Cross v Auckland Council - [2022] NZHC 1243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-106 [2022] NZHC 1243

BETWEEN
BRITTANY CROSS

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 31 May 2022

Appearances:

J C Harder and B P Jacobs for appellant

D J Collins and L L Dempsey for respondent

Date of judgment:

31 May 2022

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
J C Harder, Barrister, Auckland
Auckland Council – Legal Services, Auckland

CROSS v AUCKLAND COUNCIL [2022] NZHC 1243 [31 May 2022]

[1] Brittany Cross appeals Judge Fitzgibbon’s 5 April 2022 order at the North Shore District Court in Auckland for destruction of her dogs, Isla and West.1 The order followed Ms Cross’ guilty pleas to four charges of owning dogs that attacked stock;2 and one charge of failing to keep the dogs under control.3

Background

[2] Isla and West respectively are female and male Thai Ridgeback dogs. On both 27 and 30 July 2018, Isla and West escaped Ms Cross’ control and property to kill neighbouring sheep.

[3] Ms Cross’ evidence was, on the first occasion, the dogs were left in a bedroom at a new property while she moved furniture into it. When she returned, the bedroom’s window was open, with scratch marks around the frame, and the dogs no longer were present. Ms Cross surmises the dogs had knocked the bedroom window’s latches with the effect the window opened of its own volition. On the second occasion, David Pridmore — a dog trainer engaged by Ms Cross after the first incident — was walking the dogs on leashes around Ms Cross’ property. He says he became unwell and “momentarily passed out and lost control of the dogs”; he “struggled to hang onto the dogs but … couldn’t and they escaped and ran off”.

[4] On both occasions, the dogs ran to a neighbour’s property from which Ms Cross recovered them. She says the dogs did so again on a further occasion, seemingly on 24 September 2018, when Ms Cross was able to recover them before any injury or fatality ensued to the neighbour’s sheep (although the neighbour says one made several attempts to single out and catch one of the sheep). Nine sheep (including five lambs, and two in utero) were killed in or euthanised as a result of the attacks, for which Ms Cross paid the neighbour some $1,200 in reparations. Ms Cross also was fined $2,250 on the five admitted charges.

1      Auckland Council v Cross [2022] NZDC 7091.
2      Dog Control Act 1996, s 57(2).
3      Sections 52, 52A and 53.

The law

[5] On being satisfied a dog has attacked stock, s 57(3) of the Dog Control Act 1996 provides:

… 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.

Decision on appeal

[6] The Judge referred to Auckland Council v Hill’s accepted two-stage test…

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: [2022] NZHC 1243
Decision Date: 31 May 2022

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Brittany Cross against an order by the North Shore District Court for the destruction of her two Thai Ridgeback dogs, Isla and West. The dogs had on two occasions escaped Ms Cross’ control and attacked neighbouring sheep. Ms Cross had pleaded guilty to the charges, including failing to keep the dogs under control. The appeal was against the sentence of the destruction order, not the conviction. The court was required to determine whether the order for the destruction of the dogs was manifestly excessive, given the all-or-nothing nature of a destruction order, which is intended to protect public safety rather than punish the owner or the dog.

The court considered whether the circumstances of the attack were exceptional and whether the risk of a future attack was remote or immaterial. It noted that Ms Cross had not effectively controlled the dogs, which had escaped through an unsecured window and on another occasion while being walked by a dog trainer who had momentarily lost control. The court found that the circumstances of the attacks were not exceptional, as such escapes were not uncommon. The risk of future attacks was neither remote nor immaterial, as the dogs had shown a habitual tendency to attack when given the opportunity to escape. The court concluded that the destruction order was justified and warranted by public safety interests and was not manifestly excessive.

Ms Cross’ appeal was dismissed, and the order for the destruction of the dogs was upheld.

Orders