Price v Auckland City Council [2014] NZHC 2874 (18 November 2014)

Last Updated: 28 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-148 [2014] NZHC 2874

BETWEEN	DANAE PRICE Appellant
AND	AUCKLAND CITY COUNCIL Respondent

Hearing:	18 November 2014
Appearances:	M J Utting for Appellant L Evile for Respondent
Judgment:	18 November 2014

(ORAL) JUDGMENT OF LANG J

_{[on appeal against order for destruction of dog]}

PRICE v AUCKLAND CITY COUNCIL [2014] NZHC 2874 [18 November 2014]

[1] Ms Price pleaded guilty in the District Court to a charge of being the owner of a dog that had attacked another domestic animal. That charge was laid under s 57(2) of the Dog Control Act 1996. After a number of adjournments, the case was set down for a sentencing hearing on 1 May 2014.

[2] Ms Price did not attend the hearing on 1 May 2014 because she mistakenly believed that it was to be held during the following week. She was therefore unable to make submissions when the matter was called on 1 May 2014. In her absence Judge Johns ordered Ms Price to pay reparation in the sum of $811.90, and also made an order that her dog be destroyed.¹ Ms Price now appeals against that order.

Background

[3] Ms Price is the owner of a three year old female bull terrier cross called

Bella. In September 2013, her family also owned another dog called Buster.

[4] On the morning of 9 September 2013, the complainant was walking her friend’s dog, a bichon frise called Slipper, along North Road in Clevedon. As she walked past Ms Price’s property, Bella and Buster pushed through the fence and rushed at her. Bella attacked Slipper by latching onto her neck and shaking her. The complainant was able to free Slipper from Bella’s grip by kicking Bella. She then picked Slipper up, but Bella began jumping up at her. She then kicked Bella in the head, and both Bella and Buster then ran back to Ms Price’s property.

[5] Slipper suffered a deep puncture wound to her neck as a result of the attack. This required her to undergo surgery costing $811.90.

[6] An animal control officer visited Ms Price’s property shortly after the attack. Bella and Buster were then placed in the pound. They were later released to Ms Price after she had constructed a compound on her property within which the two

_{dogs could be confined.}

¹ Auckland Council v Price DC Manukau CRI-2013-092-012230, 1 May 2014.

[7] In an affidavit filed in support of the appeal, Ms Price deposes that Bella had never attacked another dog before the day of the incident giving rise to the charge. Approximately three months prior to 9 September 2013 the family decided to acquire another dog as a companion for Bella. They did so to replace another dog that had died some time ago. Buster was the same breed as the deceased dog. For that reason they believed Buster would be compatible with Bella.

[8] The family have now realised, however, that Buster was an urban dog. Although he was accustomed to living in an urban environment, he was constantly disturbed by the sounds and sights that commonly occur in a rural setting. Ms Price deposes that Buster was also much more aggressive than their previous dog had been, and would run out to the fence line when people walked past. She also says that pedestrians were an unusual event, because her property is in a rural location. For that reason Ms Price says that the attack on the complainant’s dog was wholly unexpected. The family was shocked to learn that Bella had bitten the complainant’s dog, because conduct of that type was completely at odds with her usual behaviour.

[9] After the incident occurred, the family decided that Buster needed to live in an urban environment. He has now been removed from the family home, and Ms Price says that Bella has settled back into her old non-aggressive habits.

Miscarriage of justice

[10] After reading the file, I became concerned that a miscarriage of justice may have occurred as a result of the fact that Ms Price did not appear at the hearing on

1 May 2014. I reached that view because of the events that had occurred between the date on which Ms Price pleaded guilty and the date on which the Judge passed sentence.

[11] Ms Price entered a guilty plea to the charge when it was first called on

23 December 2013. The matter was then adjourned on 5 February and 20 March

2014 so that Bella could complete a dog obedience training course. Mrs Price attended court on each of those occasions. By the time the proceeding was called on

1 May 2014, Bella had completed the dog obedience course. Unfortunately,

however, the fact that Ms Price did not attend that hearing meant the Judge was unaware of this fact when she made the order for Bella’s destruction.

[12] Ms Price deposes that she arranged for Bella to undertake the dog obedience course as a result of discussions that she held with the prosecutor when she entered her guilty plea. The prosecutor led her to believe that an order for destruction might not need to be made provided Ms Price took steps to ensure that Bella would not engage in similar conduct in the future. Not surprisingly, Ms Price was distraught to discover that the hearing had proceeded in her absence, and that the Judge had made an order for Bella’s destruction.

[13] Given Ms Price’s failure to appear on 1 May 2013, the Judge had no choice but to make an order requiring the dog to be destroyed. Section 57(3) of the Dog Control Act 1996 requires a Judge to make an order for the destruction of any dog where it has attacked a person or animal. The Court may only desist from making such an order when it is satisfied that the circumstances of the offence are exceptional and do not warrant destruction of the dog.

[14] This Court has held in numerous cases that s 57 creates a high threshold, and one that the owner of a dog that has attacked a person or an animal will find difficult to meet. These include Halliday v New Plymouth District Council,² Orr-Walker v

Auckland Council,³ and Jorion v Kapiti District Council.⁴

[15] I formed a preliminary view that the prosecutor must have indicated to Ms Price that the Council would reduce the charge to a charge under s 57A of the Act provided Ms Price arranged for Bella to attend the dog obedience course. I reached that view because I considered it was unlikely that the Council would have agreed to the adjournment of the sentencing hearing so that Bella could attend the dog obedience course if it ultimately intended to ask the Court to make an order for her destruction. Under s 57A, the Court has a discretion to order an animal to be

_{destroyed where it has rushed at or attacked a person or another animal. There is no}

² _{Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005.}

³ _{Orr-Walker v Auckland Council [2013] NZHC 1541.}

⁴ Jorion v Kapiti District Council HC Palmerston North CRI-2010-454-22, 4 August 2010.

mandatory requirement under that section for an order for destruction of the offending animal to be made.

[16] Given that background, I asked Ms Evile to make enquiries of the Council to ascertain whether my preliminary view was correct. After the matter was stood down, Ms Evile duly made those enquiries and advised me that it was. She also advised me that the Council now has no objection to the charge being reduced to a charge under s 57A.

Result

[17] I grant Ms Price leave to amend her notice of appeal to include an appeal against her conviction. On the basis that there has been a miscarriage of justice, I allow the appeal under s 232(2)(c) of the Criminal Procedure Act 2011 (the Act) and set aside the conviction on the charge under s 57. In its place, I make a direction under s 234(2) of the Act that a judgment of conviction is to be entered in respect of a charge under s 57A of the Act.

[18] That having been done, the Council confirms it has no objection to the Court declining to make an order for Bella’s destruction. I am satisfied that it is appropriate to take that course of action, not only because of the fact that Bella has completed the dog obedience course but also to reflect the findings contained in a report from a dog training expert that Ms Price has submitted to the Court. This confirms that the dog training expert is of the opinion that Bella is not an overtly aggressive dog, and is not a dangerous dog whilst she remains under her owner’s control.

[19] I therefore confirm the order for reparation, but set aside the order for destruction of the dog.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

M J Utting, Auckland