Evans v Auckland Council - [2020] NZHC 2266

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000172

[2020] NZHC 2266

BETWEEN
ENVY EVANS

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 31 August 2020

Appearances:

Appellant in person

V L Schaaf for Respondent

Judgment:

1 September 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 1 September 2020 at 4:45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel:
V L Schaaf, Auckland Council

Introduction

[1] This is an appeal against a dog destruction order made by Judge Recordon in the Manukau District Court on 24 January 2020 in relation to a five year old male American Bulldog named “Kaos”. Kaos is owned by Ms Envy Evans1 (the appellant).

[2] On 30 August 2019 Kaos had been taken for a walk by a friend of the appellant and, rather than being returned to the appellant’s own address, had been left at the appellant’s parents’ address where the appellant’s son Paris was staying. It appears that although Kaos was left inside the house, an external door was left open. At around
10.15 am another dog, named “Rubin”, was being walked on a leash by its owner on the footpath outside the address where Kaos had been left.

[3] From inside the house, Kaos saw Rubin passing by and gave chase. Rubin’s owner saw Kaos coming and tried to run away, but Kaos quickly caught up with them, seized Rubin by the head and locked on to him. Rubin’s owner grabbed Rubin and tried to get Kaos to release Rubin by punching Kaos, but Kaos would not let go. In the course of this struggle Kaos bit Rubin’s owner’s hands. Rubin’s owner was screaming and a bystander, seeing the attack, called for help.

[4] A male from the appellant’s parent’s house responded to the screaming and calls for help. When he arrived he took hold of Kaos and tried to pull him away from Rubin, but Kaos would still not let go, causing Rubin and his owner to be dragged along the footpath. Eventually however, Kaos was separated from Rubin and taken away and placed in a car parked in the driveway of the appellant’s parents’ address.

[5] Rubin’s owner was taken to hospital and treated for puncture wounds on both hands and grazes on her torso from being dragged along the footpath. Rubin sustained puncture wounds to his left leg and ear and required veterinary treatment and surgery for some of the injuries.

1 Ms Envy Evans is also known as Ms Kelly Evans.

[6] The appellant and her son Paris were jointly charged under s 57(2) of the Dog Control Act 1996 ( the Act) with owning a dog that attacked a domestic animal. When there was no appearance at the Manukau District Court by the appellant or her son Paris on 24 January 2020, the prosecution of the charge proceeded by way of a formal proof hearing. Judge Recordon found both…

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: [2020] NZHC 2266
Decision Date: 1 September 2020

CaseChat Overview and Summary

Envy Evans has appealed against the order made by Judge Recordon of the Manukau District Court that her five-year-old male American Bulldog, Kaos, be destroyed. The order was made pursuant to s 57(3) of the Dog Control Act 1996 following a formal proof hearing. Judge Recordon found the dog had attacked another domestic animal and was satisfied that the circumstances of the offence were not exceptional. The appeal against sentence is governed by the Criminal Procedure Act 2011. The court must allow an appeal against sentence if it is satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the court must dismiss the appeal. The Court of Appeal has confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957. The measure of error that must be shown is that the sentence is "manifestly excessive". The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

The appellant submitted that Kaos was an important part of her life and she loved him very much. She explained that Kaos had been purchased to be a companion for her youngest son, who had been injured in a motorcycle accident. She said that having Kaos had helped her youngest son and that he loved Kaos very much. She said that Kaos had never attacked anyone previously and had always been good around children. She assured the court that she would undertake a course for dog owners and ensure that Kaos was not left in a situation where he would be able to repeat the aggressive behaviour he exhibited on the occasion of the attack. The respondent submitted that it was appropriate for Judge Recordon to impose a destruction order in this case, as the circumstances of the offence were not exceptional. The circumstances of Kaos' attack on Rubin do not amount to exceptional circumstances falling within s 57(3). The attack was completely unprovoked and Kaos displayed particularly aggressive behaviour which he maintained despite the efforts of Rubin's owner and the male from the house who tried to stop him. Kaos' action of biting and holding Rubin in his jaws notwithstanding all efforts to get him to release his victim demonstrate both the nature of his aggression on this occasion and the risk he poses to other domestic animals and to other people, including children, in the future of repeating similar behaviour. Kaos' history of good conduct towards other animals, children and people prior to the events of his attack on Rubin are not relevant so far as the question of whether his attack on this occasion was made in circumstances of an exceptional nature. Similarly, any steps that Ms Evans proposes to take regarding undertaking a dog owner's course of training or by ensuring Kaos is not able to get out of the property in which he is kept, are also not relevant to the issue of whether the circumstances of this attack amount to exceptional circumstances in terms of s 57(3).

The appeal is dismissed. The District Court order for Kaos' destruction is upheld and confirmed.

Orders