Orr-Walker v Auckland Council - [2013] NZHC 784

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, Papakura
Auckland 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…

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: [2013] NZHC 784
Decision Date: 17 April 2013

CaseChat Overview and Summary

In Orr-Walker v Auckland Council, Ms. Tamsin Orr-Walker, the owner of a dog named Wolfe, appealed a decision by Judge Callander, who ordered Wolfe's destruction following an attack on a four-year-old boy. Ms. Orr-Walker had pleaded guilty to the charge of owning a dog that attacked a person, and the court was required to determine whether the circumstances of the offence warranted Wolfe's destruction. The appeal centred on the interpretation of s 57(3) of the Dog Control Act 1996 and the evaluation of the facts surrounding the attack.

The court found that the Judge had not erred in his interpretation of s 57(3). The statute requires the court to make a destruction order unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog. The court held that the two elements of s 57(3) are linked, and that the exceptional circumstances and unwarranted destruction elements must both be satisfied for the court to decline making a destruction order. The court also found that post-offence events, such as the dog's current behaviour and future control measures, should not be taken into account in determining whether the circumstances of the offence were exceptional.

Regarding the evaluation of the facts, the court found that the attack was serious and not exceptional in nature. The court dismissed the argument that the attack was a "warning snap" and agreed with the Judge's assessment that the injuries were significant and could result in long-term fear of dogs for the victim. The court found no error in the Judge's evaluation of the facts or his application of the law.

As a result, the appeal was dismissed, and the order for Wolfe's destruction stood.

Orders