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]…

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: [2024] NZHC 646
Decision Date: 22 March 2024

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Adrian Wilson against an order for the destruction of his dog, Harley, made by the North Shore District Court. Following a guilty plea by Wilson for his dog attacking another dog, the District Court ordered the destruction of Harley as a mandatory penalty under the Dog Control Act 1996. Wilson appealed the order, arguing that exceptional circumstances existed that warranted a departure from the mandatory destruction order. The court considered whether the circumstances of the offence were exceptional and whether the destruction order was justified. The appeal hinged on three grounds: the change in Harley's routine, the unforeseen escape from the property, and Harley's role as an emotional support dog for a family member. The court found that none of these factors constituted exceptional circumstances under the Act. The change in routine and the unforeseen escape, while possibly contributing factors, did not alter the fundamental risk that Harley posed to public safety. Additionally, the emotional support role of Harley did not qualify as an exceptional circumstance under the Act. The High Court upheld the destruction order, dismissing the appeal.

Orders