Pukepuke v Auckland Council - [2018] NZHC 1361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-0131

[2018] NZHC 1361

BETWEEN
ALLEN WARDLE PUKEPUKE

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 11 June 2018

Appearances:

P N Teei for Appellant

A R Govind for Respondent

Judgment:

11 June 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Teei & Associates, Waitakere
Auckland Council – Legal Services, Auckland

PUKEPUKE v AUCKLAND COUNCIL [2018] NZHC 1361 [11 June 2018]

[1] Mr Pukepuke appeals against an order for the destruction of his dog, Biggie, a male Shar Pei. On 2 June 2017, in view of Mr Pukepuke’s neighbours, Biggie attacked the neighbours’ sheep, inflicting serious injuries to its neck area, requiring the sheep to be euthanised.

[2] Mr Pukepuke pleaded guilty to being the owner of a dog that makes an attack on stock, in terms of s 57(2) of the Dog Control Act 1996 (the “Act”), rendering him liable to a fine not exceeding $3,000. On 10 April 2018, he was sentenced by Judge B R Pidwell in the Waitakere District Court to pay a fine of $750, and his application for discharge without conviction was declined. There is no appeal against conviction or fine.

[3] But s 57 then moves on to the fate of the dog. Under subs (3), if the court is satisfied the dog has committed a qualifying attack and 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.

Judge Pidwell plainly was satisfied Biggie had attacked stock and ordered Biggie be destroyed, stressing the gravity of the unprovoked attack, and the attendant danger that Biggie might next attack a child.

Issues

[4] Mr Pukepuke appeals the decision Biggie was to be destroyed, on grounds the Judge placed:

(a)too much weight on the attack; and

(b)insufficient weight on the exceptional circumstances leading to that attack, specifically the steps taken by Mr Pukepuke to prevent the dog escaping from the property.

Legal framework

[5]Section 57 of the Act relevantly provides as follows:

(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…

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.

Continue reading Pukepuke v Auckland Council

Details

AGLC: Pukepuke v Auckland Council [2018] NZHC 1361
Case: [2018] NZHC 1361
Decision Date: 11 June 2018

CaseChat Overview and Summary

In this case, Mr Pukepuke appeals against the destruction order for his dog, Biggie, a Shar Pei, who attacked and seriously injured a neighbour's sheep. The court must decide whether the Judge erred in placing too much weight on the attack and insufficient weight on the steps taken by Mr Pukepuke to prevent the dog from escaping. The legal issue is whether the circumstances of the offence were exceptional, and if they were not, whether the circumstances warrant the destruction of the dog. The court finds that the Judge did not err in weighing the Halliday factors and that the circumstances of the offence were not exceptional. The appeal is dismissed.

Orders