Logan v Whangarei District Council - [2014] NZHC 424

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2014-488-000001 [2014] NZHC 424

BETWEEN PAUL LOGAN Appellant

ANDWHANGAREI DISTRICT COUNCIL Respondent

Hearing: 10 March 2014

Appearances: P Logan Appellant in person
R Harte for Respondent

Judgment: 11 March 2014

JUDGMENT OF ANDREWS J [Reasons for oral judgment of Andrews J]

This judgment is delivered by me on 11 March 2015 at 11:30am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitor:
Rob Harte Lawyer, Whangarei

LOGAN v WHANGAREI DISTRICT COUNCIL [2014] NZHC 424 [10 March 2014]

Introduction

[1] On 25 November 2013 the appellant pleaded guilty to two charges of being the owner of a dog that attacked a person, and one charge of being the owner of a dog that attacked a person and caused serious injury. On 24 January 2014, the appellant was sentenced by Judge G Davis in the District Court at Whangarei.1 The appellant was sentenced to home detention for four months and ordered to pay reparation of $500 to the victim of the offending. The Judge also made an order for
the destruction of one of the dogs, “Misty”.

[2] The appellant has appealed against the order for the destruction of Misty. At the conclusion of the appeal hearing I advised the appellant that the appeal was dismissed. I now set out my reasons for that decision.

Background

[3] On 16 July 2013, Misty and another dog “Luna” were at the appellant’s property. The dogs were not restrained in any way, and the property was not completely fenced. At about 10.20 am the victim, a mental health worker, came to the property by arrangement to visit a tenant. The arrangement had been made some seven days earlier, in the appellant’s presence, and the victim had telephoned the appellant during the week about the visit.

[4] The victim entered the property. As she came up the driveway towards the house, Luna jumped up from the porch, ran towards and then past the victim, and attacked the victim from behind, knocking her to the ground. Misty joined the attack, and the victim described both dogs biting her at the same time, tugging and pulling at her with their teeth. The victim was subjected to a prolonged attack, and received severe injuries to her head, arms, legs, and back. Her injuries might have been even more severe, but the appellant placed himself on top of her, to protect her from the dogs. He was also bitten. The appellant’s actions stopped the attack
sufficiently, so that he and a neighbour could restrain both dogs.

1 Whangarei District Council v Logan District Court Whangarei CRI-2013-088-2659, 24 January
2014.

[5] When dog control officers arrived, the appellant handed Luna over, and authorised his immediate destruction. The appellant said that Misty had not bitten the victim.

District Court judgment

[6] The Judge considered that it was an aggravating factor of the offending that the appellant had known the victim would be visiting, and that 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: [2014] NZHC 424
Decision Date: 11 March 2014

CaseChat Overview and Summary

In this case, Paul Logan appealed against an order for the destruction of his dog, Misty, made by the Whangarei District Council. Misty, along with another dog named Luna, attacked a mental health worker who had visited Logan's property. The victim suffered severe injuries, and Logan himself was also bitten in the process of stopping the attack. The District Court Judge sentenced Logan to home detention and ordered the destruction of Misty. Logan appealed against the order for the dog's destruction.

The legal issues before the court were whether the circumstances of the offence were exceptional, and if so, whether destruction of the dog was warranted. The court considered the relevant statutory provisions and case law, particularly the two-stage test established in Halliday v New Plymouth District Council. The first stage required the appellant to establish that the circumstances of the offence were exceptional, and the second stage required the appellant to demonstrate that the circumstances did not warrant destruction of the dog.

The court found that there were no exceptional circumstances in this case. The attack was not provoked, and the fact that one dog was more aggressive than the other did not constitute an exceptional circumstance. The appellant's lack of control over the dogs, demonstrated by his need to place himself over the victim to stop the attack, indicated that he would not be able to exert control over the dog in the future. The court concluded that the District Court Judge was correct in making the order for the destruction of Misty, and dismissed the appeal.

The final orders of the court were that the appeal against the order for the destruction of Misty was dismissed, and the order for destruction would proceed as originally made by the District Court.

Orders