THE QUEEN v DONALD MITCHELL HEDGES [2001] NZCA 38 (1 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca343/00

THE QUEEN

V

DONALD MITCHELL HEDGES

Hearing:	1 March 2001
Coram:	Blanchard J Anderson J Paterson J
Appearances:	Appellant in person R J Harte for Crown
Judgment:	1 March 2001

judgment of the court DELIVERED BY PATERSON J

[1] This is an application for leave to appeal to this Court.The notice of application suggests that leave is sought to appeal the judgment of Laurenson J given in the Whangarei High Court on 30 June 2000.Other papers would suggest that leave is also sought to appeal the decision of Glazebrook J given in the same Court on 12 September 2000.Her Honour, in that decision, refused to give leave to appeal a conviction entered on 28 April 1999 and also refused to give leave to appeal to this Court the decision of Laurenson J.This Court has treated the application as seeking leave to appeal both the decisions of Laurenson and Glazebrook JJ.
The judgment of 30 June 2000
[2] Laurenson J considered an appeal from a decision of District Court Judge Bouchier on 19 May 2000.She convicted Mr Hedges on nine charges brought under the provisions of s 32(1)(a) and s 32(1)(b) of the Dog Control Act 1996 (the Act).
[3] It is a pre-requisite to conviction under s 32 of the Act that the dog has previously been classified as a dangerous dog under s 31 of the Act.Section 32(1) of the Act provides that a person who fails to comply with sub-section 32(2) of the Act is liable on summary conviction to a fine not exceeding $1500. Section 32(3) states:
(3)Where a Court convicts a person of an offence against subsection (2) of this section, the Court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the offence were exceptional and do not justify the destruction of the dog.
[4] Having convicted Mr Hedges, the District Court Judge considered the provisions of s 32(3) of the Act and determined that the circumstances of the offence were not exceptional.She therefore ordered the destruction of the dogs but did not impose any other penalty.
[5] There were two grounds of appeal before Laurenson J.First, there was a factual ground which was determined in the respondent's favour.Secondly, there was a ground based on the words "exceptional circumstances" in s 32(3) of the Act. His Honour noted that "the short point here was that because there was no evidence the dogs rushed at, barked, at or in any way annoyed or discomforted persons, then that factor should amount to `exceptional circumstances' justifying the non-destruction of the dogs."After considering the meaning of "exceptional circumstances", His Honour concluded that District Court Judge Bouchier had correctly evaluated the significance of the term and properly found that they did not exist.The appeal was therefore dismissed.
The judgment of 12 September 2000
[6] Mr Hedges then applied for leave to appeal the judgment given on 28 April 1999 which led to the dogs being classified as dangerous.Her Honour declined to give leave.
[7] The second application considered by Glazebrook J sought leave to appeal to this Court in respect of Laurenson J's decision of 30 June 2000.Her Honour refused leave to appeal that decision.
Jurisdiction
[8] Section 144 of the Summary Proceedings Act 1957 is the jurisdictional basis for an appeal from the District Court to the High Court.The relevant portions of the section state:
144Appeal To Court Of Appeal
(1)Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:
Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2)A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(3)Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[9] Thomas J, in giving the decision of this Court in R v Slater [1997] 1 NZLR 211 said:
"Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subss(2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted."
Decision
[10] Many of the matters raised by Mr Hedges in respect of the appeal against the judgment of Laurenson J are factual matters.The only question of law involved is the correct meaning of "exceptional circumstances" in s 32(3) of the Act.In our view, the Judge correctly applied the law in this case. Laurenson J determined this matter on the basis of factual findings which cannot be challenged on appeal.In our view, the appeal against Laurenson J's decision does not involve a question of law which by reason of its general or public importance, or for any other reason, ought to be submitted to this Court for decision.Leave will therefore not be given to appeal the decision of 30 June 2000.It follows that the decision of Glazebrook J in refusing leave to appeal to this Court against Laurenson J's decision was correct.
[11] For similar reasons, the application for leave to appeal against the decision of Glazebrook J refusing leave to appeal the District Court decision of 28 April 1999 will also be refused.In our view, she was correct in concluding that the delay in bringing the application and the fact of Mr Hedges pleading guilty to the charges originally, told against granting leave.More importantly, her conclusions that the appeal proposed did not raise a bona fide and serious argument cannot be challenged.The application for leave to appeal that portion of Her Honour's judgment is also declined.
Result
[12] For the reasons given, all applications are dismissed.
Solicitors:

Crown Solicitor, Whangarei