Ketu v Auckland Council
[2020] NZHC 3338
•15 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2020-404-000435
[2020] NZHC 3338
BETWEEN MARIAH KETU
Plaintiff
AND
AUCKLAND COUNCIL
Defendant
Hearing: 8 December 2020 Appearances:
Appellant in Person
F Mohammed for Respondent
Judgment:
15 December 2020
JUDGMENT OF DUFFY J
This judgment was delivered by me on 15 December 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Auckland Council
KETU v AUCKLAND COUNCIL [2020] NZHC 3338 [15 December 2020]
[1] Ms Ketu was charged with being the owner of a dog that attacked a person.1 She was found guilty after a formal proof hearing and convicted in the District Court on 22 June 2020. On 10 September 2020, Ms Ketu was sentenced to pay: 2
(a)a fine of $1,000;
(b)Court costs of $130; and
(c)emotional harm reparation of $500.
[2]An order was also made for Ms Ketu’s dog, Pukk, to be destroyed.
[3] Ms Ketu appeals against the destruction order. At the hearing she abandoned the appeal against the quantum of emotional harm reparation ordered.
[4] Ms Ketu filed her appeal four working days out of time. Consequently, leave of the court is required to pursue this appeal under s 248(4) of the Criminal Procedure Act 2011. Given that the delay is not particularly lengthy and there is no prejudice to the respondent, leave to appeal out of time is granted.
Background facts
[5]The summary of facts records the following.
[6] Ms Ketu is the owner of Pukk, a brindle and white coloured male Staffordshire Bull Terrier cross Mastiff.
[7] Around 6.35 pm on 29 May 2019, the complainant was walking home on Township Road. She noticed a dog, now known to be Pukk, on the opposite side of the road.
[8] Pukk was barking and growling at the complainant. Pukk crossed the road and was approximately one to two metres away from the complainant. Pukk was moving forwards and back, continuing to bark and growl at the complainant. The complainant told Pukk to go home. Pukk suddenly lunged at the complainant. The complainant
1 Dog Control Act 1996, s 57(2).
2 Auckland Council v Ketu [2020] NZDC 21541.
was able to move out of the way. Pukk circled the complainant and lunged at her, biting her backpack. Pukk bit and shook the complainant’s bag with enough force to pull the bag off the complainant’s right shoulder. The complainant was shouting at Pukk. Pukk circled and charged towards the complainant again but stopped halfway and crossed the road again.
[9] The complainant picked up her bag and proceeded towards her house. Pukk was seized and subsequently released on conditions pending the outcome of the prosecution.
The District Court decision
[10] There have been a series of delays in hearing this matter. On 11 September 2019, Ms Ketu failed to appear at the Waitakere District Court for first appearance. On 2 October 2019, Ms Ketu appeared and sought a further remand without plea for time to seek legal advice and/or representation. On 16 October 2019, Ms Ketu appeared and entered a not guilty plea. On 26 November 2019, the case review hearing was adjourned as Ms Ketu advised she was unable to attend Court due to work commitments. On 11 February 2020, Ms Ketu did not appear. The matter was adjourned to 21 May 2020 due to COVID-19 restrictions. Ms Ketu, again, did not appear.
[11] On 22 June 2020, Ms Ketu failed to appear, and the Court proceeded with a formal proof hearing. Judge Jelas found the charge proved and Ms Ketu was convicted.
[12] Judge Jelas adjourned the sentencing to 25 August 2020. Ms Ketu failed to appear at the sentencing hearing. The sentencing was adjourned a final time to 10 September 2020 for Ms Ketu to appear.
[13] Again, Ms Ketu did not appear for sentencing. Judge Glubb, after detailing the procedural history and summarising the facts, noted the attack was “utterly unprovoked” and “clearly highlights the risk that this dog presents to the community”.3
3 Auckland Council v Ketu, above n 2, at [4].
The Judge considered there were no mitigating factors and there was to be no discount for a guilty plea as the case went to a formal proof hearing.4 Finally, the Judge noted he was satisfied there was no exceptional circumstances relevant to Pukk and made an order for the destruction of the dog.
Appeal against sentence
[14] Section 250(2) of the Criminal Procedure Act says that an appeal against sentence must be allowed if for any reason there is an error in the sentence that was imposed on conviction and a different sentence should be imposed.5
The arguments on appeal
[15] Ms Ketu represented herself on appeal. She has filed a notice of appeal and a letter detailing what she says are the exceptional circumstances relating to the attack. The letter from Ms Ketu sets out that on the day of the attack, Ms Ketu and her partner received a text message from her partner’s younger sister saying she no longer wished to live. They believed this to be a credible threat to the young woman’s life and responded accordingly. In the state of panic to get to her sister-in-law’s house, Ms Ketu cannot recall if the ranch slider door to her home was closed properly, however, she does recall locking the front gate and the deck gate. It is believed that Pukk pushed his nose through the gap in the ranch slider door to open it further and then left the property via the low sitting front gate.
[16] Ms Ketu’s letter goes on to say that it is not in Pukk’s nature to aggressively lunge at a person. Ms Ketu believes her, and her partner’s hasty exit in a highly charged emotional state contributed to Pukk leaving the property in search of them, as normally he would be taken with them. Put another way, she says that the extremely tense and emotional circumstances were sensed by Pukk and led him to attack a person that day. She says that this amounts to exceptional circumstances and accordingly, there should be no order for Pukk’s destruction.
4 At [5].
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].
[17] Ms Mohammed, counsel for Auckland Council, submits the circumstances advanced by Ms Ketu do not meet the high threshold for exceptional circumstances required by Auckland Council v Hill.6
Discussion
[18] Judge Jelas made an order for Pukk’s destruction pursuant to s 57 of the Dog Control Act 1996 which provides that:
(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.
…
[19] As already noted above, prior to sentencing Judge Jelas convicted Ms Ketu, as Pukk’s owner, under s 57(2). Once the conviction was entered, s 57(3) was engaged and provided that destruction was mandatory unless the Court was satisfied that the circumstances of the offence were exceptional. The Court of Appeal in Auckland Council v Hill set out a two-step approach for assessing whether the circumstances of a dog attack are exceptional: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. …
6 Auckland Council v Hill [2020] NZCA 52.
7 See above.
[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.
[20]Recently, Campbell J in Kumar v Auckland Council noted that:8
[30] For circumstances to be “exceptional” they must be “an unusual or one-off occurrence that is most unlikely to be repeated”. Section 57(3) is based on the idea that where a dog has attacked once, it will attack again in similar circumstances. The section is focussed on ensuring that there is no real risk that the dog will attack again. If the circumstances of the attack are sufficiently exceptional that there is only a very remote chance the dog will pose a threat to public safety, the appeal will succeed. Otherwise, it will fail and the dog must be destroyed.
[21] At the hearing before me, Ms Ketu informed me that in the time since the attack her sister-in-law had tragically and unfortunately completed suicide, and that it was as a result of that that she was unable to appear in the District Court.9 From the time of the incident the family had been very concerned about the mental wellbeing of the sister-in-law. The death certificate shows she died aged 23 years, two weeks before the defended hearing.
[22] Ms Ketu’s inability to appear before Judge Jelas at the time of sentencing meant the Judge was unlikely to have had the information that Ms Ketu provided to me by way of letter, meaning that she was unaware of the emotionally charged circumstances that immediately preceded the attack. With regard to the statements of Campbell J in Kumar, I am of the view that the circumstances described by Ms Ketu, on the face of them, raise doubts as to whether or not there were exceptional circumstances that could have warranted not ordering the destruction of the dog Pukk. There is, however, insufficient information before this Court to determine whether or not the circumstances were indeed exceptional.
8 Kumar v Auckland Council [2020] NZHC 3023 (footnotes omitted).
9 Ms Ketu provided a copy of her sister-in-law’s death certificate confirming this.
[23] In these circumstances, I quash the destruction order and direct the matter be reheard by the District Court.10
[24] On rehearing Ms Ketu will need to provide the District Court with all relevant information, including affidavit evidence from herself and other family members outlining the events that took place prior to the attack and explaining the psychological pressure the family was under on the day of the incident and subsequently. The latter evidence will help to explain why Ms Ketu failed to appear in the District Court on various occasions. In addition, Ms Ketu will need to provide relevant expert evidence from an animal behaviour expert that may illustrate the impact the emotional surroundings on the day of the incident may have had on Pukk’s behaviour.11
Result
[25] The appeal is allowed to the extent it relates to the order for the destruction of Pukk and is remitted to the District Court for rehearing on this matter.
[26] It is a matter for Auckland Council as to whether Pukk is released on conditions pending the outcome of the rehearing.
Duffy J
10 See Rotorua District Council v O’Connell AP27/98, 18 June 1998 where Paterson J remitted a decision to the District Court where there was insufficient information before the Court to determine matters on appeal. See also Paraha v Manukau City Council HC Auckland CRI-2006- 404-000211, 19 October 2006 where this Court preferred the matter be remitted to the District Court in circumstances where there was insufficient information surrounding the circumstances of the offence, namely that it was unclear whether a burglar had let the dogs out of the property prior to the attack.
11 The expert would need to have qualifications and experience in canine behaviour and to offer an opinion on whether the emotionally charged response of Pukk’s owners to the threatened suicide could lead to him behaving in the way he did, and whether this was likely to be one-off behaviour. For the expert to be able to form this opinion he or she would need to have read evidence from the appellant and her partner as to what the household was like on the day of the incident.
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