Zhou v Auckland Council - [2020] NZHC 123

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,…

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: [2020] NZHC 123
Decision Date: 10 February 2020

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, dealt with an appeal by Mr Vincent Zhou against an order made by the District Court for the destruction of his dog, Hachi, following an attack on another dog, Bella. The District Court had convicted Mr Zhou for the offence under the Dog Control Act 1996 and imposed a fine, ordered reparation, and mandated the destruction of Hachi. Mr Zhou appealed the order for the destruction of Hachi on several grounds, including that Hachi did not attack Bella, there was insufficient evidence of the duration of the attack, it would be cruel to put Hachi down, and Mr Zhou was now willing to provide dog training and meet with the victim. The court assessed the grounds of appeal, particularly focusing on the exceptional circumstances that might warrant avoiding the destruction order.

The court noted that by pleading guilty, Mr Zhou had admitted to the offence and could not challenge the facts of the attack. Regarding the exceptional circumstances required to avoid the destruction order, the court examined whether the post-attack circumstances, such as Hachi being desexed and relocated, were sufficient to warrant avoiding the order. While acknowledging that these steps might mitigate Hachi's risk of attacking again, the court found insufficient evidence to conclude that another attack was improbable. The court was not persuaded that the post-attack circumstances were exceptional enough to avoid the destruction order under section 57(3) of the Act.

Ultimately, the High Court dismissed the appeal, upholding the District Court's order for the destruction of Hachi. The court emphasized the importance of the owner's responsibility in preventing such attacks and the need to protect the public from dangerous dogs. The decision highlights the stringent requirements for demonstrating exceptional circumstances to avoid a destruction order under the Act.

Orders