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…

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: [2024] NZHC 739
Decision Date: 9 April 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Matthews v Auckland Council was presented, where Hinemoa Matthews, the appellant, appealed against the sentence imposed by the Papakura District Court. Matthews' dog, Raizoo, jumped out of her car and attacked another dog, leading to Matthews being charged under the Dog Control Act 1996. Matthews pleaded guilty to the charge of owning a dog that attacked a domestic animal and was sentenced to pay reparation and have Raizoo destroyed. Matthews appealed against the order for Raizoo’s destruction.

The court had to determine whether the appeal against the destruction order for Raizoo was justified. The legal principles at play involved the obligations of dog owners under the Dog Control Act 1996, which requires dog owners to ensure their dogs are under control at all times. The court also had to consider whether the circumstances of the offence were exceptional, which would warrant not destroying the dog. The court had to assess whether Raizoo's attack was an unusual occurrence and if there was anything exceptional about the circumstances that would justify not destroying the dog.

The court found that Raizoo was not under Matthews' control, as evidenced by the attack on the other dog. The court also noted that there was nothing unusual about the circumstances of the attack, as Matthews had failed to ensure her dog was kept under control. The court emphasized that the focus was on the risk the dog posed to others, assuming it could be expected to behave similarly in the future. The court concluded that the circumstances were not exceptional and did not warrant avoiding the destruction order. The appeal was dismissed, upholding the order for Raizoo’s destruction.

Orders