Dog Control Act Clarified: Conviction now essential for Enforcement Orders

Wednesday 11 September, 2024

The Court of Appeal recently released a decision under the Dog Control Act 1996 (the Act) which has clarified the law in relation to dog destruction orders and discharges without conviction.

Background

An unregistered dog named Suki, owned by Mr Telford, escaped from his property and ran to a nearby reserve. Suki attacked Charlie, another dog at the reserve.

Auckland Council prosecuted Mr Telford under section 57(2) of the Act, for being the owner of a dog that attacked a domestic animal.

Mr Telford plead guilty but sought a discharge without conviction. The District Court granted Mr Telford a discharge without conviction but still made an order for the destruction of Suki.

Mr Telford appealed the destruction order. The High Court held that a conviction was necessary in order to make a destruction order. The District Court could not have made such an order as Mr Telford had been discharged without conviction. The High Court accordingly quashed the destruction order made by the District Court.

The Solicitor-General’s application

The law on this issue was unsettled, with four decisions agreeing with the High Court while four disagreed. The Council had no right of appeal against the High Court decision. Instead, the Solicitor-General referred a question of law to the Court of Appeal.

The Court granted leave on the 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 Crown argued that if the High Court was correct, an owner may avoid conviction for reasons unconnected to the attack (as was the case for Mr Telford). That does not mean the dog no longer poses a risk to public safety, a key purpose of the destruction order provisions.

Although the Court was sympathetic to the Crown’s submissions, the Court decided that a conviction was a precondition to a destruction order and the answer to the referred question was “yes”.  

The Court noted that the answer may be greeted with dismay by regulators but pointed out the answer to these issues ultimately lies with Parliament. The Court also observed that the Act should be particularly clear and certain but is not.

The decision was silent on the issue of whether a destruction order could still be made under section 106 of the Sentencing Act 2002 which enables a court to make “any order a Court is required to make on conviction” which was referenced in the High Court decision. This leaves the issue open to be argued in future cases.

What does this case mean?

Regulators may now see an increase in the number of dog owners seeking a discharge without conviction in an effort to avoid a destruction order being made. This is often a contentious issue. However, dog owners will still need to satisfy the test for a discharge without conviction.

It is still open to regulators to choose to argue that a discharge without conviction should not be granted because without it a destruction order cannot be made, even if such an order is in the interests of public safety.

Our team of experts in this area are happy to discuss your situation with you.