Robins v New Plymouth District Council
[2025] NZCA 287
•1 July 2025 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA746/2024 |
| BETWEEN | NATASHA ROSINA ROBINS |
| AND | NEW PLYMOUTH DISTRICT COUNCIL |
| Court: | Palmer, Dunningham and Grice JJ |
Counsel: | Applicant in person |
Judgment: | 1 July 2025 at 10 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
Ms Robins applies for leave to bring a second appeal against an order for the destruction of her dog, Indy.[1] The New Plymouth District Council (the Council) opposes the application. The order was made on 30 August 2024 following Ms Robins’ convictions on the following charges under the Dog Control Act 1996:
(a)owning a dog that rushed at a person causing them to be injured;[2] and
(b)failing to register a dog.[3]
[1]New Plymouth District Council v Robins [2024] NZDC 20949 [District Court judgment]. The application for leave is pursuant to the Criminal Procedure Act 2011, s 253(1).
[2]Dog Control Act 1996, s 57A(2).
[3]Section 42(1).
Ms Robins appealed that order. On 10 October 2024, Grau J dismissed the appeal, finding no error by Judge Hikaka in ordering the destruction of the dog.[4]
The background facts
[4]Robins v New Plymouth District Council [2024] NZHC 2942 [High Court judgment] at [31]–[32].
On 24 October 2023, the primary victim and his friends were cycling in the area where Ms Robins lives. As the group neared her home, Indy, her black and tan female Rottweiler, began barking aggressively. As the group got closer, Indy rushed from the property towards the cyclists causing some members of the group to crash.
The victim fell from his bike and landed on the handlebars of another bike causing him significant injury. He was transported to hospital with six fractured ribs. While in the ICU he suffered a number of incidents of atrial fibrillation and, as a consequence of his treatment for this, he suffered a collapsed lung. He spent at least six days in hospital, four of which were in the ICU. Soon after his discharge he returned to the emergency department with an upper respiratory tract infection. His recovery took some time.
The District Court decision
At sentencing, the District Court Judge heard from Ms Robins who said she believed the gate to her property was closed when she let the dogs out to the yard while having a shower, but came out to find there had been an incident involving Indy.[5]
[5]District Court judgment, above n 1, at [13].
The Judge noted, however, that her evidence needed to be put “in the context of the Council’s records of [Ms Robins] and the way [she] look[s] after dogs on [her] property”.[6] That history included:[7]
(a)On 18 December 2017 a complaint was received of two dogs rushing out of her property and at a group of cyclists. She was given two infringement notices for failure to register the dogs at the time.
(b)On 18 February 2018 there was a further complaint about two dogs rushing from her property into a group of cyclists, and acting aggressively, by growling and barking. The dog owner refused to hand over the dogs and she and her partner were verbally abusive to the Dog Control officers.[8] Four infringement notices were issued.
(c)The next day there was another complaint about two dogs rushing out and chasing two cyclists on the previous day which Judge Hikaka said was a separate incident because it resulted in the dogs being seized. During that attendance the dog owners were abusive.
(d)On 26 April 2018 there was a further complaint about two dogs rushing from her property and chasing cyclists down the road. Again, it led to dogs being seized and abuse from the dog owners.
[6]At [14].
[7]At [14].
[8]The Judge noted it was not clear whether the dog owner was Ms Robins.
While the Judge acknowledged the time which had elapsed since these incidents, he considered it indicated an approach to managing the dogs that was far from satisfactory.[9]
[9]At [15].
He also recorded Ms Robins’ willingness to have the dog classified as a dangerous dog but noted that would place additional requirements on Ms Robins in terms of managing the dog and paying increased registration fees, a responsibility she had had difficulty complying with in the past.[10]
[10]At [17]–[18].
In determining whether an order for destruction was appropriate, Judge Hikaka noted the considerations set out in Slater v Police.[11] These included the quality and severity of the offending, the nature and severity of the consequences, the ongoing dangerousness of the dog, and the available measures that exist to ensure similar offending does not occur in the future.[12]
[11]At [19]; and Slater v Police [2015] NZHC 707.
[12]District Court judgment, above n 1, at [19]; and Slater v Police, above n 11, at [18].
In dealing with those issues, the Judge referred back to the circumstances which led to the charge, which included the dog being loose in the front area of Ms Robins’ section with an open gate, the dog’s actions causing disruption to a number of the cyclists who fell from their bikes, and in particular, causing serious injuries to the primary victim.[13]
[13]District Court judgment, above n 1, at [20]–[21].
In terms of assessing the ongoing dangerousness and whether it could be managed, the Judge considered Ms Robins’ evidence that she would ensure the gate would be closed was somewhat undermined by uncontested evidence from the Council that even after she had filed this evidence, there was an unregistered dog on the property and the gate was again observed to be open.[14]
[14]At [22].
The Judge exercised his discretion to order destruction of the dog given the “overall circumstances” of the incident and in the context of Ms Robins’ overall management of her dogs.[15]
The High Court appeal
[15]At [28].
On appeal, Grau J allowed fresh evidence to be adduced.[16] This included affidavit evidence from Ms Robins and her brother-in-law’s partner, who was proposed as a new owner for Indy.[17] There was also an affidavit from the Council’s animal control supervisor which addressed Ms Robins’ proposed transfer of ownership of Indy. It set out the proposed owner’s history of dog control-related matters which included the issue of several infringement notices, only one of which had been paid, the seizure of her dog in late 2022, and the dog’s eventual destruction after she made no contact with the Council.[18]
[16]High Court judgment, above n 4, at [16]. Although the Judge does not articulate why fresh evidence was permitted, it seems likely it was on the grounds it was either updating evidence or admitted in the interests of justice.
[17]At [16].
[18]At [16(d)].
After setting out the applicable law and the facts of the offending, Grau J reached the view that the proposed transfer of ownership did not address the risk Indy posed and there was no error in the District Court Judge’s decision to order the dog’s destruction.[19]
The application for leave to appeal
[19]At [29]–[31].
Ms Robins does not have an automatic right of further appeal. Before leave is granted, the Court must be satisfied that there is an issue of general or public importance, or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[20] An extension of time to apply for leave to bring a second appeal is also required as Ms Robins filed her application more than 20 working days after the High Court judgment was issued.[21] Because the delay is short and the Council is not prejudiced, we grant the application for an extension of time.
The applicant’s submissions
[20]Criminal Procedure Act, s 253(3).
[21]Section 255(2).
Ms Robins has filed submissions on her own behalf. No issue of general or public importance is identified in them and we cannot identify one either. We proceed on the basis that she relies on the ground of a miscarriage of justice occurring.
Her submissions essentially reiterate the position advanced both at sentencing and on appeal. That is:
(a)this behaviour was out of character for Indy;
(b)Indy should be “allowed to spend her remaining senior years in the comfort of her home”;
(c)she was not responsible for the gate being open on the day in question as she had left it shut;
(d)both Indy’s and her behaviour in 2017 and 2018 was due to her own personal circumstances at the time; and
(e)she will be a responsible owner in the future.
Discussion
While acknowledging Ms Robins’ distress at the prospect of Indy being put down, we are satisfied that all the matters addressed in her submissions were taken into account in both the District Court and in the High Court appeal. The outcome reached was clearly available on the evidence before the Judges. In particular, the evidence of both past incidents, and of recent observations by Dog Control officers, allowed the Court to conclude that the risk of ongoing dangerousness was not addressed satisfactorily.
We are satisfied that nothing raised in Ms Robins’ submissions on this application suggests there may have been a miscarriage of justice or that one may occur if leave is not granted.
Accordingly, we decline the application for leave to bring a second appeal.
Result
The application for an extension of time is granted.
The application for leave to bring a second appeal is declined.
Solicitors:
C & M Legal, New Plymouth for Respondent
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