IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA33/2019
 [2019] NZCA 296

	
BETWEEN	
AUCKLAND COUNCIL
Appellant	
	
AND	
ADRIAN ARTHUR DENLEAVY HILL
Respondent	

Hearing:	
3 July 2019	

Court:	
Courtney, Venning and Dunningham JJ	

Counsel:	
RJA Marchant and V S Rewi for Appellant
B J Meyer and S J Mutch for Respondent	

Judgment:	
8 July 2019 at 2.30 pm	

JUDGMENT OF THE COURT

A.	The application for leave to appeal is correctly brought under s 253(2) of the Criminal Procedure Act 2011.
B.	The application for leave to bring a second appeal is granted. 
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)
Introduction 
[1]	In November 2017 Mr Hill’s dog, Kratos, attacked a woman, inflicting puncture wounds.  At the time, Kratos was classified as a menacing dog and was required to be muzzled.  Mr Hill pleaded guilty to owning a dog that attacked a person.  Judge D G Sharp fined Mr Hill and ordered him to pay reparation and court costs.  The Judge declined Auckland Council’s request for an order that Kratos be destroyed.  Palmer J dismissed Auckland Council’s appeal against the decision not to order destruction. 
[2]	Auckland Council seeks leave under s 253(2) of the Criminal Procedure Act 2011 (CPA) to appeal Palmer J’s decision.  The proposed grounds of appeal are that the Judge wrongly: 
(a)	treated the dog destruction order as a civil matter.  As a result, there is doubt over the correct appeal pathway; and 
(b)	treated post attack conduct as relevant to whether the circumstances of the offence were exceptional for the purposes of s 57(3) of the Dog Control Act 1996.
[3]	Mr Hill does not oppose Auckland Council’s application for leave to appeal. 
[4]	Counsel agreed that if leave to appeal were granted, the first proposed ground of appeal would be otiose, because the grant of leave itself would have the effect of determining that the proposed appeal is correctly brought under s 253(2) of the CPA.  That would leave the only proposed ground of appeal as the status of post attack events.  Leave to appeal on that ground can only be given if this Court considers that the proposed appeal involves a question of general or public importance.  
Appeal pathway
[5]	Mr Hill was prosecuted under the Dog Control Act 2000, s 57, which relevantly provides that:
 (1) A person may, for the purpose of stopping an attack, seize or destroy a dog if—
 (a) the person is attacked by the dog; or
(b) the person witnesses the dog attacking any other person, or any 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 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 described in subsection (1) 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.
[6]	Although the appeal from the District Court was brought as an appeal against sentence, the Judge treated it as a civil appeal:
The Council appeals against sentence but I treat it as a right of general appeal against exercise of a statutory power.  I consider the test is whether the Court is satisfied the circumstances of the owner’s offence are sufficiently exceptional, in light of what is known about the dog’s risk of attacking again, that destruction of the dog is not warranted.
…..
[The powers to order destruction of a dog] are powers a court is required to consider exercising in a prosecution of an owner for committing a related offence. A destruction order in respect of a dog is not part of a sentence of the owner but a concomitant decision to be made for the purpose of risk management. 
[7]	If this position were correct and the appeal to the High Court fell within the general right of appeal under s 124 of the District Court Act 2016, the appropriate appeal pathway would be s 60 of the Senior Courts Act 2016, which provides that the decision of the High Court is final unless the party obtains leave from the High Court or, if the High Court refuses leave, from the Court of Appeal.  Auckland Council has not obtained leave from the High Court.
[8]	Mr Meyer, for Mr Hill, supported the Judge’s decision.  He argued that the decision to order destruction is a risk avoidance mechanism, separate to the sentencing of the owner and not amenable to the purposes and principles of the Sentencing Act 2002, which relate only to the owner of the dog rather than the dog itself. He relied, as the Judge did, on two High Court decisions.  In Jorion v Kapiti Coast District Council Dobson J considered that s 57(3) “can only be seen as having a preventive motive rather than any punitive one”.  In Pukepuke v Auckland Council Jagose J took the same view saying that “destruction orders should not be seen as part of any sentencing process, but as a separate risk avoidance mechanism”. 
[9]	Mr Marchant, for the Auckland Council says that this approach is wrong and that an order for destruction is criminal in nature and its appeal is properly brought under s 253(2) of the CPA.      
[10]	We agree.  We start from the obvious position that a prosecution under s 57(2) of the Dog Control Act is a criminal proceeding because it results in a conviction.  The opening words of s 57(3), “[i]n any proceedings brought under subsection (2)”, make it clear that a dog destruction order can only be made in the context of those criminal proceedings.  It follows that an order made under s 57(3) is criminal in nature.  In addition, a dog destruction order falls within the definition of a sentence in s 212 of the CPA, being a “method of disposing of a case following conviction”.
[11]	The correctness of this position can be tested by Mr Marchant’s hypothetical situation of a person wanting to appeal against both conviction and the dog destruction order.  Mr Meyer’s approach would require two separate appeals, one under the CPA against conviction and another under the Senior Courts Act against the dog destruction order.  Such a course would not only be impractical but would have the potential for inconsistent outcomes, given that a dog destruction order can only stand if there is a conviction.
[12]	Auckland Council’s proposed appeal to this Court is therefore a criminal appeal for which leave to appeal may be sought from this Court under s 253(2) of the CPA.  We therefore turn to the question of whether leave should be granted for the substantive ground relating to the interpretation of s 57(3).
Does the proposed appeal involve a matter of general or public importance?
[13]	As already noted, upon conviction under s 57(2) of the Dog Control Act, 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”.  In reaching their respective decisions the Judges in both the District Court and the High Court took into account events that post-date the attack.  In particular there was evidence of the efforts that Mr Hill had made to rehabilitate Kratos and the dog’s positive response to those efforts. 
[14]	Leave is sought on the basis that the decision under appeal departs from the  approach taken in Halliday v New Plymouth District Court, in which Heath J held that post-attack conduct could not be taken into account to determine whether exceptional circumstances existed.  This Court noted in Easthope v Auckland Council that although Halliday has commonly been regarded as guideline authority on s 57(3), there has been considerable variation in the approach taken by individual judges on this issue.  The question was not, however resolved in Easthope because the circumstances of the case did not justify leave to appeal being granted.  
[15]	We agree that the current state of the law is unsettled as a result of the number of inconsistent decisions on the issue.  The question of dog destruction comes before the District Court frequently and appeals from such decisions are not uncommon.  Mr Marchant advised that in the District Court sentencings under s 57 of the Dog Control Act are currently being adjourned until the issue is resolved.  Clearly, local authorities and dog owners alike would benefit from certainty as to how s 57(3) should be applied.  We therefore agree that the interpretation of s 57(3) has broad general and public importance.
Result 
[16]	The application for leave to appeal is correctly brought under s 253(2) of the Criminal Procedure Act 2011.
[17]	Leave to appeal is granted on the question of whether post-attack events can be taken into account in determining whether exceptional circumstances exist for the purposes of s 57(3) of the Dog Control Act.

Solicitors: 
High Street Law, Auckland for Respondent