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 of the offence” (s 57(3)) and that those exceptional circumstances will be narrowly construed. An exception can be made if the owner is granted a discharge without conviction.
This post will discuss a recent Supreme Court decision, Sharma v Auckland Council [2024] NZSC 141, appealing a dismissal of the High Court appeal in this matter, considering “exceptional circumstances of the offence.”
The facts of the case are that Mr Sharma’s dog, Kaiser, and his other dog, Shady, got out of the appellant’s property late in the day in question because the garage door was left open. The complainant and his dog, Mary, were out for a walk. Mary was on a leash. The appellant’s two dogs ran towards the complainant and his dog. Kaiser bit and latched onto Mary. The complainant went to pick up Mary and he too was bitten. Mary received puncture wounds requiring vet treatment and stitches to the main wound area. The complainant had two wounds and required hospital treatment. Mr Sharma was convicted and a destruction order made.
Mr Sharma appealed to the High Court against the order made in the District Court. The High Court dismissed the appeal. The Court of Appeal declined leave to appeal so the appellant sought leave to appeal the High Court decision directly to the Supreme Court. The Supreme Court declined leave to appeal on the basis that the facts of this case meant that it had insufficient prospects of success to justify it being a vehicle to consider the wider issue of what constitutes ‘exceptional circumstances’. The Court does, however, provide a useful summary of the area on the way through.
Auckland Council v Hill [2020] NZCA 52: ‘exceptional circumstances’
The Court of Appeal decision of Auckland Council v Hill [2020] NZCA 52 (“Hill“) sets a very high bar of ‘exceptional circumstances’ to avoid a dog destruction order issuing following a conviction for some offences against the Dog Control Act 1996. 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:
[76] … the owner of dog A was rushed or attacked by dog B, and dog A attacked dog B in order to protect its owner.
[…]
[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, the two most likely instances contemplated appear to be:
- a dog comes to the defence of its owner; or
- a dog is provoked
But these are not claimed to be exclusive categories so some other unusual fact situations may yet suffice as “exceptional circumstances of the offence.”
High Court – Sharma v Auckland Council [2023] NZHC 1755
The appellant relied on the following circumstances in arguing that a destruction order should not be made:
(a) Mrs Sharma was [very] sick that day;
(b) Mrs Sharma was unable to walk Kaiser that day;
(c) Kaiser could not go to doggy daycare;
(d) Kaiser’s dog walker was unavailable that day to walk Kaiser;
(e) Kaiser was not walked at all, when normally he is walked twice a day;
(f) Kaiser was confined in the house all day;
(g) Mr Sharma was stuck at their cafe business as he was understaffed and could not walk Kaiser or take Mrs Sharma to the hospital or doctors;
(h) Mrs Sharma forgot to shut the internal garage door and does not even recall how or when it was opened;
(i) it was raining and dark which meant Kaiser could not hear Mrs Sharma;
(j) when the garage door opened, Kaiser immediately ran out and found Mary and the complainant, rushed to Mary to play, but Mary became frightened because of his size, resulting in the “play gone wrong” and injuries; and
(k) the complainant, who was walking Mary, had earphones and a hoodie on and could not really see through the rain and the dark. He tried to pick up his dog, Mary, during the “play gone wrong” and was bitten by Mary, not Kaiser.
The respondent, Auckland Council, did not accept that there was any evidence that Mary, not Kaiser, bit her owner.
Applying Hill, O’Gorman J in the High Court said that to qualify as “exceptional circumstances of the offence,” the relevant events (at [37]):
… must form a proximate part of the attack, such as where the victim attacks the dog or its owner in the immediate lead-up. It does not reopen the door to consider the circumstances of the owner or the attacking dog (as opposed to the attack itself) that arose earlier in the day.
The Judge went on to say that the circumstances of the dog not being exercised that day was “something relevant to the circumstance of the attacking dog as opposed to the circumstances of the attack itself.” (at [41]). A matter is not exceptional even if it is a one-off, or not expected to occur (at [41]):
Even one-off failures by an otherwise responsible owner to maintain effective control of the dog cannot qualify as an exception, and a one-off failure to exercise the dog logically falls in the same category. A combination of factors certainly can be considered together and have been in this case. However, … such circumstances relating to the owner and/or dog may make the attack exceptional, but this does not qualify to prevent a destruction order unless they have a direct bearing on the attack itself.
Supreme Court – Sharma v Auckland Council [2024] NZSC 141
The Court noted that ‘[a]t its heart … the proposed appeal challenges the approach of the Court of Appeal in Hill to what constitutes “exceptional circumstances of the offence.”‘ (at [8]).
At [9]-[11] of the decision the Court re-iterates the two-stage inquiry of Hill. The first stage is “what happened?” The second stage is whether what happened was exceptional – “an unusual or one-off occurence that is most unlikely to be repeated” – and whether in light of the exceptional nature of what occurred, the Judge is satisfied destruction is not necessary to remove the risk of a future attack.
In terms of the second step, the Court held first that the circumstances have to be exceptional in a way that means destruction of the dog is “not warranted.” Second, the Court of Appeal in Hill continued:
[75] This test requires the Court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake the difficult, if not impossible, task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future. The inquiry contemplated by the Act is in our view much simpler. Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So the focus is on whether those circumstances were sufficiently exceptional that that risk is remote and does not justify destruction of the dog in the interests of public safety.
The Supreme Court declined Mr Sharma’s application for leave to appeal (at [12]):
The correctness of this approach to what constitutes exceptional circumstances in s 57(3) of the Act may raise a question of general or public importance. But we consider that resolution of the appeal will largely be governed by the specific facts of this case. As to those facts, nothing advanced by the applicant suggests there was an error in the assessment of the High Court that the, essentially mitigating, factors advanced by Mr Sharma were not the exceptional circumstances contemplated by the text and purpose of the Act. Accordingly, we do not see this case as an appropriate one to address the wider issue given the case has insufficient prospects of success. Against this background, nor is there an appearance of a miscarriage of justice.
Although the decision is a decline of leave to appeal, it is nonetheless useful guidance from the most senior court on an area with a paucity of definition at this level.
Vernon Tava 