IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-212
[2023] NZHC 31
BETWEEN ROBERT TELFORD
Applicant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 3 October 2022; further submissions 12 and 19 October 2022 Appearances:
BA Edwards for the Applicant
LL Dempsey and V Schaaf for the Respondent
Judgment:
27 January 2023
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 27 January 2023 at 3.00pm
Registrar/Deputy Registrar
Date……………………………
To: B Edwards, Tauranga
Auckland City Council, Auckland
ROBERT TELFORD v AUCKLAND COUNCIL [2023] NZHC 31 [27 January 2023]
Introduction
[1] Mr Telford appeals against a dog destruction order made in the District Court pursuant to s 57(3) of the Dog Control Act 1996 (the Act).1 The order was made as a result of Mr Telford’s dog, Suki, a 12-year-old female Staffordshire Bull Terrier Cross, escaping from his property and onto Waterview Park and attacking another dog.2
[2] Mr Telford was discharged without conviction. As a result, a question of law arises as to whether the Judge had the power to make a dog destruction order. In other words, is the conviction of a dog’s owner a precondition to an order being made under s 57(3) for the destruction of the dog?
[3] There are divergent lines of authority in this Court on this question of law. It does not appear that all of the relevant authorities were put before the District Court Judge. In particular, the most recent High Court decision on the topic was not before the Judge; in Adams v South Taranaki District Council, Isac J concluded a conviction is a precondition to the making of a dog destruction order.3 Neither party addressed this legal issue in their primary submissions or at the appeal hearing. I accordingly sought and received further written submissions.
[4] Telescoping to the conclusion I have reached, I find that a conviction is a precondition to the making of a dog destruction order under s 57(3) of the Act. The Judge accordingly had no jurisdiction to make the destruction order under s 57(3). There is, however, a residual discretion to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act 2002. This gives the court, on granting a discharge without conviction, the discretion to make any order the court is “required to make” on conviction. While I consider that a dog destruction order is one the court is “required to make” on conviction, I do not exercise my discretion to make such an order in this case. The appeal must accordingly be allowed and the destruction order quashed.
1 Auckland Council v Telford [2022] NZDC 10026.
2 I note that while Suki is described in the summary of facts as a Staffordshire Bull Terrier Cross, Mr Telford deposes that she is in fact an American Staffordshire Terrier. I do not place any weight on what differences, if any, there are between the breeds.
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