Tauranga City Council v Julian [2014] NZHC 2132 (3 September 2014)

Last Updated: 8 October 2014

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-470-12 [2014] NZHC 2132

BETWEEN	TAURANGA CITY COUNCIL Appellant
AND	TARA CHERIE JULIAN Respondent

Hearing:	3 September 2014
Counsel:	J J Rhodes for Appellant J H Higgins for Respondent
Judgment:	3 September 2014

_{ORAL JUDGMENT OF KATZ J}

Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga

Public Defence Service, Tauranga

TAURANGA CITY COUNCIL v JULIAN [2014] NZHC 2132 [3 September 2014]

Introduction

[1] Tara Julian and her partner Anthony Hedgman were both acquitted by Judge T R Ingram in the Tauranga District Court on charges under s 58 of the Dog Control Act 1996 (“Act”) of being the owner of a dog that caused serious injury to a person.¹ The Judge held that a statutory defence was available under s 5 of the Act.²

Section 5 sets out the obligations of dog owners and states that one of those obligations is to take all reasonable steps to ensure that his or her dog does not injure anyone. The Judge was satisfied that Ms Julian and Mr Hedgman had taken all such reasonable steps.

[2] The Tauranga City Council has been granted leave to appeal to this Court on two questions of law (albeit Cooper J noted when granting leave that whether the second question is a question of law will depend on how it is argued).³ The two questions are:

(a) Was the District Court Judge correct in holding there was a statutory defence in taking all reasonable steps to ensure the dog did not injure anybody?

(b) Did the District Court Judge correctly apply the common law defence of total absence of fault?

[3] Section 300(1)(b) of the Criminal Procedure Act 2011 provides that the Court may direct a new trial if an error of law has resulted in a miscarriage of justice. As Mr Rhodes noted, this applies equally to an acquittal as to a conviction. The Council sought a direction for a new trial accordingly.

Background

[4] Ms Julian and Mr Hedgman were charged under s 58 of the Act following an attack on a four year old boy by a 65kg bull mastiff dog named Big. Section 58

_states:

¹ _{Tauranga City Council v Hedgman & Anor DC Tauranga CRI-2013-070-002946, 4 March 2014.}

² _{At [7].}

³ Pursuant to s 296 of the Criminal Procedure Act 2011.

58 Dogs causing serious injury

The owner of any dog that attacks any person or any protected wildlife and causes –

(a) Serious injury to any person; ...

...

commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or a fine not exceeding $20,000, or both, and the Court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify destruction.

[5] Ms Julian and Mr Hedgman are the owners of Big and they accept that Big caused serious injury to the victim. The only question at trial was therefore whether they had any defence to the charge they faced under s 58 of the Act.

[6] The circumstances in which the attack occurred do not appear to be the subject of any significant dispute. On 12 July 2013 Mr Hedgman was at work and Ms Julian was at home. At around midday a friend of Ms Julian’s came to visit with her two children, aged eight and four. When the friend arrived, Ms Julian was out running errands. Her flatmate, Luke Woodward, let the visitor and her children into the house and placed Big in the conservatory. After Ms Julian arrived home Mr Woodward let Big out into the backyard to chew on a bone.

[7] After Ms Julian arrived home the children said they would head into the backyard to play. Ms Julian said that she would find out where Big was first, but the friend said something along the lines that the children would be okay.

[8] Three adults were outside at the time - Mr Woodward, another flatmate, Candice Edwards, and one of Ms Edwards’ friends. The latter two were sitting on the deck and Mr Woodward was somewhere out the back having a cigarette. Both the flatmates had lived with Ms Julian and Mr Hedgman for a number of years and were familiar with Big.

[9] When the children went outside the older sibling was initially running around and shrieking. Ms Edwards spoke to her and told her to stop because the shrieking could possibly annoy the dog. Ms Edwards turned away and moments later the

younger sibling was bitten by Big. It appears that he approached Big as he chewed on his bone. None of the adults actually saw the attack, but from the photographs provided to the Court it is clear that the attack was serious. The child suffered a deep cut to the cheek and lip, which required stitches. Approximately five to seven minutes had passed from the time that Ms Julian arrived home to the time of the attack.

District Court decision

[10] The Judge dismissed the charges against Ms Julian and Mr Hedgman. He considered that a statutory defence was afforded by s 5 of the Act.

[11] Dealing with Mr Hedgman first, the Judge found that he had a defence because he was at work at the time of the incident. When he left the house in the morning he had left the dog contained in the house. He did not know that a friend of Ms Julian’s would be visiting that day with her children. The dismissal of the charge against Mr Hedgman has not been appealed.

[12] The Judge also found that Ms Julian had taken all reasonable steps to ensure that Big did not injure anyone. He rejected a submission by the Council that a specific direction was required from Ms Julian to the adults who were outside to actively supervise or control the dog. He said:

[14] Put another way, it seems to me entirely reasonable for a dog owner to trust other adults who live in the same house as the dog owners and who are thoroughly familiar with the dog. It is perfectly permissible in my view for owners to trust those other adults who themselves probably fall within the statutory definition of an owner of a dog in any event if they are exercising any control over the animal.

[15] It seems to me that a direct instruction that the other adults supervise the children and the dog is not required as a matter of law unless there is some evidence or some basis upon which the owners ought to have known that that particular dog represents a risk to the child. In the case of a dog with no prior history of any kind of attacks ... it seems to be me to be reasonable for the owner of a dog to assume that at least inside a secure area which the dog is familiar with and in respect of which the adults who live with the dog and interact with the dog are present and capable of watching and exercising some kind of oversight, it is enough in my view for the owner of the dog to rely on the implicit understanding that adults will supervise children in those circumstances.

[13] The Judge observed that this was an event that nobody could have foreseen. By all accounts Big had a docile nature, although he was excitable at times. Big had spent a large amount of time with Ms Julian and Mr Hedgman’s own young children. There was no history of attacks or aggressive behaviour. At the time of the attack there were three adults in the backyard, two of whom were very familiar with the dog and had lived with him for a long time. In all of the circumstances the Judge was satisfied that Ms Julian had taken all reasonable steps to ensure that Big did not injure anyone. The statutory defence which the Judge had determined was provided by s 5 was accordingly made out.

Question 1: Did the Judge err in holding that s 5 of the Act provided a statutory defence to a charge under s 58?

[14] Before considering whether s 5 provides a statutory defence to a charge under s 58 it is necessary to consider the nature of the offence set out in s 58.

[15] Courtney J in Mackenzie v Auckland City Council considered s 58 to be a strict liability offence with a defence of absence of fault.⁴ She considered this defence took the form described by Baragwanath J as applied to the materially similar s 57 in Hamilton City Council v Fairweather that:⁵

An owner is automatically liable for a dog attack if the dog is not under control. But if the dog attacks while it is under control, no offence is committed.

[16] Heath J disagreed with that interpretation of the defence to s 57 in King v

South Waikato District Council:⁶

[26] With respect to Baragwanath J, I conclude that the “control” test that he enunciated in Fairweather does not meet the purposes of the statute. I prefer an approach based on strict liability. This would require an owner to establish a total absence of fault defence, of the type discussed in Civil Aviation Department v MacKenzie and Miller v Ministry of Transport, to be absolved from liability. I decline to follow Fairweather.

_{(Footnotes omitted)}

⁴ _{Mackenzie v Auckland City Council HC Auckland CRI-2006-404-343, 15 December 2006.}

⁵ _{Hamilton City Council v Fairweather [2002] NZAR 477 (HC) at [6].}

⁶ King v South Waikato District Council [2012] NZHC 2264 at [26]..

[17] Heath J noted that Baragwanath J’s approach has the effect of imposing liability on the registered owner in the situation where a dog attacks when someone other than the registered owner is responsible for controlling the dog’s behaviour at the time the attack occurs.⁷

[18] In my view Heath J’s interpretation of the defence to s 57 applies equally to s 58. The offence is one of strict liability, but as with other strict liability offences a common law defence of total absence of fault is available in the absence of any statutory indication to the contrary. This is particularly important given the relatively serious maximum penalty for the offence (three years’ imprisonment).

[19] The Judge did not, however, rely on a common law defence of total absence of fault. He held that s 5(1)(f) of the Act afforded a statutory defence to a charge under s 58. Section 5 is headed “obligations of dog owners” and sets out a list of obligations imposed on dog owners by the Act, as follows:

5 Obligations of dog owner

(1) The obligations imposed on dog owners by this Act require every owner of a dog—

(a) to ensure that the dog is registered in accordance with this Act, and that all relevant territorial authorities are promptly notified of any change of address or ownership of the dog:⁸

(b) to ensure that the dog is kept under control at all times:⁹

(c) to ensure that the dog receives proper care and attention and is supplied with proper and sufficient food, water and shelter:¹⁰

(d) to ensure that the dog receives adequate exercise:¹¹

(e) to take all reasonable steps to ensure that the dog does not cause a nuisance to any other person, whether by persistent and loud barking or howling or by any other means:¹²

⁷ _{At [31].}

⁸ _{Sections 34-51.}

⁹ _{Section 53.}

¹⁰ _{Section 54.}

¹¹ _{Section 54.}

¹² Section 55.

(f) to take all reasonable steps to ensure that the dog does not injure, endanger, intimidate, or otherwise cause distress to any person:¹³

(g) to take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife:¹⁴

(h) to take all reasonable steps to ensure that the dog does not damage or endanger any property belonging to any other person:¹⁵

(i) to comply with the requirements of this Act and of all regulations and bylaws made under this Act.

[20] Section 5 appears to essentially be a summary of the subsequent operative provisions of the Act. Each subsection can be cross-referenced to subsequent operative sections of the Act that impose the particular obligation referred to or summarised in s 5. (I have footnoted the relevant operative sections for ease of reference.)

[21] The relevant subsection in this case is s 5(1)(f) which sets out the obligation “to take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal or protected wildlife”. The operative provision that s 5 summarises is s 58. However, unlike s 58, s 5 refers to a requirement “to take all reasonable steps” to prevent injury. Section 58 is not so qualified.

[22] It is clear from the statute, when viewed as a whole, that s 5 is not intended to provide specific statutory defences in respect of any of the operative provisions. For example, s 58 is not expressed as being “subject to” s 5. As I have noted above, however, a defence of total absence of fault is available at common law.¹⁶ In my view, the wording of s 5(1)(f) recognises and is consistent with this, although it does

_{not expressly provide a separate statutory defence.}

¹³ _{Sections 58}

¹⁴ _{Section 57.}

¹⁵ _{Section 57A.}

¹⁶ Crimes Act 1961, s 20(1) provides that all rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any change, shall remain in force and apply in respect of a charge of any offence, whether under the Crimes Act or any other enactment (unless inconsistent with the relevant enactment).

[23] In my view the Judge did err in finding that s 5(1)(f) of the Act provided a specific statutory defence to s 58. Indeed, it was common ground on appeal that such an error was made. The error was relatively minor, however, and did not in itself give rise to any miscarriage of justice. That is because the common law defence of total absence of fault was available and s 5(1)(f) reflects this. The scope of the common law defence (which both parties accepted existed) is essentially the same as the “statutory defence” described by the Judge.

Question 2: Did the District Court Judge correctly apply the common law defence of total absence of fault?

[24] The Council submitted that in light of King and the approach in MacKenzie a total absence of fault defence could not be established on the particular the facts of this case. That is because Ms Julian had not done everything reasonably possible to ensure that those with temporary responsibility for the care of Big were in a position to take appropriate steps to exercise control. The Council submitted that Ms Julian should have expressly requested Mr Woodward or Ms Edwards to actively supervise or control the dog while the children were outside. Her failure to do so means she was not totally absent of fault.

[25] The Council submitted that there was an apparent reversal of the burden of proof in [13] to [16] of the District Court judgment. In my view, however, although there is possibly some loose wording, the Judge’s comments at [11] and [17] make it clear that he approached the case on the basis that the onus was on the defence to prove total absence of fault. It is also clear from a review of the Judge’s decision as a whole that he was satisfied that Ms Julian had discharged the onus on her of showing that all reasonable steps were taken. I note that Ms Julian and Mr Hedgman both gave evidence and also called their flatmates to give evidence in their defence.

[26] The Council further submitted that the Judge did not refer to the standard of proof required by King and MacKenzie and applied a subjective test of what was foreseeable to Ms Julian. Again, I do not consider there is anything of particular substance in that argument. Judge Ingram concluded in the following manner:

[17] For those reasons I accept that the defence have established that all reasonable steps were taken by the owners of the dog to prevent the injury of

the child. The fact that the child has been injured is not the test of whether or not it is reasonable, that is a test of hindsight. In my view the word “reasonable” implies some measure of foresight and I can see no hint, whisper or suggestion anywhere in any of the evidence before me that either of these owners should have foreseen the events which occurred.

(emphasis added)

[27] Considering the Judge’s comments in the round (and in the context of the rest of his judgment) I am not persuaded that he made any material error of law. He was clearly satisfied that, viewed objectively, Ms Julian was not at fault for not expressly directing the adults outside to look out for the children. He took into account that two of the adults knew the dog well, having flatted with Ms Julian for a number of years. He clearly viewed it as artificial in such circumstances to require Ms Julian to expressly request the adults outside to supervise the dog in the presence of the children. This was particularly so in circumstances where the dog had no history of aggressive or anti-social behaviour. I have not been persuaded that the Judge made any material errors in relation to either the burden or standard of proof.

[28] As Cooper J observed when granting leave to appeal, the second appeal question potentially raises factual as well as legal issues. Mr Rhodes was at pains to disavow any intention that this Court effectively embark on a full merits based review of the Judge’s decision. Nevertheless the Council’s arguments did stray significantly into factual areas. Mr Rhodes submitted this was permissible on the basis that the Judge’s decision was unreasonable, as lacking any evidential basis. The evidence before the Judge was said to be unable to support the conclusions he had reached.

[29] I have concluded that there was no material error of law in the Judge’s application of the total absence of fault defence. It is therefore not appropriate for me to embark on a reassessment of the merits of the case, or to express my own views regarding the facts. I am satisfied that there was a proper evidential basis on which it was open to the Judge to conclude that there was a total absence of fault on the part of Ms Julian. The Judge did not make a decision that lacked any evidential foundation.

Result

[30] I have concluded that the Judge made an error of law in finding that s 5(1)(f) of the Act afforded a statutory defence to a charge under s 58. No miscarriage of justice occurred, however, because the common law defence of total absence of fault was available and was essentially in the same terms as the statutory defence described by the Judge. I have further concluded that the Judge did not err in his application of the common law defence of total absence of fault.

_{[31] The appeal is dismissed.}

Katz J