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High Court of New Zealand Decisions |
Last Updated: 7 September 2012
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2011-463-73 [2012] NZHC 2264
BETWEEN CAROLYN ROSE KING Appellant
AND SOUTH WAIKATO DISTRICT COUNCIL Respondent
CRI 2012-463-8
AND BETWEEN SOUTH WAIKATO DISTRICT COUNCIL Appellant
AND CAROLYN ROSE KING Respondent
Hearing: 30 July 2012
Counsel: S N Ngapo-Lipscombe and A E Ngapo-Lipscombe for Ms King
M J Hammond and S Plant for South Waikato District Council
Judgment: 4 September 2012
JUDGMENT OF HEATH J
This judgment was delivered by me on 4 September 2012 at 4.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Ngapo-Lipsombe Law, PO Box 518, Tokoroa
Tompkins Wake, PO Box 258, Hamilton
KING V SOUTH WAIKATO DISTRICT COUNCIL HC ROT CRI 2011-463-73 [4 September 2012]
The appeals
[1] Following a hearing in the District Court at Tokoroa on 1 and 2 September
2011, Ms King was convicted on two charges brought under s 57(2) of the Dog Control Act 1996 (the Act).1 Both concerned her ownership of a male tan and white American Staffordshire terrier-type dog (Jimbo) that Judge Clapham found to have attacked a rabbit, on 14 November 2010, and another dog (Justice), on 25 December
2010.
[2] Ms King appeals against conviction and sentence. On the conviction appeal, the primary question is whether an owner of a dog who has no ability to exercise control over it at the time of a relevant attack can be convicted in respect of it.
[3] The sentence appeal is directed to the question whether the Judge ought to have made an order that Jimbo be destroyed. That turns on whether the owner should have been convicted. It was mandatory, in the absence of exceptional circumstances, to make a destruction order if the s 57(2) offence was proved.2 The sentence appeal turns on whether the convictions against Ms King were properly entered.
[4] The informant, South Waikato District Council (the Council), brings a separate appeal, by way of case stated on a question of law,3 arising out of the alleged attack on the rabbit. The question of law posed by Judge Clapham is:4
Whether the [Court] was required to make a decision on destruction instead of finding “I also do not propose to consider destruction of the dog in respect of the rabbit”.
1 Section 57 is set out at para [14] below.
2 Dog Control Act 1996, s 57(3). See also Halliday v New Plymouth District Council HC New
Plymouth CRI 2005-443-11, 14 July 2005 at paras [30]–[38] and Wahitapu v Police (2005) 22
CRNZ 43 (HC) at para [24].
3 Summary Proceedings Act 1957, s 107.
4 Case Stated signed by Judge Clapham.
The District Court judgment
[5] Judge Clapham gave judgment orally at the conclusion of the hearing. In relation to the allegation that Jimbo had attacked the rabbit, the Judge found:5
(a) The evidence established that a dog had attacked the pet rabbit at the time alleged.
(b) The owners of the rabbit, Mr and Mrs Barlow, took immediate steps to identify the dog.
(c) It had been proved beyond reasonable doubt, from Mr Barlow’s
identification, that Jimbo was the attacker.
In making his identification finding, the Judge reminded himself of the circumstances in which the identification was made; for example, time, place and light.6
[6] Once Jimbo had been identified, he was seized by a dog control officer and taken to the pound, where he was detained. The alleged attack on Justice occurred in the pound, on Christmas Day, 2010. In relation to that attack, Judge Clapham found:7
(a) Jimbo had taken active steps to reach Justice.
(b) Jimbo’s purpose in entering the enclosure was to confront Justice.
(c) Jimbo was found lying in its enclosure.
(d) Jimbo was in Justice’s enclosure, looking tired, and
5 South Waikato District Council v King DC Tokoroa CRI 2011-77-273, 2 September 2011 at para
[12].
(e) The injuries to Justice were evidence of a successful attack by Jimbo.
[7] At the time of the attack on the rabbit, Jimbo, while owned by Ms King, was in the care and possession of Mr and Mrs Te Whata. At the time of the attack on Justice, the Council officers with responsibility for operating the pound had effective control over Jimbo. On the conviction appeal, the issue is whether Ms King could be convicted as an “owner”, for the purposes of s 57(2), if she were in no position to exercise control over the dog at the relevant times.
[8] Although Ms King did not have physical possession of Jimbo at the time of either attack, Judge Clapham found that she remained responsible for Jimbo’s control and at risk of prosecution under s 57(2).
[9] On the question of penalty, the Judge said:
(a) Attack on the rabbit
[27] The circumstances of the offending of 14 November are that this dog was out on trial so the defendant is convicted and ordered to pay Court costs of $132.89. The reparation claimed is $250. From a view of the hutch that has been made available to me, $180 would be disproportionate. I think there should be an order for payment of the rabbit. I am unable to fix the cost of a rabbit for the timeframe of November 2010, but I accept the figure of $70 is a reasonable figure for reparation.
[28] The defendant is convicted and ordered to pay costs $132.89, reparation of $70, solicitor’s fee which I assess at $150 in respect of that charge.
[29] I also do not propose to consider destruction of the dog in respect of the rabbit.
(b) Attack on Justice
[30] In respect of the offending of 25 December, as I found, it is not necessary for me to decide how it was that Jimbo managed to get into Justice’s compound, but in my view, most members of the community would think that the situation would exist that no such risk could occur, and indeed, as I gathered, the officers themselves were appalled and shocked that it could have occurred at all at the place where they work and no doubt other Council employees were of the same mind. It obviously requires some thought and perhaps a review at the kennels as to the potential for this to occur again.
...
[32] I deal with it by convicting and ordering the defendant to pay the sustenance costs for $921.60, costs of $132.89 and a solicitor’s fee of $150. I feel the veterinary costs should lie with the ratepayers as a whole.
...
[34] The overall impression that I have of this incident at the kennels indicate a high level of risk contrary to the view expressed by Mrs King, who clearly has a greater knowledge on a day-to-day basis of the dog and her experience with it. But here, the pursuit of Jimbo getting into that dog’s kennel and attacking Justice to the extent as disclosed, and the state of Jimbo after that exercise as reflected in the photographs, make it quite clear in my view, that he is a dog that should be destroyed contrary to the position taken by Mrs King.
(Emphasis added)
[10] In addressing whether the “circumstances of the offence were exceptional”,
so as not to warrant destruction of the dog,8 the Judge said:
[35] ... the circumstances of the attack of Jimbo on Justice are not exceptional in my view. They are indicative of a savage attack by Jimbo. Under these circumstances I am unable to find that the circumstance of the attack were exceptional and I am obliged in law, to order the destruction of the dog as upsetting as Mrs King will find that.
Grounds of appeal
[11] Ms King raises five grounds of appeal which, after hearing submissions, I can reduce to four:
(a) Did the District Court Judge apply the correct test in determining whether Ms King, as owner of Jimbo, was guilty of an offence under s 57(2) of the Act? This issue involves a consideration of Baragwanath J’s judgment, in Hamilton City Council v Fairweather.9
(b) Was the Judge correct to find that Ms King was Jimbo’s “owner”, for
the purposes of s 57(2) of the Act?
(c) Was there was sufficient evidence for the Judge to find there was an attack on Justice in the pound?
8 Dog Control Act 1996, s 57(3).
9 Hamilton City Council v Fairweather [2002] NZAR 477 (HC).
(d) Did the prosecution’s failure to disclose documents, the possibility of interference with witnesses during the hearing and the extent of the Judge’s questions of witnesses result in an unfair hearing?10
On the view that I take in respect of the first point on appeal, it is unnecessary for me to determine the others.
[12] On the case stated appeal, the Council contends that the Judge was required to consider whether to make a destruction order, under s 57(3), in respect of the attack on the rabbit. Unless there were exceptional circumstances relating to the offence that warranted a different course, a destruction order would usually be
made.11
[13] Mr Ngapo-Lipscombe, for Ms King, does not dispute the correctness of the Council’s position. I agree also. Having regard to his findings of fact in relation to that attack, the Judge was obliged to consider whether or not to make a destruction order.
The Dog Control Act
[14] Section 57 of the Act provides:
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 summary 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.
10 In relation to the extent of the Judge’s questions, see s 100 of the Evidence Act 2006 and R v H
(2002) 19 CRNZ 518 (CA).
11 See para [3] above and Halliday v New Plymouth District Council HC New Plymouth CRI 2005-
443-11, 14 July 2005 at paras [30]–[38].
(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.
....
(Emphasis added)
[15] Section 57 was amended after this Court’s judgment in Hamilton City
Council v Fairweather. The previous version of s 57 relevantly provided:
57 Dogs attacking persons or animals
(1) Any person who sees a dog attacking any person, stock, poultry, domestic animal, or protected wildlife or who is attacked by any such dog, may forthwith either seize or destroy the dog.
...
(5) The owner of any dog that makes any such attack commits an offence and is liable on summary conviction to a fine not exceeding $1,500 in addition to any liability the owner may incur for any damage caused by the attack; and, where the dog has not been destroyed, the Court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify the destruction of the dog.
[16] In Halliday v New Plymouth District Council, I considered the effect of the amendments to the Act in 2003 which effected the change from the provisions considered by Baragwanath J in Fairweather to those relevant to this case. I said:12
[44] What is the underlying rationale that justifies a change of approach [to the question of whether a destruction order should be made]? In my view, it is the need to focus on the likelihood of the dog behaving in a similar fashion in the future and, therefore, endangering people or other animals. The underlying principle in ss57 and 58 seems to be that, in the absence of exceptional circumstances of the type decreed by each of those provisions, past behaviour is regarded as the best predictor of future behaviour. In other words, once a dog has attacked it will be assumed it will attack again unless there are compelling reasons justifying an alternative view.
Analysis
[17] In light of the conclusion I have reached on the applicable test, I intend to use the findings of fact made by Judge Clapham in the District Court as a basis for my decision. This will not, for reasons given later, prevent some of those findings from being reconsidered at a rehearing of one of the charges.13
[18] Mr Ngapo-Lipscombe relied on Hamilton City Council v Fairweather.14 In that case, Baragwanath J had characterised the Act as an attempt by Parliament “to balance the competing public policy goals of safety of humans and certain animals against dog attacks (on the one hand) and the value of dogs as companions and as essential partners in working, hearing and seeing (on the other)”.15 Baragwanath J said:
[37] The need for protection of humans and certain animals against dog attacks has been a theme of our statute law since the Injuries By Dogs Act
1865. That statute altered the common law of tortious liability for injury caused by a dog attack that had required proof of mischievous propensity before liability could be established. Criminal liability for a dog attack was
introduced by the precursor of s 57(5) and (1) — ss 16 and 17 of the Dog
Registration Act 1880 which provided:
16. If any dog shall, on the highway or any unenclosed place, rush at, attack, or startle any person or any horse, cattle, or other animal, whereby the life or limbs of any person shall be endangered, or any property injured or endangered, such dog shall be liable to be immediately killed; and the owner or keeper of every such dog shall, on conviction, forfeit and pay a penalty or sum of not more than five pounds for every such offence, over and above the amount of any damage which such dog may have occasioned.
17. Any person who shall see a dog, being at large, biting or attacking any person, or any horse, sheep, or cattle, or who shall himself be bitten or attacked by such dog, may destroy the same, without being answerable for damage occasioned thereby.
13 See para [34](a) below.
14 Hamilton City Council v Fairweather [2002] NZAR 477 (HC).
15 Ibid, at paras [36] and [37].
[19] The Judge rejected an argument that a proved attack by a dog against a person, or a specified animal,16 attracted automatic criminal liability for the owner of the dog. Baragwanath J said:17
[6] For the reasons that follow I reject the Council’s first argument but accept the second. I hold that an owner is automatically liable for a dog attack if the dog is not under control. But if the dog attacks while it is under control, no offence is committed. Since the Council has conceded that the dog was at all times under control Dr Fairweather committed no offence and the Council’s appeal against his acquittal must be dismissed.
(Emphasis added)
[20] Mr Ngapo-Lipscombe submitted to the District Court that Ms King had taken every precaution to act responsibly and could not, therefore, be criminally liable for the offences. In respect of the attack on the rabbits, Ms King did not have possession of the dog at the time. Jimbo was, at that stage, in the possession and under the control of Mr and Mrs Te Whata. At the time of the attack on Justice, Jimbo was in the Council’s pound, under the exclusive supervision of its officials.
[21] Mr Ngapo-Lipscombe’s contention is that an absent owner cannot be liable for a dog attack on another animal. The Council’s position is that, irrespective of Fairweather, an owner of a dog is liable for conviction if his or her dog commits an attack of the type to which s 57(1) refers.
(a) The test
[22] In Fairweather, Baragwanath J suggested three possibilities for classification of a s 57 offence:18
(a) Absolute liability
(b) Strict liability, for which there would be an absence of fault defence
16 Dog Control Act 1996, s 57(1), set out at para [15] above.
17 Hamilton City Council v Fairweather [2002] NZAR 477 (HC) at para [6].
18 Ibid, at para [49].
(c) A full mens rea offence requiring the prosecution to exclude the reasonable possibility that due care was taken by the owner.
[23] The Judge favoured an approach that would exclude from liability dog owners who kept a dog under control but imposed absolute liability on one who did not.19 As indicated previously, Baragwanath J held that an owner is automatically liable for a dog attack if the dog is not under control. But if the dog attacks while it is under control, no offence is committed.20
[24] The test adopted by Baragwanath J seems to combine aspects of absolute and strict liability. It does not address directly, because the issue was not before him, the potential criminal liability of an owner, in circumstances where the dog was under the control of another (responsible) person. In this case, the facts that Jimbo had been taken into the Council’s custody, placed in the pound and continued to be detained there at the time of his attack on Justice brings into sharp focus the need to consider whether Baragwanath J’s test is appropriate.
[25] As I put to Mr Hammond, for the Council, during argument, if the Fairweather test were applied a senior and responsible dog control officer, going overseas on holiday, who placed his or her pet dog in the care of a responsible kennel operator might find himself or herself prosecuted for a s 57 offence, even though he or she had no control of the dog at the relevant time. Even more striking, in this case, is the fact that the owner finds herself being prosecuted by the very Council that had sole control over Jimbo in the pound. Those propositions are not attractive foundations on which to make owners criminally liable for the acts of their dog.
[26] With respect to Baragwanath J, I conclude that the “control” test that he enunciated in Fairweather does not meet the purposes of the statute. I prefer an approach based on strict liability. This would require an owner to establish a total
absence of fault defence, of the type discussed in Civil Aviation Department v
19 Ibid, at para [51].
20 See para [19] above.
MacKenzie21 and Millar v Ministry of Transport,22 to be absolved from liability. I
decline to follow Fairweather.
[27] In the context of discussing a defendant’s burden of proving, on the balance of probabilities, that the relevant breach occurred without fault on his or her part, the Court of Appeal in MacKenzie said that a “high standard of care is properly expected of a defendant in such a case and he must prove that he did what a reasonable man would have done”. The Court of Appeal considered that it would be inappropriate to have a variable standard of negligence, depending on subjective considerations
affecting the individual concerned.23
[28] In a case akin to the rabbit attack, this would involve an owner establishing, on a balance of probabilities, that the dog had been put into the care of a responsible person who had been forewarned about any tendencies on the part of the dog to act in an anti-social manner. A total absence of fault defence would only be viable if the owner could establish that he or she had done everything reasonably possible to ensure that those with temporary responsibility for the care of the dog were actually in a position to take appropriate steps to exercise control.
[29] In the case of the attack in the pound, it is difficult to see how any owner could be held at fault when the Council has (compulsorily) removed control of the dog from the owner and had taken (exclusive) responsibility for its care and control, as a direct result of an alleged attack on a domestic animal.
[30] Academic debate has flourished for some time on the circumstances on which an offence should be classified as one of absolute liability, strict liability or one that requires proof of a criminal intent on the part of the defendant. So called “public welfare regulatory offences” are now dealt with, primarily, on the basis of strict liability, subject to “a defence of total absence of fault”, unless such a defence is
“clearly excluded in terms of the [relevant] legislation”.24 The rationale for requiring
the “total absence of fault” defence is that, ordinarily, public welfare regulation is
21 Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA).
22 Millar v Ministry of Transport [1986] 1 NZLR 660 (CA).
23 Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA).
24 Ibid, at 85.
directed primarily to “the protection of the interests of society as a whole, ...”. In a case such as this, the protection of society from a dog’s propensity to attack is the primary policy goal. The problem is that it is necessary to sheet home criminal liability to an owner before destruction of the dog can be considered.25
[31] The difficulty with the test adopted by Baragwanath J is that it does not address the specific language of s 57(2) which, both before and after the 2003 amendments to the Act, was focussed on the connection between the owner of the dog and an attack carried out by that animal. While, plainly, a dog that attacks a person or one of the animals to which s 57(1)(b) refers26 is, necessarily, “out of control” it does not follow that the person who owns the dog is responsible for controlling its behaviour at the particular time an attack is made. Given that the statute imposes criminal liability on the owner, it is just that the owner have an opportunity to prove that he or she was not at fault.
[32] I acknowledge that this approach causes difficulty to what I perceive to be the most important public policy goal of s 57.27 Only if a conviction were secured against an owner does the Court have jurisdiction to make an order for the destruction of the dog that has committed the relevant attack. That consequence flows from the need to ensure that a person who lacks control over the dog and can prove, on a balance of probabilities, a total absence of fault on his or her part should not be made criminally responsible because the dog has made a prohibited attack. However, it is a concern that may not arise often given that, in most circumstances,
the person actually having control of the dog will be caught under the extended
definition of the term “owner”, in s 2 of the Act.28
[33] The answer to that dilemma may lie in the creation of a separate civil right to seek a dog destruction order if a Council can prove that a prohibited attack was made and that, applying the s 57(3) test, it is necessary to destroy the dog. That, however,
is an issue for Parliament to consider. On the state of the existing law, it is not
25 See further para [32] below.
26 See para [14] above.
27 See para [30] above.
28 In this case, Judge Clapham found that the definition did not extend to Council officers as it
excludes a person who “has seized or taken custody of a dog”.
appropriate to hold an owner who has acted with a total absence of fault criminally liable, in order to allow the Court to make a destruction order.
[34] What are the consequences of that approach?
(a) In relation to the attack on the rabbit, it seems to me that Ms King should be given the opportunity to establish, on a balance of probabilities, a total absence of fault on her behalf. That would involve establishing that she had left Jimbo in the care of responsible people whom she could trust to keep him under control and prevent from making a prohibited attack. Whether that onus has been discharged is not something that I can determine on the evidence put before Judge Clapham. Regrettably, given the time that has passed since the attack on the rabbit (almost two years) it will be necessary to remit that charge to the District Court for rehearing. On such a rehearing, all defences are open, as I have no jurisdiction to limit the
new hearing to the point in issue.29
(b) The position with regard to the attack on Justice is more straightforward. It is impossible to see any basis on which a total absence of fault defence could not succeed. Ms King had no control over Jimbo at the relevant time. That control was exercised by officers of the Council with responsibility for operating the pound. In those circumstances, the conviction against Ms King on the charge involving Jimbo’s attack on Justice must be quashed, as will the sentences imposed in consequence, including the order for destruction
of Jimbo.
Result
[35] The appeal is allowed. The convictions entered against Ms King and the sentences imposed in consequence, including the destruction order, are quashed.
[36] A rehearing is ordered on the information charging the attack on the rabbit. I direct that the Judge hearing that information will need to consider destruction of the dog, if Ms King were convicted on that charge. It is not necessary for Judge Clapham to preside over the rehearing.
[37] In respect of the attack by Jimbo on Justice, no rehearing is ordered and the relevant information is dismissed.
[38] Given the time that has elapsed since the first attack in November 2010, I encourage the Registrar of the District Court at Tokoroa to allocate an early date, if practicable, for the rehearing of the information involving the alleged attack on the rabbit.
[39] I thank counsel for their assistance.
P R Heath J
Delivered at 4.00pm on 4 September 2012
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