Easthope v Auckland Council - [2018] NZHC 3142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-346 [2017] NZHC 3142

BETWEEN
TERRENCE EASTHOPE

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 12 December 2017

Counsel:

J B Samuel for appellant
A R Govind for respondent

Judgment:

14 December 2017

JUDGMENT OF KATZ J

This judgment was delivered by me on 14 December 2017 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: A R Govind, Auckland Council, Auckland
J B Samuel, Jennifer G Connell & Associates, Auckland

EASTHOPE v AUCKLAND COUNCIL [2017] NZHC 3142 [14 December 2017]

Introduction

[1] Terrence Easthope’s dog, Buddy, attacked a toy poodle cross dog called Louie. Louie was seriously injured. Although strenuous efforts were made to save him, he ultimately had to be put down due to post-surgical complications.

[2] Mr Easthope pleaded guilty to a charge under s 57(2) of the Dog Control Act

1996 (“Act”) of being the owner of a dog that attacked another domestic animal. Judge A M Manuel ordered that Buddy be destroyed. In addition, she fined
Mr Easthope $250 and ordered that he pay veterinarian costs of $5,000.

[3] Mr Easthope appeals against the order for destruction of the dog. He argues that the circumstances relating to Buddy’s attack were exceptional and that the order that he be destroyed was not warranted.

Facts

[4] Judge Manuel summarised the facts as follows:

[5] … The defendant’s dog is a tan coloured male Labrador-cross who is six years old. On 1 January 2017 the complainant was feeding rabbits at a property in Mount Eden. She had a dog with her named Louis, a toy poodle cross. As she left the property she saw the defendant’s dog rushing towards her and Louis. The defendant’s dog attacked Louis, biting him on his neck and front right leg. The defendant’s dog picked Louis up and shook him from side to side. The complainant tried to pull Louis free, but to no avail. The defendant came over to assist. He finally managed to get his dog off Louis and contain his dog in his own property. The complainant took Louis to the Animal Emergency Centre for treatment. He had suffered serious injuries and required surgery. Unfortunately, there were complications post-surgery and on 23 January 2017 Louis was put down.

Applicable law

[5] Section 57 of the Act relevantly provides:

57 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 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),…

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] NZHC 3142
Decision Date: 14 December 2017

CaseChat Overview and Summary

Terrence Easthope appeals against the order for the destruction of his dog, Buddy, who attacked and killed a toy poodle cross dog called Louie. The District Court found Mr Easthope guilty of being the owner of a dog that attacked another domestic animal and ordered Buddy's destruction, a fine of $250, and that Mr Easthope pay $5,000 in veterinarian costs. Mr Easthope argues that the circumstances of Buddy's attack were exceptional and that the order for destruction was not warranted.

The court examined whether the circumstances of the offence were exceptional, considering factors such as the nature of the attack, the owner's history, whether the dog had behaved in this way in the past, the steps taken by the owner to prevent such an attack, and the reasons why the steps taken did not prevent such an attack from occurring. The court concluded that the circumstances of the offence were not exceptional because the incident was not unique or substantially unusual. The dog escaped through an open gate left by a regular visitor, which is not an exceptional circumstance.

The court also found that it was unnecessary to consider whether the circumstances warranted destruction of the dog, as the first stage of the inquiry had already been resolved. Finally, the court dismissed Mr Easthope's objection to the compensation order, clarifying that the fine and compensation are separate issues and that the Judge had not erred in imposing both.

The appeal was dismissed, and the order for the destruction of Buddy stands.

Orders