Auckland Council v Paszczuk [2017] NZDC 12319 (12 June 2017)

Last Updated: 12 November 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-003037 [2017] NZDC 12319

AUCKLAND COUNCIL

Prosecutor

v

KEIRA ANNE PASZCZUK

Defendant

Hearing: 11 May 2017

Appearances: Prosecution: Chrisna Nortje

Defence: Katrina Hamblin

Decision: 12 June 2017

_{RESERVED DECISION OF JUDGE N J SAINSBURY}

[1] Keira Paszczuk is charged under s 58(a) of the Dog Control Act 1996 (the “Act”) of being the owner of a dog that attacked a person and caused serious injury. The charge arises from events on 8 January 2016, when a meter reader, [the victim], came to the defendant’s address at [address deleted], Otara, The meter is located close to the door of the house. After letting himself through the gate, [the victim] bent over to read the meter. At that point, the defendant’s dog, Zion, came out of the door of the house and bit him on the leg.

[2] At the commencement of the hearing, it was confirmed that the following facts were not an issue:

(i) That the defendant owned Zion.

(ii) That Zion had attacked [the victim].

(iii) That the attack had caused serious injury to him.

[3] There were two issues to be resolved in the case. In the first instance, given the concessions made at the commencement of the hearing, is whether the defence of absence of fault has been made out. The second issue arises in the event that the defence fails to show absence of fault. That will mean that that the defendant is convicted. In that situation I need to consider whether the circumstances of the attack were exceptional so as not to justify the destruction of Zion1.

[4] The prosecution called three witnesses. These were:

(i) [The victim]: He is the meter reader who was injured in the attack by Zion. He gave evidence regarding his visit to the address, including his knowledge that there was a dog on the property and the actions taken by him in going on to the property, leading up to the attack.

(ii) Alona Haren: She was the Area Supervisor for Meter Reading Services, who employed [the victim]. She gave evidence about the practices of the company in relation to meter reading and the procedures in place where there is notification that a dog was on the property.

(iii) Shane Holland: He is an Animal Management Officer for the Auckland Council. He gave evidence about the layout of the property and the protections that the owner had put in place to contain Zion and warn others about the fact that Zion was on the property. He also gave evidence as to the defendant’s actions as to the control of Zion in the past. Additionally, he gave evidence about advice given to the defendant following the attack as to improvements she could make to the property to ensure there was no repeat of this incident.

[5] On behalf of the defence, two witnesses were called:

(a) The defendant gave evidence. This included evidence of the measures she had put in place to ensure that Zion was properly contained and to

1 Section 58 of the Act provides: “...the Court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction.”

avoid the risk of attack. She also gave evidence about the events of that day and how it was that Zion got out of the house.

(b) Sharon Paszczuk, who is the defendant’s mother. She gave evidence about the security measures in place, as well as the events of that day. She also gave evidence about the practice whereby Mercury Energy, who owned the meter that was to be read, would ordinarily alert the household to the fact that a meter reader was to come onto the property.

[6] In terms of the conduct of the hearing, much, if not all, of the evidence called was not contentious. For the purpose of this decision, the following facts are found to be proven:

(i) The property had two gates. One at the front of the property where the driveway met the footpath at the street frontage. The second gate was close to the house; that gate had a childproof latch attached to it. It was a short distance from that gate to where the meter is located. The rear of the property was also fenced off so that Zion could be placed outside and would not be able to get to the area where the meter was located.

(ii) There was a sign by the front door stating “Beware of the Dog”.

Mercury Energy had been advised that there was a dog on the premises and this was noted on an electronic device that the meter reader carried with him on the day. The notes held on that device referred to there being a loose dog on the property. The notes also had the telephone number for the house, so that the meter reader could call before entering onto the property to ensure that the dog was properly locked away.

(iii) Nowithstanding the information on the electronic device carried by [the victim], he did not call the occupiers of the house before going onto the property.

(iv) [The victim] called out “meter reader” before going through the second gate, close to where the meter is located. However, he did not say so loudly and this was not heard by the occupants of the house. The events happened comparatively early in the morning, while the defendant’s mother was doing baking and the defendant was getting breakfast for her two children.

(v) Because the house was quite hot, the front door had been left slightly ajar.

(vi) At the time Zion was still in the house and had not yet been taken out to be toileted and left to run in the backyard.

(vii) It was normal practice for Mercury Energy to contact the occupants a day or so before the meter reading, to warn them that the meter reader would be calling. In those circumstances the defendant and/or her mother would ensure that Zion could not get into the area where the meter was located until after the reading had happened. On this occasion, they had not received a call to alert them to the fact that the meter reader would be coming to the house.

(viii) Zion is a 13 year old dog. He had been micro-chipped and neutered.

There had been no prior issues with Zion attacking anyone. There was no question that the defendant was anything other than a responsible dog owner, who complied with her obligations as a dog owner.

(ix) The occupants did not hear the meter reader arriving. They were only alerted to something being odd when Zion went to the front door, pushing the door further open so that he could get out. The defendant and her mother immediately chased after him. when they found Zion was attacking [the victim] and got Zion away from him. They then provided all reasonable assistance to [the victim]. They were co- operative with the dog control officer who came to the property as a result of the incident.

(x) Subsequent to the attack, the dog control officer provided advice to the defendant about how the property could be better secured, in particular by placing a bell on the gate that would alert the occupants to someone being at the gate, padlocking the side gates so that a visitor could only enter once the occupants let that person in and providing better signs, warning any visitor of the presence of the dog.

(xi) The defendant complied with those suggestions and Zion was returned to her pending the outcome of this case.

(xii) There have been no further incidents.

[7] In the light of those facts, I turn to the first issue – which is whether the defence of absence of fault has been made out. A charge under s 58 creates a strict

_{liability offence}2_{. It is for the defendant to show that she took all reasonable steps to}

2 MacKenzie v Auckland City Council High Court Auckland CRI-2006-404-343, 6 December

2006 at para [3] & [4]

ensure that the dog is under control. The onus is on the defendant to establish absence of fault on the balance of probabilities.

[8] For the following reasons I find that the defendant failed to establish total absence of fault. Zion is a breed which is, of itself, categorised as menacing. While Zion had not exhibited aggressive behaviour in the past, the obligation was on the defendant to ensure that all reasonable steps were taken to ensure that an attack such as that which happened could not happen. The lack of all reasonable steps is starkly indicated by the steps that the defendant did take following advice from Shane Holland, after the attack. First, placing a bell on the gate to alert the occupants to there being a visitor. Second, to placing a padlock on the gate so that a visitor does not enter into the property in the misguided view that the dog is not able to get to that area of the property. Third, having better signage, warning a visitor of the danger. In addition to that, the fact that on the day in question the front door was left ajar when Zion was inside the house gave him the opportunity to get out of the house to confront what undoubtedly he regarded as an intruder.

[9] Had the precautions that subsequently have been put into effect been in existence on the day in question, it is highly unlikely that any attack would have happened.

[10] In making that finding, I wish to make clear that, in my view, the defendant did establish that she is a responsible dog owner. This was accepted by the prosecutor and appropriately so. Ms Paszczuk has a history of owning dogs and it was clear from the file information provided by Auckland Council that she has always complied with registering the dogs. In particular with Zion, as noted, he was micro-chipped and neutered. She had owned him for 13 years without incident. There is no implication in this case of disdain for the law or even wilful indifference. The case simply illustrates the stringent obligations that are placed on dog owners to ensure there is no danger to the public.

[11] In the light of that finding, I turn to the second issue which is the circumstances of the attack were exceptional so as not to justify destruction of Zion. I note at the outset that at the hearing the prosecution accepted that on the evidence

there were exceptional circumstances. I am grateful for that acknowledgement but it still remains for me to find that the exceptional circumstances exist in terms of the test in the Act.

[12] The term “exceptional” means unique or special, or substantially unusual, although the circumstances need not be extreme.3 In Halliday, Heath J also warned that interpreting exceptional to mean something more than special or out of the ordinary may put the test too high.4 In Halliday, it was emphasised that the enquiry is in relation to the circumstances of the “attack”. Accordingly, the circumstances of the owner or the attacking dog were held to be relevant only if they had a direct bearing on and were related to the attack. Similarly, previous behaviour of the dog and lack of any history of attack was held to be generally irrelevant to the question as to whether exceptional circumstances of the attack had been demonstrated. As the High Court in Milner v Hastings District Council5 articulated the test at paragraph [9]:

“Unless the circumstances of the attack (to be contrasted to those of the owner or the attacking dog, are exceptional an order for destruction of the dog is mandatory). It may be that there are circumstances relating to the owner, or dog, which make the attack exceptional but they must have a direct bearing on and be related to the attack”.

[13] When I consider the factual findings that are directly relevant to the circumstances of the attack, I find the following to be significant:

(i) The meter reader, [the victim], had available to him on the electronic device carried by him notes that warned him that there was a loose dog on the property and the telephone number of the house so that he could call the occupier. Notwithstanding that knowledge that there was a dog on the property, he did not call the occupants.

(ii) The occupants, themselves, had not been alerted, as had been the normal practice, that a meter reader might be visiting the property at

_{that time.}

3 _{Halliday v New Plymouth District Council HCMP CRI-2005-443-011 14 July 2005 at para [20]}

4 _{See Halliday paragraph [58]}

5 Milner v Hastings District Council (HC, Napier, AP5-04, Gendall J

(iii) While [the victim] called out “meter reader” he did not say so loudly so as to alert the occupants to his presence. While clearly his presence has been detected by Zion, the occupants of the house were oblivious to that until they saw Zion go out the front door, at which point they immediately chased after him.

[14] In those circumstances, I find that the attack arose from an unfortunate conjunction of events, whereby the meter reader assumed all was well because he could not see Zion and decided against taking precautions that the systems in place had designed to avoid this very situation. Further, the owners, while usually diligent in their actions to ensure that Zion could not get out in the situation where an attack might happen, had left the door ajar. The upshot was that Zion, acting to protect the property and occupants, went out to find the intruder - with the ensuing attack. It is significant in my view that this was not a gratuitous or aggressive attack by an otherwise out of control dog.

[15] Given those circumstances, I agree with both defence and prosecution counsel that exceptional circumstances of the attack are made out. Accordingly, destruction of Zion is not justified. I do not make an order for the destruction of Zion.

[16] In the light of these findings it is still necessary to consider sentence. Given Ms Paszczuk’s otherwise exemplary record as a responsible dog owner and the steps and expense she has undertaken to alter the property to ensure there is no repeat of these events, I do not consider a punitive sentence is required. But there is the issue of reparation to [the victim] and the possibility of restorative justice. I will ask that the registry set a date for sentencing. It would be useful if both prosecution and defence could advise in advance of that date their views as reparation and/or a restorative justice process. If reparation is to be set it would be useful if there could be a joint approach to quantity.

N J Sainsbury

District Court Judge