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Navigating the complexities of the Dog Control Act

5 Apr 2024

| Author: Nathan Batts

Dog prosecutions are not the topic of law papers at university, nor are they the subject of legal texts in New Zealand or online commentary. You could be forgiven for thinking this area of the law was obscure and rarely the subject of judicial attention. However, if that is what you thought, you would be wrong.

Dog prosecutions are the responsibility of local councils and are taken under the Dog Control Act 1996. The most common sort of dog prosecutions are dog attacks – usually involving an allegation of a dog bite. In Auckland, the number of council dog prosecutions significantly outstrips the number of prosecutions taken under other legislation enforced by local councils, such as the Resource Management Act or Building Act.

Auckland Council’s most recent Animal Management Report records that between 2022 and 2023 the council initiated 112 prosecutions against dog owners in the District Court for what are described as “serious offences against the Act”. During the same period, nine appeals were heard in the higher courts.

As a further indicator of the judicial mileage generated by this area of the law, a Westlaw search for reported cases concerning the Dog Control Act turns up 314 results as at the time of writing. Of those cases, 59 are District Court cases, 208 are High Court cases (and therefore appeals), 25 are Court of Appeal cases and there are even a handful of (unsuccessful) Supreme Court leave decisions.

Without doubt, the most significant driver of litigation for dog prosecutions are the drastic consequences of admitting liability for, or being found guilty of, a dog attack – the destruction of the dog in question. For some owners, their dog is one of their closest companions. For most, their dog is at least much more than mere personal property. Accordingly, the lengths dog owners are prepared to go to in an attempt to save their canines are considerable.

Once a council has resolved to prosecute an alleged dog attack, the options for avoiding a destruction order are somewhat limited. The first and most obvious option is to successfully defend the prosecution. As with all criminal offences, councils are required to prove a dog attack charge to the standard of beyond a reasonable doubt.

Dog attack charges, as with most of the offences under the Dog Control Act, are strict liability, meaning that the council need not prove any particular state of mind on the part of the dog owner at the time of the alleged attack.

The fact of an attack (legally defined as physical contact which is the result of deliberate aggression) is sufficient to make out the offence, assuming identity of the dog is not in issue (and sometimes it is!). As with all strict liability offences, a defence of total absence of fault is available. However, as is illustrated by the case considered below, that defence is somewhat difficult to make out.

The total absence of fault defence in the context of dog attack prosecution was recently reviewed by the High Court in Tauranga City Council v Fraser [2023] NZHC 723. This was a case where a rottweiler named Chopper bit the arm of a vet who approached him in the carpark of the vet clinic.

The trial judge found that because the vet was in effective control of the situation at the time, the attack was essentially her responsibility, and the dog owner was acquitted. On appeal, Brewer J agreed with the council that the trial judge had reversed the onus for the total absence of fault defence which required the defendant to prove she was without fault. In the context of that case, the defence required the owner to show there were no practical steps she could have taken to avert the attack. It does not matter that the victim could have acted differently. Total absence of fault is not to be confused with the standard of reasonableness.

Limited options

One other option exists for avoiding a charge altogether – diversion. On 1 December 2022, Auckland Council initiated a diversion scheme similar to that operated by police. This provides an opportunity for those charged with council prosecuted offences to take responsibility for relevant offences outside of the court system.

During 2022 to 2023, nine diversions were completed, resulting in the withdrawal of Dog Control Act charges filed by Auckland Council. Diversion is not, however, synonymous with avoiding a destruction order. Indeed, the council may well require as a “diversion condition” that the owner agree to the voluntary euthanasia of the dog in question.

Apart from successfully defending a charge or convincing the council to withdraw a charge without requiring destruction, the options available for avoiding a destruction order where an attack charge is admitted or proven are limited.

There are two scenarios where that consequence can potentially be avoided. The first is where the dog owner can establish that the circumstances of the offence (attack) were exceptional and do not warrant destruction of the dog.

What amounts to exceptional circumstances was for some time a vexed issue. Some judges would take into account postattack factors such as remedial behavioural training for the dog or efforts taken by owners to better control and contain a dog, and some would not.

That issue was recently brought to a head in Auckland Council v Hill [2020] NZCA 52 with the Court of Appeal confirming that the exceptional circumstances inquiry must focus on the immediate circumstances of the attack itself. Post- and preattack features are now effectively irrelevant to the question of a destruction order. As such, pleas for mercy based on the conduct being out-of-character or the dog now being rehabilitated should now, in theory at least, fall on judicially deaf ears.

There is a final, albeit currently controversial, option for avoiding a destruction order. That is where a dog owner who has been found guilty of, or has pleaded guilty to, a dog attack charge is granted a discharge without conviction at sentencing.

In these circumstances, there is clear legal authority stating that a conviction is required in order to make a destruction order under the Dog Control Act. The trouble is that there is equally clear authority to the contrary. Across more than a decade, and multiple High Court appeals, judges have agonised over whether the terms of the Dog Control Act require a conviction to be entered before the jurisdiction to order destruction arises.

On balance, the weight of those judgments favour the requirement for a conviction. That was certainly the position expressed most recently by Fitzgerald J in Telford v Auckland Council [2023] NZHC 31.

However, despite finding that a conviction was required, the court in Telford nevertheless determined that a destruction order could still be made where a discharge without conviction was granted to a dog owner. This is because when a court grants a discharge without conviction, a sentencing judge retains a discretion to make any order that the court is required to make on conviction.

According to Fitzgerald J, a destruction order is an order required to be made upon conviction for a dog attack charge because it is mandatory unless the exceptional circumstances exception can be made out.

Having reached this position, it might seem like pursuing a discharge without conviction is somewhat pointless if the aim is to avoid destruction. However, while it is true that obtaining a discharge without conviction will not mean a destruction order is thereby avoided, it could make achieving that outcome easier.

That is because, following Telford, even where a court would conclude that the circumstances of an attack were not exceptional, if a discharge without conviction is granted the judge may still decide not to order destruction. This could mean that factors no longer relevant to determining whether the circumstances of an attack were exceptional, such as post- and pre-attack conduct of the dog, again become relevant and weigh against a destruction order.

For example, in Telford the court took into account factors such as the age of the dog, the fact that it had no history of aggression and steps taken by the owners after the attack to better secure the property and properly medicate the dog.

Of note, the Telford decision is now the subject of a SolicitorGeneral’s reference to the Court of Appeal, meaning that the Solicitor-General has seen fit to refer a question of law arising out of the Telford case (whether a conviction is required for a destruction order) to the Court of Appeal for determination. The hearing for that proceeding is scheduled for April 2024. Watch this space.

Nathan Batts is a partner at Molloy Hucker and a member of The Law Association’s Criminal Law committee

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