H v Police CRI 2009-404-375 HC Auckland [2010] NZHC 611 (20 April 2010)

Last Updated: 13 December 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2009-404-375}

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 19 April 2010

Appearances: G E Minchin for the Appellant

E R Harrison for the Police

Judgment: 20 April 2010

_{RESERVED JUDGMENT OF ELLIS J}

This judgment was delivered by me on 20 April 2010 at 1.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140

Counsel: G E Minchin, PO Box 121-464, Henderson, Auckland 0650

H V POLICE HC AK CRI 2009-404-375 20 April 2010

[1] This is an appeal against a forfeiture order made by Her Honour Judge Tremewan on 13 August 2009 at the Waitakere District Court. The forfeiture order was made under s 172(1) of the Animal Welfare Act 1999 and related to a dog belonging to Mr H (the appellant).

[2] The forfeiture order was a culmination of a series of events relating to Mr H and the dog, Connie. More particularly, on 15 May 2008 following a defended hearing before Judge Tremewan, Mr H was convicted of

a) Transporting an animal in a manner that caused unnecessary distress contrary to ss 23(1) and (25) of the Animal Welfare Act 1999; and

b) Driving a motor vehicle whilst under the influence of alcohol to such an extent that he was incapable of having proper control of the vehicle contrary to s 58(1) of the Land Transport Act 1998.

[3] The essential facts of the Animal Welfare charge were that Mr H had shut Connie in the crowded boot of his car on a hot day and had then driven around for some time while she remained inside. Connie was subsequently placed in the charge of the SPCA and has remained in their care since 29 January 2007.

[4] As a result of his conviction on the Animal Welfare charge Mr H was ordered to come up for sentence if called upon within 12 months. In her judgment dated 15 May 2008 Judge Tremewan also indicated that Mr H was to discuss Connie’s position with the police and the SPCA and that if no agreed resolution was possible the future of the dog might need to come back before the Court.

[5] Mr H ’ appeal against conviction and sentence was subsequently heard and dismissed by Justice Keane on 23 September 2008.

[6] As matters transpired the police, the SPCA and Mr H were unable to come to an arrangement regarding future care of Connie. It appears that on

19 January 2009 the police sought to bring the matter back before the Court by filing an application for a rehearing under s 75 of the Summary Proceedings Act.

Mr H was advised of this and copies of a memorandum of submissions together with an affidavit from Ms Lombard of the SPCA were sent to him at that time.

[7] The memorandum of submissions is stated to relate to “this application for rehearing as to sentence” and made it clear that the application was made further to paragraph 83 of Judge Tremewan’s judgment. What was sought was the forfeiture of the dog to an approved organisation pursuant to s 172 and the recovery of expenses of over $5000 that had been incurred by the Police as a result of Connie’s placement with the SPCA. The affidavit set out Ms Lombard’s historical involvement with Connie and her view as to what care would be best for Connie in future.

[8] By June 2009 Mr Minchin was acting for Mr H and he filed submissions in that capacity dated 23 June 2009. Those submissions focused on three matters:

1. The threshold for rehearings under s 75 (whether a rehearing is necessary to avoid a miscarriage of justice);

b) Delay (the incident giving rise to the conviction having occurred on

28 January 2007, with conviction being entered in May 2008);

100. The disproportionality of the penalty being sought (being forfeiture and recovery of expenses) and the offence.

[9] There was no focus in the submissions on the criteria for forfeiture under s 172, namely whether or not forfeiture was desirable for Connie’s protection.

[10] When the matter came before Judge Tremewan on 13 August 2009, Mr H did not appear. She adjourned the hearing until 2.15 pm in order to give him an opportunity to attend but he did not arrive. As her judgment records, she was advised he had had car trouble. Judge Tremewan ordered that Connie be forfeit to the SPCA but declined to order that Mr H pay the police their costs. Her

judgment clearly sets out her reasons for making the forfeiture order. While accepting that Mr H cared for Connie, the judge’s reasons were squarely based on her assessment of what would be best for Connie’s future welfare.

[11] On 24 September 2009 Mr H appealed the forfeiture order to this Court. Although that appeal was technically two weeks out of time, it appears there may have been good reasons for that and counsel for the New Zealand Police, Ms Harrison, responsibly did not seek to take that point before me today. On that basis, I am prepared to extend the time prescribed for bringing the appeal pursuant to s 123 of the Summary Proceedings Act 1957.

[12] The notice of appeal (which was drafted by Mr H ) advanced six grounds of appeal:

1. The forfeiture order should not have been granted without the appellant’s attendance, he being absent for medical reasons.

2. The order should not have been granted at a time outside of the sentence of “come up if called upon”.

c) The respondent and the SPCA improperly misrepresented the facts.

4. Judge Tremewan was manifestly wrong in not dismissing the application.

e) The decision was not in the best interests of Connie’s welfare.

6. The application was not timely and should have been dismissed on the basis of undue delay.

[13] The first ground was quite properly not maintained by Mr Minchin before me. There was no evidence before Judge Tremewan as to Mr H ’ medical condition and, as I have said, she was in fact advised that his non-attendance was the result of car trouble. Also quite properly, Mr Minchin did not seek to contend that there had been a misrepresentation of the facts by either the police or the SPCA. The

reality is that there was no evidence before Judge Tremewan that contradicted what Ms Lombard said in her affidavit and, as I note later in this judgment, nor was there anything to that effect before me.

[14] As to the remaining grounds, Mr Minchin’s principal focus in argument was on the fact that because the matter was brought before Judge Tremewan as an application for a rehearing under s 75, Mr H did not focus squarely on the grounds for forfeiture under s 172. The suggestion necessarily was that Mr H would have ensured that he attended the hearing before Judge Tremewan had he realised that potential forfeiture was the real focus of the application. That said, however, it was accepted by Mr Minchin that Judge Tremewan was, by virtue of s 61(b) of the Summary Proceedings Act 1957, entitled to proceed in his absence.

[15] Relatedly, Mr Minchin referred to the absence of evidence from Mr H as to his own ability to care for Connie, or evidence of some other kind contradicting the statements made by Ms Lombard. He also sought leave to tender as further evidence before me a letter from the Northland Veterinary Group Limited in relation to Mr H ’ care of another dog named Gina. Ms Harrison did not object to my having regard to the contents of this letter.

[16] I am prepared to accept that the reliance by the police on s 75 may have had a distracting effect on Mr H and his counsel. As I have said, the s 75 threshold did form a considerable part of Mr Minchin’s submissions before Judge Tremewan. My reading of the papers also suggests that Mr H may, at the time of the hearing before Judge Tremewan, have been particularly focussed on the costs application against him (which did not ultimately succeed) rather than the question of forfeiture.

[17] That said, however, I also consider that Mr H nonetheless had ample notice of the police’s intention also to apply for forfeiture under s 172 and of the grounds on which they were doing so. Mr H had over six months to consider his position in that respect and to arrange for any necessary evidence to be before the Court. In that respect I also feel bound to say that the contents of the letter that was

tendered to me would, in my view, have made little, if any, difference to

Judge Tremewan’s assessment as to what was desirable for Connie’s protection.

[18] Accordingly, and notwithstanding Mr Minchin’s very fair and lucid submissions on behalf of Mr H , I do not consider that the remaining grounds of appeal can succeed. In particular I consider that:

a) From my review of the facts and evidence there is no basis for concluding either that Judge Tremewan was manifestly wrong in not dismissing the application or that the decision was not in the best interests of Connie’s welfare. Judge Tremewan was well acquainted with the facts of the matter and with Mr H ’ position. She had the benefit of Ms Lombard’s affidavit and as Mr Minchin accepted, she was entitled to take account of Mr H ’ previous animal welfare convictions.

b) The application was not untimely in all the circumstances of the case.

Judge Tremewan had specifically allowed time for the parties to attempt to reach agreement. There is no time limit for making an application under s 172(1) of the Animal Welfare Act, which is contingent only on the entry of a conviction for a defence against the Act. There was no evidence before me as to what impediments there were to that result but I am unable to see how Mr H was in any event prejudiced by the “delay” of seven months between his conviction and the making of the application which was, as Ms Harrison submitted, potentially to Mr H ’ benefit.

_{[19] The appeal is dismissed.}

Rebecca Ellis J