AUCKLAND COUNCIL v HILL [2019] NZCA 296

AUCKLAND COUNCIL v HILL [2019] NZCA 296 [8 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA33/2019[2019] NZCA 296BETWEEN AUCKLAND COUNCILAppellantAND ADRIAN ARTHUR DENLEAVY HILLRespondentHearing: 3 July 2019Court: Courtney, Venning and Dunningham JJCounsel: RJA Marchant and V S Rewi for AppellantB J Meyer and S J Mutch for RespondentJudgment: 8 July 2019 at 2.30 pmJUDGMENT OF THE COURTA. The application for leave to appeal is correctly brought under s 253(2) of theCriminal Procedure Act 2011.B. The application for leave to bring a second appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In November 2017 Mr Hill's dog, Kratos, attacked a woman, inflictingpuncture wounds. At the time, Kratos was classified as a menacing dog and wasrequired to be muzzled.1 Mr Hill pleaded guilty to owning a dog that attacked aperson. Judge D G Sharp fined Mr Hill and ordered him to pay reparation and courtcosts.2 The Judge declined Auckland Council's request for an order that Kratos bedestroyed.3 Palmer J dismissed Auckland Council's appeal against the decision not toorder destruction.4[2] Auckland Council seeks leave under s 253(2) of the Criminal Procedure Act2011 (CPA) to appeal Palmer J's decision.5 The proposed grounds of appeal are thatthe Judge wrongly:(a) treated the dog destruction order as a civil matter. As a result, there isdoubt over the correct appeal pathway; and(b) treated post attack conduct as relevant to whether the circumstances ofthe offence were exceptional for the purposes of s 57(3) of the DogControl Act 1996.[3] Mr Hill does not oppose Auckland Council's application for leave to appeal.[4] Counsel agreed that if leave to appeal were granted, the first proposed groundof appeal would be otiose, because the grant of leave itself would have the effect ofdetermining that the proposed appeal is correctly brought under s 253(2) of the CPA.That would leave the only proposed ground of appeal as the status of post attackevents. Leave to appeal on that ground can only be given if this Court considers thatthe proposed appeal involves a question of general or public importance.61 Classification was made by the Auckland Council on 9 May 2017 pursuant to s 33A and 33E(1)(a)of the Dog Control Act 1996 following a reported attack on another dog in May 2017.2 Auckland Council v Hill [2018] NZDC 14332 at [6]-[7].3 At [5].4 Auckland Council v Hill [2018] NZHC 3315.5 An appeal under s 253(2) of the Criminal Procedure Act 2011 requires the consent of the SolicitorGeneral, which has been given.6 Criminal Procedure Act 2011, s 253(3)(a).Appeal pathway[5] Mr Hill was prosecuted under the Dog Control Act 2000, s 57, which relevantlyprovides that:(1) A person may, for the purpose of stopping an attack, seize or destroy a dogif—(a) the person is attacked by the dog; or(b) the person witnesses the dog attacking any other person, or anystock, poultry, domestic animal, or protected wildlife.(2) The owner of a dog that makes an attack described in subsection (1)commits an offence and is liable on conviction to a fine not exceeding $3,000in addition to any liability that he or she may incur for any damage caused bythe attack.(3) If, in any proceedings under subsection (2), the court is satisfied that thedog has committed an attack described in subsection (1) and that the dog hasnot been destroyed, the court must make an order for the destruction of thedog unless it is satisfied that the circumstances of the offence were exceptionaland do not warrant destruction of the dog.[6] Although the appeal from the District Court was brought as an appeal againstsentence, the Judge treated it as a civil appeal:7The Council appeals against sentence but I treat it as a right of general appealagainst exercise of a statutory power. I consider the test is whether the Courtis satisfied the circumstances of the owner's offence are sufficientlyexceptional, in light of what is known about the dog's risk of attacking again,that destruction of the dog is not warranted...[The powers to order destruction of a dog] are powers a court is required toconsider exercising in a prosecution of an owner for committing a relatedoffence. A destruction order in respect of a dog is not part of a sentence of theowner but a concomitant decision to be made for the purpose of riskmanagement.[7] If this position were correct and the appeal to the High Court fell within thegeneral right of appeal under s 124 of the District Court Act 2016, the appropriateappeal pathway would be s 60 of the Senior Courts Act 2016, which provides that thedecision of the High Court is final unless the party obtains leave from the High Court7 High Court decision, above n 4, at [2] and [27].or, if the High Court refuses leave, from the Court of Appeal. Auckland Council hasnot obtained leave from the High Court.[8] Mr Meyer, for Mr Hill, supported the Judge's decision. He argued that thedecision to order destruction is a risk avoidance mechanism, separate to the sentencingof the owner and not amenable to the purposes and principles of the Sentencing Act2002, which relate only to the owner of the dog rather than the dog itself. He relied,as the Judge did, on two High Court decisions. In Jorion v Kapiti Coast DistrictCouncil Dobson J considered that s 57(3) "can only be seen as having a preventivemotive rather than any punitive one".8 In Pukepuke v Auckland Council Jagose J tookthe same view saying that "destruction orders should not be seen as part of anysentencing process, but as a separate risk avoidance mechanism". 9[9] Mr Marchant, for the Auckland Council says that this approach is wrong andthat an order for destruction is criminal in nature and its appeal is properly broughtunder s 253(2) of the CPA.[10] We agree. We start from the obvious position that a prosecution under s 57(2)of the Dog Control Act is a criminal proceeding because it results in a conviction.10The opening words of s 57(3), "[i]n any proceedings brought under subsection (2)",make it clear that a dog destruction order can only be made in the context of thosecriminal proceedings. It follows that an order made under s 57(3) is criminal in nature.In addition, a dog destruction order falls within the definition of a sentence in s 212 ofthe CPA, being a "method of disposing of a case following conviction".[11] The correctness of this position can be tested by Mr Marchant's hypotheticalsituation of a person wanting to appeal against both conviction and the dog destructionorder. Mr Meyer's approach would require two separate appeals, one under the CPAagainst conviction and another under the Senior Courts Act against the dog destructionorder. Such a course would not only be impractical but would have the potential for8 Jorion v Kapiti Coast District Council HCS Palmerston North CRI-2010-454-22, 4 August 2010at [9].9 Pukepuke v Auckland Council [2018] NZHC 1361at [27] n 22.10 Mafart v Television New Zealand Limited [2006] NZSC 33, [2006] 3 NZLR 18 at [29], [27] and[30].inconsistent outcomes, given that a dog destruction order can only stand if there is aconviction.11[12] Auckland Council's proposed appeal to this Court is therefore a criminalappeal for which leave to appeal may be sought from this Court under s 253(2) of theCPA. We therefore turn to the question of whether leave should be granted for thesubstantive ground relating to the interpretation of s 57(3).Does the proposed appeal involve a matter of general or public importance?[13] As already noted, upon conviction under s 57(2) of the Dog Control Act, thecourt "must make an order for the destruction of the dog unless it is satisfied that thecircumstances of the offence were exceptional and do not warrant destruction of thedog". In reaching their respective decisions the Judges in both the District Court andthe High Court took into account events that post-date the attack. In particular therewas evidence of the efforts that Mr Hill had made to rehabilitate Kratos and the dog'spositive response to those efforts.12[14] Leave is sought on the basis that the decision under appeal departs from theapproach taken in Halliday v New Plymouth District Court, in which Heath J held thatpost-attack conduct could not be taken into account to determine whether exceptionalcircumstances existed.13 This Court noted in Easthope v Auckland Council thatalthough Halliday has commonly been regarded as guideline authority on s 57(3),there has been considerable variation in the approach taken by individual judges onthis issue.14 The question was not, however resolved in Easthope because thecircumstances of the case did not justify leave to appeal being granted.15[15] We agree that the current state of the law is unsettled as a result of the numberof inconsistent decisions on the issue. The question of dog destruction comes before11 Fountain v Auckland Council [2018] NZHC 59112 High Court decision, above n 4 at [30].13 Halliday v New Plymouth District Court HC New Plymouth, CRI-2005-443-11, 14 July 2005at[61].14 Easthope v Auckland Council [2018] NZCA 234, referring, for example, to Korewha v WhangreiDistrict Council [2017] NZHC 3178 and Clintock v Taupo District Coucil [2017] NZHC 58,[2017] NZAR 272.15 At [15].the District Court frequently and appeals from such decisions are not uncommon.Mr Marchant advised that in the District Court sentencings under s 57 of the DogControl Act are currently being adjourned until the issue is resolved. Clearly, localauthorities and dog owners alike would benefit from certainty as to how s 57(3) shouldbe applied. We therefore agree that the interpretation of s 57(3) has broad general andpublic importance.Result[16] The application for leave to appeal is correctly brought under s 253(2) of theCriminal Procedure Act 2011.[17] Leave to appeal is granted on the question of whether post-attack events canbe taken into account in determining whether exceptional circumstances exist for thepurposes of s 57(3) of the Dog Control Act.Solicitors:High Street Law, Auckland for Respondent