McClintock v Taupo District Council

[2017] NZCA 303

IN THE COURT OF APPEAL OF NEW ZEALAND

CA98/2017
[2017] NZCA 303

BETWEEN	KENNETH ERNEST MCCLINTOCK Applicant
AND	TAUPO DISTRICT COUNCIL Respondent

Court:

Miller, Lang and Mander JJ

Counsel:

Applicant (in person)
J S Gurnick for Respondent

Judgment:

(On the papers)

17 July 2017 at 4.00 pm

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. This is an application for leave to bring a second appeal from an order that Mr McClintock’s dog, Scoobie, should be destroyed.[1]  Scoobie is described as an Australian cattle dog cross.[2]

   [1]We adopt Mr McClintock’s spelling of the dog’s name.  In the court papers he is called Scooby. 

   [2]We note that Mr McClintock says the dog is a greyhound cross.

2. Scoobie has been classified since 2010 as a dangerous dog, meaning that he must be kept within a secure area, or otherwise muzzled and on a lead.[3]  At a time when he was not so secured, he attacked a Mr Rean.  The dog was in a van outside Mr McClintock’s place of work, but the sliding door was open and he was able to get out and bite Mr Rean on the calf as he walked past.  Mr McClintock pleaded guilty to charges under ss 32 (failure to comply with classification as a dangerous dog) and 57 (being the owner of a dog that attacks someone) of the Dog Control Act 1996.  

   [3]Under the Dog Control Act 1996.

3. Both sections require the court to make an order for the destruction of the dog unless satisfied that the circumstances of the offence were exceptional and do not warrant the dog’s destruction.[4]  The courts below have held that there were no exceptional circumstances that might warrant saving the dog.  Mr McClintock challenges these conclusions.

   [4]Dog Control Act, ss 32(3) and 57(3).

4. A disputed facts hearing was held in the District Court to consider whether there were exceptional circumstances.  Judge MacKenzie heard evidence from Mr McClintock and Mr Rean and a dog expert called for the defence, Ms Flint. The Judge found that there were no exceptional circumstances.[5]  On appeal, Katz J agreed.[6]

   [5]Taupo District Council v McClintock [2016] NZDC 14885.

   [6]McClintock v Taupo District Council [2017] NZHC 58, [2017] NZAR 272.

5. It has not been suggested that the courts below misdirected themselves in law, and it makes no difference whether “exceptional circumstances” has a different meaning in s 32 than it does in s 57, since both apply.[7]  Mr McClintock wants to appeal on the facts. 

   [7]Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005.

6. Mr McClintock admits that Scoobie was not secured but says that was from his own inadvertence.  He claims that Mr Rean kicked Scoobie, so provoking the attack, and suffered only a nip that did not require medical treatment.  He alleges that the dog acted in self-defence and Mr Rean lied in his evidence.  He says that the dog is of good temperament and is devoted to children.  He denies that Scoobie is a dangerous dog, saying the classification is based on a previous false complaint.  He complains that the Council told him that the dog would not be destroyed if he got a good report from Ms Flint.  And he seeks mercy, saying that he is 76 and in ill-health and Scoobie means everything to him.

7. Mr McClintock’s claims were carefully considered and persuasively rejected in the courts below.  They held, correctly, that he could not revisit the dog’s classification as a defence to the s 32 charge.

8. A second appeal is by leave under s 253 of the Criminal Procedure Act 2011.  The Court must be satisfied that there is an issue of general or public importance or that a miscarriage of justice may have occurred.

9. We identify no issue of sufficient importance to justify a second appeal.  In particular, we can see no possibility that the Court would interfere with the findings that Scoobie was not secured when Mr Rean walked past — Mr McClintock accepts that the van door had been left open — and that he attacked without provocation.  Nor, as the courts below also found, would it make any difference.  There can be no excuse for not having the dog secured.  Mr Rean did require medical attention.  On the most generous view of events, there is nothing sufficiently exceptional about the circumstances of the offences to warrant saving a dog already classified as dangerous.  It seems plain that Scoobie has an over-developed territorial instinct.  And while we accept that he is a much-loved family pet whose fate may exacerbate Mr McClintock’s health difficulties, that is not an exceptional circumstance either. 

10. Accordingly, we are not satisfied that there may be a miscarriage of justice.

11. The application for leave to appeal is dismissed.

Solicitors:
Tompkins Wake, Hamilton for Respondent