Downey v Tauranga City Council

[2012] NZHC 1835

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-15 [2012] NZHC 1835

BETWEEN  DEBORAH DOWNEY Appellant

ANDTAURANGA CITY COUNCIL Respondent

Hearing:         20 and 25 July 2012

Counsel:         No appearance by or on behalf of Appellant

A Hopkinson for Respondent

Judgment:      25 July 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Cooney Lees Morgan, PO Box 143, Tauranga
Copy to:

D Downey, Appellant in person

DOWNEY V TAURANGA CITY COUNCIL HC TAU CRI 2012-470-15 [25 July 2012]

The appeal

[1]      Ms Downey appeals against two convictions entered following a defended hearing in the District Court at Tauranga, on 1 March 2012.  She also appeals against the sentence imposed.

[2]      Ms  Downey  was  charged  with  allowing  her  classified  dangerous  dog,  a Labrador Retriever cross named LE, to be in a public place without being muzzled[1] and being the owner of a dog (the same one) that was responsible for attacking a domestic animal, a cat.[2]   Ms Downey was convicted on both charges, fined $300 on each and ordered to pay Court costs.  In the absence of “exceptional circumstances” the presiding Judge made the mandatory order for destruction of the dog.[3]

[1] Dog Control Act 1996, s 32(1)(b).

[2] Ibid, s 57(1)(b).

[3] Ibid, s 57(3). See also Halliday v New Plymouth District Council HC New Plymouth CRI 2005-443-11, 14 July 2005 at paras [36]–[44].

[3]      At issue in the District Court, as in this Court on appeal, was the identity of the dog.  Ms Downey challenged evidence from a witness who saw the attack on the cat,  Ms  Matenga,  in  which  she  said  that  she  recognised  LE  as  the  attacker. Ms Downey also raises the question of competence of her legal representation by counsel at trial.

Procedural background

[4]      The appeal was first called before me on Friday last, 20 July 2012.   Ms Downey did not attend.  The Registrar had received a message advising that she was ill.  Mr Hopkinson, for the Tauranga City Council, advised me that he had been in touch with Ms Downey whom, while asserting that she had laryngitis, appeared to be able to communicate with him.

[5]      Following my discussion with Mr Hopkinson, he telephoned Ms Downey again.  She was told that if the appeal were not to proceed, I would require a medical

certificate to be provided no later than 2.15pm that day.  At that time no certificate

had  been  received.    I proceeded  to  hear  from  Mr  Hopkinson  in  Ms  Downey’s

absence, but taking account of the affidavit that she had filed.

[6]      I adjourned briefly to prepare to give an oral judgment.  During the break the Registrar provided to me a recently received medical certificate, from Dr Churchill, on behalf of Ms Downey.  The certificate confirmed that Ms Downey was “unwell, and unable to attend High Court today”.  In those circumstances, I was not prepared to proceed to judgment.  I adjourned the appeal for hearing at 1.30pm today, in the middle of a jury trial that I am conducting.

[7]      Ms Downey was told, in a Minute issued on 20 July 2012 that was provided to her, that she would need to appear today.   It said that, in the absence of any appearance, I would give judgment on the basis of the material before me.  I added that if Ms Downey was of the view that she was still too ill to attend Court, I would require a detailed affidavit from a medical practitioner to be filed and served no later than 4pm on 24 July 2012, before giving consideration to any further adjournment. No such certificate has been filed.

[8]      This morning, a Deputy Registrar received a message through the Court’s call-centre  from  Ms  Downey indicating  she  would  not  be  able  to  attend  today because she was too sick with both emphysema and laryngitis.  She said that she was unable to get an affidavit from her doctor because she was too sick.  The Deputy Registrar telephoned Ms Downey who confirmed that information and said that she could not get to the Court in Rotorua by 1.30pm and did not have time to get an affidavit from her doctor.   Ms Downey was told that the appeal would probably proceed today in her absence.

[9]      Mr Hopkinson has advised me that the officer in charge of the prosecution, Mr Lincoln, also spoke to Ms Downey yesterday.  He was given similar information both in respect of her state of health and her inability to get an affidavit from her doctor.

[10]     In those circumstances, and bearing in mind that there have been previous occasions in the District Court on which similar efforts have been made to obtain

adjournments on the basis of ill-health, I am not prepared to delay disposition of the

appeal further.  I proceed to deal with it in Ms Downey’s absence.

The District Court’s decision

[11]     The charges were heard by Judge Ingram, who delivered an oral judgment at the conclusion of the hearing.[4]    After identifying the elements of each charge, the Judge moved to the central issue.  As to identity, he summarised the prosecution and defence positions as follows:

[4] Tauranga City Council v Downey DC Tauranga CRI 2011-070-5471, 1 March 2012.

[6]       I heard evidence form Geraldine Matenga who saw the attack on her mother’s cat.   Her evidence was that, in the afternoon, about 4.00pm, she saw the dog attack the cat and grab the cat in its mouth.  She ran over to it and kicked it which allowed the cat to escape.  She picked the cat up and the dog continued to try to get at the cat.  She saw it run down the road to the house with the wheelchair ramp which is where the dog is usually to be found.  Her evidence was that she has often seen the dog behave somewhat aggressively towards her from time to time as she walks by that house.  She has lived there with her mother for some time and she has seen the dog on many occasions, both inside the fence at the defendant’s property, and out on the street.  She has never seen it with a muzzle.

...

[8]      The defence position is that there are other dogs which could conceivably have  carried out the attack on the day.   A photograph  was produced of a dog which looks moderately similar in the sense that it is a white dog.   It does not look at all similar, to my eye, and I would have thought anybody who knew the slightest thing about dogs would notice the black muzzle on L.E. and the pink muzzle on the other dog.  In any event, the other dog is contained within a car.  There is no suggestion that that dog was about on 14 August.  It was also said in evidence that other people have, from time to time, seen dogs in the street chasing cats, including a golden Labrador.

[12]     No evidence was led by Ms Downey to support her defence.  Evidence was given by a woman (Ms Surman) who lives at the same address; though she did not speak of being at home on the day, while the dog was present.

[13]     The question for the Judge was whether, on the available evidence, he was satisfied beyond reasonable doubt that it was LE that attacked the cat.  There was no

dispute  that  the  dog  that  attacked  the  cat  was  the  same  dog  as  was  roaming unmuzzled on the relevant day.

Analysis

(a)      Identity

[14]     The Court’s approach to visual identification evidence of a dog should be similar to that taken in respect of the identification of a human being.  In a trial by jury, a Judge is required to warn the fact-finders that a mistaken identification can result in a serious miscarriage of justice, to alert the jury to the possibility that a mistaken witness may be convincing and, where there is more than one identification

witness, to refer to the possibility that all of them may be mistaken.[5]

[5] Evidence Act 2006, s 126(2).

[15]     While the Judge did not, in express terms, remind himself of those basic tenets when explaining his reasons on the day, it is inconceivable that a Judge of his experience would have overlooked the need for care in evaluating the evidence.

[16]     There is support in the decision to suggest that the Judge did take account of those factors.  In referring to Ms Matenga’s evidence, Judge Ingram said:[6]

[6] Tauranga City Council v Downey DC Tauranga CRI 2011-070-5471, 1 March 2012, at paras [10] and [11].

[10]     The suggestion is that, from a distance, the golden Labrador which lives in the street and sometimes chases cats could, at a distance, be mistaken for L.E.  I do not accept that that is so but, even if I did, the difficult with all that is that Ms Matenga was not seeing the dog at a distance, she was seeing a dog at a distance of a few feet at most.  She ran up to it and kicked it.  The possibility that she is mistaken as to the identity of the dog, which she says she has known for some time, has seen many times, and she knows where it comes from and it ran back to the place where she has always seen it, the possibility that she is mistaken as to her identification of the dog is, in my view, remote indeed.  There is no hint, whisper or suggestion that there was another dog on the street that day.

[11]      I have no reason to doubt Ms Matenga’s identification of the dog.  In my view this dog is distinctive and she, having seen it before, she is well able to identify it.  The evidence called by the defence does not persuade me that she may be mistaken.   For those reasons I accept the dog has been identified  as  being  the  dog that  carried  out  the  attack  on  the  cat.    Ms

Matenga’s evidence was crystal clear that the cat was attacked by a dog without a muzzle and the dog was the dog known as L.E.  She identified it in the photograph and I accept her evidence as proof beyond reasonable doubt.

[17]     In the absence of evidence from Ms Downey, or any other witness who could state that the dog was elsewhere, there was ample evidence on which the Judge could base  his  finding  that  identity  had  been  established.    Indeed,  the  evidence  of Ms Surman, who may have been able to provide such evidence, did not touch on the issue.  Her evidence was directed to the possibility that a similar looking dog was in the area at the time.   Plainly, Judge Ingram did not accept that as a reasonable possibility.

[18]     In  addition,  there was  unchallenged  evidence  from  a dog  control  officer employed by the Tauranga City Council, Mr Shearman, that LE is “quite distinctive because of its colour”.  Mr Shearman deposed that he was unaware of any other dog in the neighbourhood with which LE could be confused.  In those circumstances, the ground of appeal based on identity must fail.

(b)      Counsel competence

[19]     The  second  issue  concerns  a  complaint  about  counsel  competence.    Ms Downey contends, in an affidavit sworn in support of the appeal, that her counsel made errors that amounted to a miscarriage of justice.   She appears particularly aggrieved at her inability to give evidence.  She also complains about her counsel’s failure to question any of the witnesses at length, or appropriately.

[20]     The test to apply in cases of this type is set out in the Supreme Court’s judgment in R v Sungsuwan.[7]    Delivering the judgment of a plurality consisting of himself, Keith and Blanchard JJ, Gault J expressed the test in this way:

[7] R v Sungsuwan [2006] 1 NZLR 730 (SC).

[70]     In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on  the  part  of  counsel,  and  whether  there  is  a  real  risk  it  affected  the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate Court to ensure justice where there is real concern for the safety of

a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[21]     Although I do not have an affidavit from trial counsel, I am satisfied that there is no realistic possibility of an error on the part of counsel which would satisfy me that there could have been a miscarriage of justice, in the sense of an unsafe verdict.

[22]     Trial counsel did cross-examine witnesses on the question of identity.   It appears that Ms Downey did not give evidence as a tactical decision.   It is inappropriate for her to  be allowed  at  this juncture to  repent  from  that  tactical decision on appeal.  It is important that appeals be determined on the way in which a case is run in the District Court.  In the absence of some evidence which gives real concern for the safety of the convictions, I am not satisfied that the ground of appeal based on counsel error is made out.

Result

[23]     For  those  reasons,  the  appeal  against  both  conviction  and  sentence  is dismissed.

P R Heath J