Liu v Auckland Council - [2015] NZHC 2843

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000314 [2015] NZHC 2843

BETWEEN
DIANA LIU

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 16 November 2015

Appearances:

Appellant in Person
Vernon Tamatea for the Respondent

Judgment:

16 November 2015

[ORAL] JUDGMENT OF MOORE J [Appeal against sentence]

LIU v AUCKLAND COUNCIL [2015] NZHC 2843 [16 November 2015]

Introduction

[1] On 23 September 2015 Ms Liu pleaded guilty to a charge that on 10 March

2015 she owned a dog named Harry that attacked a person. The charge was laid under s 57(2) of the Dog Control Act 1996 (“the Act”).

[2] Judge Sinclair convicted Ms Liu. She was fined $750. A reparation order for

$3,657.35 was made together with emotional harm reparation in the sum of $500. Her Honour ordered that Harry be destroyed there being no exceptional circumstances which would justify a departure from the mandatory requirement of a Court to make an order for destruction.

[3] Ms Liu now appeals the order for destruction. Her grounds are as follows:

(a) the District Court Judge failed to take into account and/or give appropriate weight to the expert opinion of Mr Mark Vette who operates the animal behaviour clinic and who assessed the dog for its potential for various forms of aggression;

(b)the District Court Judge failed to give appropriate weight to the previous good character of the dog;

(c) the District Court Judge did not take into account a statement of

Ann Brunton who witnessed the offence;

(d) there were errors and mistakes in the facts referred to in the

prosecuting counsel’s documents including:

(i)the claim that it was the victim who was walking his dog when, in fact, it was the appellant;

(ii)on 9 July 2015 the victim witnessed the dog being walked on Milford Beach without a lead. The claim was that the dog was being walked by “a young lady” when, in fact, the woman walking the dog was a 40 year old female;

(iii)Ms Liu challenges the assertion that the dog was seen without a muzzle;

(e) Ms Liu challenges that the dog bit the victim. Instead, she claims that the injury was caused when the dog barked and the victim’s arm was caught on a jaggered canine tooth;

(f) Ms Liu advises that ownership of the dog has been transferred to her neighbours.

[4] The Judge’s sentencing notes are not available. It is thus impossible to make any independent assessment of which factors were taken into account by the Judge in considering the circumstances of the offence and whether they were exceptional.

[5] I have, however, had the opportunity to review the prosecution submissions filed in the District Court. The prosecutor identified the following aggravating features:

(a) Gravity of the offending and culpability: Emphasis was placed on the injuries suffered by the victim. The vicim sustained serious injuries to the right forearm which required surgery including skin grafts and a period in hospital.

It is evident that Ms Liu did not have control of the…

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: [2015] NZHC 2843
Decision Date: 16 November 2015

CaseChat Overview and Summary

In the case of Liu v Auckland Council, Ms. Diana Liu appealed against the order of the District Court that her dog, Harry, be destroyed following an attack on a member of the public. The appeal centred on the decision to order the destruction of the dog, with Ms. Liu contending that the District Court judge failed to consider or appropriately weigh several factors, including expert opinion on the dog's behaviour, the dog's previous good character, and certain alleged errors in the prosecution's facts. The court noted the severity of the attack and the injuries sustained by the victim, which included significant damage to the forearm requiring multiple surgeries and a prolonged recovery period.

The legal issues before the court were whether the District Court judge appropriately considered all relevant factors in making the destruction order and whether there were exceptional circumstances that would justify not ordering the dog's destruction. The court considered the arguments presented by both parties, including the prosecutor's submission that there were no exceptional circumstances and the defence's argument that certain disputed facts should have been considered by the District Court. The court was particularly persuaded by the argument that crucial facts were in dispute and that the sentencing judge had not adequately considered these, potentially affecting the outcome.

The High Court found that the destruction order should be quashed, and the matter should be remitted to the District Court for a hearing on the disputed facts. The court held that it was not appropriate to determine the exceptional circumstances without considering the disputed account of the incident provided by Ms. Liu and supported by a witness statement. The court also ordered that the victim be provided with a copy of the judgment and informed of the date of the disputed facts hearing if he was not to be called as a witness. The case was to be returned to the District Court for further proceedings.

Orders