getting our property to release Nita, we quickly locked them away. [I] went back out to the road to see if Jane and Nita were ok, but they had already gone, and [I] did not know where they had gone to or where they had come from. [I] only find out their address when L EBBERS served me with a bundle of paperwork at the WHAKATANE DISTRICT COURT on the 28th Day of May 2020. We served her with our paperwork that day too.
…
[18] That leaves the issue of destruction of the dogs. Mr Baker’s explanation for the incident is that he went out through the gate which failed to latch and the dogs followed him out and attacked Nita.
[19] The leading authority on the interpretation of s 57(3) is the Court of Appeal decision of Auckland Council v Hill.3 In that case the Court summarised the issue and the relevant law as follows:
[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.
3 Auckland Council v Hill [2020] NZCA 52.
[20] The Court confirmed that, in determining whether there were exceptional circumstances the Court should address the following steps:
(a)What are the relevant circumstances?
(b)Are the circumstances exceptional and such that do not warrant destruction of the dog?
[21]As the Court noted:4
[65] … 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.
[22] The circumstances of the attack in this case as described in the evidence are that Ms Tyson was taking her dog Nita, a Hungarian Vizsla (a skinny Labrador sized dog) for a walk. Nita was being walked north on Douglas Street on a lead. As Ms Tyson described the incident:
… out of the blue two dogs were across the road and attacking my dog.
[23] Ms Tyson said she was stuck right in the middle of the three dogs, could not get out and then a couple of guys ran across the road and tried to get the dogs away from her dog. She said once she got free, the two dogs dragged her dog across the road towards 61 Douglas Street. They were biting and attacking Nita. On the evidence the attack was unprovoked and posed a danger, not only to Nita, but also to Ms Tyson.
[24] Nita sustained a number of injuries including two lacerations to the fore-limb, consistent with a dog bite. She was admitted to the veterinary surgery for a stitch-up and x-ray, suspected soft tissue damage, bruising, and several small puncture wounds around the neck, and trunk of her body. The wounds were left open and drained. Two larger lacerations were repaired by primary intention each approximately two to four centimetres in length.
4 Auckland Council v Hill, above n 3.
[25] Mr Baker did not challenge Ms Tyson’s version of the attack. Mr Baker’s defence was apparently his misapprehension or understanding that while accepting both his dogs had attacked the other dog that he believed it had been settled by his offer to Ms Tyson which, as she did not respond, formed a contract on the basis that her silence was acquiescence. That is a complete misconception as to the legal position. Mr Baker did explain the dogs got out because the gate bounced and the latch did not close. That had been upgraded so the gate now locks automatically. The dogs had not caused any further issues and he had installed boundary training to stop it happening again.
[26] To be exceptional under s 57(3) the circumstances must be exceptional in a way that means destruction of the dog is not warranted. Again, the Court focuses on the circumstances of the offence and attack and the risk that similar circumstances will occur in the future. The Court of Appeal noted it was not open for a dog’s owner, (such as Mr Baker in this case), 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. The dog can be assumed and expected to behave in the same way in similar circumstances in the future.5
[27] Nor is it open to the dog owner to argue the test is met because the attack was caused or contributed to by a one-off failure by an otherwise responsible owner. Failures to control a dog are not exceptional circumstances.6 The Court of Appeal expressly referred to failure to properly shut doors or gate (as in the present case) as being a common theme.7
[28] Nor are assurances given by the current owner about the future management and control of the dog relevant to the s 57(3) inquiry.8
[29] Having regard to the evidence and other material on the file the Judge was correct to find that on the authority of Auckland Council v Hill the steps taken by Mr
5 At [77].
6 At [78].
7 At [78].
8 At [80].
Baker after the incident were not relevant and there were no exceptional circumstances in this case.9
Result
[30]The appeal is dismissed.
[31] The orders for destruction of Ice and Khaos under s 53(3) of the Act and the monetary penalties imposed on Mr Baker are confirmed.
Venning J
9 Auckland Council v Hill, above n 3.
2