[1] On 24 March 2017, following a defended hearing, Judge Davidson convicted Ms Walker on a charge of owning a dog that has attacked a person, pursuant to s 57(2) of the Dog Control Act 1996.1 On the same day, he sentenced Ms Walker to a $550 fine and ordered her to pay $500 emotional harm reparation to Ms Lowish, the victim of the attack. The Judge finally made an order that the dog be destroyed pursuant to s 57(3).2

[2] Ms Walker appeals against conviction and against the destruction order. [3] The appeal raises three issues:
(a) whether the common law defence of total absence of fault was

properly made out;

1 Nelson City Council v Walker [2017] NZDC 7142.
2 Nelson City Council v Walker [2017] NZDC 6372.

WALKER v NELSON CITY COUNCIL [2017] NZHC 750 [13 April 2017]

(b)whether there is still jurisdiction to order destruction of the dog in the event that Ms Walker is successful in her conviction appeal; and

(c) irrespective of (a) and (b), whether the circumstances of the offence

were “exceptional” such that a destruction order was not warranted.

Facts

[4] Ms Walker owns a three year-old Siberian Husky called ZiaZia. The dog had a history of biting. In October 2016, Ms Walker went to Japan for two weeks and left ZiaZia with her flatmate, Penny Lowish. She left with Ms Lowish detailed instructions as to ZiaZia’s feeding protocol. It involved ensuring ZiaZia was fed outside the flat and requiring her to sit while the food was placed on the ground before being allowed to come to the food to eat. ZiaZia had been left in the care of Ms Lowish for two to three days previously without incident. However, ZiaZia had bitten her on another occasion when Ms Lowish tried to remove ZiaZia’s leash.

[5] Ms Lowish successfully looked after and fed ZiaZia for five days without incident. However, on 12 October, she carried the food bowl with her right hand out of the kitchen, through the lounge to some ranch sliders that opened to the outside deck where she intended to feed the dog. When she opened the ranch sliders it was wet outside so she decided to feed ZiaZia inside. ZiaZia’s water bowl was on the floor inside, adjacent to the ranch sliders. Ms Lowish held the food bowl up above her head while reaching down with her left hand to pick up the dog’s water bowl. It is common ground that this was inconsistent with the agreed feeding protocol. ZiaZia bit her on the hands and wrists. Ms Lowish put ZiaZia outside and called an ambulance. She was taken to hospital where some of…

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.

Continue reading Walker v Nelson City Council

Details

AGLC: Walker v Nelson City Council [2017] NZHC 750
Case: [2017] NZHC 750
Decision Date: 13 April 2017

CaseChat Overview and Summary

The case of Walker v Nelson City Council involved an appeal by Jenny Walker against her conviction under the Dog Control Act 1996 for owning a dog that attacked a person, as well as against the order for the dog to be destroyed. The central issues were whether the common law defence of total absence of fault was correctly dismissed, if the court could order the dog's destruction without a conviction, and if the circumstances of the offence were exceptional enough to warrant not destroying the dog. Ms Walker argued that her dog, ZiaZia, had shown signs of improvement prior to the attack and that she had taken all reasonable precautions by briefing her flatmate, Penny Lowish, on the dog's feeding protocol. The High Court found that the lower court's conclusion that Ms Walker had not met the high threshold for total absence of fault was correct, as ZiaZia's history of biting and aggressive behaviour made it foreseeable that an attack would occur. The court also found that a destruction order could not be made without a conviction and that the exceptional circumstances test required consideration of the likelihood of a repeat attack or ongoing anti-social behaviour. Ultimately, the court agreed with the lower court that ZiaZia posed a significant risk to those around her and ordered her destruction.

The appeal was dismissed, and the destruction order was upheld.

Orders