Xu v Auckland Council

[2015] NZHC 3024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-282 [2015] NZHC 3024

BETWEEN

ZHENG XU

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing:	30 November 2015
Counsel:	Z Chen for Appellant L Evile (on instructions from V Tamatea) for Respondent
Judgment:	2 December 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 2 December 2015 at 12 noon pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Law & Associates (Auckland) for Appellant

Auckland Council (Auckland) for Respondent

XU v AUCKLAND COUNCIL [2015] NZHC 3024 [2 December 2015]

Introduction

[1]      Ms Xu owns a German Shepherd dog called Harry.  She bought him in 2013 as a companion and as a guard dog.  Ms Xu is emotionally attached to Harry, not only as a devoted dog owner but because he is a link to her nephew who lived in her home until he was killed in a motorcycle accident.

[2]      On two occasions Harry has attacked people.  The first occasion was in 2013. Harry escaped from his cage and bit a neighbour on the buttocks.   Ms Xu was charged as a result, pleaded guilty and was fined.  The Judge did not order Harry to be destroyed.

[3]      The second occasion was in 2014.   Ms Xu and her husband were walking Harry in a public park at about 10:00 pm.  A woman who was walking nearby with her family laughed suddenly.  Harry pulled his leash from the husband’s grasp and rushed at the woman.  The woman saw Harry coming and tried to hide behind a tree, but he jumped on her and knocked her down.  He bit her on her left side just below her armpit – fortunately not causing any serious injury.  The woman’s husband drove Harry off, but he charged at them again.  Mr and Mrs Xu managed to intervene and regain control of Harry.  The woman was treated in hospital and required a tetanus injection and antibiotics.

[4]      Ms Xu was again charged with being the owner of a dog who attacked a person.  Again, she pleaded guilty and was fined.  This time the Judge ordered that Harry be destroyed.1    Ms Xu does not object to being fined.   But she very much wants  Harry  to  live.     This  judgment  determines  Ms Xu’s  appeal  against  the destruction order.

Discussion

[5]      There is an age-old bond between dogs and people.  They kept watch at our camp fires, guarded our flocks and herds, protected our homes and our families and provided devoted companionship.    To this day they commonly provide companionship, and in return many owners are devoted to their dogs.  The bond is

strong.

1      Auckland Council v Xu [2015] NZDC 16446, at [14].

[6]      But dogs can be dangerous to people.  They are carnivores and they are pack animals.   Like people, nature and nurture can make them dangerous.   And, like people, there is a spectrum of dangerousness.  Some dogs are vicious.  There have been many horrendous attacks on people by vicious dogs which have resulted in maiming or even death.   Other dogs lack self-control.   If excited, provoked or startled then they may attack.  Perhaps not seriously, but they will bite.  Parliament has legislated its policy on what should happen to dogs which attack people.  Judge Davis applied that law to Harry’s case.  My task is to decide whether he was wrong.

[7]      Ms Xu says that Harry is not a vicious dog.   She blames herself for his behaviour.   She has never before owned a large dog and did not understand that Harry needed rules and discipline.  He was never trained to behave.  A dog trainer has been engaged.   Harry can be trained and taught not to attack.   Ms Xu took sensible steps to confine Harry after the first attack and usually muzzled him before taking him for a walk.  On the occasion of the second attack she had forgotten to do that.   If her appeal is allowed, Ms Xu undertakes to do everything necessary to rehabilitate Harry and to ensure the safety of the public.

[8]      As a Judge, I must apply the law.  I must do that clinically.  I am bound by Parliament.  Parliament has said that if a dog attacks a person then the usual outcome is that the dog will be destroyed:2

If … the court is satisfied that the dog has committed an attack … the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

[9]      There   is,   therefore,   a   two-stage   inquiry.      The  first   is   whether   the circumstances  of  the  offence  were  exceptional.    Justice  Heath,  in  Halliday  v New Plymouth District Council,3  was of the view that included among factors that may be relevant to this issue are:

(a)      The nature of the attack (including the fact that injury resulted);

2      Dog Control Act, s 57(3).

(b)      The appellant’s history as an owner of the dog;

(c)      Whether the dog had behaved in this way in the past;

(d)      The steps taken by the appellant to prevent such an attack occurring;

and

(e)       The  reasons  why  the  steps  taken  did  not  prevent  such  an  attack occurring on the occasion in question.

[10]     With  respect,  I  agree  that  these  factors  provide  a  useful  framework  for assessing whether the circumstances of the offence were exceptional.  Accordingly, I agree with Ms Chen’s submission on behalf of Ms Xu that Judge Davis put the test too narrowly when he said:4

The circumstances of the attack require the Court to focus on the incident itself, not on Harry’s behaviour or his character, or that of his owner; in this case Ms Xu; before the attack, and not to focus on Harry’s behaviour or that of Ms Xu after the attack.  But it is the circumstances of the offence itself.

[11]     I do agree with the Judge that it is the second stage of the inquiry (whether, if there are exceptional circumstances, the destruction of the dog is not warranted) which focuses on the dog’s situation after the attack and, in particular, on whether the dog is likely to behave in a similar way in the future.

[12]     With  that  in  mind,  I  turn  to  consider  the  relevant  circumstances  of  the offence.

[13]     Ms Chen submitted that the combination of the following factors makes the circumstances exceptional:5

“a.       The attack occurred late at night in a poorly lit park;

b.        Harry is normally muzzled when taken out, however, it was the

Appellant’s split second wrong decision on the date of the offence;

c.         The  dog  was  supposed  to  be  constrained  by  a  leash,  which  the

Appellant’s husband lost grip of at the time of the attack;

4      Auckland Council v Xu, above n 1, at [8].

d.Harry never been to the park in question before and was nervous before the attack;

e.Coincidentally the victim (without any blameworthy conducts) innocently laughed which sounded especially loud at a quite (sic) park. This startled Harry; and

f.         The Appellant was able to quickly restrain Harry and Harry did not show further aggression toward the victims.”

[14]     Ms Chen submits that Judge Davis should have looked at these factors, as well as Ms Xu’s history of dog ownership, her attachment to Harry and the steps she has taken to prevent further attacks.  Instead, Judge Davis focused on the facts of the attack and took into account the previous incident.

[15]     I am satisfied that there was nothing exceptional about the attack.   I agree with Judge Davis that there is nothing exceptional about a dog being walked in a public park  pulling itself free  and  attacking  a  person lawfully present  who did nothing to provoke the attack except laugh out loud.  This was an ordinary situation. What was extraordinary was that Harry attacked.  This conclusion does not change because Harry was new to the park and nervous.   Those aspects go to the danger Harry poses.

[16]     There is nothing exceptional in the fact that Ms Xu forgot to fit Harry with a muzzle.   He needed the muzzle because of his previous behaviour.   Again, this emphasises the danger that Harry poses, it does not render the circumstances of the attack exceptional.

[17]     The attack caused only minor injuries, but the victim was nonetheless hurt. The effect of the attack was not so minor as to be substantially unusual.   It is fortunate that Harry was able to be restrained relatively quickly, although not immediately, but that does not change the fact that he attacked unprovoked and made a second charge which was, fortunately, intercepted by Mr and Ms Xu.

[18]     The  previous  attack  by  Harry  is  a  significant  factor.     Although  the circumstances were quite different, it demonstrates that this was not exceptional behaviour for Harry.  The reality of the situation is that Harry has attacked innocent people on more than one occasion.  He was not provoked in either case.

[19]     There is no doubt that Ms Xu is a responsible dog owner.  She took a number of steps to prevent Harry from biting again after the first attack.  They did not work. Ms Xu’s attachment to Harry is strong and genuine, but that is often the case with dog  owners.     Those  aspects  do  not  make  the  circumstances  of  the  offence exceptional.

[20]     Having  considered  all  the  factors  advanced  by  Ms  Chen  as  a  whole,  I conclude that there are no exceptional circumstances of the offence.  I do not need to consider the second stage of the inquiry.

Decision

[21]    In my view, Judge Davis was correct in his analysis of the essential circumstances.  The express policy of Parliament that dogs which attack people will be destroyed unless the circumstances of the offence are exceptional and do not warrant destruction of the dog must be given effect.

[22]      The appeal is dismissed.

Brewer J