Pukepuke v Auckland Council
[2018] NZHC 1361
•11 June 2018
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 the circumstances of the offence were exceptional and do not warrant destruction of the dog.
[6] There is no question the proceedings were under subs (2), and Biggie’s attack on the sheep falls within the ambit of subs (1)(b), witnessed as it was by the neighbours. The upshot was Biggie must be destroyed, unless Mr Pukepuke established the circumstances of the offence (a) were exceptional, and (b) do not warrant destruction of the dog.1
[7]Justice Katz provides a comprehensive commentary on this two-stage test in
Easthope v Auckland Council:2
[7]This is a two-stage test. In Halliday v New Plymouth District Council, Heath J considered that the following factors may be relevant to determining whether the circumstances of the offence were exceptional (the first stage):
(a) the nature of the attack (including the fact that injury resulted);
(b) the appellant’s history as an owner of the dog;
(c) whether the dog had behaved in this way in the past;
(d) the steps that had been taken by the appellant to prevent such an attack occurring; and
(e) the reasons why the steps taken did not prevent such an attack occurring on the occasion in question.
[8]These factors are not exhaustive. Events which post-date the offence, however, cannot be taken into account at the first stage, because the circumstances of the offence cannot include circumstances that have not yet occurred. The term “exceptional” creates a “very difficult test for a dog owner to surmount”. It requires the circumstances to be “unique or special or substantially unusual”. However, the circumstances need not be extreme.
[9]The second stage of the inquiry, whether the circumstances 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. The assumption behind the provision is that, once a dog has attacked, it will attack again unless there
1 Anand v Auckland Council [2013] NZHC 445, [2013] NZAR 285 at [12].
2 Easthope v Auckland Council [2017] NZHC 3142 at [7] (internal citations omitted).
are reasons to think that another attack is unlikely. The second stage allows for consideration of subsequent protective measures to prevent the dog from attacking again.
[10]The Act prioritises public safety. It does not contemplate second chances for dogs that attack people or animals other than in exceptional circumstances. The law prescribes destruction of the dog as the presumed (or default) penalty for unprovoked attacks. Accordingly, although the dog's previous behaviour is a relevant consideration, it is rare for a prosecution to be brought in circumstances where a dog has a proven history of prior attacks.
[8] I note for completeness, the recent significant decision of Wylie J in Fountain v Auckland Council.3 The Judge found the section enables destruction orders only where an offence has been committed. In that case, the destruction order was overturned because the owner had pleaded, and been found, not guilty to an offence under s 57(2). This decision provides no relief for Biggie in this case given his owner, Mr Pukepuke, pleaded guilty to the charge under s 57(2).
[9]I turn to consider Mr Pukepuke’s grounds of appeal.
Did the Judge place too much weight on the attack?
—the attack
[10] The attack occurred at approximately 8:00am on 2 June 2017. The complainant, in her bedroom at that time, glanced out the window to see all her sheep huddled together, except for one sheep being chased at the end of the paddock by Biggie.
[11] Running outside, the complainant’s husband saw Biggie attacking that sheep and yelled at the dog. Biggie broke off the attack, and ran a circuitous route back to Mr Pukepuke’s property. On inspection, a sheep had sustained serious injuries and was euthanised. Photographs provided in evidence show the bloodied dead sheep with gruesome injuries to its neck, and with an ear ripped off.
[12] Counsel for Mr Pukepuke, Poi Teei, submits the Judge erred in overplaying the attack in his overall analysis, affording it more importance than it deserves, as only one of the five
3 Fountain v Auckland Council [2018] NZHC 591 at [38].
factors enumerated by Heath J in Halliday. Mr Teei implies the Judge’s emphasis on the attack led her to apply the wrong test in two important respects:
(a)she applied the “circumstances of the attack” test – the wording of s 57 before the 2003 amendment – rather than the existing “circumstances of the offence” test. The latter test is of course broader, giving greater focus to the way in which the owner controlled the dog at the time of the attack;4 and
(b)the Judge misdirected herself when she asked counsel acting for the Council whether its position on destruction would have been neutral if the attack had been on a child, as there was no evidence Biggie had ever been aggressive to a person.
—did the Judge err?
[13] Judge Pidwell was clearly mindful of the seriousness of the attack. With respect to Mr Pukepuke’s application for discharge without conviction, Her Honour observed:5
The concern I have in terms of looking at the gravity of the offending is severity of the attack on the sheep. And although it is not described in the summary, the injuries of the sheep show that this must have been a sustained attack by your dog, on not one but two animals, resulting in their injuries being so severe they had to be put down. That concerns me, that the dog was capable of doing that in a situation where it was essentially unprovoked.
She harked back to this observation in addressing the first of the five Halliday factors identified by Heath J, ‘the nature of the attack’,6 and concluded:7
It is due to the savagery of this attack on the sheep that I must now make the unpalatable decision of ordering the destruction of the dog.
Finally, Her Honour comments there was “some form of premeditation in the sense that the dog had chosen to go over the road and then had the sustained attack on [the] sheep”.
[14] “Premeditation” lacks meaning without human agency. I take Her Honour to mean Biggie presented a greater risk because he roamed beyond his owner’s property. But that is in the nature of dogs. I do not otherwise take issue with her observations. The attack was
4 Halliday v New Plymouth Council HC Auckland, CRI-2005-443-011, 14 July 2005 at [42].
5 Auckland Council v Pukepuke [2018] NZDC 6900 at [7].
6 At [15].
7 At [24].
serious, it was not initiated by anything capable of being seen as threatening to the dog, and it resulted in a sheep needing to be put down. I do not see any indication the Judge overegged the nature of the attack in her overall analysis; rather she stepped systematically through the Halliday factors. Her concluding reference to the “savagery of this attack” is not inappropriate given the Act’s focus on protection against future attacks, and the assumption that past behaviour is the best predictor of future behaviour.8
[15] I do not consider the Judge was led to apply the wrong test in either of two respects identified by Mr Teei. The first submission is groundless: the Judge adopted the orthodox Halliday formulation, which goes well beyond the narrower “circumstances of the attack” test.
[16]As to the second submission, Her Honour reasoned:
[23]I asked Ms Castro the question of whether the council would have been neutral if this attack had been on a child. She did not really answer that question affirmatively, it is a speculative one, but I am mindful of the fact that once a dog has attacked, the law assumes that it will attack again unless there are compelling reasons justifying an alternative view. I can find some reason to justify an alternative view in the fact that the dog has not attacked since being rehoused. However, in my view that is not compelling enough due to the savage nature of this attack.
[24]I am sure Mr Pukepuke that you could not live with yourself if that dog attacked your great-nephew and I am not satisfied that he will not do that. Dogs, pets can be replaced but children cannot be.
The Judge was entitled to make this statement as a prediction of future behaviour. There is no reason in principle why Biggie’s attack on stock should not be taken as a risk factor in predicting an attack on a child.
Did the Judge place too little weight on the steps taken to prevent escape?
—the steps taken
[17] It is clear Mr Pukepuke and his wife have tried hard to manage Biggie, along with his brother, Duke. The two dogs had escaped on two previous occasions. On 4 January 2017, Biggie and Duke chased the neighbour’s stock, although only Duke made an attack. The
8 Halliday v New Plymouth Council HC Auckland, CRI-2005-443-011, 14 July 2005 at [44].
dogs escaped again on 12 February 2017. Following the second incident, Mr Pukepuke re- homed the more aggressive Duke, and kept Biggie, who they considered more docile.
[18] A routine was put in place to prevent Biggie escaping. He was kept inside at night, and in the morning released into a fully fenced back yard. Mr Pukepuke or his wife would take him to work each day. All family members knew to keep doors and gates locked. Biggie was not permitted into the front part of the property unless supervised.
[19] But these measures failed on 2 June 2017. Mr Pukepuke submits the circumstances were unusual: while Biggie normally is taken to work before the cleaners arrive, on this occasion the cleaners arrived first, while Mr Pukepuke was still in the shower upstairs unaware of their arrival. The cleaners left the front door of the house and front gate wide open, and Mr Pukepuke only discovered Biggie had escaped when he came downstairs.
—did the Judge err?
[20] Mr Teei submits the Judge erred in not giving due weight to the considerable efforts of Mr Pukepuke and his wife in preventing an escape.
[21]On this point, Her Honour made the following remarks:
[17] I accept the submission that you are a responsible dog owner and that you took all steps to ensure that the dogs did not escape. However, there were two preceding infringement notices before this attack. And although Biggie escaped because of someone else, a third party leaving the door open, that opportunity was still there and unfortunate.
…
[19]The steps you have taken to prevent [the] attack occurring – I accept that you took steps to fence your property and then rehouse both dogs after the attack. You decided initially to keep Biggie after the first attack by his brother Duke but then have now relocated him away from the farming district to prevent a further attack opportunity.
[20]I accept that there was no culpability on your part personally, in terms of preventing the attack, in that the door was left open by a third person. However, I wonder whether more steps could have been taken in relation to the proximity of the dog to the sheep and discussion with the neighbour about risk.
[22] Her Honour does not refer to applicable authorities, although this issue is much- vexed in the caselaw. Perhaps most analogous is the recent decision of Katz J in Easthope v
Auckland Council (currently on appeal).9 Mr Easthope submitted the circumstances of the offence were exceptional because he was not to blame for the attack. As Katz J describes the facts:10
He was at home with Buddy early on New Year's Day when his cousin Tania came around to visit. She was a regular visitor. As she had a key to the property, she simply let herself in the front door. Unfortunately, she left both the door to the house and the gate to the property open, enabling Buddy to escape. Mr Samuel submitted that Buddy's escape was therefore directly attributable to Tania's oversight, rather than any shortcomings on the part of Mr Easthope.
[23] Katz J first noted the attack itself – which involved a dog escaping an open gate and attacking another animal – was quite unexceptional.11 The same point could be made in the present case.12 Katz J went on to say:
[17]It is not possible to formulate general principles as to when third party carelessness might constitute an exceptional circumstance. At one end of the spectrum might be a burglar who came onto a property in the owner's absence and cut off a lock on the gate, allowing a dog to escape. Such circumstances would likely be exceptional.
[18]On the other hand, it would probably not be exceptional for a teenage child to come home from school and leave a gate open. The same would apply to an adult partner of a dog owner who had come around to visit a property. Such circumstances are fairly common and tend towards the routine end of the spectrum rather than the exceptional.
[24] After referring to Auckland City Council v Watts,13 in which the ‘exceptional circumstances’ threshold was crossed when a dog escaped after a construction worker left a gate open, Katz J concluded:
[21] Ultimately, it will be a matter of fact and degree whether a visitor's carelessness constitutes an exceptional circumstance. In this case, the person who left the gate open was a regular visitor.
On the facts of that case the visitor, Tania, had her own key and was not required to call before visiting. As a regular and invited visitor, it was not “unique, special or substantially unusual” for her to forget to close the gate. It could easily happen again.14
9 Easthope v Auckland Council [2017] NZHC 3143.
10 At [12].
11 At [16].
12 See also Selwyn-Mallinson v Rotorua Lakes Council [2016] NZHC 1437 at [15].
13 Auckland City Council v Watts [2017] NZDC 639.
14 Easthope v Auckland Council [2017] NZHC 3143 at [22]-[23].
[25] Katz J’s remarks speak directly to the facts of this case. Mr Pukepuke says “While I was in the shower the cleaners arrived to clean the property. They however arrived earlier than usual.” I infer they were regular cleaners presumably, and with their own keys to the property. Mr Pukepuke only says Biggie “normally” was not present, not “never”. Thus the cleaners must have been briefed on the need to keep the doors and gates closed. It is not exceptional they left the door and gate open. Alternatively, the property was accessible to anyone, and “[u]nexpected visitors at a property are not uncommon”.15 Judge Pidwell properly questioned whether even greater precautions could – and should – have been taken.
Summary
[26] I do not consider the Judge erred in the ways contended by Mr Teei. I consider she properly weighed the Halliday factors, including (in addition to the matters already discussed):
(a)Mr Pukepuke’s three prior infringement notices by Auckland Council, two for failing to keep a dog under control under s 53(1) of the Act, and one for failure to register a dog under s 42;16
(b)the fact and circumstances of Biggie’s two previous escapes, and in particular Biggie’s presence when Duke earlier attacked stock;17
(c)the fact Biggie has now been rehomed in a family home environment and providing therapeutic support to Mr Pukepuke’s great nephew.18 (On appeal, I have a further affidavit from that family, explaining Biggie’s continuing good behaviour and his recent training programme, and including an assessment from a dog trainer of Biggie’s presence in his home); and
(d)Mr Pukepuke’s responsible behaviour in surrendering Biggie to the Council, writing the complainant a letter of apology, and paying $120 in reparation for the sheep (the complainant did not seek any further compensation).19
15 Anand (above n 1) at [20].
16 Auckland Council v Pukepuke [2018] NZDC 6900 [17]. The Judge refers to two infringements, though there were actually three relating to two incidents.
17 At [7].
18 At [21].
19 At [3].
In light of all these factors, the Judge was correct in my view to find the circumstances of the offence were not exceptional.
[27] Given she correctly found exceptional circumstances not to exist, the Judge was not required to address the second test, whether the circumstances warrant destruction of the dog.20 While I accept Mr Pukepuke acted reasonably and responsibly in attempting to prevent escape, responding to the attack, and rehoming Biggie, I also note the remarks of this Court in Sefton v Manukau:21
Mr Sefton submitted that the punishment was out of proportion to the crime …. While that may be so, the Courts are obliged to apply the law as ordained by Parliament, unpalatable though that course may sometimes be.
Biggie’s role in providing companionship and emotional support to his current owners is not something the Judge was entitled to consider, even if the “circumstances of the offence” extend to relevant post-attack matters.22 Biggie’s new life has nothing to do with those ‘circumstances’.
Result
[28]The appeal is dismissed.
—Jagose J
20 Anand (above n 1) at [21].
21 Sefton v Manukau HC Auckland AP206-99, 11 April 2000 at [9].
22 Korewha v Whangarei District Council [2017] NZHC 3178 at [40]. Woodhouse J there refers to s 57(3) as “amount[ing] to sentencing”, justifying sentencing’s more expansive approach to informative facts. For what it is worth, destruction orders should not be seen part of any sentencing process, but as a separate risk avoidance mechanism. Nothing in a dog’s destruction should reflect principles of sentencing as may affect its owner. It is wrong in principle to kill a dog to punish the person charged with its control, care and protection: s 5.
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