Evans v Auckland Council
[2020] NZHC 2266
•1 September 2020
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 the appellant and her son Paris Evans guilty, entered convictions, and imposed:2
(a)a fine of $750, of which 50 per cent was to be paid to Auckland City Council (the Council);
(b)court costs of $130.00; and
(c)a reparation order for $949 to cover veterinary bills ($635), a medical bill ($64) and emotional harm ($250); and
[7] The Judge also made an order pursuant to s 57(3) of the Act, for the destruction of Kaos. Section 57(3) 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.
The appellant now appeals against the order for the destruction of Kaos.3
Approach on appeal against sentence
[8] An appeal against sentence is governed by the Criminal Procedure Act 2011. Section 250(2) provides that the Court must allow an appeal against sentence if 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.4
2 Auckland City Council v Evans [2020] NZDC 5092.
3 The appellant’s son and co-defendant, Mr Paris Evans, has not appealed the District Court decision.
4 Criminal Procedure Act 2011, s 250(3).
[9] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.5 As such, the measure of error that must be shown, is that the sentence is “manifestly excessive”.6 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence was reached.
Submissions
For the appellant
[10] The appellant is self-represented. She did not file any written submissions but made brief oral submissions at the hearing of her appeal. In her Notice of Application for Leave to Appeal the appellant says her appeal is brought on the grounds that Kaos is an important part of her life and she loves him very much.
[11] In her oral submissions Ms Evans said that a good friend of hers had taken Kaos for a walk on the morning of 30 August 2019 and, as Ms Evans had told her friend that she was planning to go to her parents’ address in Manurewa to visit her son who was staying there, her friend had decided to take Kaos there and leave him to be collected by Ms Evans.
[12] Ms Evans explained that her son Paris was asleep in the house at the time, and that her brother, who she says suffers mental illness, was also at the house and he had seen Kaos become excited when he saw Rubin being led past the address. Ms Evans says that her brother foolishly encouraged Kaos to go after Rubin, and that Kaos had exited the house via an open door chasing after him.
[13] Ms Evans says she has owned Kaos since he was around three months old and that he is now five years old, and is a very large dog. She explained that Kaos had been purchased to be a companion for her youngest son, who had been injured in a motorcycle accident. She says that having Kaos had helped her youngest son and that
5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].
6 At [26] – [27].
he loves Kaos very much. She says that Kaos has never attacked anyone previously and has always been good around children. She says that Kaos has never been taught to be, or encouraged to be, aggressive, and she assures the Court that she will undertake a course for dog owners and ensure that he is not left in a situation where he would be able to repeat the aggressive behaviour he exhibited on the occasion of the attack.
For the respondent
[14] Ms Schaaf, for the Auckland Council as respondent, submits that it was appropriate for Judge Recordon to impose a destruction order in this case, as the circumstances of the offence were not exceptional.
[15] Ms Schaaf notes that the leading authority on the s 57(3) assessment as to whether the circumstances of a dog attack are exceptional is the Court of Appeal judgment in Auckland Council v Hill in which the Court said:7
[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 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.
[16] Ms Schaaf notes the Court of Appeal’s definition of “exceptional” as being “an unusual or one-off occurrence that is most unlikely to be repeated”.8 An example of an exceptional circumstance might be where dog B attacks dog A, and dog A then attacks dog B to protect dog A’s owner.9 An argument that an attack was the result of a one-off failure of an otherwise responsible dog owner to control their dog will not
7 Auckland Council v Hill [2020] NZCA 52.
8 Auckland Council v Hill [2020] NZCA 52 at [64].
9 Auckland Council v Hill [2020] NZCA 52 at [76].
amount to an exceptional circumstance.10 The Act requires dog owners to maintain control of their dogs at all times.11 The assumption behind the statute is that:12
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. Lesser precautions — classification of the dog as menacing or dangerous, with the constraints that imposes — will usually be inadequate to remove the risk of a future attack.
[17] In respect of the second step described in Hill, Ms Schaaf submits that there was nothing exceptional about the circumstances of the offence because the victim should have been able to walk her dog on a leash on a public footpath without being attacked. Counsel submits that the Court must not place weight on any submission that suggests the attack was the result of a one-off failure to confine Kaos to the property, nor one which suggests that Kaos will be better behaved in the future.
Analysis
[18]The Hill approach has been applied in three High Court cases:
(a)In Risdom v Auckland Council, the dog Jock forced its way out of its owner’s property through the fence and attacked another dog.13 The exceptional circumstances advanced were that Jock was blind in one eye, that he had undergone surgery earlier in the day and was still suffering the effects of anaesthesia, and had been deliberately let out of the address by a neighbour with whom his owner was in a dispute. Justice Jagose held that while the anaesthetic factor was unusual, it had not been shown that the anaesthetic after-effects had contributed to the occurrence of the attack. Justice Jagose also observed that Jock’s partial blindness and the existence of the dispute with a neighbour were both ongoing matters, so the risk of a repeat attack remained. The appeal was dismissed.
10 Auckland Council v Hill [2020] NZCA 52 at [78].
11 Section 5(1)(b).
12 Auckland Council v Hill [2020] NZCA 52 at [65].
13 Risdom v Auckland Council [2020] NZHC 905.
(b)In van der Veen v Christchurch City Council, the dog, Kyra, was at her owner’s property and barked at a passing dog.14 Her owner called Kyra back, but Kyra pushed through the fence and bit the other dog. On appeal, Kyra’s owner argued that Kyra could be rehabilitated and proposed that the dog be homed with a different owner with a fully fenced property. These suggestions were held not to be relevant to the s 57(3) inquiry. The appeal was dismissed.
(c)In Ingle v Auckland Council, the dog, Tyson attacked a woman on two separate occasions when she was walking past its owner’s property.15 There was landscaping work happening on the property during the first incident, so the dog could not properly be contained. The gate to the property had been left open by a third party in the second incident. These were not exceptional circumstances and the appeal was dismissed.
[19] Here the appellant has not presented any evidence regarding the circumstances leading to Kaos being taken to her parent’s address and as to the actions of her brother in encouraging Kaos to go after Rubin. Ms Evans offered that information in the course of making her oral submissions. Although that explanation is the sort of information that ought to have been the subject of an application for leave to adduce evidence for the appeal and detailed in sworn affidavits, even had that information been properly before the Court it would not alter the outcome of the appeal.
[20] 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.
14 van der Veen v Christchurch City Council [2020] NZHC 1534.
15 Ingle v Auckland Council [2020] NZHC 1164.
[21] 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).
[22] As I have noted, the Dog Control Act requires owners to keep their dogs under control at all times.16 The present case clearly demonstrates why that legal obligation is imposed on every owner of a dog. While Kaos has apparently been well behaved in the household of his owners, these events have shown him to be unpredictable, and capable of presenting a serious danger to other animals and their owners should a similar situation arise in the future. While his destruction will obviously be extremely sad for the appellant and her family, the public interest in being protected against attack by dangerous dogs must prevail, and requires that an order be made that he be put down.
Result
[23] The appeal is dismissed. The District Court order for Kaos’ destruction is upheld and confirmed.
Paul Davison J
16 Dog Control Act 1996, s 5(b).
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