Zhou v Auckland Council
[2020] NZHC 123
•10 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-384
[2020] NZHC 123
IN THE MATTER OF Dog Control Act 1996 BETWEEN
VINCENT ZHOU
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 3 February 2020 Appearances:
Appellant in person
V S Schaaf for Respondent
Judgment:
10 February 2020
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 10 February 2020 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Auckland Council — Legal Services Copy for: Appellant
ZHOU v AUCKLAND COUNCIL [2020] NZHC 123 [10 February 2020]
[1] On 24 July 2019, the appellant, Mr Zhou, pleaded guilty to being the owner of a dog (“Hachi”) making an attack on a domestic animal, an offence under s 57(2) Dog Control Act 1996 (“Act”).
[2] Judge M L Rogers, who dealt with the matter, convicted Mr Zhou and ordered him to make reparation to the complainant of $190.65 for veterinary fees and $500 for emotional harm.1 The Judge also fined Mr Zhou $1,000 and ordered him to pay Court costs of $130.2
[3] The Judge also ordered Hachi’s destruction, and it is this order which is the focus of Mr Zhou’s appeal.
[4] Mr Zhou was not represented before me but was assisted by an interpreter, Mr Wei.
Dog Control Act 1996
[5]Sections 57(1) to 57(3) of the Act are relevant to this appeal and provide:
57 Dogs attacking persons or animals
(1)A person may, for the purpose of stopping an attack, seize or destroy a dog if—
(a)the person is attacked by the dog; or
(b)the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.
(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding
$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.
(3)If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, 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.
1 Auckland Council v Zhou [2019] NZDC 17300.
2 At [5].
[6] The elements of the offence under s 57(2) of the Act are that the defendant is the “owner” of a dog that “makes an attack” of a type described in s 57(1). By virtue of s 57(3), as Hachi had not already been destroyed, the Judge was required to order destruction unless “satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog”.
Background
[7]The summary of facts, on the basis of which Mr Zhou pleaded guilty, states:
On the date of the offence, the defendant was the owner of a male black and brown coloured Rottweiler named Hachi.
On 27 February 2019 at approximately 7.40pm the complainant was walking his dog Bella. As the complainant walked past the defendant’s property, the defendant’s dog ran out of the property barking. The defendant’s dog attacked Bella, biting her all over and running around in circles for approximately eight minutes.
The complainant yelled at the defendant to come and get his dog. Nearby residents came out of their properties but were unable to help. An adult female came out of the defendant’s property and took the defendant’s dog away.
The complainant returned home and took Bella to the Animal Referral Centre in Albany to check her out. Bella sustained some scratches. A copy of the veterinary report and invoice is attached and marked “A”.
The defendant’s dog was seized and impounded and subsequently released. The defendant bears the onus to show that exceptional circumstances existed, which do not warrant the destruction of the dog.
...
[8] Although the summary states that Hachi is a Rottweiler, a veterinary surgeon report states that he is a Huntaway. This is consistent with other evidence, so I shall proceed on that basis.
[9] As appears from the summary, the offence occurred on 27 February 2019. Mr Zhou was charged on 29 April 2019. After two appearances in June 2019, the matter was before Judge Rogers for case review on 24 July 2019. In her submissions, counsel for Auckland Council, Ms Schaaf, states that Mr Zhou asked that the matter be dealt with that day, that he entered a plea of guilty and asked the Judge to sentence him then and there. This the Judge did. The Judge’s note records that Mr Zhou was
unwilling to take any steps in mitigation, and that he did not object to Hachi’s destruction at the time but in fact consented to it:
[3] The duty lawyer tells me she has discussed with you possible ways in which Hachi’s behaviour could be mitigated or addressed. She has discussed with you whether dog training would be a good idea. She has also discussed with you restorative justice. You are not willing to take either of those steps. Your attitude to restorative justice was particularly problematic as a referral is mandatory but the prosecution have contacted the complainant who says that he is not interested in restorative justice.
...
[5] ... You have mounted no opposition to the destruction of your dog, indeed there is consent to such an order.
[6] In those circumstances, you as Hachi’s owner, have given me no option but to order Hachi’s destruction.
[10] Given this background, I have considered whether Mr Zhou has a right of appeal to this Court against an order he did not oppose — indeed is said to have consented to — in the District Court. On balance, however, I think the sensible course is just to determine the appeal, as I shall now do.
Grounds of appeal
[11]Mr Zhou’s grounds of appeal are:3
(a)Hachi did not attack the other dog (“Bella”);
(b)there was insufficient evidence that Hachi bit Bella for eight minutes;
(c)it would to too cruel to put Hachi down; and
(d)Mr Zhou now agrees to give the dog training and is prepared to meet with the victim, contrary to what was said in the Judge’s decision.
3 Zhou v Auckland Council HC Auckland CRI-21019-404-384, 22 November 2019 (Minute of Whata J).
Ground (a)
[12] As to ground (a), and as I explained to Mr Zhou, having pleaded guilty to the offence, it is not open to him now to contend there was no “attack”. His guilty plea is an admission that there was such an attack.
Ground (b)
[13] As to ground (b), the summary of facts states the attack lasted for approximately eight minutes. Again, as Mr Zhou pleaded guilty on the basis of the summary, it is not open to him to challenge it now. Moreover, even if not as long as eight minutes, the attack was obviously of some duration.
Grounds (c) and (d)
[14] Grounds (c) and (d) which go to destruction are at the heart of the appeal because in essence they concern events post the attack, in fact post the Judge’s decision.
[15] There are competing views as to what the Court may take into account in assessing whether an order for destruction under s 57(3) of the Act is unwarranted.
Halliday
[16] In Halliday v New Plymouth District Council, applied in numerous cases, Heath J said that an order for destruction might be avoided if the following two-stage test is met:4
(a)the circumstances of the offence were exceptional; and
(b)the circumstances do not warrant destruction of the dog.
[17] Heath J proposed the following non-exhaustive list of matters to be considered in assessing whether the first stage of the test is met:5
4 Halliday v New Plymouth District Council [2005] BCL 894 at [40]-[41].
5 At [48].
(a)the nature of the attack (including the fact that injury resulted);
(b)the appellant’s history as an owner of the dog;
(c)whether the dog had behaved this way in the past;
(d)the steps that had been taken by the appellant to prevent such an attack from occurring; and
(e)the reason why the steps taken by the appellant did not prevent an attack on the occasion in question.
[18] If I were to apply Halliday, this case would not pass the first limb of the test because the circumstances of the attack were not exceptional. Although Bella’s injuries were not severe, the attack was of some duration. There is no evidence Hachi had attacked previously, but Mr Zhou’s record as an owner is poor. He infringed the legislation in January 2018 by failing to register a dog, Hachi I assume, and in August 2018 he infringed by failing to keep a dog, again I assume Hachi, on a leash. There is no evidence before me as to whether Mr Zhou had taken steps to prevent an attack occurring and why they failed on the occasion in question. The only evidence I have that bears on the matter is the following from an undated affidavit filed in support of his appeal, in which Mr Zhou states:
5.Hachi escaped from the unsecured gate of my house [in Auckland] with a chain on its neck when I was preparing a walk with Hachi after sending off one of my family visitors around 7:30 pm on 27 February 2019.
Hill
[19] Although the first stage of Heath J’s two-stage test excludes post-attack or post-offence events or acts, Palmer J took a different view in Auckland Council v Hill, a case presently before the Court of Appeal:6
[20] I consider the resulting cumulative test is whether the circumstances of the owner’s offence are sufficiently exceptional, in light of what is known
6 Auckland Council v Hill [2018] NZHC 3315.
about the dog’s risk of attacking again, that destruction of the dog is not warranted.
[21] That is to be assessed by reference to the factors identified by Heath J and the additional factor of the post-attack circumstances of the dog. Like Woodhouse J in Korewha and Brewer J in Xu, I do not consider s 57(3) requires a Court necessarily to disregard relevant considerations that post-date the attack. Post-attack circumstances can clearly bear on whether destruction of the dog is warranted.
[20] Hill is more favourable to Mr Zhou and Hachi because, as I have said, Mr Zhou’s appeal is based on events or acts which post-date the offence. These principally are that Hachi has now been desexed and, for the moment at least, has been relocated to a semi-rural property in Bombay.
[21] Hachi was desexed in August 2019, but there is no evidence as to what effect, if any, this will have on Hachi’s behaviour. Mr Zhou contends the attack took place because Hachi, a male, was attracted to Bella, a female. That may be Mr Zhou’s surmise but there is no evidence to support the theory. Accordingly, whilst I accept desexing may ameliorate Hachi’s behaviour, absent expert evidence I am unable to say it will make another attack unlikely or improbable.
[22] As to his relocation, Hachi is at a property owned by Mrs Jing Sheau-Pey. A letter from Mrs Jing, which I received despite Ms Shaaf’s objection, is to the effect that she is a responsible dog owner and certified to be such by Auckland Council, and that she and her family are fond of Hachi and wish to keep him. However, these matters do not go to the likelihood of another attack. There is no evidence that it is impossible for Hachi to escape Mrs Jing’s property, even if the intention is he will remain there permanently. Photographs of the property provided to me indicate that it would be a relatively easy matter for Hachi to escape. Nor is there evidence that Hachi is muzzled — not that the latter would be determinative in any event.
[23] Mr Zhou also stated in his affidavit that the SPCA uplifted Hachi after the attack and returned him to Mr Zhou 24 hours later, saying it had not encountered any difficulties with his behaviour. Again, however, Mr Zhou’s statement falls well short of evidence that another attack is so improbable that an order for destruction is unnecessary.
[24] To conclude, even giving Mr Zhou and Hachi every indulgence as to this appeal, I accept Ms Schaaf’s submission that an order for destruction is required in accordance with s 57(3) of the Act.
[25] I dismiss this appeal accordingly. I do not know how the order for destruction is implemented. If there is any doubt, Mr Zhou should liaise with the Council.
Peters J
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