Sharma v Auckland Council - [2023] NZHC 1755

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-542

[2023] NZHC 1755

BETWEEN
AMITESH KUMAR SHARMA

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 5 December 2023

Appearances:

T A Hwang for Appellant J B Carter for Respondent

Judgment:

15 December 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 15 December 2023 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Queen City Law, Auckland
J B Carter, Auckland Council

SHARMA v AUCKLAND COUNCIL [2023] NZHC 1755 [15 December 2023]

[1] This is an appeal against an order for destruction of a dog named Kaiser made by Judge K Tan in the Papakura District Court on 13 September 2023.1 After entering guilty pleas to two charges brought under ss 33E(1)(a) and 57(2) of the Dog Control Act 1996 (the Act), the appellant was convicted of the offences of:

(a)being the owner of a dog that attacked a domestic animal; and

(b)being the owner of a dog that failed to comply with the effects of a menacing classification.

[2]Judge Tan imposed the following sentence on the appellant:2

(a)a total fine of $675 in respect of the two charges;

(b)emotional harm reparation of $1,200 to be paid to the victim dog owner;

(c)a further sum of $498.23 to be paid as reparation for the vet expenses paid by the victim dog owner for injuries to his dog;

(d)$40 for medical bills incurred by the victim dog owner not covered by ACC;

(e)$56 for the costs of Auckland Council; and

(f)an order for the destruction of Kaiser pursuant to s 57(3) of the Act.

[3] Section 57(3) of the Act provides that if the Court is satisfied that the dog has committed an attack on a domestic animal such as described in s 57(1) and the dog has not been destroyed, the Court must make an order for the destruction of the dog unless it is satisfied the circumstances of the offence were exceptional and do not warrant destruction of the dog. Judge Tan was not satisfied that there were such exceptional circumstances.

1 Auckland Council v Sharma [2023] NZDC 20024.
2 At [8] and [34].

[4]The appellant submits that the District Court Judge:

(a)wrongly declined to consider relevant evidence that is not properly excluded under the principles discussed in Auckland Council v Hill;3

(b)wrongly applied Hill to determine that a combination of factors cannot form exceptional circumstances;

(c)erroneously ruled that “play gone wrong” cannot form exceptional circumstances; and

(d)misinterpreted and misapplied Hill and thereby failed to give effect to the statutory purposes of the Act.

[5] The appellant seeks a finding in this Court that destruction is not warranted in terms of s 57(3).

The offending

[6] Judge Tan described the circumstances of the offence and the affidavit evidence that Mr and Mrs Sharma relied upon to substantiate that there were exceptional circumstances that day.

[7] The dog in question, Kaiser, is a…

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: [2023] NZHC 1755
Decision Date: 15 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Sharma v Auckland Council is an appeal against the destruction order for a dog named Kaiser, following the appellant's conviction for offences under the Dog Control Act 1996. The appellant argued that the District Court had erred in its interpretation of the exceptional circumstances that could justify not destroying the dog. The appeal court was required to determine whether the District Court had applied the correct legal principles in assessing whether the circumstances of the offence were exceptional. The High Court held that the District Court had correctly applied the principles established by the Court of Appeal in Auckland Council v Hill, which required the court to focus on the circumstances of the attack itself and not on the history or future behaviour of the dog. The Court found that the combination of factors that led to the attack, while unusual, did not meet the exceptional circumstances required to avoid a destruction order. The appeal was dismissed, and the order for the destruction of Kaiser was upheld.

Orders