van Delden v Waitaki District Council - [2021] NZHC 2264

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2021-476-3

[2021] NZHC 2264

BETWEEN
RINAE VAN DELDEN

Appellant

AND

WAITAKI DISTRICT COUNCIL

Respondent

Hearing: 29 July 2021

Appearances:

K M Henry for Appellant

B K Coleman and E L Middlemass for Respondent

Judgment:

31 August 2021

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 31 August 2021 at 4.00 pm

Registrar/Deputy Registrar Date:

VAN DELDEN v WAITAKI DISTRICT COUNCIL [2021] NZHC 2264 [31 August 2021]

Introduction

[1] Rinae van Delden was charged under s 57(1) and 57(2) Dog Control Act 1996 (the Act) with being the owner of a dog that attacked a domestic animal.1 The charge was dismissed under s 147 Criminal Procedure Act 2011 (CPA) because the Judge considered there was no evidence that Ms van Delden was the “owner”2 of the dog (Section 147 Judgment).3 Subsequently, an order for destruction of the dog was made under s 57(3) of the Act by Judge Large (Destruction order judgment).4

[2] Ms van Delden appeals against that order on the basis that the Judge did not have jurisdiction to reopen the proceeding following the dismissal of the charge or to make an order when the elements of the offence under s 57(2) of the Act had not been established. Alternatively, if the Court does not uphold these jurisdictional arguments, it is submitted there are exceptional circumstances that mean an order for destruction was not warranted.

Destruction orders under the Dog Control Act

[3] Section 57(1)–(3) of the Act provides for the prosecution of owners of dogs which attack people or animals and for orders for the destruction of such dogs:

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.

1      Dog Control Act 1996, s 57(1) and s 57(2). Maximum penalty of a fine not exceeding $3,000 in addition to any liability that they may incur for any damage caused by the attack.
2      Defined by Dog Control Act, s 2.
3      Waitaki District Council v van Delden [2021] NZDC 4886 [Section 147 judgment].
4      Waitaki District Council v van Delden [2021] NZDC 10019 [Destruction order judgment]. See also ruling that the Council’s application could proceed: Waitaki District Council v van Delden [2021] NZDC 9998 [Jurisdiction ruling].

(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…

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: [2021] NZHC 2264
Decision Date: 31 August 2021

CaseChat Overview and Summary

Rinae van Delden appeals the decision of the District Court to make a destruction order for her dog, Jock. The District Court had dismissed a charge against Ms van Delden under s 57(1)–(2) Dog Control Act 1996, on the basis that the prosecution had not established that Ms van Delden was the owner of Jock. Nevertheless, the District Court made an order for Jock's destruction under s 57(3) of the Act, after finding that the circumstances of the attack were not exceptional. Ms van Delden contends the District Court did not have jurisdiction to make a destruction order following the dismissal of the charge, and that even if it did, the circumstances of the offence were exceptional and destruction was not warranted. The appeal was heard in the High Court at Timaru. Osborne J dismissed the appeal and confirmed the destruction order made by the District Court. The High Court found that a conviction of an offence under s 57(2) of the Act is not a prerequisite to a destruction order under s 57(3) and that the District Court did not breach the principles of natural justice when it made the order for destruction. The High Court also found that the District Court was correct to conclude that the circumstances of the attack were not exceptional. The appeal is dismissed, with costs reserved.

Orders