Ketu v Auckland Council - [2020] NZHC 3338

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…

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 3338
Decision Date: 15 December 2020

CaseChat Overview and Summary

Mariah Ketu has appealed the decision of the District Court to order the destruction of her dog, Pukk, who was found to have attacked a member of the public. The dog had been seized following the incident and the District Court found Ms Ketu guilty of being the owner of a dog that attacked a person. Ms Ketu appealed the destruction order but filed her appeal out of time. The court granted leave to appeal out of time and remitted the matter to the District Court for rehearing.

The court considered whether the circumstances of the attack were exceptional. Under section 57(3) of the Dog Control Act 1996, the court must order the destruction of the dog unless the circumstances of the offence were exceptional and did not warrant destruction of the dog. Ms Ketu argued that the circumstances were exceptional due to the emotional and stressful situation her family was in at the time of the attack. Ms Ketu's sister-in-law had sent a text message indicating she no longer wished to live, which led to Ms Ketu and her partner rushing to their sister-in-law's house in a state of panic. Ms Ketu believed Pukk left the house in search of them, attacking a passerby in the process. Ms Ketu argued that the emotional circumstances amounted to exceptional circumstances that warranted not ordering the destruction of Pukk. The court found that there was insufficient information before it to determine whether the circumstances were indeed exceptional.

The court quashed the destruction order and directed the matter be reheard by the District Court. On rehearing, Ms Ketu must 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. Ms Ketu must also 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. It is a matter for Auckland Council as to whether Pukk is released on conditions pending the outcome of the rehearing.

Orders