Ward v Police [2018] NZHC 545 (27 March 2018)

Last Updated: 12 April 2018

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-4 [2018] NZHC 545

BETWEEN	CLINT CORMAC WARD Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	20 March 2018
Counsel:	J G Natusch for Appellant C C Gullidge for Respondent
Judgment:	27 March 2018

JUDGMENT OF THOMAS J

Introduction

[1] Clint Ward was convicted in the Gisborne District Court of owning a dog which caused serious injury on 22 August 2017.¹ His dog, Mushroom, was made subject to an order for destruction on 16 October 2017.² Mr Ward now appeals both the conviction and the order for destruction.

Factual background

[2] The victim, a five year old boy, is the nephew of Lucretia Johnston, Mr Ward’s partner, and is treated by them both as their grandchild. Mr Ward had four Staffordshire terrier dogs, Chop, Paige, Big Girl and Mushroom. On 4 June 2016, the

¹ New Zealand Police v Ward [2017] NZDC 18257.

² New Zealand Police v Ward [2017] NZDC 23369.

WARD v NEW ZEALAND POLICE [2018] NZHC 545 [27 March 2018]

victim was at Mr Ward’s address and was attacked by Mr Ward’s dogs. The dog Chop pushed through a partially open ranch slider, knocked the victim to the ground and initially bit the victim by latching onto his head. The other three dogs joined in. Four people witnessed the attack, three of whom gave evidence that Mushroom was involved:

(a) the victim’s sister, who tried to get the dogs off the victim and eventually locked herself and him in the bathroom until the ambulance arrived;

(b) Blair Judd, a neighbour, who heard the attack and tried to lift the victim over the fence, retrieved a steel bar and went to the address to stop the attack; and

(c) Antony Judd, a neighbour, who heard the attack, ran over and, seeing a number of people intervening, decided to call an ambulance.

[3] Tahran Ward, Mr Ward’s son, also witnessed the attack and intervened. He had attempted to pass the victim over the fence to Blair Judd before the dogs latched onto the victim and pulled him and Tahran down again. He gave evidence that Mushroom was not involved, although later changed his position.

[4] Lucretia Johnston did not witness the attack. The victim’s sister gave evidence that Ms Johnston had asked her to say Mushroom was not involved if asked. Ms Johnston denied this.

[5] John Gordon, an animal control officer, did not witness the attack but took the four dogs to be impounded. He did so in two trips to avoid putting two dogs in one cage, with Mushroom being taken on the second trip. He gave evidence that, while he recalled blood on the first two dogs, Chop and Paige, he did not recall blood on Big Girl or Mushroom.

[6] The victim suffered three serious wounds as well as other abrasions:

(a) one large deep extensive incised wound to the front of the head;
(b) one large deep incised wound to the back of the head; and

(c) two puncture wounds with extensive abrasions to the left thigh.

[7] Mr Ward volunteered the other three of his dogs to be euthanised.

District Court decision

[8] In his 22 August judgment, Judge Raumati canvassed the evidence of all witnesses noted above. He considered the evidence of Tahran Ward to be unreliable and found Ms Johnston to be lacking in veracity. On the basis that three eye-witnesses said Mushroom was involved in the attack, he found Mr Ward guilty.

[9] In his 16 October judgment, the Judge found that being a family pet and having no history of aggressive behaviour was not sufficient to make out exceptional circumstances so as to prevent an order for destruction. The order was stayed pending the result of this appeal.

Submissions

[10] Mr Ward appeals his conviction on the basis the Judge erred in finding the offence made out solely because Mushroom was involved in the attack. The correct question was whether Mushroom had caused serious injury to the victim during the attack. He appeals the order for destruction on the basis that, if the Judge erred in convicting him, the order could not be made.

[11] Mr Ward was sentenced to community detention and payment of reparation for emotional harm. Mr Ward accepts that sentence (on the basis it relates to the other three dogs). The issue is with the destruction of Mushroom.

[12] Mr Ward contends that, because the victim suffered only three wounds which could be considered serious, it does not automatically follow that Mushroom had caused a serious injury. None of the witnesses described Mushroom as causing serious injury. There were only three serious injuries and three dogs have now been destroyed, which accounts for each injury.
[13] The respondent contends the Judge did not so err. The Judge found Mushroom was part of a pack which caused serious injury. Because it is difficult to say with certainty which dogs inflicted which injury, it is sufficient to show that Mushroom was part of the attack and, together with the other three dogs, caused serious injury.

Law

[14] In accordance with s 232 of the Criminal Procedure Act 2011, an appeal must be allowed if the Court is satisfied a miscarriage of justice has occurred:

• (2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

...

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.

...

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

• (a) has created a real risk that the outcome of the trial was affected; or
• (b) has resulted in an unfair trial or a trial that was a nullity.

[15] The Supreme Court stated that a “miscarriage of justice is more than an inconsequential or immaterial mistake or irregularity”.³ A real risk arises where there is a possibility a more favourable verdict might otherwise have been delivered.⁴

[16] The provision under which Mr Ward was charged is contained in the Dog Control Act 1996 (the Act) and reads as follows:

58 Dogs causing serious injury

The owner of any dog that attacks any person or any protected wildlife and causes—

(a) serious injury to any person; or
(b) the death of any protected wildlife; or

³ Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

⁴ Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

(c) such injury to any protected wildlife that it becomes necessary to destroy the animal to terminate its suffering,—

commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years or a fine not exceeding $20,000, or both, and 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 destruction.

Analysis

Evidence

[17] The victim’s sister was present throughout the entire attack. She said all the dogs attacked and bit the victim. She was adamant all four dogs, including Mushroom, were involved in the attack. She knew all the dogs and was able to describe them by colour. She said she was standing right there and knew what she had seen.

[18] The defence case, that Mushroom was standing to the side barking and not involved in the attack, was put to the victim’s sister. She refuted that, saying they were “just all in there”. She described Mr Ward’s son, Tahran, picking up the victim and said, “They were all like jumping at him”. She tried to kick them away.

[19] Blair and Antony Judd heard dogs barking and people yelling and went to provide assistance. Blair Judd said he saw four dogs attacking the victim. He asked for the victim to be handed over the fence to him but, as Tahran tried to do so, one of the dogs jumped up and bit the victim on his bottom and dragged him and Tahran back down. He also denied that only three dogs were attacking the victim and one was off to the side barking.

[20] Antony Judd described all four dogs as “all just mass”. When he was asked to describe how they were acting, he said it was frenzied and ferocious. He also referred to Tahran trying to pass the victim across the fence, saying:

All the dogs were jumping. It wasn’t one. All the dogs on there, they’re all attacking.

[21] Tahran Ward initially said only one dog attacked the victim, then said the other dogs, including Mushroom, “scratched [the victim] a little bit”. When shown
photographs of the scene showing blood all over the patio, Tahran was asked whether he was mistaken about the severity of the attack, to which he replied, “I think I have Sir”.

Consideration

[22] The appeal focused on the Judge’s finding when he said:

[33] There were four eye-witnesses to the attack. There are three eye-witnesses who said Mushroom attacked the child. I do not accept Tahran Ward’s evidence that Mushroom did not attack the child.

[23] In Mr Natusch’s submission, appearing for Mr Ward, the Judge leapt from a conclusion Mushroom was involved in the attack to finding Mr Ward guilty of the offence. The offence, however, required the Judge to be sure Mushroom caused serious injury to the victim. While it is true the Judge did not address this in terms, it is likely because of the way the defence was advanced, which was to contend Mushroom was not involved in the attack at all, rather he stood to the side and barked.

[24] The essential issue is whether the Judge had to be sure Mushroom caused an identified serious injury or whether, as contended by the respondent, it was sufficient if Mushroom were involved in a “pack attack” which resulted in serious injury to the victim.

[25] In Mr Gullidge’s submission, appearing for the respondent, the prosecution only had to show that Mushroom was one of the four dogs which attacked the victim and this attack caused serious injury. It was a pack attack and Mushroom was part of the pack. Mr Gullidge accepted it was not possible to attribute a particular injury to a particular dog with any degree of certainty. He referred, however, to the consistency of the prosecution witnesses that the dogs were jumping on the victim, pulling him to the ground, biting him and ripping him. The respondent’s position is therefore that Mushroom, together with the other three dogs, caused serious injuries to the victim by attacking the victim as a pack.
[26] Mr Gullidge submitted that to require the prosecution to prove a particular wound is caused by a particular dog during a pack attack sets an unreasonably high standard because:

(a) the speed and ferocity of a dog attack makes it difficult to distinguish the actions of one dog from another; and

(b) it is difficult to identify one dog from another, particularly for people unfamiliar with the dogs in question.

[27] Furthermore, Mr Gullidge submitted a pack attack may involve several dogs acting in different roles, for example one dragging the victim to the ground while the other bites the victim.

[28] In response to Mr Natusch’s submission that, had Parliament intended “party liability” in respect of this charge, a provision analogous to s 66 of the Crimes Act 1961 would have been inserted, Mr Gullidge overserved there is no mechanism under the Act for dogs to be charged jointly. Consequently, a broad interpretation of “causes” is required to avoid an absurdity. This would occur when there was no doubt a pack of dogs attacked a victim and caused serious injury but it was not possible to attribute a particular injury to a particular dog.

[29] I agree with those submissions. One of the purposes of the Act is to impose on dog owners obligations designed to ensure dogs do not injure, endanger or cause distress to any person.⁵ Although liability in the present circumstances may nevertheless be found under s 57 (regarding dog attacks rather than serious injury), the s 57 maximum penalty of a fine does not reflect the seriousness of the offence of causing serious injury under s 58. I accept the purpose of the Act would be frustrated if a pack of dogs attacked a victim causing serious injury but the situation did not fall within s 58 of the Act due to an inability to identify which dog caused particular injuries.

⁵ Dog Control Act 1996, s 4.

[30] In this case, Mushroom was clearly involved in the pack attack which caused serious injury to the victim. Apart from the role of Chop, no witness was able to differentiate between the roles played by the other three dogs. The Animal Control officer observed blood on Chop and Paige but did not recall seeing blood on the other two dogs. Mr Ward accepted that Big Girl caused serious injury by his guilty plea.

[31] Tahran accepted Mushroom and two others “scratched [the victim] a little bit”. This was in the context of him changing his initial position that Chop was the only dog to attack but then conceding Mushroom and the two others were also involved. At that point, he made no distinction between the behaviour of Mushroom and the other two dogs.

[32] In light of that evidence, it could be inferred Mushroom was just as likely as either Paige or Big Girl to have caused the victim serious injury. There is no doubt that, together, all four of the dogs caused serious injury to the victim and that means Mr Ward was guilty of an offence under s 58.

[33] Even if that is wrong, Mushroom’s situation does not improve. There is no doubt Mushroom attacked the victim. As such, Mr Ward was guilty of an offence under s 57(2) of the Act and destruction is still mandatory.⁶ Section 57(3) provides:

(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.

[34] The wording as to destruction of the dog is identical to that in s 58 except that s 57 refers to the circumstances “of the offence” and s 58 to the circumstances “of the attack”. Heath J in Halliday v New Plymouth District Council considered the legislative history of these provisions.⁷ He concluded s 58 allowed a narrower avenue for finding an order unwarranted due to the seriousness of the offence. Although that avenue is slightly wider in s 57, Heath J found it maintains a very high threshold for relief against the mandatory nature of an order. This is in contrast to s 57A where the

⁶ Mr Natusch had no option but to concede that was the case.

⁷ Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005.

Court has a discretion in cases of a dog in a public place which rushes at any person causing death, injury or endangerment.

[35] The Judge’s decision as to destruction concluded that the circumstances of the attack were not exceptional, the defence case relying on Mushroom’s apparently benign nature and role as a family pet with no history of attacks. This decision was in the context of exactly the same fact scenario whether considered under s 57 or s 58.

[36] Heath J in Halliday considered the relevant factors in s 57 included the nature of the attack, the prior history of the dog, an owner’s dog owning history, steps taken to prevent an attack and the reasons why those steps did not prevent an attack.⁸ In the present case, the Judge took into account a similar range of factors. It was argued before him that Mushroom had not behaved that way in the past and that Mushroom was a valued member of the family. In the context of s 58, the Judge correctly stated the threshold is high and one that those arguments could not meet. In my assessment, even on the slightly wider avenue for finding exceptional circumstances under s 57, those same arguments could not meet the similarly high threshold.

[37] Although Mr Ward appeals the order for destruction, this is on the ground the Judge could not be sure Mushroom caused serious injury to the victim. There were no submissions to the effect the Judge erred in his approach to the question of destruction. In any event, there was no error in the Judge’s approach.

Result

[38] For the reasons given, the appeal against conviction and the order for destruction is dismissed.

Thomas J

Solicitors:

Woodward Chrisp, Gisborne for Appellant

Crown Solicitor’s Office, Gisborne for Respondent

⁸ Halliday, above n 7, at [48].