Moka v Auckland Council - [2020] NZHC 2417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000263

[2020] NZHC 2417

BETWEEN
KERRY-LYNN MOKA

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 14 September 2020

Appearances:

Appellant in person

F A Mohammed for Respondent

Judgment:

16 September 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 16 September 2020 at 4:00 pm.

Registrar/Deputy Registrar

Solicitors: Auckland Council, Auckland Copy to: Appellant

MOKA v AUCKLAND COUNCIL [2020] NZHC 2417 [16 September 2020]

[1] On 5 February 2019, the appellant, Kerry-Lynn Moka, pleaded guilty to one charge of owning a dog that attacked stock. She was convicted and remanded at large for sentencing. On 7 May 2020, she was sentenced to pay reparation in the sum of
$350 to the owner of the stock, payable at rate of $10 per week from 20 May 2020. The sentencing Judge was required by the Dog Control Act 1996 to order the dog’s destruction unless the circumstances of the offence were exceptional. The Judge did not find there were exceptional circumstances and, accordingly, ordered the destruction of the dog. Ms Moka now appeals just against the order for destruction of the dog.

Factual background

[2] Ms Moka is the owner of a brown American pit bull terrier crossbred bitch called Gawjuss. The dog was classified as menacing on 25 January 2018 because of its breed. There was also a white Maltese crossbred dog called Jack living on Ms Moka’s property.

[3] On 9 September 2018 at about 8.20 pm, the complainant observed that the electric fencing on his property had been uprooted and that some of his sheep were in a different paddock. He moved the sheep back and started to repair the fence. While doing so, he heard a dog barking from behind his paddocks, along the hedge line with his neighbour’s property. He walked towards the barking to investigate. He also heard sheep bleating. When he reached the corner of the hedge line he observed a brown pit bull terrier type of dog and a small white dog on his neighbour’s property. The brown dog was attacking one of the neighbour’s sheep. The two dogs then fled into a plantation behind the hedge line.

[4] The complainant examined the sheep and observed massive injuries to its hind legs and lacerations to its head. He followed the direction in which the dogs had fled. On his way, and still on his neighbour’s property, he came across two severely injured lambs with massive bite wounds to their bodies. Whilst looking for the dogs and heading in the direction of Ms Moka’s property, the complainant met up with a man and a woman. The woman, who was later identified as Ms Moka’s daughter, and her partner informed the complainant that they had just caught two dogs that fitted the

description of the two he was looking for. The man told the complainant that the brown dog had blood on its body. He said…

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: [2020] NZHC 2417
Decision Date: 16 September 2020

CaseChat Overview and Summary

The appeal was brought by Kerry-Lynn Moka, the owner of a dog that had attacked and killed five sheep, against the order of the District Court for the dog to be destroyed. Moka pleaded guilty to the charge of owning a dog that attacked stock and was sentenced to pay reparation of $350 and ordered the destruction of the dog. The District Court Judge found that the circumstances of the offence were not exceptional and did not warrant destruction of the dog. Moka appealed against the destruction order. The legal issue was whether the District Court Judge had erred in not finding that the circumstances of the offence were exceptional and did not warrant destruction of the dog. The High Court found that the District Court Judge had not erred in his decision. The Court found that the circumstances of the offence were not exceptional and did not warrant destruction of the dog. The Court held that the focus of the inquiry was on the immediate circumstances of the attack itself and that the dog’s history did not form part of the circumstances of the offence. The Court also held that failures to control a dog were not exceptional circumstances of a kind that indicated that destruction of the dog was not warranted. The appeal was dismissed.

Orders