Walker v Nelson City Council [2017] NZCA 526 (17 November 2017)

Last Updated: 23 November 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA259/2017 [2017] NZCA 526
BETWEEN	JENNY LYN WALKER Applicant
AND	NELSON CITY COUNCIL Respondent

Court:	Kós P, Courtney and Toogood JJ
Counsel:	C G Tuck for Applicant A C Besier for Respondent
Judgment: (On the papers)	17 November 2017 at 2.00 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Toogood J)

[1] On 27 March 2017 in the District Court at Nelson, Judge Bruce Davidson found Ms Walker guilty of a charge under s 57(2) of the Dog Control Act 1996 (the Act) that, on or around 12 October 2016 at Nelson, she was the owner of a dog called ZiaZia which attacked a person; her flatmate, Penny Lowish.^[1] The Judge convicted Ms Walker, fined her $550 and ordered her to pay emotional harm reparation to Ms Lowish of $500. He made no order as to court or solicitors’ costs but ordered under s 57(3) of the Act that ZiaZia be destroyed.^[2]
[2] Ms Walker appealed unsuccessfully to the High Court against her conviction and the destruction order.^[3] Ms Walker now seeks the leave of this Court under s 237 of the Criminal Procedure Act 2011 (CPA) to appeal against the High Court’s decision.
[3] Section 237(2) of the CPA provides that leave must not be given for a second appeal unless this Court is satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred, or may occur unless the appeal is heard. As this Court in McAllister v R confirmed, the test for a second appeal is high.^[4]
[4] Ms Walker filed the application for leave to appeal in person. It is a lengthy document setting out many grounds upon which she wished to argue that the judgment of the High Court was wrong and that we should hear a further appeal. Since then, however, Mr Tuck has been instructed. Helpfully, he has confined the application for leave to a single ground, based on what he submits is the proper interpretation of s 57(1) and (2) of the Act.
[5] So far as is relevant, the section reads:

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.

(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.

(4) If a person seizes a dog under subsection (1), he or she must, as soon as practicable, deliver the dog into the custody of a dog ranger or dog control officer.

(5) If a dog control officer or dog ranger has reasonable grounds to believe that an offence has been committed under subsection (2), he or she may—

(a) seize and take custody of the dog; or

(b) if seizure of the dog is not practicable, destroy the dog.

...

[6] The facts leading to the conviction and destruction order are conveniently set out in the High Court judgment:

[4] Ms Walker owns a three year-old Siberian Husky called ZiaZia. The dog had a history of biting. In October 2016, Ms Walker went to Japan for two weeks and left ZiaZia with her flatmate, Penny Lowish. She left with Ms Lowish detailed instructions as to ZiaZia’s feeding protocol. It involved ensuring ZiaZia was fed outside the flat and requiring her to sit while the food was placed on the ground before being allowed to come to the food to eat. ZiaZia had been left in the care of Ms Lowish for two to three days previously without incident. However, ZiaZia had bitten her on another occasion when Ms Lowish tried to remove ZiaZia’s leash.

[5] Ms Lowish successfully looked after and fed ZiaZia for five days without incident. However, on 12 October, she carried the food bowl with her right hand out of the kitchen, through the lounge to some ranch sliders that opened to the outside deck where she intended to feed the dog. When she opened the ranch sliders it was wet outside so she decided to feed ZiaZia inside. ZiaZia’s water bowl was on the floor inside, adjacent to the ranch sliders. Ms Lowish held the food bowl up above her head while reaching down with her left hand to pick up the dog’s water bowl. It is common ground that this was inconsistent with the agreed feeding protocol. ZiaZia bit her on the hands and wrists. Ms Lowish put ZiaZia outside and called an ambulance. She was taken to hospital where some of the wounds were stitched. She had soreness and swelling for some time and was unable to drive for about a week.

...

[9] The Judge said it was clear that Ms Walker deeply loves her dog, but that she had lost sight of ZiaZia’s dangerous nature. The Judge found that Ms Walker rationalised every prior biting incident, blaming herself and others, for disturbing, annoying or antagonising ZiaZia in some way.

[7] Mr Tuck submits that to secure a conviction under s 57(2), the prosecution must prove that the defendant is the “owner” of the dog and that the dog attacked a person. That much is self-evident and we accept the proposition. But counsel’s key submission is that because Ms Lowish was owner of the dog at the time of the attack, she cannot at the same time be the person attacked by the dog as provided under s 57(1)(a). The two elements of the offence are mutually exclusive.
[8] So far as is relevant, s 2 of the Act defines “owner” in these terms:

owner, in relation to any dog, means every person who—

(a) owns the dog; or

(b) has the dog in his or her possession, whether the dog is at large or in confinement, otherwise than for a period not exceeding 72 hours for the purpose of preventing the dog causing injury, damage, or distress, or for the sole purpose of restoring a lost dog to its owner; ...

[9] Mr Tuck is right that, in terms of the extended definition, Ms Lowish was a person coming within para (b) at the time she was bitten. Counsel’s point is that the statutory scheme is directed at prosecuting a dog owner whose dog attacks a person other than an owner. In support of that submission, Mr Tuck says there has been no previous case where the person attacked is at the same time the owner of the dog. The submission has no merit, however.
[10] First, the effect of the definition of owner in s 2 is to impose statutory liability for controlling the behaviour of a dog upon any person who owns the dog and any person who has possession of the dog at any time, except in limited circumstances. Possession imports the element of control. That serves the legislative scheme of strict liability for breaches of the obligations under the Act.^[5] Nothing in the wording of the definition, or the Act generally, compels the conclusion that two or more people cannot be the co-owners of a dog at the same time.
[11] Second, “person” in s 57(1) is not qualified by the express exclusion of an owner.
[12] Third, the extended definition of “owner” enables third parties to intervene under s 57(1) to stop an attack or, after an attack, a dog control officer or ranger to seize or destroy the dog under s 57(5), even where the attack was on the owner.
[13] Fourth, the obvious response to Mr Tuck’s observation that no dog owner has been prosecuted under s 57(2) after they have been bitten by their own dog is that it is rather unlikely that any such person would lay a complaint with the authorities about their own breach of the Act.
[14] There is no matter of general or public importance involved in this case, and no actual or likely miscarriage of justice.
[15] The application for leave to bring a second appeal is declined.

Solicitors:
Tasman Law Limited, for Respondent

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^[1] Nelson City Council v Walker [2017] NZDC 7142.

^[2] Nelson City Council v Walker [2017] NZDC 6372.

^[3] Walker v Nelson City Council [2017] NZHC 750.

^[4] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

^[5] See, for example, the Dog Control Act 1996, ss 53−54A. This Court recently confirmed the strict liability nature of the offence: Epiha v Tauranga City Council [2017] NZCA 511 at [6].