Nicol v Whakatane District Council - [2012] NZHC 727

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-000003 [2012] NZHC 727

BETWEEN LEEANNE MICHELLE NICOL Appellant

ANDWHAKATANE DISTRICT COUNCIL Respondent

Hearing: 17 April 2012

Appearances: J R Kay for Appellant
S Franklin for Respondent

Judgment: 17 April 2012

Reasons: 18 April 2012

REASONS FOR JUDGMENT OF VENNING J

This judgment was delivered by me on 18 April 2012 at 2.30 am, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Eastbay Law Limited, Whakatane
Hamertons, Whakatane

NICOL V WHAKATANE DISTRICT COUNCIL HC ROT CRI-2012-463-000003 [17 April 2012]

Introduction

[1] The appellant was charged under s 57(1)(a) Dog Control Act 1996, namely that she was the owner of a dog that attacked a person. She pleaded guilty in the District Court at Whakatane. On 23 November 2011 Judge Wolff convicted and discharged the appellant. However, he made an order for destruction of the dog in question, Axle.

[2] Ms Nicol appealed to this Court against the decision that Axle was to be destroyed. At the conclusion of the appeal I indicated the appeal was allowed and that reasons would follow. These are the reasons.

Background facts

[3] Ms Nicol is 42 years old. She has no previous convictions or record of any involvement with the Court. She has owned and controlled Rottweilers for over 19 years. Her dogs have always been registered and received regular veterinary attention. Axle, the dog in question, was seven years old at the time. Ms Nicol also had another younger, female Rottweiler.

[4] On the day of the incident a Bay of Plenty electricity meter reader was at Ms Nicol’s property to read the meter. He had done so on a number of occasions over the past three years without any issue.

[5] While reading the meter he became aware that Axle had come from the rear of the house. Axle appeared at the side of the house. The summary records Axle acting in an aggressive, threatening and intimidating manner and advancing towards the meter reader.

[6] At that stage the meter reader reacted by swinging his hand held reader at the dog and backing away. Unfortunately, while backing away he stepped off the edge of the raised path and fell to the ground, injuring his ankle. Axle then approached him and bit him on the wrist. Ms Nicol then appeared. She called Axle off. He did

not initially respond but on being called again released his grip and retreated to Ms

Nicol.

[7] Ms Nicol then helped the meter reader to his feet and offered to take him to a medical centre for his injuries to be looked at by a doctor. The injuries were principally sustained as a result of his fall. He suffered a fractured bone in his ankle, a strained left shoulder, an injury to a previously damaged right collar bone, a sore hip, neck strain and an injury to his ribs on the left side. In addition there was the bite to the wrist…

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: [2012] NZHC 727
Decision Date: 17 April 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Leeanne Michelle Nicol appealed against a decision of the District Court, which ordered the destruction of her dog, Axle, after he bit a meter reader. The primary issue for the court was whether the circumstances of the offence warranted the destruction of the dog under the Dog Control Act 1996. The court needed to determine if the attack was exceptional and if the destruction of the dog was warranted.

The court examined several factors to decide if the circumstances were exceptional. The attack itself was considered unusual as it occurred after the meter reader fell, and there was no evidence that the bite was serious. Ms Nicol had a long history of responsible dog ownership without any previous incidents. Additionally, Axle had never bitten anyone before and had positive interactions with others. Ms Nicol had taken measures to prevent attacks, such as keeping her dogs inside when the meter was due to be read. The court found that the lapse that led to the incident was due to exceptional circumstances, including Ms Nicol's recent separation, stress, and illness. The court concluded that the attack was a one-off incident and that destroying Axle was not warranted.

The court allowed the appeal, finding that the circumstances of the offence were exceptional and that the destruction of Axle was not justified.

Orders