[1] Mr Vaihu was bitten by a police dog in the early hours of the morning on 19 January 2002. The dog had been deployed to track some suspected offenders in the area, and Mr Vaihu was, unfortunately, in the wrong place at the wrong time. He had nothing to do with the alleged offending. The dog bit Mr Vaihu’s arm. The consequences for Mr Vaihu were terrible. This was because he had a device, an AV (artery vein) fistula, inserted in his arm to facilitate regular dialysis. The dog bite tore open the vein in which this device was implanted, and Mr Vaihu suffered serious blood loss.

Issue

[2] The issue before us is whether the conduct of the police officer in charge of the police dog constituted a breach of s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), which provides:

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

[3] In order to answer that question, we need to address two subsidiary issues, namely whether the actions of the police officer which led to Mr Vaihu’s injury were intentional, and whether those actions were lawful. We will address those subsidiary issues before considering the claimed breach of s 9 itself, because our conclusions on those issues have an important bearing on our analysis of s 9. Before doing so, however, we will set out the process leading to the appeal and the factual background to Mr Vaihu’s claim.

The proceeding so far

[4] Initially, Mr Vaihu’s claim involved two causes of action. The first was an action seeking exemplary damages of $40,000 for battery. The second was an action seeking exemplary damages of $40,000 for a breach of s 9 of the Bill of Rights.
[5] In the District Court, Judge Blackie found there had been a battery, but that the circumstances did not call for an award of exemplary damages: Vaihu v Attorney-General DC MAN NP.2746/02 31 March 2005. Thus this aspect of the case failed. However, he found there had been a breach of s 9 of the Bill of Rights, and awarded damages (not exemplary damages, as claimed) of $10,000.
[6] On appeal to the High Court, Ellen France J expressed doubt as to the finding that a battery had occurred, given the apparently unintentional nature of the police officer’s action. However she did not finally decide the point because she agreed with the District Court Judge that an award of exemplary damages for battery was not available on the facts. She allowed an appeal by the Attorney-General against the Judge’s finding of a breach of s 9 of the Bill of Rights: Attorney-General v Vaihu [2005] NZHC 189; [2006] NZAR 276.
[7] Mr Vaihu appeals with the leave of the High Court against this latter aspect of the High Court decision. We do not therefore comment on the battery allegation.

What happened?

[8] The focus of the case is on the actions of the police officer in charge of the police dog, Senior Constable Taylor. The allegation against him in the statement of claim was that he “ordered and/or allowed the dog to attack [Mr Vaihu]”. There was no allegation of any systemic failing on the part of the police in relation to the training and deployment of police dogs.
[9] We see the outcome of the appeal as depending very much on the facts of the case. It is thus necessary for us to analyse at the outset exactly what happened on the night in question. That analysis will focus on two of the issues which arise in this appeal – whether the actions of Senior Constable Taylor were intentional, and whether deployment of a police dog in the circumstances was lawful.
[10] The incident happened in an area of bushes adjacent to a car park in suburban Auckland. Mr Vaihu said he came to be there because, when driving home in the early hours of the morning, he had felt sick. He stopped at a service station, and bought a roll of toilet paper. He then parked his car in a nearby car park and went into the bushes to vomit and defecate.
[11] Meanwhile, Senior Constable Taylor had been called out to an incident involving the intentional damage of signs in the same area. He was accompanied by a civilian, Mr Ferens, who was considering joining the police and had been assigned to the officer as an observer. Senior Constable Taylor deployed his police dog, Willis, to track the alleged offenders. The dog was in a harness attached to a tracking lead which is about 30 feet (about nine and a half metres) long. The dog followed a scent which led to the clump of bushes in which Mr Vaihu was located. Mr Vaihu was on one side of the clump; Senior Constable Taylor and Willis were on the other. In the darkness, and because of the thick bushes, they could not see each other. At that stage the officer and the dog had followed the scent for about 280 metres.
[12] As the dog approached the clump of bushes its conduct indicated to the officer that it was close to locating the target whose scent it was following. The officer said that he believed that this was likely to be one or more of the suspects of the offending. He concluded that there was probably someone in the bushes and shortened the tracking line so that Willis was within three metres of him. There was some debate about this at the trial, and the officer actually demonstrated to Judge Blackie how long the lead was after this manoeuvre. In an exchange in Court, the Judge estimated the length of the lead at two and a half metres, but in his judgment he referred to the lead as being five metres long, apparently overlooking his earlier estimate. The officer said the shortening of the lead was to allow a greater degree of control over the dog, contrary to the submission made to us by counsel for Mr Vaihu that the shortening of the lead exhibited an intention by the officer to allow the dog to attack the suspect.
[13] Senior Constable Taylor said he gave two warnings to the effect of:

This is the Police. I’ve got a Police dog. If you don’t come out the dog will be used to find you.

He received no response to those warnings. Mr Vaihu said he did not hear the warnings.

[14] Senior Constable Taylor allowed the dog to proceed through the bushes, on the shortened lead. The dog approached Mr Vaihu, who was unclothed from the waist down, and who was taken by surprise by the dog’s presence. Mr Vaihu attempted to open the door of his car, but the dog attempted to bite him, resulting in bruising to his thigh. Mr Vaihu then tried to push the dog away and it bit his left arm, biting through the AV fistula. Mr Vaihu cried out and, when he heard that cry, Senior Constable Taylor crawled through the bushes on his hands and knees towards Mr Vaihu, as did Mr Ferens. When Senior Constable Taylor saw what had happened, he ordered Willis away, and the dog released the bite and lay down as directed. There is some dispute as to what happened after that, particularly as to whether Mr Vaihu was tackled or pushed to the ground by either Senior Constable Taylor or Mr Ferens (no finding was made by the Judge), but it was eventually realised how serious Mr Faihu’s injury was, and steps were taken by Senior Constable Taylor and Mr Ferens to stem the blood flow with toilet paper. An ambulance was summoned and Mr Vaihu was taken to hospital, where he remained for four days.
[15] The damage to the AV fistula was such that Mr Vaihu was no longer able to undertake dialysis at home after the incident occurred. This created difficulties for him in relation to the regular dialysis treatment he needed, until he was given a kidney transplant some months after the incident.

Did Senior Constable Taylor act lawfully?

[16] Counsel for Mr Vaihu, Mr Sutton, argued that the actions of Senior Constable Taylor were unlawful. He accepted that the Senior Constable had not given the dog a command to attack, and had not released the dog from the lead. But he said that shortening the lead gave some direction to the dog to attack. However, the evidence on which Mr Sutton relied for that proposition did not provide support for it. In fact, the officer said the exact opposite. Mr Sutton said it was not acceptable in New Zealand to deploy a dog in relation to a minor offence, relying on the following extract from the police guidelines:

Readiness to use a dog must depend on the seriousness of the offence and the circumstances at the time, including whether the offender is known to the police; for example, the commission of minor offences under s 4 Summary of Offences Act 1981 (disorderly/offensive behaviour; no breach of peace) would not normally justify using a dog unless there were aggravating circumstances.

[17] There are a number of difficulties with that submission. First, the alleged offences which Senior Constable Taylor was investigating were instances of intentional damage, a more serious offence than disorderly behaviour. Second, Senior Constable Taylor was using the dog to track the suspects, not to effect an arrest of an already identified suspect. The dog was on a lead and restrained by a harness, and as noted earlier the Senior Constable shortened the lead when it appeared the dog had identified someone in the bushes. Third, the officer gave a warning (twice) before he allowed the dog to pass through the bushes. We do not consider there was anything unlawful about the deployment of the dog to track the suspected offenders in this case.
[18] The question is, therefore, whether anything happened during the deployment of the dog which was, itself, unlawful. Mr Sutton said that the officer ought not to have allowed the dog to pass through the bushes to an area which was out of the officer’s sight. He said that the officer should have investigated alternatives, such as walking around the clump of bushes (10 - 15 metres or so) before he allowed the dog to pass through the bushes. He said the failure to do this made the actions of the officer unlawful. We disagree. There is nothing in the police guidelines or the general law that imposes a requirement of the kind suggested by Mr Sutton. Given that the officer was justified in believing that the dog had identified one or more offenders, it is hard to see why he would then risk allowing the offenders’ escape in the dark while he tried to find a way around the clump of bushes.
[19] Counsel for the Crown, Mr Keith, referred us to the decision of the England and Wales Court of Appeal in Pollard v Chief Constable of West Yorkshire Police [1998] EWCA Civ 732. In that case, Henry LJ was considering the use of a police dog to apprehend offenders who had been throwing stones at street lights, causing one to be broken. The dog in Pollard was actually released to effect the arrest. The Court of Appeal found that this did not constitute an unreasonable use of force by the Police.
[20] Judge Blackie determined in this case that the Police officers’ actions were without lawful justification. He commented at [51]:

The Police dog is an extension of the arm of its handler in the same way as a baton or any other weapon would be the extension of the arm. For the attack on the plaintiff the Police must accept responsibility.

[21] In the High Court, Ellen France J disagreed. She cited a comment made by Henry LJ in Pollard, in which he said:

There cannot be an immediate read over from using a truncheon to using a dog or other animal with a will of its own. For instance, there would be no assault or no crime committed if a horse were unexpectedly to run away with its police rider and injure the person he was attempting to arrest. There would be no control of the animal in those circumstances.

[22] Ellen France J commented at [54]:

I see the use of a police dog as having some differences from use of a police baton. The baton literally has no other life of its own. The same cannot be said for the police dog.

[23] We agree with the analysis of the England and Wales Court of Appeal in Pollard and that of Ellen France J in this case. In the present case, the deployment of the Police dog was justified, the control exercised over the dog by Senior Constable Taylor was in accordance with guidelines and the required warnings were given (albeit they were not heard). The Police officer’s actions were not unlawful.

Were Senior Constable Taylor’s actions intentional?

[24] As noted earlier, the claim against the respondent was that Senior Constable Taylor had “ordered and/or allowed the dog to attack the Plaintiff”. In the High Court, Ellen France J characterised the Police officer’s conduct in the following terms at [56]:

Here, the relevant conduct is – at its highest – allowing the dog to go into the bushes knowing the dog may bite.

[25] At [57], she added:

In terms of the pertinent factors in this case, it must at least be highly relevant that the actions here were not deliberate. ... But, once it was accepted that what occurred took place inadvertently, it would be surprising if that constituted a breach of s 9.

[26] Later, at [60], she described the attack as:

[A]n unintentional bite by a police dog.

[27] Mr Sutton criticised those findings. He said that Ellen France J’s conclusion that it was highly relevant that the officer’s actions were not deliberate was in conflict with the decision of the Supreme Court in Taunoa v Attorney-General [2007] NZSC 70, which made it clear that intention was not a prerequisite for a breach of s 9. We reject that submission. The Judge clearly stated that intention was not a necessary prerequisite for a breach of s 9 (other than in relation to torture), and in that respect her finding anticipates the views of both this Court (see [2006] 2 NZLR 457) and the Supreme Court in Taunoa.
[28] As an alternative, Mr Sutton suggested that Ellen France J had given too much weight to the lack of intention. We disagree.
[29] It needs to be understood what “intention” is being referred to here. In Taunoa there was no doubt that the conduct of the relevant prison officers in establishing the behaviour management regime in prisons was intentional or deliberate: the focus in that case was on whether the operation of the regime had involved the intentional infliction of humiliation or suffering. That is quite a different thing from the intention to which Ellen France J was referring in this case: her focus was on whether the action which was said to constitute “treatment” (the infliction of a dog bite on Mr Vaihu) was, itself, intentional. She found that it was not. In our view, that finding is correct in the light of the evidence of what actually occurred on the night in question.
[30] Mr Webb, who conducted this part of the appellant’s oral argument, said that Senior Constable Taylor ought to have foreseen the possibility of the dog biting a person in the bushes. He pointed to the evidence of Senior Constable Taylor and that of Senior Sergeant Puryer, a senior instructor at the New Zealand Police Dog Training Centre, about the circumstances in which Police dogs are trained to bite. Both said that dogs would bite when instructed to do so by the Police dog handler, in defence of the dog handler if the dog handler is attacked or under threat of attack and in defence of itself if the dog itself was attacked or under threat of attack. However, both acknowledged that a sudden movement or action by a person confronted by a Police dog could be perceived by the dog as a threat, and that this would mean that the dog would bite.
[31] We do not see that evidence as undermining Ellen France J’s characterisation of what occurred in this case. It was true that if, after it entered the bushes, the dog confronted a person and that person made a sudden move in which the dog interpreted it as a threat, then the dog would, in accordance with its training, bite the person concerned. But that remained a possibility rather than a certainty, and the term “may” appropriately described that possibility.
[32] In this case we are satisfied that the Judge was justified in describing the circumstances under which Mr Vaihu came to be bitten by the Police dog as “inadvertent” and “not deliberate”.

Was there a breach of s 9?

[33] Since the decision of the High Court in this case, both this Court and the Supreme Court have considered the test for a breach of s 9 in Taunoa v Attorney-General.
[34] There were a variety of views expressed by the Judges of the Supreme Court about aspects of s 9, particularly as to whether cruel, degrading or disproportionately severe treatment or punishment referred to treatment or punishment in descending degrees of seriousness (cruel being the most serious and disproportionately severe being the least) or as simply a composite description of a norm of proscribed treatment, and also as to the appropriate test for identifying conduct (other than torture) breaching s 9.
[35] In view of the conclusions we reach on the facts of this case, we do not consider it necessary to embark upon a detailed analysis of the judgments. We think it is sufficient for present purposes to note that the following propositions, relevant to this case, commanded majority support:

(a) Intention to cause suffering is not a prerequisite for a finding that there has been cruel, degrading or disproportionately severe treatment or punishment (unanimous; Tipping J doubting);

(b) The descriptors “cruel”, “degrading” and “disproportionately severe” are of different concepts whose seriousness is equal (Elias CJ, Tipping, Henry JJ; Blanchard, McGrath JJ dissenting);

(c) Section 9 guards against treating people as being less than human (Elias CJ, Blanchard, Tipping, Henry JJ; McGrath J expressing no view);

(d) Whether harm results from the treatment is relevant to assessing whether s 9 is breached (Blanchard, Tipping, Henry JJ; Elias CJ dissenting; McGrath J expressing no view);

(e) Unlawfulness will be a highly relevant factor in the assessment of a breach of s 9 (Elias CJ, Blanchard, Tipping, Henry JJ; McGrath J dissenting).

[36] The Judges of the Supreme Court expressed differing views on the test for determining whether conduct breaches s 9, and none of those views commanded majority support. Elias CJ and Blanchard J favoured the test from Canada – conduct which outrages standards of decency. However in the case of Blanchard J, this definition gave content only to “disproportionately severe” treatment. Elias CJ considered that no test could be drawn to determine whether conduct was inhuman. Blanchard J appeared to adopt a general criterion of outrageousness and unacceptability of conduct for determining whether there is a breach of s 9. Tipping and Henry JJ preferred an arguably stricter test – conduct which shocks the national conscience – again, only with respect to the definition of “disproportionately severe”. McGrath J preferred a criterion of overall harshness. What is clear from the judgments, however, is that the threshold for establishing a breach of s 9 is a high one.

Applying the law to the facts

[37] The “treatment” in this case was Senior Constable Taylor’s allowing the police dog (which was still restrained by the tracker lead and harness) to pass through the bushes to an area that the Senior Constable could not see, in circumstances where it was possible that the dog would bite any person it confronted. In our view Ellen France J was right to characterise the treatment as not deliberate and inadvertent. As she noted, it would be surprising if inadvertent activity could meet the very high threshold required to establish a breach of s 9. We acknowledge the very significant consequences for Mr Vaihu from the police dog bite, but we do not see that as turning an otherwise lawful and inadvertent situation into one in which s 9 could apply.
[38] Mr Sutton put to us a number of factors which he said substantiated his submission that the threshold for a breach of s 9 was met in this case. We comment on those factors as follows:

(a) The test for disproportionately severe treatment sets the lowest threshold under s 9. The appellant submits that s 9 is to be read disjunctively and seeks confirmation by the Court of this reading of s 9. We do not believe that that proposition has majority support in the Supreme Court: see [35](b) above. Elias CJ and Tipping J (with whom Henry J agreed) both rejected the “sliding scale” analysis which had found favour in this Court at [225]. We do not, however, see this as having any determinative effect in this case.

(b) There was a lack of vigilance by the Police dog handler, amounting to subjective recklessness. We do not see the actions of the Police officer as reckless. He took steps to exert greater control over the dog and gave the required warnings before allowing the dog to pass through the bushes. Ultimately Mr Sutton’s only criticism of the officer was that he did not investigate the possibility of going around the bushes, rather than letting the dog go through the bushes. In circumstances where the officer had reason to believe that the person or persons whom the dog appeared to have discovered was one or more of the offenders he was seeking to apprehend, his actions were not unreasonable.
(c) The Police dog was used in inappropriate circumstances. The use of the dog was outside normal Police dog guidelines which is the only supervision of Police dog behaviour. In our view, the use of a Police dog to track offenders in the circumstances of this case was appropriate and within the Police dog guidelines. Allowing the dog to pass through the bushes while still tethered to the tracker lead and after warnings had been given was not inappropriate and conformed with the Police guidelines. The lawfulness of the use of the Police dog militates in favour of the conclusion that there has been no breach of the Bill of Rights.
(d) The attack by the Police dog was under the control of the Police dog handler. For the reasons given at [20] – [23] above we reject this.
(e) The level of humiliation reached the “gross level required”. The focus when looking at humiliation is on the victim. In this instance he lost two litres of blood and was hospitalised for four days. As Judge Blackie stated at [62] “It would be hard to contemplate an instance more humiliating and embarrassing” than the situation in which the victim was placed. We agree that the situation had appalling consequences for Mr Vaihu. But that does not turn an otherwise lawful and inadvertent action into a breach of s 9. While the harm caused to the victim is relevant in an assessment of a breach of the Bill of Rights, countervailing factors – such as the lawful and accidental nature of what took place – have weight in the inquiry too.
(f) The appellant was an innocent member of the public simply minding his own business. We agree that Mr Vaihu had nothing to do with the offending which Senior Sergeant Taylor was investigating. Again, this does not transform a lawful and inadvertent action into a breach of s 9.
(g) The Police had a lethal weapon being a Police dog which required extreme care, not dissimilar to the use of a loaded gun, a taser or other such weapon. We agree that Police dogs can inflict severe injury and must be properly controlled. If the Police dog had been ordered to attack Mr Vaihu we would have taken a quite different view of the case. But we see the actions of the Police dog as a reflection of the dog’s own instinct rather than anything for which Senior Constable Taylor can be said to have been responsible.
[39] For these reasons we conclude that Ellen France J’s decision was correct, substantially for the same reasons as those she gave.

Result

[40] The appeal is dismissed.
[41] We understand that the appellant is legally aided, and in those circumstances we make no award of costs.

Solicitors:
Copeland Fitzpatrick, Otahuhu for Appellant
Crown Law Office, Wellington

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2007/574.html