Wilson v Auckland Council

[2024] NZHC 646

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-25

[2024] NZHC 646

UNDER

Section 244 of the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

ADRIAN WILSON

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:	12 March 2024
Counsel:	A Wilson self-represented BV Magill for Respondent
Judgment:	22 March 2024

JUDGMENT OF BECROFT J

[Appeal against dog destruction order]

This judgment was delivered by me on 22 March 2024 at 2pm.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Auckland Council Copy to: AJ Wilson

WILSON v AUCKLAND COUNCIL [2024] NZHC 646 [22 March 2024]

Nature of this appeal

[1]    Orders for the destruction of dogs arouse strong emotions and cause considerable anxiety. This case is no exception.

[2]    Mr Adrian James Wilson appeals an order for the destruction of his dog, Harley, made by Judge P Winter in the North Shore District Court on 15 November 2023.1 This followed his guilty plea and conviction, on 17 August 2023, on a charge of owning a black and tan female Rottweiler that attacked a domestic animal (in this case another dog).2

[3]    As part of the penalty following conviction, destruction of the dog is mandatory unless the Court is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.3

[4]    Mr Wilson appeals the order for Harley’s destruction asserting that there were exceptional circumstances and the Judge erred in making the order.  In particular,  Mr Wilson submits:

(a)Harley experienced a change of routine and behaviour prior to the attack and acted contrary to how she usually behaves in the home and in a way that could never have been predicted.

(b)Harley escaped onto the road, under a closed gate, and this could not reasonably have been predicted.

(c)Harley provides emotional support for a member of Mr Wilson’s family who has significant problems with anxiety.

[5]Mr Wilson was also fined $700, ordered to pay $1,411 for veterinary expenses,

$45 for medical expenses and $300 in emotional harm reparation. None of those orders are appealed.

1      Auckland Council v Wilson [2023] NZDC 25779.

2      Dog Control Act 1996, s 57(2).

3      Dog Control Act, s 57(3).

[6]    Mr Wilson acted for himself. I record that he did so with dignity, balance, and restraint. Clearly, Harley is a much-loved dog. Mr Wilson and his partner, were understandably upset during the hearing and I acknowledge what a difficult situation this is for them.

[7]    As a preliminary point, I note that with Ms Magill’s consent, and indeed at her suggestion, I viewed three videos on Mr Wilson’s phone that depict Harley in the family home “co-existing” quite unremarkably and apparently safely with another family pet—a domestic cat. Following the hearing, I viewed CCTV footage showing Harley escaping from Mr Wilson and his partner’s property, running to the dog the subject of the charge (one of two being walked by their owner) and appearing to attack it.

The facts

[8]    The District Court Judge set out the summary of facts in his decision, in full. I do so also:

On 8 May 2022 between 4.30 pm and 5 pm the complainant in this matter, Mr Malcolm James Gibbons, was walking his dogs which were two miniature schnauzers named Toby and Mia on extendable leashes. As they walked past the defendant’s property the defendant’s dog began running up and down the fence line barking and snarling. As the complainant continued to walk he heard a dog approaching behind him snarling. He turned around and saw the defendant’s dog Harley had escaped from the defendant’s property and was coming straight for them. That is himself and his two dogs.

The defendant’s dog attacked Toby biting his back and shaking him. The complainant tried to separate the dogs by wrapping both of his arms around the defendant’s dog’s neck and pulling and hitting the dog but was unsuccessful in stopping Harley. Toby was yelping and screaming. The complainant kicked the defendant’s dog in the throat. At that point the defendant’s dog released Toby and backed away.

Mr Gibbons grabbed Toby up in his arms. At that point a neighbour and a female from the defendant’s property stood between the defendant’s dog and Toby to stop it attacking again. A male from the defendant’s property, later identified as the defendant’s son, arrived and got hold of the defendant’s dog by wrapping his arms around it. He then guided the defendant’s dog back to the defendant’s property.

Mr Gibbons sustained injuries during the attack and was bleeding from his chin. The neighbour assisted Mr Gibbons and provided him  with a towel. Mr Gibbons then called his partner who picked him up.

Toby was taken to the North Shore Veterinary Emergency and Critical Care for treatment. He sustained a five millimetre abrasion to the left lateral dorsal abdomen, a 10 millimetre skin laceration to the right lateral dorsal abdomen, bruising around the abdomen and thorax and upper forelimbs. The wounds were cleaned, and a five millimetre abrasion was sutured.

[9]    I understand that while the owner of the two Schnauzer dogs sustained injuries during the attack, including two puncture wounds and lacerations to his chin and neck area, it is considered uncertain as to how those injuries occurred and which dog is responsible for them. There is certainly no direct evidence that it was Harley. That is why there is only a single charge in respect of Harley’s attack on Toby. The penalty upon conviction is the same, irrespective of whether the dog attacked another domestic animal or a human.

Proper approach in assessing whether a destruction order is warranted

[10]   At this stage I set out the legal principles that guide the courts in assessing whether the circumstances of an offence are exceptional and do not warrant the destruction of the dog in question. I do so for two reasons. First, as Mr Wilson represented himself, it is important that he knows the proper approach the courts must take. Second, an understanding of these principles show what a high bar exists to overturn destruction orders, and how difficult  it  will  be  for  an  appeal,  such  as Mr Wilson’s, to succeed.

[11]   Auckland Council v Hill is the leading authority for assessing whether the circumstances of an attack are exceptional and do not warrant a destruction order.4 The Court of Appeal confirmed that the focus of s 57(3) is to prioritise public safety and the prevention of dog attacks in public. The Court clarified the matters that can (and cannot) be considered by a sentencing judge when assessing whether exceptional circumstances exist:

4      Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.

[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.

[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.

[12]   Of relevance to this case, the Court of Appeal also provided more specific guidance as to what circumstances could be considered exceptional:

[75] This test requires the court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake 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 …

…

[78] Nor is it open to the owner to argue that the test is met because the attack was caused or contributed to by a one-off failure by an otherwise responsible 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. The case law under the Act is replete with examples of precautions that ought to have been taken but were omitted, or were undermined by the actions of innocent third parties (failing to properly shut doors or gates is a common theme), or that failed for a host of other reasons …

…

[80] Assurances given by the current owner about the future management and control of the dog are not relevant to the s 57(3) inquiry. Such assurances are not enforceable. There is no mechanism for checking that they are consistently implemented over time. The ownership of the dog may change. The owner will at times be dependent on others to take responsibility for the dog — for example, during holidays and other absences from home. And, as noted above, there is nothing exceptional about precautions being omitted, or failing, even where those precautions are required by law.

The District Court decision

[13]   The Judge directed himself as to the two-step approach set out in Hill. In applying that test, the Judge:

(a)identified what happened; and

(b)considered whether Mr Wilson had discharged the onus on him to satisfy the Court that the circumstances of the attack were exceptional.

[14]   In assessing the first step, Judge Winter noted that there seemed no dispute that Harley was at the defendant’s property and in circumstances unknown, when put outside, managed to jump or was able to be released through the gate and the attack occurred causing Toby injuries. He noted that, “[t]he dog needed to be properly restrained at the property and the dog was not. The dog was able to escape into the public space outside Mr Wilson’s property …”.5

[15]   The Judge noted that an attack caused or contributed to by a one-off failure, by an otherwise responsible dog owner, is not a qualifying exceptional circumstance. The Judge also acknowledged that Harley’s destruction would be very difficult a family member who was suffering from significant mental health issues and for whom Harley provided support.

5      Auckland Council v Wilson, above n 1, at [24].

[16]   Judge Winter relied on the case of Luani v Auckland Council.6 In Luani there also appeared to be a one-off lapse by the family members who were supposed to be ensuring the dog was properly controlled at all times. In that case the dog was also a support for the dog owner’s family and, indeed, a letter from a psychiatrist expressed the opinion that the dog would be of invaluable assistance to a member of the family’s recovery if it could be spared. There, the Court emphasised that:7

… [T]he effect of a dog’s destruction on its owner and family members, is not an exceptional circumstance of the offending to be considered under s 57(3). There is a real risk of Rhyno acting aggressively again in similar circumstances and the need to protect the public means that an order for her destruction is necessary.

[17]   The Judge was satisfied, given Harley’s behaviour, that no exceptional circumstances arose. He concluded that Harley’s behaviour on that day was a situation where, in similar circumstances, she could act aggressively again.

Approach on appeal

[18]   Under s 250 of the Criminal Procedure Act 2011, a court must dismiss an appeal against sentence unless it is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[19]   An appeal against a dog destruction order is a general appeal, and an appellate court is required to reach its own conclusions based on its own assessment of the merits.8

6      Luani v Auckland Council [2022] NZHC 2940.

7 At [26].

8      Auckland Council v Hill, above n 4, at [28], citing Austin, Nichols & Co Inc v Stichting Lodestar

[2007] NZSC 103; [2008] 2 NZLR 141 at [16].

First ground of appeal: change of routine and habit

[20]   Mr Wilson carefully informed me that Harley was a “rescued dog” originally obtained through his father-in-law. Harley has always slept in Mr Wilson and his partner’s bedroom. However, about two days before the attack, their grandchildren came to stay and to sleep in the bedroom. Mr Wilson said that as a “precaution” both for the dog and so that the grandchildren would not accidentally stand on her, Harley was put outside. Mr Wilson suggests that change of routine and habit for Harley likely caused her aggressive behaviour on the day in question.

[21]   Mr Wilson also emphasised that this explanation for Harley’s behaviour is reasonable given that she does not normally behave in this way.  I refer to the videos I viewed on Mr Wilson’s phone. Mr Wilson advised that the peaceful relationship depicted between Harley and the Wilson’s household cat was typical of Harley’s behaviour.

[22]   In response, Ms Magill emphasised that it may well be that Harley was unsettled by this one-off to her routine and that she has not behaved this way before. However, relying on Hill, she submitted that circumstances prior to the attack cannot constitute exceptional circumstances under the Act.

[23]   I have reflected on Mr Wilson’s submission. What happened to Harley two days or so before the event and which may have contributed to her behaviour could hardly be said to be part of the immediate circumstances of the attack itself. And in any case, it will frequently be the case that dogs are asked to sleep elsewhere, or sleep outside in some circumstances, such as were explained here. I agree with Ms Magill that this circumstance cannot be considered “exceptional”.

Second ground of appeal: this was unforeseen and one-off escape by Harley

[24]   Mr Wilson accepted that it is indisputable that Harley escaped. At the time of the District Court sentencing Mr Wilson had assumed, and so did the Judge, that Harley had jumped the gate/fence or perhaps had even been inadvertently let out. However, after this appeal had been filed, the Council’s legal advisers found a CCTV video which shows the whole incident, with Harley apparently wiggling underneath a

closed gate. There are people visible in the garden at the time, who do not appear to be Mr Wilson. Mr Wilson confirms he was at work at the time. Mr Wilson may not have expected Harley to escape in this way. But plainly she could, and she did. Hill makes clear that it is not open to Mr Wilson to argue that the s 57(3) test is met because the attack was caused or contributed to by a one-off failure to maintain effective control over Harley. Failures of this kind to control a dog, are not exceptional circumstances.

[25]   Ms Magill pointed to examples of one-off failures where this Court has held the circumstances of the offence are not exceptional. She relied on four cases in particular.9 Some related to dogs escaping through a gate and to that general extent those cases are similar. But none are exactly on point.

[26]   However, the reality is that, despite Mr Wilson’s belief that Harley would not be expected to wiggle under the gate, that has occurred. All this was emphasised in Hill, where the Court said, “[t]he case law under the Act is replete with examples of precautions that ought to have been taken but were omitted … or that failed for a host of other reasons.”10 This includes, as here, Harley’s ability to wiggle under the gate.

[27]   I have sympathy for Mr Wilson, but the only conclusion is that the steps taken to keep Harley inside the garden were inadequate. To be clear, while Harley’s escape under the gate surprised Mr Wilson, it does not mean that it could not have been reasonably foreseen. The obligation is on the dog owner to ensure the dog is properly contained within their property when they are not present.

Third ground of appeal: Harley provides emotional support for a family member

In this respect, Mr Wilson’s argument is on “all fours” with the Luani case, referred to earlier and relied upon by the District Court Judge. Here, too, there is an expert report, in this case from a psychologist emphasising Harleys’ crucial role in providing support for a family member. Indeed, Ms Magill acknowledged the difficult circumstances for

9      Luani v Auckland Council, above n 6, McLaughlin v Rotorua Lakes Council [2021] NZHC 845, McDonald v Auckland City Council [sic] [2021] NZHC 457 and Baker v Whakatane District Council [2021] NZHC 66.

10 Hill v Auckland Council, above n 4, at [78].

Mr Wilson’s family member. However, I accept, as I must, that Harley’s role as a support for a family member, important though it is to the family, is not, and cannot be, an exceptional circumstance of the offence.

Other appeal grounds

[28]   I need to be fair to Mr Wilson. He made other arguments in the course of his submissions which I now address. I begin by noting there is no dispute that Mr Wilson is genuinely remorseful for the events that occurred.

[29]   Mr Wilson invited the Court to consider “Harley’s intent” when the attack occurred. He submitted that no one knows for sure if Harley was acting maliciously or if there was a misunderstanding between the two dogs, or even if Harley was acting in her own defence. Mr Wilson cannot provide or call any evidence himself on this point. The evidence in this case is primarily from Toby’s owner and he is clear that it was Harley who attacked Toby. The CCTV footage I viewed does show Harley running 10 to 15 metres up the road after she escaped. The attack then seemed instantaneous. However, the date and time numbers appearing on the footage obscure the mechanics of the attack. In any case, by that stage the view is distant.

[30]   I agree with Ms Magill that Mr Wilson’s concerns are hypothetical. Toby’s owner had a clear view of what happened, and this forms the basis of the summary of facts which was not disputed at sentencing.

[31]   Mr Wilson also noted that, in his view, the District Court Judge proceeded on the basis that Harley’s behaviour could not be changed. Mr Wilson noted that he would be willing to obtain extra training for Harley from trainers who have indicated that Harley’s behaviour could well change. On that point I agree with Ms Magill, relying on Hill, that the Court is not required to “undertake 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

11     Auckland Council v Hill, above n 4, at [75].

[32]   At the conclusion of his submissions, Mr Wilson made clear that he regretted his guilty plea. He indicated that it was entered on the advice from a duty solicitor, whose advice he now doubted. He did, however, inform the Court that this was the advice he subsequently received from other lawyers. I explained to him that this was a strict liability offence. He accepted he had no witnesses himself to contradict those relied upon by the Auckland Council. I also explained to him again the test set out in Hill, which he accepted set a very high bar in terms of the onus on him to establish exceptional circumstances.

[33]   I have also considered whether the Council's failure to provide the CCTV footage, for whatever reason, changes the position. It does not. I am not sure why  Mr Wilson did not receive the footage prior to his plea. He should have. But I agree with Ms Magill that the footage does not and could not assist Mr Wilson and there is no reason to suggest any aspect of the CCTV evidence would have provided a defence to this strict liability charge. I agree with Ms Magill that the footage is inculpatory evidence which if anything makes the evidence for the charge even stronger.

Conclusion

[34]   I have endeavoured to address all of Mr Wilson’s carefully and thoughtfully presented submissions. I know that he and his partner desperately wish to preserve Harley’s life. However, I can see no material error in Judge Winter’s approach. The Judge did incorrectly suggest that Harley also attacked Toby’s owner—there is no direct evidence of this. The Council do not rely on it, and I put it to one side. In any case it is immaterial to the decision. The charge here is based on an attack on another domestic animal – not a human being. I have looked at the matter afresh and I can see nothing that would constitute exceptional circumstances of the kind required by the Act.

[35]   The unfortunate and, from Mr Wilson’s point of view, very sad reality is that the order for Harley’s destruction must stand.

[36]Mr Wilson’s appeal is dismissed.

Becroft J