By: N/A
Published: 3/07/2005
In this article, Lana looks at penalties that can be imposed if dog owners are not absolutely vigilant when it comes to the control of their animals.

As the owner of a number of fur children I have been keeping a careful eye on the recent media frenzy surrounding “dog attacks” and the introduction of the Dog Control Amendment Act 2003 (“the Amendment Act”) which amends the Dog Control Act 1996 (“the Act”).

The Amendment Act provides for a number of dates for different sections to commence, with most provisions already in force. Provisions relating to the implantation of microchips in certain dogs and impounded dogs having microchips inserted before leaving are to come into force on 1 July 2006 and a clause which relates to the National Dog Control Database and levy to fund the costs of the National Dog Control Database is to come into force on a date to be appointed by the Governor-General by Order in Council.

Most penalties have more than doubled (the fine for the wilful obstruction of a dog control officer or dog ranger has increased from $400 to $1,000) and new offences and penalties have been created (failing to use or carry a leash in a public place attracts a fine of $100).

Most significantly, in addition to any damages payable for the damage caused by the dog, the maximum penalty for a dog causing serious injury to a person or protected wildlife has increased from three months’ imprisonment or a $5,000 fine to a maximum of three years’ imprisonment or a $20,000 fine and a requirement that the dog must be destroyed unless the court is satisfied that the “circumstances of the attack were exceptional and do not justify destruction”.

Purpose of the act - control
The courts have emphasised that the purpose of the Act, which is stated in section 52(1), is that a dog must be kept under control at all times. As such, the courts place a high onus on owners to demonstrate that the dog is under control.

Dogs attacking persons or animals
Section 57 of the Act has been re-worded by the Amendment Act. However, the substance of section 57 remains unaltered.

In essence, if a dog is not under control and it attacks another person, stock, poultry, domestic animal or protected wildlife then the owner is liable on summary conviction to a fine and damages and if the dog has not already been put down, then 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.

Lack of control
In all of the following cases, the courts have found that the dog or dogs were not under control and, as no special circumstances were found, the dogs were destroyed. A small dog was attacked by two larger dogs. There was uncertainty as to whether the dog was attacked on the owner’s property, at the boundary, or on a neighbouring property. The owner argued that because the small dog may have entered onto the owner’s property his dogs were under control. The court held that it was immaterial whether the attack took place on the small dog’s property, the boundary between the two properties, or actually on the owner’s property itself, as it is the responsibility of the owner of the attacking dog to keep it under control at all times.

A dog strayed onto a cat’s property and killed the cat. As the dog had trespassed onto the cat’s property the dog was deemed “not under control”. The owner sought a discharge without conviction under section 19 of the Criminal Justice Act 1985 to try to avoid the destruction of the dog. The High Court held that a section 19 discharge without conviction was not appropriate in these circumstances.

In Simpson v Kawerau District Council the dog owner appealed three convictions.
The first conviction related to a dog biting the trousers of the complainant after it escaped on to the roadway. The owner argued that as the dog did not make contact with the leg, there was only an attempted attack. If the dog “rushed”, rather than “attacked”, the complainant it would not be mandatory to destroy the dog. The High Court rejected the argument finding that contact with clothing was sufficient for an attack.

Secondly, the dog had been attached to a running wire on the dog’s property and released by a seven year old who was unable to maintain control of the dog. The Court held that liability under section 57 was strict. The total absence of fault defence as provided in Civil Aviation Department v McKenzie is available if total absence of fault can be demonstrated by showing that the dog was under control. In this case the dog was clearly not under control having escaped from the seven year old’s grasp.

Thirdly, on another occasion the dog rushed one complainant and bit a second on the ankle when it was loose in a dog park that was open to the road. There was no factual support for a claim of total absence of fault.
These cases have been reinforced by the introduction of section 52A into the Act which provides that a dog owner must, at all times, ensure that the dog is either under the direct control of a person, or is confined within the land or premises so that it cannot freely leave the land or premises.

Exceptional circumstances to avoid the dog’s destruction
In Milner v Hastings District Council two dogs escaped after having been tied up in a back yard and attacked sheep. The dogs’ owner appealed against the order for destruction only. She argued that the judge in the lower court had erred in principle in finding there were no exceptional circumstances so as to avoid destruction. Such circumstances included:
  • the dogs had no previous history of aggressive behaviour;
  • the owner had no previous convictions for failing to keep dogs under proper control;
  • the dogs had been secured by rope just outside the door of the owner’s home on the farm which arrangement had been in place for five days without concern;
  • the owner’s lack of awareness that the dogs could escape and attack sheep; and
  • the attack was on farm animals, not humans or domestic pets.
The High Court noted that it is clear that the term “exceptional circumstances” when viewed against the purposes of the Act is that the dog must be kept under control at all times. Unless there are circumstances relating to the owner of the dog that has a direct bearing on the attack, a destruction order is mandatory. Exceptional does not mean extreme, rather special or substantially unusual and is not necessarily the same as the reasonableness of steps taken by the owner.

As section 57 specifically refers to “stock”, the last argument was also rejected.

No exceptional circumstances were found and the two dogs were destroyed.

The Court did provide some examples of what may amount to exceptional circumstances, such as an owner fainting due to a medical condition while walking a dog, causing the walker to lose hold of the leash; or a trespasser baiting or intimidating a securely chained or tied up dog.

Control
In Hamilton City Council v Fairweather, a kitten was attacked by a dog after it wandered into the dog’s property. The defendant had rented the property because it had a 1.8 metre high wooden fence around it, preventing the dog from straying. The kitten had come into the dog’s property.

The Community Magistrates held there was a defence of absence of fault available, the dog was under control and therefore the dog owner was acquitted.

The Council appealed to the High Court, arguing that the offence was an absolute liability offence and once a dog attacked, its owner was automatically criminally liable. Alternatively, the Council argued that there was automatic liability for a dog attack if the dog was not under control.

The High Court held that if the dog attacked while it was under control, no offence was committed. But an owner was automatically liable for a dog attack if the dog was not under control.
The Court noted that the dog would not be properly controlled where it is on a leash but still able to attack passers-by or where a dog is kept inside, but is able to escape when a door is opened. Similarly, a dog in a car where the window is down is not controlled.

As the dog was under control at all times, no offence was committed and the acquittal was upheld. It was unnecessary to consider whether there were exceptional circumstances as no liability arose.

Conclusion
In order to protect our best friends, dog owners must be vigilant to ensure their dogs are under control at all times. This means ensuring that properties are secure to prevent a dog from escaping, and that, while a dog is off the property, it is under control. If a dog is not under control and attacks, unless you can show exceptional circumstances, your friend must be destroyed.
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