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Van Delden v Waitaki District Council [2021] NZHC 2264 (31 August 2021)
Last Updated: 30 September 2021
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
|
CRI-2021-476-3 [2021] NZHC 2264
|
BETWEEN
|
RINAE VAN DELDEN
Appellant
|
AND
|
WAITAKI DISTRICT COUNCIL
Respondent
|
Hearing:
|
29 July 2021
|
Appearances:
|
K M Henry for Appellant
B K Coleman and E L Middlemass for Respondent
|
Judgment:
|
31 August 2021
|
JUDGMENT OF OSBORNE J
This judgment was
delivered by me on 31 August 2021 at 4.00 pm
Registrar/Deputy Registrar Date:
VAN DELDEN v WAITAKI DISTRICT COUNCIL [2021] NZHC 2264 [31
August 2021]
Introduction
- [1] Rinae
van Delden was charged under s 57(1) and 57(2) Dog Control Act 1996 (the Act)
with being the owner of a dog that attacked
a domestic animal.1 The
charge was dismissed under s 147 Criminal Procedure Act 2011 (CPA) because the
Judge considered there was no evidence that Ms
van Delden was the
“owner”2 of the dog (Section 147
Judgment).3 Subsequently, an order for
destruction of the dog was made under s 57(3) of the Act by Judge Large
(Destruction order
judgment).4
- [2] Ms van
Delden appeals against that order on the basis that the Judge did not have
jurisdiction to reopen the proceeding following
the dismissal of the charge or
to make an order when the elements of the offence under s 57(2) of the Act had
not been established.
Alternatively, if the Court does not uphold these
jurisdictional arguments, it is submitted there are exceptional circumstances
that
mean an order for destruction was not warranted.
Destruction orders under the Dog Control Act
- [3] Section
57(1)–(3) of the Act provides for the prosecution of owners of dogs which
attack people or animals and for orders
for the destruction of such
dogs:
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.
1 Dog Control Act 1996, s 57(1) and s 57(2). Maximum
penalty of a fine not exceeding $3,000 in addition to any liability that they
may
incur for any damage caused by the attack.
2 Defined by Dog Control Act, s 2.
3 Waitaki District Council v van Delden [2021] NZDC 4886
[Section 147 judgment].
4 Waitaki District Council v van Delden [2021] NZDC 10019
[Destruction order judgment]. See also ruling that the Council’s
application could proceed: Waitaki District Council v van Delden [2021]
NZDC 9998 [Jurisdiction ruling].
(3) If, in any proceedings under subsection (2), the court is satisfied that
the dog has committed an attack described in subsection
(1) and that the dog has
not been destroyed, the court must make an order for the destruction of the dog
unless it is satisfied that
the circumstances of the offence were exceptional
and do not warrant destruction of the dog.
Factual background
The prosecution
- [4] On 23
October 2019 a dog, Jock, attacked a smaller dog (Prince). The smaller dog died
later that day. Both parties accept this
attack took
place.
- [5] By a
charging document, the Waitaki District Council (the Council) charged Ms van
Delden with an offence under s 57(1)–(2)
of the Act. Ms van Delden pleaded
not guilty.
- [6] At the
hearing, the Council led evidence relating to the circumstances and details of
the attack, as well as the ownership of
Jock. Judge Large recorded in the
Section 147 judgment:5
[3] There is no dispute that
there was an attack on a small dog, Prince, by a larger dog, Jock. That was
clear from all the evidence
and the attack by Jock was clearly a vicious one
with fatal consequences for Prince.
- [7] It appears
that the background to the attack is that Jock was outside the property he had
been living at. There is some suggestion
this was because of a broken fence, but
this was not determined at any hearing. Ultimately, Jock entered a neighbouring
property.
As he was running out of the property Prince allegedly followed him.
Jock then allegedly contacted Prince in a manner that sent the
smaller dog
flying. Jock is then said to have picked Prince up in his mouth for a manner of
minutes and may have shaken his head
from side to side. Judge Large formed the
impression from the evidence that Jock had “rag-dolled”
Prince.6
5 Section 147 judgment, above n 3.
6 Destruction order judgment, above n 4, at [5].
- [8] At the
conclusion of the prosecution case, the Judge dismissed the charge.7
The Judge found the Council had not proved that Ms van Delden was the
“owner” of Jock, as required by s 57(2) of the
Act.8
“Owner” is defined in s 2 of the Act, with an extended
definition including by reference to possession.
- [9] Judge Large
rejected the Council’s argument that Ms van Delden was at least one of
Jock’s owners, having regard to
the fact she went to the scene of the
attack to retrieve Jock.9 The Judge found as a fact that Jock was in
the possession of Ms van Delden’s
husband.10
- [10] In the
further hearing which occurred to consider the Council’s application for a
destruction order, Mr van Delden was
called as a witness by Ms Henry (counsel
for Ms van Delden) and gave evidence as to being Jock’s owner. The Judge
accepted
that evidence.11
Application
for Jock’s destruction
- [11] After the
hearing had concluded with the dismissal of the charge, the prosecutor requested
to see the Judge in court for chambers.
The Judge saw the prosecutor and Ms
Henry, although Ms van Delden herself had left court.
- [12] In the
course of the directions then issued, Judge Large suggested to the prosecutor
that the Court may have no jurisdiction
to consider a destruction order, being
functus officio. He observed that “the proceedings had been
determined, dismissed and hearing concluded”.12 Judge Large
ruled that he would not be prepared to make an order for destruction that day
both because the hearing had concluded and,
having regard to the matters for
consideration under s 57(3) of the Act, natural justice required the provision
of an opportunity
for the defendant to engage with s 57(3).13 The
Judge made timetable directions for an application for a destruction order,
with
7 Section 147 judgment, above n 3, at [18].
8 At [13]–[17].
9 At [16]–[17].
10 At [16].
11 Destruction order judgment, above n 4, at [14]–[15].
12 Waitaki District Council v van Delden DC Oamaru
CRI-2020-045-000027, 12 March 2021 at [11].
13 At [15].
any argument as to the Court’s jurisdiction to be heard prior to the
determination of that order.
- [13] On 21 May
2021, Judge Large heard argument as to whether the District Court retained
jurisdiction to consider an application
for Jock’s destruction,
notwithstanding the dismissal of the charge against Ms van
Delden.
- [14] In the
Judge’s jurisdiction ruling that day, his Honour summarised the arguments
and the outcome:14
- [7] The issue is
whether or not I can, in Ms Henry’s words, reopen the proceeding. Mr
Coleman would say that this issue can
be readdressed in terms of r 1.6 by
applying the errors and omissions rule. Ms Henry says that is not appropriate in
the circumstances
because that is more about clerical errors and the
like.
- [8] The reality
is, as I said at the time, had the application been made prior to my formal
dismissal pursuant to s 147, I would have
made the order, because Jock clearly
killed Prince, and that is a real concern.
- [9] Mr Coleman
is correct in that there does not have to be a conviction as a precondition; he
relies on the authority of Ingle v Auckland Council. Section 57(3)
provides that if there has been an attack (and in this case, there was) and the
dog has not already been destroyed
(and in this case, it has not), then an order
must be made in the course of enforcement proceedings under s 57(2) unless the
circumstances
of the offence or attack are exceptional.
- [10] In my view,
the order for destruction was a live issue and should have been considered, and
I do not see that Ms Van Delden will
be prejudiced in any way by my allowing the
application by the Council to proceed.
- [11] Ms Henry is
in a position to call evidence as to whether or not there are exceptional
circumstances, and there would be the opportunity
today at
2.15 pm
for that to occur.
- [15] Accordingly,
the substance of the Council’s destruction application was to be
heard.
14 Jurisdiction ruling, above n 4 (footnotes omitted).
Substantive hearing
of the destruction application
- [16] Judge Large
summarised the additional evidence in the Destruction order
judgment:15
- [3] Ms Henry
called evidence, that was of Mr van Delden, who gave evidence that the dog was
his, he having inherited it from his mother.
He said in his evidence that when
he left for work in the morning the dog was inside at home and the property had
been secured by
a six foot high fence surrounding the 1700 square metre section
and there had been a 2.4 metre dog run and he used the word, relating
to the
property, that the house had a “fortress
front”.
- [4] Unfortunately
the dog did get out and was involved in an incident with a smaller dog next
door, that dog being Prince.
- [5] When I heard
the case on 12 March I made the following comments:
At the time Mrs van Delden arrived on the scene of the
dogs’ involvement with each other clearly the attack had started and
was
causing injury, damage and distress, but not necessarily all of those to the
deceased dog, Prince.
- [6] I do not
doubt that there was a great deal of distress to Prince’s owner, who gave
evidence before me that on that day.
- [7] I recall,
although I did not note it at the time, that there was independent evidence from
a neighbour down the street who had
seen Jock with the smaller dog, Prince, in
his mouth and was shaking his head from side to side. I do not recall whether
the witness
specifically used the word “rag- dolled” but that was
the impression I got from her description of Prince being in Jock’s
mouth.
- [8] There is no
doubt that Prince’s death was caused by Jock. The issue raised by Mr van
Delden was that, firstly, the property
was secure, Jock was secure, and he
invites me to draw the inference that Prince had attacked Jock, hence there were
the small bite
marks shown on Jock’s nose in photograph 5 in the bundle
produced at the hearing.
- [9] It appears
to me when I look at photograph 5 that there are certainly some small red marks
but there do not appear from my observation
to be the number referred to by Mr
van Delden because two of those marks appear to be black freckles or the
like.
- [10] Be that as
it may, there is clearly some injury, albeit slight, to Jock, which Mr van
Delden says was not apparent when he left
for work that
morning.
- [17] Judge Large
then summarised the submissions of the prosecutor and of Ms
Henry.
15 Destruction order judgment, above n 4.
- [18] The focus
of the submissions was upon s 57(1)–(3) of the Act which I have set out at
[3] above.
- [19] Ms Henry
argued in the District Court that, for a destruction order to be made under s
57(3) of the Act, there must first have
been a conviction of an offence. Given
the dismissal of the charge, there was accordingly no offence established, with
the consequence
that there could not be a destruction
order.
- [20] The
prosecutor rejected the proposition that, absent a conviction for an offence
under s 57(2) of the Act, a destruction order
under s 57(3) may not be made. He
drew attention to the distinction under s 57 between the physical actions
involved in an “attack”
made by a dog and the “offence”
which the owner of an (attacking) dog commits.
- [21] Judge Large
preferred the prosecutor’s argument, finding that a conviction of an
offence is not a prerequisite to a destruction
order.16 The Judge
went on to find that there had effectively been an offence committed because of
Mr van Delden’s evidence that he was
Jock’s
owner.17
- [22] The Judge
also found that the circumstances outlined by Mr van Delden were not
“exceptional”.18
- [23] Judge Large
accordingly made an order for Jock’s destruction but stayed the order to
enable an appeal to be pursued.19
Law
Section
57 Dog Control Act
- [24] I have set
out above at [3] the relevant provisions of s 57 of the
Act.
16 At [14].
17 At [14].
18 At [15].
19 At [16]–[19].
Rule 1.6 Criminal
Procedure Rules: the slip-rule
- [25] As counsel
in their submissions have referred to the provisions of r 1.6 Criminal Procedure
Rules 2012 (CPR) (which allows for
correction of accidental slips or omissions)
I set this out below:
1.6 Correction of accidental slip or omission
(1) This rule applies if—
(a) any judgment or order, or the reasons for any judgment or
order, contain a clerical mistake or an error arising from any accidental
slip
or omission (whether the mistake, error, slip, or omission was made by an
officer of the court or not); or
(b) any judgment or order is so drawn up as not to express what
was actually decided and intended.
(2) The court or a Registrar may correct the judgment or order,
or the reasons for the judgment or order,—
(a) on the court’s or Registrar’s own initiative;
or
(b) on an application made for that purpose.
(3) A Registrar may correct the judgment or order, or the
reasons for the judgment or order, in accordance with subclause (2)
only if the judgment or order in question was made by the Registrar.
Section
180 Criminal Procedure Act 2011: Correction of an erroneous sentence
- [26] Counsel in
their submissions did not refer to s 180 CPA. Section 180 CPA applies (among
other situations) when a court does not
impose a sentence (defined to include an
order) that is required by law to be imposed. The section provides (emphasis
added in relation
to the present issue):
180 Court may correct erroneous sentence
(1) If any sentence is one that could not by law be imposed, or
if the court does not impose a sentence that is required by law to be
imposed, the court may impose a new sentence—
(a) on the application of either of the parties or, as
provided in section 181, the chief executive of the Department of Corrections;
or
(b) on its own motion.
(2) The decision of the court may be made,—
(a) if sentence was imposed in the High Court, by the High Court Judge who
imposed the sentence or, if that Judge is not available,
by any High Court
Judge; or
(b) if sentence was imposed in the District
Court,—
(i) by the District Court Judge who imposed the sentence;
or
(ii) by any District Court Judge if the Judge who imposed the
sentence is not available or the sentence was imposed by 1 or more Community
Magistrates or Justices.
(3) The court may, by order, remove the matter into the first
appeal court described in section 297, and that court may deal with
it as if it
were an appeal on a question of law under section 296.
(4) In this section, the term sentence
includes—
(a) an order, and references to the imposition of a sentence
include references to the making of an order:
(b) a record of first warning (within the meaning of section 86A
of the Sentencing Act 2002) and a record of final warning (within
the meaning of
that section), and references to the imposition of a sentence include references
to the giving and recording of a
warning of either kind.
- [27] The Court
of Appeal in Joe v R considered the application of both the slip rule (in
that case the equivalent slip rule in r 45B Court of Appeal (Criminal) Rules
2001) and s 180 CPA.20 The Court of Appeal
found the slip rule to permit it to correct an error, arising from an accidental
slip or omission, when transposing
a jury’s verdicts on the Crown charge
list.21 The Court of Appeal found, however, that a second
error
— imposing sentences in excess of a statutory maximum — was a matter
which would alter the substance of the decision
and fell to be corrected under s
180 CPA by the sentencing court.22
Principles on appeal
- [28] The
notice of appeal invoked provisions of the CPA that relate to appeals against
conviction or sentence. Ms van Delden has not
been convicted of an
offence
20 Joe v R [2020] NZCA 154.
21 At [20].
22 At [21].
under s 57(2) Dog Control Act so this cannot proceed as an appeal against
sentence or conviction.23
- [29] The
appropriate appeal route is therefore the general right of appeal conferred by s
124 District Court Act 2016.24 On such an appeal, Ms van Delden is
entitled to judgment in accordance with the opinion of this
Court.25
Grounds of appeal
- [30] Ms
Henry succinctly identified the grounds of appeal in the notice of
appeal:
(a) there was no jurisdiction to re-open the proceeding
following the dismissal under s 147 CPA;
(b) there was no jurisdiction to make an order for destruction
as no “offence” had been committed under s 57(2) of the
Act; and
(c) if there were jurisdiction to reopen the matter and make
such an order (in the absence of an offence), in this case the circumstances
of
the offence were exceptional and did not warrant destruction of the dog under s
57(3), and the order for destruction was accordingly
made in error.
Issue 1: the “re-opening” of the proceeding
Submissions
- [31] Ms Henry
noted that the proceeding had been (finally) disposed of when Judge Large
dismissed the charge — the dismissal
under s 147(6) CPA meant that Ms van
Delden was deemed acquitted on the charge.
23 Criminal Procedure Act 2011, ss 229 and 244.
24 Auckland Council v Hill [2018] NZHC 3315.
25 Austin, Nichols & Co Inc v Stichting Lodestar [2007]
NZSC 103, [2008] 2 NZLR 141 at [16].
- [32] Ms Henry
submitted that Judge Large was therefore correct in his initial view (during the
12 March 2021 chambers discussion)
that the Court was functus officio
(or, alternatively stated, the principle of finality in litigation
applied).26
- [33] Ms Henry
noted that, when the Judge subsequently considered the issue of jurisdiction on
21 May 2021, his Honour said the order
for destruction should have been raised
and that Ms van Delden would not be prejudiced by allowing the application to
proceed.27
- [34] Ms Henry
submitted the fact that an order for destruction should have been considered did
not empower the District Court to revisit
a matter which had been disposed of.
She submitted that the hearing of further evidence and submissions, and the
subsequent making
of an order for destruction, went beyond the limits of the
slip rule contained in r 1.6 CPR (as set out above at
[25]).
- [35] Ms Henry
submitted that, as the District Court was without jurisdiction to make the
destruction order following the s 147 discharge,
the only avenue open to the
prosecutor at that point was to appeal.
- [36] Mr Coleman,
for the respondent, rejected the proposition that the proceeding was
“reopened”. In his submission, r
1.6 CPR allows any judgment or
order containing an error arising from an omission to be corrected. Mr Coleman
observed that here
the Judge simply omitted to make an order for destruction
under s 57(3) of the Act, as the court is required to do when a qualifying
attack is proved (s 57(3) imposing on the court a directive to make an order for
destruction unless exceptional circumstances exist).
Mr Coleman submitted that r
1.6 CPR exists specifically for situations like this so the court can amend and
correct its decision,
whether in response to an application to do so or on its
own initiative. He said there is an analogy in the District Court, when
a judge
mistakenly omits to make an order as to not holding or obtaining a drivers
licence following a defendant’s conviction
for excess breath alcohol. He
said (anecdotally) that this is often corrected under r
1.6.28
26 Citing Commissioner of Inland Revenue v
Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at
[28].
27 Jurisdiction ruling, above n 4, at [10].
28 See Land Transport Act 1998, s 56(3)(b).
Discussion
- [37] Ms Henry
was correct in her submission that CPR 1.6 does not provide a court with
jurisdiction to correct a slip or omission
that would alter the substance of a
decision. The Court of Appeal’s decision in Joe v R is authority on
that point.29
- [38] On the
other hand, the statutory jurisdiction provided under s 180 CPA to correct an
erroneous sentence would clearly apply in
this case if a destruction order was
not made under s 57(3) Dog Control Act when it was required by law. (Whether
such a requirement
existed is discussed at
[51]–[69]).
- [39] The purpose
of s 180 CPA is self-evident — if the legislature has by statute made
mandatory the imposition of a particular
sentence or order in given
circumstances, but the sentencing court has not imposed that sentence or order,
a party to the proceeding
may bring the matter back before the Court for the
“new sentence” to be imposed. The procedure is available whether or
not the sentencing court would otherwise have been treated as functus
officio.
Issue 2: is an “offence” a prerequisite to a
destruction order?
Submissions
- [40] Ms Henry
identified two sub-issues arising out of the reference to “offence”
in s 57(2)–(3) of the Act. She
identified those issues in this
way:
Whether an order for destruction can properly be
made under s 57(3) if:
(1) the defendant has not been convicted of an offence under s
57(2); and/or
(2) the elements of an offence under s 57(2) were not
established.
- [41] After
recognising there are opposing lines of authority in relation to the first
sub-issue, Ms Henry first focused on whether
there was an offence under s
57(2).
29 Joe v R, above n 20.
- [42] Ms Henry
noted that the Council had failed to establish one of the two essential elements
of the offence, namely that the defendant
was the “owner” of the
dog.30 Ms Henry observed that under s 19 of the Act the Council had
the power to obtain information as to ownership, a power evidently not
pursued
in this case.
- [43] Ms Henry
observed that, in all previous cases in which there was no conviction but still
an order for a destruction, the defendant
had either pleaded guilty but not been
convicted under s 106 Sentencing Act 2002 or gone to trial with the elements
made out but
the strict liability defence of total absence of fault established
by the dog’s owner, resulting in no conviction.
- [44] Turning to
the fact the defendant was not convicted of an offence, Ms Henry conducted a
balanced review of the various High Court
decisions on this matter and the
judgment of the Court of Appeal in Auckland Council v Hill
(Hill)31 being a case relied on
by the Council. Ms Henry identified King v South Waikato District Council
and Walker v Nelson City Council (obiter) as decisions in which the
High Court viewed a conviction as a prerequisite to a destruction
order.32 On the other hand she recognised
that in Turner v South Taranaki District Council, Miller J (obiter)
considered that a conviction is not a prerequisite to
destruction.33 But, in Ms Henry’s
submission, Turner is distinguishable because the essential elements of
the strict liability offence under s 57(2) were each made out. There was
therefore
an “offence” in terms of s 57(2) of the Act, albeit not a
“conviction”.
- [45] Ms Henry
submitted also that the issue of whether a conviction (or offence) is a
prerequisite to destruction did not arise at
all in the Court of Appeal’s
decision in Hill — the discussion in that case around the meaning
of “offence” was focused on the different issue of what matters
could properly be considered in relation to the exception under s 57(3) of the
Act. The need for a conviction did not arise in Hill because the
defendant had been convicted.
30 See the section 147 judgment, above n 3.
31 Auckland Council v Hill [2020] NZCA 52 [2020] 3 NZLR 603
[Hill].
32 King v South Waikato District Council [2012] NZHC 2264,
[2012] NZAR 837; and Walker v Nelson City Council [2017] NZHC 750.
33 Turner v South Taranaki District Council [2013] NZHC
1603 at [22].
- [46] Ms Henry
noted the analogy drawn by the Court of Appeal in Hill from s 33ED Dog
Control Act 1996, the Court stating:
33ED Territorial authority to classify certain dogs as
dangerous or menacing
(1) A territorial authority must classify a dog as a dangerous
dog under section 31 or a menacing dog under section 33A if—
(a) the owner of the dog has been convicted of an offence
against section 57(2) or 57A(2)(a); and
(b) no destruction order for the dog has been made by the court
concerned.
(2) Subsection (1) applies unless the territorial authority is
satisfied that the circumstances of the attack, rush, or startle by
the dog
(being the circumstances relating to the offence for which the owner was
convicted)—
(a) were exceptional; and
(b) do not, in the territorial authority’s opinion,
justify classifying the dog as dangerous or menacing.
(emphasis added)
- [47] Ms Henry
submitted that both the regime of the statutory provisions and the overall
analysis within the case law supports the
view that s 57(3) of the Act is
properly construed so as to make conviction for an offence a prerequisite to an
order for the destruction
of the dog.
- [48] In relation
to this issue, Ms Henry submitted that natural justice considerations are also
in favour of the Court finding that
an order for destruction cannot be made
unless each of the elements of an offence under s 57(2) had been established.
Where the prosecution
against a defendant fails in relation to the issue of
ownership, and particularly when (as here) the Court is satisfied that another
person, Mr van Delden, was the “owner”,34 the owner is
precluded from effectively taking part in the proceeding.
- [49] Ms Henry
noted that, in her opening at the trial, she had indicated the issue in dispute
was ownership but that she would also
be seeking to adduce
evidence
34 Destruction order judgment, above n 4, at [14].
regarding exceptional circumstances. She stated that she was told by the Court
that she could not have it “both ways”
and subsequent attempts to
ask questions on the latter issue were overruled by the Judge as being
irrelevant. Accordingly, the evidence
led at the hearing, regarding the s 57(3)
exception, was very limited, a matter for which the owner was not
responsible.
- [50] Mr Coleman
submitted that the making of a destruction order under s 57(3) does not depend
upon a conviction — the establishment
of an offence is sufficient under s
57(3) of the Act as the attack is the key element of the offence. In doing so he
referred to
the same case law as Ms Henry and the broader public policy
principle of avoiding the risk that a dog will attack
again.
Discussion
- [51] The
Interpretation Act 1999, s 5(1) of the Act requires that the meaning of an
enactment must be ascertained from its text and
in the light of its purpose.
Under s 5(2) the Court, in ascertaining the meaning, may also consider
indications provided in
the statute.
- [52] On a
straightforward reading of the text of s 57 (set out at [3] above) of the Act,
it involves three steps which may be taken
in relation to an attacking
dog:
(a) under subs (1) — the seizure or destruction of the dog
for the purpose of stopping an attack which is taking place;
(b) under subs (2) — the prosecution of the owner of a dog
that makes a subs (1) attack; and
(c) under subs (3) a destruction order where the Court is
satisfied that a subs (1) attack was committed.
- [53] The single
ambiguity which arises from the wording of s 57 is whether the reference to
“the offence” in subs 3 means
that not only must there have been a
subs (1) attack committed but the prosecution must also have established the
commission of
an offence under subs (2).
- [54] As counsel
both recognised in their submissions, there has been a conflict in the
authorities, including the High Court decisions,
as to whether the prosecution
must establish an offence under s 57(2) of the Act before a destruction order
may be made.
- [55] I
respectfully adopt the analysis and conclusions of Gordon J in Ingle v
Auckland Council.35 Her
Honour’s review of the authorities in Ingle is comprehensive,
analysing both decisions in which the courts have held that, before a
destruction order may be made, an offence
must be established and conviction
entered and those in which the Court had concluded, to the contrary, that a
conviction is not
a prerequisite to the making of a destruction order. The
careful review of authority led Gordon J to
conclude:36
[60] I therefore
adopt Miller J’s approach in Turner. A conviction is not a
precondition to the jurisdiction to order destruction of a dog under s 57(3). If
there is an attack, and the
dog has not already been destroyed, then an order
must be made in the course of enforcement proceedings under s 57(2) unless the
circumstances of the offence (or attack) are exceptional. I respectfully decline
to follow Fountain. The express requirement for a conviction was removed
from s 57(3) in the 2003 amendment and I do not consider it consistent with
the
public safety purpose of the provision to imply one. I agree with Miller J that
there will be circumstances where the owner can
establish a total absence of
fault (and therefore will not have committed an offence) but the dog still
presents a risk to public
safety which requires it be destroyed.
- [56] I follow
the decision in Ingle on the basis of the entirety of the reasoning in
the judgment. That said, I note particularly the following considerations as
grounding
the judgment:
(a) The clear purpose of s 57(3) is to protect public safety by
ensuring that the dog does not commit future attacks, the Act proceeding
on the
basis that where a dog has attacked once there is a risk that it will behave in
the same way again in similar circumstances.37
35 Ingle v Auckland Council [2020] NZHC
1164.
36 At [60], citing Turner v South Taranaki District
Council, above n 33; and Fountain
v Auckland Council [2018] NZHC 591, [2018] 3 NZLR 216. Gordon J recorded
that she had previously followed Fountain in Pehi v Auckland Council
[2018] NZHC 2154 which was, however, an oral decision following a hearing in
which she had not the benefit of competing submissions on the issue.
Fountain
also preceded the Court of Appeal’s decision in Hill, above n
31.
37 Hill, above n 31,
at [65]; and Ingle v Auckland Council, above n 35, at [55].
(b) It is significant that s 57(3) of the Act does not contain an express
requirement that the owner of the dog has been convicted
of the offence
— to be contrasted with the requirement under the former s 57(5) and the
current s 58 and s 33ED.38
(c) The focus of the destruction order enquiry is accordingly,
not upon the circumstances of the offence but rather, upon the circumstances
of
the attack, being answered at the first step of the enquiry by the question
“What happened?” (Step two being the question
as to whether what
happened was exceptional).39
- [57] For these
propositions, I adopt particularly the reasoning of Gordon J in
Ingle,40 but also (as referred to in Ingle) the
conclusions of the Court of Appeal in Hill.41 Consequently, I
respectfully decline to follow, to the extent that their findings differ from
those in Ingle, the earlier decisions in King v South Waikato District
Council.42
- [58] In applying
my above conclusions to the facts of this case, the starting point is that Judge
Large was clearly satisfied the
dog, Jock, had committed an attack of the kind
identified in s 57(1) of the Act.
- [59] For Ms van
Delden, Ms Henry submits (above at [42]–[43]) that a destruction order
could not be made in the District Court
proceeding because the prosecution had
failed to establish one of the two essential elements of the offence, namely Ms
van Delden’s
ownership of Jock.
- [60] Such a
submission again ignores the focus of s 57 upon the “attack”
(described in s 57(1)), which is made the trigger
(subject to exceptional
circumstances) for a destruction order under s 57(3). Once it is recognised that
the “circumstances
of the attack” and the “circumstances of
the offence” are equivalent in s 57(3) of the Act, and it is borne in
mind
that the purpose of the provision is to protect public safety
by
38 Hill, above n 31, at [70]; and Ingle v Auckland
Council, above n 35, at
[30]–[33].
39 Hill, above n 31,
at [64]; and Ingle v Auckland Council, above n 35, at [53].
40 Ingle, above n 35.
41 Hill, above n 31,
and Miller J in Turner v South Taranaki District Council, above n 33.
42 King v South Waikato District Council, above n 32; and Fountain v Auckland Council,
above n 36.
ensuring that the dog does not commit future attacks, the fact that the
prosecution failed to establish that the charged defendant
was the owner of the
attacking dog cannot oust the jurisdiction of the Court to make a destruction
order under s 57(3) of the Act.
For the purposes of s 57(3) of the Act, it
matters not that Mr van Delden rather than Ms van Delden was Jock’s owner.
Any relevant
considerations arising from this situation could be taken into
account in the Court’s assessment of the circumstances.
- [61] That said,
the issues raised by Ms Henry as to Mr van Delden’s ownership of Jock are
relevant when it comes to considerations
of natural justice, which I will now
discuss.
Natural justice
considerations
- [62] Ms Henry
submitted (above at [48]) that natural justice considerations favour the
Court’s finding that an order for destruction
may not be made unless each
of the elements of an offence under s 57(2) of the Act is established. For the
reasons stated above,
I have found that it was open to the District Court to
make a destruction order once satisfied that Jock had attacked another dog
in
terms of s 57(1) of the Act. Ms Henry submitted, however, that through the
(unsuccessful) prosecution in this case having been
against Ms van Delden, Mr
van Delden as the owner was precluded from effectively taking part in the
proceeding. In other words, when
it came to the consideration of exceptional
circumstances, Mr van Delden was denied a hearing.
- [63] I recognise
the legislation is silent as to how this particular situation — where the
defendant is not proved to be the
owner but another person is — should be
dealt with for the purposes of the s 57(3) determination. In a case where it
transpired
that a person who was a stranger to the defendant was in fact the
owner of a dog which had committed an attack in terms of s 57 of
the Act, the
provision of a suitable hearing in relation to the s 57(3) enquiry might give
rise to complex procedural requirements.
But that is not the situation
here.
- [64] The hearing
on 21 May 2021 was allocated for, first, jurisdictional arguments and then (if
jurisdiction were established) for
the s 57(3) hearing.
- [65] At the
hearing, in the afternoon, Ms Henry called Mr van Delden to give evidence for
the purposes of the s 57(3) determination.43 Ms Henry then made her
submissions. Ms Henry was free to call such witnesses as she wished, whether
voluntarily or by summons.
- [66] In these
circumstances, it cannot be asserted that there was any breach of natural
justice principles. The hearing provided Mr
van Delden the opportunity to
provide evidence in relation to the s 57(3) issue and, through Ms Henry, to make
submissions against
the imposition of a destruction order.
- [67] For
completeness, I note that Ms Henry in her submissions observed that Judge Large
had, during the District Court hearing, on
12 March 2021, overruled any
questioning by Ms Henry in relation to matters going to whether there were
“exceptional circumstances”
under s 57(3) of the Act. She submitted
that as a result of that, the extent of evidence regarding s 57(3) was very
limited.
- [68] This
submission is linked to her overall submission regarding a breach of the
principles of natural justice.
- [69] I do not
find the way in which the District Court Judge approached evidence in relation
to “exceptional circumstances”
to have breached those principles.
The hearing on whether or not “exceptional circumstances” arose took
place on a stand-
alone basis on 21 May 2021, with Mr van Delden, through
counsel, then given the opportunity to lead such evidence as he
chose.
Conclusion
- [70] The
authorities which I recognise establish that a conviction of an offence under s
57(2) of the Act is not a prerequisite to
the making of a destruction order
under s 57(3). Here, the prosecution established that Jock had attacked another
dog. The fact that
the attacking dog was owned by someone other than the
defendant does not cut across the Court’s jurisdiction to make a
destruction
order under s 57(3), provided principles of natural justice are met
when determining whether “exceptional
43 Destruction order judgment, above n 4, at [3].
circumstances” existed. In this case, those principles were met through
the hearing on 21 March 2021.
Issue 3: “Exceptional circumstances?”
- [71] Ms
Henry submitted that, if the jurisdictional issues are not determined in favour
of the appellant, the circumstances of the
offence were exceptional and do not
warrant the destruction of the dog. To support this she highlights evidence
suggesting that Jock
escaped because part of the fence was broken on the day of
the incident, that Jock was retreating back to his own space after being
yelled
at by a person, and that Prince had chased Jock and bitten him on the
nose.
- [72] Ms Henry,
in relation to the state of the fence, referred to Mr van Delden’s
evidence that his fencing had been secure
when he left Jock some hours before
the incident. Ms Henry submitted that in the evidence earlier given by Tania
Goldingham (the
owner of Prince) the witness had acknowledged that additional
fencing materials had been added to the boundary fence.
- [73] In relation
to the injuries to Jock, Mr van Delden gave evidence that Jock had visible bite
marks on his nose that appeared to
be the upper and lower jaw teeth marks of a
small animal about the size of the attacked dog. Judge Large referred to
“the small
bite marks shown on Jock’s nose in photograph 5 in the
bundle produced at the hearing”.44 The Judge concluded there
was “clearly some injury, albeit slight, to
Jock”.45
- [74] Mr Coleman
submitted that the very high threshold of “exceptional
circumstances” was not met in this case. He submitted
that the existence
of a gap in the fence, however caused, is not such an unusual event as to
qualify as “exceptional”.
He further submitted there was no evidence
that Jock was provoked by the victim dog. He referred to Judge Large’s
discussion
of these aspects of the evidence in the destruction order judgment
(quoted above at [16]).
44 Destruction order judgment, above n 4, at [6].
45 At [7].
Discussion
- [75] The test to
be applied to the enquiry under s 57(3) is that enunciated by Goddard J,
delivering the judgment of the Court of
Appeal, in
Hill:46
- [74] The court
must then go on to consider whether the circumstances of the offence/attack were
exceptional and do not warrant destruction
of the dog. As this Court observed in
Easthope v Auckland Council, the requirements imposed by this test are
cumulative.47 But they are linked, and should be applied together.
The second requirement informs the first — the circumstances must be
exceptional
in a way that means that destruction of the dog is not
warranted.
- [75] This test
requires the court to focus on the circumstances of the offence/attack, and the
risk that similar circumstances will
occur in the future. It does not require
the Court to undertake the difficult, if not impossible, task of inquiring into
the psychology
of the dog and making predictions about how the dog is likely to
behave in the future. The inquiry contemplated by the Act is in
our view much
simpler. Section 57(3) proceeds on the basis that the previous attack
establishes that there is a risk of the dog attacking
again in similar
circumstances. So the focus is on whether those circumstances were sufficiently
exceptional that that risk is remote
and does not justify destruction of the dog
in the interests of public safety.
- [76] Here, the
two matters relied upon by Mr van Delden as giving rise to “exceptional
circumstances” were that Jock’s
escape from the property was through
a new gap in his secure fence (secure at the time he left the property) and the
evidence that
Jock had been bitten on the nose.
- [77] The Judge
was entitled to conclude that the fact Jock had escaped through such a gap did
not constitute an exceptional circumstance
relating to the attack. In other
words, such an occurrence will not be an uncommon background to such
attacks.
- [78] Secondly,
the Judge was entitled on the evidence to find, as he did, that what happened
between Jock and Prince was something
which no one could really (reliably)
explain. Ms Goldingham’s evidence was of first seeing Jock and her other
dog, Kaia, fighting
on her driveway. Ms Goldingham’s further evidence was
that as Jock was starting to go down her driveway to exit the property,
her dog,
Prince, had run out after Jock as he was exiting. If in the period of
Jock’s presence on the property, in the
46 Hill, above n 31.
47 Easthope v Auckland Council [2018] NZCA 234 at [13].
company of the two dogs which live there, he was bitten on the nose by one dog
or the other, the Judge was again entitled to treat
that circumstance as not
“exceptional”.
- [79] In terms of
the Court of Appeal’s formulation in Hill, nothing in the
circumstances relating to Jock’s escape from his property or his being
bitten by one of the other dogs is exceptional
in a way that means the
destruction of Jock is not warranted. The risk is that similar circumstances
will occur in the future. The
risk is not remote. Judge Large was entitled on
the evidence to find that exceptional circumstances had not been
established.
Outcome — the appeal
- [80] The
appeal will be dismissed, with the consequence that the destruction order made
in the District Court stands.
Cross-appeal?
- [81] The
Council did not file a cross-appeal. I note that, in particular, the Council did
not appeal against the s 147 judgment.
- [82] In Mr
Coleman’s written submissions, however, Mr Coleman invited the Court to
overturn the District Court’s s 147
CPA decision and to instead convict Ms
van Delden of the offence with which she was charged.
- [83] Mr Coleman
invoked the provisions of s 128 District Court Act 2016. In particular, s
128(1)(a) District Court Act empowers the
High Court, on hearing an appeal, to
make any decision it thinks should have been made.
- [84] As I have
stated, such an argument was not the subject of a cross-appeal. The respondent
was never put on notice that she would
have to meet such an argument until her
solicitor received the Council’s written submissions before the
hearing.
- [85] As the
issue was not properly before the Court on this appeal I did not hear further
submissions on it.
Order
(a) the appeal is dismissed; and
(b) costs are reserved — in the event there is not
resolution of costs and disbursements, counsel for the respondent is to file
a
memorandum (three page limit) within ten working days and the respondent is to
file a memorandum (three page limit) within five
working days thereafter, with
costs and disbursements to then be determined on the papers.
Osborne J
Solicitors:
K M Henry, Barrister, Oamaru
Dean & Coleman Law Group, Oamaru
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