Kaumoana v Auckland City Council

[2015] NZHC 269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000402 [2015] NZHC 269

BETWEEN

CORAL KAUMOANA

Appellant

AND

AUCKLAND CITY COUNCIL Respondent

Hearing:	24 February 2015
Appearances:	P Stokes for the Appellant C Tamatea for the Respondent
Judgment:	24 February 2015

[ORAL] JUDGMENT OF WYLIE J

KAUMOANA v AUCKLAND CITY COUNCIL [2015] NZHC 269 [24 February 2015]

[1]      The appellant, Ms Kaumoana, challenges an order for the destruction of her dog made by Judge SEC McAuslan in the District Court at Manukau on 4 November

2014.  The dog attacked another person.  Ms Kaumoana was convicted of an offence under s 57(2) of the Dog Control Act 1996 after she pleaded guilty.  She was fined

$400.

[2]      When a person is convicted of an offence under s 57 of the Dog Control Act, an order must be made for the destruction of the dog, unless the owner establishes that there are “exceptional circumstances” relating to the offence, such that the destruction of the dog is unwarranted.1

[3]      One of the grounds of appeal is that the Judge erred in principle and took into account a fact which was in dispute.

[4]      The summary of facts  recorded that  the complainant, the victim, was  at Ms Kaumoana’s house for a family meeting.   She was leaving the house when Ms Kaumoana’s partner invited her into the garage.  Ms Kaumoana’s dog was in the garage.  The dog came up and sniffed the complainant.  The complainant sat down on a bed and the dog sat on the floor in front of her.  The complainant patted the dog and commented that it smelled.  The complainant bent forward to sniff the dog, the dog growled, and suddenly lunged up at her, biting her in the face.

[5]      Judge McAuslan recorded that there was disagreement over this summary of facts.  She noted that the summary said simply that the dog growled and suddenly lunged up at the complainant, but that Ms Kaumoana contended that the complainant pulled the dog’s head towards her, and it was only at that point that the dog lunged up and bit her.

[6]      Judge McAuslan was of the view that the difference was not such as would warrant a disputed facts hearing, and accordingly, she proceeded to consider whether or not the dog should be destroyed.

[7]      Mr Tamatea, appearing on behalf of the respondent Council, accepted that the

issue of whether or not the complainant pulled the dog’s face towards her is one that

1      Dog Control Act, s 57(3).

could have a significant bearing on whether or not there were exceptional circumstances in terms of s 57(3) of the Act.

[8]      I agree with Mr Tamatea’s view.

[9]      The law in this field is helpfully summarised by Heath J in Halliday v New Plymouth District Council,2 and by Katz J in Anand v Auckland Council.3  Whilst the use of the word “exceptional” in s 57(3) creates a difficult test for a dog owner to surmount, it is trite law that the circumstances need not be extreme.  In my view, the way in which the complainant dealt with and handled the dog could well be an exceptional circumstance.

[10]     Under s 24 of the Sentencing Act 2002, if a fact that is relevant to the determination of a sentence or other disposition of a case is asserted by one party and disputed by the other, the Court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist and its significance to the sentence or other disposition of the case.

[11]     Here, this did not occur.

[12]     In my view, the Judge erred in principle.  She failed to comply with s 24 and she proceeded on a factual basis which was challenged by the appellant.   It is appropriate to set aside the order for the destruction of the dog, and direct, pursuant to s 251(2)(c) of the Criminal Procedure Act 2011, that the sentence, insofar as it relates to the disposition of the dog, be remitted to the District Court so that it can

hold a disputed facts hearing pursuant to s 24 of the Sentencing Act.  I so order.

Wylie J

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

3      Anand v Auckland Council [2013] NZHC 445, [2013] NZAR 285.