Jorion v Kapiti Coast District Council HC Palmerston North CRI 2010-454-22

[2010] NZHC 1411

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-454-22

GUY ALAIN JORION

Appellant

v

KAPITI COAST DISTRICT COUNCIL

Respondent

Hearing:         3 August 2010

Counsel:         S De Vorms for appellant

J T Parry for respondent

Judgment:      4 August 2010

RESERVED JUDGMENT OF DOBSON J

[1]      This is an appeal against an order made in the District Court at Levin on

2 June 2010 under s 57(3) of the Dog Control Act 1996 for the destruction of a dog belonging to the appellant, Mr Jorion.

[2]      The provisions of s 57 apply, among other things, to attacks by dogs on persons, stock, poultry, domestic animals or protected wildlife.  In the event that the Court is satisfied that an attack of this type has occurred, if the dog has not already

been destroyed:

JORION V KAPITI COAST DISTRICT COUNCIL HC PMN CRI-2010-454-22  4 August 2010

...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.

[3]      The appeal is a general one under s 115 of the Summary Proceedings Act

1957 so that it proceeds as a re-hearing.  However, being an appeal from the exercise of the District Court’s discretion, the appellant must demonstrate that the Judge was plainly wrong or erred in principle.

[4]      The dog involved here is a Siberian Husky called Eve.   On the evening of

12 February 2010, the owner of a cat opened her front door to discover Eve and a Mastiff cross attacking her cat within her property.  Eve had the cat’s head in her mouth and the Mastiff had the cat by its legs.  Both dogs were pulling and shaking the cat.  Although the dogs stopped when the cat owner called out to them, the cat died shortly thereafter.

[5]      Mr Jorion admitted two charges in relation to his ownership of Eve, namely that  the  dog  was  not  under  proper  control  and  secondly that  it  had  attacked  a domestic animal.  On those convictions, he was fined and ordered to pay solicitors’ costs and Court costs, the extent of which is not challenged on appeal.

[6]      Predictably, the major aspect of District Court Judge Ross’s considerations on sentencing related to whether there should be an order for Eve to be destroyed.

[7]      The Judge  applied a series of considerations specified by Heath J  in the decision in Halliday v New Plymouth District Council[1] as appropriate to the present terms of s 57(3).   By reference to those considerations, Judge Ross could not be satisfied that the circumstances of the offence were exceptional, and accordingly an order was made under s 57(3) for Eve to be destroyed.

[1] Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.

[8]      In Halliday, Heath J reviewed the history of s 57(3) and the rationale for changes of the test from “circumstances of the attack” to “circumstances of the offence”.     The  considerations  he  identified  were,  first,  the  use  of  the  term

“exceptional” was seen as creating a very difficult test for a dog owner to surmount.[2]

[2] At [40].

Secondly, the phrase “circumstances of the offence were exceptional” is itself qualified by the words “...and do not warrant destruction of the dog”.   The latter phrase was treated as focusing attention on the need for a predictive assessment of whether the dog is likely to behave in a similar way in the future.  I agree with that.

[9]      The legislative mischief being addressed by the rather Draconian provision in s 57(3) is the prospect of serious harm being caused by dogs.  Any damage done by a dog in the relevant attack cannot be undone, and the justification for ordering the destruction of a dog implicitly reflects the prospect that once a dog that has committed a qualifying type of attack, it is likely to do so again.  Section 57(3) can only be seen as having a preventative motive, rather than any punitive one.  Hence the onus to establish that the occasion in question was exceptional, sufficient to rebut what is a form of presumption that there is a realistic risk it would occur again.  The legislature gives such weight to this presumption that destruction of the dog has to occur unless, in respect of the offence, exceptional circumstances are made out.

[10]     The third consideration Heath J identified was the change from a focus on the circumstances “of the attack” to those “of the offence”.  This was seen as attributing potential relevance to the prior history of the dog, and potentially also the mode of control of the dog by its owner.

[11]     Fourthly, because the focus is on “the offence”, matters occurring thereafter ought not to be taken into account.

[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.

[13]     Here,  Eve’s  apparently  benign  nature,  her  role  as  a  family  pet  and confirmation  of  her  friendly  interaction  with  children  cannot  count  for  a  lot. Although she may have been encouraged, or even put into an uncharacteristically competitive mood by the presence of the other dog, her conduct has demonstrated the capacity to kill a domestic animal, in what was a brutal attack.  Whatever credit could be due to her on account of her generally friendly nature cannot render the circumstances of the offence “exceptional”, if being in the company of another dog is potentially a sufficient trigger.

[14]     Nor is the absence of any history of attacks by the dog likely to constitute an exceptional circumstance.  The act does not contemplate dogs being given a second chance.  Relevant to this, the Judge was entitled to be concerned about a history of inadequate control of Eve.   The file reveals that she had been impounded seven times, had 17 complaints made about her, and Mr Jorion had had two warnings.  The local  authority  has  not  sought  an  order,  and  there  is  some  indication  that  the Council’s dog control personnel accept that previous dealings with Eve showed her to be of a friendly character.  Although the sequence was not made entirely clear, I gathered  from  counsel  that  the  stance  adopted  on  behalf  of  the  Council  was influenced by Mr Jorion’s commitment to effectively fence his property so that, if a destruction order was not made, Eve would not have the same ability to escape the property as has been the case previously.

[15]     It  appears  that  Eve  may  have  got  out  of  Mr Jorion’s  property  because someone else had left the back door to the property open.  This was a consequence of Mr Jorion leaving the door unlocked, allowing a friend to enter when he was not there.  There may have been some suggestion that Eve’s skills extended to getting herself out of the property, even if shut in.  Beyond the confines of the house, the property was inadequately fenced, which meant that once she left the house, she could also freely leave the property.   Mr Jorion’s subsequent endeavour to better fence the property cannot constitute an “exceptional circumstance” relative to the offence.  If there were otherwise exceptional circumstances, then in the second stage of evaluating whether destruction of the dog was not warranted, the relevance of secure fences to protect against a recurrence would be relevant.

[16]     Having fully reviewed all the circumstances that are potentially relevant, I am bound to concur with the District Court Judge in this case.   The threshold for an order under s 57(3) arose and it is not possible, on any view of the facts, to identify exceptional circumstances that would warrant withholding the order.  Accordingly, the appeal must be dismissed, and it is.

Dobson J

Solicitors:

Stephen De Vorms, Levin for appellant

Crown Solicitor, Palmerston North for respondent