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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

Destruction orders under the Dog Control Act

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

[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.





5 Section 147 judgment, above n 3.

6 Destruction order judgment, above n 4, at [5].

Application for Jock’s destruction



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.

2.15 pm for that to occur.











14 Jurisdiction ruling, above n 4 (footnotes omitted).

Substantive hearing of the destruction application

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.

15 Destruction order judgment, above n 4.

Law

Section 57 Dog Control Act






16 At [14].

17 At [14].

18 At [15].

19 At [16]–[19].

Rule 1.6 Criminal Procedure Rules: the slip-rule

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

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.

— 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



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

Grounds 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







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].

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

Issue 2: is an “offence” a prerequisite to a destruction order?

Submissions

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.






29 Joe v R, above n 20.




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].

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)

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.

Discussion

(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.

[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.

(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

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.

Natural justice considerations

Conclusion


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?”




44 Destruction order judgment, above n 4, at [6].

45 At [7].

Discussion



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”.

Outcome — the appeal

Cross-appeal?

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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