Baker v Whakatane District Council - [2021] NZHC 66

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…

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: [2021] NZHC 66
Decision Date: 3 February 2021

CaseChat Overview and Summary

Joseph Edward Baker appealed against the District Court decision to convict him of charges under the Dog Control Act 1996 and to order the destruction of his two dogs, Ice and Khaos. The District Court found that Mr Baker's dogs had attacked another dog, Nita, on a public street in Whakatane on 30 November 2019. The District Court rejected Mr Baker's defence that the matter had been settled by an offer to pay the veterinary fees and that Ms Tyson's silence was acquiescence. The District Court ordered Mr Baker to pay vet fees, emotional harm reparation, and prosecution costs, and ordered the destruction of the dogs as the circumstances were not exceptional. The High Court heard the appeal on 2 February 2021 and delivered its judgment on 3 February 2021. The High Court found that the District Court was correct to convict Mr Baker and to order the destruction of the dogs. The Court noted that the circumstances of the offence were not exceptional as the attack was unprovoked and posed a danger to Nita and her owner. The Court held that the dog owner could not argue that the dog can be expected to behave differently in similar circumstances in the future or that the attack was caused by a one-off failure to maintain effective control of the dog. The Court found that the steps taken by Mr Baker after the incident were not relevant to the s 57(3) inquiry. The appeal was dismissed, and the orders for destruction of the dogs and the monetary penalties imposed on Mr Baker were confirmed.

This case highlights the importance of effective control of dogs and the consequences of failing to do so. The Court of Appeal decision in Auckland Council v Hill provides guidance on the interpretation of s 57(3) of the Dog Control Act 1996 and the factors that the court should consider in determining whether there are exceptional circumstances that do not warrant destruction of the dog. The Court emphasised that 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, and that post-attack events are not relevant to the s 57(3) inquiry. Dog owners should take note of this case and ensure that they maintain effective control of their dogs at all times to prevent attacks on other animals and people.

Orders