Orr-Walker v Auckland Council
[2013] NZHC 784
•17 April 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-404-417 [2013] NZHC 784
BETWEEN TAMSIN ORR-WALKER Appellant
ANDAUCKLAND COUNCIL Respondent
Hearing: 15 April 2013
Counsel: P L Borich for Appellant
V J Tamatea for Respondent
Judgment: 17 April 2013
JUDGMENT OF HEATH J
This judgment was delivered by me on 17 April 2013 at 9.30am pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Rice Craig, PO Box 72-440, PapakuraAuckland Council, Private Bag 92300, Victoria Street, Auckland
ORR-WALKER V AUCKLAND COUNCIL HC AK CRI 2013-404-417 [17 April 2013]
The appeal
[1] Ms Orr-Walker is the owner of a grey and white, entire male, Mastiff Great Dane cross, called Wolfe. She was charged with owning a dog that attacked a person, namely a four year old boy.1 She pleaded guilty to that charge, in the District Court at Waitakere. On 5 December 2012, she was discharged without conviction, under s 106 of the Sentencing Act 2002.2 In making that order, Judge Callander was influenced significantly by Ms Orr-Walker’s “exemplary professional behaviour with respect to animal welfare over many years”.3 No appeal is brought against that order.
[2] Ms Orr-Walker’s plea of guilty was sufficient to satisfy the Court that Wolfe had attacked a person. That being so, s 57(3) of the Dog Control Act 1996 (the Act) requires the Court to “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”.4 Submissions were made to Judge Callander in writing, on that issue.
[3] In a judgment delivered on 13 February 2013, the Judge made an order that
Wolfe be destroyed.5 Ms Orr-Walker appeals against that order.
The facts
[4] What follows is a summary of the facts, on the basis of which Ms Orr-Walker entered her plea of guilty.
1 Dog Control Act 1996, s 57(2).
2 Auckland Council v Orr-Walker DC Waitakere CRI 2012-090-8245, 5 December 2012 (Judge
Callander).
3 Ibid, at para [1].
4 Section 57(3) is set out in full at para [13] below.
5 Auckland Council v Orr-Walker DC Waitakere CRI 2012-090-8245, 13 February 2013, at para
[22].
[5] On 23 July 2011, Ms Orr-Walker was at the Hardware Café on Titirangi Road. She was in the outside seating area, with Wolfe. The dog was on a short leash.
[6] The complainant was walking past the cafe with her husband. He was pushing a pram with their baby in it. They were accompanied by their four year old son. The mother noticed a “very large dog at the outside table, sitting” with Ms Orr- Walker.
[7] The mother stopped and spoke to Ms Orr-Walker. She asked about the dog’s breed. At this stage, she was next to the dog and her son was about two metres away. The mother made no attempt to touch the dog and her son remained where he was, “looking at the dog”.
[8] Ms Orr-Walker was about to answer the mother’s question about the dog’s breed, when Wolfe “abruptly and aggressively snarled and appeared to be looking directly” at the child. The dog “then suddenly lunged at [the boy], biting him on and in the face area”.
[9] The mother screamed for her husband, yelling that their child had been bitten. Someone called an ambulance. Attempts were made inside the cafe to stem the bleeding on the young boy’s face. He was taken to hospital by ambulance and stayed overnight.
[10] As a result of the attack, the child suffered injuries on the left side of his face. There was a 1.5cm through and through laceration on his upper lip; a 1cm through and through laceration on his lower lip; a puncture wound under his chin and a 1cm laceration on his left cheek area.
[11] An animal control officer spoke to Ms Orr-Walker, after she had taken Wolfe back to her home. She advised that Wolfe had been secured and was being kept at her home. She was genuinely upset about what had happened. The officer advised Ms Orr-Walker of possible prosecution action.
[12] Initially, Wolfe was impounded while the incident was investigated. On 27
July 2011, Ms Orr-Walker wrote to the Council requesting that the dog be released back to her, pending completion of the investigation and any prosecution.6 An officer responded to advise that Wolfe could return to her home subject to confinement at that property in a securely fenced portion of it that allowed safe access to one door of the dwelling. If Wolfe required veterinary care, he was to be muzzled at all times when removed from the property.
Legal principles
[13] In Halliday v New Plymouth District Council,7 I considered the interpretation to be given to s 57(3) of the Act, in light of amendments that had been made to the statute. In its then and current form ss 57(2) and (3) provide:
57 Dogs attacking persons or animals
...
(2) The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on summary 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.
....
[14] In Halliday, I said:
[40] First, the phrase “circumstances of the offence” remains qualified by the word “exceptional”. To that extent authorities such as Te Kahu v Police, Peteru v Manukau City Council, Pomana v Police and Milner v Hastings District Council, continue to apply. The term “exceptional” creates a very difficult test for a dog owner to surmount and requires the circumstances to be unique, special or substantially unusual, though not necessarily extreme.
[41] Second, the wider phrase “the circumstances of the offence were exceptional” is itself qualified by the words “and do not warrant destruction of the dog.” That latter qualifier is also to be found in s58, dealing with
6 Dog Control Act 1996, s 71(4).
7 Halliday v New Plymouth District Council HC New Plymouth CRI 2005-443-011, 14 July 2005.
“circumstances of the attack”. The qualifying phrase “and do not warrant destruction of the dog” focuses attention on the need for a predictive assessment of whether the dog is likely to behave in a similar way in the future. Destruction of a dog which has attacked or caused serious injury to a person will be unwarranted only if the Court were satisfied that the dog was unlikely to attack or cause serious injury again.
[42] Third, the change in focus from “circumstances of the attack” to “circumstances of the offence” necessitates a change in approach from the authorities that interpreted the old s57(5). Accordingly, cases such as Sutherland v Rotorua District Council and Rotorua District Council v Whakaue will no longer be applicable in determining whether a destruction order ought to be made under s57(3). That is because the prior history of the dog (whether it has a history of prior attacks or not) is relevant to the “circumstances of the offence” but not to the “circumstances of the attack”. Similarly, circumstances relating to the way in which the owner controlled the dog at the time of the attack might be relevant to the reason for the offence occurring but not necessarily to the attack itself.
[43] Fourth, by focusing on the “offence” events which post-date the offence ought not to be taken into account. That is because, quite simply, the circumstances of the offence cannot include any circumstances that had not yet occurred.
[44] What is the underlying rationale that justifies a change of approach of the type I have mentioned? In my view, it is the need to focus on the likelihood of the dog behaving in a similar fashion in the future and, therefore, endangering people or other animals. The underlying principle in ss57 and 58 seems to be that, in the absence of exceptional circumstances of the type decreed by each of those provisions, past behaviour is regarded as the best predictor of future behaviour. In other words, once a dog has attacked it will be assumed it will attack again unless there are compelling reasons justifying an alternative view.
...
[47] In summary, I hold that a different approach is now required to the exercise of the Court’s jurisdiction to make a destruction order under s57(3) of the Act. The previous approach, focussing on the “attack”, is no longer the law. 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.
[48] In the context of this particular case factors that might be relevant in determining whether there were exceptional circumstances that do not require a destruction order to be made would include:
a) the nature of the attack (including the fact that injury resulted);
b) Mr Halliday’s history as an owner of the dog;
c) whether the dog had behaved this way in the past;
d) the steps that had been taken by Mr Halliday to prevent such an attack occurring, and
e) the reason why the steps taken by Mr Halliday did not prevent an attack on the occasion in question.
Those factors are intended to be indicative rather than exhaustive. (emphasis added)
[15] My decision in Halliday was applied and approved by Dobson J, in Jorion v Kapiti District Council.8 In discussing the linkage between the two elements of s 57(3) (“circumstances of the offence were exceptional” and “do not warrant destruction of the dog”), Dobson J said:
[8] In Halliday, Heath J reviewed the history of s 57(3) and the rationale for changes of the test from “circumstances of the attack” to “circumstances of the offence”. The considerations he identified were, first, the use of the term “exceptional” was seen as creating a very difficult test for a dog owner to surmount. Secondly, the phrase “circumstances of the offence were exceptional” is itself qualified by the words “...and do not warrant destruction of the dog”. The latter phrase was treated as focusing attention on the need for a predictive assessment of whether the dog is likely to behave in a similar way in the future. I agree with that.
...
[12] It is implicit in Heath J’s analysis of s 57(3) that the two sets of considerations required are sequential. First, a dog owner resisting an order where a relevant attack has occurred must establish that the circumstances of the offence were exceptional. If that test is satisfied, then it is necessary to go on and consider whether those circumstances do not warrant destroying the dog. This means that, however exceptional the circumstances, if there remains a prospect that the dog would attack again, then its destruction would be warranted.
Grounds of appeal
[16] Following discussion between Mr Borich, for Ms Orr-Walker, and myself during the course of argument, Mr Borich confirmed that the following questions captured his appeal points:
(a) Did the Judge err in following the approach (taken by myself and Dobson J, in Halliday and Jorion respectively) to the interpretation of s 57(3) of the Act, insofar as we held that the “exceptional
circumstances” and “unwarranted” destruction elements were linked?
8 Jorion v Kapiti District Council HC Palmerston North CRI 2010-454-22, 4 August 2010. See also, Anand v Auckland Council [2013] NZHC 445 at paras [16]–[19] (Katz J).
Mr Borich submitted that irrespective of whether “exceptional circumstances” were found, the Judge retained a discretion not to order destruction under the “unwarranted” limb of s 57(3).
(b) Did the Judge err in his assessment of the seriousness of the attack?
(c) Did the Judge conflate the present test of “circumstances of the offence” with the earlier “circumstances of the attack” test?
(d)Did the Judge err in holding that the circumstances relating to the offence were not exceptional?
(e) Was the Judge correct to have regard to factors arising from the application of the Victims’ Rights Act 2002 in determining whether a destruction order should be made.
[17] Mr Tamatea, for the Auckland Council as informant, submitted that the Judge had made no error of law in his approach. Nor, he submitted, did the Judge make any errors of fact. Mr Tamatea contended that, for the reasons given by the Judge, the appeal should be dismissed.
[18] I do not intend to discuss separately each of the points raised by Mr Borich. In my view, they can be grouped conveniently under two headings: namely, the interpretation to be given to s 57(3) and the Judge’s evaluation of the facts.
Analysis
(a) The interpretation points
[19] The first question is whether I was correct to hold, in Halliday, that the Court could not decline to make an order for destruction of the dog unless satisfied that the circumstances of the offence were exceptional and they did not warrant destruction
of the dog. As indicated, that approach was adopted and applied by Dobson J, in
Jorion.9
[20] Mr Borich’s argument is that, irrespective of the Court’s conclusion on whether the circumstances of the offence were exceptional, there remains an ability for the Court to decline to order destruction, if the circumstances “do not warrant” that course. With respect, that argument is untenable. Parliament has decreed that the Court must make a destruction order unless satisfied both that the circumstances of the offence were exceptional and destruction is not warranted by them. If it had intended to provide a general discretion to decline to order destruction, it could have said so in much more simple language. It did not. The purpose of the sub-section is, as Dobson J observed more lucidly than I, to require the Court to order destruction unless the circumstances of the offence are exceptional and destruction is
unwarranted.10 Section 57(3) does not allow the Court to refuse to make a
destruction order in the absence of exceptional circumstances relating to the offence.
[21] The next question is whether s 57(3) allows a Judge to take into account factors arising from post-offence considerations. In this case, Mr Borich submits that I should have regard to the fact that Wolfe is now older and has not misbehaved in any relevant sense since held in a form of restricted detention, under s 71 of the Act. He also points to the “menacing dog” provisions of the Act,11 which he submits may be taken into account in determining whether the circumstances were exceptional, as these are a means of controlling the dog’s behaviour in the future.
[22] In Halliday, I took the view that events which post-date the offence ought not to be taken into account.12 I see no basis on which I should revisit that opinion. The factors to which Mr Borich refers may well be relevant to whether, exceptional circumstances of the offence having been established, destruction of the dog is, nevertheless, unwarranted. Means by which the dog may be controlled in the future
would be relevant to that consideration. However, they are far removed from what
9 Jorion v Kapiti District Council HC Palmerston North CRI 2010-454-22, 4 August 2010 at para
[12], set out at para [15] above.
10 Ibid.
11 Dog Control Act 1996, s 33A.
12 Halliday v New Plymouth District Council HC New Plymouth CRI 2005-443-011, 14 July 2005 at para [43], set out at para [14] above.
happened at the time of the attack and cannot be considered in the context of whether the circumstances of the offence were exceptional.
(b) Alleged factual errors
[23] Mr Borich submitted that the Judge erred in his assessment of the seriousness of the injury caused by the dog’s attack. He also submitted that the Judge had failed to take into account the nature of any “provocation” that might have led to the “bite”.
[24] Mr Borich was careful, when making submissions, to distance Ms Orr- Walker’s case from any “attack” by the dog. On occasion he referred to it as “an incident” and the word “bite” was used in the context to which I have just referred13 as a neutral term.
[25] Yet, an attack is precisely what it was. And that was acknowledged by Ms Orr-Walker when she entered her plea of guilty to the charge that she was the owner of a dog that made an attack.14 It is also consistent with what occurred. On the summary of facts to which Ms Orr-Walker pleaded, it is plain that the dog snarled and then bit a young boy who was doing nothing to provoke it. No evidence was called to suggest any other form of provocation. None can responsibly be suggested.
[26] Another complaint was that Judge Callander inappropriately referred to other cases with which he had dealt as a Judge over a period of some 35 years on the Bench without giving counsel an opportunity to comment specifically on them. The
passage from the Judge’s decision that is in issue states:
13 See para [23] above.
14 Dog Control Act 1996, s 57(1) and (2).
[18] I now turn to the primary question I must answer. Only if the answer is favourable to the defendant need the second question as to whether destruction is warrant be answered. Am I satisfied that the circumstances of the offence were exceptional? As Heath J said: “The term ‘exceptional’ creates a very difficult test for a dog owner to surmount, and requires the circumstances to be unique, special or substantially unusual, through not necessarily extreme”. Over the years I have dealt with several cases where a formerly placid, loyal, and protective family dog has without warning bitten either a child or adult. The circumstances of the attack in this case are not exceptional but relatively commonplace.
(emphasis added)
[27] This factor did not, in my view, influence Judge Callander’s ultimate decision. He took the view that the circumstances of the offence were not “exceptional”. Whether or not they are “relatively commonplace” is beside the point. I do not consider that the point raised by Mr Borich (whatever its validity or otherwise) is material to the determination of the appeal.
[28] Mr Borich contended that the Judge applied the wrong test because he made a number of references to the circumstances of the attack rather than the circumstances of the offence. On reflection, I agree with Mr Tamatea that there is no basis for such a criticism.
[29] First, the Judge correctly stated the test when he posed the question: “Am I satisfied that the circumstances of the offence were exceptional”?15 Second, having concluded that the circumstances of the attack were not exceptional, he proceeded to consider whether other factors of the type I discussed in Halliday brought the case into that category. He said:
[20] Although I have decided that the circumstances of the attack were not exceptional, that is not, for the reasons given by Heath J, the end of the matter. Do the other circumstances relating to past safety and control issues bring the case into the category of being exceptional? The reality is that many owners of miscreant dogs are like Ms Orr-Walker and have an impeccable background of dog control that nonetheless did not prevent an attack occurring. Furthermore, there are many loving owners of such pets who genuinely promise to keep the dog forever restricted to ensure no further likelihood of aggression. I am sure the defendant is just such a person. But do these preventive factors bring the case into the exceptional category? I think not. It is also imperative for the court to ensure
victims, and ensure the ongoing safety of the community. (emphasis added)
[30] Mr Borich also complained that the Judge had simply replicated the
“exceptional circumstances” considerations to which I had referred in Halliday.16
That, he submitted, was contrary to my stated intention not to be exhaustive in setting out relevant factors. However, when the Judge addressed that issue he was careful to add a reference to “any other issues” to ensure that his decision reflected the particular circumstances of this case. Judge Callander said:
[11] In deciding whether there are exceptional circumstances of the offence that do not require a destruction order I must consider:
(a) The nature of the attack;
(b) The defendant’s history as an owner of a dog;
(c) Whether the dog has behaved this way in the past;
(d) The steps taken by the defendant to prevent an attack occurring;
(e) The reasons why the steps taken did not prevent an attack on the occasion;
(f) Any other issues.
[31] In my view, the Judge did consider all relevant factors. There is no basis to challenge his decision on the ground that he did not.
[32] Mr Borich submitted that the injuries suffered by the young boy were not significant and the circumstances put it at the lower end of what constituted an “attack”. Judge Callander recorded:
[12] ... [Mr Borich] submits:
(a) Wolfe and owner had been seated at the crowded cafe without incident for some 40 minutes prior to arrival of the victim and his mother.
(b) The victim’s mother took the child up to Wolfe (within 1
metre, and at eye level directly looking at the dog) whilst the
Wolfe.
(c) Wolfe was being actively restrained on a short leash held by the defendant.
(d) The victim appeared to have been scared of dogs and may have been staring at Wolfe.
(e) This staring may have been misinterpreted by Wolfe as aggressive behaviour (see the report by Mark Vette of Animals On).
(f) The “attack” involved a rocking forward from the seated position (whilst being restrained on a short leash) and a single snap to the face of the victim (with no ripping, further biting or tearing etc as such).
Given the size of Wolfe (when compared to the victim) Mr Borich says it is difficult to see the attack as anything other than a “warning” snap for the victim to respect the space of the dog rather than the sort of more serious attacks involving multiple biting, ripping, and growling that, unfortunately, the Court sees from time to time.
[33] With respect, that submission is also untenable. Wolfe attacked the young boy. This was not a warning snap; it was a bite to the child’s face. What happened may have been out of character and may not be capable of any rational explanation, but the attack did happen and serious injuries were inflicted.
[34] I agree with Judge Callander’s conclusion, based on Mr Tamatea’s submissions, “that the injuries were significantly serious. ... [including] facial scars, and the attack may well cause the child to have a long-term fear of dogs”.17
[35] Finally, I refer to the “victim’s rights” point. In this type of case, the victim’s views are relevant but do not have determinative weight. Nor did Judge Callander purport to give such weight to them. I do not consider the Judge erred in his
judgment, on that issue.18
17 Ibid, at para [14].
18 Ibid, at para [20], set out at para [28] above.
Result
[36] I am satisfied that the Judge made no error of law. Nor did he evaluate the evidence incorrectly. In those circumstances, the appeal is dismissed.
P R Heath J
Delivered at 9.30am on 17 April 2013
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