After biting another dog in a public park, Suki the dog was sentenced to death – but following an appeal she was taken off death row. Now, three years on, Suki and her owner’s case has proved central to clearing up a hazy law relating to destruction orders for dogs.

The Court of Appeal has this month ruled a destruction order can be issued only if the dog’s owner is convicted.

In this case, Suki’s owner, Robert Telford, avoided conviction on a charge laid under dog control law after the attack. But, the Auckland family’s relief was shortlived because, at the same time, the District Court ordered the purebred Staffordshire Terrier was to be destroyed. Telford successfully appealed to the High Court, and Suki, who until then had been placed under “house arrest” and allowed out only under strict conditions such as being muzzled, was released from death row.But, the news was bittersweet for the Telford family as Suki died in November after becoming unwell.

“Suki’s gone now, and this is her legacy. Even though we lost her she’s had an impact on the law, that will help others.”

Suki’s family were out in April 2021 when the 12-year-old dog, named after the Japanese word for “beloved”, escaped from their property. She ran into Auckland’s Waterview Park nearby and attacked Charlie, who had been out on a lead and was lounging beneath a picnic table with its owner.

Telford says the attack was “totally out of character” for the dog that they had owned since she was a puppy and before that day she had never run away or bitten another animal or human. He had checked the security of the property where they’d moved only days earlier before letting Suki spend time in the yard, but the dog suffered from separation anxiety and escaped while the family were out. Telford said: -

“We’d just moved that week, and I think Suki ran away that day looking for us.”

Suki grabbed the small dog by the throat and latched on. As Charlie yelped, its owner and a bystander got Suki to let go, before she attacked again.

The bystander eventually locked Suki in a nearby public toilet and animal management took her.

Charlie needed an overnight stay at a veterinarian clinic followed by further treatment for multiple puncture wounds.

Telford, his partner, Erika Hiyama, and their six children rushed home when they heard what had happened.

They found Suki detained in the dog pound, something Telford says was a “horrible moment” knowing she was unlikely to get the healthcare she was dependent on while there.

Telford handed the animal controller all of Suki’s medication, including eye drops and anxiety pills, but was told that there was no staff resource to handle Suki’s care.

An animal control officer visited the Telford property to check it was suitable and Suki was released on “bail” where she remained throughout the court proceedings, only being allowed out under strict terms including that she was muzzled.

Pathway to court

After the attack, Telford was charged by the Auckland Council with being the owner of a dog that attacked a domestic animal. He admitted the charge, not thinking twice about pleading guilty – he said what happened was the truth.

In the District Court, Judge Terence Singh granted him a discharge without conviction because of his personal circumstances, in that the legal penalty for the attack, a $3000 fine, would be “out of all proportion to Telford’s offending”. Their hearts sank when the judge then made an order for Suki’s destruction.

“She’s been a big part of our family life.,” said Telford. “My mum flew up from Taranaki for the court case and just burst into tears.

Telford was encouraged to appeal and was successful in the High Court but it cost the family “thousands” they didn’t have.

“Financially we weren’t in a position to fight it, but we had to do it for Suki and the other dogs.”

In the High Court, Justice Sally Fitzgerald held that a conviction was a necessary precedent to making such an order and that the District Court did not have jurisdiction to order destruction. She declined to exercise the discretionary power available to make an order for destruction because she considered that public safety concerns did not require it.

After the appeal, Suki was taken off death row.

Trying to clarify the law

The Auckland Council then sought to challenge the High Court decision, hoping to “resolve the conflict that exists in the High Court case law”, since a section of the Act was amended in 2003.

The amendment in 2003 was the result of a major review promoted by public outrage over several serious dog attacks.

Since then, there have been five decisions by courts saying a conviction was a necessary precondition to an order for destruction and four that said it wasn’t.

The Auckland Council, like other territorial authorities around the country, is responsible for enforcing and bringing prosecutions under dog control laws but it could not challenge the High Court decision.

The only avenue available was for the Solicitor-General to refer a question of law to the Court of Appeal.

That hearing was not to determine whether Suki would live or die but to clarify a point of law around the wider issue related to orders for the destruction of dogs.

In a decision released this month, the Court of Appeal ruled that a conviction must be a precondition of a destruction order for prosecutions brought under a particular section of the Dog Control Act.

Suki’s Legacy

Telford told NZME that when he saw the Court of Appeal decision, he broke down.

Suki was put down last November after she became very unwell and a growth was found in her gut. She’d spent the day in the sun on a blanket with family, who all sat around her before she was taken to the vet.Telford said it’s been a harrowing time for not only them but for the owner of the other dog, who he says they did their best to assist, including paying vet bills. He sai: -

“We acknowledge there was a victim but I felt we did our best to make that right.”

The Court of Appeal said the case wasn’t straightforward, but they concluded that the legal arguments that hinged on the 2003 amendment were not sustainable. They said their answer “may be greeted with dismay by regulators”, but if so, the remedy lay with Parliament. They said the act should be clear and certain, but, the number of occasions it had come before the senior courts for interpretation suggested otherwise.

The Court of Appeal said the arguments advanced by counsel for the Solicitor-General had some force and they were sympathetic to them.

“We are conscious too of concerns that have been aired publicly in recent times about dog attacks posing a serious problem in several areas of New Zealand, including in urban settings.”

Telford believes the broad-brush approach to prosecution is unfair.

His partner, Erika Hiyama, says a lot of dog owners might not know that it doesn’t take much to trigger a prosecution.

“I understand when a dog is not well looked after and becomes a weapon because people create that, but when you have a family pet that’s made one mistake, they get put down and I think that’s horrific…They are loved members of a family and they don’t get a chance – one strike and they’re gone.”

The Auckland Council’s head of prosecutions, John Kang said the Court of Appeal decision would be relevant to some dog attack cases, but only if a judge was satisfied that the legal threshold for discharging a defendant without conviction was met, or if the defendant was acquitted.

He said that outside of any discretionary destruction orders made by a judge, in all other cases, the exceptional circumstances test for waiving a destruction order would continue to apply.

Kang said the Auckland Council would continue upholding its responsibilities to enforce laws related to dogs within the Auckland region, according to the Solicitor-General’s prosecution guidelines.

Main Source: NZ Herald

Full CA Decision HERE