Epiha v Tauranga City Council
[2016] NZHC 2660
•1 November 2016
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2016-470-20 [2016] NZHC 2660
BETWEEN NICHOLAS EPIHA
Appellant
AND
TAURANGA CITY COUNCIL Respondent
Hearing: 1 November 2016 Counsel:
N Epiha, in person, Appellant
J H Howell for RespondentJudgment:
1 November 2016
Reasons:
8 November 2016
REASONS FOR JUDGMENT OF HEATH J
Solicitors:
Cooney Lees Morgan, Tauranga
Copy to:N Epiha, Appellant
EPIHA v TAURANGA CITY COUNCIL [2016] NZHC 2660 [1 November 2016]
Contents
The appeal [1] Facts [4] Proceedings in the District Court
(a) The Community Magistrate’s decisions [10] (b) The first appeal [14] (c) The application for leave to bring a second appeal [16]
The conviction appeal: the jurisdictional point
(a) Powers of Community Magistrates [25]
(b) Analysis [30] The sentence appeal: some observations [36] Result [40]
The appeal
[1] Mr Nicholas Epiha sought leave to bring a second appeal (one day out of time) against his conviction for an offence against s 57(2) of the Dog Control Act
1996, and an order for the destruction of the offending dog. The application in respect of the conviction is brought under s 237 of the Criminal Procedure Act 2011, while the application in respect of the destruction order relies on s 253 of that Act.1
[2] I heard the applications on 1 November 2016. After hearing from the parties,2 I
(a) granted an extension of time to bring the application for leave to bring a second appeal;
(b)declined leave for the prosecutor to adduce further evidence on appeal;
(c) granted leave to appeal on a jurisdictional point; namely, whether a Community Magistrate has power to hear and determine a prosecution under s 57(2) of the Dog Control Act 1996, and to make an order for
the destruction of a dog under s 57(3);
1 Sections 237 and 253 of the Criminal Procedure Act 2011 are set out at para [16] below.
2 Epiha v Waikato District Council [2016] NZHC 2606 at para [2].
(d)allowed the appeal on the jurisdictional point. The conviction and dog destruction order were each quashed;
(e) directed that a new trial be held before a District Court Judge. [3] These are my reasons for making those orders.
Facts
[4] Mr Epiha was charged with being the owner of a Labrador Retriever/Shar Pei Cross dog, named Coasty. The dog was alleged to have attacked a person in contravention of s 57 of the Dog Control Act 1996. Relevantly, s 57 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 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.
….
[5] I take my summary of facts from the judgment given by Community Magistrate L Jensen following the defended hearing.3 In summarising the facts in this way, I recognise that it will be necessary for the presiding District Court Judge to
form his or her own view of them at the new trial.
3 Tauranga District Council v Epiha DC Tauranga CRI 2015-070-4109, 28 January 2016 (Community Magistrate L Jensen).
[6] The incident in issue occurred at about 9am on 7 August 2015. Mr Epiha and his sister, Ms Natasha Epiha, were at home in Papamoa. They own Coasty. Ms Richardson, a community nurse, was visiting Mr Epiha for a scheduled appointment. She was bitten on her left thigh by Coasty on the driveway to the property. Ms Richardson did not see the dog as he was behind her.
[7] Coasty was tethered at the time of the attack. The bite was serious, requiring hospital treatment. Ms Richardson needed a tetanus injection and received stitches for the wound.
[8] Mr Epiha knew that Ms Richardson was to visit that day. He had arranged for Coasty to be tethered before the visit. He told a Dog Control Officer on 26
August 2016 that, having returned from a morning walk, he secured the dog just before 9am.
[9] Coasty had come to the attention of a Dog Control Officer on previous occasions. Complaints had been made, largely about barking and noise. While there had been a previous “aggressive episode” with another dog, no inappropriate interaction had been observed with any person.
Proceedings in the District Court
(a) The Community Magistrate’s decisions
[10] Following a hearing in the District Court at Tauranga on 28 January 2016, the Community Magistrate found Mr Epiha guilty of being an owner of a dog that attacked a person.4 She found the dog’s co-owner, Ms Epiha, not guilty of the same
charge.5 The charges were brought as a result of an event that occurred on 7 August
2015.
[11] The Community Magistrate was satisfied that Mr Epiha and his sister were legal owners of the dog and that Coasty did bite Ms Richardson on 7 August 2015.
4 Tauranga District Council v Epiha DC Tauranga CRI 2015-070-4109, 28 January 2016 (Community Magistrate L Jensen).
5 See para [35] below.
She was satisfied that “the dog was inadequately tethered or restrained by Mr Epiha”.6 For that reason, the charge against Mr Epiha was proved beyond reasonable doubt. The Community Magistrate convicted Mr Epiha. He was fined
$250 and ordered to pay emotional harm reparation to the victim.7
[12] On 19 February 2016, the Community Magistrate heard submissions on the question whether the dog should be destroyed. Section 57(3) of the Dog Control Act provides:
57 Dogs attacking persons or animals
…
(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.
….
[13] The Community Magistrate reviewed relevant evidence but found no exceptional circumstances existed. Accordingly, she made an order that the dog be destroyed.8
(b) The first appeal
[14] Mr Epiha appealed against both the conviction and the destruction order. His appeal was heard by Judge Mabey QC, in the District Court at Tauranga, on 1 June
2016.9
6 Tauranga District Council v Epiha DC Tauranga CRI 2015-070-4109, 28 January 2016, at para
[13].
7 Tauranga District Council v Epiha DC Tauranga CRI 2015-070-4109, 28 January 2016 (Community Magistrate L Jensen) (sentencing notes).
8 Tauranga District Council v Epiha DC Tauranga CRI 2015-070-4109, 19 February 2016, at paras [10]–[15]. The Community Magistrate applied the principles set out in Halliday v New
Plymouth District Council HC New Plymouth, CRI-2005-443-11, 14 July 2005. They have been
adopted in many cases: in particular, see Turner v South Taranaki District Council [2013] NZAR
1046 (HC) at para [23].
9 A first appeal from a decision of a Community Magistrate is to a District Court presided over by a District Court Judge: ss 230(a) and 247(a) of the Criminal Procedure Act 2011, in respect of conviction and sentence appeals respectively.
[15] Judge Mabey dismissed both aspects of the appeal; the former on the basis that the offence was one of strict liability, and the latter because there were no exceptional circumstances to justify a refusal to make a destruction order.10 The jurisdictional point was not argued before him. I need say no more about Judge Mabey’s decision.
(c) The application for leave to bring a second appeal
[16] Sections 237 and 253 of the Criminal Procedure Act 2011 provide:
237 Right of appeal against determination of first appeal court
(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.
(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a) the appeal involves a matter of general or public importance;
or
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
253 Right of appeal against determination of first appeal court
(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of a first appeal by that person or the prosecutor under this subpart in respect of the person’s sentence.
(2) A prosecutor may, with the leave of the second appeal court, appeal to that court against the determination of the prosecutor’s first appeal under this subpart.
(3) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a) the appeal involves a matter of general or public importance;
or
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[17] Sections 237 and 253 deal with the discrete topics of appeals against conviction and sentence. A common theme is the need for this Court (when
considering such an application) to be satisfied either that the appeal involves a
10 Tauranga City Council v Epiha [2016] NZDC 10137, at para [6] and [20].
matter of general or public importance or a miscarriage of justice may have occurred, (or may occur) if the appeal were not heard.11 Although, strictly speaking, it is not necessary for me to address the sentence appeal, I comment later on some difficulties that flow from the wording of s 237, in the context of a case such as this.12
[18] On his application for leave to bring a second appeal against both conviction and the destruction order, Mr Epiha identified two points of law:
(a) The Community Magistrate had no jurisdiction to hear and determine a charge brought under s 57 of the Act. Nor did she have power to make a destruction order under s 57(3).
(b)An offence under s 57 is a mens rea offence, rather than one of strict liability.
[19] As the second appeal Court, the High Court’s determination of such an appeal is final.13
[20] The application for leave to appeal was brought one day out of time. The Council did not oppose an extension of time. I made an order extending the time for the notice of appeal and the application for leave to appeal to be filed.14
[21] The Council applied for leave to adduce new evidence on appeal. It was contextual in nature, and said to be relevant to the jurisdictional point. As that issue was purely legal in nature, I declined leave to adduce new evidence.15
[22] The Council acknowledged that a point of law arose in relation to the jurisdictional ground. While there is authority for the proposition that a point not taken on the first appeal would not ordinarily be the subject of leave for a second
appeal,16 in the context of the present application, the point goes to jurisdiction.
11 Criminal Procedure Act 2011, ss 237(2) and 253(3), both set out at para [16] above.
12 See paras [36]–[39] below.
13 Criminal Procedure Act 2011, ss 242 and 258.
14 Ibid, ss 239(3) and 248(4).
15 Ibid, s 334(2) and (3).
16 For example, see Pravitt v R [2005] NZSC 24, at para [4].
Jurisdiction is not something that can be waived. It is a fundamental issue that should be determined on a second appeal. I granted leave to appeal for that reason. In my view, the point involves a question of law of general and public importance.17
[23] The Council opposed the grant of leave on the second proposed ground of appeal. It submits that the law is settled, relying on my own judgment in King v South Waikato District Council.18
[24] Mr Howell, for the Council, contended that there is no basis on which s 57 could be interpreted to produce a mens rea defence. I was not prepared to grant leave on this point. It is now well established that the offence is one of strict liability.19 The only authority to the contrary, Hamilton City Council v Fairweather,20 was not followed in King v South Waikato District Council. Nor has it been followed in subsequent cases. In any event, Fairweather imposed a test of
absolute liability on a dog owner who failed to keep a dog under control. That test can be seen as less favourable to a dog owner.21
The conviction appeal: the jurisdictional point
(a) Powers of Community Magistrates
[25] The functions and powers of Community Magistrates are prescribed by s 11C
of the District Courts Act 1947:
11C Functions and powers of Community Magistrates
(1) The functions and powers of Community Magistrates are to carry out such functions and powers as are conferred on Community Magistrates—
(a) by the Criminal Procedure Act 2011; or
(b) by the Summary Offences Act 1981; or
(c) by any other enactment.
17 Criminal Procedure Act 2011, s 237(2)(a).
18 King v South Waikato District Council [2012] NZAR 837 (HC).
19 The authorities are collected and summarised in King v South Waikato District Council [2012] NZAR 837 (HC) at paras [26]–[28].
20 Hamilton City Council v Fairweather [2002] NZAR 477 (HC).
21 Ibid, at para [49].
(2) Each Community Magistrate is to sit in such courts at such times as the Chief District Court Judge may from time to time direct after consultation with—
(a) the Chief Community Magistrate; or
(b) if the office of Chief Community Magistrate is vacant, such other Community Magistrate as the Chief District Court Judge thinks fit.
(3) The fact that a Community Magistrate sits in any particular court is conclusive evidence of his or her authority to do so.
[26] Section 356 of the Criminal Procedure Act 2011 sets out the jurisdiction for Community Magistrates. Generally, jurisdiction exists in respect of category 122 and infringement offences. Section 356 states:
356 Jurisdiction of Community Magistrates
(1) A District Court presided over by 1 or more Community Magistrates has jurisdiction in respect of—
(a) a category 1 offence in respect of which a District Court presided over by 1 or more Justices has jurisdiction under section 355(1) or (2)(a); and
(b) a category 1 offence, if the enactment creating the offence or another enactment states that the jurisdiction may be exercised by 1 or more Community Magistrates; and
(c) a category 1 offence punishable by a fine not exceeding
$40,000 unless the offence is prescribed by regulations made under section 387; and
(d) an infringement offence.
(2) A District Court presided over by 1 or more Community Magistrates does not have any jurisdiction in respect of a category 1 offence that is a continuing offence.
(3) Nothing in section 357 or 358 limits this section.
[27] A Community Magistrate’s jurisdiction includes that which can be exercised
by Justices of the Peace. Section 355 of the Criminal Procedure Act states:
22 The term “category 1 offence” is defined by s 6(1) of the Criminal Procedure Act 2011.
355 Jurisdiction of Justices
(1) A District Court presided over by a Justice has jurisdiction in respect of an offence only if the enactment creating the offence or another enactment provides that jurisdiction may be exercised by a Justice.
(2) A District Court presided over by 2 or more Justices has jurisdiction in respect of an offence if—
(a) the enactment creating the offence or another enactment provides that jurisdiction may be exercised by a Justice or Justices:
(b) the offence is an infringement offence.
(3) A District Court presided over by a Justice or Justices does not have any jurisdiction in respect of an offence that is a continuing offence.
[28] For the purposes of this appeal, the Community Magistrate could only exercise jurisdiction if permitted by the Criminal Procedure Act 2011.23 It is common ground that the Dog Control Act does not specifically confer jurisdiction on either a Community Magistrate or (one or more) Justices of the Peace for offences under that Act. Nor does the Summary Offences Act 1957. The only basis on which jurisdiction might exist is s 356(1)(c).24
[29] Community Magistrates are given limited jurisdiction in respect of category 2 offences.25 In respect of those within a Community Magistrate’s jurisdiction, Parliament has imposed constraints on the sentences that may be passed.26 It is relevant that s 357(2)(ma) of the Criminal Procedure Act expressly authorises a Community Magistrate to make “a confiscation and destruction order in respect of a motor vehicle” under s 129A of the Sentencing Act 2002. There is no provision in
the Criminal Procedure Act which confers a similar jurisdiction in respect of dog destruction orders under s 57(3) of the Dog Control Act.
(b) Analysis
[30] There is no doubt that a Community Magistrate would have jurisdiction to hear and determine a charge under s 57(2). It is a category 1 offence, for the
23 District Courts Act 1947, s 11C(1)(a).
24 Set out at para [26] above.
25 Criminal Procedure Act 2011, s 357.
26 Ibid, s 357(2).
purposes of s 356(1)(b) of the Criminal Procedure Act. See also, the definition of
“category 1 offence” in s 6(1) of that Act.
[31] A problem arises when, as a consequence of a prosecution brought under s 57(2), an order for destruction of a dog is sought. A destruction order may only be made if the Court were “satisfied that the dog has committed an attack”, in “any proceedings under s 57(2) of that Act”.27 While a Community Magistrate has power to hear and determine a s 57(2) prosecution, no explicit jurisdiction has been conferred on a Community Magistrate to make a destruction order.28
[32] In King v South Waikato District Council,29 I expressed the view that the District Court had jurisdiction to make a dog destruction order only if a conviction were secured against an owner.30 I suggested that the answer to the 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 … it is necessary to destroy the dog”.31 That view was not followed by Miller J, in Turner v South Taranaki District Council.32 He took the view that a conviction was not a necessary pre-requisite to a dog destruction order, as long as there was evidence of the relevant attack. Section
57(3)33 refers to the Court being “satisfied that the dog has committed an attack”
(implicitly) on the basis of evidence elicited in any prosecution under s 57(3). I deal further with this point in the context of the appeal against the destruction order.34
[33] The need for a destruction order to be based on evidence arising out of a s 57(2) prosecution means, in my view, that a Community Magistrate could only hear and determine such a prosecution if also empowered to order destruction of the
offending dog.
27 Section 57(2) and (3) are set out at para [4] above.
28 Compare the jurisdiction in relation to the s 57(2) charge, conferred by s 356(1)(c) of the Criminal Procedure Act 2011 with the lack of any provision, whether in the Dog Control Act, Criminal Procedure Act, or otherwise, to permit a destruction order to be made.
29 King v South Waikato District Council [2012] NZAR 837 (HC).
30 Ibid, at para [32].
31 Ibid, at para [33].
32 Turner v South Taranaki District Council [2013] NZAR 1046 (HC) at para [22].
33 Set out at para [4] above.
34 See paras [37]–[39] below.
[34] If Parliament had intended that Community Magistrates had power to make a s 57(3) order, I would have expected s 357 of the Criminal Procedure Act to expressly incorporate a power to make an order for the destruction of the offending dog. The fact that Parliament saw it as necessary to confer jurisdiction to confiscate and destroy a motor vehicle35 expressly suggests that it was not intended that a Community Magistrate exercise the s 57(3) jurisdiction.
[35] In my view, it remains open for a Community Magistrate to hear and determine a s 57(2) prosecution, as long as no destruction order is made afterwards. However, it will be rare for a prosecution to proceed on the basis that no destruction order will be sought. But, that ability means that those defendants who have been acquitted by Community Magistrates retain the benefit of those verdicts. As Ms Epiha was found not guilty, she retains the benefit of that verdict.
The sentence appeal: some observations
[36] What would have happened if the conviction appeal had been unsuccessful and Mr Epiha had been left to challenge the Community Magistrate’s dog destruction order?
[37] Part 6 of the Criminal Procedure Act creates an elaborate regime dealing with various first and second appeal rights in respect of orders made in the course of criminal proceedings. Sub-part 4 deals generally with the topic of sentence appeals, under which I consider the dog destruction order. Sub-part 5 creates an ability to appeal a sentence for contempt of Court. Sub-part 9 deals specifically with appeals against orders under s 106(3) of the Sentencing Act 2002.
[38] A sentence appeal can only be exercised in respect of a convicted person. Unless there is an extant conviction, there is no jurisdiction, under Sub-part 4, for someone to appeal against an ancillary order. Section 244 of the Criminal Procedure Act states:
244 Convicted person’s right of appeal against sentence
(1) A person convicted of an offence may appeal under this subpart to the first appeal court against the sentence imposed for that offence, unless the sentence is one fixed by law.
(2) An appeal by a person against a sentence imposed on finding the person guilty of a contempt of court must be brought under subpart 5.
(Emphasis added)
[39] The separate rules dealing with civil appeals cannot apply. That is because the destruction order can only be made on the basis of evidence adduced in a criminal prosecution. Thus, if a dog destruction order were not linked to a conviction, there seems no basis on which the order could properly be challenged on appeal. That position suggests that the view I formed in King v South Waikato District Council might be preferred to that of Miller J in Turner v South Taranaki
District Council.36 Having said that, I acknowledge there is much practical utility in
the approach taken by Miller J. For that reason, I prefer to leave that question to a case in which the point requires determination. As the conviction appeal has been successful, it is unnecessary to determine whether there is any separate jurisdiction to grant leave to appeal against the dog destruction order. That order is set aside in consequence of the successful conviction appeal.
Result
[40] For those reasons, on 1 November 2016, I made the orders set out in para [2]
above.
P R Heath J
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