Telford v Auckland Council
[2023] NZHC 31
•27 January 2023
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.
3 Adams v South Taranaki District Council [2021] NZHC 3254.
[5]The balance of this judgment is structured as follows:
(a)I first set out the factual background to the attack.
(b)To put aspects of the Judge’s decision and the parties’ submissions in context, I then summarise the approach to making an order under s 57(3) of the Act, as confirmed by the Court of Appeal in Auckland Council v Hill.4
(c)I then summarise the Judge’s decision and the parties’ submissions.
(d)I next address whether a conviction is a precondition to making a dog destruction order under s 57(3) of the Act, and set out my reasoning for concluding that it is.
(e)Finally, I address whether the Judge nevertheless retained a discretion to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act.
The circumstances of the attack
[6] The circumstances of the attack were set out in an agreed summary of facts which was put before the District Court at sentencing. The following is therefore taken from that summary.
[7] On 18 April 2021 at approximately 3 pm, the complainant was in Waterview Park with her dog Charlie on a lead. The complainant was sitting on a public picnic table holding Charlie’s leash while he was lying down under the table. A dog, later identified as Suki, suddenly ran straight across the park towards Charlie. Suki grabbed Charlie by the throat and latched on. Charlie was yelping.
[8] After approximately one minute the complainant managed to get Suki to let go, but a few seconds later she again latched onto Charlie under his right side front leg
4 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
and armpit. The complainant and a bystander tried to get Suki to release Charlie. The complainant lifted Suki by her scruff and the bystander used her foot to keep Suki off Charlie.
[9] The complainant picked Charlie up and took him to her car. The bystander locked Suki in the public toilet. Animal Management were called to come and uplift Suki.
[10] Charlie was taken to VSA Vets at Mt Wellington for treatment. He remained there overnight. The next day Charlie was taken to Great South Vets for further treatment. Charlie sustained multiple puncture wounds.
[11] Suki was seized and impounded by Animal Management. At the time she was unable to be identified because she was not registered. The next day Mr Telford made contact with the animal shelter. Suki was subsequently released on strict conditions pending the outcome of the prosecution. Those included that Suki was to remain on Mr Telford’s property at all times, unless being transported to a vet or any other emergency related incident.
[12] Mr Telford filed an affidavit in the District Court in which he provided further context to the attack. He states that he and his family (including Suki) had just moved to a new property five days prior to the attack. Mr Telford explained that he had checked the property to ensure it was fully fenced before letting Suki spend time in the yard. On the day of the attack, Suki was left at home while the family were out. Mr Telford says that Suki suffers from separation anxiety and at some point during the day she managed to escape from the property. When Mr Telford returned home, he found that Suki was missing. He located her at the animal shelter the next day. Mr Telford says Animal Control told him that before the attack Suki had reportedly been running around the park for hours looking lost and distressed.5 Mr Telford deposes that Suki’s behaviour on the day in question was totally out of character; there have never been complaints made to the Council about Suki over her 12 years of life. Mr Telford goes on to say:
5 There is no affidavit or similar material from Animal Control confirming their discussions with Mr Telford.
Karl Nespensy from Animal Control advised me that [Suki] was really scared when he collected her from the park and commented that he felt bad for her. There are no reports that she was menacing or a threat to him or the bystander who locked her in the public toilet. When I visited the pound where she was taken, they stated she was a lovely dog and asked Animal Control for her to be released immediately as she was old and vulnerable.
Karl Nespensy conducted an inspection of the property that same morning. He commented that the property was more secure than what he often sees and just asked that a dangerous dog sign be put out the front and that I reinforce the fencing. These were both implemented immediately and Suki was returned to us that day so was in the pound for less than 24 hours, for which I am very grateful.
The Council are representing Suki as [an] ‘aggressive/territorial’ dog – this is simply not true. In the 12 years that I have had her in my family, she has never before run away or bitten another animal or human. I have five children and never once worried about them or others around Suki.
[13] Mr Telford annexes to his affidavit a letter from his vet confirming that following the incident, and to address ongoing anxiety, Suki was put on a long-term course of anti-depressant medication. Mr Telford’s affidavit also says that the vet wants to watch Suki for senile cognitive dysfunction. I note that the vet’s letter does not substantively address this claim, instead it simply notes that the condition was discussed. The materials do not address any causative link between the condition(s) and the attack.
[14] Further materials from the vet were put before the Judge at the hearing. These disclose that Suki underwent an emergency spay surgery in May 2022. The vet report indicates that good progress appears to have been made in treating Suki’s separation anxiety. The materials also confirm that over multiple vet visits, there have not been any “incidents or near incidents” involving Suki, and Suki is described as “sweet” and “friendly” by staff.
Legal principles
[15] In order to put the Judge’s decision and the parties’ submissions on the appeal into context, it is helpful to first outline the legal principles applicable to dog destruction orders.
Section 57 of the Act relevantly provides:
Dogs attacking persons or animals
(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.
…
[17] The Court of Appeal in Auckland Council v Hill recently confirmed the proper approach to dog destruction orders under s 57(3).6 The Court discussed the underlying rationale for the presumptive requirement for destruction in the context of an offence against s 57(2) as follows:
[65] … The reason for a default rule that the dog should be destroyed is that the Act proceeds on the basis that where a dog has attacked once, there is a risk that the dog will behave in the same way again in similar circumstances. That risk must be removed by destruction of the dog, unless the risk is immaterial because the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely.
[18] The Court also conducted a detailed review of the relevant provisions of the Act and summarised the proper approach to determining whether the circumstances of the offence are exceptional and therefore do not warrant the destruction of the dog. It stated:
[4] Where the owner of a dog is convicted of the strict liability offence created by s 57(2), an order under s 57(3) for destruction of the dog will normally follow.
6 Auckland Council v Hill, above n [4].
[5] The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete – that is, after the attack occurs – also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
[6] The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
[7] It is not open to the dog’s owner to argue that the dog can be expected to behave differently in similar circumstances in the future – for example, as a result of post-attack training. Rather, the focus is on the risk that the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.
[8] Nor is it open to the owner to argue that the s 57(3) test is met because the attack was caused or contributed to by a one-off failure by the owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate that destruction of the dog is not warranted.
[9] Circumstances that were not exceptional at the time the attack occurred cannot become exceptional as a result of post-attack events. If there was nothing exceptional about the circumstances of the attack when they occurred – nothing out of the ordinary which can be identified as a relevant factor in the attack – the s 57(3) exception does not apply. In particular, assurances given by the current owner about the future management and control of the dog are not relevant to the s 57(3) inquiry.
[19]The Court further noted that:
[84] … If the circumstances of the attack are exceptional, in the sense that the dog can properly be seen as not intrinsically dangerous – for example where the dog’s owner was under attack, or where the dog was provoked – then a court may be satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
The District Court decision
[20] As noted earlier, Mr Telford was discharged without conviction of the offence created by s 57(2) of the Act. There is no appeal in respect of this aspect of the Judge’s decision.
[21] Turning to why the Judge nevertheless made a dog destruction order, the Judge first summarised the factual circumstances concerning the attack by reference to the summary of facts already discussed. Relevant to aspects of Mr Telford’s submissions on the appeal, in the early parts of his judgment, the Judge expressly referred to the proviso set out in s 57(3) of the Act when a dog destruction order is not required to be made:
(a)First, the Judge stated:
[8] … The caption summary details what we know, which is that exceptional circumstances must exist to avoid a destruction of any dog in the circumstances, as Suki finds herself.
(b)The Judge also referred the Council’s submission that “I must order destruction of the dog, there being no exceptional circumstances that exist”.7
[22] The Judge then turned to consider the application for a discharge without conviction. The Judge concluded that the gravity of the offence sat at a moderate level in relation to the charge itself. He also noted the type of charge sat at the lesser end of the scale for a s 106, given the maximum penalty prescribed by Parliament is one of a
$3,000 fine.8 In terms of the direct and indirect consequences of a conviction, the Judge was satisfied on the affidavit evidence before the Court that those consequences would be out of all proportion to Mr Telford’s offending. The Judge referred to the financial hardship and potential loss of contracts which would flow as a result of the mere fact of a conviction for Mr Telford. The Judge noted that this was because Mr Telford is a projects manager for a construction company that does work in schools, prisons and state housing. The Judge accepted that a conviction, even for a dog control offence, would be prohibitive for him continuing that work because of the vetting procedure involved. He also noted that there was evidence in Mr Telford’s affidavit that he and his partner planned to offer a homestay service, which would be jeopardised by Mr Telford receiving a criminal record. The Judge stated that “I do not know precisely whether that would rule him out” but accepted that there would be a
7 At [10].
8 At [14].
real and appreciable risk that he may well lose that income at least in relation to homestay for students.9
[23] The reason I have referred to these matters, despite there being no appeal on this aspect of the Judge’s decision, is that the basis upon which the Judge granted the discharge without conviction did not relate to matters concerning Suki or the attack itself. This is relevant because some judges have relied on the prospect of a dog owner avoiding a dog destruction order on the basis of matters unrelated to the risk arising from the attack itself as supporting the conclusion that an order under s 57(3) does not require the owner to been convicted.
[24] Turning back to the Judge’s decision, having granted Mr Telford a discharge without conviction, the Judge then turned to consider making a dog destruction order. In doing so, he clearly proceeded on the basis that a conviction was not a precondition to making such an order. The Judge’s reasoning for his view that the destruction order was required are brief. He stated:
[24] … The test is clear. Section 57(2) says that I must order a destruction of a dog if it satisfies that section (has attacked in this case a domestic animal). They must relate to the actual circumstances of the attack. I cannot take into account things that happened before or after.
[25] I respect the words that are contained in Mr Telford’s affidavit. I accept submissions that are made by his lawyer when she says that I should not order the destruction of the dog but, I also see some realism in those submissions and some acknowledgement, having a good understanding of the Dog Control Act and how the offence is one of strict liability.
[26] I cannot find there are any exceptional circumstances here such that I cannot avoid making an order for destruction of the dog. I do so and I know that causes pain for the whānau but I must apply the law as I see it.
The parties’ submissions
[25] I first summarise the parties’ substantive submissions on the appeal, and then their supplementary submissions on the question of whether a conviction is a precondition to a dog destruction order being made.
9 At [20].
The appellant’s substantive submissions
[26]Ms Edwards, counsel for Mr Telford, advanced three grounds of appeal.
[27] The first is that the Judge misinterpreted and misstated the legal test for making a dog destruction order. Ms Edwards refers to that aspect of the Judge’s decision set out at [24] above and notes that this makes no reference to the accepted two-stage inquiry to be applied. Ms Edwards goes on to refer to the key aspects of the Court of Appeal’s decision in Hill. She submits that Judge Singh failed to apply the two-state inquiry and instead simply reached a conclusion that a dog destruction order ought to be made.
[28] The second ground of appeal is that the Judge failed to consider key pieces of factual evidence before the Court. Ms Edwards refers in this regard to the medical veterinary evidence tendered about Suki. She submits that this evidence suggests that Suki has both separation anxiety as well as “cognitive dysfunction syndrome”, colloquially referred to at the hearing as “doggy dementia”. Ms Edwards says that Judge Singh did not refer to this evidence nor did he evaluate the physiological characteristics of Suki that were present at the time of the attack. Ms Edwards properly conceded that Suki escaping from Mr Telford’s property was not itself exceptional. Instead, however, she submitted that Suki’s separation anxiety and “doggy dementia” can be viewed as causative of her attack and can satisfy the threshold of exceptional circumstances. Ms Edwards notes that Suki is now appropriately medicated for these conditions and that this, together with the fact that no similar behaviour has been exhibited by Suki in the past, demonstrates the inherent risk of Suki carrying out another similar attack is remote.
[29] The third ground of appeal (which is in substance an amalgam of the first two grounds) is that the Judge failed to make a finding that there were no exceptional circumstances that would prevent a destruction order being made. Ms Edwards submits that the Judge did not set out what circumstances he considered in reaching his conclusion that a destruction order was required, and had he applied the correct legal test and taken into account all of the available evidence, he would have reached the conclusion that the exceptional circumstances exception in s 57(3) was made out.
The respondent’s substantive submissions
[30] The Council submits that none of Mr Telford’s grounds of appeal can be made out.
[31] First, while Mr Dempsey, senior counsel for the Council, accepts that the Judge made no express reference to s 57(3) of the Act, he submits that the Judge was plainly aware of and alive to the fact that a dog destruction order must be made in circumstances following a qualifying dog attack unless exceptional circumstances exist. In this context, Mr Dempsey refers to those aspects of the Judge’s decision set out at [21] above, which he says demonstrate that the Judge turned his mind to the relevant test in s 57(3). Therefore, Mr Dempsey submits that there cannot be any real suggestion that the Judge was not alive to the fact that if exceptional circumstances did exist, a dog destruction order ought not to be made.
[32] Turning to the second ground of appeal, Mr Dempsey submits that it cannot simply be assumed that because the Judge did not refer to the veterinary report expressly in his sentencing notes that the Judge did not take it into account. Mr Dempsey refers to the High Court’s decision in Farmer v Auckland Council, in which Wylie J held that a sentencing Judge is not bound to accept an explanation for the offending offered in affidavit evidence adduced for sentencing purposes.10 Mr Dempsey also notes that the Judge was not required to expressly refer to every matter which the Judge did or did not take into account when reaching his decision, though accepted, responsibly in my view, there was a paucity of reasons given by the Judge for why he reached the conclusion that no exceptional circumstances existed.
[33] Turning to the third ground of appeal, Mr Dempsey notes that the veterinary report does not expressly outline a diagnosis for “doggy dementia”, nor any causative link between any such diagnosis and Suki’s behaviour. Mr Dempsey makes the same submission in relation to Suki’s separation anxiety. He notes that at the time of the attack, Mr Telford was aware of that condition and therefore should have taken heightened steps to ensure that Suki was properly contained on the property.
10 Farmer v Auckland Council [2022] NZHC 1109 at [71].
[34] Additionally, Mr Dempsey says that even if the Court were to take into account the veterinary report, this cannot give rise to exceptional circumstances. Mr Dempsey submits that such evidence contravenes the directive given in Hill that the psychology of a dog is not to be taken into account because evidence in that regard would lead to the “difficult, if not impossible task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future”.11 Accordingly, Mr Dempsey submits that even assuming Judge Singh took into account the veterinary report, it was not an error for him to ascribe no weight to it in reaching the conclusion that the circumstances of the offence were not exceptional.
[35] Mr Dempsey further submits that any more recent diagnosis of “doggy dementia” cannot amount to an exceptional circumstance. Mr Dempsey notes that in addition to such evidence impermissibly inquiring into the dog’s psychology, he points to the appellant’s own submission that the prevalence this condition in older dogs is “extremely high”. On this basis, Mr Dempsey submits the fact that the dog has this syndrome and that it might have contributed to the attack cannot be considered exceptional. Mr Dempsey emphasises that the Court of Appeal in Hill held that a court considering a dog destruction order should proceed on the basis that where a dog has attacked, it will react in the same way under similar circumstances in the future. In this context, Mr Dempsey submits that even if the Court were to accept all of the diagnoses suggested in relation to Suki, this increases rather than decreases the risk of future attacks. He argues that if these conditions contributed to the attack (as Mr Telford suggests), they are ongoing conditions and if Suki were to escape again, there is a real risk that she would attack again.
[36] Finally, Mr Dempsey submits that the steps taken by Mr Telford after the attack are not relevant to the inquiry in light of the Court of Appeal’s decision in Hill. Mr Dempsey refers to the Court’s observations in Hill that assurances from an appellant about future management of their dog are not relevant to the s 57(3) inquiry because they are not enforceable and there are no mechanisms to ensure they are consistently implemented over time.12
11 Auckland Council v Hill, above n [4], at [75].
12 Referring to Auckland Council v Hill, above n [4], at [80].
The appellant’s supplementary submissions
[37] Ms Edwards, in her supplementary submissions, traverses the diverging lines of High Court authorities on whether a conviction is a necessary precondition to a dog destruction order. However, having done so, Ms Edwards does not make any substantive submissions on the issue, but emphasises the unclear drafting of the relevant statutory provisions.
[38] Ms Edwards then turns to whether, even if a conviction is a precondition to a dog destruction order being made under s 57(3), such an order can also be made pursuant to s 106(3)(c) of the Sentencing Act. The tenor of Ms Edwards’ submissions is that a dog destruction order can be made by a court pursuant to s 106(3)(c). However, Ms Edwards submits that it would not be appropriate for such an order to be made in this case “without proper consideration of the interests of the appellant, Suki and the victim”. Ms Edwards submits that collectively, the following factors mean that the discretion to make a destruction order pursuant to s 106(3)(c) should not be exercised:
(a)this was Suki’s “one and only” attack in 12 years;
(b)the gravity of the offence was considered by the Judge to be at the lower end of the scale when considering the question of the discharge;
(c)Charlie’s injuries were at the low to moderate end of the scale;
(d)compensation was paid by Mr Telford to Charlie’s owner;
(e)Suki has been evaluated by medical practitioners and is now appropriately medicated for her conditions;
(f)Suki has demonstrated good behaviour to date; and
(g)Mr Telford is committed to ensuring that Suki is properly contained and supervised.
The respondent’s supplementary submissions
[39] Ms Schaaf advanced the Council’s supplementary submissions. She submits that interpreting s 57(3) as not requiring a conviction as a precondition to making a destruction order is most consistent with the wording of the provision and its statutory purpose. She notes that the provision simply refers to an “offence” rather than a conviction, and that the Court of Appeal in Hill equated the concepts of the “circumstances of the offence” with the “circumstances of the attack”. On this basis, Ms Schaaf submits that once an attack has been proved, there is jurisdiction to make a dog destruction order under s 57(3). Ms Schaaf submits that this approach is consistent with the public safety purpose of the statutory provision. Ms Schaaf says that this is particularly so when the reasons for granting a discharge without conviction might be unrelated to the risk posed by the dog in question, such that the public safety risk is not achieved by the discharge of its owner.
[40] In terms of s 106(3)(c) of the Sentencing Act, Ms Schaaf submits that the public safety purpose of s 57(3) remains a powerful factor in considering whether to exercise the – admittedly wider – discretion to make a dog destruction order. She submits that there was nothing exceptional about the attack in this case, being a dog escaping from a property and attacking another dog, which may well occur again. She emphasises that the attack was unprovoked and prolonged, and required the intervention of members of the public. Ms Schaaf reiterates that Suki’s more recently diagnosed conditions only give rise to additional concern, and that even if these can be controlled by medication, the risk of human error in controlling them is a relevant factor. Ms Schaaf further highlights the Court of Appeal’s observations in Hill, that matters such as assurances from an owner as to their future management of their dog are not relevant to the s 57(3) inquiry as they are not enforceable or subject to oversight. Ms Schaaf submits that these matters also support a destruction order being made pursuant to s 106(3)(c) in any event.
Is a conviction a precondition to making a dog destruction order under s 57(3)?
[41] As noted earlier, there are conflicting High Court authorities on whether a conviction is required before a destruction order can be made under s 57(3). I first address those authorities and the reasoning adopted for the differing conclusions.
The relevant authorities
[42] In Halliday v New Plymouth District Council, the appellant pleaded guilty to a charge under s 57(3) after his dog attacked and bit a person.13 The District Court convicted the appellant and made an order for destruction of the dog. The appellant challenged the destruction order. The focus of Heath J’s judgment on appeal was whether the legislative change in s 57(3) (in 2003) from considering whether there were “exceptional circumstances of the attack” to whether there were “exceptional circumstances of the offence” required a different approach than adopted in the earlier case law.
[43] In considering this issue, Heath J compared the offences and penalties under ss 57, 57A and 58 of the Act. He observed that s 57A (rushing at persons, animals or vehicles) creates the least serious offence, s 57 (attacking persons or animals) is more serious and s 58 (attack causing serious injury) creates the most serious offence.14 Each provision uses different language in setting out the exception to a destruction order..15 Ultimately, Heath J was of the view that in changing the provision’s wording from the “circumstances of the attack” to the “circumstances of the offence”, Parliament intended a wider range of matters to be taken into account when considering whether a dog destruction order ought to be made.16
[44] In this context, Heath J appeared to take the view, though was not required to directly consider the issue, that a conviction is a precondition for a destruction order to be made under s 57(3). He said:
[36] Section 57 of the Act is directed towards an attack by a dog on a person or on specified animals. Again the nature of the attack encompasses a wide variety of circumstances. Injury to a person or animal is not an element of the offence, though clearly it would be an aggravating factor. An attack on a person or specified animal is clearly seen by Parliament as being more serious than rushing or startling a person or animal. For that reason, destruction of the dog is mandatory on conviction of an offence under s 57, unless the District Court is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
(Emphasis added)
13 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.
14 At [31]–[33].
15 At [35]–[38].
16 At [45].
[45] In King v South Waikato District Council, Heath J considered whether an owner of a dog who had no ability to exercise control over it at the time of the relevant attack could be convicted under s 57(2) of the Act, and as a consequence, whether a destruction order ought to have been made.17
[46] In King, the appellant’s dog had attacked a pet rabbit on one occasion, and another dog on another occasion. At the time of the latter attack, the appellant’s dog was impounded at a council facility. The appellant was convicted of an offence arising from this attack. The appeal was primarily concerned with whether a destruction order should have been made. Heath J considered this turned on whether the convictions were properly entered, because “[i]t was mandatory, in the absence of exceptional circumstances, to make a destruction order if the s 57(2) offence was proved.”18
[47] Heath J preferred a strict liability approach to s 57, which would enable an owner to avoid conviction if she or he established a defence of total absence of fault. Heath J acknowledged that such a defence would conflict with the policy behind s 57, stating:
[30] … In a case such as this, the protection of society from a dog’s propensity to attack is the primary policy goal. The problem is that it is necessary to sheet home criminal liability to an owner before destruction of the dog can be considered.
(Emphasis added)
[48]He continued:
[32] I acknowledge that this approach causes difficulty to what I perceive to be the most important public policy goal of s 57. Only if a conviction were secured against an owner does the Court have jurisdiction to make an order for the destruction of the dog that has committed the relevant attack. That consequence flows from the need to ensure that a person who lacks control over the dog and can prove, on a balance of probabilities, a total absence of fault on his or her part should not be made criminally responsible because the dog has made a prohibited attack …
(Emphasis added, footnotes omitted)
17 King v South Waikato District Council [2012] NZHC 2264, [2012] NZAR 837.
18 At [3].
[49] Heath J considered that this difficulty could only be remedied by Parliament, observing that the answer “may lie in the creation of a separate civil right to seek a dog destruction order if a Council can prove that a prohibited attack was made and … it is necessary to destroy the dog”.19
[50] Miller J took a different view of the phrase “circumstances of the offence” in Turner v South Taranaki District Council.20 In that case, the appellant was convicted after his dog attacked a person. The appellant challenged the destruction order made in the District Court, but Miller J treated the appeal as being an appeal against conviction as well. The Judge interpreted s 57(3) to mean that in the absence of exceptional circumstances, the attack itself must lead to destruction of the dog.21 He said:
[22] Second, a destruction order does not depend on the owner being convicted under s 57(2). It suffices that the dog committed an attack. Section 57(3) does speak of “the offence”, but without requiring a conviction as a prerequisite to destruction. It is the circumstances that matter … It is easy to think of circumstances in which a person prosecuted as owner might establish his or her total absence of fault, yet fail to excuse the dog’s attack.
[51] I interpolate to note that whether a conviction is a precondition to the making of a dog destruction order was not an issue in Turner. Accordingly, Miller J’s comments are obiter. It is also not clear whether the issue was the subject of argument.
[52] In Walker v Nelson City Council, Williams J commented, albeit obiter, on whether a conviction is a precondition to the making of a destruction order under s 57(3).22 In that case, the dog in question had a history of biting people and Williams J dismissed the appellant’s appeal against conviction, finding that the defence of total absence of fault was not made out. He went on to state:
[34] There is no need then to address the second of the three issues, that is whether destruction can be ordered in the absence of a conviction. I would note however that the terms of s 57(3) (set out below) seem to require both an attack and an offence. The background to the inclusion of “offence” is set out briefly in Halliday v New Plymouth District Council and there is no need to repeat that material here. I am aware of a different opinion between Miller J in Turner v South Taranaki District Council and Heath J in King (No 1) on this
19 At [33].
20 Turner v South Taranaki District Council [2013] NZHC 1603.
21 At [21].
22 Walker v Nelson City Council [2017] NZHC 750.
question, but if I had been required to decide the issue I would have concluded the provision proceeds on the basis that an offence has been committed and therefore a conviction is required.
(Emphasis in original, footnotes omitted)
[53] In Epiha v Tauranga City Council, Woodhouse J commented, obiter, that he agreed with Miller J’s conclusion in Turner.23 In Epiha, the Judge was primarily concerned with whether s 57(2) creates a strict liability offence or requires full mens rea. Woodhouse J followed earlier decisions finding that the offence under s 57(2) was one of strict liability. He went on to note that the issue of whether a conviction is a precondition for a destruction order “could lead to difficulties in achieving [a] … primary objective of the Act, which is to deal with dangerous dogs”.24 He considered that Miller J’s approach “lends some emphasis to the legislative intention of placing significant obligations on dog owners, and therefore imposing the offence of strict liability, whilst independently making provision for destruction of dogs that have demonstrated that they are dangerous”.25
[54] In Fountain v Auckland Council, a key issue was whether a conviction is a precondition to a destruction order under s 57(3).26 The appellant’s dog had attacked a cat and four chickens. The District Court discharged the appellant without conviction due to her personal circumstances and made a destruction order. The appellant appealed against the destruction order. On the appeal, Wylie J observed that as a consequence of her discharge without conviction, the appellant was “deemed to have been acquitted”,27 no doubt being a reference to s 106(2) of the Sentencing Act.
[55] In considering whether the District Court Judge had the jurisdiction to make a destruction order in circumstances where the appellant had been discharged without conviction, Wylie J surveyed the earlier (competing) authorities in the High Court. Having done so, he considered that “the circumstances of the offence” could only be a reference to “the offence” created by s 57(2). He stated:
23 Epiha v Tauranga City Council [2017] NZHC 979 at [13].
24 At [12].
25 At [13].
26 Fountain v Auckland Council [2018] NZHC 591, [2018] 3 NZLR 216.
27 At [24].
[33] … I acknowledge the point made by Miller J in Turner, namely that s 57(3) does not expressly require a conviction as a prerequisite to destruction, as is clearly the case in s 58. However, in my judgment, s 57(3) does so directly, albeit not so forcefully, by using the words “the offence”.
[56] Wylie J agreed with Heath J’s explanation of the rationale for the 2003 legislative change. Wylie J considered that Parliament could have expressly stated that the commission of an offence is not required if it had intended that result, and that the approach taken in Turner and Epiha “ignores part of the text – namely the words ‘the offence’”.28 He considered that his preferred interpretation was consistent with the purpose of the Act, observing:
[37] Further, there is nothing in the purpose of the Act which suggests a different interpretation. The Act seeks to make better provision for the care and control of dogs by, inter alia, imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal or protected wildlife, and to make provision for damage caused by dogs. Obligations imposed on dog owners require them to ensure that the dog is kept under control at all times, and to take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal or protected wildlife. The focus is on the care and control of dogs, and on the obligations of owners, not on the destruction of dogs where their owners have not committed an offence created by the legislation.
(Footnotes omitted)
[57] Accordingly, Wylie J concluded that the Court does not have jurisdiction under s 57(3) to make a destruction order where the owner was not convicted of an offence under s 57(2). Wylie J went on to conclude, however, that the Court retained a discretion to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act. Referring to commentary on s 106,29 Wylie J stated:
[41] The Court can only consider making an order under s 106(3)(c) if the order is mandatory upon conviction – that is, it is required in every case or in the absence of any prescribed exceptions. It may not impose orders that are merely discretionary.
[42] Section 57(3) of the Act provides that the Court must make an order for the destruction of a dog that has committed a s 57(1) attack unless it is satisfied the circumstances of the offence were exceptional and do not warrant destruction of the dog. The section does not vest a discretion in the Court.
28 At [36].
29 Simon France (ed) Adams on Criminal Law – Sentencing (online loose-leaf ed, Thomson Reuters) at [SA106.08].
Rather, it requires the Court to determine whether or not the prescribed exception is made out.
[44] Accordingly, and notwithstanding that Ms Fountain has been acquitted of the offences, I must consider whether or not there were exceptional circumstances in this case. Only then will I be able to consider whether or not the discretion conferred by s 106(3)(c) is open in the circumstances of this case.
[58] Wylie J concluded that there were no exceptional circumstances for the purposes of s 57(3), but nevertheless declined to exercise the discretion afforded by s 106(3)(c) to make a destruction order. In doing so he took into account events after the attack, including the fact the dog had not attacked again over a two-year period and had started attending dog training. He also considered expert evidence on the dog’s behaviour and the owner’s new knowledge as a result of these events. Ultimately, while accepting the Act’s focus on public safety, Wylie J was satisfied on the evidence that “there is little risk of [the dog] attacking again”.30
[59] While not directly addressing whether a conviction is a precondition to a destruction order under s 57(3), it is appropriate to include the Court of Appeal’s decision in Hill within this chronology of the relevant authorities.31
[60] In Hill, the appellant’s dog attacked a woman causing puncture wounds. At the time of the attack, the dog was already classified as a menacing dog pursuant to ss 33A and 33E(1)(a) of the Act. The appellant had pleaded guilty to an offence under s 57(2) and was required to pay a fine, reparations and court costs. The District Court Judge declined to make an order that the dog be destroyed. This finding was upheld on appeal to the High Court. Palmer J treated the dog destruction order as a civil order, and took into account post attack matters when deciding whether the circumstances of the offence were exceptional for the purpose of s 57(3).32 The Auckland Council sought leave to appeal against both of these aspects of Palmer J’s decision.
30 At [65].
31 Auckland Council v Hill, above n [4].
32 Auckland Council v Hill [2018] NZHC 3315.
[61] In addressing the nature of a dog destruction order, Palmer J had said the following:
[27] … [The powers to order the destruction of a dog] are powers a court is required to consider exercising in a prosecution of an owner for committing a related offence. A destruction order in respect of a dog is not part of a sentence of the owner, but a concomitant decision to be made for the purpose of risk management.
[62] In granting the Council’s application for leave to appeal, the Court of Appeal said:33
[7] If this position were correct and the appeal to the High Court fell within the general right of appeal under s 124 of the District Court Act 2016, the appropriate appeal pathway would be s 60 of the Senior Courts Act 2016, which provides that the decision of the High Court is final unless the party obtains leave from the High Court or, if the High Court refuses leave, from the Court of Appeal. Auckland Council has not obtained leave from the High Court.
…
[9] Mr Marchant, for the Auckland Council, says that an order for destruction is criminal in nature and its appeal is properly brought under s 253(2) of the CPA.
[10] We agree. We start from the obvious position that a prosecution under s 57(2) of the Dog Control Act is a criminal proceeding because it results in a conviction. The opening words of s 57(3), “[i]n a proceedings brought under subsection (2)”, make it clear that a dog destruction order can only be made in the context of those criminal proceedings. It follows that an order made under s 57(3) is criminal in nature. In addition, a dog destruction order falls within the definition of a sentence in s 212 of the CPA, being a “method of disposing of a case following conviction”.
[11] The correctness of this position can be tested by Mr Marchant’s hypothetical situation of a person wanting to appeal against both conviction and the dog destruction order. Mr Meyer’s approach would require two separate appeals, one under the CPA against conviction and another under the Senior Courts Act against the dog destruction order. Such a course would not only be impractical but would have the potential for inconsistent outcomes, given a dog destruction order can only stand if there is a conviction.
[12] Auckland Council’s proposed appeal to this Court is therefore a criminal appeal for which leave to appeal may be sought from this Court under s 253(2) of the CPA. We therefore return to the question of whether leave should be granted for the substantive ground relating to the interpretation of s 57(3).
(Emphasis added, footnotes omitted)
33 Auckland Council v Hill [2019] NZCA 296.
[63] I pause to note that the authority cited for the italicised text above is Wylie J’s decision in Fountain. I also note that in a subsequent decision of this Court, Ingle v Auckland Council (discussed below), Gordon J noted that the Court of Appeal’s comment was obiter.34 I agree, and further note that it is not clear if the Court was referred to the competing decisions in Turner and Epiha. Nevertheless, the Court of Appeal’s leave judgment in Hill confirms that a dog destruction order is an order made in criminal proceedings, is properly categorised as a sentence for the purposes of s 212 of the Criminal Procedure Act 2011, and that a second appeal against such an order (or the lack of one) is properly brought with leave pursuant to s 253(2) of the Criminal Procedure Act – being a second appeal against sentence.
[64] In the substantive appeal in Hill, the Court of Appeal allowed the appeal and confirmed the proper approach to whether exceptional circumstances exist (see [17] to [19] above). While the Court’s decision does not address the particular point of whether a conviction is a precondition to a destruction order being made, the following aspects of the judgment are relevant to the discussion of this issue later in this judgment:
(a)The Court confirmed that s 57(2) creates a strict liability offence.
(b)The Court stated, “where the owner of a dog is convicted of the strict liability offence created by s 57(2), an order under s 57(3) for destruction of the dog will normally follow”.35
(c)When considering the relevant circumstances of the offence for the purposes of s 57(3), the Court confirmed:
[5] … [The focus is on] the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete that is after the attack occurs – also are not circumstances of the offence. The phrase “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
(Emphasis added)
34 Ingle v Auckland Council [2020] NZHC 1164 at [64].
35 At [4], (emphasis added).
(d)The Court also stated:
[48] … Where an offence has been committed under s 57(2) – in other words where a relevant attack has occurred – s 57(3) applies. An order for destruction of the dog is the normal consequence of such an attack taking place, unless a judge finds that the exception in s 57(3) applies
(Emphasis added)
(e)The Court confirmed that the purpose of s 57(3) is to protect public safety, by ensuring that a dog does not commit future attacks.
(f)The Court doubted “that in 2003 Parliament intended to introduce a distinction between the matters that can be taken into account in the context of ss 57 and 58”, despite the different phrases used of “circumstances of the offence” (s 57) and “circumstances of the attack” (s 58).
(g)Finally, the Court noted that s 33ED, inserted into the Act in 2006, refers to the circumstances of the “attack, rush, or startle by the dog”, and then goes on to add by way of clarification that these are “the circumstances relating to the offence for which the owner was convicted”. The Court stated:36
[70] … An amendment to an Act does not usually affect the interpretation of existing provisions of the Act. However, we see this provision as providing helpful confirmation that our reading of s 57(3) is consistent with Parliament’s understanding of the scheme of the Act.”
[65] Not long after the Court of Appeal’s decision in Hill, Gordon J delivered her judgment in Ingle v Auckland Council.37 Gordon J considered the divergent authorities in this Court on the question of whether a conviction is a required before the Court can make a dog destruction order under s 57(3).38 After considering the text and legislative
36 Footnotes omitted.
37 Ingle v Auckland Council, above n [43].
38 In Ingle v Auckland Council, at [60] Gordon J noted that she had previously followed Fountain in Pehi v Auckland Council [2018] NZHC 2154. However, she noted that Pehi was an oral decision following a hearing in which she did not have the benefit of competing submissions on this issue, and it also preceded the Court of Appeal’s decision in Auckland Council v Hill.
history of s 57, Gordon J concluded that a conviction is not a precondition to the jurisdiction to make a destruction order. A key aspect of her reasoning was that prior to the 2003 amendment, s 57(5) expressly required a conviction before a Court could make a destruction order; and that following the amendment, that “precondition” was removed.39 She noted that the precondition was however retained in s 58 (the more serious offence of “dogs causing serious injury”), and observed that the reason for the difference in wording is “unclear”.40
[66] Gordon J went on to refer to the Court of Appeal’s substantive decision in Hill. She noted that the Court’s focus was on the circumstances of the offence and whether they were exceptional (as emphasised by the Court describing “circumstances of the offence” and “circumstances of the attack” as equivalent). She did not consider the approach taken in Turner ignored the word “offence” in s 57(3), as Wylie J in Fountain suggested. Rather, she noted that, in light of the Court of Appeal’s decision in Hill, the word “offence” in s 57(3) “defines the scope of the inquiry rather than requiring a conviction before that inquiry can be undertaken”.41 Gordon J also emphasised that the Court of Appeal had identified a “clear purpose” for s 57(3): to protect public safety. She considered that an interpretation of s 57(3) which permits a person to avoid the consequences of an attack (being the destruction of their dog) for reasons unrelated to the risk posed by the dog was not consistent with that purpose. Gordon J therefore adopted Miller J’s approach in Turner and declined to follow Fountain.
[67] In the event she was wrong on the issue of whether a conviction was required before a destruction order was made, Gordon J went on to consider whether the Court nevertheless retained a discretion under s 106(3)(c) of the Sentencing Act to made a destruction order. Gordon J referred to Wylie J’s analysis of this issue in Fountain (see [57] above) but reached a different conclusion. She considered that a court is not required in all cases to impose a destruction order, namely where the circumstances of the offence were exceptional. She contrasted this with other types of orders required on conviction and considered under s 106(3)(c), such as orders for disqualification
39 Ingle v Auckland Council, above n [44], at [30], [35], [42] and [47].
40 At [46].
41 At [59].
from driving following conviction for certain offences. She referred in particular to s 65 of the Land Transport Act 1998, which contains no exceptions and no discretion.
[68] Gordon J’s analysis and conclusions were subsequently adopted by Osborne J in van Delden v Waitaki District Council.42 In that case, the charge against the appellant was dismissed under s 147 of the Criminal Procedure Act but a destruction order nevertheless made. Of note, Osborne J concluded that the appeal was properly brought pursuant to s 124 of the District Court Act 2016, given the appellant had not been convicted of any offence and therefore the appeal could not proceed by way of an appeal against conviction or sentence. In reaching this conclusion, the Judge relied on Palmer J’s decision in Auckland Council v Hill, and does not appear to have been directed to the Court of Appeal’s subsequent leave judgment in Hill.
[69] In terms of whether a destruction order can only be made if a conviction has been entered, Osborne J followed Ingle on the basis of the entirety of the reasoning in that judgment. He noted the following considerations in particular as grounding the judgment: the clear public safety purpose of s 57(3); the absence of an express requirement for a conviction in s 57(3) in contrast with the former s 57(5) and the current ss 58 and 33ED; and the focus of the destruction order inquiry being upon the circumstances of the attack rather than the circumstances of the offence.43 However, the Judge did not engage in a substantive analysis of the issue.
[70] Finally, and most recently, in Adams v South Taranaki District Council, Isac J reviewed Gordon J’s decision in Ingle and reached a different conclusion.44 He concluded that a conviction is a precondition to a destruction order, preferring Wylie J’s approach in Fountain.
[71] In Adams, the appellant was convicted under s 57 after his dog attacked two people. The District Court made a destruction order. The appellant applied for a discharge without conviction as part of his appeal against the destruction order. In this context, Isac J considered whether a destruction order forms part of a sentence (that
42 van Delden v Waitaki District Council [2021] NZHC 2264.
43 Osborne J also adopted the conclusions of the Court of Appeal in Auckland Council v Hill, above n [4] (as referred to in Ingle) for these propositions.
44 Adams v South Taranaki District Council, above n [3].
is, whether it is a consequence of a conviction for the purposes of ss 106 and 107 of the Sentencing Act). While the Judge acknowledged the different wording in ss 57(3) and 58, unlike Gordon J, he did not find that the 2003 removal of the words “on conviction of the owner” from s 57(3) clearly indicated that Parliament intended the two sections to operate differently in relation to destruction orders.
[72] Isac J noted that while the opening words of s 57(3) refer to an “attack”, the proviso which follows requires focus on “the circumstances of the offence”, suggesting there must be a conviction before the proviso comes into play.45 He referred to the public safety purpose of the Act, and its focus on criminalising certain conduct by dog owners as the mechanism to achieve this aim. He remarked that “it is no accident a destruction order is contained in a section of the Act imposing criminal penalties on dog owners”.46 He considered that “the purpose of the Act, ascertained from its text and in the light of its purpose and context, is to treat the destruction of a dangerous dog as an integral element of a sentencing process following conviction”.47 He considered the Act does not confer any jurisdiction to order the destruction of a dog (akin to a civil order) unless its owner is convicted of an offence.
[73] Isac J said that he was reinforced in his view that Parliament did not intend the 2003 amendment to alter the requirement for a conviction by the “clear drafting” of s 58, which plainly requires a conviction before a destruction order can be made.48 He observed that given offences under s 58 are more serious than those under s 57, “it would seem an unusual result if Parliament intended a more stringent approach to destruction for more serious offending, involving greater danger to the public”.49
[74] Isac J was unable to identify anything in the parliamentary materials to suggest Parliament intended to uncouple destruction orders from a conviction when amending s 57.50 He highlighted that to do so would create procedural problems, such as: if a destruction order is not part of a sentence, how does the Criminal Procedure Act
45 At [37], Isac J highlighted that that Parliament did not use the expression “alleged offence” or repeat the term “attack”.
46 At [39].
47 At [39].
48 At [40].
49 At [40].
50 At [41].
respond to it, and is there a right of appeal? Isac J noted that the Court of Appeal resolved these issues in its leave decision in Hill, concluding that a destruction order is part of a sentence amenable to appeal under s 253(2) of the Criminal Procedure Act.51
[75] Isac J considered that s 33ED of the Act, which was inserted by 2006 amendments and which defines “circumstances of the attack” as “the circumstances relating to the offence for which the owner was convicted”, further supported his approach. He observed that the provision is a “further strong indication” of Parliament’s intention to use the expression “circumstances of the attack” interchangeably with “circumstances of the offence”, with both expressions requiring a conviction.52
[76] Given the public protection focus of the Act and its focus on criminalising certain conduct as the mechanism for achieving this aim, Isac J came to the “inescapable” conclusion that a conviction is a precondition of a destruction order, and forms part of the direct and indirect consequences of a conviction.53
[77] However, the appellant’s appeal in Adams failed on the facts. Isac J found that the entry of the appellant’s convictions, as well as the effects of the destruction order, were not out of all proportion to the seriousness of the offending. The dog in question had prior “form”, and the Judge was not confident that the appellant would ensure that his dog did not attack others going forward.54 Isac J also agreed with Wylie J in Fountain that there remained a discretion under s 106(3)(c) of the Sentencing Act to make an order for destruction – the implication being that Isac J would have made an order under s 106(3)(c) even if he had been persuaded to grant a discharge without conviction.
51 Auckland Council v Hill, above n [4].
52 Adams v South Taranaki District Council, above n [3], at [43].
53 At [44].
54 At [46]–[48].
My view – a conviction is required before a destruction order can be made
[78] With that lengthy background in mind, I prefer the interpretation adopted by Isac J in Adams and Wylie J in Fountain, that is, a conviction is required before a destruction order can be made under s 57(3). I have reached this conclusion for the following reasons.
[79] First, the plain reading of s 57(3) supports this approach. The text is already replicated earlier in this judgment, but it is convenient to set it out again:
57 Dogs attacking persons or animals
(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.
[80] When considering the proviso to the making of a dog destruction order, the provision refers to “the offence”. It does not refer to “the attack”. I agree with Wylie J that the reference to “the offence” can only be a reference to the offence created by s 57(2), and that interpretations which, in the context of the issue currently before the Court, focus on the “circumstances” are ignoring the plain words “the offence”. I do not consider that this conflicts with the Court of Appeal’s decision in Hill. In that case, the Court concluded that the concepts of “the offence” and “the attack” are, when considering the scope of the inquiry to be conducted under s 57(3), equivalent (see [64(c)] above, where the Court stated they were equivalent “in this context”). The Court of Appeal in Hill did not address the issue presently being considered.
[81] Second, when a defendant is granted a discharge without conviction, she or he is deemed to be acquitted.55 As the authors of Adams on Criminal Law note, the result is the same as where there has been an acquittal on the merits.56 I add to this where the charge has been dismissed pursuant to s 147 of the Criminal Procedure Act 2011. In these cases, not only is there no conviction, but the Court is to proceed on the basis that no offence has been committed. There is therefore no “offence” for the purposes of s 57(3).
[82] Third, and flowing from the above point, the Court of Appeal in its leave decision in Hill confirmed that a dog destruction order is a criminal order and forms part of the sentencing process. Appeals are governed by that part of the Criminal Procedure Act concerning appeals against sentence. There cannot be a sentence in the absence of an offence or conviction.
[83] Fourth, if a criminal order is to be made despite no offence having been committed or conviction entered, the relevant statute would need to clearly confer such a power on the courts. Section 57(3) does not in my view do so. Like Isac J in Adams, I do not consider the 2003 amendments, and the removal of the express reference to an order being made on the owner’s conviction, to clearly indicate Parliament’s intention that a dog destruction order can nevertheless be made in the absence of an offence and/or conviction. As traversed in many of the discussed authorities, the legislative history does not shed light on Parliament’s intention in enacting the 2003 amendments, and in particular, there is nothing to indicate Parliament intended the quite substantive change of removing the requirement for a conviction in s 57(3) before a destruction order can be made.
[84] I do not consider the difference in wording between s 57(3) and its predecessor can be attributed to a deliberate and conscious decision by Parliament to remove the requirement for a conviction in respect of s 57(3), but not to do so in other provisions. This is particularly so given the express requirement for a conviction is retained in s 58, which creates a more serious offence than s 57. As Isac J put it, “it would seem an unusual result if Parliament intended a more stringent approach to destruction for
55 Sentencing Act 2002, s 106(2).
56 Simon France (ed), above n [29], at [SA 106.05].
more serious offending, involving greater danger to the public”.57 I note the Court of Appeal’s observation in Hill that it did not consider Parliament, when enacting the 2003 amendments, intended any substantive difference between the approach adopted in ss 57 and 58 (see [64(f)] above). That reasoning applies equally in my view to the issue now being considered. I consider that the use of the word “offence” in s 57(3), rather than simply repeating the word “attack” as used in s 58, was Parliament’s (perhaps somewhat clumsy) way of retaining the need for an offence and conviction prior to a destruction order being made, and thus maintaining consistency with the more serious offence created by s 58.
[85] Fifth, I am reinforced in this approach by the broader scheme of the Act. Again, as Isac J noted, s 33ED defines “circumstances of the attack” as “the circumstances relating to the offence for which the owner was convicted”, and thus strongly indicates Parliament’s intention to use the expression “circumstances of the attack” interchangeably with “circumstances of the offence”. I agree with Isac J that the text of s 33ED suggests both expressions require a conviction.58 Other sections of the Act are also consistent with a uniform approach of requiring a conviction before certain powers or orders can be made. For example, s 31(1)(a) of the Act requires a territorial authority to classify a dog as dangerous if the owner of the dog has been “convicted of an offence in relation to the dog under s 57A(2)”. It does not empower the authority to make such a classification if the dog has engaged in the actions captured by s 57A, yet the owner has not been convicted. Section 32(3) is to a similar effect. It prescribes various steps that an owner of a dog classified as dangerous must take, such as keeping it secure, having it muzzled in public and so on. It is an offence to fail to comply with these provisions. Subsection (3) provides that “[i]f a court convicts a person of an offence, the court must also make an order for the destruction of the dog unless satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog”. It does not provide for the destruction of the dog if the owner has avoided conviction for reasons unrelated to the public safety issues arising. Returning to the point made earlier, there is nothing to suggest that when enacting the 2003 amendments, Parliament intended to take a substantively different, and new, approach to s 57(3) alone.
57 Adams v South Taranaki District Council, above n [3] at [40].
58 At [43].
[86] Finally, I acknowledge Gordon J’s point (and that made by Miller J in Turner) that it would seem inconsistent with the Act’s primary purpose of public safety to permit an owner to avoid the consequences of an attack for reasons unrelated to the risk posed to the public. I consider this is the strongest argument in favour of interpreting s 57(3) as not requiring a conviction. However, this is the very approach Parliament had – expressly and clearly – taken up until 2003, and continues to take in relation to the more serious offence created by s 58 of the Act (and those other powers and orders just discussed). Given the content of s 58 in particular, which must also have public safety as its purpose, this apparent inconsistency cannot itself drive a conclusion that the commission of an offence and a conviction is not a precondition to making a dog destruction order. Additionally, I am not persuaded that the approach I prefer is inconsistent with the purpose of the provision in any event. I agree with Isac J that the Act focuses on criminalising certain conduct by dog owners as the primary mechanism to achieve the purpose of public safety. I therefore agree with Isac J that the purpose of the Act, ascertained from its text and in the light of its purpose and context, is to treat the destruction of a dangerous dog as an integral element of the sentencing process for a conviction, and that there is no jurisdiction to make a destruction order in the absence of a conviction.
[87] It follows that the Judge was wrong to make a dog destruction order pursuant to s 57(3) in this case.
Is there nevertheless jurisdiction to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act?
[88] Given the proviso to s 57(3), Gordon J did not consider that a destruction order is of the type that a court is “required to make” for the purposes of s 106(3)(c).59 However, I prefer the approach adopted by Wylie J discussed at [57] above, for the reasons he gives. In short, if the proviso to s 57(3) is not engaged (which is an evaluative exercise), then the Court is required to make a dog destruction order. There is no discretion. This approach was also adopted by Isac J in Adams (see [77] above) and by Clifford J in Snodgrass v Kapiti Coast District Council.60 Leading commentary
59 See [67] above.
60 Snodgrass v Kapiti Coast District Council [2014] NZHC 1333 at [19] and [23].
on s 106(3)(c) also confirms this approach, stating “[t]he court can make an order under subs (3)(c) only if the order is mandatory upon conviction, i.e. required in every case or in the absence of any prescribed exceptions”.61 A number of the examples given in the authorities and commentary of orders made under s 106(3)(6) also contain prescribed statutory exceptions.62
[89] I therefore turn to whether a dog destruction order ought nevertheless to be made in this case pursuant to s 106(3)(c) of the Sentencing Act.
Should a destruction order be made under s 106(3)(c)?
[90] I will only have the discretionary power to make a destruction order pursuant to s 106(3)(c) if the Court had been required to make one on conviction of Mr Telford
– in other words, if the circumstances of the attack were not exceptional.
[91] In my view, there is no basis to conclude that the circumstances of the attack by Suki were exceptional. As Ms Edwards quite properly accepted, the mere fact that Suki escaped from Mr Telford’s property does not itself give rise to exceptional circumstances. Nor do I consider the material put before the Court concerning Suki’s medical diagnoses gives rise to exceptional circumstances. First, I accept Mr Dempsey’s submission that there is no clear articulation of the diagnoses and what they might involve, and in particular, any causative effect of Suki’s behaviour on the day. Rather, there is only Mr Telford’s (non-expert) evidence to this effect. I also accept that such matters are likely to require the Court to look into the psychology of the dog, which is expressly eschewed by the Court of Appeal in Hill.63 Third, I find that the medical evidence is a somewhat double-edged sword. Even if it is accepted
61 Simon France (ed), above n [29], at [SA106.08]. (Emphasis added).
62 Such as an order for confiscation of a motor vehicle under s 129(3) of the Sentencing Act (subject to statutory exceptions in s 129(4)); ss 35, 56-58, 60-63 and 65 of the Land Transport Act 1998 (mandatory disqualification from holding or maintaining a driver licence, subject to certain statutory exceptions, including s 81) and a forfeiture order under ss 255A-255D of the Fisheries Act 1996 (again subject to statutory exceptions).
63 I say “are likely to require” however, as evidence of an actual and diagnosed medical condition (rather than simply a dog’s psychology) and which is relevant to the attack and informs the Court of the risk of an attack being repeated, may be relevant when considering whether the circumstances of an attack were exceptional. To take an extreme (and I acknowledge, somewhat fanciful) example to make the point, if expert evidence demonstrated that the attack was the result of a one-off brain haemorrhage which caused a dog to act in a particular way, this could give rise to a finding of exceptional circumstances.
in full, it tends to confirm that Suki has an underlying condition (separation anxiety) which, if unmanaged, gives rise to a potentially heightened risk that she will attack again in similar circumstances.
[92] It is not appropriate, at least when considering whether the circumstances of the attack were exceptional for the purposes of s 57(3), for this Court to take into account the fact that Suki is now medicated and under better oversight by Mr Telford. Again, these are matters which the Court of Appeal in Hill made clear were not relevant when determining whether or not to make a dog destruction order under s 57(3).
[93] Accordingly, while his reasoning was brief, I consider the Judge’s overall conclusion that “nothing in the present case goes anywhere near establishing that [exceptional] circumstances exist”,64 to be the correct conclusion.
[94] Given I have concluded that the circumstances of the attack were not exceptional, the discretion to make a dog destruction order pursuant to s 106(3)(c) is enlivened.
[95] It cannot be the case that because the proviso to s 57(3) is not made out, a destruction order ought to automatically follow under s 106(3)(c). If that were the case, there would be no rationale for the discretion under s 106(3)(c). To put the point another way, the discretion to make an order pursuant to s 106(3)(c) is only enlivened in circumstances where, but for the discharge without conviction, the court would have been required to make the order in question. For that to be the case, the court must have already concluded that any statutory exceptions to an otherwise mandatory order have not been established. The discretion contained in s 106(3)(c) must therefore enable a broader range of factors to be taken into account than those driving the conclusion that the statutory exception is not made out. Nevertheless, the reasons why the proviso to s 57(3) was not made out will, in my view, be relevant, as will the public safety purpose of s 57(3).
64 Auckland Council v Telford, above n 1, at [28].
[96]In this case, I take into account the following:
(a)That for the reasons articulated earlier, the circumstances of Suki’s attack were not exceptional.
(b)Suki is now 12 years old. There is no suggestion she has ever before attacked another animal or person. This tends to suggest that, in ordinary circumstances, Suki does not present as a danger to the public. This also distinguishes this case from a number of the other authorities discussed where, to adopt Isac J’s terminology in Adams, the dog in question had “form”.
(c)Suki and her family had moved to their new address only five days prior to the attack. Suki was accordingly in a new environment.
(d)Mr Telford appears to have taken appropriate steps at the time to check the property was fully fenced, and took remedial steps immediately following the attack.
(e)Suki has now been seen by the vet for her underling anxiety and is on appropriate long-term mediation. I accept that compliance with this regime is not an enforceable condition, but there is nothing in the materials to suggest that Mr Telford is not continuing to appropriately medicate Suki. I note correspondence from Suki’s vet that “her owners were attentive and dedicated to Suki’s care and ongoing recovery …”
(f)Mr Telford took the responsible approach of contacting Charlie’s owner and offering to pay for their vet bills, which the owner was apparently satisfied with. Unlike some other cases, there is no victim impact statement before the Court, and Mr Telford states in his affidavit that Charlie’s owner did not want the Council to continue with the prosecution.65
65 While the disclosure has not been put before the Court, the Council does not suggest that this aspect of Mr Telford’s affidavit is incorrect.
(g)Finally, it seems that Mr Telford (and his partner, who provided a letter to the Judge) has learned from what has occurred. For example, the vet confirms that Mr Telford has ensured Suki is muzzled whenever she is taken to the vet, and Mr Telford confirms that when he and his partner go out, Suki is now left indoors rather than outside. Mr Telford and his partner also confirm that if Suki is walked in public, this will be on a leash and with a muzzle.
[97] Standing back, given Suki’s lack of any prior attacks, that there have been no further attacks by or safety issues arising concerning Suki, her advanced age, that she is now mediated and what I accept to be a responsible approach being taken by Mr Telford and his partner, I am persuaded that public safety concerns do not require me to exercise my discretion under s 106(3)(c) and make an order for Suki’s destruction.
Result
[98]The appeal is allowed. The order requiring Suki’s destruction is quashed.
Fitzgerald J
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