Kumar v Auckland Council

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-404-000326

[2020] NZHC 3023

BETWEEN

ELVISH KUMAR

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:

06 November 2020

Appearances:

Appellant in person

F A Mohammed for the Respondent

Judgment:

16 November 2020

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 16 November 2020 at 4.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

F A Mohammed, Auckland Council Copy to:

Appellant

KUMAR v AUCKLAND COUNCIL [2020] NZHC 3023 [16 November 2020]

Introduction

[1]                 Mr Kumar was charged with being the owner of a dog that attacked a person.1 He pleaded guilty and was convicted in the District Court on 9 June 2020.2 He was sentenced to pay a fine of $400 and Court costs of $130, and the Judge ordered that Mr Kumar’s dog, Oscar, be destroyed.

[2]Mr Kumar appeals both his conviction and the destruction order.

Background facts

[3]                 Mr Kumar pleaded guilty to an agreed summary of facts, which I further summarise here.

[4]Mr Kumar is the owner of Oscar, a male American pit bull terrier cross.

[5]                 On 22 October 2019 the victim, an 11-year old boy, walked past Mr Kumar’s property. Oscar ran out and jumped on the boy, biting his arm (which he raised to cover his face) and his leg.

[6]                 Mr Kumar’s wife, Ms Devi, came out of the property and pulled Oscar away. Oscar got away and bit the victim on the hand. Eventually two adults from neighbouring properties came out and chased Oscar back to Mr Kumar and Ms Devi’s home, at which point Ms Devi secured Oscar on a chain.

[7]                 The victim was taken by ambulance to Middlemore Hospital. He had puncture wounds on his left arm and a gash on his left leg.

[8]                 Oscar had previously attacked another person at the property, on 23 November 2016. At that time Oscar was owned by Mr Kumar’s brother.

[9]                 Mr Kumar says that certain key details were missing from the summary of facts to which he pleaded guilty. He says that Oscar would usually be leashed or chained

1      Dog Control Act 1996, s 57(2).

2      Auckland Council v Kumar [2020] NZDC 15560.

up while outside on the property. He says that Oscar was not chained only because Ms Devi was in the backyard with him and felt he was secured by the fences and locked gate.

[10]              Mr Kumar also says that Oscar had a serious ear infection around the time of the attack, causing haematoma. He says this may have caused Oscar to become irritated by the sound of a new pressure cooker Ms Devi was using immediately before the attack.

[11]              Mr Kumar also says that a neighbour has told him that the victim stood on the property’s driveway and called out to Oscar to play with him prior to the attack. There is no statement or evidence from the neighbour to this effect. Mr Kumar’s account is supported by…