Easthope v Auckland Council
[2018] NZCA 234
•3 July 2018 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA49/2018 [2018] NZCA 234 |
| BETWEEN | TERENCE EASTHOPE |
| AND | AUCKLAND COUNCIL |
| Hearing: | 21 June 2018 |
Court: | Brown, Williams and Duffy JJ |
Counsel: | S P H Elliott for Applicant |
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 difficult test for a dog owner to surmount and requires the circumstances to be unique, special or substantively unusual, though not necessarily extreme.[4]
[3]Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005.
[4]At [40].
Three aspects of the law were identified by Mr Easthope as requiring clarification so as to qualify as matters of public importance:
(a)Whether the so-called “two-stage” approach in s 57(3) must be assessed in a linear fashion?
(b)Whether the Court is entitled to consider post-offence matters?
(c)What amounts to exceptional circumstances?
Parties’ submissions
With reference to those three issues Mr Elliott for Mr Easthope submitted in a thoughtful argument that:
· While a number of the Judges (including Katz J in the present case) have construed s 57(3) as first requiring a consideration of whether the circumstances of the offence are exceptional and only if that is so proceeding to determine whether destruction of a dog was warranted, there is nothing in the wording of the subsection that requires that. Indeed it was submitted that in determining the first question some Judges have been prepared to look through to the second question, the primary focus of which is a predictive assessment of whether a dog is likely to behave in the same manner again.
· Whereas in Halliday Heath J accepted that events post-dating the offence should be excluded from consideration,[5] such matters could be highly relevant if the overall concern of the Court is whether another attack might occur.
· Despite the observation of Heath J concerning exceptional circumstances[6] having been cited in almost every case since Halliday, in fact the approach of individual Judges has varied greatly as to the circumstances which satisfy that threshold. It was submitted that the circumstances in Halliday were not dissimilar to the present case (the attack occurring as a result of the back and front doors being left open).
[5]At [61].
[6]At [4] above.
Emphasising that public safety was at the heart of the legislation, Mr Tamatea for the Auckland Council drew attention to the statutory objects in s 4 and to the obligations of dog owners both in s 5 and in the hierarchy of offences within ss 52 to 64 of the Dog Control Act. He also noted references to the fact of the previous behaviour of both Mr Easthope in the High Court decision[7] and of Buddy in the sentencing notes of the District Court Judge.[8] Mr Tamatea submitted that none of the three issues advanced on behalf of Mr Easthope disclosed a seriously arguable error of law, nor did they raise an issue of general principle or importance that had broad application beyond the circumstances of the particular case.
Discussion
[7]Easthope v Auckland Council, above n 2, at [15](b).
[8]Auckland Council v Easthope, above n 1, at [17].
The importance of context has often been emphasised. The circumstances of dog attacks and hence of offences by dog owners under s 57(2) will be infinitely varied. So far as the third proposed issue, variability in decision making, is concerned, we doubt that any greater assistance can be provided to first instance courts in assessing exceptional circumstances than via the non-exhaustive list of indicative factors in Halliday. Certainly there are no aspects of the present case which would warrant consideration of any variation to or extension of those factors.
With reference to the second area of law said to require clarification, it is true that since Halliday different approaches have been taken to the relevance of events post-dating the offence. For example, the approach taken by Woodhouse J in Korewha v Whangarei District Council[9] may be compared with that in McClintock v Taupo District Council.[10]
[9]Korewha v Whangarei District Council [2017] NZHC 3178 at [40].
[10]McClintock v Taupo District Council [2017] NZHC 58, [2017] NZAR 272 at [9].
However the significance of any difference in approach is irrelevant for the present case. In the District Court the Council submitted that there was no evidence that Mr Easthope had improved his property or put any new systems in place to prevent something of the same kind happening in the future, nor had Buddy completed any obedience training or behavioural assessment.
Having concluded that the circumstances of the offence were not exceptional, Judge Manuel stated:[11]
But there is another problem. Even though the dog did not appear to pose a great risk before the attack, without any additional obedience training or modifications to the property or strategies in place to ensure that this does not happen again, the underlying principle that once a dog has attacked it will attack again has not been displaced.
[11]Auckland Council v Easthope, above n 1, at [19].
Consequently the proposed second issue of law would be of no avail for Mr Easthope’s proposed appeal.
The same consideration applies with reference to the linear proposition in terms of the dual components of s 57(3). The two factors are cumulative. The circumstances of the offence must be exceptional. We agree with the conclusions of both Judge Manuel and Katz J that the general circumstances of the attack, insofar as they involved a dog escaping through an open gate and attacking another animal, were unexceptional. At Katz J observed, for a regular and invited visitor to forget to close a gate does not constitute exceptional circumstances but is well within the ordinary run of things.
We conclude that, even if one or more of the issues proposed by Mr Elliott may arise for consideration in an appropriate case, the present case is not apt because the determination of those issues would not make any difference to the conclusion in the courts below. In terms of s 253(3) of the Criminal Procedure Act the proposed appeal does not “involve” any of those three matters in the sense that on the facts the proposed appeal does not “give rise” to them.[12] Furthermore we accept the submission for the Auckland Council that none of them amounts to a matter of general or public importance.
Result
[12]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
The application for leave for a second appeal is declined.
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