McKenzie v Whanganui District Council [2023] NZCA 114 (19 April 2023)

Last Updated: 24 April 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA593/2022 [2023] NZCA 114

	BETWEEN	NICHOLAS GARY MCKENZIE Applicant
	AND	WHANGANUI DISTRICT COUNCIL Respondent

Court:	Courtney, Venning and Downs JJ
Counsel:	Applicant in Person ASA Hall and J L Avery for Respondent
Judgment: (On the papers)	19 April 2023 at 2.30 pm

JUDGMENT OF THE COURT

A An extension of time is granted to bring the application for leave to appeal.
B Leave to adduce further evidence is declined.
C The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] Mr McKenzie was charged with six offences under the Dog Control Act 1996. The charges arose from incidents on 27 and 31 March 2020 in which Mr McKenzie’s dog, “Russia”, attacked two other dogs in a public park. Mr McKenzie failed to appear at the District Court at Whanganui for a scheduled hearing. Judge Carter directed that the matter proceed by way of formal proof.^[1] He convicted Mr McKenzie on all the charges.^[2] Mr McKenzie appeared at the subsequent sentencing hearing. The Judge made emotional harm reparation orders in respect of two of the charges, imposed fines for the remaining four charges, and ordered Mr McKenzie to pay a service fee, the costs associated with holding “Russia” at the pound, court costs and solicitors’ costs.^[3] He also made an order for the destruction of “Russia”. ^[4]

[2] Mr McKenzie appealed his conviction on the grounds that the Judge’s decision to proceed in his absence resulted in a miscarriage of justice, in that the decision was in error and created a real risk that the outcome of the trial was affected or resulted in an unfair trial.^[5] He argued that he had not appeared at the hearing because he had tested positive for COVID-19 and a Court Registry Officer had told him not to attend, and that he was therefore precluded from calling evidence that would have shown that “Russia” was not implicated in the incident on 31 March 2020 and that he was entirely without fault in relation to the incident on 27 March 2020. Churchman J dismissed the appeal.^[6]

[3] Mr McKenzie has applied for leave to bring a second appeal.^[7] Under s 253(3) of the Criminal Procedure Act 2011, the Court must not give leave for a second appeal unless satisfied that the matter 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. Mr McKenzie’s position is similar to that advanced in the High Court: a miscarriage of justice occurred because (1) he was unable to attend the hearing and was told by a Court Registry Officer not to do so and (2) as a result of the hearing proceeding in his absence, he was prevented from adducing evidence, creating a real risk that the outcome of the trial was affected.

[4] The application was filed 12 working days out of time.^[8] There is no explanation for this, but since Mr McKenzie is self-represented and the delay was not lengthy we grant an extension of time to bring the application.^[9]

[5] Mr McKenzie’s submissions included material of an evidential nature, mainly relating to the Whanganui District Council’s 2017 classification of “Russia” as a menacing dog. He has also sought to adduce as evidence in support of the application for leave, documents relating to the classification of “Russia” as a menacing dog. He seeks to challenge whether he had been properly notified of that fact. These are matters that could have been raised in the High Court. There is no explanation as to why that was not done. We decline to receive the documents or to take into account Mr McKenzie’s statements about that aspect.

The hearing in the District Court

[6] The charges against Mr McKenzie were filed in August 2020. They were:

(a) two charges under s 57(2), that Mr McKenzie was the owner of the dog “Russia” at the time; and “Russia” attacked a domestic animal;

(b) one charge under s 53, that Mr McKenzie was the owner of the dog “Russia” at the time; and Mr McKenzie failed to keep the dog “Russia” under control;

(c) one charge under s 52A, that Mr McKenzie was the owner of the dog “Russia” at the time; and Mr McKenzie failed to keep the dog “Russia” under control on Mr McKenzie’s property occupied by him; and

(d) two charges under s 33EC, that Mr McKenzie was the owner of the dog “Russia” at the time, and the dog “Russia” was classified as menacing under s 33A of the Dog Control Act, on 11 September 2017; and Mr McKenzie failed to comply with the legal effect of the menacing dog classification in that he allowed the dog to be at large in any public place when it was not muzzled and was not confined completely within a vehicle or cage.

[7] There were several adjournments of hearing dates prior to 5 May 2022, when the matter proceeded by formal proof. Having found Mr McKenzie guilty on all charges and convicted him, the Judge indicated that written reasons would be delivered later. The Judge delivered his reasons in writing on 3 June 2022.

[8] The Judge’s reasons for proceeding in Mr McKenzie’s absence were recorded in his minute of 5 May 2022 and again in his written decision. In the written reasons, the Judge explained:^[10]

[7] The prosecution hearing before a judge alone was scheduled for 10.00 am 5 May 2022. The prosecutor attended the hearing, but Mr McKenzie did not. As each of the charges are category 1 offences, the prosecution sought to proceed with the hearing by way of formal proof in the absence of the defendant, as is permitted under s 119 [of the] Criminal Procedure Act 2011.

[8] There had been email exchanges the day before between Mr McKenzie, the prosecution and the Court Registry, in which Mr McKenzie claimed to have tested positive for covid-19 and would not be able to attend the hearing. He confirmed agreement to obtain independent verification of his covid-19 status, but did not do so prior to 10.00 am, 5 May 2022. I considered whether to adjourn the hearing but declined to do so for failure by Mr McKenzie to provide adequate supporting evidence of his covid-19 status, as set out in my minute dated 5 May 2022.

[9] The hearing therefore proceeded in the absence of Mr McKenzie on the morning of 5 May 2022. ...

[9] The Judge went on to describe the charges and the evidence and give the reasons for his decision to convict Mr McKenzie.

[10] In relation to the incident on 27 March 2020, Ms Graves, the owner of a miniature Fox Terrier named “Narla”, described her dog being attacked by a white Bull Terrier type dog, that was not wearing a muzzle, until the dog’s owner appeared and called off the dog. The incident was witnessed by a passer-by, Mr Perry, who was in the park and saw a white English Bull Terrier come towards him, growling. The dog was not wearing a muzzle. Its owner was not in sight at that point, but shortly afterwards Mr Perry saw Mr McKenzie walking with both the white dog and another, brindle coloured dog. He then saw two women walking a Fox Terrier type dog and warned them about the white dog. As he walked away Mr Perry heard a dog screaming and saw the white dog attacking the Fox Terrier.

[11] In relation to the incident on 31 March 2022 a miniature Jack Russell dog, “Skip”, was out for a walk with her owner, Ms Crawshaw. Ms Crawshaw saw a white dog, not muzzled, reach the area of the park they were in. Ms Crawshaw lifted Skip into her arms, but Skip jumped out and was attacked by the white dog. The white dog ran away when Ms Crawshaw kicked him. Mr Perry also witnessed this incident. He was driving near the park and saw a white Bull Terrier roaming, uncontrolled, in the park. He was curious as to whether it was the same dog he had seen on the previous occasion. He turned his car around and drove up to within 20 metres of the dog, recognising it as the same dog that had attacked the Fox Terrier on 27 March 2020. Mr Perry looked around for the dog’s owner because he was accustomed to seeing Mr McKenzie and the white dog together. He could see Mr McKenzie about 50 metres away. However, he then saw the white dog attack another small dog being walked by his owner, whom Mr Perry subsequently learned was Ms Crawshaw.

[12] In addition, there was evidence from a Whanganui District Council Compliance Officer – Animal Management, Ms Troughton. She confirmed that in 2017 “Russia” had been identified as a menacing dog and that she had served Mr McKenzie with a notice of classification.

[13] The Judge was satisfied that Mr McKenzie owned “Russia” and that “Russia” had attacked “Narla” and “Skip”.^[11] In relation to the charges under s 57(2), the Judge considered that:

[58] There is no prospect that a defence of total absence of fault could be made out. There were similar attacks by Mr McKenzie’s dog “Russia” in the space of a few days on 27 March and 31 March 2020 against two different victim dogs. Further, Mr McKenzie allowed his dog “Russia”, which was classified as a menacing dog into a park to which the public had access and were in fact present, without a muzzle, which is in itself an offence. “Russia” was not on a lead and was unmuzzled and was uncontrolled.

[14] In relation to the charge under s 53 of failing to keep “Russia” under control on 27 March 2020, the Judge considered that because “Russia” was not muzzled, not on a lead and out of sight of its owner, the dog was clearly not kept under control within the meaning of s 53.^[12]

[15] The Judge was unsure why Mr McKenzie had been charged under s 52A in respect of the 31 March 2020 incident rather than s 53, but was satisfied that Mr McKenzie had failed to keep “Russia” under control on his property so that the dog was able to freely leave the property and roam at large in the park.^[13]

[16] In relation to the two charges under s 33EC in respect of both incidents — that Mr McKenzie, as the owner of “Russia”, which was classified as a menacing dog, failed to comply with the legal effect of the menacing dog classification in allowing the dog to be at large in a public place when not muzzled and not confined in a vehicle or cage — the Judge found all of the elements proven.^[14]

The appeal in the High Court

[17] The grounds of appeal were recorded by Churchman J as being those stated in Mr McKenzie’s notice of appeal:^[15]

I was unable to attend court due to been [sic] COVID positive and sick in bed. I provided two positive RAT test [sic] and a medical certificate, was instructed via phone not to attend and isolate was never given the opportunity to defend myself.

And, as Mr McKenzie subsequently amplified, that he was:^[16]

... unable to attend the court due to been [sic] symptomatic with COVID 19, I had contacted the Ministry of Justice multiple times by phone and email 2 days prior to my court date who had informed me I wouldn’t be allowed to attend court with COVID-19.

[18] The Judge declined to allow Mr McKenzie to adduce the medical certificate as evidence in the appeal on the basis that there was nothing to indicate that the doctor providing the certificate had actually seen Mr McKenzie and nothing to indicate that the COVID-19 diagnosis reflected anything other than Mr McKenzie’s self-reporting. Further, there had never been any response from the doctor to the Court’s enquiry regarding the circumstances in which the certificate was issued.

[19] The Judge had before him affidavit evidence of a Court Registry Officer, Ms Menzies, setting out the events that led up to the District Court hearing. We do not have that affidavit and rely on the Judge’s description of the evidence about what happened after Mr McKenzie advised the Court by email on 3 May 2022 that he had COVID-19 and was “confused on what happened with Court procedure”.^[17] The Judge recounted the following:

[9] ... On 4 May 2022, [Ms Menzies] received a follow-up email from the appellant, which attached a photograph which appeared to show two positive RAT tests sitting on top of a copy of the appellant’s birth certificate.

[10] Ms Menzies deposes that she responded twice to the appellant on 4 May. The second of those emails indicated that the Court required an independent RAT test result from a pharmacy and informed the appellant that Central City Pharmacy on Victoria Avenue could facilitate this for him. He was asked to drop off the results before 10am the following day.

[11] The appellant responded to that email on 4 May saying, “OK, IL [sic] tried do it for the morning. ...” The email concluded by saying, “I’m pretty tied up in bed but IL hopefully have a representative tomorrow at court if I’m to [sic] crook to move.”

[12] Ms Menzies also telephoned the appellant shortly after 5pm on 4 May 2022 confirming the requirement for a supervised RAT test, and received an acknowledgement from him that he was happy to do that.

[20] After noting the circumstances in which the hearing proceeded, Churchman J continued to record Ms Menzies’ account of events after the hearing:

[15] At 1.19pm on 5 May, the appellant emailed the Court with a copy of a medical certificate dated 5 May. The medical certificate stated:

Mr Nicholas McKenzie has tested positive for infection with COVID 19 and will therefore be unable to attend work from 04 May 2022 for 7 days, or until he has been symptom-free for 24 hours.

[16] There was no indication that the doctor issuing a certificate had personally examined the appellant. Neither was there any connection in the certificate that would indicate that the doctor knew of the fact that the appellant had been asked to undertake a supervised test, or even that the doctor knew of the Court proceeding.

[17] On 5 May 2022 at 2.18pm, Ms Menzies emailed the medical centre that had provided the certificate enquiring whether the appellant had attended in person. Ms Menzies says that the purpose of this message was to ascertain whether the doctor had independently verified the appellant’s COVID status or whether that information had been self-reported to her by the appellant. No response was received to that request.

[21] On the basis of this evidence, the Judge considered the statement in the notice of appeal was not accurate because Mr McKenzie had not provided the medical certificate to the Court and then been subsequently instructed not to attend the hearing — the medical certificate was not provided until after the hearing. The Judge also regarded as a “significant misrepresentation” Mr McKenzie’s further assertion at the hearing that he had contacted the Ministry of Justice multiple times two days before the court date and been informed that he would not be allowed to attend court with COVID-19.^[18]

[22] The Judge took into account the lack of any explanation by Mr McKenzie for failing to provide independent confirmatory evidence that he had COVID-19 and Mr McKenzie’s prior requests for adjournments, which he considered justified the District Court Judge’s scepticism as to the genuineness of his claim.^[19]

[23] Churchman J concluded:

[49] I am satisfied that there were simple, reasonable steps that the appellant could have taken (and in fact told the Registrar that he would undertake) that would have provided reliable evidence allowing the Judge to conclude that the hearing should be adjourned yet again. Such an adjournment would have logically been on the grounds that the appellant’s inability to attend Court was not his fault.

[50] ... I reject the account given by the appellant in the notice of appeal as to his interaction with the Court Registrar about what was required from him in advance of the hearing.

[51] Accordingly, I conclude that the failure to attend the hearing was voluntary and that the hearing was not unfair.

[24] The Judge turned to consider whether there had been anything about the hearing that resulted in a reasonable possibility that another verdict would have been reached. Mr McKenzie claimed that he had lost the opportunity to call a neighbour who would have given evidence that she had not seen his dog leave the property on 27 March 2020, thereby supporting his claim that the dog’s identity had not been proved. However, viewed against the evidence given by the two witnesses who actually saw the alleged offences, and Mr McKenzie’s acknowledgement that “Russia” had been in two fights in the park and his offer to pay the veterinary costs, there was no reasonable possibility that the evidence of Mr McKenzie’s neighbour could have altered the result of the hearing.^[20]

[25] In relation to the incident on 31 March 2020, Mr McKenzie claimed that his flatmate let the dog out of his car and he therefore had a defence available to him of total absence of fault. Again, however, the evidence precluded that; Mr Perry had described the dog involved in that incident as unmuzzled and roaming uncontrolled. The District Court Judge had considered and rejected the possibility of a defence of total absence of fault. Churchman J concluded that there was no realistic possibility of a different result if Mr McKenzie’s flatmate had given evidence.^[21]

The application for leave to bring a second appeal

[26] Mr McKenzie’s application for leave identified as the ground for the application as follows:

This is a miscarriage of justice due to the fact the appellant was not able to be present in court to appear and give evidence as protected by the [New Zealand Bill of Rights Act 1990]. The High Court Covid-19 protection framework in place at the time clearly states that the appellant was not allowed [to] enter the court building. He was advised by the [R]egistrar not [to] attend. He was not given the option [to] appear remotely. He was also denied access [to] independent RAT testing as required by the court [to] appear.

[27] However, in submissions filed in support of the application, Mr McKenzie addressed the question of his failure to appear only briefly. In doing so he asserted — for the first time — that he had attempted to have an independent COVID-19 test but was turned away:

Mr McKenzie was legally bound to disclose his Covid-19 [status] to the Pharmacy and Covid-19 testing station or could’ve faced prosecution. The pharmacy in central Wanganui denied Mr McKenzie entry when he told them of his Covid-19 [status]. Evidence on this has already been submitted in the Leave of appeal.

[28] Most of Mr McKenzie’s submissions were addressed to challenging aspects of “Russia’s” classification (including Ms Troughton’s evidence that Mr McKenzie had been served with the classification notice) and challenging the evidence of Ms Graves and Mr Perry. For reasons given earlier, we decline to consider the issue of “Russia’s” classification.^[22]

[29] The critical issue is whether the High Court Judge erred in his assessment that there was no unfairness in proceeding in Mr McKenzie’s absence and that the evidence Mr McKenzie would have adduced could not have affected the outcome. We are satisfied that the Judge did not err.

[30] The COVID-19 framework and the protocols being followed in the courthouse that would have prevented Mr McKenzie from attending the hearing were only relevant if Mr McKenzie actually had COVID-19. Given the history of the proceeding and the costs and inconvenience to the several witnesses who were obliged to attend, it was not unreasonable for the District Court Judge to require some independent verification of Mr McKenzie’s claim to have tested positive. It must have been evident to Mr McKenzie that the medical certificate was inadequate for that purpose. Churchman J was entitled to reach the conclusion he did. We add here that Mr McKenzie’s new — and unsubstantiated — claim of going to a pharmacy and being refused entry is entirely at odds with his previous narrative that he was too unwell to go to the pharmacy, and simply underscores the basis for the Judge’s concerns.

[31] Nor do we see any error in Churchman J’s assessment that the evidence Mr McKenzie would have adduced did not create any risk of a different outcome. The evidence before the District Court Judge was compelling in terms of both “Russia’s” identity, the dog’s actions and Mr McKenzie’s omissions. It was open to Churchman J to conclude that none of the evidence Mr McKenzie wished to rely on was likely to have altered the outcome.

Result

[32] An extension of time is granted to bring the application for leave to appeal.

[33] Leave to adduce further evidence is declined.

[34] The application for leave to bring a second appeal is declined.





Solicitors:
Whanganui District Council, Whanganui for Respondent

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^[1] Whanganui District Council v McKenzie CRI-2020-083-1329, 5 May 2022 at [5].

^[2] Whanganui District Council v McKenzie [2022] NZDC 9806 [District Court judgment].

^[3] Whanganui District Council v McKenzie [2022] NZDC 12744.

^[4] Dog Control Act 1996, s 57(3). Mr McKenzie did not apply for a stay of the destruction order but the Council has not implemented that order pending the outcome of the present application.

^[5] Criminal Procedure Act 2011, s 232(4)(a) and (b).

^[6] McKenzie v Whanganui District Council [2022] NZHC 2345 [High Court judgment].

^[7] Criminal Procedure Act, s 253(1).

^[8] Section 255(2). A notice of application for leave to appeal must be filed within 20 working days after the date of the determination appealed against.

^[9] Section 255(3).

^[10] District Court judgment, above n 2.

^[11] At [55] and [57].

^[12] At [62].

^[13] At [65] and [69].

^[14] At [72]–[75].

^[15] High Court judgment, above n 6, at [18]

^[16] At [20]

^[17] At [8].

^[18] At [21].

^[19] At [47]–[48].

^[20] At [53]–[58].

^[21] At [59]–[66].

^[22] At [5] above.