JOHNSTONE V MANAWATU DISTRICT COUNCIL HC PMN CRI-2009-454-11 [2009] NZHC 902 (29 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
PALMERSTON NORTH REGISTRY
                                                                  CRI-2009-454-11



                             BENJAMIN JOHNSTONE
                                   Appellant



                             
           v



                     MANAWATU DISTRICT COUNCIL
                            Respondent



Hearing:      29 July 2009

Counsel:      O S Winter for Appellant
              R Oakley for Respondent

Judgment:     29 July 2009 at 11am


In accordance
with r 11.5 I direct the Registrar to endorse this judgment with a
delivery time of 11am on the 31st day of July 2009.



      
         RESERVED JUDGMENT OF MACKENZIE J



[1]    This is an appeal against conviction for an offence under s 57(2) of the Dog
Control Act 1996.


[2]    On the afternoon of 18 April 2008, a dog entered the home of
Mr & Mrs Ward in Feilding and attacked their
dog. When Mrs Ward returned home,
she found their dog fatally injured on the floor and noticed another dog standing in
the doorway
of the lounge which then ran past her and out of the back door.


JOHNSTONE V MANAWATU DISTRICT COUNCIL HC PMN CRI-2009-454-11 29
July 2009

Mr Ward, who had just arrived home, saw a dog coming over the gate from within
the section and running towards his vehicle
into the street. He followed the dog to a
neighbouring house where it tried to enter the property through the gate. When it
failed
it turned around the corner and disappeared. More than half an hour later a
animal control officer found the appellant's dog Kya
on the porch of the appellant's
house at that address.


[3]     Section 37(2) provides that the owner of a dog involved in such
an attack
commits an offence. The prosecution case was that Kya was the dog involved. The
principal issue in the District Court was
whether the identity of the attacking dog had
been established to the requisite standard. The challenge on this appeal is to the
Judge's finding that identity had been established.


[4]     The case was heard over two days in September and December 2008 and
Judge Ross delivered a reserved decision on 5 February 2009. He described the
main issue in these terms:

        [5]    The crux
of the identity of the attacking dog issue is the defence
               assertion that neither Mr nor Mrs Ward were certain on their
return
               home that the dog each of them saw separately, inside and outside
               the house, was in fact Kya.
The risk, it is claimed, is that they each
               immediately assumed it was Kya, even if in their original statements
 
             to a dog control officer they did not provide a fully accurate
               description of Kya with any particular
identifying features.
               Moreover, the defence claims that because of this early-formed
               assumption by
the Wards that it was in fact Kya they had seen at
               their place, it was straightforward and logical for Mr Ward to
pick
               out Kya as the attack dog from the line-up at the pound.

               There are some other issues which relate
to that "identification
               parade" and a number of other factors raised in evidence which the
               defence
says means that the evidence of identification of the dog
               (principally from the Wards) must be approached with the
utmost
               caution, and that there is a sufficient risk that they might be mistaken
               about this that I should
be left with a reasonable doubt.

[5]     He then considered the evidence of Mr and Mrs Ward as to what they had
seen.   In doing
so he referred to cross-examination as to why neither Mr or
Mrs Ward had, in their initial statement to a dog control officer about
the incident in
the following week, given an identifying detail of the white chest of the dog which

they saw. That detail formed
part of their evidence at trial and is at the heart of this
appeal.


[6]       The Judge then discussed evidence of an identity parade conducted at the dog
pound, which evidence was the subject
of objection. The Judge did not specifically
rule on the objection as he said that it was not strictly necessary for him to take
the
pound identification evidence into account in any event.


[7]       On the key question of the credibility of Mr and Mrs Ward's
identification,
the Judge said that he was impressed by Mr and Mrs Ward as witnesses and
described them as both credible and honest.
He held that Mrs Ward's evidence alone
would be insufficient to find that Kya was the attacking dog but that Mr Ward's
evidence,
which he described as given in a straight forward way without
prevarication and so far as he could tell without emotion or rancour
was effectively
of an immediate link between the dog he saw as being the neighbour's dog. He said
that he did not give the impression
of a vindictive man jumping to a conclusion and
that he said the he achieved certainty of identity of the dog in his own mind. The
Judge accepted his evidence and did not think that he was mistaken. The Judge also
referred to other evidence.


[8]       The Judge
referred to a decision of mine in Namana v Masterton District
Council HC MAS CRI-2007-435-6 14 December 2007 where I had said, of
the need
for caution before convicting a dog owner in reliance upon the correctness of
identification evidence, that s 67A of the
Summary Proceedings Act 1957 applied in
principle, either directly or by analogy. The Judge said:

          [24]   Assuming then
caution is required, my acceptance of the evidence of
                 Mr Ward as to the correctness of his identification of the
dog and
                 subsequently leading to the owner, is not a bald acceptance merely.
                 It is in the context
of the whole history he had with and knowledge
                 of the offending dog, the steps he took, the reports he made, the
                 timeliness with which these were made, and the reasons he ascribed
                 for the steps and the reports.
On this basis, I consider there to be
                 such an insufficient chance that he might be mistaken that I am not
     
           left in any reasonable doubt about the issue.

[9]       Mr Winter, in support of the appeal, submits that the Judge could
not, on the
evidence, properly have reached the conclusion that the identity of the dog was

established beyond reasonable doubt.
Mr Winter drew attention to a number of
features of the evidence of Mr and Mrs Ward, and relied principally on the
proposition that
neither of them had, in their initial descriptions, mentioned that the
dog which they saw leaving their house had a distinctive white
blaze on its chest, a
feature which they each described in their evidence. Mr Winter submits that there is
a danger that their later
description of that marking results from their having
subsequently linked the dog which they saw with the appellant's dog, which
does
have such a marking.


[10]   On this point, the assessment of Mr and Mrs Ward's evidence was a matter
for the trial Judge.
He had the benefit of seeing and hearing them give evidence and
was in a much better position than this Court to assess the credibility
and reliability
of their evidence. He made the findings to which I have referred. He specifically
adverted, in paragraph [5], to
the risk which Mr Winter has identified.             He
specifically dealt with the cross-examination as to the lack of reference
to the
identifying marking in their initial statements and took those matters into account in
making his assessment of the credibility
and reliability of Mr and Mrs Ward as
witnesses. There is no proper basis upon which this Court could disturb the Judge's
factual
findings in this respect.


[11]   Mr Winter submits that there was other evidence which should have given
rise to a reasonable doubt.
There were a number of matters to which he referred. It
was for the Judge to assess the importance of those matters, and in his carefully
reasoned decision the Judge reviewed the evidence
in considerable detail. He did not
find that the various matters were sufficient to preclude a finding that the identity of
the dog
was established beyond reasonable doubt. Again, the assessment of the
evidence was for the Judge and this Court could not properly
interfere.


[12]   The next item which Mr Winter challenged was the identity parade.
Counsel's submission was that, if an identity
parade of dogs was to be used, by
analogy with s 45 of the Evidence Act 2006, then similar procedures to those
prescribed by s 45
ought to have been followed. Clearly, s 45 did not apply. That
section applies only to visual identification evidence of a person
alleged to have
committed an offence. That does not preclude the use of a procedure similar to an

identity parade for the purpose
of obtaining evidence as to the identity of a dog.
Such a procedure need not follow the requirements of s 45, but it must necessarily
be
conducted in a way which gives the evidence probative value. Mr Winter submits
that under s 8 of the Evidence Act, the probative
value of the identification parade
here did not outweigh its potential prejudicial effect. The prejudice which might
result from
an identity parade is that the wrong dog may be identified. That risk
means that care needs to be taken to minimise that risk, and
to ensure that undue
weight is not accorded to the evidence. I consider that that was an assessment which
it was for the trial Judge
to make and I do not consider that this Court should lightly
interfere with the decision of the trial Judge on this aspect. That
is particularly so,
given that Judge Ross placed little reliance on that evidence in any event. I do not
consider that any error
in the approach to that evidence has been demonstrated.


[13]   Mr Winter also referred to the decision of Lang J in Tito v Waikato
District
Council HC HAM CRI-2008-419-62 24 October 2008 in which the need for caution
in identification evidence was emphasised.
Mr Winter also referred to the decision
of Fraser J in Kingi v Invercargill City Council  [1989] 5 CRNZ 394 as being a
reminder of the need, in a case such as this, to prove the identity of the dog beyond
reasonable doubt.


[14]   The decision
whether the identity was proved beyond reasonable doubt was
quite clearly in the Judge's mind and that is the conclusion which he
reached
following his consideration and analysis of all the evidence. In doing so he clearly
reminded himself, as required, of the
need for caution in relation to identification
evidence. There is no error of law or of principle in the approach adopted by the
Judge. The findings or fact which he reached were open to him and, for the reasons I
have given, this Court could not properly interfere
with those findings.

[15]     For these reasons, the appeal is dismissed.




                                                
                      "A D MacKenzie J"

Solicitors:     WinterWoods Lawyers, Palmerston North for Appellant
                Cooper
Rapley Solicitors, Palmerston North for Respondent