Sharma v Auckland Council [2024] NZCA 252 (21 June 2024)

Last Updated: 24 June 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA74/2024 [2024] NZCA 252

	BETWEEN	AMITESH KUMAR SHARMA Applicant
	AND	AUCKLAND COUNCIL Respondent

Court:	Courtney, Muir and Cull JJ
Counsel:	T A Hwang for Applicant J B Carter for Respondent
Judgment: (On the papers)	21 June 2024 at 11 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
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REASONS OF THE COURT

(Given by Courtney J)

• [1] In September 2023 Mr Sharma pleaded guilty to one charge of owning a dog that attacked a domestic animal^[1] and failing to comply with a menacing classification.^[2] The charges arose from an incident in which Mr Sharma’s dog, Kaiser, escaped from its home and approached another, much smaller, dog, Mary. What may possibly have begun as an effort to play with Mary turned into an attack that resulted in moderately serious injury to Mary. Judge K Tan in the District Court ordered Mr Sharma to pay a fine, reparations and costs, which Mr Sharma does not seek to appeal against. The Judge also ordered the destruction of Kaiser, in accordance with s 57(3) of the Dog Control Act 1996 (DCA), which is the subject of this proposed appeal.^[3]
• [2] Mr Sharma contended that the circumstances of the offence were exceptional because of the unusual combination of events that had led to Kaiser escaping and therefore the otherwise mandatory order for the destruction of Kaiser ought not be made. The Judge did not accept this submission. The Judge found that, on the approach set out in Auckland Council v Hill, the earlier events that led to Kaiser escaping were not relevant to determining whether the “circumstances of the offence” were exceptional for the purposes of s 57(3).^[4] The Judge accordingly made an order for Kaiser’s destruction.
• [3] Mr Sharma appealed. In the High Court, O’Gorman J carefully reviewed the approach taken in the District Court and found no error in either the approach or the conclusion reached by the District Court Judge.^[5]
• [4] Mr Sharma seeks leave to bring a second appeal. The application for leave is brought under s 253(1) of the Criminal Procedure Act 2011. The Court must not give leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.^[6]
• [5] Mr Sharma wishes to argue that the Court should revisit the approach taken in Hill so as to extend the inquiry into the “circumstances of the offence” beyond the immediate circumstances in which the attack occurred. On a wider approach, he submits the circumstances in which Kaiser came to escape would be viewed as exceptional. Specifically, Mr Sharma contends that Hill has constrained the intention of Parliament by prohibiting potentially relevant evidence that might assist the Court in its assessment of whether the “circumstances of the offence” are exceptional.
• [6] In support of his contention that the appeal raises an issue of general or public importance, Mr Sharma refers to statistics on dog attacks, the diversion policy recently implemented by Auckland Council (allowing some offenders charged with council‑prosecuted offences, including those under the DCA, to be dealt with outside the courts) and the expression of concern in at least one previous High Court case regarding the effectiveness of the current dog control regime.^[7]
• [7] Mr Sharma also argues there has been a miscarriage of justice because the application of Hill is an unfair restriction on relevant evidence. He cites pre-Hill case law on s 57(3)^[8] and the suggestion in one post-Hill High Court case that expert evidence will still sometimes be relevant and helpful.^[9]
• [8] Hill represents a very extensive, and recent, consideration by this Court of the correct approach to s 57(3) of the DCA. We are not persuaded that there is any basis on which to reconsider the decision. We therefore do not consider that any issue of general or public importance arises.
• [9] Nor do we consider that there is any risk of miscarriage of justice in this case. We see no arguable error in either of the lower Courts’ decisions. We are satisfied that, even on a more liberal approach to s 57(3), Mr Sharma could not have demonstrated exceptional circumstances such as to avoid the mandatory order.
• [10] The application for leave to bring a second appeal is declined.

Solicitors:
Queen City Law, Auckland for Applicant
Auckland Council, Auckland for Respondent

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^[1] Dog Control Act 1996, s 57(2).

^[2] Sections 33E(1)(a) and 33EC.

^[3] Auckland Council v Sharma [2023] NZDC 20024.

^[4] At [24], citing Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.

^[5] Sharma v Auckland Council [2023] NZHC 1755.

^[6] Criminal Procedure Act 2011, s 253(3).

^[7] Adams v South Taranaki District Council [2021] NZHC 3254.

^[8] See Tekotia v Manukau City Council HC Auckland CRI-2010-404-000234, 24 August 2010; and Halliday v New Plymouth District Court HC New Plymouth CRI-2005-443-011, 14 July 2005.

^[9] Ding v Auckland Council [2022] NZHC 45 at [39].