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Defending your dog

Written By: Nathan Batts

Unfortunately, New Zealand dog owners are regularly before the courts for the alleged misconduct of their dogs. In 2018 alone, local councils commenced 467 prosecutions in courts across the country under the Dog Control Act 1996, 82 of which resulted in the destruction of the dog.

As an owner (or a person in control/possession of a dog), you can be criminally liable for the actions of your dog. If your dog attacks a person or animal, you can be convicted and sentenced to a fine of up to $3,000 (for the most common offences). If the attack causes injury, there is the possibility of a fine, community work or even a term of imprisonment.

If your dog is involved in an attack, it is likely that a complaint will be made to your local council. The council’s dog control officers will investigate and determine whether there is evidence supporting the complaint and may decide to file charges against the owner.

The council does have discretion in terms of whether or not to file a criminal charge. By engaging constructively with council from the start, you may be able to negotiate an alternative solution for you and your dog. We recommend engaging a lawyer from the outset to provide you with the best prospects of avoiding prosecution. That said, a reasonable rule of thumb is that a prosecution will occur if the dog attack resulted in an injury to person or animal.

Owners are understandably eager to ensure that their dog is returned if the council has impounded their dog following an alleged attack. Before the council can consider returning a dog to its owner, they must decide whether your dog poses a threat to the safety of people or animals if it were released. If the answer is no, you will be given written notice and have seven days to pay the pound fees and claim your dog.

If the council has concerns about the risks your dog may pose, your dog is likely to remain impounded until the case has been heard. As an owner, you can challenge this decision and try to secure your dog’s release by showing that the council does not have reasonable grounds for its position. Legal representation can be of considerable assistance when you are trying to achieve “doggie bail”.

If the council decides to prosecute you as owner, you can plead either guilty or not guilty to the charges. If you plead not guilty, the matter will proceed to a trial before a judge at your local District Court. This is not a quick process, and from the time charges are filed against you, it can take more than a year for a prosecution to reach a trial date.

If you plead guilty to a dog attack charge (or are found guilty following a trial) then the court will sentence you for the offence. While the most likely outcome for an owner is a fine, the court must also order the destruction of the dog, unless it is satisfied that the circumstances of the offence were exceptional.

The exceptional circumstances test has a high threshold. The Court first considers whether the circumstances of the attack were unique, special or substantially unusual. If satisfied the exceptional circumstances exist, then the Court will make an assessment as to the future risk of the dog attacking another person or animal. The Court will consider the nature of the attack, whether there was an injury, the history of the dog owner, past behaviour of the dog, and whether any preventative steps were taken to reduce risk and if so, why these steps failed. Generally speaking, if there is a risk of a further attack, any exceptional circumstances will not be enough to prevent a destruction order.

Whether post-attack factors, such as subsequent obedience training, can be taken into account law remains unclear. We note, however, that a Court of Appeal decision on this issue is due in the near future, so watch this space.

If you find yourself at the centre of a dog control matter, we recommend you engage legal representation as soon as possible. Haigh Lyon has substantial experience in dealing with local council prosecutions and understands the importance of bringing your dog home. We are Auckland based but are able to travel across the country to defend your dog.