McClintock v Taupo District Council
[2017] NZHC 58
•1 February 2017
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2016-463-000041 [2017] NZHC 58
BETWEEN KENNETH ERNEST MCCLINTOCK
Appellant
AND
TAUPO DISTRICT COUNCIL
Respondent
Hearing: 12 December 2016 Counsel:
D M Johnston for appellant
J S Gurnick for respondentJudgment:
1 February 2017
JUDGMENT OF KATZ J
This judgment was delivered by me on 1 February 2017 at 3:00pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Tompkins Wake, Lawyers, Hamilton
Counsel: D M Johnston, Barrister, Taupo
MCCLINTOCK v TAUPO DISTRICT COUNCIL [2017] NZHC 58 [1 February 2017]
Introduction
[1] In 2010 Kenneth McClintock’s dog Scooby was classified as a dangerous dog under the Dog Control Act 1996 (“Act”) following an incident with a postal delivery officer. As a result, Mr McClintock was required to either keep Scooby within a securely fenced portion of his property, or confined completely within a vehicle or cage, or muzzled and on a leash.1
[2] On 12 August 2015 Mr McClintock breached these requirements by leaving Scooby, who was not muzzled, in a van at his business premises with the van’s sliding side door open. The victim, Mr Rean, drove onto the property and got out of his car to ask for directions. Scooby ran out of the van and bit Mr Rean on the back of his calf, causing puncture wounds and bruising.
[3] Mr McClintock pleaded guilty to two charges under the Act. First, he had breached his obligation to keep Scooby within a secure area, or otherwise muzzled and on a lead.2 Second, he was the owner of a dog that attacked a person.3 The Act requires that when a person is convicted of either of these offences the court must make an order for destruction of the dog, unless satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
[4] Mr McClintock argued in the District Court that the circumstances of both offences were exceptional and, as a result, Scooby should not be destroyed. A disputed facts hearing was held to consider the issue. Judge M A MacKenzie concluded, however, that the circumstances of the offending were not exceptional.4
She therefore made an order for the destruction of the dog. Mr McClintock now appeals that decision. He says that the Judge erred:
(a) in assessing the evidence concerning whether Scooby was provoked; (b) in her assessment of Council records detailing the history of the dog
and its owner; and
1 Section 32(1).
2 See s 32(3).
3 See s 57(2).
4 Taupo District Council v McClintock [2016] NZDC 14885 at [66].
(c) in concluding that the circumstances were not exceptional and that the destruction of the dog was therefore warranted.
[5] The appeal is framed as an appeal against conviction. I accept the Crown’s submission, however, that the appeal is more appropriately viewed as an appeal against sentence, given that only the destruction order, an order which emanated from the conviction, is appealed.5 This is a general appeal, which I can allow if I consider the Judge’s decision to be wrong.6
Further background and District Court decision
[6] On 12 August 2015 Mr McClintock was at his commercial premises in Taupo. Those premises were able to be accessed by the public, albeit on a limited basis. Scooby was in Mr McClintock’s van. The gate to the property was open, as was the van’s sliding side door. The premises and Scooby were therefore not secured.
[7] The Judge applied settled law in relation to the test under s 57 (the offence of being the owner of a dog that attacks a person or animal). That section requires that an order for the dog’s destruction must be made following an attack unless:7
(a) the circumstances of the offence were exceptional; and
(b) the circumstances do not warrant destruction of the dog.
[8] This is a two-stage test. In Halliday v New Plymouth District Council, Heath J considered that the following factors may be relevant to determining whether circumstances of the offence are exceptional (the first stage):8
(a) the nature of the attack (including the fact that injury resulted); (b) the appellant’s history as an owner of the dog;
5 See Epiha v Tauranga City Council [2016] NZHC 2660, [2016] NZAR 1535 at [37].
6 Nicol v Whakatane District Council [2012] NZHC 727 at [12].
7 Anand v Auckland Council [2013] NZHC 445, [2013] NZAR 285 at [12].
8 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-000011, 14 July
2005 at [48]; Anand v Auckland Council, above n 7, at [13].
(c) whether the dog had behaved in this way in the past;
(d) the steps taken by the appellant to prevent such an attack occurring;
and
(e) the reasons why the steps taken did not prevent such an attack occurring on the occasion in question.
[9] These factors are not exhaustive. Events which post-date the offence, however, cannot be taken into account at the first stage, because the circumstances of the offence cannot include circumstances that have not yet occurred.9 The term
“exceptional” creates a “very difficult test for a dog owner to surmount”.10 It
requires the circumstances to be “unique or special or substantially unusual”. However, the circumstances need not be extreme.11
[10] The second stage of the inquiry, whether the circumstances do not warrant destruction of the dog, focuses attention on the need for a predictive assessment of whether the dog is likely to behave in a similar way in the future. The assumption behind the provision is that once a dog has attacked it will attack again, unless there
are reasons to think that another attack is unlikely.12 The second stage allows for
consideration of subsequent protective measures to prevent the dog from attacking again.13
[11] Section 32 also contains an “exceptional circumstances” exception. It is expressed in the same terms as the exception in s 57. As Judge MacKenzie noted, however, there is a dearth of authority on how the exception operates in the context of s 32, given that the underlying offence is different. While s 57 relates to dog attacks, s 32 is concerned with failures by owners of dangerous dogs to comply with their statutory duties to keep such dogs under control. The Halliday factors set out at [8] above relate specifically to dog attacks, rather than the offence of failing to keep
a dangerous dog under control. It was therefore necessary for the Judge to adapt the
9 Halliday, above n 8, at [43]; Anand v Auckland Council, above n 7, at [14].
10 Halliday, above n 8, at [20].
11 At [21].
12 Halliday, above n 8, at [41].
13 Anand v Auckland Council, above n 7, at [21].
Halliday factors for application in the s 32 context. She identified the following factors as being potentially relevant to determining whether the circumstances of an offence under s 32 are exceptional:14
(a) the nature of the owner’s non-compliance;
(b)any consequences (including alternative offences arising) as a result of the non-compliance;
(c) the owner’s history as the dog’s owner/previous compliance;
(d) the steps taken by the owner to ensure that s 32 was complied with;
(e) the reason why the owner did not comply with s 32 requirements on this occasion.
[12] After considering these factors, the Judge considered that there were no exceptional circumstances present in relation to either the s 32 or the s 57 offence.15
It was not therefore necessary to go on to consider the second stage of the inquiry, namely whether the circumstances do not warrant destruction of the dog.
[13] No issue was taken on appeal with the Judge’s formulation of the appropriate legal tests under ss 32 and 57. I therefore take the same approach. Rather, Mr McClintock challenges a number of the Judge’s factual findings which, he says, resulted in her wrongly concluding that the circumstances of the offending were not exceptional.
Did the Judge err in her assessment of whether Scooby was provoked?
[14] The first issue raised by Mr McClintock’s appeal is whether the Judge erred in her assessment of the evidence as to whether Scooby was kicked by Mr Rean, thereby provoking the attack. The Judge said that:
[15] Mr Rean accepted that he was not expected at the premises on
12 August. He says he drove into the premises, and could see Scooby in the van. His description was that Scooby had his teeth bared and lips curled
14 Taupo District Council, above n 4, at [43].
15 At [64].
back. He then walked from his van (about five metres to the front of the showroom), put his hand on the side of the door and called out, “Hello, is anyone there?” He was then bitten on his left calf. He denies that he drove quickly into the premises or that he rushed around the front of the defendant’s van towards the workshop door. Specifically, he denies kicking Scooby. It was put to him that he kicked out at Scooby as an instinctive reaction. He said the first thing he knew that Scooby was there was when Scooby was hanging on his leg. He acknowledges that the defendant immediately apologised and said he was sorry. Scooby was calm and quiet after all of this. Mr Rean says he [Scooby] was not put into the workshop (as the defendant says), but rather that the defendant was standing between Mr Rean and Scooby, who was not behaving aggressively or barking.
[16] The defendant’s evidence is that he heard the van crunch on the gravel when it first arrived. He says that he had a better view of Scooby than Mr Rean did. He says that Scooby did not have his teeth bared or lips curled back. That Mr Rean kicked out at Scooby with his right leg after turning, and it was only then that Scooby nipped at Mr Rean. He disputes that it was a serious or unprovoked attack therefore.
[17] The factual dispute is of narrow compass. I do not necessarily consider that a determination of whether or not Mr Rean kicked out at Scooby prior to being bitten is either necessary or particularly helpful. This is because the reality is that Scooby should either have been contained or muzzled; he was neither and as a consequence, the attack happened. If pressed, I would prefer the evidence of Mr Rean. He is a stranger, has no vested interest in this matter and gave a straightforward account which he did not embellish or resile from. Conversely, the stakes are high for the defendant, and Mr Rean’s description of what happened seems to be more consistent with the location of his injuries.
[18] Dr Flint [an expert witness in animal behaviour] gave evidence…I do not consider Dr Flint’s evidence about the plausibility or otherwise of the factual narrative by Mr Rean or the defendant to be a matter that I can take into account. I put it to one side, because it is not for an expert to comment on the ultimate issue.
[19] That does not render the evidence inadmissible but it can be
inappropriate…
[20] Whilst at one point during her evidence Dr Flint was straying towards giving evidence about the ultimate issue, which is for the Court, there were aspects of her evidence which were helpful; Dr Flint said that there is a heightened risk of protective behaviour where a dog is sleeping in a vehicle, described as territorial aggression. It would seem that there is a flashpoint for Scooby around the van.
[21] Mr Rean’s description of Scooby’s presentation when he initially arrived at the premises is consistent with Dr Flint’s description of territorial aggression, particularly for a dog who sleeps a lot in the van and uses it as a den. Also, there is an air of reality to his evidence that he was not troubled by Scooby’s presentation in the van, because he had no idea that the door of the van was open, because he could not see it.
[22] I have some difficulty with the defendant’s explanation that he could see all of this incident unfolding, because it is inexplicable then that he did not intercede earlier when he saw the door was open. After all, as he clearly said in his affidavit evidence, he knew that Scooby was meant to be contained in the van. If he did see things happening as he says, then logic would suggest that his first reaction would be to have gone out to shut the van door. Also, as I have said, the location of the injury on Mr Rean’s left calf has congruence with his description of how this incident unfolded; that is to say, an unprovoked attack from behind.
[15] The Judge clearly recognised that, if Scooby was provoked to attack Mr Rean by being kicked, then this is a factor which could support a finding of exceptional circumstances in terms of the s 57 offence (being the owner of a dog that attacks a person). Mr Rean kicking the dog is not, however, a factor that is directly relevant to the s 32 offence, which is based on Mr McClintock’s failure to have proper control of a dangerous dog. For that reason, even if “provocation” was found to exist it would not, in itself, be sufficient to overturn the destruction order. Exceptional circumstances would also need to be found in relation to the s 32 offence.
[16] In any event, the Judge’s finding that Mr Rean did not provoke Scooby by kicking him was well open to her on the evidence before the Court. Her reasoning is compelling and she had a clear basis (which she explained) for preferring the evidence of Mr Rean to that of Mr McClintock. Mr McClintock is challenging findings on credibility and reliability made by the Judge. While this Court is entitled to substitute its own view on the facts, a degree of caution is generally exercised
when disturbing credibility findings.16 I have not been persuaded that the Judge
erred in concluding that Mr Rean’s evidence was more credible and reliable in all the circumstances than that of Mr McClintock, for the reasons she gave. Further, the clear evidence of Scooby’s territorial aggression was consistent with Mr Rean’s version of events, as was the location of his injury (on the back of his calf). Her Honour’s conclusion was well supported by the evidence. She took into account the evidence of Mr Rean and Mr McClintock, as well as Dr Flint’s expert evidence, and came to a conclusion that was clearly open to her.
[17] Further, even if Scooby was “provoked” by Mr Rean instinctively kicking
out as the dog rushed towards him (contrary to the Judge’s finding on this issue) that
16 See Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA)
at 199.
would still not, in my view, be sufficient to meet the exceptional circumstances threshold. Any “provocation” in such circumstances would be very much at the lower end of the scale. It could not justify a dog bite that caused puncture wounds to the skin and penetrated through two layers of clothing (jeans and thermal leggings).
Did the Judge err regarding the history of dog ownership with the Council?
[18] The second issue raised on appeal is whether the Judge erred in taking into account various alleged incidents in the history of Mr McClintock’s dog ownership and Scooby’s past behaviour. In particular, when considering whether Scooby had behaved similarly in the past, and Mr McClintock’s history as a dog owner, the Judge took into account various Council records. She noted that this evidence
suggested that:17
(a) Mr McClintock had previously been issued with infringement notices for failure to register a dog.
(b)On 27 January 2010, Scooby was classified as a dangerous dog by the Taupo District Council. The defendant sought a review of that decision. The decision was upheld.
(c) The classification of Scooby as a dangerous dog was as a result of complaints made in December 2009 and January 2010 by a postal delivery officer about Scooby’s behaviour.
(d)The Council has issued from time to time infringement notices in relation to Scooby.
(e) In April 2012, a complaint was received by the Council in relation to a
dog fitting Scooby’s description. No further action was taken.
[19] In taking into account the Council records, the Judge said:
[48] The prosecutor says that the defendant does not have a good history as a dog owner. Much emphasis is placed on the Council records. The defendant takes issue with the nature of the evidence provided by the Council, saying that much of it is hearsay. This was a matter considered
17 Taupo District Council, above n 4, at [49].
in Snodgrass.18 As Justice Clifford noted, “If used to prove the truth of its contents, the evidence is, however, hearsay”. Justice Clifford went on to hold that the evidence was admissible to demonstrate that on previous occasions, members of the public had found the dog’s behaviour sufficiently worrying that they had made complaints and described those behaviours as an attack. The appellant in Snodgrass had accepted that there had been earlier incidents but maintained that they were not attacks and that the dog was behaving in a friendly manner. As was held in Snodgrass at [46]:
“… The evidence thus demonstrates that Beau behaved in ways that worried members of the public, that Ms Snodgrass' and Ms Sinclair's view of those incidents differed from the views that members of the public had and that despite these incidents and Ms Snodgrass' knowledge of these reports, Beau was still allowed off the leash in public and to play with unfamiliar dogs. This is more than sufficient to demonstrate that the circumstances of the attack were not exceptional and there is accordingly no real risk that the improper use of the evidence affected the outcome of Ms Snodgrass' hearing”.
[20] Her Honour acknowledged “the limitations of the evidence as hearsay”. She found that its relevance lay “in the fact that Scooby’s behaviour and/or lack of control has been of sufficient concern that infringement notices have been issued from time to time”.19 She also took into account that there “is a substantiated incident of Scooby grabbing the arm of a postie”.20 This refers to the incident that
led to Scooby being classified as a dangerous dog.
[21] There appears to have been some dispute in the District Court regarding the details of that incident, with Mr McClintock viewing it as less serious than the Council. At the very least, however, counsel for Mr McClintock conceded that:
My review of this matter is there is one substantiated allegation of the dog grabbing the arm of the postie. There is no evidence of a bite or any injury resulting but that together with a further incident with the postie is what resulted in the dangerous dog designation and that is a fact, and that has brought into operation section 32.
[22] There is accordingly no error in the Judge’s conclusion that there was
“a substantiated incident of Scooby grabbing the arm of a postie” which she noted was “accepted by the defendant’s counsel”.
18 Snodgrass v Kapiti Coast District Council [2014] NZHC 1333, [2014] NZAR 834.
19 At [50].
20 At [52].
[23] Ms Johnston submitted that the Judge also gave weight to an alleged incident in April 2012 recorded in the Council records. The incident is disputed by Mr McClintock and Ms Johnston notes that no action was taken by the Council. The Judge noted this, but took it into account on the basis noted in Snodgrass, namely as evidence that the Council record is admissible to demonstrate that members of the public had found the dog’s behaviour sufficiently worrying that they made a complaint about it, rather than as evidence that proves that Scooby had in fact rushed the complainant on that occasion. In essence, this evidence was seen as a factor demonstrating a history of concern about Scooby from members of the public.
[24] Given that Mr McClintock appears to dispute that Scooby was the offending dog in the April 2012 incident (as opposed to simply disputing the details of the incident), this evidence can only carry minimal weight. I therefore propose to err in Mr McClintock’s favour for the purposes of this appeal. I put the evidence of the April 2012 incident to one side for the purposes of determining whether there were exceptional circumstances of either offence.
[25] Finally, Ms Johnston submitted that the Judge erred in finding that the Council had issued infringement notices in relation to Scooby. Ms Johnston appears to be mistaken in this respect, however, as there is evidence of both infringement and warning notices in relation to Scooby, in particular for failing to keep him under proper control. The relevant notices all appear to pre-date Scooby’s dangerous dog classification being upheld in July 2010, however. As a result they are superseded, to some extent, by the dangerous dog classification and carry little or no additional weight.
[26] I now turn to consider whether, in light of all of the relevant and admissible
evidence, there were “exceptional circumstances” of either offence.
Were there exceptional circumstances?
[27] Ms Johnston submitted that the Judge erred in finding that the circumstances of the offending were not exceptional. The Judge found, in summary, that the circumstances were not exceptional because:
(a) There was a statutory obligation on Mr McClintock because of
Scooby’s dangerous dog classification. Inadvertence in leaving the
gate and van door open do not make the circumstances exceptional.
Indeed, a heightened degree of care was required. A lack of care and
attention to detail is no answer. (b)
The non-compliance led to Scooby biting the victim. The victim did
not kick Scooby first, and even if he did this does not assume particular significance given s 32. (c)
While the expert evidence is that Scooby is not a dangerous dog, Dr Flint acknowledged Scooby’s territoriality, and her evidence is
tempered by two substantiated incidents where Scooby attacked. (d)
It was not an isolated attack, nor was it isolated in terms of the
defendant neglecting his duties as a dangerous dog owner, given the infringement notices. Despite the time lapse between the two
incidents involving Scooby, his behaviour was not a one-off.
(e)
While the effect of Scooby being put down would be devastating on
Mr and Mrs McClintock, this was not sufficient alone to justify exceptional circumstances. [28]
Ms
Johnston submitted that the Judge was wrong to find that
Mr McClintock’s carelessness in not ensuring that the van door was closed was not exceptional. In assessing the reasons why the steps taken did not prevent an attack occurring, the Judge relied on the decision of Brewer J in Xu v Auckland Council.21
In that case the dog’s owner forgot to muzzle her dog when she took him for a walk in a public park. She usually muzzled him. The dog pulled his leash from her husband’s grasp and bit a woman. His Honour found that there was nothing exceptional about the fact that the owner had forgotten to fix the dog with the
muzzle. A muzzle was needed because of his previous behaviour.
21 Xu v Auckland Council [2015] NZHC 3024.
[29] In Scooby’s case, Judge MacKenzie said, in relation to the reasons why the
steps taken did not prevent an attack occurring, that:
[40] Ms Johnston, in her submissions, notes that the defendant believed the van door to be closed but can only speculate that he inadvertently did not close the van door properly when he went back to get his phone. Justice Brewer’s comments in Xu at [16] are apt in that His Honour held that there is nothing exceptional in the fact that on that occasion, Ms Xu forgot to fit Harry with a muzzle. He needed the muzzle because of his previous behaviour, which emphasises the danger that Harry posed. It does not render the circumstances of the attack exceptional. There are two possibilities why the attack on Mr Rean occurred on 12 August 2015. Either the defendant was very careless about his statutory obligations, or that his own perspective that Scooby is not a dangerous dog blinds him to potential risks or hazards posed by Scooby.
[30] Ms Johnston submitted that this case can be distinguished from Xu, which she described as a “high degree of carelessness”. Mr McClintock’s dog was on private land and he had contained the dog in the van, but had inadvertently failed to close the van door. She submitted that the carelessness in this case is therefore at the lower end of the scale.
[31] I do not accept that submission. The incident occurred at commercial premises where visitors could be anticipated. The gate to the premises was open, as was the van door. As in Xu, the inadvertence in this case does not make the circumstances exceptional. Indeed, I view Mr McClintock’s carelessness or inadvertence as more serious than that in Xu, given that Scooby had previously been classified as a dangerous dog and a high degree of care was therefore required. Unlike Ms Xu, Mr McClintock had a statutory obligation to keep Scooby muzzled or contained. He failed to do so and the attack happened as a result.
[32] Next, Ms Johnston submitted that a number of other factors were sufficient, in combination, to meet the exceptional circumstances threshold.
[33] First, she submitted that there was no evidence of action being taken against Mr McClintock for non-compliance with his obligations as a dangerous dog owner during the period between Scooby being classified as dangerous and the date of the attack. Further, Mr McClintock’s wife gave evidence that he took his obligations as
an owner seriously, and Dr Flint gave evidence that the character of the dog was not aggressive.
[34] In my view these are factors that carry relatively little weight in the overall analysis. The fact is that Scooby had previously shown sufficient aggressive tendencies to be classified as dangerous. Some years later he attacked Mr Rean, causing puncture wounds and bruising to his calf. Obviously, if the victim had been a child rather than an adult man wearing two thick layers of clothing the injuries could have been significantly more serious.
[35] The Act prioritises public safety. It does not contemplate second chances for dogs that attack people other than in exceptional circumstances. It would therefore be relatively rare for a prosecution to be brought in circumstances where a dog has a proven history of prior attacks. Similarly, the Act contemplates that owners of dangerous dogs will comply with their statutory obligations to contain or muzzle such dogs. Again, it does not provide for second chances unless the circumstances are exceptional. It would therefore be unusual to see an offender with a significant history of non-compliance with their obligations as an owner of a dangerous dog. Accordingly the fact that a person has met their statutory obligations for a period of years, while not entirely irrelevant, is a factor that does not weigh heavily in the overall context of determining whether exceptional circumstances exist.
[36] Second, Ms Johnston submitted that Dr Flint, a veterinarian with expertise in animal behaviour, found Scooby to be a normal and friendly dog. She did not consider him to be a risk to the public when walked out on a lead amongst people who are behaving normally, nor to people visiting the showroom. The difficulty with this evidence is that whatever Scooby’s “general” nature, he has a history of aggressive behaviour. This resulted in him being classified as dangerous. Further, he attacked Mr Rean. His aggression appears to be territorial in nature. In such circumstances, as the Judge identified, Dr Flint’s post-attack assessment of Scooby is of only marginal relevance to the circumstances of the particular offence before the Court, although it may have some limited relevance in terms of general “good
character” evidence.22 Further, this type of “character” evidence cannot be relevant to the s 32 offence, namely that Mr McClintock failed to comply with his statutory obligations in relation to controlling his dog.
[37] Ms Johnston further submitted that the manner of the dog’s detention, unmuzzled because the van door was thought to be closed, and the risk posed by Dr Flint’s assessment of the territorial nature of the dog, means that the events are unlikely to be repeated. In my view, however, there is nothing exceptional about inadvertently leaving a door open. This argument overlaps to some extent with the argument discussed at [28]-[31] above, and the comments I make at [31] apply equally in this context. Further, this particular argument is more relevant to the second stage of the inquiry (requiring a predictive assessment of the future behaviour of the dog) than the first stage (whether the circumstances of the offence were exceptional). Further, the likelihood of Scooby attacking again is not relevant to whether there are exceptional circumstances in Mr McClintock’s failure to comply with s 32.
[38] Ms Johnston also submitted that the momentary nature of the attack and the lack of serious injury (for example an injury requiring hospitalisation or antibiotics) put the circumstances of the attack in the “exceptional” category. While the seriousness of an attack is certainly relevant, this attack was not so minor as to be exceptional. It was an unprovoked attack in which a dog bit a person with sufficient force to penetrate two thick layers of clothing and cause puncture wounds and bruising to the skin, requiring medical attention. Mr Rean’s evidence was that Scooby, in effect, latched on to his leg and that the attack was only terminated as a result of the quick intervention of Mr McClintock.
[39] Although the attack may have been brief (due to Mr McClintock’s intervention), it was not so minor as to be substantially unusual. A momentary or short dog attack is not exceptional.
[40] Ms Johnston also noted that Mr McClintock apologised, went to the police to report the incident, and went to the Council and surrendered the dog pending an
22 Halliday, above n 8, at [43].
investigation. Again, while such conduct is to be commended, the fact that an owner apologises for a dog attack and subsequently cooperates with authorities does not constitute exceptional circumstances of the offending. Further, Mr Rean’s evidence casts a somewhat different light on Mr McClintock’s behaviour following the attack. Indeed, it seems probable that Mr McClintock realised that Mr Rean was likely to lay a complaint regarding the attack and that this coloured his own response.
[41] To succeed on appeal Mr McClintock must establish the existence of exceptional circumstances of both the s 32 offending (his failure to comply with his statutory obligations to keep Scooby under control) and the s 57 offending (being the owner of a dog that attacked a person). Whether the various factors I have referred to are assessed individually or together, I have not been persuaded that the Judge erred in concluding that the circumstances of the offending were not exceptional.
[42] It is therefore not necessary to consider the second stage of the inquiry, which relates to whether the circumstances of the case are such that destruction of the dog is not warranted. I note, for completeness, that Ms Johnston referred in this context to Dr Flint’s evidence, a number of references about the good behaviour of Scooby, and evidence as to the impact that destruction of Scooby may have on Mr McClintock’s mental and physical health. Ms Johnston also refers to the fact that Mr McClintock is no longer a tenant at the property where the incident happened, is not working, and is now residing at a fenced property. He gives an assurance that he will be mindful of his obligations under the Act and will ensure that Scooby is on a lead and muzzled at all times if he is taken into the public.
[43] I have no doubt that Mr McClintock is deeply attached to Scooby, as evidenced by the considerable efforts he has made to challenge the destruction order. Further, if Scooby was not destroyed, it is possible that there would be no further attacks in the future, for the reasons outlined by Ms Johnston. Ultimately, however, I am not required to make a predictive assessment as to whether further attacks are likely. That is because I have not been persuaded that the Judge erred in concluding that the circumstances of the offending were not exceptional. The second stage of the inquiry, namely a determination as to whether the circumstances do not justify destruction of the dog, is accordingly not engaged.
Result
[44] The appeal is dismissed.
Katz J
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