Aspen the husky, a dog who was ordered destroyed after he killed two other pets on Auckland's North Shore in quick succession, has been denied a reprieve from a High Court judge.
Owners Alexandra and Graham Johnston appeared before Justice Edwin Wylie at the High Court in Auckland on Monday, arguing that their district court conviction in April was unjust and that their pet's life should be spared.
"The appeal against conviction must be dismissed," Justice Wylie responded in a 15-page written decision issued today. "The [North Shore District Court] judge did not err when she found both Mr and Mrs Johnston guilty of the offence."
Aspen first got in trouble for chasing chickens in August 2019, his owners said. Nine months later he was again off his lead near Waiake Beach in Torbay, when he killed a chicken at the same property where he had earlier chased chooks before running to a neighbouring property and killing a child's pet guinea pig named Bert.
"In making my decision I am acutely aware of the distress that an order for destruction will have on Mr and Mrs Johnston and their son," District Court Judge Jocelyn Munro said at the conclusion of the April trial. "Aspen is a much-loved member of their family.
"I acknowledge that distress, however I must apply the law, which is very clear."
She fined the Johnstons $750, ordered emotional harm payments of $150 to the other pet owners and - as required under the law unless there are "exceptional circumstances" - she ordered Aspen destroyed.
During her High Court appearance this week, Alexandra Johnston argued that the chicken owners are to blame because, she alleged, the chickens were illegally roaming outside the property when they caught Aspen's attention.
There's no direct evidence, she also argued, that her dog physically killed the other animals. She has argued previously that the guinea pig could have died of fright. There were no indications, she said Monday, that the animal suffered bite marks from her pet.
Justice Wylie dismissed both arguments.
"It seems that no one actually witnessed Aspen killing the chicken or the guinea
pig but he was seen with both animals in his mouth at different times," he wrote. "The inference that it was Aspen who killed the chicken and the guinea pig is irresistible. The [district court] judge cannot be criticised for drawing this inference."
The couple has also campaigned outside the judicial system to change the law in an effort to save Aspen. A petition filed to Parliament seeks for a law change to give judges more discretion when determining such matters. If attacks are not fatal or against a person, the petition suggests dogs be given three chances before resorting to euthanasia.
It is unfair to order a dog put down for chasing smaller animals, which is in their nature, when cats seem able to kill birds with impunity, they previously have argued.
"It has become bigger than our dog," Alexandra Johnston said in court on Monday. "It is an issue for all dog owners - they are being prosecuted for dogs being dogs.
"You are crucifying dogs that are good dogs."
Justice Wylie noted the petition but said it was "well beyond the scope of this appeal".