Easthope v Auckland Council - [2018] NZCA 234

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA49/2018
[2018] NZCA 234

BETWEEN	TERENCE EASTHOPE Applicant
AND	AUCKLAND COUNCIL Respondent

Hearing:	21 June 2018
Court:	Brown, Williams and Duffy JJ
Counsel:	S P H Elliott for Applicant V J Tamatea and A R Govind for Respondent
Judgment:	3 July 2018 at 3.30 pm

JUDGMENT OF THE COURT

The application for leave for a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Following an incident where Mr Easthope’s dog Buddy escaped from his property Mr Easthope pleaded guilty to one charge under s 57(2) of the Dog Control Act 1996 of being the owner of a dog that attacked another dog. At sentencing in the District Court at Auckland on 12 September 2017 an order was made under s 57(3) for the destruction of Buddy.[1] Mr Easthope’s appeal to the High Court against the destruction order was dismissed.[2]
[1]Auckland Council v Easthope [2017] NZDC 20640.
[2]Easthope v Auckland Council [2017] NZHC 3142.
Mr Easthope seeks leave under s 253 of the Criminal Procedure Act 2011 for a second appeal to this Court. Section 253(3) provides that the Court must not give leave for a second appeal unless satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

Mr Easthope relies on the first limb. In order to appreciate the matters he advances as being of public importance it is necessary to refer to the statute and some relevant authority.

Section 57 of the Dog Control Act relevantly provides:
Dogs attacking persons or animals
(1)A person may, for the purpose of stopping an attack, seize or destroy a dog if—
(a)the person is attacked by the dog; or
(b)the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.
(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding $3,000 in addition to any liability that he or she may incur for any damage caused by the attack.
(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.
The decision of Heath J in Halliday v New Plymouth District Council,[3] which has commonly been regarded as a guideline authority on s 57(3), sets out a non‑exhaustive list of indicative factors that may be relevant to the determination of whether exceptional circumstances exist such that the making of a destruction order is not required. Heath J considered the term “exceptional” creates a very…

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: [2018] NZCA 234
Decision Date: 3 July 2018 at 3.30 pm

CaseChat Overview and Summary

In the case of Easthope v Auckland Council, the applicant, Terence Easthope, sought leave to appeal for a second time against a decision that mandated the destruction of his dog, Buddy, following an incident where the dog escaped and attacked another dog. The initial proceedings took place in the District Court, which was upheld by the High Court. The Court of Appeal was tasked with deciding whether the proposed appeal involved a matter of general or public importance or if a miscarriage of justice might occur without a second appeal.

The applicant argued that the appeal involved three key issues of law that were matters of public importance: whether the assessment under section 57(3) of the Dog Control Act 1996 must be conducted in a linear fashion, whether the court can consider post-offence matters, and what constitutes "exceptional circumstances." The respondent, Auckland Council, countered that these issues did not amount to a seriously arguable error of law or raise a matter of general principle.

The Court of Appeal determined that the proposed issues did not apply to the facts of the present case. The Court found that the circumstances of the offence were not exceptional, as there was no evidence of preventive measures being taken to avoid future incidents. Additionally, the Court held that the dual components of section 57(3) are cumulative, and the general circumstances of the attack were not exceptional. The Court concluded that even if the proposed issues might be relevant in other cases, they did not affect the outcome in this instance. Consequently, the application for leave for a second appeal was declined.

The Court of Appeal dismissed the application for leave for a second appeal, affirming the decisions of the lower courts that the destruction order for Buddy was appropriate. The Court found that the proposed issues of law did not have any relevance to the specific circumstances of this case, and thus did not qualify as matters of general or public importance.

Orders