Mead v Whanganui District Council - [2018] NZHC 3193

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI 2018-483-5

[2018] NZHC 3193

BETWEEN
DENISE BERYL MEAD

Appellant

AND

WHANGANUI DISTRICT COUNCIL

Respondent

Hearing: 26 October 2018

Appearances:

D M Goodlet for Appellant

A S A Hall and J A Avery for Respondent

Judgment:

6 December 2018

JUDGMENT OF MALLON J

Introduction

[1] Ms Mead was convicted in the District Court of being the owner of a dog (Monty) that made an attack on another dog (Alfie).1 She was ordered to pay reparation of $1,890.50 for, primarily, veterinary expenses in treating Alfie’s injuries; emotional harm reparation of $350 to Ms Peet, the owner of Alfie and for whom the attack was extremely distressing; solicitor’s costs and a service fee totalling $330.50.
The District Court also made an order for the destruction of Monty.2

[2] Ms Mead appeals her conviction and sentence. Ms Mead’s particular concern is with the destruction order. She says she did not make an informed decision when she entered a guilty plea. She does not accept the accuracy of the summary of facts on which her guilty plea was entered and did not appreciate its importance when she

1 Dog Control Act 1996, ss 57(1) and (2).
2 Section 57(3); Whanganui District Council v Mead [2018] NZDC 12323.

MEAD v WHANGANUI DISTRICT COUNCIL [2018] NZHC 3193 [6 December 2018]

entered it. She considers the circumstances might not constitute an “attack” and in any event the situation does not warrant the destruction order.

[3] Ms Mead’s conviction appeal is filed out of time. The circumstances have been explained and an extension of time is not opposed by the Council. Leave to file the conviction appeal is granted. Ms Mead has filed an affidavit in support of her appeal. The Council does not oppose it. I will consider the affidavit in the interests of justice.3 On the same basis I will consider the affidavit filed by the Council from Mr Waugh, the duty solicitor on the day Ms Mead was sentenced.

The summary of facts

[4] Monty is a male Pit Bull Terrier cross owned by Ms Mead. Alfie is a Jack Russell Terrier owned by Ms Peet.

[5] On 27 October 2017, at around 2.15 pm, Ms Peet was walking with Alfie at a park. They approached the boat ramp at the park where they saw Monty, with no collar or muzzle, swimming in the river. Alfie walked towards Monty. Monty came out of the river and attacked Alfie, gripping Alfie around the neck with his jaw.

[6] Ms Peet yelled at Monty, punched his face, tried to pry open Monty’s jaws, poked her fingers into Monty’s eyes, tried to push Monty down, and stuck her finger up Monty’s bottom. Eventually Monty released Alfie but then again gripped his jaw on Alfie’s right shoulder and shook Monty from side to side. Ms Peet put her legs around Monty’s body and her arm around his throat. During this scuffle Ms…

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: [2018] NZHC 3193
Decision Date: 6 December 2018

CaseChat Overview and Summary

Denise Beryl Mead was convicted in the District Court of being the owner of a dog that attacked another dog. She appealed against her conviction and sentence to the High Court. The primary concern was the destruction order for her dog. The District Court had ordered the destruction of the dog, Monty, after finding that he had attacked Alfie, another dog, in a public area. Mead argued that she did not make an informed decision when she entered a guilty plea and that the circumstances might not constitute an attack. The court examined whether the destruction order was appropriate and if the circumstances warranted it.

The court considered whether the destruction order was appropriate under the circumstances. It examined the nature of the attack, the history of the dog and its owner, the steps taken by the owner to prevent the attack, and the reasons why those steps were not successful. The court also looked at the purpose of the exception to the mandatory destruction order, which is to recognise that dogs are living creatures of greater significance than mere chattels. The court held that all factors bearing upon the circumstances of the offence should be considered to determine whether the dog must be destroyed.

In this case, the court found that the District Court had not considered all relevant circumstances, and that the destruction order may not have been warranted. The court held that the appeal against the conviction was dismissed, but the appeal against the sentence was allowed to the extent that the destruction order was set aside. The proceeding was remitted back to the District Court for the destruction order to be reconsidered. If agreement was not reached on the summary of facts, it may be necessary for a disputed facts hearing to take place before that reconsideration.

Orders