Moka v Auckland Council
[2020] NZHC 2417
•16 September 2020
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 he would hold the dogs at Ms Moka’s property until Animal Management arrived.
[5] At about 9.20 pm, an Animal Management officer attended Ms Moka’s property and spoke to her and her brother. Ms Moka told the officer that they had been out and upon their return found the dogs missing. She said they had looked for the dogs but could not find them, but that the dogs had returned home later that night. The officer seized and impounded Ms Moka’s dog.
[6] The owner of the three sheep was informed of the attack on his sheep. The next day he searched the paddock and found that another two of his sheep had also died as a result of dog bites. The market value of these sheep was between $120 and
$200 each.
[7] On 28 September 2018, the complainant was shown photographs of six similar looking dogs. One of the photos was Ms Moka’s dog. The complainant identified Ms Moka’s dog as the brown dog that had attacked the sheep.
[8] Ms Moka does not have any relevant criminal convictions. On 30 January 2018, however, she was issued with an infringement notice under s 53 of the Dog Control Act 1996 for failing to control her dog on 28 January 2018 when the dog was found on private property in Schlaepfer Road, Pukekohe.
Leave to appeal out of time
[9] The appeal was filed 18 working days out of time and therefore leave of the Court is required to pursue this appeal under s 248(4) of the Criminal Procedure Act 2011. Although there is a public interest for legislative timeframes to be adhered to and an onus on a prospective appellant to seek legal advice in a timely manner, the delay is not particularly lengthy. There is also no prejudice to the respondent. In those circumstances, leave to appeal out of time is granted.
The law
[10]Section 57 of the Dog Control Act 1996 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.
(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.
…
[11] The leading case is Auckland Council v Hill.1 There the Court of Appeal confirmed that the focus of s 57(3) is to prioritise public safety and to prevent dog attacks on the public. The Court held that the following a conviction under s 57(3) of the Act, a destruction order will normally follow. If a defendant elects to make submissions in support of exceptional circumstances, then the relative inquiry is limited to the immediate circumstances of the attack itself and cannot include prior history or post-attack conduct. The Court created a two-step approach:
[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
1 Auckland Council v Hill [2020] NZCA 52.
is remote, and does not justify destruction of the dog in the interests of public safety.
[12] The requirements imposed by this test are cumulative, but the requirements are linked and should be applied together. The second requirement informs the first — the circumstances must be exceptional in the way that means destruction of the dog is not warranted.
[13] The Court held that what is exceptional is “an unusual or one-off occurrence that is most unlikely to be repeated”,2 and the defendant taking steps to show the Court that there are extra precautions in place to prevent an attack occurring in the future cannot be taken into account. The Court of Appeal provided the following guidance on circumstances which could be considered exceptional:
[75] This test requires the court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake the difficult, if not impossible, task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future. The inquiry contemplated by the Act is in our view much simpler. Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So 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.
[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.
…
[78] Nor is it open to the owner to argue that the test is met because the attack was caused or contributed to by a one-off failure by an otherwise responsible owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate that destruction of the dog is not warranted. The case law under the Act is replete with examples of precautions that ought to have been taken but were omitted, or were undermined by the actions of innocent third parties (failing to properly shut doors or gates is a common theme), or that failed for a host of other reasons. This case illustrates that very point: Mr Hill omitted to keep his dog muzzled and (it appears) on a leash, even though, because Kratos had been classified as menacing, Mr Hill was required to do so by law. It would be inconsistent with the scheme of the Act and the purpose of s 57(3) to treat such failures as a justification for not making an order for destruction of a dog.
2 At [64].
[14] Dog owners are required to maintain control of their dog at all times. The Court also held that the exceptional circumstances threshold will not be met by arguing there was a one-off failure by the defendant to control the dog.
Grounds of appeal
[15]In the notice of appeal filed by Ms Moka herself, she states:
No legal representation, lawyer didn’t show up.
[16]She also states:
We were advised to enrol and complete an obedience course for dogs. That we done and completed.
[17] Ms Moka has not filed any written submissions, but at the appeal hearing she advised the Court that she had done everything she was asked to do by Auckland Council and the Court, but that a destruction order was still made. Having now undertaken some training, the dog had not been in any trouble for two years. She and her family continue to comply with the conditions set by the Council for return of the dog. The dog was a very much loved member of the family and had been since she was a puppy.
Legal representation
[18] Ms Moka’s first appearance in Court was on 16 January 2019, when she was remanded at large to 5 February 2019. On that date, she was represented by a duty lawyer and pleaded guilty. The Judge noted that a destruction order was to be resisted.
[19] On 7 May 2019, Ms Moka was further remanded at large so that she could get a lawyer to oppose destruction. A lawyer, Ms Gold, first appeared on her behalf on 23 July 2019. On 5 August 2019, Ms Gold filed an affidavit from Ms Moka and submissions opposing a destruction order. The Judge noted that the prosecution now agreed that if training was undertaken it may change its stance in destruction. Ms Moka also gave an undertaking that she would arrange training.
[20] On 1 October 2019, Ms Moka brought the required documents evidencing training to the Court, but sentencing was not able to proceed. On 4 February 2020, Ms Gold withdrew as Ms Moka could no longer afford to pay for her services. The Judge noted that Ms Moka still wanted to run exceptional circumstances and noted that the dog needed training and assessment. He directed a further update report on dog training and safety to be filed and served along with any application and submissions no later than 4.00 pm on 24 April 2020. On 7 May 2020, Ms Moka was represented by the duty lawyer when sentence was imposed.
Release of dog to Ms Moka
[21] The dog was seized by Auckland Council the day following the death of the five sheep. On the same day, Ms Moka applied for her release before the Council had determined whether or not to prosecute her. In making the application for release of the dog, Ms Moka paid the Council $182 for an impound fee and sustenance fee.
[22] On 8 October 2018, after inspecting the property, the Council advised Ms Moka that the dog may return to her address under the following conditions:
(a)The dog must remain on the property at all times. Should the dog leave the property in an emergency, she must be muzzled and be controlled on a leash at all times.
(b)Any person entering the property should be able to have access to at least one door of the house without being hindered by the dog.
(c)Should there be any incidents where the dog has left the address, the Council should be notified as soon as possible.
(d)The dog must be kept in a designated containment area to the rear of the section at all times while unsupervised.
(e)Periodic site visits may be undertaken by the Council to ensure that the conditions are being complied with.
[23] The advice from Auckland Council noted that the release of the dog was the result of the provisions contained in s 71(5) of the Dog Control Act 1996 and that Ms Moka may still be prosecuted, and, depending upon the charge, the dog may be destroyed by order of the Court. Ms Moka paid a further sustenance fee of $374 when the dog was released to her in October 2018. The dog has resided at Ms Moka’s address without incident for almost two years.
Discussion
[24] I am satisfied that Ms Moka was not disadvantaged by the withdrawal of Ms Gold as her lawyer on 4 February 2020, two months prior to sentencing on 7 May 2020. Ms Gold filed a written application opposing the mandatory destruction of the dog, a 40-paragraph affidavit from Ms Moka and a 31-paragraph submission, all on 5 August 2019, and a memorandum attaching evidence of dog training undertaken by Ms Moka through Bark Busters New Zealand on 16 December 2019.
[25] At sentencing on 7 May 2020, Ms Moka was represented by a duty lawyer, Ms Scott, who made comprehensive oral submissions to supplement Ms Gold’s written submissions. The sentencing Judge referred to the submissions of Ms Scott as follows:3
[18] Having had a look at the Court of Appeal case of Hill today and allowing for Ms Scott to do the same, I have heard fully from her as to the matters that the Court could take into account in order to avoid the destruction of Gawjuss. …
…
[20] Ms Scott, on behalf of Ms Moka, put forward the fact that efforts had been made to train the dog and that the dog had been involved in no further incidents between the date in 2018 and today’s date [7 May 2020]. Ms Moka had also taken steps to ensure that the dog was being better managed and in any event the dog on the date of the offence had been inadvertently let out.
[21] What was raised by Ms Scott as a matter for my consideration was whether it reflected well on the Court to have a dog who has been back in the care of its owner since October 2018 destroyed in 2020 because the law now has changed (that is to paraphrase what Ms Scott has submitted to me). I take her point that unfortunately for Ms Moka what has happened between the date of her guilty plea and today’s date is that it has become much harder now for dog owners to avoid the destruction of their dogs. How the dog got out in the
3 Auckland Council v Moka [2020] NZDC 7891.
first place and events relating to good work done after the dog attack are no longer matters that the Court is able to take into account. I say that with reference to paras [5]–[9] inclusive of the decision in Hill.
…
[27] Notwithstanding the assistance that I have received from Ms Scott today and similarly the assistance that she has provided to Ms Moka, looking specifically at the circumstances of the attack itself, I cannot find that there are any exceptional circumstances, let alone that the risk is remote and does not justify the destruction of the dog. Essentially what has happened here is the dogs have got out somehow and this particular dog has then gone on to attack and kill five sheep. There was no provocation. There is no suggestion of the dog defending its owner or anything like that. This is a straightforward dog attack against defenceless stock in my view.
[28] None of the matters, unfortunately for Ms Moka, that have been raised on her behalf by Ms Scott are matters that I can or intend to give weight to when I look at the very narrow focus of the s 57(3) two-step process.
[26]I am satisfied that Ms Scott put forward everything possible for Ms Moka.
[27] Ms Moka also relies on post-offence conduct. She says she was advised to arrange training for the dog, which she has done. She has also complied with all Council requirements for the dog’s return almost two years ago. In effect, she says it is wrong for the Council to return the dog, advise her to arrange training for the dog and tell the Court that they may change their stance on destruction of the dog if she did arrange training if, in the end, an order for destruction is made. It is also cruel to foster hope for two years that a destruction order would not be made.
[28] However, when the dog was returned to Ms Moka by the Council on 8 October 2018 after an inspection of her property, she was advised by letter that she may still be prosecuted and, depending on the charge, the dog may be destroyed by an order of the Court. Further, an order for destruction is the Court’s decision, not that of the Council.
[29] Of more significance, the interpretation of exceptional circumstances of the offence was clarified by the Court of Appeal in Auckland Council v Hill, which was issued on 12 March 2020. Before that date, there was some High Court authority which suggested that post-offence conduct could be taken into account when assessing whether there were exceptional circumstances of the offence. The Court of Appeal says that that is not now possible. I am bound by the Court of Appeal decision.
[30] Like the sentencing Judge, I am of the view that there were no exceptional circumstances. In her affidavit dated 5 August 2019, Ms Moka contends that there were exceptional circumstances. She states:
It is my view that these were exceptional circumstances because this should never had happened. If I am at home, [Gawjuss] would never have escaped. Even if I am not home, my mother is very good at looking after her. This was an unfortunate combination of me going out, my mother being away, and a visitor, who was completely unfamiliar with the rules of our house, coming over and leaving the door wide open.
[31] However, as was made plain by the Court of Appeal in Auckland Council v Hill, failures to control a dog are not exceptional circumstances of a kind that indicates that destruction of the dog is not warranted. As noted by the Court of Appeal, the case law is replete with examples of precautions that ought to have been taken, but were omitted, or undermined by the actions of third parties. Failing to properly shut doors or gates was seen by the Court to be a common theme, which would not amount to exceptional circumstances.
[32] The appeal must, accordingly, be dismissed. Although Ms Moka is obviously very attached to the dog, she has not had day-to-day care of the dog for about a year as she was taken into custody on other matters on 25 September 2019. Although Ms Moka has now been released on electronically-monitored bail and attended court to argue her appeal, she is obliged in terms of her bail to live at an address other than her mothers address, where the dog currently lives.
Woolford J
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