UPDATE: This decision has been upheld in a Solicitor-General’s Reference. I have written about that here.

Introduction

Since the 2020 Court of Appeal decision of Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603, the law has been settled that convictions under section 57 of the Dog Control Act 1996 will result in mandatory destruction orders (i.e. the dog will be killed) upon conviction unless there were ‘exceptional circumstances’ at the time of the attack (s 57(3)) and that those exceptional circumstances will be narrowly construed.

But a recent High Court decision, Telford v Auckland Council [2023] NZHC 31 (judgment date: 27 January 2023), holds that these destruction orders only become mandatory upon conviction and that this consequence can therefore be avoided if the owner is granted a discharge without conviction under sections 106 & 107 of the Sentencing Act 2002. Though more than the bare fact of a discharge without conviction will be necessary to prevent the issue of a dog destruction order as there is still a residual discretion to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act 2002. However, the grounds for an exception to the order appear to be wider when being considered under s 106(3)(c) than they would be under s 57(3).

Exceptional Circumstances

The requirement for ‘exceptional circumstances’ creates a very high bar. The Court of Appeal in Hill said (at [6]) that: ‘The focus is on whether those circumstances were sufficiently exceptional that the risk is remote, and does not justify destruction of the dog in the interests of public safety.’ The policy reason is set out more fully by the Court as follows:

[65] … The reason for the default rule that the dog should be destroyed is that the Act proceeds on the basis that were a dog has attacked once, there is a risk that the dog will behave in the same way again in similar circumstances. That risk must be removed by destruction of the dog, unless the risk is immaterial because the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely. …

Although ‘exceptional circumstances’ are not given a clear definition in Hill, examples are given of the type of situation that would meet the standard:

[76] If for example, the owner of dog A was rushed or attacked by dog B, and dog A attacked dog B in order to protect its owner, a Judge might well conclude that the circumstances were exceptional and do not warrant the destruction of dog A.

…

[84] … If the circumstances of the attack are exceptional, in the sense that the dog can properly be seen as not intrinsically dangerous – for example where the dog’s owner was under attack, or where the dog was provoked – then a court may be satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

So, exceptional circumstances so far appear to be limited to scenarios where either the dog’s owner is attacked or rushed by another dog, or the dog is somehow provoked. There also appears to be, even in these situations or some other hitherto unforseen circumstances, the necessary application of the overall policy that ‘those circumstances were sufficiently exceptional that the risk is remote, and does not justify destruction of the dog in the interests of public safety.’ (Hill at [6]).

Significantly, the exceptionality can only apply to the circumstances at the time of the attack. Nothing can be done after the fact to ameliorate them.

[9] Circumstances that were not exceptional at the time the attack occurred cannot become exceptional as a result of post-attack events. If there was nothing exceptional about the circumstances of the attack when they occurred – nothing out of the ordinary which can be identified as a relevant factor in the attack – the s 57(3) exception does not apply. In particular, assurances given by the dog owner about the future management and control of the dog are not relevant to the s 57(3) inquiry.

Telford v Auckland Council

There are two divergent lines of authority in the High Court on the question of whether the conviction of the dog’s owner is or is not a pre-condition to an order being made under s 57(3) for the destruction of the dog. Section 57(3) reads as follows:

(3) If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack … and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

This divergence arose from the 2003 legislative change in s 57(3) from considering whether there were “exceptional circumstances of the attack” to whether there were “exceptional circumstances of the offence.” Heath J in the 2005 decision of Halliday v New Plymouth District Council CRI-2005-443-011 considered whether this change in wording required a different approach to that adopted in earlier case law. He concluded that, in changing the wording from “circumstances of the attack” to “circumstances of the offence”, Parliament intended a wider range of matters to be taken into account when considering whether a dog destruction order ought to be made.

Over one-third of Telford is spent discussing these two lines of cases. This detail of analysis is to be expected given that it is an analysis of conflicting decisions all at the High Court level in a High Court decision. But, for the purposes of applying this case, all that needs to be taken from this is that Fitzgerald J in Telford preferred the interpretation of Isac J in Adams v South Taranaki District Council [2021] NZHC 3254 and Wylie J in Fountain v Auckland Council [2018] NZHC 591 that a conviction is required before a destruction order can be made under s 57(3).

If you do want to dive into the comparative detail in the judgment I made this table as an aid to navigating the decisions analysed at [42]-[77]:

The line of reasoning supporting Fitzgerald J’s conclusion that a destruction order cannot be ordered when the dog’s owner is granted a discharge without conviction is outlined at [80]-[86] of the decision.

With reference to s 57 of the Dog Control Act 1996 [italics added]:

57 Dogs attacking persons or animals

…

(2) The owner of a dog that makes an attack … 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 any damage caused by the attack.

(3) If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack … and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

1. “The attack” and “the offence” are not the same thing in the context of the proviso to make a dog destruction order. “The offence” can only be a reference to the offence created by s 57(2) of the Act;
2. When a defendant is granted a discharge without conviction, they are deemed to be acquitted. There is no conviction and the court proceeds on the basis that no offence has been committed;
3. The Court of Appeal in Hill confirmed that a dog destruction order is a criminal order and forms part of the sentencing process. There cannot be a sentence in the absence of an offence or conviction;
4. Section 57(3) of the Dog Control Act does not confer the necessary power on the courts to make a criminal order without an offence being committed or conviction entered;
5. The purpose of the Act is to treat the destruction of a dangerous dog as an integral element of the sentencing process for a conviction. There is therefore no jurisdiction to make a destruction order in the absence of a conviction.

Section 106(3) Sentencing Act 2002

Fitzgerald J then considered whether the Court nevertheless retains a discretion to make a dog destruction order pursuant to s 106(3)(c) of the Sentencing Act 2002.

Section 106(3) enables the court, upon discharging a defendant without conviction, to make any order that the court would have been required to make had the offender been convicted. Such an order can only be made if the order is mandatory on conviction. Generally this has been interpreted as extending to orders that are mandatory in the absence of any special circumstances or prescribed exceptions.

Again, there is conflicting High Court authority on this point. In Ingle v Auckland Council [2020] NZHC 1164 (one of the cases in the table above) the Court held that such an order could not be imposed under s 106(3)(c), since the proviso as to exceptional circumstances meant it could not be regarded as fully mandatory. But in Telford, following Adams v South Taranaki District Council [2021] NZHC 3254 (also in the table above), the Court held that, since the Court has no discretion and is required to make the order where a proviso as to special circumstances is not engaged, it should be regarded as mandatory and able to be imposed under s 106(3)(c). The authors of Adams on Criminal Law (SA106.08) say the following: ‘It is suggested that the latter approach is to be preferred, since s 106(3)(c) would otherwise have very limited application. However, the order need not be imposed: the word “may” is subs (3) indicates that the Court has a discretion not to impose it even if the relevant proviso does not apply in the case: Telford at [95].’

To summarise:

1. The Court can make an order under s 106(3)(c) only if the order is mandatory upon conviction, i.e. required in every case or in the absence of any prescribed exceptions (see [88]);
2. Because the prescribed exception to s 57(3) is that the circumstances of the offence were exceptional, the Court will only have the discretionary power to make a destruction order pursuant to s 106(3)(c) if the circumstances of the attack were not exceptional.

[95] … The discretion contained in s 106(3)(c) must therefore enable a broader range of factors to be taken into account than those driving the conclusion that the statutory exception is not made out. Nevertheless, the reasons why the proviso to s 57(3) was not made out will, in my view, be relevant, as will the public safety purpose of s 57(3).

Clearing the s 106(3) hurdle still requires a compelling case. The decision in Telford turned on the specific facts of that case:

1. The dog was 12 years old at the time of the decision. ‘There is no suggestion she has ever before attacked another animal or person. This tends to suggest that, in ordinary circumstances, Suki does not present as a danger to the public.’
2. The dog and her family had only moved to the new address five days prior to the attack.
3. Mr Telford appears to have taken appropriate steps at the time to check the property was fully fenced, and took remedial steps immediately following the attack.
4. The dog has now been seen by a vet for her underlying anxiety and is on appropriate long-term medication.
5. Mr Telford contacted the owner of the other dog and offered to pay their vet bills.
6. The owners appear to have learned from what happened: the dog is muzzled when taken to the vet, is left indoors when the owners are out, wears a muzzle and is on a lead at all times when walked in public.

On these bases, Fitzgerald J was persuaded that ‘public safety concerns do not require me to exercise my discretion under s 106(3)(c) and make an order for [the dog’s] destruction.’ The appeal was allowed and the destruction order quashed.

Miscellanea

The decision refers to the High Court decision of Farmer v Auckland Council [2022] NZHC 1109 at [71] in which Wylie J held that a sentencing judge is not bound to accept an explanation for offending offered in affidavit evidence adduced for sentencing purposes.