Hunia v Rotorua District Council
[2014] NZHC 236
•21 February 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-463-000079 [2014] NZHC 236
BETWEEN PHILLIP HUNIA Appellant
ANDROTORUA DISTRICT COUNCIL Respondent
Hearing: 7 February 2014
Appearances: G Burt for Appellant
F Wood for Respondent
Judgment: 21 February 2014
JUDGMENT OF LANG J
[on appeal against order that dog be destroyed]
This judgment was delivered by me on 21 February 2014 at 11 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
HUNIA v ROTORUA DISTRICT COUNCIL [2014] NZHC 236 [21 February 2014]
[1] Mr Hunia pleaded guilty in the District Court to a charge of being the owner of a dog that had attacked a person.1 The charge was laid under s 57(2) of the Dog Control Act 1996 (“the Act”). On 16 September 2013, Judge Weir fined Mr Hunia
$500 and made an order that the dog be destroyed.2 Mr Hunia appeals against that
order.
Background
[2] The facts giving rise to the charge were set out in an summary of facts, with which Mr Hunia apparently took no issue. Mr Hunia filed an affidavit prior to the hearing in the District Court, and to some extent his evidence in that affidavit contradicted statements made in the summary of facts. In the absence of any request for a disputed facts hearing, I propose to proceed (as did the Judge) on the basis of the facts contained in the agreed summary.
[3] The summary records that on the afternoon of 22 March 2013, Mr Hunia was sitting in a bus shelter on a residential street in Rotorua. He had with him a tan male Labrador Rhodesian Ridgeback cross. The dog was restrained by a length of cable.
[4] The complainant approached the bus shelter from the right hand side. As the complainant rode past the shelter, Mr Hunia’s dog lunged out at him. The complainant attempted to swerve his bicycle around the dog, but the length of the cable restraining the dog was sufficiently long to enable the dog to reach him. The dog then bit the complainant on the left thigh. The complainant immediately swung around, and struck the dog on the nose. In doing so, he fell from his bike. The dog then ran back into the bus shelter, where Mr Hunia repeatedly kicked and punched it. Mr Hunia also
apologised to the complainant for the dog’s actions.
1 The dog in question was owned by Mr Hunia’s partner, but for present purposes he is to be treated as the owner because he had the dog in his possession at the material time: Dog Control Act 1996, s 2.
2 Rotorua District Council v Hunia DC Rotorua CRI-2013-063-001669, 16 September 2013.
[5] The complainant was subsequently taken to a medical centre, where a puncture wound to his leg approximately 30 millimetres in length was treated. The complainant also reported the incident to the police. When the police subsequently spoke to Mr Hunia, he told them that he had been walking home from a friend’s house and had stopped at the bus shelter to have a rest and a cigarette. He said that the attack on the complainant was an accident, and that the dog did not mean to bite the complainant.
Relevant principles
[6] Section 57 of the Act relevantly provides as follows:
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), 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.
...
[7] The issue in the present appeal is whether the Judge correctly concluded that the circumstances of Mr Hunia’s offending were not exceptional in terms of s 57(3), and that they did not warrant destruction of the dog.
[8] The meaning to be given to the closing words in s 57(3) has been the subject of discussion in several decisions of this Court. These include Halliday v New
Plymouth District Council,3 Orr-Walker v Auckland Council,4 and Jorion v Kapiti
3 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.
District Council.5 These and earlier cases establish that the words “exceptional circumstances” create a high threshold that the owner of a dog that has attacked a person will find difficult to meet.6 That phrase is qualified by the words “… and do not warrant destruction of the dog”. As a result, the section requires the Court to undertake a predictive assessment of whether the dog is likely to behave in a similar way in the future.7 In making that assessment, the Court is entitled to have regard to several factors. These may include the nature of the attack, the past history of the dog and its owner, and any reasons why preventive steps taken by the owner failed to prevent the attack occurring.8
[9] In Jorion v Kapiti District Council,9 Dobson J observed:
[12] It is implicit in Heath J’s analysis of s 57(3) that the two sets of considerations required are sequential. First, a dog owner resisting an order where a relevant attack has occurred must establish that the circumstances of the offence were exceptional. If that test is satisfied, then it is necessary to go on and consider whether those circumstances do not warrant destroying the dog. This means that, however exceptional the circumstances, if there remains a prospect that the dog would attack again, then its destruction would be warranted.
[10] Importantly, the Court has no residual discretion enabling it to decline making an order for destruction of the dog unless the circumstances of the offence qualify as being exceptional in terms of s 57(3).10
The appeal
[11] Counsel for Mr Hunia submits that the circumstances of the present offending are exceptional, because the dog in question is blind in the right eye. He submits that this is likely to have caused the dog to react in the way that it did when the complainant approached the bus shelter on his bicycle from the dog’s right hand
side. He submits that the dog’s disability is likely to have caused it to become
4 Orr-Walker v Auckland Council [2013] NZHC 1541.
5 Jorion v Kapiti District Council HC Palmerston North CRI-2010-454-22, 4 August 2010.
6 Peteru v Manukau City Council HC Auckland A70/00, 6 July 2000, Paterson J at [5]-[6];
Halliday v New Plymouth District Council, above n 3 at [40].
7 Halliday v New Plymouth District Council, above n 3; Jorion v Kapiti District Council, above n
5 at [8].
8 Halliday v New Plymouth District Council, above n 3 at [48].
9 Jorion v Kapiti District Council, above n 5.
10 Orr-Walker v Auckland Council, above n 4 at [20].
frightened by the sudden appearance of the complainant, and that the dog attacked the complainant acting on instinct.
[12] Counsel for Mr Hunia submits that the fact that the dog’s partial blindness is likely to have contributed to the attack amounts not only to an exceptional circumstance, but also that it lessens the culpability of the dog’s actions. For that reason, he argues that an order for the dog’s destruction was not warranted in the circumstances and that a lesser outcome was warranted. He points out, for example, that the District Council has the power under s 33A of the Act to classify the dog as a menacing dog. If the Council exercised that power, the dog would become subject to the restrictions in s 33E of the Act. These include a prohibition on the dog being outside a vehicle or cage unless it is appropriately muzzled so that it cannot bite.
Decision
[13] On its face, the present offending appears unexceptional. It involved the dog attacking and injuring an innocent passerby without prior warning or provocation. The length of the cable that was supposed to restrain the dog was obviously manifestly inadequate for the purpose.
[14] Counsel’s submission that the attack in the present case was prompted or contributed to by the dog’s partial blindness must, with respect, amount to speculation. There was nothing before the District Court, and there is nothing before this Court, to suggest that this was or might have been the case. Even accepting that it may have been a contributing factor, however, the submission does not greatly assist Mr Hunia’s cause. Before the Court could decline to make an order for the dog’s destruction, it would need to be satisfied that the circumstances giving rise to the present offending are unlikely to be repeated in the future. It is difficult to see how the Court could reach that conclusion in the present case, because the dog remains partially blind. It can therefore reasonably be anticipated that the dog will continue to act in accordance with its instincts when confronted with similar situations in the future. As a result, members of the public will remain at future risk of being attacked by the dog if they suddenly approach the dog from its blind side.
[15] Mr Hunia’s cause is hindered further by the fact that this particular dog has come to the attention of the authorities on no fewer than 19 previous occasions. These relate to incidents in which the dog has been found roaming the streets, and on some occasions has rushed at members of the public who were lawfully going about their business. Mr Hunia’s partner has received written warnings in respect of four such incidents in 2008 and 2009, and she was also issued with an infringement notice in 2010 after the dog rushed at a person. Four earlier infringement notices have been issued for roaming and barking. The sheer number of these earlier incidents suggests that Mr Hunia and his partner are unable to maintain proper control of the dog. It also suggests that the dog will continue to remain at risk of rushing and/or attacking members of the public in the future.
[16] Like the Judge, I do not consider that the circumstances of the offending are exceptional, or that they would justify the Court declining to make an order for the dog’s destruction.
Result
[17] The appeal against the order that the dog be destroyed is dismissed.
Lang J
Solicitors:
Lance Lawson, Rotorua
Davys Burton, Rotorua