Epiha v Tauranga City Council [2017] NZCA 511 (13 November 2017)

Last Updated: 23 November 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA293/2017 [2017] NZCA 511
BETWEEN	NICHOLAS EPIHA Applicant
AND	TAURANGA CITY COUNCIL Respondent

Court:	Gilbert, Lang and Ellis JJ
Counsel:	Applicant in person A A Hopkinson and V C Brewer for Respondent
Judgment: (On the papers)	13 November 2017 at 2.30 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
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REASONS OF THE COURT

(Given by Gilbert J)

[1] The applicant, Nicholas Epiha, was convicted of an offence against s 57(2) of the Dog Control Act 1996 (the Act), as the owner of a dog that attacked a community nurse during a scheduled visit to his property.^[1] Mr Epiha had left the dog tethered by a four-metre-long leash enabling it to roam across the full width of the driveway which the nurse was expected to use to gain access. After the nurse had walked past the dog, it bit her on her leg causing a wound requiring five stitches. Mr Epiha was fined $250, ordered to pay $200 to the victim for emotional harm and $130 court costs.^[2] An order was also made for the destruction of the dog. Although this order was not implemented pending appeal, the dog has since had to be euthanised because of its ill-health.
[2] Mr Epiha appealed against conviction to the High Court arguing that s 57(2) of the Act is not an offence involving strict liability. This appeal was dismissed by Woodhouse J on 12 May 2017.^[3]
[3] Mr Epiha seeks leave to bring a second appeal on the same ground.
[4] The leave application is governed by s 253 of the Criminal Procedure Act 2011. The court must not grant leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice has occurred or may occur unless the appeal is heard.
[5] Section 57 of the Act relevantly reads:

57 Dogs attacking persons or animals

(1) A person may, for the purpose of stopping an attack, seize or destroy a dog if—

(a) the person is attacked by the dog; or

(b) the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.

(2) The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding $3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

...

[6] We agree with Woodhouse J that an offence under s 57(2) of the Act is one of strict liability.^[4] As he observed, the High Court has consistently followed this approach with respect to the offences in ss 57 and 58 of the Act.^[5] Apart from one decision concluding that the offence imposed absolute liability,^[6] it seems the strict liability analysis extends back at least as far as 1984 (in the context of the former legislation).^[7]
[7] We consider that this long-standing approach is clearly correct. This is a classic public welfare offence directed at protecting the public interest.^[8] There is no express mens rea element in the section. Once the prosecution has proved that the defendant is the owner of the dog that has attacked a person, the onus shifts to the defendant to prove total absence of fault on the balance of probabilities.
[8] The courts below applied well settled law to the accepted facts. The proposed appeal does not raise any matter of general or public importance justifying a second appeal. Nor is there any indication that justice has miscarried. The application is accordingly declined.

Solicitors:
Cooney Lees Morgan, Tauranga for Respondent

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^[1] Tauranga City Council v Epiha [2017] NZDC 4443.

^[2] Tauranga City Council v Epiha [2017] NZDC 4273.

^[3] Epiha v Tauranga City Council [2017] NZHC 979.

^[4] At [14].

^[5] At [5]. See, for example: Walker v Nelson City Council [2017] NZHC 750 at [21]; Tauranga City Council v Julian [2014] NZHC 2132, [2014] NZAR 1322 at [18]; Turner v South Taranaki District Council [2013] NZHC 1603, [2013] NZAR 1046 at [13]; King v South Waikato District Council [2012] NZHC 2264, [2012] NZAR 837 at [26]; Namana v Masterton District Council [2010] NZAR 182 (HC) at [16]; Simpson v Kawerau District Council [2005] NZAR 529 (HC) at [28].

^[6] Hamilton City Council v Fairweather [2002] NZAR 477 (HC).

^[7] Campbell v Police HC Christchurch M414/84, 5 September 1984. This judgment interpreted s 56(4) of the Dog Control and Hydatids Act 1982 which was in materially the same terms as s 57 in the current Act.

^[8] Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) at 84.