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 from Axle.

[8]      Shortly after the incident, Ms Nicol rang the District Council to report that her dog had just bitten the meter reader.

[9]      It is not clear from the summary of facts, which unfortunately is general on a number of important respects, as to the extent of the injury from the bite to the wrist. However, there is no reference in any medical report to lacerations or anything of that kind being sustained. There is no evidence the skin was broken.

The decision in the District Court

[10]     Judge Wolff referred to s  57(1)(a) and (3) of the Dog Control Act 1996 (the

Act):

(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 ...

...

(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.

The Judge also referred to the High Court decisions of Halliday v New Plymouth District Council[1]  and Jorion v Kapiti Coast District Council[2]  which had discussed the relevant provisions of the Act.   The Judge rejected the submissions made on behalf of the appellant that the circumstances of the offence in this case were exceptional. He concluded:

[1] Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.

[2] Jorion v Kapiti Coast District Council HC Palmerston North CRI-2010-454-22, 4 August 2010.

[11]      I accept without reservation that this dog has had no previous history and that it is a much loved family pet.  However, on this occasion, it attacked and bit a meter reader.   I am not satisfied that the circumstances of that attack are exceptional.  Accordingly, the law requires that an order for destruction must be made.

Approach to the appeal

[11]    Mr Kay submitted that the Judge had erred by directing himself to the circumstances of the attack rather than the circumstances of the offence as s 57(3) required.  The distinction between those two concepts was clearly set out in the case of   Halliday   where   Heath   J   noted   the   change   in   statutory   wording   from “circumstances of the attack” to “circumstances of the offence” concluding that a different approach was now required:[3]

[47]     ... .  What is now required is a broader assessment of the likelihood that the dog will behave in a similar way in the future, based on unusual or unique circumstances arising out of the particular offence.

[3] Above n 1 at [47].

[12]     Mr Franklin submitted that, as the Judge referred to both the Halliday and Jorion decisions, he would have been well aware of the change in law and that the reference to circumstances of the attack by the Judge was merely a semantic error rather than any indication of the application of incorrect test.  I understand the point Mr Franklin makes but I note the Judge also referred to the attack itself in previous sections in the judgment.   The point is not clear.   More relevantly perhaps in my judgment  the  approach  to  this  appeal  must  be  the  approach  mandated  by  the Supreme  Court  in  Austin,  Nichols  &  Co  Inc  v  Stichting  Lodestar  for  offences

involving an assessment of fact and degree:[4]

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[4] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [16].

[13]     That is particularly so in this case where the hearing in the District Court proceeded on the basis of the summary of facts and counsels’ submissions.  On that point I note that in his submissions on behalf of the appellant Mr Kay made a number of factual submissions.  Mr Franklin reasonably acknowledged that whilst there was no proof of those facts, to the extent they were general submissions about the position of Ms Nicol, he had no reason to consider they were not accurate and fair submissions.

Reasons

[14]     As  the  authorities  confirm  the  approach  is  a  two-stage  one.    First,  the appellant must establish the circumstances of the offence were exceptional.  If that is established then it is necessary to go on and consider whether the circumstances do not warrant destroying the Axle.

[15]     In the context of the first issue, whether the circumstances of the offence were exceptional, the following features of the present case are in my view relevant.

The nature of the attack

[16]     The attack itself is the bite on the meter reader’s wrist.  That only occurred after the meter reader had backed away and fallen on the ground.  Axle would no doubt have been excited by and would have responded to that commotion.  Prior to that the incident described by the summary of facts would have fallen under s 57A, namely that Axel had startled the meter reader causing him to be injured.   I note s 57A provides  much more discretion  to  the Court  as  to  whether destruction  is necessary.

[17]     The description in the summary of facts of the lead-up to the attack, the bite on the wrist, is very general. Axle is entitled to the benefit of doubt in relation to the description.   There is no suggestion in the summary of facts that Axle ran at the meter reader or that he was barking or growling.  Nor is there any information in the summary of facts as to how close Axle was to the meter reader before he fell over when backing away.   The circumstances of the attack, particularly the bite on the wrist  following  the  evasive  actions  of  the  meter  reader  are  extremely  unusual. Finally, as noted there is no evidence that the bite to the wrist was at all serious or that it required any specific medical treatment.

Ms Nicol’s history as an owner of the dog

[18]     Ms Nicol has been a responsible dog owner for over 19 years.   She has owned a number of Rottweilers over that time.  The dogs have been well cared for and she has never had any dealings with dog control officers in the past.  That also suggests this attack was exceptional.

Whether the dog has behaved in this way in the past?

[19]     At the age of seven Axle has never bitten any person or been the subject of any complaint in the past (nor has any other dog owned by the appellant).  Notably there are a number of references from neighbours, friends and people who have visited the appellant’s  property confirming their  positive  experiences  with Axle. Those references confirm that young children have been completely safe with Axle and Ms Nicol’s other dog, even when they approached the dogs  in Ms Nicol’s absence.

The steps taken by Ms Nicol to prevent such an attack occurring

[20]     Ms Nicol took a number of steps to prevent her dogs from attacking people. The dogs are obviously trained and respond to her command.  The property is fully fenced.  The incident occurred within Ms Nicol’s property.  Ms Nicol is careful to mark her calendar as to when the meter is due to be read so that she keeps her dogs

inside  to  ensure  no  issues  arise  with  the  meter  reader.    Unfortunately  on  this particular occasion she failed to do so.

The reason why the steps taken did not prevent an attack on the occasion in question

[21]     The reasons for the lapse are exceptional and unlikely to occur again. A week prior to this incident the appellant had separated from a partner of 13 years.  She was under considerable stress and having difficulty sleeping.   In addition she was physically unwell.  She was suffering from a mouth abscess which had caused the right side of her face to swell and her eye to partly close.  On the morning of the incident she had sought medical treatment at 7.00 a.m., was prescribed antibiotics and pain relief and had been instructed to sleep.  She had returned home and gone to sleep.  Inadvertently, in her confused and unwell state, she left the back door open which enabled Axle to leave the house.

Other issues

[22]     Without  wishing  to  diminish  the  impact  on  the  meter  reader,  on  the information before the Court the bite itself seems to have been relatively minor.  It seems to have been more in the nature of Axle holding the meter reader’s wrist which he released on the command of the appellant.  Those actions are consistent with a dog under the control of its owner rather than any kind of out of control attack.

[23]     I am satisfied that the circumstances of this offence were exceptional.

[24]     I am also satisfied that the circumstances of the offence do not warrant Axle’s destruction given this attack is a one-off incident against the background of the appellant owning dogs of this nature for 19 years without any previous incident. Axle is responsive to the appellant’s commands and is under her control.  Axle has remained in the appellant’s custody since the attack.  The meter reader has continued to read the meter without further incident. Axle has, in the past, interacted with other people visiting the appellant’s property without incident and continues to do so.

[25]     For the above reasons I was satisfied that the circumstances of the offence in this case were exceptional and Axle’s destruction was not warranted.  For those

reasons the appeal was allowed.

Venning J