AUCKLAND COUNCIL v PAUL [2022] NZHC 1898

AUCKLAND COUNCIL v PAUL [2022] NZHC 1898 [3 August 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-126[2022] NZHC 1898BETWEEN AUCKLAND COUNCILAppellantAND JOANNE FRANCES PAULRespondentHearing: 7 June 2022Appearances: D J Collins and B V Magill for AppellantJ B Carter for RespondentJudgment: 3 August 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 3 August 2022 at 2 pmRegistrar/Deputy RegistrarSolicitors:James Carter Law, HamiltonIntroduction[1] Auckland Council (the Council) appeals against a decision of Judge Pecotic inthe Auckland District Court on 25 March 2022 in which her Honour declined theCouncil's application to impose a dog destruction order for a dog owned by Ms JoannePaul (the respondent).1 The dog is a Shar Pei named "Zeus". Zeus bit the hand of aperson who was attempting to pat him.[2] The respondent pleaded guilty to one charge of being the owner of a dog thatattacked a person.2 Under s 57(3) of the Dog Control Act 1996, the court must makean order for the destruction of the attacking dog unless it is satisfied that thecircumstances of the offence were exceptional and do not warrant destruction of thedog. Judge Pecotic found that there were exceptional circumstances which did notwarrant Zeus's destruction, and she declined to make an order for his destruction.3 Sheinstead sentenced the respondent by imposing a fine of $1,000 and ordered that $500of the fine be paid to the Council and $500 to the complainant as emotional harmreparation.[3] The Council now appeals against that sentence.Background[4] The factual basis for the sentence was set out in an agreed summary of facts:The [respondent] is the owner of a brown and white coloured male Shar Peinamed Zeus.On 23 June 2020 at approximately 10.00am the complainant visited WaihekeMovers for work purposes. On arrival he opened the sliding door to their officeand closed the door behind him. The [respondent] was sitting at her desk. The[respondent]'s dog, which was known well by the complainant, was free toroam in the office area and came up to him. The complainant bent down andplayed with the [respondent]'s dog, scratching him on the bum and back allover. The [respondent]'s dog then picked up a shoe and brought it to him. Thecomplainant took this as a sign the dog wanted to play and put his hand on theshoe to take it from the him. The [respondent]'s dog growled and the[respondent] said "don't do that". The complainant immediately stopped butkept rubbing the [respondent]'s dog on the bum and chest.1 Auckland Council v Paul [2022] NZDC 7990 [District Court decision].2 Dog Control Act 1996, s 57(2).3 At [30].When the [respondent] came off the phone they engaged in business whichinvolved the complainant making a call on his mobile. While on the mobilethe complainant walked back towards the [respondent] and extended the topof his hand to the [respondent]'s dog, who was lying down, so that the dogcould smell him and he could subsequently pat him. The [respondent]'s dogjumped up and grabbed the complainant's right hand and locked on. Thecomplainant screamed out. The [respondent] yelled at her dog. The[respondent]'s dog let go and moved away. The complainant went and sat in achair and the [respondent]'s dog then came back towards him. The[respondent] yelled at her dog not to move towards the complainant again, butthe complainant said it was okay as he could see the [respondent]'s dog wantedto show he was sorry, and let him come over to his feet and rub against hisfeet.The complainant grabbed a small white towel off the [respondent] as therewas lots of blood and asked for a glass of water. The complainant appliedpressure to the wound at the top of his hand and felt light-headed. The[respondent] drove the complainant to the Ostend Medical Centre. Thecomplainant sustained a large wound to his right hand approximately 40mm x10mm in size and multiple puncture wounds and required stitches.The Judge's sentencing decision[5] Judge Pecotic commenced her decision by noting that the onus was on therespondent to show that exceptional circumstances exist such that Zeus should not bedestroyed. She observed that two previous infringement notices have been issued inrelation to Zeus. One related to him jumping up and scratching a courier driver. TheJudge noted the respondent maintains the scratch was caused by a nail. The Judgenoted that the second notice related to Zeus having chased and attacked a chicken(although not fatally) which had come onto the respondent's property. The Judgecommented that it was clear that neither occasion warranted prosecution of therespondent under the Dog Control Act.[6] The Judge also noted the respondent's explanation that she had offered to putZeus away when the complainant entered her office premises, but did not do so as thecomplainant knew the dog and had continued to pet him. The Judge noted thesubmissions made by the respondent's counsel that the biting was an exceptionalcircumstance, was a one-off incident, and that it was unusual. And that immediatelybefore and immediately after the bite occurred there had been good play between thecomplainant and Zeus. There had also been a relationship between the complainantand Zeus beforehand which by all accounts had been a good one.[7] The Judge then noted the Council's submissions that the incident amounted toan unprovoked attack and that Zeus had not been under the respondent's control at thetime, and there could be no assurance that this situation would not be repeated. Therewere no exceptional circumstances that would mitigate against the need for adestruction order and accordingly such an order should be made.[8] The Judge rejected the Council's submission that the attack was unprovoked,and found that the aggravating features of the offending included that the attack hadcaused actual harm to the complainant and that two previous infringement notices hadbeen issued in relation to Zeus. As to mitigating factors, she noted the respondent'sage, her full statement with admissions, her plea of guilty, her conduct in assisting thecomplainant immediately after the incident, her obvious remorse, the fact that she hasno previous criminal convictions and is a person of very good character, and her offerof amends. The Judge said that she also took into account the trauma and anxiety therespondent had experienced with the matter coming before the Court.[9] By reference to the Court of Appeal's decision in Auckland Council v Hill,Judge Pecotic adopted the two-step approach for assessing whether exceptionalcircumstances exist such that a dog destruction order should not be made.4[10] The first step involves identifying the relevant circumstances of the offence.The second step involves determining whether those circumstances were exceptionaland do not warrant destruction of the dog.[11] As to the first step, the Judge identified the circumstances of the offence asfollows:5(i) [The complainant] entered an enclosed area in which the dog wascontained. It was Zeus' private space. Even though it was a placewhere members of the public could enter, it was still a private placethat Zeus was able to stay in. It was not a situation where he was freeto roam in an open public area.(ii) [The complainant] said in his statement that Zeus is well known tohim as his owner had worked with him doing bookkeeping and that4 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603 at [5]–[6].5 District Court decision, above n 1, at [24].he interacted with the dog in the years 2017 to 2018. This is importantas it shows the familiarity between Zeus and [the complainant].(iii) The interaction between Zeus and [the complainant] from the time[the complainant] entered the office until the time he left was all in allfriendly. While in the office [the complainant] petted and scratchedand played with Zeus. It was only when Zeus had approached [thecomplainant] with the toy – this being the shoe – that Zeus indicateda possessiveness over that toy by growling when [the complainant]went to take it from him.(iv) You had warned [the complainant] not to remove the toy from Zeusand in this regard it is not uncommon, as the material that has beenprovided to me by your lawyer, that dogs would behave in a similarlypossessive manner over food or toys.(v) In continuing on with the narrative, [the complainant] did continue topet Zeus. A phone call was made, so presumably he was unable to petZeus while that call was being made. He then went to pat Zeus again,Zeus was lying down. [The complainant] reached down towards himand it was at that point that Zeus bit [the complainant].(vi) Immediately after this event [the complainant] allowed Zeus to rubagainst his feet as he interpreted this behaviour as Zeus showing hewas sorry.[12] With respect to the second step of determining whether those circumstanceswere exceptional and do not warrant destruction of the dog, the Judge found that thebiting incident had taken place in exceptional circumstances and did not warrantZeus's destruction. She described the incident as being an "unusual situation" inwhich there had been clearly friendly interaction and play between the complainantand Zeus before the bite occurred.6 The complainant knows Zeus well and did not feelthreatened or frightened of him at all.[13] The Judge found that Zeus's behaviour was explicable on the basis that thecomplainant's actions had been perceived by the dog as being a threat. She said:[31] Immediately before the bite, Zeus was lying on the ground. [Thecomplainant] approached Zeus standing above him in what could beconsidered an intimidating stance. I consider [the complainant]'s actions inleaning down towards the dog with his hand extended towards him was amotion that caused Zeus alarm. His response has the features of him wantingto protect himself or the toy that was with him, protecting his toy, is nodifferent to what any dog would do in those circumstances. Zeus' actions afterthe bite of immediately rubbing himself against [the complainant] clearly gavethe impression to [the complainant] that Zeus was apologising and it6 At [30].demonstrated that Zeus had misconstrued [the complainant]'s approach tohim. Zeus was acting in a manner to defend himself from what he perceivedto be an aggressive action on the part of [the complainant].[14] The Judge commented that there had been ongoing petting and playingbetween the complainant and Zeus, including the complainant attempting to take a toyfrom the dog. She commented that it is "common knowledge for dogs to becomeprotective over their toys, food and even themselves when they believe that they areto be harmed".7 Zeus had been kept in a confined area and was under the respondent'scontrol, unable to access the outside of the building as the doors were closed.[15] On this basis, the Judge concluded that the complainant's actions, althoughunintentionally, had provoked Zeus to respond in the way that he did. Zeus's actionimmediately following the biting showed that he had not expected to cause thecomplainant any harm and, "if it is possible to accept a dog can apologise, he didexactly that by rubbing himself against [the complainant]".8 The Judge consideredthat this sort of incident was unlikely to be repeated and she drew further support forthat proposition from the fact that Zeus had been playing with other young childrenafter the event and there had been no subsequent attack. These amounted toexceptional circumstances that did not warrant destruction of the dog.SubmissionsThe appellant[16] Mr Collins, for Auckland Council, submits that the Judge erred in law and inprinciple in applying the test under s 57(3) of the Dog Control Act. He submits thatthe Judge erred by placing undue weight on a number of factors and by concludingthat there were exceptional circumstances such that a dog destruction order was notwarranted.[17] As to the test under s 57(3), Mr Collins refers to the Court of Appeal's decisionin Hill.9 He says that the Court of Appeal confirmed that the focus of s 57(3) is to7 At [32].8 At [34].9 See Hill, above n 4, at [64].prioritise public safety and prevent dog attacks.10 Following a conviction under thatprovision, an order for the destruction of the dog "will normally follow".11 The Courtalso clarified the matters that can and cannot be considered by a sentencing judge whenassessing exceptional circumstances. The inquiry is limited to the immediatecircumstances of the attack and cannot take into account prior history or post-attackconduct.[18] Mr Collins submits that the Judge erred in finding that the location of theincident was "Zeus' private space" and in concluding that this was a factor in favourof showing exceptional circumstances.12 He submits that the attack occurred at aworkplace accessible to the public similar to the location of the attack in Hill.13 Thelocation of the attack did not in any way mitigate the attack that resulted. Mr Collinssubmits that the respondent still has obligations to prevent an attack on visitors to thepremises, particularly where the person is there by arrangement or the public haveaccess.[19] Mr Collins further submits that the Judge erred by finding that the complainantattempting to pat the dog was a provocation. He says such an action falls well shortof conduct that would qualify as provocation.14 Several decisions following Hill haveendorsed a high threshold for provocation for the purposes of s 57.15 Given thatbehaviours such as a bite to the nose, barking or baring teeth have not previouslyamounted to a provocation, standing over a dog and extending a hand for the purposeof petting could not amount to provocation. Moreover, Mr Collins submits that aperson attempting to pat Zeus is typical behaviour that clearly falls short of an unusualor one-off occurrence that is unlikely to be repeated. If a dog was under its owner'scontrol then it would not bite the person in such circumstances. Mr Collins submitsthat if a dog bites a person merely attempting to pat it, then the dog can properly beseen as intrinsically dangerous and a destruction order is required.10 At [65].11 At [4].12 District Court decision, above n 1, at [24(i)].13 Hill, above n 4, at [86].14 At [76].15 See van Delden v Waitaki District Council [2021] NZHC 2264; Page v Auckland Council [2022]NZHC 951; and Ding v Auckland Council [2022] NZHC 45.[20] Mr Collins submits that Zeus's prior show of aggression by growling anddisplay of possessiveness over the toy were behaviours which did not support a findingof exceptional circumstances. Nor did the respondent's warning to the complainantsupport such a finding. He submits it was not the complainant's responsibility tomaintain control and prevent an attack — the Dog Control Act places thatresponsibility directly and solely on the dog owner.16 He submits that it was incumbenton the respondent to have promptly responded to her dog's aggression by restrainingor removing him from the presence of the complainant to prevent a possible attack.The respondent failed to do so, and warning the complainant was not enough. Asituation where a dog is behaving in a possessive manner over food or a toy is, as theJudge observed, "not uncommon",17 and provides no support to a finding that thecircumstances were unusual or unlikely to be repeated.[21] Mr Collins says that the Judge also erred by relying on allegations outside theagreed summary of facts, including matters that were the subject of dispute betweenthe prosecutor and defence. He notes that sentencing must proceed on the basis of thematerial in the agreed summary of facts and caution needs to be exercised whendrawing additional inferences that are not addressed in the agreed summary of facts.18The Court of Appeal has made clear that prior history and post-attack conduct cannotbe taken into account, yet Mr Collins submits it is clear that the Judge placed weighton these matters alongside other disputed facts in reaching her decision.19[22] Further, Mr Collins submits that the Judge erred in drawing inferencesregarding the psychology of the attacking dog as a factor supporting a finding ofexceptional circumstances.20 The Court of Appeal in Hill made clear that the relevanttest:2116 Dog Control Act, ss 4(a)(iii), 5(1)(b) and (f), 52A and 53.17 District Court decision, above n 1, at [24(iv)].18 See Pokai v R [2014] NZCA 356 at [30]; and Chadderton v New Zealand Police [2019] NZHC2072 at [17].19 In particular, the Judge took into account the two previous infringement notices issued in relationto Zeus and explicitly drew support from Zeus's conduct with a neighbouring family subsequentto the incident. Mr Collins also submits that the Judge took into account that the respondentoffered to put the dog away following the attack but the complainant refused, matters whichremained in dispute between the parties.20 District Court decision, above n 1, at [31] and [34].21 Hill, above n 4, at [75]. does not require the Court to undertake the difficult, if not impossible, taskof inquiring into the psychology of the dog and making predictions about howthe dog is likely to behave in the future.[23] The Judge nevertheless inferred from Zeus's behaviour that he was alarmed bythe complainant's attempt to pat him, that he wanted to protect himself or his toy, thathe perceived the complainant to be acting aggressively towards him and that heapologised to the complainant after the attack by rubbing up against his feet.Mr Collins submits that Zeus's thinking and motivations are not able to be inferredwith any accuracy. Likewise, the inferences drawn by the Judge as to the psychologyof dogs generally were not relevant to the test set out in Hill and were in factinconsistent with that decision.[24] Finally Mr Collins submits that the Judge erred by finding that a destructionorder was not required in the circumstances of this case. He submits that there was noreasonable or principled basis upon which the circumstances of the offence could beconsidered "exceptional" under s 57(3). This was not an "unusual or one-offoccurrence that is most unlikely to be repeated".22 To the contrary, a "one-off" failureby an otherwise responsible dog owner to control a dog does not constitute exceptionalcircumstances.[25] Mr Collins accordingly submits that the Judge erred in finding the test forexceptional circumstances under s 57(3) of the Dog Control Act had been met, andthis Court should allow the appeal and make a dog destruction order.The respondent[26] Mr Carter, for Ms Paul accepts that the two-step approach described in Hillapplies and that prior history or post-attack conduct of the dog cannot be taken intoaccount. However, he submits that the circumstances of the offence must necessarilyinclude the events comprising the leading up to the attack, and particularly the minutesdirectly preceding connection between the complainant and the dog. In this respecthe says it is relevant to note that Zeus was well known to the complainant. It canreasonably be inferred that Zeus did not act aggressively when the complainant entered22 At [64].the respondent's premises. Upon entering the premises the complainant interactedwith Zeus, and Mr Carter says that it can be inferred that Zeus appeared to enjoy theinteraction and attention he was receiving. Zeus then picked up a shoe and brought itto the complainant, from which Mr Carter says it can be inferred that he was enteringinto play. While Zeus then growled at the complainant, Mr Carter says that it iscommon for any dog involved in a 'tug of war' game to growl as part of their play,and in that context growling is not indicative of aggression. A short time after thisplay had ended Zeus bit the complainant when he extended his hand towards Zeus topat him. The complainant and respondent both yelled, and Zeus immediately let goand moved away.[27] From these facts Mr Carter submits that this was not a sustained attack and thedog was under voice command. Mr Carter notes that shortly after biting thecomplainant, Zeus went over to him in an unaggressive manner and put his weight onthe complainant's feet. Mr Carter submits that this is a "recognised behaviour when adog wishes to be close to a person and is deemed harmless and a sign of love andcomfort". Mr Carter submits that this is an inference which the sentencing Judge couldreasonably infer from the facts. Furthermore he says, to ignore the behaviour of thedog during what was still part of the "circumstances of the offence" would be artificialand inconsistent with the Court of Appeal's decision in Hill. He accordingly submitsthat the Judge did not stray beyond what could reasonably be inferred from the agreedfacts.[28] Mr Carter submits that the incident was, as the Judge found, both "one-off"and "unusual". Any other conclusion would be untenable when all of the surroundingcircumstances are taken into account, and what happened should not be considered tohave been an unprovoked attack.[29] Responding to the appellant's submission that the Judge erred in finding thatthe incident occurred in Zeus's private space, Mr Carter says that it was an "office"located within the garage of a private residence. He submits that the Judge's referenceto the location of the incident being a "private place" is correct, and says that the sceneof the attack is a relevant factor to be considered when deciding whether exceptionalcircumstances are present. Unlike the circumstances in Hill, Zeus was not outside andin a public place, but secured within a private dwelling at the time he bit thecomplainant's hand. Mr Carter submits that having regard to the circumstances inwhich the attack occurred and the location where it happened, the risk of any futureattack is very low.[30] As regards provocation, Mr Carter says that difficulty arises when attemptingto assess what the dog perceives as a threat or considers to be rough play such as a'tug of war' over the dog's toy. Mr Carter submits that it is unrealistic to characterisea dog as inherently dangerous when it bites a person standing over it and ignoring allof the surrounding circumstances. He says that it is relevant that the complainant hadengaged in active play with the dog shortly before the biting occurred, and failing totake that into account effectively isolates different parts of the Judge's decision in away that fails to take into account all of the factors relevant to the assessment requiredin accordance with the approach described in Hill.[31] Mr Carter disagrees with the appellant that the thinking and motivations ofZeus cannot be inferred with any accuracy. And he notes that the Council hasacknowledged that the complainant himself interpreted the actions of Zeus after theattack as an attempt by the dog to say "sorry". He submits that the Judge was entitledto draw that inference and draw support for that finding from the opinion of thecomplainant.[32] In summary, Mr Carter submits that the biting that occurred here was not oneof the "all too common scenario[s] that is similar to other dog attack cases", ascharacterised by the appellant. He submits that the Judge did not err in law or principlewhen assessing the unique circumstances of the case and she was entitled to exerciseher judgment and discretion when deciding that exceptional circumstances existed.He submits therefore that the appeal should be dismissed.Approach on appeal[33] Section 250(2) of the Criminal Procedure Act 2011 states that the court mustallow the appeal if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[34] In any other case, the court must dismiss the appeal.23[35] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was notintended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.24 Further, despite s 250 making no express reference to"manifestly excessive", this principle is "well-engrained" in the court's approach tosentence appeals.25[36] The approach taken under the former Summary Proceedings Act was set out inR v Shipton:26(a) There must be an error vitiating the lower court's original sentencingdiscretion: the appeal must proceed on an "error principle".(b) To establish an error in sentencing it must be shown that the Judge inthe lower court made an error whether intrinsically or as a result ofadditional material submitted to the appeal court.(c) It is only if an error of that character is involved that the appeal courtshould re-exercise the sentencing discretion.LawThe Dog Control Act 1996[37] Section 57 of the Dog Control Act relevantly provides:57 Dogs attacking persons or animals23 Criminal Procedure Act 2011, s 250(3).24 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].25 At [33] and [35].26 R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].(1) A person may, for the purpose of stopping an attack, seize or destroya dog if—(a) the person is attacked by the dog; or(b) the person witnesses the dog attacking any other person, orany stock, 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$3,000 in addition to any liability that he or she may incur for anydamage caused by the attack.(3) If, in any proceedings under subsection (2), the court is satisfied thatthe dog has committed an attack described in subsection (1) and thatthe dog has not been destroyed, the court must make an order for thedestruction of the dog unless it is satisfied that the circumstances ofthe offence were exceptional and do not warrant destruction of thedog.[38] In Hill the Court of Appeal considered an appeal in a case where a DistrictCourt Judge had declined to make an order for the destruction of a dog which hadmade a serious and unprovoked attack on a passer-by outside the dog-owner'sworkplace, and which had caused significant physical injury to the complainant. TheDistrict Court Judge considered that the dog's owner had taken steps following theattack which reduced the likelihood of a future attack, and justified a finding ofexceptional circumstances. The Auckland Council appealed unsuccessfully to theHigh Court, and noting that there were conflicting High Court decisions about theappropriate approach to be adopted by courts when applying s 57(3), the Court ofAppeal granted leave to the Council to bring a second appeal on the question ofwhether post-attack events can be taken into account in determining whetherexceptional circumstances exist for the purposes of s 57(3). The Court of Appealexplained:[3] There are conflicting High Court decisions about the appropriateapproach to be adopted by a court under s 57(3). In particular, the authoritiesdiffer on whether events that occur after the attack by the dog – for example,training of the dog or measures taken by the owner to control the dog – can betaken into account as "circumstances of the offence". Summary[4] Where the owner of a dog is convicted of the strict liability offencecreated by s 57(2), an order under s 57(3) for destruction of the dog willnormally follow.[5] The first step in applying s 57(3) is to identify the relevantcircumstances of the offence. What happened? This inquiry should focus onthe immediate circumstances of the attack itself. The dog's history does notform part of the circumstances of the offence. Events that occur after theoffence is complete – that is, after the attack occurs – also are notcircumstances of the offence. The phrases "circumstances of the offence" and"circumstances of the attack" are equivalent in this context.[6] The second step is for the court to ask whether the circumstances ofthe offence were exceptional and do not warrant destruction of the dog.Section 57(3) proceeds on the basis that the attack of itself establishes thatthere is a risk of the dog attacking again in similar circumstances. The focusis on whether those circumstances were sufficiently exceptional that that riskis remote, and does not justify destruction of the dog in the interests of publicsafety.[7] It is not open to the dog's owner to argue that the dog can be expectedto behave differently in similar circumstances in the future – for example, asa result of post-attack training. Rather, the focus is on the risk that the dogposes to people and animals assuming it can be expected to behave in the sameway in similar circumstances.[8] Nor is it open to the owner to argue that the s 57(3) test is met becausethe attack was caused or contributed to by a one-off failure by the owner tomaintain effective control of the dog. Failures to control a dog are notexceptional circumstances of a kind that indicate that destruction of the dog isnot warranted.[9] Circumstances that were not exceptional at the time the attackoccurred cannot become exceptional as a result of post-attack events. If therewas nothing exceptional about the circumstances of the attack when theyoccurred – nothing out of the ordinary which can be identified as a relevantfactor in the attack – the s 57(3) exception does not apply. In particular,assurances given by the current owner about the future management andcontrol of the dog are not relevant to the s 57(3) inquiry.Discussion[39] Addressing the first stage of the approach prescribed by Hill, the Judge foundthat the relevant circumstances of the offence included the continuing course of Zeus'sconduct from the time the complainant entered the respondent's premises until whenhe left.27 I accept Mr Carter's submission in this respect that the "circumstances ofthe offence" for the purposes of s 57(3) includes relevant events occurring during theimmediate lead up to the attack. That must be the case. The relevant circumstancesinforming an assessment of the offence are not limited to consideration of the timebetween when the dog lunged towards the complainant's hand and when it27 District Court decision, above n 1, at [25].subsequently released its grip. A properly informed assessment of the incident allegedto be the dog's conduct requiring that it be destroyed, necessarily includesconsideration of any dog behaviour and events which immediately preceded thecontact between the dog and the complainant as comprising the circumstances of theattack. The Court of Appeal in Hill observed:28We agree with the Judge in Halliday that the reference to the circumstances ofthe offence must include all the (immediate) circumstances that caused orcontributed to the attack.29 We consider that these matters can also bedescribed as the circumstances of the attack: the language that was used in theversion of s 57 originally enacted, and that still appears in s 58.[40] I also accept Mr Carter's submission that this was not a sustained attack andthe place where it happened is a relevant circumstance for the purpose of the test inHill.[41] However, I agree with the Council's submission that the Judge erred in findingthat the place where the incident occurred was "Zeus' private space".30 The Judgeconsidered that even though it was a place where members of the public could enter itwas still a private place where Zeus was able to stay in and it was not a situation wherehe was free to roam in an open public area. However, although the office where theattack occurred was a private space in the sense that it was indoors and within an officearea, it was nevertheless a place readily accessible to members of the public visitingthe premises to discuss and arrange the moving services offered by the businessoperated from that otherwise residential address. The attack did not occur in a placewhere Zeus was kept away from members of the public or from where the public wasexcluded. If members of the public were able to and were invited to enter the enclosedoffice premises, the place where the attack occurred cannot be accurately characterisedas being Zeus's private space.[42] I also find that the Judge erred in her finding that Zeus was being kept in aconfined area and was under the respondent's control at the time the attack occurred.31That was plainly not the case. Although Zeus was confined to the property, and28 Hill, above n 4, at [67] (emphasis added).29 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005 at[42].30 District Court decision, above n 1, at [24(i)].31 At [33].appears to have responded to some voice commands from the respondent,32 she wasunable to control his behaviour so as to prevent him from attacking and biting thecomplainant. It was incumbent on the respondent to respond promptly when Zeusbegan growling in the course of the 'tug-of-war' over the toy by restraining orremoving him from the situation as a precaution, even if she believed that his growlingwas only part of the game. Merely warning the complainant following signs ofaggression from Zeus was inadequate to maintain control of the situation and preventan attack.[43] I also find that the Judge erred in her characterisation of the complainant's actof attempting to pat Zeus as a provocation.33 While the complainant's action ofbending down towards Zeus with his hand extended prompted the dog to bite him,34that gesture falls well short of anything that could amount to provocation.35Arguments of self-defence or defence of another are irrelevant here36 notwithstandingthat the complainant had earlier been engaged in what Mr Carter describes as being"active" or "rough" play with the dog. A person leaning down and attempting to pata dog could hardly be described as unusual or provocative behaviour — to the contrary,it could hardly be more mundane.[44] The Judge also drew a number of inferences from the dog's behaviour aboutits intentions during the incident.37 In particular, she commented that Zeus wasalarmed by the complainant trying to pat him, desired to protect himself or his toy,perceived the complainant as acting aggressively toward him and that Zeus later "wasapologising" to the complainant by rubbing up against his feet.38 While I acceptMr Carter's submission that the Judge is entitled to draw reasonable inferences aboutthe dog's behaviour,39 to delve into the psychology of Zeus's motivations for his32 The dog released its grip of the complainant's hand when the respondent shouted out.33 At [18] and [34].34 At [31].35 The threshold for which has been discussed in several decisions since Hill, see the decisions invan Delden, Page and Ding, above n 1536 Mr Carter submitted that a dog should be permitted to act in self-defence or defence of its owner,and to consider otherwise would result in the dog not being able to defend itself from crueltreatment under the Animal Welfare Act 1999 without the risk of being destroyed. In my view,concerns regarding cruel treatment have no relevance to the present case.37 At [31] and [34].38 At [31].39 For example, clearly something the complainant did caused Zeus to lash out in response.actions and the intentions behind his actions in the context of determining whetherexceptional circumstances exist misapplies the test in Hill. That test requires the courtto focus on the circumstances of the attack and the risk that such an attack will occuragain in the future, precisely to avoid the "difficult, if not impossible" task of inquiringinto the psychology of the dog.40 The Judge's findings as to Zeus's motivations andintentions were inherently speculative and could not provide a secure foundation orbasis for a finding of exceptional circumstances under s 57(3).[45] I further consider that the Judge also erred in her conclusion as regards thesecond stage of the Hill test by finding that the circumstances of the offence wereexceptional and do not warrant the destruction of Zeus. As the Court of Appealobserved in Hill, there is nothing exceptional about a "one-off" failure by an otherwiseresponsible dog owner to control their dog.41 Although Zeus was contained within afully fenced property, it cannot be said that he was under the control of the respondentat the time of the attack or that the complainant did anything to provoke his aggressivereaction.[46] Likewise, there is nothing in Zeus's intention that is relevant to this assessment.The Judge's observations about the general behaviour and psychology of dogs do nottake the point any further.42 The fact that the complainant had previously interactedwith Zeus and had been playing with Zeus shortly prior to the attack, and that Zeushad appeared to "apologise" to the complainant after biting him, do not render thecircumstances of this attack exceptional as described in Hill.43 It is also not relevantthat Zeus may have been harmlessly playing with young children on other occasionsfollowing the attack, as such post-incident events have no bearing on thecircumstances of the offence.44 The Judge's observation that dogs frequently behavein a similar manner over food or toys in fact underscores how common suchinteractions are.4540 Hill, above n 4, at [75].41 At [78].42 See District Court decision, above n 1, at [31] and [32].43 See the examples of exceptional circumstances described in Hill, above n 4, at [84] including"where the dog's owner was under attack, or where the dog was provoked".44 Hill, above n 4, at [79].45 District Court decision, above n 1, at [32].[47] I accordingly find that the Judge erred in applying the test under s 57(3) of theDog Control Act when she found that the circumstances of the offence wereexceptional and do not warrant destruction of the dog. It follows that there must bean order for the destruction of Zeus.[48] The fact that the attack occurred while Zeus was in a place which was familiarto him and when there was no expectation that he would act aggressively towards thecomplainant, in my view illustrates a completely unpredictable aspect of his natureand shows that despite measures being taken to reduce the likelihood of a future attackoccurring, the risk would nevertheless remain and he would present a significant riskto the public. If in the future a child rather than an adult offers and extends its handtowards Zeus and the dog reacts by biting the child, the injuries it could cause arelikely to be considerably more serious and severe than was the case with the adult malecomplainant here.[49] This offending essentially involved a dog reacting aggressively to an attemptby someone to pat it. These are not exceptional circumstances for the purposes ofs 57(3). It is unfortunately a necessary consequence of the Dog Control Act that theCourt is required to make an order for the destruction of the dog.Result[50] The Auckland Council's appeal is allowed.[51] I make an order for the destruction of the dog "Zeus" pursuant to s 57(3) of theDog Control Act 1996._____________Paul Davison J