Epiha v Tauranga City Council

[2017] NZHC 979

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2017-470-7 [2017] NZHC 979

BETWEEN

NICHOLAS EPIHA

Appellant

AND

TAURANGA CITY COUNCIL Respondent

Hearing:	12 May 2017
Appearances:	C Tuck for the Appellant V Brewer for the Respondent
Judgment:	12 May 2017

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr C Tuck, Barrister, Tauranga

Ms V Brewer, Cooney Lees Morgan, Solicitors, Tauranga

EPIHA v TAURANGA CITY COUNCIL [2017] NZHC 979 [12 May 2017]

[1]      Mr Epiha appeals against conviction for an offence under s 57(2) of the Dog

Control Act 1996 (the Act).1

[2]      Sections 57(1), (2) and (3) of the Act are as follows:

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 … 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.

(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.

[3]      There was a reasonably long procedural history which included an appeal to this Court following earlier conviction and remission of the matter to the District Court for a re-hearing resulting in the conviction now under appeal.  Mr Epiha was sentenced the same day.  The Judge imposed a fine of $250 with court costs of $130 and an award of $200 for emotional harm to a district nurse who had been attacked by Mr Epiha’s dog.  Judge Rollo was satisfied in terms of s 57(3) that an order for destruction of the dog was required.  He was satisfied that the exception recorded in subsection (3) had not been made out.

[4]      The appeal that is now advanced is directed to questions of law.  These may be summarised as follows:

(a)       Does s 57(2) create an offence of strict liability so that the prosecutor is not required to prove mens rea (guilty mind of some sort on the part

of the  defendant) but  with  the  defendant  having a defence,  to  be

1      Tauranga City Council v Epiha [2017] NZDC 4443.

established on the balance of probabilities, of a complete absence of fault?

(b)If it is not an offence of strict liability, with that defence available, and assuming it is not an offence of absolute liability, what is the nature of the mens rea element that the prosecutor would be required to prove?

[5]      It was not argued on appeal that this is an offence of absolute liability.  There is a decision of Baragwanath J to that effect, at least in respect of one aspect of his analysis.2    In King v South Waikato District Council Heath J declined to follow the

decision of Baragwanath J.3    Heath J concluded that the offence created is one of

strict liability with the available defence of an absence of fault with the onus on the defendant.   The decision in King has, as I understand it, (and both counsel have obviously researched the matter with some diligence), been consistently followed in this Court4 and, as would be expected, consistently applied in the District Court.

[6]      Mr Tuck’s careful submissions for Mr Epiha were that the decision in King, and the subsequent decisions which have followed it (including two addressing the same issue in respect of s 58) should not be followed.  Mr Tuck submitted that if I am persuaded to that effect, the mens rea required to be proved by the prosecutor under s 57(2), is that the defendant knew that the dog had a propensity to attack.

[7]      In  support  of  the  submission  Mr  Tuck  advanced  reasons  why  in  his submission the provision should not be treated as one creating strict liability.  The submission was made by reference in particular to the decision of the Court of Appeal in Civil Aviation Department v MacKenzie.5    Mr Tuck also referred to the United Kingdom Dangerous Dog Act 1991 and to a decision of the Court of Appeal

of England and Wales in respect of that provision.6

2      Hamilton City Council v Fairweather [2002] NZAR 477 (HC).

3      King v South Waikato District Council [2012] NZHC 2264.

4      King v South Waikato District Council [2013] NZHC 596; Turner v South Taranaki District

Council [2013] NZHC 1603 at [13]; Julian v Tauranga City Council [2014] NZHC 2132; Epiha v Tauranga City Council [2016] NZHC 2660 at [24]; Walker v Nelson City Council [2017] NZHC 750 at [21]. In a case decided some years before the decision of Heath J in King v South Waikato District Council, McKenzie J in Namana v Masterton District Council [2010] NZAR

182 at [16] came to the same conclusion.

5      Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA).

6      Robinson-Pierre v R [2013] EWCA Crim2396.

[8]      With respect, I do not consider that the United Kingdom legislation and the decisions in respect of it assist materially on the matter I have to determine.

[9]      The decision of the Court of Appeal in MacKenzie, in respect of matters of general principle as opposed to the Court’s interpretation of the statutory provision there, do provide some support for Mr Tuck’s argument.   However, I am not persuaded that the decision in that particular case justifies a conclusion on this appeal contrary to the weight of authority in this Court.  In coming to that conclusion I have been assisted by the submissions of Ms Brewer, for the respondent, and I intend no discourtesy by not seeking to summarise those submissions.

[10]     My conclusion is not simply based on the fact that the weight of authority is against the appellant.  Having regard to the conventions in relation to precedent that is nevertheless a matter that comes into the assessment.  Fundamentally, however, I agree with the reasoning in the earlier cases and it will not materially assist if I set out a process of reasoning for coming to the same conclusion, when numbers of other cases have already done so.

[11]     I nevertheless add, having regard to the submissions of Mr Tuck, and the obvious significance of the decision for Mr Epiha and for his dog, that a conclusion, in agreement with all of the earlier decisions (apart from Fairweather) that this is an offence of strict liability, does not mean that there is some innate unfairness to a defendant.  As I have already outlined, there is a defence available.  There are the policy issues as to whether there should be a defence with an onus on a defendant, or whether there should be, as with most strictly criminal statutes, a requirement for the prosecutor to prove mens rea.  But the policy decisions are ones for Parliament, not for the Court.  Parliament has chosen, in the way the offence has been expressed in s 57(2), and with that assessed by reference to other relevant provisions of the Act, and in particular provisions dealing with the objects of the Act (s 4) and obligations of dog owners (s 5), to create what is called an offence of strict liability, but with an available defence, to seek to give real force to the objectives, and in particular to the responsibilities of owners.

[12]     The way in which s 57(3) has been expressed gives rise to an issue as to whether it is necessary for a dog owner to be convicted under subsection (2) before an order can be made under subsection (3) for destruction of the dog.  I mention this because it could lead to difficulties in achieving another primary objective of the Act, which is to deal with dangerous dogs.  Heath J touched on this in the King decision at [31]-[33], and observed that it would be a matter for Parliament, rather than the Court, if the interpretation is that a dog that has attacked someone could not be destroyed  unless  the  owner  has  first  been  convicted.    However,  as  Ms  Brewer pointed out, this issue was addressed by Miller J in Turner v South Taranaki District

Council:7

[A] destruction order does not depend on the owner being convicted under s

57(2). It suffices that the dog committed an attack.14 Section 57(3) does

speak of “the offence”, but without requiring a conviction as a prerequisite to destruction. It is the circumstances that matter, as I explain below. It is easy to think of circumstances in which a person prosecuted as owner might establish his or her total absence of fault, yet fail to excuse the dog’s attack.

[13]     I agree with Miller J’s conclusion.  One point that arises from this, in respect of the issues before me, is that it lends some emphasis to the legislative intention of placing significant obligations on dog owners, and therefore imposing the offence of strict liability, whilst independently making provision for destruction of dogs that have demonstrated that they are dangerous.  There are other provisions in the Act also dealing with that aspect.

[14]     For these various reasons, I am satisfied that I should follow the earlier decisions of this Court.  It is therefore unnecessary to address the further issue as to the nature of the mens rea element, if this is not an offence of strict liability.  In that regard  I  nevertheless  observe  that  if  s 57(2)  was  interpreted  as  requiring  the prosecution to prove that an owner knew that the dog had a propensity to attack, that would in my judgment conflict materially with the other provisions of the Act that I have referred to – s 5 in respect of the obligations on owners, and s 4 in respect of

the objectives of the Act.

7      Turner v South Taranaki District Council [2013] NZHC 1603 at [22].

[15]     For these reasons I am satisfied the appeal should be dismissed and it is

dismissed accordingly.

Woodhouse J