White v Auckland Council - [2023] NZHC 2080

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000210

[2023] NZHC 2080

BETWEEN
SHANE WHITE

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 7 August 2023

Appearances:

R J Abbott for Appellant T C Fu for Respondent

Judgment:

7 August 2023

ORAL JUDGMENT OF VAN BOHEMEN J

[appeal against sentence]

Counsel/Solicitors:
R J Abbott, Auckland Rice Speir, Auckland

WHITE v AUCKLAND COUNCIL [2023] NZHC 2080 [7 August 2023]

[1] On 24 March 2023, Shane White pleaded guilty before Judge G A Fraser in the District Court at Waitakere to two charges of owning dogs that attacked stock, specifically a cow, on a property on Redhills Road in Massey, Auckland. Mr White was convicted and sentenced on one charge and convicted and discharged on the other. He was ordered to pay a fine of $650, court costs of $130 and veterinary costs of
$272.60. Pursuant to s 57(3) of the Dog Control Act 1996 the two dogs were ordered to be destroyed.1

[2] Mr White appeals his sentence in order to challenge the orders for the destruction of his two dogs.

The offending

[3] On 6 September 2021, at approximately 7:45 am, Mr White’s two dogs, an American Staffordshire Terrier Cross named Missy and a Border Collie Cross named Ramen, were off-lead running down Morus Road, adjacent to the property where the victim’s cows were grazing. Once the dogs saw the cows, they changed direction and ran towards the victim’s boundary fence line. The victim saw Mr White and yelled out to him to make sure the dogs stayed on the other side of the fence and away from her cows.

[4] Mr White kept walking down the road with Missy and Ramen approximately 30 metres ahead of him until the victim lost sight of them. Worried that the dogs might attack her cows, the victim went into her home and turned on her security cameras which faced where the cows were feeding. She saw Missy and Ramen running up the paddock on her property. She ran outside and saw her cows panicking. One cow jumped the fence to get away from the dogs while another was bailed up against a fence. Missy and Ramen attacked that cow, with one dog biting its face and the other biting at its rear legs.

[5] After the victim’s son ran towards the dogs with a stick in hand, the dogs ran off. Mr White then called out to his dogs before they made their way back to his

1 Auckland Council v White [2023] NZDC 8379.

vehicle parked on Red Hills Road. Mr White took off as the victim yelled to him to say she was calling the Police.

[6] The cow that was attacked sustained two puncture wounds for which it received veterinary treatment. Missy and Ramen were subsequently seized and impounded at the Henderson Animal Shelter before being released to Mr White’s property on strict conditions pending the outcome of prosecution.

[7] The…

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 2080
Decision Date: 7 August 2023

CaseChat Overview and Summary

Shane White appealed against the sentence imposed by the District Court in relation to his two dogs attacking a cow, arguing that the circumstances of the attack were exceptional, and that the destruction of the dogs was unwarranted. The court was required to determine whether the District Court Judge erred in his assessment of whether the circumstances of the attack were exceptional under s 57(3) of the Dog Control Act 1996. The court examined the submissions made by both parties and considered the relevant legal principles, including the Court of Appeal's directions in Auckland Council v Hill. The court found that the District Court Judge erred in taking into account the dogs' and Mr White's prior history in assessing whether the circumstances of the attack were exceptional. However, the court found that it was not open to Mr White to argue that the dogs can be expected to behave differently in similar circumstances in the future or that he will not allow his dogs to be in similar circumstances in the future. The court concluded that the circumstances of the attack were not exceptional and that the destruction of the dogs was warranted.

The appeal is dismissed, and the order for the destruction of the dogs is upheld. The court noted that it was not appropriate for the dogs to have been returned to Mr White in a situation where a destruction order was likely.

Orders