Matthews v Auckland Council

[2024] NZHC 739

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-45

[2024] NZHC 739

BETWEEN

HINEMOA MATTHEWS

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:	8 April 2024
Appearances:	G Macdonald for appellant J Carter for respondent
Judgment:	9 April 2024

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 9 April 2024 at 2pm

Registrar/Deputy Registrar

Solicitors:

Auckland Council

MATTHEWS v AUCKLAND COUNCIL [2024] NZHC 739 [9 April 2024]

[1]    On 2 March 2023, Hinemoa Matthews' mastiff-cross dog, Raizoo, leapt out of the open rear passenger window of the car that she was driving. Ms Matthews had just stopped her car at an intersection in Papakura. Prior to stopping, she had paused alongside and then driven a few metres ahead of another vehicle that was stationary in an adjacent lane. There was a Jack Russell-cross dog, restrained by a harness, in the back seat of that other vehicle. And there was barking.

[2]    Having jumped from Ms Matthews' car, Raizoo ran to and jumped into the other vehicle, through its similarly open rear passenger window, and attacked the Jack Russell, causing wounds to its shoulders and neck which required veterinary treatment.

[3]    Ms Matthews was charged in the Papakura District Court with the offence under s 57(2) of the Dog Control Act 1996 of owning a dog that attacks a domestic animal. She pleaded guilty. On 19 December 2023, Judge J H Lovell-Smith sentenced Ms Matthews by ordering that:

(a)she pay $500 by way of reparation for emotional harm suffered by the Jack Russell's owner, who had been driving the car in which that dog was attacked; and

(b)Raizoo be destroyed.

[4]    Ms Matthews now appeals, in particular against the order for Raizoo’s destruction.

Legal principles

Obligations of dog owners in general

[5]    The Dog Control Act is intended, amongst other things, “to make better provision for the care and control of dogs… by imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife”.1

1      Dog Control Act 1996, s 4(a)(iv).

[6]    In light of this and the Act’s other objectives, it provides, amongst other things, for the classification of dogs as “dangerous dogs” or as “menacing”, and in that event for such dogs to be controlled in particular ways; for example, by muzzling (and leash control for dangerous dogs) when the dog is at large or in any public place or private way.2

[7]    However, s 5 of the Act provides more generally that the obligations imposed on dog owners by the Act “require every owner of a dog to ensure that the dog is kept under control at all times”. And to this end the offence provision at s 57 of the Act appears in a more general part, headed “Obligations of owner”. Immediately under that heading, s 52 relevantly provides:

52       Control of dogs generally

(1)The owner of any dog shall keep that dog under control at all times.

(2)Without limiting the generality of subsection (1), a dog shall, for the purposes of this Act, be deemed to be not under control—

(a)if it is found at large on any land or premises other than a public place or a private way without the consent (express or implied) of the occupier or person in charge of that land or those premises; or

(b)if it is found at large in any public place or in any private way in contravention of any secondary legislation.

[8]And s 57 relevantly provides:

57       Dogs attacking persons or animals

(1)A person may, for the purpose of stopping an attack, seize or destroy a dog if—

(a)the person is attacked by the dog; or

(b)the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.

(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding

$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

2      Sections 32 and 33E.

(3)If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

(emphasis added)

Orders for destruction

[9]    As stated above, Ms Matthews pleaded guilty to committing the offence under s 57(2). Accordingly, Judge Lovell-Smith was required to order Raizoo’s destruction “unless… satisfied that the circumstances of the offence were exceptional and [did] not warrant destruction of the dog”.

[10]   In Auckland Council v Hill, the Court of Appeal summarised the operation of s 57(3) as follows:3

[4]   Where the owner of a dog is convicted of the strict liability offence created by s 57(2), an order under s 57(3) for destruction of the dog will normally follow.

[5]    The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete

–   that is, after the attack occurs – also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.

[6]     The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.

[7]    It is not open to the dog’s owner to argue that the dog can be expected to behave differently in similar circumstances in the future – for example, as a result of post-attack training. Rather, the focus is on the risk that the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.

[8]    Nor is it open to the owner to argue that the s 57(3) test is met 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

3      Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.

exceptional circumstances of a kind that indicate that destruction of the dog is not warranted.

[9]     Circumstances that were not exceptional at the time the attack occurred cannot become exceptional as a result of post-attack events. If there was nothing exceptional about the circumstances of the attack when they occurred

–   nothing out of the ordinary which can be identified as a relevant factor in the attack – the s 57(3) exception does not apply. In particular, assurances given by the current owner about the future management and control of the dog are not relevant to the s 57(3) inquiry.

Threshold on appeal

[11]   Turning to the law relating to Ms Matthews’ appeal, I must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.4 Otherwise, I must dismiss the appeal.5

Submissions for Ms Matthews

[12]For Ms Matthews, Mr Macdonald submitted that:

(a)Unlike the menacing dog in Hill, Raizoo was not classified as either dangerous or menacing. Raizoo was not required to be muzzled if at large or in a public place or private way.

(b)Further, Raizoo was not at large or in a public place or private way. Indeed, the dog was under Ms Matthews’ control, contained within her vehicle.

(c)Raizoo’s attack upon the Jack Russell, which featured Raizoo leaping from one car, and running to and leaping into another, was such an unusual occurrence that in all probability it would not happen again.

(d)Accordingly, the circumstances of the offence were exceptional, and destruction of the dog was unwarranted.

4      Criminal Procedure Act 2011, s 250(2).

5      Section 250(3).

Analysis

[13]I do not accept those submissions.

[14]   First, Raizoo simply was not under Ms Matthews’ control, nor contained. Raizoo’s ability to escape Ms Matthews’ vehicle and to attack another dog speaks for itself in this regard.

[15]   Second, and relatedly, noting that the “circumstances of the offence” assume that a dog has attacked a person or another animal of a particular type — here, another dog — I respectfully agree with Judge Lovell-Smith’s observation that there was “nothing unusual about the circumstances”. In common with most unanticipated dog attacks, Raizoo’s owner simply failed to avoid the attack by ensuring her dog was kept under control “at all times”. Whether Raizoo was required to be muzzled or not is beside the point.

[16]   Third, and in any event, the issue of whether the circumstances of an offence such as this were “exceptional and do not warrant destruction” does not seem to me to be greatly affected by considering whether the mode of attack was unusual. Unusualness is not the test. The circumstances in which a dog is provided with and takes up an opportunity to attack another dog may or may not be unusual. But they say little about the risk “the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances”, which the Court of Appeal in Hill described as “the focus” when considering orders for destruction.6 And it is important to appreciate that the circumstances must not only be exceptional, but also such as not to warrant destruction.

[17]   When further explaining s 57(3) later in its judgment in Hill, the Court of Appeal observed that:

[76] If for example the owner of dog A was rushed or attacked by dog B, and dog A attacked dog B in order to protect its owner, a Judge might well conclude that the circumstances were exceptional and do not warrant the destruction of dog A.

6      Auckland Council v Hill, above n 3, at [7].

[18]   In this regard, the Court illustrated how the required focus on risk and therefore circumstances which might not warrant destruction might, exceptionally, satisfy the threshold necessary to avoid a destruction order. As Mr Macdonald responsibly conceded, there was nothing in the evidence to suggest Raizoo’s owner had been rushed or attacked, much less that she was being defended. Nor, in the possibility of the Jack Russell commencing the barking, or otherwise, is there anything in the evidence to suggest a provocation that might undermine the apparent risk of Raizoo attacking another dog if inadequately restrained in future.

Result

[19]   For these reasons, I do not consider there to be any error in the making of the order for destruction.

[20]The appeal is dismissed.

Johnstone J

Solicitors:

Auckland Council

[21] [21]