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 for satisfaction of the s 57(3) standard:4 what are the relevant circumstances; and are they exceptional, such that they do not warrant the dog’s destruction? Her Honour concluded the circumstances of the first attack constituted Ms Cross’ “effective lack of control”,5 which was not at all exceptional.6 The order for the dogs’ destruction followed.7 For “completeness”, Her Honour was “concerned about the veracity” of Mr Pridmore’s evidence, which only was adduced some three years after the event.8

[7]    For Ms Cross, Justin Harder contends the Judge failed to comprehend in relation to the first attack the dogs’ “extraordinary and unforeseeable feat in opening the window” presented “low risk that similar circumstances will occur in the future”. Although Mr Harder also contests the Judge’s entitlement to dispute Mr Pridmore’s evidence, accepted by the Council, Her Honour’s order wholly was based on the first attack. The second attack did not contribute to the order under challenge.

Approach to appeal

[8]    Given Ms Cross’ guilty pleas, her appeal necessarily is against sentence. I must allow the appeal only if I am satisfied both there is error in the sentence and a different

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

5      Cross v Auckland Council, above n 1, at [35]. The Judge’s reference to “Nicholl v Auckland Council” errs; her citation is from Delden v Waitaki District Council [2021] NZHC 2264 at [77], which reads in full:

The Judge was entitled to conclude that the fact Jock had escaped through such a gap did not constitute an exceptional circumstance relating to the attack. In other words, such an occurrence will not be an uncommon background to such attack.

6      Cross v Auckland Council, above n 1, at [36].

7 At [37].

8 At [38].

sentence should be imposed.9 In any other case, I must dismiss the appeal.10 The measure of error is the sentence be “manifestly excessive”.11

[9]    Given the all-or-nothing nature of a destruction order — which is not to punish Ms Cross or the dogs,12 but to protect public safety13 — ‘manifest excess’ only will be established where the risk of future attack is “remote” or “immaterial”: “the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely”; making the dog’s destruction not justified in the interests of public safety.14

Discussion

[10]   I see no error in the Judge’s conclusion the relevant circumstances were not exceptional. The assessment is to put aside pre- and post-attack circumstances,15 “to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future”:16

Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So 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.

[11]   The Dog Control Act affirmatively requires “[t]he owner of any dog [to] keep that dog under control at all times”.17 On moving into her new property, Ms Cross exercised no real control of the dogs at all, but merely expected they would be contained in the bedroom. Her evidence is explicit she only retrospectively identified the window’s insecurity. Her assumption it was secure was insufficient to meet her positive obligation to keep the dogs under control. The dogs’ escape thus was not exceptional; as this Court previously has noted,18 such escape is “not uncommon

9      Criminal Procedure Act 2011, s 250(2).

10     Section 250(3).

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

12     Auckland Council v Hill, above n 4, at [66] and [73].

13 At [65].

14     At [6], [65] and [75].

15     At [71]–[72].

16 At [75].

17     Dog Control Act, s 52.

18     Delden v Waitaki District Council, above n 5, at [77].

background” to offending attacks. But the escape is not in any event the principal focus of the assessment; the attack is. The rebuttable inference is the attack was not exceptional. The Judge was given no reason to think the dogs’ attack was exceptional.

[12]   ‘Remote’ and ‘immaterial’ risk may be thought to address two distinct aspects of relevant circumstances: remote, if the risk is unlikely to eventuate in similar circumstances; immaterial, if similar circumstances are unlikely to arise. Here the risk on future escape the dogs would attack again was established by inference. The facts confirm the dogs’ attack was habitual. The risk is relevant because future escape cannot be excluded. Any failure to maintain proper control of the dogs offers opportunity for escape, which the dogs plainly take up.

[13]   The risk on future escape the dogs would act similarly thus was neither remote nor immaterial, meaning the dogs’ destruction is justified and warranted by public safety interests. The Judge’s destruction order was not manifestly excessive.19

Result

[14]Ms Cross’ appeal is dismissed.

—Jagose J

19     I misstated this as “not materially excessive”. I meant as is written.