Ding v Auckland Council

[2022] NZHC 45

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-341

[2022] NZHC 45

BETWEEN

TIANMU DING

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:

22 November 2021

Appearances:

ME Goodwin for the Appellant

DJ Collins and LV Faletau for the Respondent

Judgment:

27 January 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 27 January 2022 at 2.30pm

Registrar/Deputy Registrar

Date……………………………

Solicitors:           M Goodwin, Auckland

And to:              Auckland Council, Auckland

DING v AUCKLAND COUNCIL [2022] NZHC 45 [27 January 2022]

Introduction

[1]    The appellant, Mr Ding, and his wife are the owners of a German Shepherd dog named Rocky. On 17 November 2019 while on a walk at a local park, Rocky attacked another dog, a French bulldog named Vinnie. The attack was reasonably serious, as Vinnie spent the next four days at the vet having his injuries treated.

[2]    At a hearing in the District Court on 7 July 2020, Mr Ding pleaded guilty to the (strict liability) offence under s 57(2) of the Dog Control Act 1996 (the Act) of being the owner of a dog that makes an attack on, relevantly in this case, another dog. Judge Manuel convicted Mr Ding and ordered him to pay a fine of $563, to pay Vinnie’s owner’s veterinary costs of $800 and an emotional harm payment of $500, and to pay court costs totalling $130.1 Pursuant to s 57(3) of the Act, the Judge was also required to impose a dog destruction order “unless [she was] satisfied that the circumstances of the offence were exceptional and [did] not warrant destruction of the dog”. On the material before the Court, the Judge concluded that the circumstances of the offence were not exceptional and accordingly made an order for Rocky’s destruction.

[3]    Mr Ding appeals against the Judge’s decision to make the dog destruction order.2 In doing so, he sought to adduce new evidence on the appeal, including expert dog behavioural evidence from Mr Mark Vette, a well-known animal behavioural consultant.

[4]    At the hearing before me, I first heard argument on whether the new evidence should be adduced on the appeal. The Council opposed Mr Ding’s application, and said that if the application were granted, it would want to cross-examine the deponents of the affidavits to be filed on Mr Ding’s behalf, including Mr Vette. The Council also proposed to file evidence in response, being a further four affidavits including from Vinnie’s owner and Mr Ding’s  counsel in the District Court.  In turn,  counsel for  Mr Ding, Mr Goodwin, confirmed that he would want to cross-examine the deponents

1      Auckland Council v Ding [2020] NZDC 13206.

2      Mr Ding does not appeal against any other aspects of the Judge’s decision.

of the affidavits to be filed on behalf of the Council. For these reasons, in the event the parties were granted leave to adduce the new evidence, a full day had been set aside for the hearing.

[5]    Having heard argument on Mr Ding’s  application to adduce new evidence,    I gave a result ruling in Court dismissing the application. I noted that my reasons would be delivered separately. After taking instructions, Mr Goodwin confirmed that in the absence of the new evidence, there was limited scope to argue that the District Court Judge erred when finding no exceptional circumstances existed in this case. Neither counsel therefore proposed to make oral submissions on the substantive appeal.

[6]    Mr Goodwin confirmed, however, that he had instructions to apply for special leave to appeal pursuant to s 253 of the Criminal Procedure Act 2011, essentially appealing against my decision to dismiss the application to adduce new evidence. Given this, and given that my reasons for declining the application will be important for Mr Ding when formulating his application for leave to appeal (and for the Council in formulating its grounds in opposition), I reserved my decision on the substantive appeal.

[7]The balance of this judgment is structured as follows:

(a)First, I provide a brief overview of the facts of the offending as they were agreed to be before the District Court Judge, and summarise the Judge’s decision to make a dog destruction order.

(b)Second, I summarise the legal principles applying to dog destruction orders.3

(c)Third, I summarise the new evidence Mr Ding proposed to adduce on the appeal (and if admitted, the Council’s proposed evidence in reply).

3      It is helpful to address these principles first as they provide context for Mr Ding’s application to adduce new evidence on the appeal.

(d)Fourth, I summarise the legal principles on adducing new evidence on an appeal.

(e)Finally, I give my reasons for declining Mr Ding’s application to adduce new evidence on the appeal, and my decision on the substantive appeal.

Facts of the offending and District Court Judge’s decision

[8]    The facts of the offending were set out in an agreed summary of facts presented to the District Court. I pause at this juncture to note that it was suggested by Mr Ding on the appeal that the summary of facts did not fully or accurately describe the circumstances of the attack, and that it had been an error by Mr Ding’s counsel in the District Court not to push to amend the summary accordingly (and also not to seek to adduce dog behavioural expert evidence). I return to these matters later in this judgment. For present purposes, however, the following are the facts upon which the Judge made her decision to make an order for Rocky’s destruction.

[9]    On 17 November 2019 at approximately 3:00 pm, Vinnie’s owner was walking Vinnie on a lead at Mānuka Reserve in Bayview (the Reserve).4 While there, Vinnie encountered another dog, a female German Shepherd named Summer.5 Nothing occurred  at  that  point,  and  Vinnie  and  his  owner  walked  on.  Approximately  30 minutes later, Summer and Rocky both came rushing down a hill towards Vinnie and approached him. Rocky then attacked Vinnie.

[10]   Vinnie’s owner pulled Rocky off Vinnie but Rocky kept going back to bite Vinnie in the middle and legs. Vinnie’s owner kept pulling Rocky off each time and finally Mr Ding came over and grabbed Rocky by the collar and pulled him away from Vinnie. Summer’s owner said to Vinnie’s owner “if there is any problem, come and see us, we will wait here”.

[11]   As a result of the attack, Vinnie was lying on the ground, fast breathing but not responsive. His owner picked him up, told Summer’s owner “no, just leave me” and

4      The Reserve is an “off leash” dog park.

5      Summer in fact belongs to a friend of Mr Ding, who was with him at the Reserve on 17 November 2019.

left the Reserve and took Vinnie directly to a vet for treatment. Vinnie sustained serious injuries requiring hospitalisation for four nights.6

[12]   Rocky was seized and impounded, though subsequently released on strict conditions pending the outcome of the prosecution of Mr Ding.

[13] In the District Court, Mr Ding sought a discharge without conviction. The Judge concluded, however, that the offending was of a medium to high level of seriousness, given Mr Ding did not have control of his dog, the attack was unprovoked and was in a public place.7 The Judge also took into account the seriousness of Vinnie’s injuries. In those circumstances, the Judge did not consider it appropriate to grant Mr Ding a discharge without conviction, and sentenced him to those fines and orders set out at [2] above.

[14]   As noted, the Judge also made an order for Rocky’s destruction. In doing so, she noted:8

It is always difficult for a family with a much loved pet when their dog attacks another dog out of the blue. This must have been a terrible shock to you and your wife. However the emphasis in the Dog Control Act is public safety and deterrence.

[15]   The Judge then addressed the Court of Appeal’s recent decision in Auckland Council v Hill, which confirms the proper approach to assessing whether the circumstances of an offence are “exceptional” for the purposes of s 57(3).9 The Judge recorded that the decision in Hill limits the “exceptional circumstances” inquiry to the immediate circumstances of the attack; the Court cannot look at the dog’s history or how the dog has behaved since the attack. The Judge accordingly noted that Rocky’s “good behaviour” both before and after the attack could not be taken into account.10

[16]The Judge concluded on the basis of the summary of facts that:

[11]     I do not consider there were exceptional circumstances in the attack itself. The attack was unprovoked. Rocky was uncontrolled and it took you

6      A photograph of the injuries was attached to the summary of facts.

7      Auckland Council v Ding, above n 1, at [6].

8 At [9].

9      Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.

10     Auckland Council v Ding, above n 1, at [10].

some time to bring him back under control. Dog owners and young dogs like Vinnie should be safe in public without any fear of a dog attack. An order for destruction is made.

Legal principles applicable to dog destruction orders

[17]Section 57(3) of the Act provides:

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.

[18]   As noted by the District Court Judge, the Court of Appeal in Hill recently confirmed the proper approach to dog destruction orders under s 57(3). The Court discussed the underlying rationale for the presumptive requirement for destruction in the context of an offence against s 57(2) as follows:11

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. …

[19]   The Court then conducted a detailed review of the relevant provisions of the Act, and summarised the proper approach to consideration of whether the circumstances of the offence are exceptional and do not warrant destruction of the dog:

[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

11     Auckland Council v Hill, above n 9, at [65].

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.

[20]The Court further noted that:12

If the circumstances of the attack are exceptional, in the sense that the dog can properly be seen as not intrinsically dangerous – for example where the dog’s owner was under attack, or where the dog was provoked – then a court may be satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

Mr Ding’s appeal and application to adduce new evidence

[21]   As noted, Mr Ding appeals against the Judge’s decision to make a dog destruction order. The notice of appeal itself did not set out any particular grounds of appeal, but simply noted that “[c]ounsel are instructing Mark Vette, animal behavioural specialist to provide an affidavit to the Court as to how exceptional circumstances led to the attack on 17 November 2019.”

[22]In the event, Mr Ding sought to adduce the following evidence on the appeal:

(a)An affidavit by himself, addressing both the circumstances of the attack and the lead up to the District Court hearing:

12     Auckland Council v Hill, above n 9, at [84].

(i)As to the former, Mr Ding says that he and Summer’s owner sat on a park bench located at the top of a small hill, which enabled them to keep oversight of their dogs while they played. Mr Ding says that when Vinnie first encountered Summer (described at

[9] above), Rocky was also present, but took no interest in Vinnie. Approximately 30 minutes later, Mr Ding was playing fetch with Rocky, and Summer was chasing Rocky (who was chasing the ball). The ball went down the hill towards Vinnie. Mr Ding says that when Rocky approached Vinnie, he did so slowly and the two dogs sniffed each other. Mr Ding says that Vinnie then growled and showed his teeth and the attack then began. He says he immediately ran towards Rocky and pulled him away, the attack lasting about 30 seconds, during which Vinnie was seriously injured.

(ii)As to the lead up to the District Court hearing, Mr Ding says on 20 March 2020 he instructed counsel that the summary of facts did not reflect that Rocky was chasing a ball at the time of the incident, nor did it accurately reflect the events immediately before the attack, including that Rocky approached Vinnie slowly and Vinnie growled and showed his teeth. Mr Ding also says he discussed with his trial counsel whether Rocky should be assessed by an animal behavioural expert but was advised this was not necessary.

(b)An affidavit from Summer’s owner, who was with Mr Ding at the Reserve on the day of the attack. The affidavit confirms Mr Ding’s account of the details of the attack as set out at (a)(i) above.

(c)An affidavit by Mr Ding’s wife which recounts, in terms consistent with Mr Ding’s evidence, his discussions with trial counsel about the summary of facts.

(d)An affidavit and report by Mr Vette, in which he says the following:

(i)He had assessed Rocky against three test dogs (Mr Vette’s own dogs) and found Rocky to have very sound social skills.

(ii)Rocky had been triggered by “the exceptional mix of circumstances” that were at play at the time of the attack.

(iii)The exceptional mix of circumstances were that Vinnie was the initial aggressor (growling and showing his teeth); that Rocky and Summer were playing and Rocky was chasing a ball (being “another unusual dynamic” as ball chasing is mock predatory behaviour, and is known to “stack”13 dogs); that this was compounded by the fact Rocky was not de-sexed at the time and that Summer was a female dog (increasing Rocky’s arousal); that if Vinnie was not de-sexed, this would further heighten these factors; and that Vinnie being on the lead would have “contributed to the situation” (given dogs on leads can be more protective of their owners and more reactive to other dogs).  Mr Vette also says in his report that Vinnie’s  reported behaviours were “all normal though undesirable behaviours that are natural and not uncommon”. Mr Vette also notes that Rocky has been de-sexed following the attack and recommends some therapy sessions for him, stating that “Rocky looks like a good candidate for therapy and is not considered a serious dog to dog aggressor … compared to many cases we see and treat”.

[23]   In the event Mr Ding were granted leave to file the above evidence, the Council sought to file the following evidence in response:

(a)An affidavit from Mr Ding’s counsel in the District Court, in which counsel notes, among other matters, that Mr Ding had confirmed the proposed amendments to the summary of facts, as well as the contents

13     Mr Vette defined “stacking” as “an accumulation of triggers”.

of counsel’s submissions to be made at the hearing in the District Court. Counsel also deposes that he does not recall having any discussion with Mr Ding about the possible use of a dog behavioural expert, and that he did not anticipate the use of such an expert in any event (it not being necessary on prior matters, and counsel not knowing of such an expert).

(b)An affidavit from Vinnie’s owner, in which she denies that Vinnie growled at Rocky immediately before the attack and says that “Rocky just began attacking Vinnie without warning and Summer was there and seemed to be exhibiting ‘pack’ mentality.”

(c)Affidavits from two Council Animal Management Officers, describing formal statements being taken from Mr Ding, Summer’s owner and Vinnie’s owner on the evening of 17 November 2019, and attaching those statements to their affidavits. Relevantly, Mr Ding’s statement refers to Rocky “slow running” down the hill and Vinnie and Rocky sniffing at each other, and then seeing the two dogs fighting. His statement does not mention Rocky chasing a ball, or that Vinnie had first growled at Rocky and shown his teeth before the attack. Summer’s owner’s statement relevantly records that when he and Mr Ding were sitting on a bench talking, “all of a sudden Rocky took off running”, and Mr Ding got up and ran after Rocky. Summer’s owner says he then got up and walked in the same direction and “I did not realise there was a problem. I walked about 5 meters when I saw Rocky attacking a small black French bulldog.” Again, the statement does not mention growling or Vinnie baring his teeth before the attack.

[24]   In a joint memorandum of counsel filed shortly before the appeal hearing, counsel confirmed that in light of the above new evidence, the key issues on the appeal were:

(a)whether the affidavits filed by Mr Ding should be admitted as fresh evidence;

(b)whether there was a miscarriage of justice due to alleged errors on the part of Mr Ding’s trial counsel; and

(c)if the Court were minded to admit the fresh evidence, whether there were exceptional circumstances that did not warrant destruction of the dog.

[25]   In response to the joint memorandum, I issued a minute on 18 November 2021 seeking clarification of the relevance of the alleged error on the part of Mr Ding’s counsel in the District Court. I said the following:

[3]        At this stage, I have only had the opportunity to conduct a preliminary review of the file. However, at least as I presently understand matters, the three key alleged trial counsel errors are that:

(a)trial counsel did not push to include in the summary of facts the fact that Rocky was chasing a ball down the hill immediately prior to the attack;

(b)trial counsel did not push to include in the summary of facts that Rocky first approached Vinnie slowly, and that Vinnie is said to have growled and bared [his] teeth prior to Rocky attacking [him]; and

(c)trial counsel did not consider in any detail, or take steps to call a dog behavioural expert.

[4]        In this context, I also note two of the three key issues counsel submit arise on the appeal, namely whether the affidavits filed by the appellant should be admitted as new evidence on the appeal, and whether there was a miscarriage of justice due to alleged trial counsel error.

[5]        It will be helpful to me at the outset of the hearing if counsel for the appellant could confirm whether the key issue is whether the proposed new evidence should be admitted on the appeal. I say this, as alleged trial counsel error leading to a miscarriage of justice is usually advanced in the context of an appeal against conviction. In this case, the appeal is against sentence only. Further, if trial counsel error is established, and it is accepted that the error was material and led to a miscarriage of justice, the ordinary course would be for the conviction to be set aside and the matter remitted to the trial court for rehearing.

[6]        In this case, I apprehend that the primary relevance of the alleged trial counsel error is that it supports the submission that the interests of justice justify the admission of the new evidence on appeal.14 This seems consistent

14 By ameliorating the fact that the evidence could have been put before the trial court, and is  therefore not “fresh” in the true sense. See for example Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [CPA335.02(2)].

with counsel’s identification of the third key issue on the appeal, namely if the Court is minded to admit the fresh evidence, whether the Court concludes there were exceptional circumstances which did not warrant the destruction order. To frame the point another way, I do not understand the alleged trial counsel error giving rise to a miscarriage of justice to be a “freestanding” ground of appeal, with the result that if the Court was satisfied of such error, it ought to allow the appeal and remit the matter back to the District Court for rehearing.

…

[8]     I emphasise that these are initial thoughts from a preliminary review  of the file only. However, I invite counsel to consider my observations, as it may affect the proposed timetable for evidence.

(emphasis added)

[26]   Mr Goodwin subsequently confirmed that my understanding recorded in the highlighted text above was correct.

Adducing new evidence on appeal – legal principles

[27]   The principles governing applications to adduce new evidence on appeal are well settled and may be briefly stated.

[28]In Lundy v R, the Privy Council stated the following:15

[120] The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

[29]   In the context of the third stage of the inquiry, the Privy Council agreed with Tipping J’s comments in R v Bain that “the overriding criterion is always what course will best serve the interests of justice”.16

15 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273. Although the principles are stated in the context of an appeal against conviction, they apply equally to an application to adduce new evidence on an appeal against sentence.

16 R v Bain [2004] 1 NZLR 638 (CA) at [22] as cited in Lundy v R, above n 15, at [117]–[119].

[30] As reflected in my minute referred to at [25] above, an allegation of trial counsel error in the context of an application to adduce new evidence on appeal is principally relevant to whether the proposed new evidence is “fresh”. The authors of Adams on Criminal Law summarise the position as follows:17

Evidence that was not heard at trial as a consequence of serious error by trial counsel should be regarded as “fresh” evidence … The usual practice is to treat such evidence as fresh if the appeal court is persuaded that counsel error explains its absence from the record and is satisfied the evidence would have been led at trial but for counsel error ….

[31]   Nevertheless, I note that in a more recent Court of Appeal decision than those referred to in Adams on Criminal Law, the Court endorsed the Privy Council’s confirmation in Lundy that counsel error does not necessarily render new evidence “fresh” per se, but rather the proper inquiry will be whether the overall interests of justice favour admission.18

Reasons for declining application to adduce the new evidence

[32]   In the context of the above factual background and legal principles, my reasons can be relatively brief.

[33]   First, I was prepared to assume that the proposed new evidence was credible. That must be the case in relation to Mr Vette’s proposed evidence. Further, while I had some concerns as to the credibility of Mr Ding’s proposed evidence (and that of Summer’s owner), I would have at least admitted the evidence on a provisional basis, for it to be tested by way of cross-examination. In particular, I was concerned that the contemporaneous statements given by Mr Ding and Summer’s owner on the evening of the attack made no mention of Vinnie baring his teeth and/or growling at Rocky immediately before the attack. One might expect those would have been key matters to raise in the statements given mere hours after the attack. Nevertheless, I note that in an email from Mr Ding to his counsel dated 9 March 2020, Mr Ding took issue with the (then) draft of the summary of facts, stating:

Under number 5 in the summary, “Rocky proceeded to attack the French Bulldog”.

17     France, above n 14, at [CPA335.02(2)] (footnotes omitted).

18     P (CA130/2016) v R [2016] NZCA 457 at [39], citing Lundy v R, above n 15, at [125].

This sounds like Rocky planned to attack from the beginning. The fact is they both approached slowly and sniffed at each other. Then the French Bulldog showed [his] teeth and Rocky attacked [him].

[34]   Accordingly, Mr Ding’s proposed evidence on the appeal was not the first time he had raised the question of Vinnie baring his teeth.

[35]   I was also prepared to assume that the evidence was “fresh”, in the sense that while it could have been put before the District Court Judge, Mr Ding’s counsel ought to have considered whether more changes should have been made to the summary of facts and/or whether evidence of an animal behavioural expert ought to have been secured. For the avoidance of doubt, I am not suggesting that there was in fact trial counsel error in this case. I am simply assuming for present purposes that Mr Ding could have persuaded me that that was so.

[36]   Ultimately however, and for the reasons outlined below, I was satisfied that even if all the evidence had been admitted and accepted, it would not have affected the outcome in this case. In other words, even if all the proposed evidence had been before the District Court Judge and accepted by her, the Judge would still have been right to conclude that no exceptional circumstances existed.

[37]   The suggested “constellation” of factors drawn from Mr Ding’s and Summer’s owner’s proposed evidence, coupled with Mr Vette’s expert opinion, could not in my view have given rise to exceptional circumstances. I consider it appropriate to take judicial notice of the fact that there will often be a range of dogs being walked at areas such as the Reserve, some on the lead, some off the lead; some large and some small; some playing “chase” or “fetch” with a ball; some being male and some female. It is reasonable to assume that there will be a mix of de-sexed and non de-sexed dogs. It is also reasonable to assume that various dogs will “meet and greet” each other in different ways: some playful, some cautious, and some in a more aggressive manner. As noted, Mr Vette states in his report that Vinnie’s suggested growl and showing of teeth are “all normal though undesirable behaviours that are natural and not uncommon” (emphasis added). In summary, therefore, none of the facts relied on in the proposed new evidence, either alone or perhaps more relevantly in combination,

are particularly unusual or uncommon, irrespective of the “chemical reactions” (my words, not Mr Vette’s) that they may have generated in Rocky on the day.

[38]   The likelihood of a wide range of dog behaviours in circumstances such as those that occurred at the Reserve on 17 November 2019 is no doubt the reason for the overriding need and indeed obligation for a dog owner to keep their dog under control at all times,19 and for it being a strict liability offence to be the owner of a dog that attacks a person or certain other animals.

[39]   For completeness, I observe that I do not read the Court of Appeal’s judgment in Hill as saying that expert evidence in a dog destruction case will never be relevant and helpful. But it was not seriously in dispute in this case that aspects of Mr Vette’s evidence were irrelevant on the approach in Hill, namely those pertaining to events that occurred after the attack (such as Rocky having been de-sexed and Mr Vette’s assessment of Rocky’s social behaviour with his three dogs at a later date). So too any references to Rocky’s history prior to the attack. That being said, Mr Vette’s expert opinion on the circumstances of the attack itself does not offend the principles laid down in Hill concerning pre- and post-attack behaviour. Nevertheless, that evidence risks falling into 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”, a course eschewed by the Court of Appeal in Hill.20

[40]   For these reasons, I was clear in my view that the application to adduce the new evidence ought to be dismissed.

[41]   As flagged at the outset of this judgment, Mr Goodwin responsibly acknowledged that in the absence of the new evidence, there was limited scope to challenge the District Court Judge’s decision to make a dog destruction order. That must be right. There is no basis to suggest that the Judge erred in her approach to the issue.

19     Dog Control Act 1996, s 5(1)(b).

20     Auckland Council v Hill, above n 9, at [75].

Result and concluding observations

[42]The appeal is accordingly dismissed.

[43]   Finally, I record that I reach this result with some reluctance, and sympathy for Mr Ding and his family, and Rocky. In this context, I respectfully agree with Isac J’s views expressed in a recent dog destruction order appeal, Adams v South Taranaki District Council, as to the potential for review of the approach to dog destruction orders, and the somewhat more nuanced approach taken in some other jurisdictions.21

Fitzgerald J

21     Adams v South Taranaki District Council [2021] NZHC 3254 at [49]–[52].