Police v Ransom [2020] NZDC 16853 (23 June 2020)

Last Updated: 26 February 2022

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT HAMILTON I TE KŌTI-Ā-ROHE KI KIRIKIRIROA

CRI-2019-019-006648 [2020] NZDC 16853

NEW ZEALAND POLICE Prosecutor

v

HARLEY KIRK CLARENCE RANSOM Defendant(s)

Hearing:	23 June 2020
Appearances:	Sergeant M Hepworth for the Prosecutor S Cameron for the Defendant
Judgment:	23 June 2020

ORAL JUDGMENT OF JUDGE N D COCURULLO

[1] Mr Ransom has been charged that on 26 October 2019 at Morrinsville he did ill-treat an animal namely a dog by lifting it off the ground by a dog lead without support.

[2] The charge is in contravention of s 29(a) of the Animal Welfare Act 1999 and carries as I understand it, a maximum penalty of 12 months in prison or a fine not exceeding $50,000.

[3] I grant[ed] one application to amend the charging document to change the stated maximum imprisonment from three years to 12 months.

NEW ZEALAND POLICE v HARLEY KIRK CLARENCE RANSOM [2020] NZDC 16853 [23 June 2020]

[4] At the close of this defended hearing and after submissions, the Sergeant sought my leave to amend the charging document to include not only a lifting of the dog off the ground but also a hitting of the dog. That amendment was opposed and I indicated as I do now that I would decline to amend the charging document.

[5] I am aware that I can amend a charging document at any time prior to decision. That said I need to ensure fair trial rights to the defendant. This matter has been before the court now for some seven months.

[6] The police have proceeded with the prosecution on the basis that the actus reus was lifting the dog off the ground. Whatever the situation and mindful that there was a blanket denial from the defendant of hitting the dog, in my view it is against the defendant’s fair trial rights to at such a late stage grant, any amendment to the charging document in a way the Sergeant seeks.

[7] Before I turn to the evidence that I heard, I am well aware of the onus and burden of proof that rests with the police. They are to prove each and every ingredient of the charge beyond a reasonable doubt.

[8] This is a strict liability offence and in reference to s 30 of the Act, the police do not have to prove a mens rea intention. Quite clearly the defendant is not advancing under s 30 those matters that are set out in s 30 and particularly s 32(b) because he said that the actions that he caused to the dog, I now know as Sabbath, were because he was not having a good day and was angry and somewhat agitated.

[9] There seemed to be no defence contention of a defence posed under s 32 in particular s 32(b) and so it seems to me that the issues that I need to consider are firstly whether the defendant was the person involved with the dog on this occasion, whether the time date and place as alleged are generally correct and considering the section as charged, an interpretation against s 2 of the Animal Welfare Act 1999, of what I make against a determination of the facts this notion of ill-treatment.

[10] Quoting from the Act:

“ill-treatment, in relation to an animal, means causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary”.

[11] There is no issue as to time date and place. There had been a challenge to identification. I will touch upon identification briefly in the decision but I am satisfied beyond a reasonable doubt that it was the defendant who had the control of his dog Sabbath on this occasion and is alleged to have lifted Sabbath off the ground.

[12] The matter at issue appears to be factually whether at the time Sabbath was lifted off the ground, he was lifted by a lead attached to what I infer is a body harness or whether he was lifted by a lead attached to a collar around his neck. There is no contention by the prosecution witness or the defendant that Sabbath was not lifted off the ground because both accept that he was.

[13] Following the determination about the issue of a collar or a harness, I then of course need to consider the definition and in this case, I can indicate to all that I intend to focus on not pain but distress which is the first point. The second is suffering of distress that in its kind or degree or in the circumstances upon which it is inflicted is unreasonable and or unnecessary.

[14] The first witness I heard from was [name deleted - the witness]. He is a veterinary surgeon but was not called to give expert evidence. He works locally as a vet and for a period of time had a small animal practice. On the morning of 26 October he had taken his dogs for a walk. He saw a man coming out of a long driveway. On a lead was a black Labrador cross and he said the man was screaming at the dog and he said that the man lifted the dog by the lead hanging the dog in the air.

[15] He said he saw something in the man’s hand and thought it was a stick, one of those tennis ball throwers for dogs then to retrieve the ball. He said that the man then whacked the dog quite hard and he observed in his words: “the dog flatten itself out in a defensive position”. He said he started to say something and the man noticed he was there and he told me that the man said to him the words: “what are you looking at

cunt?”. He then said that the man remonstrated with him and told him not to look at him or he would “fuck him up” and told [the witness] to look away.

[16] He then said the man started moving towards him with fists clenched and he thought discretion was the better form of valour. He looked away and turned around crossing the road. He said that the man started walking with the dog. He was screaming at the dog indicating that he was going to put it down and his concern was such that when he got home, he called the police and a constable attended.

[17] He said that from what he saw for a short period of time one to two seconds this dog was hanging and he saw him start to hit the dog saying that the dog was off the ground for a couple of seconds. He said that the dog was clearly distressed and the hits were quite forceful in the sense that in [the witness]’s observation, the man gave the hits all that he could. He thought the dog was about six months of age.

[18] He said to me somewhat spontaneous today that having seen Mr Ransom today may well have recognised him from his employment - that at the time he did not. He told me that the officer came and showed him some photographs and he immediately pointed out photograph 6 as Mr Ransom.

[19] He was cross-examined. He was adamant that the person he picked out was the person that he saw on the day and that he was not affected by what he now described to the court of a previous work stage employment environment.

[20] He was challenged as to whether the dog was lifted up on in fact a harness and he was adamant that it was not a harness and again he described that the dog was hanging and as I recall the evidence, asserted that the dog was picked up completely off the ground by the pulling on a lead that was attached to a collar.

[21] [The first Constable] now works in Hamilton but was general duties here at the time. He was responding to this call to the police by himself and on Oak Street in responding to the call, he recognised Mr Ransom. He said he matched the description of track pants and hoodie. He had a red dog throwing stick with him and had a dog on a lead and a collar.

[22] He too was of the view that there was no harness and the dog was on a collar and lead. He observed Mr Ransom walking towards him and he then proceeded into Campbell Park. He yelled out to Mr Ransom that he wanted to speak with him. He said Mr Ransom told him to “fuck off”, and that he had no reason to speak with him and so on further contact with Mr Ransom from the police car, he told him that he was under arrest. Mr Ransom remonstrated with him on the basis that there was no proper reason for him to be arrested.

[23] Back up in the form of as I understand it a traffic unit and [a second Constable] arrived and it seems that upon arrest, Mr Ransom with Sabbath got into the patrol car and went back to the station.

[24] A statement a brief one at that was obtained from the defendant and he denied any wrong doing. He firstly said that he did not understand why he was under arrest and the officer went to explain that there is no challenge to the Bill of Rights advice given.

[25] The platform singularly of the prosecution case is that Mr Ransom was the man responsible for lifting Sabbath off the ground by a lead attached to a collar around the neck and that such caused Sabbath to suffer pain or distress that in its kind or in its object or in the circumstances in which it is inflicted is unreasonable and or unnecessary.

[26] Mr Ransom was the sole witness for the defence case. He was sworn and said that Sabbath is about eight or nine months old. He confirmed that it was him on the day on Oak Street. He had gone to see friends at a house there. He had Sabbath with him and the tennis ball thrower.

[27] He said that there had been a problem with Sabbath at the address nipping people and that he had to leave - Sabbath being a bit rough. He said that he came out on to Oak Street veering on to River Road and that he verbally told the dog off and lifted the dog by its harness and after he did that, he picked the dog up when it was laying on the ground to go to lift it over a fence.

[28] What he specifically said to me was: “I believe that it was wearing a full body harness”. The defence asserts that at no time was Sabbath lifted up by a collar but was lifted up by a harness believed to be a full body harness. He confirmed that the man was there the civilian witness and confirmed that he was angry and said to the man to mind his own business. Mr Ransom saying his anger was because he was not having a very good day that there had been incidents before this and in his words he was agitated a sense of being aggressive or agitated.

[29] He said that he did not hit Sabbath but then said to me - I do not recall ever striking the puppy. On cross-examination he said that he was homeless at the time and did not go to the address looking for accommodation. He said that the dog was behaving like a puppy and was frustrated with the dog. He said that he was angry and conceded that he had taken his anger out on the dog and accepted that there was no reason for the dog to be lifted up. He denies the other parts of the police case.

[30] The first determination is of Mr Ransom’s behaviour. It is beyond any doubt that Mr Ransom prior to the assertion of lifting the dog up was agitated and aggressive. That is informed from the evidence he gave and the observations of [the witness]. In addition to that, he addressed words to [the witness] that were abhorrent. He told [the witness] to mind his own business and advanced upon [the witness].

[31] If Mr Ransom was endeavouring to persuade me that notwithstanding his anger, he coolly and calmly dealt with this dog, I utterly reject that contention. I find beyond a reasonable doubt that he was in a volatile state and was aggressive and did take whatever had occurred to him out upon the dog.

[32] I had thought that identification was going to be an issue. In the fullness of time, it is not. The defendant accepts that he was the person with the dog at the time. Had he not, the matter would have been quite straight forward. I saw the way [the witness] responded to his belated observation of having known the defendant in the employment environment.

[33] I was satisfied beyond a reasonable doubt that the photo montage was prepared in proper process and that instinctively he pointed out number 6 being the defendant

because in his view that is the person that he saw on the day with the dog. For the avoidance of any doubt identification is beyond any issue and I find Mr Ransom to be the person with the dog.

[34] An ancillary issue before I move to the aspect of the harness and/or collar is this notion of striking the dog. I heard the way that [the witness] gave his evidence. There was an ambivalence from Mr Ransom’s evidence. When I leaned to that Mr Ransom being agitated volatile aggressive and taking out whatever had happened to him on the dog, I have an utterly clear view and find beyond reasonable doubt that Mr Ransom did hit this dog on at least one occasion with this plastic tennis ball thrower and probably twice and I accept [the witness]’s evidence that he did it as hard as he could. For the avoidance of doubt I reject the defendant’s position in reverse.

[35] I then come to the harness. Mr Ransom told me that the harness was at home

- certainly not here for me to see. He said that family members might be able to come to attest in support of the aspect of the harness. I put completely to one side the notion of any suggestion of lifting the dog over a fence or a barrier was not put to [the witness] and ought not to feature in my consideration.

[36] Mr Ransom in my view has invented the presence of a harness. He said he believed it was in a full body harness. It was an ambivalent statement in itself. I was not impressed. He was doing that to minimise the threshold against the interpretation I need to make about whether he ill-treated this dog.

[37] I am utterly convinced that [the witness]’s evidence of this young puppy Sabbath being hung from a lead attached to a collar around its neck momentarily for a couple of seconds and I find that there was no full body harness or harness at all and that this dog was wearing a collar as attested by [the witness] and to an extent the constable.

[38] The final issue that I need to consider is this aspect of ill-treatment. I indicated in submissions a focus on distress. The circumstances here were little. This was an eight to nine month old puppy the defendant tells me who was nippy and apparently for that reason he needed to leave the address. The circumstances here are not an

explosive situation but for the bad day and the aggravated position the defendant was in.

[39] I look here to [the witness]’s observation of the dog hanging cowering then in some distress and for the moment put aside the aspect of hitting the dog that part not being charged as a narrative in my refusing leave out of fairness to the defendant to include.

[40] I have a clear view beyond doubt that what has happened here is that through the defendant’s action Sabbath has suffered at least distress from Mr Ransom lifting him by the lead attached to the collar around the neck whereupon Sabbath has cowered down in a distressed state and in that kind or degree and in the circumstances in which that was inflicted, I have a clear view that when judging that as unreasonable or unnecessary that it was both. In fact both unreasonable and unnecessary.

[41] This is a strict liability offence. I do not have to consider an intention to do so. I find that Mr Ransom caused this suffering of distress in these circumstances as I have set out and the information is proven.

Judge ND Cocurullo

District Court Judge

Date of authentication: 21/08/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.