[1] Is the conviction of a dog’s owner for an offence under s 57(2) of the Dog Control Act 1996 (the Act) a precondition for making an order for the destruction of the dog under s 57(3)?

[2] That is the key issue before us for determination. It is an issue on which there is a conflict of High Court authority, with five decisions holding that conviction is a necessary precondition, and four holding that it is not. As we shall explain, the division of opinion turns very much on the significance (if any) to be attached to a 2003 amendment to s 57.

Solicitor-General’s Reference from CRI-2022-404-212 ([2023] NZHC 31) [2024] NZCA 401 [22 August 2024]

Introduction

Section 57(2) of the Dog Control Act 1996 (“the Act”) makes it an offence for a dog to attack a person or animal. Under s 57(3) the Court must order the destruction of the dog on conviction unless exceptional circumstances exist relating to the attack.

The High Court decision of Telford v Auckland Council [2023] NZHC 401, which I have written about before in detail, held that dog destruction orders under s 57(3) of the Act only become mandatory upon conviction and that this consequence can therefore, in some cases, be avoided if the owner is granted a discharge without conviction under sections 106 & 107 of the Sentencing Act 2002.

An order for destruction cannot be made under s 57(3) without a conviction but the absence of a conviction does not preclude a destruction order being made under s 106(3)(c) of the Sentencing Act 2002. The power under s 106(3)(c) is discretionary and it is open to the Court to not make that order if the Judge concludes that public safety concerns do not require it.

Auckland Council v Hill [2020] NZCA 52: ‘exceptional circumstances’

If a discharge without conviction is not granted to the owner of the dog, the Court of Appeal decision of Auckland Council v Hill [2020] NZCA 52 (“Hill“) would apply setting a very high bar of exceptional circumstances to avoid a dog destruction order issuing. Hill is clear that nothing that happens before or after the attack is relevant to the Court’s decision to order destruction:

[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.

Two examples are given by the Court of Appeal of what may count as exceptional circumstances:

[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.

Solicitor-General’s Reference

Because Auckland Council did not have a right to appeal the High Court decision of Telford, the Council asked for a Solicitor-General’s Reference to clarify what has become a complex and unsettled area of the law.

A Solicitor-General’s Reference is a provision of the Criminal Procedure Act 2011 (s 313(3)) by which the Solicitor-General may, with leave of the Court of Appeal, refer a question of law to that court if the High Court was the first appeal court and it allowed the appeal, and the prosecutor has no right of appeal against that court’s determination.

The Solicitor-General sought and obtained leave to refer the following question:

Was the High Court correct to conclude that conviction of the dog’s owner is a precondition to an order for destruction being made under s 57(3) of the Dog Control Act 1996?

The Court of Appeal concluded that the High Court in Telford was correct.

There are three particularly interesting aspects of this decision:

1. The approaches taken in the High Court and Court of Appeal are noticeably different. Justice Fitzgerald in the High Court provided a close textual analysis of the conflicting lines of authority in that court and much was made of the change from ‘exceptional circumstances of the attack’ to ‘exceptional changes of the offence’ which did not feature largely in the Court of Appeal’s analysis. The Court of Appeal’s approach is primarily statutory interpretation (similar to that of Heath J in Halliday (the first of the now-affirmed line of cases) but more wide-ranging) probing the internal consistency of the Act subsequent to the 2003 amendments that have put the interpretation of s 57(3) in issue;
2. The Court of Appeal restricted its analysis to the interpretation of s 57(3) of the Dog Control Act 1996 and did not look at the next step in Telford in relation to s 106(3)(c) of the Sentencing Act 2002, which enables a court to “make any order a Court is required to make on conviction” and therefore allows a judge to make a dog destruction order even if the owner is granted a discharge without conviction.
3. Following on from the previous point, shifting the Court’s consideration from the narrow mandatory standard of exceptional circumstances under s 57(3) Dog Control Act to a more wide-ranging analysis under s 106(3) Sentencing Act effectively side-steps the Court of Appeal’s narrow casting of exceptional circumstances in Hill.

The 2003 amendments to the Dog Control Act

In 2003 the Dog Control Act was substantially amended following public outcry in the wake of a number of particularly bad dog attacks.

Section 57(2)&(3) of the Dog Control Act states that:

(2) The owner of a dog that makes an attack [on a person or animal] 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 attack were exceptional and do not warrant the destruction of the dog.

Prior to 2003, the relevant section was s 57(5) (set out in full at [26] of the decision) which was, in 2003, broken into the two separate subsections, now subss (2) and (3). Significantly the phrase “on convicting the owner” does not appear in subs (3).

The Solicitor-General’s counsel made an argument that “relies very heavily on the amendment” (at [25]) submitting that it was Parliament’s intention to remove the phrase “on convicting the owner” from s 57 and that the High Court had erred by reading it back in.

The Court of Appeal was not convinced by this argument and viewed the change as the result of a possibly inadvertent “redrafting tidy up”:

[32] … we have concluded that, as an exercise in statutory interpretation, the legal arguments which hinge on the 2003 amendment are not sustainable. In our view, the removal of the words “on convicting the owner” in 2003 cannot be properly interpreted as evidencing a deliberate policy choice on the part of Parliament to significantly change the meaning and effect of the provision. Rather, we consider that the removal of the phrase is more correctly viewed simply as the consequence of a redrafting tidy up involving the separating out of one multi-clause subsection into two subsections.

The Court of Appeal in Hill stated that a dog destruction order is a ‘sentence’ and this is re-stated by the Court in the instant decision (at [43]). The Court extrapolates from this that a sentence cannot be imposed in the absence of an offence and a conviction.

[43] … To ascribe an intention on the part of Parliament to depart that orthodoxy, would require a clear and direct statement in s 57(3) to that effect. But there is none. The Solicitor-General’s argument requires accepting that Parliament chose to affect [sic] such a change by the oblique method of removing the phrase “on convicting the owner” while retaining the word “offence”. And that, in our view, is a stretch.

The Court also noted the lack of legislative material reflecting a Parliamentary intention to alter the Court’s jurisdiction to make a dog destruction order (at [44]-[47]).

Comparison with other sections within the Act

Then the Court moved on to a comparative analysis with the following offence provisions in the Act:

Dog Control Act section	Wording of relevant part of section
s 58 – Dogs causing serious injury	‘commits an offence and is liable on conviction to imprisonment … and the court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction.’
s 57A(2) – rushing dogs	‘(a) the owner of the dog commits an offence and is liable on conviction to a fine … in addition to any liability that he or she may incur for the damage caused by the dog; and (b) the court may make an order for the destruction of the dog.’
s 33ED – classification of dogs as dangerous or menacing	‘(a) the owner of the dog has been convicted of an offence against ss 57(2) or 57A(2)(a); and (b) no destruction order has been made by the court concerned.’
s 32 – obligations imposed on owner if dog classified as dangerous	‘(3) If a court convicts a person of an offence against subsection (2), the court must also make an order for the destruction of the dog unless satisfied that the circumstances of the offence were exceptional and do not warrant the destruction of the dog.’
s 62 – allowing a dog to be at large or in a public area unmuzzled	‘(4) A person who contravenes subsection (2) commits an offence and is liable on conviction to a fine not exceeding $3,000, and the court may, on convicting the person, make an order for the destruction of the dog.’

Section 58 clearly contains a conviction threshold and the public safety concerns are greater for the more serious offence. If section 58 has a conviction threshold for a destruction order to be made and section 57 does not this would have the “perverse outcome that the more serious the attack, the more difficult it is to have the dog destroyed. It does not make sense that Parliament would have intended that outcome.” (at [49]).

In section 57A subsections (a) and (b) are linked by the word “and” which “strongly suggests that consideration of whether to make a destruction order is to be undertaken at the same time as consideration of fines and other penalties. It thus necessarily follows conviction. The separating out of dog destruction orders into their own subclause does not in our view signify an intention to make such orders independent of a conviction.” (at [53])

Section 33ED again links subsections (a) and (b) with the word “and” which “clearly denotes that both preconditions must be satisfied. The two preconditions also go in tandem sequentially, again strongly suggesting that the assessment of whether to make a destruction order under s 57(2) and 57A must be undertaken as part of the sentencing, which necessarily follows conviction.” (at [55])

Section 32 clearly establishes the conviction of the owner as a precondition to destruction. “Yet it is dealing with a category of dog that has been classified as dangerous for reasons which include that the owner has previously been convicted of the offence under ss 57(2) or 57A(2).”

[58] … Again, as in the case of s 58, it does not make sense that the destruction of a dangerous dog, which in some cases will pose a greater risk to the public than a dog within the ambit of s 57, is subject to a precondition which the Solicitor-General claims that Parliament deliberately removed from s 57(3).

In section 62 “[t]he level of fine ($3,000) is the same as for the offences created by ss 57, 32 and 57A. Yet if the Solicitor-General’s interpretation is correct, for some unknown reason, conviction is not a prerequisite to a destruction order under ss 57 and 57A, but is under ss 32 and 62.” (at [60])

The Court concludes, in answering the question referred by the Solicitor-General in the affirmative, that:

[64] It is an answer that may be greeted with dismay by regulators. But if so, the remedy lies with the legislature. Given its subject matter, the Act should be particularly clear and certain – however, the number of occasions it has come before the senior courts for interpretation suggests otherwise.

As suggested by Heath J in Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 4 July 2005 at [33], the legislative remedy “may lie in the creation of a separate civil right to seek a dog destruction order if a Council can prove that a prohibited attack was made and … it is necessary to destroy the dog.”

Section 106(3) Sentencing Act 2002 discretion to make dog destruction order

Significantly, the Court of Appeal did not deal with Fitzgerald J’s reasons for the jurisdiction to make a dog destruction order (or not) under s 106(3) Sentencing Act 2002.

The High Court’s reasons are set out at [88] of Telford:

… In short, if the proviso to s 57(3) [i.e. exceptional circumstances] is not engaged (which is an evaluative exercise), then the court is required to make a dog destruction order. There is no discretion. … Leading commentary on s 106(3)(c) also confirms this approach, stating “[t]he court can make an order under subs (3)(c) only if the order is mandatory upon conviction, i.e. required in every case or in the absence of any prescribed exceptions”. A number of the examples given in the authorities and commentary of orders made under s 106(3)(c) also contain prescribed statutory exceptions.

To summarise the position in Telford:

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;
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.

Has the application of s 106(3) if a discharge without conviction is granted changed following this decision?

It may have been tidier if the Court of Appeal had also considered this issue but, while it may have been consequent on the reasons relating to whether a conviction is necessary for a destruction order under s 57(3), it is beyond the scope of the question posed in the Solicitor-General’s Reference.

Fitzgerald J’s reasoning in Telford on the question of whether a destruction order can be made under s 106(3) (at [88]) is compelling and is also supported by the majority of High Court judgments, and the leading commentary, considering that issue. Although not beyond appeal, it is a strongly-supported position.

My own view is that the clarification of s 57(3) is all that was required in any event. The operation of s 106(3) is a settled area of the law. It is routine, for instance, for orders for disqualification from holding or obtaining a driver licence, to be made together with discharges without conviction for driving offences (ss 35, 56-58, 60-63, and 65 of the Land Transport Act 1998). The same applies for an order for confiscation of a motor vehicle under s 129(3) of the Sentencing Act 2002 and a forfeiture order under ss 255A-255D of the Fisheries Act 1996. Almost all of these provisions have prescribed statutory exceptions.

A benefit of the destruction of the dog not being tied to the conviction of its owner is that the discharge without conviction can be considered on its own merits.

UPDATE: exactly one year after the initial publication of this post (on 27 August 2025), the Court of Appeal issued a decision determining this question. In Xing v Auckland Council [2025] NZCA 433 French P and Collins J hold that, yes, the operation of s 106(3)(c) remains unchanged:

[15] … if the finding is that there are no exceptional circumstances, as defined in Hill, that does not, of itself, mean a destruction order must automatically follow as it would had the person had been convicted. Otherwise, the existence of the discretion under s 106(3)(c) would be meaningless. The discretion contained in s 106(3)(c) is intended to enable a broader range of factors to be taken into account than those driving the conclusion that the statutory exception is not met. Thus, although public safety concerns will still be relevant, pre-attack and post-attack history may, for example, be taken into account at this stage of the inquiry.

How does this sit with Auckland Council v Hill?

The Court of Appeal’s decision in Hill explicitly rules out consideration of factors before or after the immediate circumstances of an attack under s 57(2)&(3).

But, following Telford, if the owner is discharged without conviction the Court can consider a wider range of factors under the s 106(3)(c) analysis such as the age of the dog and its previous behavioural tendencies, the context of the address from which a dog may have escaped, remedial steps taken after the attack, offers of reparation to the affected parties, training and management of the animal after the attack, even the dog’s psychological state.

Given what a significant difference in potential outcome this analysis affords it is somewhat odd that it is triggered by the viability of the owner’s application for a discharge without conviction but that is an inevitable consequence of the animal’s status as its owner’s property.