LINDA ANNE STYLES AND AUCKLAND COUNCIL
[2024] NZHC 3592
•2 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000515
[2024] NZHC 3592
BETWEEN LINDA ANNE STYLES
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 11 November 2024 Counsel:
RD Mulgan for Appellant JB Carter for Respondent
Judgment:
2 December 2024
JUDGMENT OF DOWNS J
This judgment was delivered by me on Monday, 2 December 2024 at 10 am.
Registrar/Deputy Registrar
Solicitors/Counsel:
RD Mulgan, Auckland.
JB Carter, Auckland Council.
STYLES v AUCKLAND COUNCIL [2024] NZHC 3592 [2 December 2024]
The case
[1] Linda Styles owns a dog named Merlin, a Labrador, Staffordshire Bull Terrier. Merlin attacked two other dogs in separate incidents. Ms Styles was prosecuted for offending contrary to s 57(2) of the Dog Control Act 1996. She defended the charges and there were two separate trials before the same Judge. Ms Styles was found guilty of both charges and convicted.1
[2] Ms Styles appeals conviction. She contends justice miscarried in the first trial because of process errors. Ms Styles also contends she should have been discharged without conviction even if both charges were properly proved. A conviction is a prerequisite to Merlin’s destruction.2 Ms Styles argues that would have a disproportionately severe effect upon her mental health.
Background
[3] The case, including the appeal, has an extensive background. I record only that which is necessary to understand the issues.
[4] The first incident occurred 2 October 2019. Ms Styles was charged with it 22 January 2020. The second occurred 6 January 2021. Ms Styles was charged with it 5 February 2021.
The first incident
[5] Jacquelyn Britton owns two dogs: Radar, a Papillon Sydney Silky; and Serendipity, a Greyhound Scottish Deerhound. Radar is “very small” whereas Serendipity is “very, very large”.
[6] On 2 October 2019, Ms Britton took both dogs to the AMP Showgrounds,3 an off-leash area in Clevedon. Ms Britton testified that after speaking to Ms Styles, whom she did not know, Ms Styles’ dog ran to her dogs, sniffed Radar, and then “just
1 Auckland City Council v Styles [2022] NZDC 22620.
2 Solicitor-General’s Reference from CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401 at [63].
3 The showgrounds.
went” for Serendipity. Ms Britton said the dog “bowled” Serendipity and “just savaged and tore at her”. She and Ms Styles were eventually able to pull “Merlin off my dog”. Ms Britton said Ms Styles told her to take Serendipity to her (Ms Styles’) veterinarian, saying “it’s the one on Takanini Road, I’ll pay the bill”. Ms Britton did, albeit the veterinarian said: “‘Well we’re really sorry, we’ve only ever met Ms Styles once and we wouldn’t put it on anybody else’s bills’”.
[7]Ms Britton telephoned Ms Styles after leaving Takanini Vets:
Ms Styles was quite distressed at the time and not unsurprisingly so I rang her immediately to let – because it looked like it wasn’t as serious as I had first feared so I rang her, I said to her: “The vet bill is $185. I’ve had to pay it myself because he wouldn’t let, he didn’t want to put it on your account in case you didn’t pay and you know we need to sort this out” and Ms Styles got extremely angry with me. She accused my dog of biting her dog’s face and I said that I wasn’t in the least bit surprised. Her dog was all over my dog and she said she’d go 50/50 because my dog had attacked her dog’s face and the conversation got most unpleasant and I’m afraid I cut, I just switched the phone off – I can’t, I, I was in no frame of mind to deal with the anger that was directed at me.
[8] Ms Styles testified. In short, she said Serendipity attacked Merlin. Ms Styles described Ms Britton’s account as an “imaginative story”, and “fanciful”. She said Serendipity’s injuries — bites to her face and a broken leg — were pre-existing, and had been caused by an incident “only days before”.
[9] Gregory Main, who was flatting with Ms Styles and went with her to the showgrounds, also testified. He said Serendipity rushed Merlin and the dogs “ended up in a melee”. In cross-examination, Mr Main accepted it was “quite probable” Serendipity sustained the injuries during the melee.
[10]Judge J H Lovell-Smith found the charge proved:4
[52] Clearly the evidence I have heard in respect of this charge of the various conflicts between Mrs Britton’s evidence and the defendant and Mr Main’s evidence cannot all be correct. The divergence in the evidence simply does not allow for that to occur. It has been necessary for me to consider the honesty, reliability and credibility in respect of each witness. I do not have to accept everything that a witness says or reject everything that a witness says. I am entitled to accept and reject parts of what a witness said in the evidence.
4 Auckland City Council v Styles, above n 1.
[53] Mrs Britton’s evidence was that prior to the dog’s attack the defendant had told her to be very careful as her dog has been known [to] attack other dogs before and that her husband did not have a lead with him. The defendant had explained to Mrs Britton that she was not walking the dog that day because she had a fall and damaged her knee and she was actually sitting doing little crochet work in the front of the vehicle. Mrs Britton had asked where the lead was and she offered to take the lead over to the gentleman with her dog, but the defendant said she would do it herself. Her description of the attack was that as soon as the dog Merlin heard the car door open and as the defendant got out, the dog turned, looked their way and started to run towards them. Mrs Britton was clear that her dogs at that point were still in the vicinity of the gate. When the dog Merlin “launched itself” and went for the larger dog, bowled her over, stood over her when she was on her back and savaged and tore at her. The defendant was screaming at Merlin and both of them tried to get hold of both dogs, but the attack by Merlin got more and more savage. I accept Mrs Britton’s evidence as I found her to be a credible witness.
[54] I am also satisfied beyond reasonable doubt that the defendant had told Mrs Britton to take the dog to her vets as she would pay the bill. However, the vet had told Mrs Britton that they had only met the defendant once and they would not put her bill on anyone else’s bill.
[55] I accept the evidence of Mrs Britton with regard to the injuries suffered by her dog which is supported by the list of vet bills she incurred between 2 October 2019 and 28 January 2020 which were not challenged.
[56] I found Mr Errol De Beer to be a credible witness. Mr De Beer was a little unsure of the day he visited the vet which was almost 3 years previously. He said he visited the vets first and that is how he learnt about the incident and then possibly a couple of weeks later he visited the defendant on 17 October.
[57] I have carefully considered the defendant’s evidence. I did not find her to be a credible witness. She was evasive and distorted the evidence as it suited her. Having particularly and cautiously examined her evidence, I considered it to be contradictory and inconsistent and unsupported. I reject her evidence that Mrs Britton’s dog attacked her dog. I also reject her evidence that she denied offering to pay part of the vet account. Why else would she have directed Mrs Britton to her own vet. I reject the defendant’s evidence that Mrs Britton’s dog went through broken Council fence line, approached and attacked her dog Merlin from behind in an uncontrolled and unprovoked manner.
[58] The defendant’s claim to have assessed Mrs Britton’s dog’s injuries are inconsistent with the veterinary treatment the dog required for the injuries.
[59] I found Mr Main’s evidence to be unreliable. I reject his evidence that he saw Merlin attempt to bite the other dog, but only after he had been initially attacked and that he was defending himself, as he admitted to not being a hundred percent sure that was the sequence of events. When shown the photographs of the injuries of Mrs Britton’s dog, Mr Main did say that it was quite probable that the injuries were caused as part of the “melee” that he had given evidence about.
[60] The claim by the defendant that her dog was the innocent victim of the 2 October 2019 attack has not been supported by any reliable evidence.
For these reasons I am satisfied beyond reasonable doubt that the defendant owned a dog namely a black coloured male Labrador retriever cross Staffordshire terrier named Merlin that attacked a domestic animal in this case Mrs Britton’s dog called Serendipity.
The second incident
[11] On 6 January 2021, Craig Sciba was walking his dog, Raya, a Greyhound. Raya was on a lead. Mr Sciba said a dog — Merlin — rushed across the street aggressively and “just started to rip into our dog Raya”. Mr Sciba yelled repeatedly to Ms Styles and Mr Main to restrain Merlin. When they did not, Mr Sciba kicked Merlin. Mr Sciba ended up on the ground “still trying to protect his dog”.5
[12] Ms Styles testified and said there were “multiple extenuating circumstances surrounding the incident”. In cross-examination, Ms Styles accepted Merlin caused Raya’s injuries. When it was put to her Merlin attacked Raya, Ms Styles responded, “I don’t like the word ‘attack’ because I don’t feel it was an attack as such, I feel that my dog was acting in a defensive way from a perceived threat because he was in the heightened, emotional fear state of being scared and startled by [Mr Main]”. Mr Main did not testify.
[13]Raya suffered significant injuries.
[14] The Judge accepted Mr Sciba’s evidence. She found him “to be an honest and credible witness”.6 The Judge rejected Ms Styles’ evidence, which was “contradictory, inconsistent and unsupported”.7 The Judge, therefore, found the charge proved.
Sentencing
[15] The Judge’s sentencing remarks do not appear to be available. For this reason, Mr Carter on behalf of the respondent referred to his post-sentence reporting email, which appears uncontroversial. It records sentencing occurred 14 September 2023. The Judge imposed a fine of $1,500; ordered reparation of $3,830.16 to Ms Britton
5 At [63].
6 At [89].
7 At [90].
“for vet costs”; and emotional harm reparation to each complainant of $600. The Judge also ordered Merlin be destroyed.
Grounds of appeal
[16] On behalf of Ms Styles, Mr Mulgan advances three primary grounds of appeal:8
(a)Counsel failed to adequately put Ms Styles’ case to prosecution witnesses.
(b)The Judge erred in her treatment of Mr Mains’ evidence.
(c)Ms Styles should have been discharged without conviction on both charges.
Principle
[17] The appeal must be allowed if an error in, or in relation to, or affecting the trial, has created a real risk the outcome was affected, or the Judge erred in her assessment of the evidence to such an extent a miscarriage of justice has occurred.9
Analysis
A failure to put?
[18]This ground of appeal requires a little more background, both factual and legal.
[19] Ms Styles was charged with the first incident 22 January 2020 but not tried for it until 22 July 2022. The delay likely reflects several causes, including, presumably, the pandemic. Another likely cause concerns representation. Ms Styles had five legal aid lawyers from her first appearance (on 10 March 2020) until trial. Ms Styles terminated the services of all five.10 Her fifth lawyer, Harvena-Ata Cherrington, was given permission to withdraw at the beginning of trial. However, the Judge appointed
8 A fourth ground is addressed at [33]–[35].
9 Criminal Procedure Act 2011, s 232(2).
10 Mr Mulgan told me he was Ms Styles’ 11th lawyer in this case.
Ms Cherrington standby counsel (without using that term), so that she was available to help Ms Styles during trial if needed. Ms Cherrington took an active role. Indeed, it appears she acted as if she were defence counsel: Ms Cherrington cross-examined the prosecution witnesses and called Ms Styles and Mr Main, albeit Ms Styles was vocal about the conduct of her defence, especially during the giving of her evidence.
[20] The legal background is this. Section 92 of the Evidence Act 2006 recognises a cross-examination duty in relation to matters of significance that are relevant, in issue, and which contradict the evidence of a witness, when the witness could reasonably be expected to be in a position to give admissible evidence on those matters. The Court of Appeal has recognised the importance of the duty to the adversarial system and factfinding more generally.11
[21] Mr Mulgan contends Ms Cherrington failed to adequately put Ms Styles’ case to prosecution witnesses under s 92.12 Mr Mulgan’s written submissions helpfully capture the matters not put and their alleged forensic significance:
Mrs Britton said Merlin attacked Seren. She said:
My dogs at that point were still in the vicinity of the gate and what can I say? It [Merlin] just launched itself. Well, it bent down first and sniffed my small dog. My other dog immediately came around, wagging her tail: “Hello, hello,” and it just, it just went for her. It bowled her over, it stood over her. She was on her back and it stood over and it just savaged and tore at her.
Ms Styles gave evidence that she saw Seren run up behind Merlin and bite him. She said:
... ...her dog Seren attacked Merlin and made contact with Merlin on his back and his head and his neck.
The complainant’s larger dog went through the broken fence line at the front end of my car and then ran on the inside of the fence line, ran in a straight line across to where the smaller dog was making friends with my dog and her larger dog immediately attacked my dog from behind ...
Gregory Main was Mrs Styles’ flat mate. He attended the park with her that afternoon. He supported Ms Styles version. He said:
11 Wallace v Attorney-General [2022] NZCA 375, [2022] 3 NZLR 398 at [155].
12 Mr Mulgan did not advance a broader contention of counsel incompetence and Ms Styles, who waived privilege, was not required for cross-examination. No evidence from Ms Cherrington was offered.
I think it was dark grey dog came rushing through the fence and they headed straight for Merlin who at this stage had his back to the big dog. the large dark grey dog, as far as I remember, did a fast trot
towards Merlin, towards his shoulder area and put his muzzle directly on the back of Merlin’s neck and appeared to bite him. Merlin didn’t see him coming at all until he was, made contact.
I do remember the, the large grey dog making contact with the back of Merlin’s neck which started the whole thing off and I think it continued to go towards Merlin’s neck and face as the melee continued.
No, the large grey dog biting at Merlin. Merlin was immediately on the defence because he was surprised by the other dog.
It was never put to Mrs Britton that the two other witnesses would both say that Seren initiated the attack. The Court did not get the benefit of hearing whether Mrs Britton would have maintained her position if she knew that.
Mrs Britton could well have faced her own charge, and an application to destroy Seren, if the authorities believed the event as described by the defendant and Mr Main. It is possible this coloured her evidence. This was not put to her.
Mrs Styles said Mrs Britton described her own dogs as “little terrors”. This was not put to Mrs Britton. Any history of aggression by Seren is relevant to whether she could have initiated the attack.
Errol de Beer was the Council Animal Control officer who attended Ms Styles after Ms Britton complained that her dog had been attacked. He impounded Merlin and placed conditions on releasing him.
It was not put to Mr de Beer that Ms Styles told him the other dog was the aggressor.
Ms Styles was also not asked about what she said to Mr de Beer.
[22] I am satisfied the failure to put — if it may be called that given the background described at [19] — could not have affected the outcome of the trial for four reasons.
[23] First, the duty to put is primarily for the benefit of the witness, hence party, under cross-examination. This is reflected in the orders available to the Court when the duty is breached. Under s 92(2), the Court may, among other things, give the contradictory evidence less weight or even exclude it.
[24] Second, the case could not have been more straightforward. The only issue was which dog did what. As to that, the Judge had the benefit of the unput evidence.
[25] Third, there is no reason to believe Ms Britton would have accepted the unput evidence. This is evident from what Ms Britton said in response to those propositions that were put to her in cross-examination. The first example concerns Ms Britton’s evidence that Ms Styles told her Merlin would need a lead if Ms Britton were to take her dogs through a gate at the showgrounds:
Q. So you’ve talked about the end of your conversation with Ms Styles where she has, you have said, said that her dog would need a lead if you were to take your dogs through the gate?
A. Correct.
Q.I put it to you that, that conversation did not happen, that she did not say those things?
A.That is absolutely untrue. Why would she get out of the car and go into the back of the car to get the lead? She, she confirmed what she said to me by her actions that followed afterwards.
[26] The remaining examples come from the final questions asked of Ms Britton in cross-examination:
Q. I put to you that the injuries that you have described were not inflicted by Merlin in this incident between the dogs, that’s true isn't it?
A. That is absolutely 100% incorrect.
Q. And that those injuries were incurred not by Merlin but at a different time, different place?
A.Could I just say there would be absolutely no reason for me to have taken my dog to Ms Styles’ vet if it had been at another time and place because I would have taken my dog straight to my vets which is a mere seven or eight minutes further down the road. It happened exactly as I have described it.
Q.You’ve also described as you were leaving with your dogs that Ms Styles has, perhaps, called out to you and directed you to this – to her vets, as she said?
A. Correct.
Q. I put to you that that didn't happen, did it?
A.Why would I have gone to a vets that I do not use unless Ms Styles had told me to go there. I would have no reason to go to Ms Styles’ vet at all. I have used the same vet for 25 years. I would have not gone to a vet I do not know and who does not know my dog. I went on the understanding that she had said: “Take her to my vets and I’ll pay the bill.” I would have had no other reason to go there.
Q. Perhaps because it was the closest to the incident?
A.My dog was not bleeding out. My dog was not in imminent danger. She was just torn to pieces. I could have – I – if she hadn’t said that I would have gone straight to my vets.
Q. You described a conversation had with Ms Styles not long after this incident, can I enquire how it is you got her contact details?
A. The vet gave them to me.
Q. And –
A.And that’s how I found out she – that Ms Styles had only ever been there once.
Q.And that was because of a conversation you’d had with the vet or was –
A.The vet volunteered that information. He said: “You’re going to need this advice,” and the receptionist at the vets gave me Ms Styles number.
Q.Following – you’ve given evidence that you left in quite a rush from the park because of what you say has happened. Is it true that Ms Styles has actually attended to your dog after the incident and that she did so because you were upset about a different situation?
A. Ms Styles was incapable
THE COURT ADDRESSES MS CHERRINGTON – DON’T UNDERSTAND QUESTION
CROSS-EXAMINATION CONTINUES: MS CHERRINGTON
Q. Prior to leaving the park, did Ms Styles check your dog over?
A. Absolutely not. Ms Styles had fallen. She was on the ground and struggling to get up. Ms Styles went nowhere near my dog. We – neither of us got close to either of them. Ms Styles never went near my dog.
[27] That Ms Britton would not have accepted the unput evidence is buttressed by the fact she made an immediate complaint to Auckland Council about Ms Styles and Merlin.
[28] Fourth, the obvious explanation for Ms Britton taking Serendipity to Ms Styles’ veterinarian, rather than her own, is that Ms Styles told her to do so because she recognised she was at fault. As will be apparent from the evidence above, Ms Britton made this point herself.
[29] It necessarily follows this is the type of case anticipated by the Supreme Court in R v Sungsuwan in which “further scrutiny of counsel’s conduct [is] unnecessary”.13
Error in the treatment of Mr Main’s evidence?
[30] The Judge rejected Mr Main’s evidence as “unreliable”.14 The Judge reached this conclusion as Mr Main “admitted to not being a hundred percent sure” about the sequence of events.15 Mr Mulgan contends Mr Main made no such admission, hence the reason for disregarding Mr Main’s evidence was wrong.
[31] Having read and re-read Mr Main’s evidence, I accept there is a measure of overstatement to the Judge’s description of Mr Main “admitting” to not being sure about the sequence. That said, Mr Main’s evidence was equivocal about what occurred. This is best illustrated by capturing the core of Mr Main’s evidence-in-chief concerning what he saw:
A.Yep, after about another five minutes of walking the dog, I instructed him to return to where the gate is where we came in which he did, he ran ahead of me while I started walking back towards the gate. He got to the gate and waited there and at that moment a little black dog came through the broken fence line towards Merlin. They sniffed each other and were quite happy together. They started walking around each other and then about oh say a few more seconds after that a large, I think it was dark grey dog came rushing through the fence and they headed straight for Merlin who at this stage had his back to the big dog. He was still interacting with the little dog and the large dark grey dog, as far as I remember, did a fast trot towards Merlin, towards his shoulder area and put his muzzle directly on the back of Merlin’s neck and appeared to bite him. Merlin didn’t see him coming at all until he was, made contact.
Q. And what’s happened then?
A. Then Merlin got a little fright and they sort of ended up in a melee, of the dogs spinning around each other and running around and about that time I observed Linda and what must have been the owner of the other two dogs rushing into the field towards the dogs. Linda fell because of her leg and the other lady rushed towards the dogs but couldn’t quite keep up with them and was, she was yelling and swearing. As I saw this happening I started to run from where I was. It would’ve been 30 metres approximately from what was going on so I sprinted towards her. As soon as I got there I made contact with Merlin, grabbed him on his harness, the handle on the, built into the
13 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].
14 Auckland City Council v Styles, above n 1, at [59].
15 At [59].
back of his harness and pulled him away from the other dog and put myself between the two which stopped, stopped any – the melee straight away and I bundled him straight into the back of the car through the car and into the back of the car immediately.
[32] As will be apparent, Mr Main’s account did not definitively identify fault. Consequently, his evidence had much less significance than that of Ms Britton or Ms Styles. Mr Main was not an independent witness either. It was, therefore, open to the Judge to place little weight on Mr Main’s evidence, particularly given the clash of testimony between Ms Britton and Ms Styles, and the probative value attaching to Ms Britton’s evidence that she took Serendipity to Ms Styles’ veterinarian at the latter’s suggestion. For these reasons, I am not persuaded the Judge erred in her assessment of Mr Main’s evidence to such an extent a miscarriage of justice has occurred.
A subsidiary ground of appeal
[33]Mr Mulgan’s written submissions capture the point:
The first ground of appeal for the second charge is the effect of the first incident of Auckland Council’s dog control protocol.
Mrs Styles was warned by Mr de Beer after the first incident. She was charged for both of them after the second one.
It appears from the evidence of Mr de Beer that the possibility that Merlin was not the aggressor in the first incident was not considered. He was content to proceed on the basis that the injured dog was the victim. Counsel submits that as with human assaults the injured party is not necessarily the victim, and should not be assumed to be.
As submitted above, the trial has not established Mr de Beer’s assumption was well founded.
If the first incident was not the fault of Ms Styles’ dog then natural justice would suggest the warning step and not prosecution should have been available for the second incident.
[34] This ground of appeal suffers a misapprehension that Ms Styles was charged for the first incident after the second incident. The charging document in relation to the first incident identifies when it was laid and the appearances thereafter. The charge was laid 22 January 2020; the first appearance was 10 March 2020. The charging document reveals at least five more appearances before the charge for the second incident was laid (5 February 2021).
[35]There is, then, nothing in this ground of appeal.
Two observations
[36] Before turning to the final ground of appeal, I capture two observations. First, it is not obvious why there were two separate trials when the evidence of each incident was likely cross-admissible in relation to the other as propensity evidence.16 Second, it was incumbent on Ms Styles to establish an absence of fault in relation to each charge. This because the charges involved strict liability offences, about which more below. That test is difficult for a defendant to establish at the best of times. The evidence in this case left, frankly, little if any hope for the application of that defence, especially in relation to the second incident.
A discharge without conviction?
[37] A defendant may be discharged without conviction if, and only if, “the court is satisfied … the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.17
[38] No application appears to have been made at sentencing for a discharge without conviction.
[39] Mr Mulgan contends Ms Styles should have been discharged without conviction on both charges because Merlin’s destruction would be out of all proportion to the gravity of the offending. In this respect, Mr Mulgan relies on an affidavit of Ms Styles in support of the appeal. It reveals Ms Styles has an emotional attachment to Merlin beyond that which is usual given the vicissitudes Ms Styles has suffered throughout her life. Elaboration is undesirable given sensitivity of subject matter.
[40] Before addressing the contention, some context is necessary. The offences of which Ms Styles was convicted are strict liability offences, meaning:18
… The prosecution is not required to establish a lack of care on the part of the owner. The owner of the dog may be convicted without any consideration of
16 Evidence Act 2006, ss 40 and 43.
17 Sentencing Act 2002, s 107.
18 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603 at [47] (footnote omitted).
the precautions (if any) that were taken by the owner to prevent an attack, the reasons why those precautions failed, and whether the owner should have taken additional precautions. Indeed, the offence may be committed even if the owner did not, at the relevant time, have possession of the dog because it had been left in another person’s care for less than 72 hours.
[41] The ordinary consequence of a person convicted of such offending is the destruction of the dog. Destruction is mandatory unless the Court “is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog”.19 The exemption is confined to the circumstances of the offence; post-attack conduct is irrelevant.20 Nor is it open to the owner to argue the exemption applies because the attack was caused or contributed to by a one-off failure by the owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate that destruction of the dog is not warranted.21 Offending of this nature is serious; the empowering legislation was amended in consequence of “public outrage over a number of serious dog attacks”.22 The maximum penalty is a fine not exceeding $3,000 in addition to incurred liability for any damage caused by the attack. But, a conviction is a precondition to the dog’s destruction.23
[42] I accept Ms Styles has a significant emotional attachment to Merlin. Indeed, I accept Ms Styles regards Merlin as her companion. I accept also Ms Styles has had an unfortunate life, and Merlin’s destruction would, therefore, fall more heavily upon her than normal. However, I am not persuaded the consequences of Merlin’s destruction would be out of all proportion to the gravity of the offending. I reach this conclusion because the offending is serious — Merlin attacked two dogs in unrelated incidents, causing serious injury in one — hence there is no disproportionality of the scale anticipated by a discharge without conviction. This conclusion is buttressed by the absence of any expert evidence in relation to the impact on Ms Styles of Merlin’s destruction, even though the allocation of a fixture contemplated such evidence.24
19 Dog Control Act 1996, s 57(3).
20 Auckland Council v Hill, above n 16, at [71]–[72].
21 At [8].
22 Solicitor-General’s Reference from CRI-2022-404-212 ([2022] NZHC 31), above n 2, at [18].
23 At [63].
24 See the Minutes of Andrew J of 29 November 2023 and 2 February 2024.
Result
[43]The appeal is dismissed.
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Downs J
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