Sharma v Auckland Council - [2024] NZCA 252

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA74/2024
[2024] NZCA 252

BETWEEN	AMITESH KUMAR SHARMA Applicant
AND	AUCKLAND COUNCIL Respondent

Court:	Courtney, Muir and Cull JJ
Counsel:	T A Hwang for Applicant J B Carter for Respondent
Judgment: (On the papers)	21 June 2024 at 11 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

In September 2023 Mr Sharma pleaded guilty to one charge of owning a dog that attacked a domestic animal[1] and failing to comply with a menacing classification.[2] The charges arose from an incident in which Mr Sharma’s dog, Kaiser, escaped from its home and approached another, much smaller, dog, Mary. What may possibly have begun as an effort to play with Mary turned into an attack that resulted in moderately serious injury to Mary. Judge K Tan in the District Court ordered Mr Sharma to pay a fine, reparations and costs, which Mr Sharma does not seek to appeal against. The Judge also ordered the destruction of Kaiser, in accordance with s 57(3) of the Dog Control Act 1996 (DCA), which is the subject of this proposed appeal.[3]
[1]Dog Control Act 1996, s 57(2).
[2]Sections 33E(1)(a) and 33EC.
[3]Auckland Council v Sharma [2023] NZDC 20024.
Mr Sharma contended that the circumstances of the offence were exceptional because of the unusual combination of events that had led to Kaiser escaping and therefore the otherwise mandatory order for the destruction of Kaiser ought not be made. The Judge did not accept this submission. The Judge found that, on the approach set out in Auckland Council v Hill, the earlier events that led to Kaiser escaping were not relevant to determining whether the “circumstances of the offence” were exceptional for the purposes of s 57(3).[4] The Judge accordingly made an order for Kaiser’s destruction.
[4]At [24], citing Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
Mr Sharma appealed. In the High Court, O’Gorman J carefully reviewed the approach taken in the District Court and found no error in either the approach or the conclusion reached by the District Court Judge.[5]
[5]Sharma v Auckland Council [2023] NZHC 1755.
Mr Sharma seeks leave to bring a second appeal. The application for leave is brought under s 253(1) of the Criminal Procedure Act 2011. The Court must not give leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[6]
[6]Criminal Procedure Act 2011, s 253(3).
Mr Sharma wishes to argue that the Court should revisit the approach taken in Hill so as to extend the inquiry into the “circumstances of the offence” beyond the immediate circumstances in which the attack occurred. On a wider approach, he submits the circumstances in which Kaiser came to…

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: [2024] NZCA 252
Decision Date: 21 June 2024 at 11 am

CaseChat Overview and Summary

In Sharma v Auckland Council, the applicant, Amitesh Kumar Sharma, sought leave to bring a second appeal against the destruction of his dog, Kaiser, ordered by the Auckland Council following an incident in which Kaiser attacked another dog. The Court of Appeal considered the application on the papers and declined leave to bring a second appeal. The initial proceedings arose from an incident where Kaiser, Mr Sharma’s dog, escaped from home and attacked another dog, causing injury. Mr Sharma pleaded guilty to charges under the Dog Control Act 1996 (DCA) and was fined, ordered to pay reparations, and costs, with no appeal against these orders. The destruction of Kaiser, mandated under s 57(3) of the DCA, was the subject of the proposed appeal. Mr Sharma argued that the circumstances leading to the escape were exceptional, warranting deviation from the mandatory destruction order, a submission rejected by both the District Court and High Court.

The legal issues before the Court of Appeal revolved around the interpretation and application of s 57(3) of the DCA, specifically whether the District Court erred in its assessment of the "circumstances of the offence" as not being exceptional. Mr Sharma contended that the decision in Auckland Council v Hill, which constrained the inquiry into the circumstances to those immediately surrounding the attack, was incorrect and unfairly limited the scope of relevant evidence. The Court of Appeal considered whether the application involved a matter of general or public importance or if there was a risk of miscarriage of justice. The Court found that Hill provided a comprehensive and recent interpretation of s 57(3) of the DCA and saw no basis for reconsideration. It concluded that the decision did not involve an issue of general or public importance and found no risk of miscarriage of justice.

The Court of Appeal, therefore, declined the application for leave to bring a second appeal. It held that the lower courts’ decisions were correct and that Mr Sharma could not demonstrate exceptional circumstances under any liberal approach to s 57(3) of the DCA. Consequently, the mandatory order for the destruction of Kaiser remains in effect.

Orders