Sections 6, 27 New Zealand Bill of Rights Act 1990 – ss 2 & 57 Dog Control Act – ss 212, 244(1), 246, 253(2) Criminal Procedure Act 2011– s 124 District Courts Act 2016 – ss 24, 129EA Sentencing Act 2002 – Cameron v R [2021] NZSC 110 –Auckland Council v Hill [2019] NZCA 296 – criminal proceeding – disputed facts – third party standing –exceptional circumstances of offence – deliberate aggression

Uhlig v Queenstown Lakes District Council [2024] NZHC 1630

This case involves the dismissal of appeal against a dog destruction order and a determination that the dog’s registered owner, Marta Uhlig, had no standing to appeal the order.

Uhlig owned Milo, the dog at the centre of a biting incident, but she was not prosecuted. Instead, Tomas Braeuer, who was walking Milo (with Uhlig’s permission) along with his own dog, Lincoln, was prosecuted.

Although they were walking on an off-leash track, Uhlig had instructed Braeuer to keep Milo on a lead. But he was off-lead when they encountered another dog, Max, who was being walked by a Mr Mulholland.

Max and Lincoln got into a scrap; Milo joined the altercation  and bit Mulholland, who then needed surgery and was unable to return to work for seven weeks.

Brauer was prosecuted under s 57(2) of the Dog Control Act 1996 because Milo was in his possession when Mulholland was bitten. However, Judge Walker, in the interests of natural justice, granted Uhlig leave to file submissions, affidavit evidence and agreed to her counsel making oral submissions in respect of a destruction order. Destruction orders are almost mandatory under s 57(3).

Brauer pleaded guilty and Uhlig continued to take steps to be heard on the destruction order issue. She applied for a disputed facts hearing and sought to admit evidence about the circumstances that led to Mulholland being bitten.

Initially, 4 March 2024 was set down for a disputed facts hearing and sentencing. But a teleconference on 14 February dealt with the need for a disputed facts hearing and whether evidence about the circumstances should be called.

Following the teleconference, Judge Duggan issued a minute stating that evidence was not to be called and she would also consider, before making a destruction order, whether Brauer’s failure to follow Uhlig’s instructions, and whether a claim that Milo inadvertently bit Mulholland amounted to “exceptional circumstances”.

On 4 March, Braeuer was convicted under ss 57(1) and (2) and Milo’s destruction was ordered under s 57(3).

Uhlig appealed the destruction order, claiming Judge Duggan’s decision was wrong for two reasons: she had wrongly failed to hear evidence about the circumstances and her finding that exceptional circumstances did not exist.

Because Uhlig was not prosecuted, the first issue was whether she had standing to appeal.

Uhlig claimed standing under s 244(1) of the Criminal Procedure Act 2011, arguing that “an expansive approach should be taken to the interpretation of a convicted person”. It was also submitted that s 27 of the New Zealand Bill of Rights Act 1990 was relevant. Section 129EA was cited as an example of a third party having standing to appeal.

None of these arguments was accepted by the court but Mander J substituted Braeuer as appellant and granted Braeuer leave to appeal out of time under s 244(1) of the Criminal Procedure Act 2011.

Uhlig submitted that Judge Duggan had failed to hear evidence of the circumstances surrounding the altercation because she treated Uhlig’s application to call evidence as limited to Braeuer . She also submitted that the council failed to comply with a direction to obtain witness statements for the 4 March hearing. There was insufficient evidence for the court to make a decision on the target of Milo’s aggression, Uhlig said.

She also submitted that the court failed to appreciate a bite is not necessarily the result of deliberate aggression. The court had given insufficient weight to Braeuer’s decision not to intervene because he considered it too dangerous to do so. And the court had confused an inquiry into the ‘psychology of a dog’ with reasonable inferences about a dog’s behaviour to determine whether the bite was accidental or deliberate aggressive behaviour.

Applicable principles: Whether appellant is a convicted person – whether a destruction order is civil or criminal –whether a destruction order is a sentence – a guilty plea confirms an offence was committed – criminal appeal created by statute – whether facts essential for guilty plea – whether procedural unfairness exists – whether attack occurred –whether evidence admissible – whether “error” was material – whether contact was deliberate aggression – what were the circumstances of offence? – were those circumstances exceptional – whether likely circumstances will be repeated.

Held:

• Uhlig did not have standing because she was not a convicted person. A destruction order is a criminal proceeding and is a sentence under s 221 of the Criminal Procedure Act. Criminal appeals are prescribed by statute and the court must abide by the limits set by Parliament. Uhlig’s only option to challenge the decision is judicial review.
• The court had not erred in declining to hear evidence of the circumstances that led to Mulholland being bitten. Section 124 of the Sentencing Act requires the court to accept the material facts to an offence, proved on receipt of a guilty plea. Section 57(2) of the Dog Control Act means the fact of an attack is proved by a guilty plea. Section 57(3) applies only when an offence is committed. Limiting Uhlig’s application to bring evidence to Braeuer was not material to the decision.
• On the facts, the judge’s assessment of whether the circumstances of the offence were exceptional was correct.

After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practising local government law

Uhlig 20240720-Uhlig v Queenstown Lakes District Council [2024]NZHC 1630