A Hastings man has been charged after his Labrador bit a stranger who touched its nose protruding from under his closed front gate in what a court heard could have massive ramifications for all dog owners.
The 5-year-old dog, which was taken by council's dog control officers, was also destroyed with the family's consent after five months of continued impoundment.
Des Hughes, 41, was prosecuted by Hastings District Council after his family Labrador, Franklin, bit a member of the public who was unknown to the family.
The 51-year-old male victim had the tip of his left thumb bitten off in the incident.
The dog had only its nose jutting out from under the gate, which was set back from the footpath, when the bite occurred on May 31, 2011.
Mr Hughes appeared in Hastings District Court yesterday to continue to defend a charge of owning a dog that attacked, causing serious injury.
A hearing part-heard in November last year was adjourned for both parties to argue whether the Labrador was deemed "under control" at the time of the incident.
Mr Hughes told Hawke's Bay Today he agreed to euthanise the dog as it was going mad in the pound.
"It wasn't fair on Franklin," Mr Hughes said. "We walked him as often as we could but every time we walked him he thought he was coming home. It was heartbreaking. The court case was dragging on so it was the only option we had."
Mr Hughes' lawyer, Karl Sandbrook, yesterday told the court his client had taken all steps possible to keep the dog under control.
"He couldn't reasonably be expected to take the drastic measures of those who own more menacing or threatening breeds," Mr Sandbrook said.
He claimed there were many dogs in the community which, even when fully fenced in their owners' properties, could still get their heads over, through or under gates. "Just because he could get his nose and paws under a gate, it doesn't mean he was not under control."
The dog has been grabbed by the stranger and shoved forcibly before biting, he said. "The nature of the wounds suggested the attack was a "defensive snap, not a mauling".
Judge Geoff Rea claimed that was "speculation" as there had been no evidence to support it.
Mr Sandbrook added the case had huge ramifications for dog owners across the country.
Judge Rea described the remark as a "quite inappropriate submission".
"I'm not setting up a charter on how people are supposed to be looking after their dogs." Earlier case law suggested even dogs on a leash had been deemed by the court to be not in control, after attacking members of the public, the judge said.
Council's lawyer, Mark von Dadelszen, said although the gate was set back from the street, the public, including two nearby primary schools, had access to that part of the property without having to pass through a gate or fence.
He claimed Mr Hughes knew of the gap under the gate.
"The dog was not under control as it was able to bite ... the defendant did not take all reasonable steps to ensure the dog was under control," Mr Von Dadelszen said.
Mr Sandbrook responded such high thresholds were unrealistic and "entirely onerous on dog owners".
Judge Rea said he would deliver a written decision in the coming weeks.
The charge has a maximum penalty of three months imprisonment or a $20,000 fine.