Fairbrother v Porirua City Council
[2015] NZHC 1452
•26 June 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2015-485-24
CRI 2015-485-25 [2015] NZHC 1452
BETWEEN GRETEL MCCOURTIE FAIRBROTHER
Appellant
AND
PORIRUA CITY COUNCIL Defendant
Hearing: 16 June 2015 Counsel:
N Levy for Appellant
J Sumner and S Eglington for RespondentJudgment:
26 June 2015
JUDGMENT OF BROWN J
[1] On 19 December 2014 the appellant, Ms Fairbrother, was convicted of the following offences under the Dog Control Act 1996 (the Act) arising from an incident concerning her dog Stanley-Boy on 22 February 2013:
(a) being an owner of a dog who failed to keep a dog under control
(s 53(1) of the Act – the control charge);1
(b)being an owner of a dog which attacked a person and caused serious injury (s 58 of the Act – the attack charge);2
(c) wilfully obstructing and/or hindering dog control officers in the exercise of their powers (s 18 – the obstruction charge).
1 Maximum penalty: fine not exceeding $3,000.
2 Maximum penalty: three years’ imprisonment or a fine not exceeding $20,000 and destruction of
the dog unless exceptional circumstances.
FAIRBROTHER v PORIRUA CITY COUNCIL [2015] NZHC 1452 [26 June 2015]
[2] On 30 March 2015 she was sentenced by Judge A A Zohrab in the District
Court at Porirua as follows:
(a) $250 fine and $130 court costs on the control charge; (b) 200 hours’ community work on the attack charge;
(c) $2,000 fine and $130 court costs on the obstruction charge; (d) $9,622.62 in reparation;
(e) $1,917.50 in pound, sustenance and destruction fees; and
(f) $1,402.50 in expert witness fees.
[3] The appellant now appeals against her convictions on the control and attack charges and against conviction and sentence on the obstruction charge. Whether or not she is successful on her appeals against conviction, she also appeals against the Judge’s refusal to discharge her without conviction.
The incident
[4] In the early evening of 22 February 2013 the appellant was walking her two English Bull Terrier dogs on the beach at Mana. According to the appellant the two dogs were well-trained and had been off their leads for about 45 minutes before they were secured again.
[5] At the same time Ms Harrison-Pugh, with her husband Mr Pugh, was walking along the Camborne Walkway, which runs above the beach. She spotted the appellant and her two dogs and, being a fond ex-owner of English Bull Terriers, called out to the appellant who allowed Stanley-Boy to walk up the bank towards the couple. At this point the dog was at the full extension of his lead and the appellant’s arm was outstretched. The dog was able to sit down at the couple’s feet.
[6] The three engaged in conversation about English Bull Terriers while Ms Harrison-Pugh patted the dog on the head. As the conversation (about five minutes long) was drawing to a close, Ms Harrison Pugh reached down to pat the dog one last time. The dog, seemingly without warning, jumped up at Ms Harrison- Pugh and bit her on the lower lip. She described the contact as “like being hit with a sledge hammer”. As a result about 40 per cent of her lower lip was bitten off and she required extensive and painful surgery at the time, as well as ongoing medical treatment. She has had difficulties speaking and eating since, and her facial appearance is altered.
[7] Subsequently the appellant met the couple at the hospital where Mr Pugh told her that the dog had to be destroyed. It was his evidence that the appellant vehemently objected to this, saying that she thought that her coming to the hospital should be enough and that she could not possibly have the dog destroyed because he was her “baby”.
[8] The incident was followed by several visits to the appellant’s address by Council animal control officers in an endeavour to seize the dog. These attempts were met with various explanations such that the appellant did not know where the dog was and that the officers did not have reasonable grounds for seizing the dog. The fruitless visits culminated in the Council applying for a search warrant, but to no avail.
[9] On 3 September 2014 – some 17 months after the incident – the dog was located in a vehicle belonging to the appellant’s partner. The dog was subsequently seized and impounded. Dog control officers attempted to scan the dog’s micro-chip but could not locate it. There was a scar between the dog’s shoulder blades where the chip would most likely have been inserted consistent with it having been removed.
[10] The dog was put down following the appellant’s convictions in
December 2014.
Grounds of appeal
[11] The appellant appeals against her convictions on the control and attack charges on the ground that Judge Zohrab “erred in his statement and application of the common law ‘no fault’ defence”. She claims that she was not at fault because Stanley-Boy was under control at the time of the incident.
[12] She emphasises the “momentary unpredictable” nature of dogs’ attacks in support of her submission that even dogs under control can attack and their owners remain without fault.
[13] On the appeal against refusal to discharge her without conviction she submits that the consequences of the convictions (whether or not her conviction appeals are successful) are wholly out of proportion with the gravity of the offending. She does not challenge her culpability on the obstruction charge, and accepts it was towards the serious end of offending of that kind. However the appellant wishes to join her partner (who pleaded guilty to an obstruction charge in respect of the dog and was subsequently discharged without conviction) in the United Arab Emirates, and has cited the rescinding of an offer of an employment because of her convictions as an example of the unfairness now facing her as a result of these convictions.
Decision under appeal
Substantive decision – 19 December 2014
[14] In the District Court it was accepted by the parties that the appellant was the owner of the dog and that Stanley-Boy was the dog in question. It was further accepted that the injuries suffered by Ms Harrison-Pugh were serious. Even so, the hearing occupied three days in September 2014 and a further day in November with evidence from 14 witnesses, seven of whom provided expert evidence. The District Court decision runs to 396 paragraphs.
[15] However as the appellant’s ground of appeal against conviction is quite narrow, it is not necessary to recount Judge Zohrab’s decision at length. The parts of the decision relevant to the appeal relate to the evidence which the Judge accepted and rejected as to the dog’s behaviour, the degree of control the appellant exercised over the dog and the Judge’s consideration of the defence of absence of fault.
Evidence
[16] The witnesses for the Porirua City Council comprised: (a) Ms Harrison-Pugh;
(b) Mr Pugh;
(c) Ms Buckland (warranted animal control officer at the Council who dealt with the appellant on 23 and 24 February 2013);
(d)Mr Chilcott (animal control team leader at the Council. He dealt with the appellant and her lawyer from February-July 2013 and again in September 2014);
(e) Ms Styles (warranted animal control officer at the Council who retrieved pictures of the dog from the appellant’s Facebook page and examined the dog once impounded);
(f) Mr Law (lawyer and policy adviser at the Council who prepared the search warrant for the appellant’s property, attended the property in March 2013 and prepared the search warrant for the vehicle in which the dog was located in September 2014);
(g)Ms Goddard (professional dog trainer (30 years) and behavioural expert (14 years) who prepared a behavioural report on the dog based on defence witnesses’ reports and completed a behavioural assessment on the dog at the pound in September 2014);
(h)Mr Davis (consultant plastic and reconstructive surgeon who operated on Ms Harrison-Pugh the day after the incident);
(i)Mr Bisson (specialist in plastic reconstructive and hand surgery who was involved in the follow-up treatment of Ms Harrison-Pugh);
(j)Dr Williams (plastics registrar at Wellington Regional Maxillofacial and Burns Unit at Hutt Hospital); and
(k) Dr Draper.
[17] The appellant gave evidence and also called:
(a) Ms Hebberley (owner/operator of boarding kennels where the dog would stay on occasion);
(b)Mr Hutton (owner of a canine behaviour centre having 40 years experience in applied canine psychology, canine aggression in particular, who compiled reports on the dog’s aggression based on statements of Ms Harrison-Pugh, Mr Pugh, Mr Chilcott, Ms Buckland and Mr Bisson); and
(c) Ms Dale (applied animal behaviour and welfare scientist (14 years, PhD), a senior lecturer who runs a veterinary referral animal behaviour clinic and compiled a report on the dog’s behaviour immediately pre- and post-incident based on witness statements of the appellant, Ms Harrison-Pugh and Mr Pugh).
Consideration of the no fault defence and evidence as to the dog’s behaviour
[18] The Judge considered the parties’ submissions as follows:
[276] Counsel for the informant acknowledged that in Tauranga City Council v Julian [2014] NZHC 2132 Katz J held (at para [23]) that the common law defence of total absence of fault was available and that ss
5(1)(f) of the Act reflected that. What was submitted by the informant, however, was that on the facts of this case that the total absence of fault
could not be established because Ms Fairbrother did not have the dog under control when it attacked the complainant.
[277] Counsel referred to the decision of Hamilton City Council v Fairweather [2002] NZAR 477 (HC), where Baragwanath J considered an appeal in respect of a prosecution under s 57(5) of the Act (now s 57(2) and (3) of the Act). In that decision Baragwanath J held:
[49] Testing that conclusion, when one considers the common law presumptions, to require a dog to be kept under proper control entails no element of unreasonableness or oppression. Parliament itself in ss 32(1) (a) and (b) has spelt out how that may be done. A dog that is properly controlled is not exposed to destruction, nor is the owner vulnerable to conviction and fine.
…
[54] Can there be conduct by the owner of a controlled dog that should lead to liability for an attack? In my opinion the wide ambit of the term “control” avoids any problem, by providing a suitable test to meet all conditions. A dog on a leash that is able to attack a passerby is not controlled.
(Emphasis added)
[278] Counsel for the informant submitted that in the example of Baragwanath J’s observation that a dog on a leash that is able to attack a passerby is not to be controlled is to be found in the decision of Hunia v Rotorua District Council [2014] NZHC 236, [2014] NZAR 527 where the owner of a dog that bit a passing cyclist, while on a lead, was convicted of being the owner of a dog that had attacked a person.
[279] In summary, given that the informant had proven Ms Fairbrother was the owner of the dog and that the dog was on a lead, and notwithstanding that, the dog was able to bite the complainant whilst on the lead, it followed that Ms Fairbrother had failed to keep the dog under control.
…
[298] Counsel submitted that s 5 of the Act sets out the requirement for a dog to be kept under control whilst at the same time providing that reasonable steps are taken to avoid injury. This provides for the reality that control, in the context of animal behaviour, cannot be absolute.
[299] In King v South Waikato District Council [2012] NZHC 2264, [2012] NZAR 837, [28], Heath J held that an owner should have the opportunity to establish that appropriate steps to exercise control had been taken.
[300] Counsel acknowledges that in that case the owner of the dog was not present at the relevant time, but submits that the principle remains in the same in instances where the owner is present. The owner must be able to establish that he or she had done everything reasonably possible to ensure that appropriate steps had been taken to control the dog.
[301] Counsel submitted that in Tauranga City Council v Julian [2014] NZHC 2132, Katz J had found a defence of total absence of fault to be available at common law, noting at para [22] that in her view the wording of s 5(1)(f) recognises and is consistent with this.
[302] Accordingly, counsel for Ms Fairbrother submitted that at the time the injury occurred Stanley-Boy was under control, sitting down and quietly, happily wagging his tail, and both Mr Pugh and Ms Harrison-Pugh were clearly satisfied that Stanley-Boy was under control, and they were happy for him to sit beside them and be patted.
[303] In Tauranga City Council v Julian the fact that the dog had no history of aggressive behaviour was a relevant consideration in assessing whether reasonable steps had been taken by allowing another adult to supervise young children who were running around in the same area where a dog was occupied with a bone.
[304] Further, Stanley-Boy had had no history of aggressive behaviour, and had not come to the attention of the informant before, and that there was no evidence he had a propensity to attack and no one saw any indication of any untoward behaviour on his part.
[305] It is clear from the evidence that the body language was not aggressive and, as Ms Harrison-Pugh said, if there had been an indication that he was unhappy she would have moved away. Further, given that it all happened so quickly based on Mr Pugh’s evidence, there was no time for anyone to take steps to prevent what happened.
[19] The following paragraphs detail Judge Zohrab’s assessment of the evidence. They are best set out in full to demonstrate the weight he accorded to different witnesses and their opinions:
[307] What is clear from the evidence is that neither Mr Pugh nor Ms Harrison-Pugh had any concerns whatsoever about Stanley-Boy up until the point of the physical contact between Stanley-Boy and Ms Harrison-Pugh.
[308] However, the chance encounter has to be seen against the following background. Just prior to the meeting, both dogs had been exercised off their lead for some 45 minutes and had been well exercised. They had only just been placed on their leads.
[309] Ms Harrison-Pugh and Mr Pugh were complete strangers to Ms Fairbrother and also to the dogs. Ms Fairbrother had both dogs on a lead with Stanley-Boy at the full extent of the lead on the path with Georgie remaining, possibly having gone up to Ms Harrison-Pugh initially, on the beach.
[310] Ms Fairbrother describes it as a lengthy discussion and recalled being concerned about Georgie who was not getting any attention looking out to sea and being bored.
[311] Ms Fairbrother described the discussion as lengthy and emphasised on a number of occasions how enthusiastic and excited Ms Harrison-Pugh was. Indeed she commented that she thought the rubbing and excited talking was all getting a bit too much. Furthermore, she thought it a little bit over the top and that it was time to go. She also said that Stanley-Boy was not a robot.
[312] It is clear then that Ms Harrison-Pugh bent over slightly to pat Stanley-Boy just before leaving. I do not accept that she was attempting to kiss Stanley-Boy, given that she is an experienced dog owner, a veterinary technician and as she said she knows where they put their mouths. I accept Ms Harrison-Pugh’s evidence that it was a one-handed pat and there was no exaggerated bending over, and having seen her in the witness box, and given her height and the approximate size of Stanley-Boy, there would still have been quite a reasonable distance between her and Stanley-Boy. Indeed she said she was talking to Ms Fairbrother when it happened.
[313] I simply add at this point that I did not find Mr Hutton’s demonstration in Court as to the possible distances between Ms Harrison-Pugh’s face when bending over, and Stanley-Boy when seated, to be of any evidential value. Mr Hutton had never measured the dog or Ms Harrison–Pugh, and it was entirely based on a hearsay measurement from Ms Fairbrother, so was entirely speculative, and it gave me the distinct impression he was trying to reduce as much as possible the distance involved, as opposed to providing any meaningful demonstration.
[314] This was all happening just as Ms Fairbrother thought the excitement levels were getting a bit high and she was thinking it was time to pull Stanley-Boy away.
[315] Ms Fairbrother said she saw Stanley-Boy register Ms-Harrison-Pugh’s movement down and in response he went up to greet her.
[316] Stanley-Boy has obviously had to move up for his mouth to make contact with Ms Harrison-Pugh, given her height and his size, so there must have been some upward movement on his part, whether one characterises this as a jump, a leap or a lunge.
[317] We know that Ms Harrison-Pugh lost a significant amount of her lower lip and that this has had significant consequences for her. However, those consequences should not cloud an objective assessment of the facts.
[318] Ms Fairbrother said she had a clear view of what happened and that Stanley-Boy went up, open-mouthed and it was not a bite and the serious injury resulted from an unfortunate collision.
[319] The reality of the matter though is that the contact between Stanley-Boy and Ms Harrison-Pugh happened in an instant. As Ms Dale said, on a conservative estimate, dog bites occur 10 times faster than one can move their hand away from the area. Ms Fairbrother literally had her hands full with two dogs, both on leads with one dog up on the path at almost full stretch and she was just about to pull him away with the other dog being on a lead down on the beach. Furthermore, given Stanley Boy was at full stretch on the lead, and she was below him her view point must have been from
behind Stanley-Boy. Given the foregoing factors, and more particularly the speed of events it would have been impossible for Ms Fairbrother to accurately observe what Stanley-Boy actually did.
[320] Ms Harrison-Pugh described the contact as like being hit by a sledge hammer and from her evidence she had no idea of the seriousness of what happened. Mr Pugh who as in close proximity described it happening so quick and he conceded that he did not see it.
[321] Mr Hutton and Ms Dale said that the injury did not result from a bite but rather was as a result of a collision injury. They base their conclusions on the lack of indications of aggressive action on the dog, both before and subsequent to the incident. Based on their knowledge and experience in their respective fields, they are of the view that there would have been such indicators.
[322] They also gave evidence that given that there were none of these pre or post incident indicators, and having examined the photos of the injury, that the injury was as a result of a collision.
[323] Ms Goddard did not accept either Mr Hutton’s or Ms Dale’s assessment. She says one has to be careful of Ms Fairbrother and Ms Harrison-Pugh’s assessment of Stanley-Boy as being happy before the incident. She says that there can be subtle signals not noticed by the untrained eye and that in any event, a dog can bite on a spontaneous whim if provoked by an irritant or similar.
[324] Ms Goddard also went on to offer her view that the injuries were consistent with a dog bite.
[325] Ms Goddard also seemed to be suggesting that as a result of her behavioural assessment of Stanley-Boy at the pound on 5 September that one might conclude that Stanley-Boy was a highly charged dominant male and was not shy of expressing himself and also had an unpredictable element to his behaviour.
[326] It is trite law that experts are able to give opinion evidence only on matters which are within their field of expertise and training. Accordingly, I place no weight at all upon the evidence of Ms Goddard, Mr Hutton and Ms Dale, as far as their interpretation of whether or not the photographs record an injury which is consistent or inconsistent with a dog bite or a collision injury. They have no medical training or such other specialist training as would enable them to offer such an opinion.
[327] I also note that I largely discount the majority of Ms Goddard’s conclusions as to what might be described as Stanley-Boy’s “character”, following her assessment of him in the pound on 5 September 2014. The reason I do that is because Stanley-Boy had been “hidden” for the previous
17 months and was then located in a parked car shortly before being placed
in the pound. So Ms Goddard’s assessment was some 17 months after the incident, and under what must have been very stressful circumstances for Stanley-Boy. Both Mr Hutton and Ms Dale confirmed how stressful it was for a dog at the pound and I accept their opinion as to that.
[328] However, putting those matters to one side, her observations of Stanley-Boy at the pound did give her the opportunity to observe how he might possibly jump, that when he was in an excitable state such as barking, that he calmed fairly quickly, and further at all times, even when very aggressive and barking, his tail never stopped wagging.
…
[345] I am of the view that the opinion of Mr Davis and Mr Bisson that it was a bite, is reconcilable to a degree with the evidence of Mr Hutton and Ms Dale. Both stated that they would have expected there to be behavioural indicators, both before and after by Stanley-Boy if this had been a deliberate bite, and what informed their conclusion it was not a bite was the lack of such indicators. They rely upon the observations of Ms Harrison-Pugh, Mr Pugh and Ms Fairbrother.
[346] However, whilst Ms Harrison-Pugh is a former dog owner and was obviously admiring Staley Boy and saw nothing amiss, and whilst his tail was wagging, we now know from the various dog experts that does not necessarily mean a dog is “happy” or “content”. We also know from the Ms Goddard that while there can be obvious signs of aggression, there can be more subtle signals such as licking of the lips, turning the head away, stiffening or taking a direct focus. Furthermore, we know from Ms Goddard’s observations of Stanley-Boy at the pound that when he was highly aroused and acting in what she described to be a menacing way and was barking, his tail never stopped wagging. Furthermore, she noted that he would calm down fairly quickly from an excitable state.
[347] Immediately prior to being bitten by Stanley-Boy Ms Harrison-Pugh has touched him on the head, and was talking with Ms Fairbrother. Ms Fairbrother is concerned at this point, she thought it was all a bit too much and she is looking to move him on. Mr Pugh said he was focussing on Ms Fairbrother. So Ms Harrison-Pugh and Mr Pugh were not focussing on Stanley-Boy at the time and it seems he must have taken exception to something Ms Harrison-Pugh did and he has bitten her.
[348] By this stage he had been on the lead for some 5 to 6 minutes after running around freely and the excitement levels were getting too high, Also Ms Fairbrother had another dog which was bored because it was not getting any attention.
[349] Accordingly if there were indicators beforehand, they were not seen or appreciated by the witnesses. Further, once Ms Harrison-Pugh was bitten, the focus was on her as opposed to Stanley-Boy and what he was doing. Similarly, Ms Fairbrother must have been focussing on Ms Harrison-Pugh and Mr Pugh’s upset. Accordingly, whilst I bear I mind the evidence of Mr Hutton and Ms Dale, their opinion was reliant on the observation of the witnesses both before and after and who had no reason to be looking for indicators, and whose focus after the incident would have largely been on Ms Harrison-Pugh.
[350] I also accept Ms Goddard’s opinion that dogs can react in a way to warn off people or animals. As a matter of common sense a dog must be able to act quickly to protect itself or warn off a perceived threat within a short period of time. I cannot accept that a dog must necessarily behave in such a
way for a lengthy period beforehand (and subsequently), that would necessarily lead an untrained person to conclude that a dog was going to bite someone.
[351] Accordingly, I accept without reservation the expert evidence of Mr Davis and Mr Bisson, and the other medical experts, that the serious injury to Ms Harrison-Pugh was caused by Stanley-Boy biting her and not by a collision injury.
[352] The issue I then have to decide is whether or not Stanley-Boy attacked Ms Harrison-Pugh.
[353] It is clear from the decision of Jack v Manukau City Council that an attack requires physical contact and that whether or not an attack has occurred in terms of the Act is a question to be determined in the circumstances of the particular case.
[354] This was not an accidental collision with Stanley-Boy’s open mouth. Stanley-Boy has had to jump a reasonable distance and bite Ms Harrison-Pugh on the face, and a serious injury has resulted. This was not an “excitable mouthing”, neither was this a “kiss gone wrong” or Stanley-Boy simply rising to greet Ms Harrison-Pugh.
[355] Counsel for Ms Fairbrother has effectively sought to argue that given the lack of indicators of aggressive intent, both before and after the incident, that this was not an aggressive bite, and as such was not intended to be caught by the term “attack” as used in the Act. I do not accept that proposition.
[356] As Mr Bisson said, for Stanley-Boy to have caused the injuries that he did to Ms Harrison-Pugh’s lip, it required not only sharp teeth, but a significant amount of force to cut through skin, mucosa and muscle. Both he and Mr Davis were adamant that to cause the injury they observed required the operation of a “classic bite” mechanism. Clearly what has happened here is that whilst the upper incisors may have glanced Ms Harrison-Pugh’s cheek, Stanley-Boy’s jaws have clamped down on Ms Harrison-Pugh’s lower lip, shearing off approximately 40% of it. The injury is also consistent with the type of pressure/crush injury described by Ms Dale, albeit there was nothing to “hold and shake”, given that it appears Stanley-Boy swallowed the lower part of the lip. It appears that it was simply luck which meant that the clamping down or pressure/crush injury did not involve a much great proportion of Ms Harrison-Pugh’s face, with the focal point being her lower lip only.
[357] Whilst Ms Goddard did not like to use the words “a happy dog”,
Mr Hutton was of the view that “happy dogs don’t bite”.
[358] I therefore conclude that in the circumstances of this case that given that Stanley-Boy has jumped up and bitten Ms Harrison-Pugh on the lip, that it required a significant degree of force to cut through the skin and mucosa, and that his jaws have clearly clamped down on the lower lip, amputating a significant proportion, and that this constitutes an attack such as was intended by Parliament to be caught by the Act.
[359] The defendant argues that the defence of total absence of fault is available, given that there was no history of the behaviour and given the lack of indicators before and after, and that it was completely unexpected.
[360] In my view, the defence of total absence of fault is not available on the facts of this case as Ms Fairbrother did not have Stanley-Boy under proper control when he attacked Ms Harrison-Pugh.
[361] Whilst Stanley-Boy may not have behaved in such a way previously, Ms Fairbrother was walking two powerful dogs on leads on her own. She remained on the beach with one dog and she allowed Stanley-Boy to go up to complete strangers and be the centre of an animated discussion. Stanley-Boy was pretty much at full extension of the lead with Ms-Fairbrother’s arm extended. Accordingly, Ms Fairbrother was attempting to control two powerful dogs without any ability to be able to apply any corrective force to either of them and, more particularly, she was in no position to restrain or correct Stanley-Boy’s behaviour if required.
[362] As Baragwananth J said in Hamilton City Council v Fairweather: A dog on a leash that is able to attack a passerby is not controlled.
[363] Accordingly, it follows also on my analysis that Ms Fairbrother failed to keep Stanley-Boy under proper control, and the defence of total absence of fault is not available for that charge also.
[20] The Judge found the elements of the attack, control and obstruction charges made out beyond reasonable doubt, and ruled that the no fault defence was not available to the appellant.
Sentencing notes – 30 March 2015
[21] The Judge began by considering whether a discharge without conviction was appropriate.3 He assessed the gravity of the offending (including aggravating and mitigating factors of the offender and offending), the direct and indirect consequences of conviction and whether those consequences were out of all proportion to the gravity of the offence.4
[22] In respect of the gravity of the offending, the Judge considered the offending to be “moderately serious, getting to the cusp of serious offending.” He noted that although two of the offences were punishable only by a fine, s 58 was the most
serious offence under the Act. He considered the aggravating features of the
3 Sentencing Act 2002, s 11.
4 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.
offending to be the serious injury inflicted and the ongoing issues experienced by Ms Harrison-Pugh. He also considered the obstruction offence to be an aggravating factor of the s 58 offence and noted that Ms Fairbrother had repeatedly obstructed and misled her lawyer and the Court about her control of the dog and its whereabouts.
[23] The Judge described Ms Fairbrother as a person of good character with no previous convictions but said that she had selfishly focused on her and her dog’s interests. He considered the absence of remorse in this case to be an aggravating factor but accepted that her personal degree of fault was towards the lower end of the scale. There were no further personal aggravating factors and, in mitigation, he noted that Ms Fairbrother could have been described as a person of good character prior to the offending. The Judge acknowledged her offer to make amends by way of significant costs, emotional harm reparation payments, and pound and witness fees.
[24] In respect of the direct and indirect consequences of conviction, the Judge acknowledged the competing contentions. Counsel for Ms Fairbrother submitted that convictions would make it incredibly difficult for her to obtain employment overseas in the United Arab Emirates (UAE). However, the informant submitted that even if Ms Fairbrother experienced difficulty in securing employment, this was not out of all proportion to the gravity of the offending. Overall the Judge was not persuaded, on the basis of the single letter provided by a prospective employer, that Ms Fairbrother would be completely barred from working in the UAE. She would be travelling as a matter of choice and he felt the consequences would be speculative.
[25] He concluded that the gravity of the offending was such that a discharge without conviction would be inappropriate in the circumstances. He was particularly swayed by the nature of Ms Fairbrother’s obstructions and the emotional harm suffered by the complainant. However he considered that imprisonment would be an inappropriate starting point and noted that the aggravating features of the offending would be sufficiently reflected in a community work sentence.
[26] His Honour then proceeded to sentence the appellant in the manner set out above at para [2].
Approach on appeal
Appeal against conviction
[27] The appeal against conviction is brought under s 229 of the Criminal Procedure Act 2011 and proceeds by way of rehearing. The High Court can only allow an appeal if it is satisfied that the trial judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred (s 232(2)(b)) or that a miscarriage of justice has occurred for any reason (s 232(2)(c)).
[28] A miscarriage of justice is (s 232(4)):
Any error, irregularity or occurrence in or relation to of 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.
[29] Following the Supreme Court in Austin, Nichols & Co Inc v Stichting
Lodestar, the appeal is approached in the following way:5
(a) The appellant bears the onus of satisfying the Court that there has been a miscarriage of justice;
(b)The appellate Judge is to review all of the evidence and come to his or her own view as to whether or not the appellant is guilty of the offences, or whether a defence has been made out;
(c) The appeal should be allowed if the appellate Judge disagrees with the conclusion of the District Court Judge;
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
(d)The appellate Judge may reach the same conclusion as the District Court Judge, albeit for different reasons. It is the correctness of the decision reached by the District Court Judge rather than the reasoning followed to reach that decision that is of paramount importance.
Test for discharge without conviction
[30] Section 106(1) of the Sentencing Act 2002 provides the Court with a discretion to discharge a person without conviction who has been found guilty of, or pleaded guilty to, an offence unless the Court is required to impose a minimum sentence.
[31] The test which must first be satisfied before a discharge may be granted is found in s 107:
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
This section provides a gateway through which an application for a discharge must first pass before it can be granted.6
[32] The approach the Court must take is to:7
(a) consider all of the aggravating and mitigating features relating to both the offending and the offender;
(b)identify the direct and indirect consequences of a conviction on the offender for that offending; and
(c) consider whether those consequences are out of all proportion to the gravity of the offence.
[33] It is only when the Court does consider that the consequences are all out of proportion to the gravity of the offence that it may exercise its residual discretion under s 107 to grant a discharge. However, the discretion is limited as it is only in very rare cases that the discretion would not be exercised if the Court was satisfied that the above criteria had been met.8
Appeal against refusal to grant discharge without conviction
[34] An appeal against a refusal to grant a discharge without conviction is not considered to be an appeal against the exercise of a discretion but proceeds by way of the normal – that is, Austin Nichols – principles. The reason for this was articulated in R v Hughes:
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles … The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.
[35] The s 107 assessment is said to carry much of the work when determining whether a discharge is appropriate. The approach to be taken in relation to s 107 has been put this way:9
… when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.
[36] It is thus the task of this Court to determine whether the s 107 criteria set out above are satisfied.
Discussion – appeal against convictions
Submissions
[37] The appellant’s submissions focus upon the Judge’s observations and findings as to the extent of control she was exercising over the dog at the time of the attack and emphasise that the instantaneous nature of the attack negated any further control she could have had over the dog. She says:
(a) there was no evidence she was struggling to control the dog – she “allowed” the dog to go up the bank to Ms Harrison-Pugh and her husband;
(b)the attack was momentary and not able to be predicted – she says the “constant theme” of the evidence was that attacks can occur without any warning and before an owner could react to restrain a dog from that movement;
(c) there was nothing in the dog’s behavioural history to suggest any more control of the dog was necessary – he was experienced in meeting people;
(d) “there could be no fault in having the dog on a lead that allowed some
head movement”; and
(e) Ms Harrison-Pugh was not a passer-by because she deliberately engaged with the dog.
[38] After addressing the decisions in Fairbrother, King and Julian the appellant made the following submission on the issues of control and attack:
It is submitted that the present facts, the expert evidence given, and common sense indicate that a dog can attack while “under control”. But we do not require all dogs to be muzzled or kept completely inaccessible to people other than the owner who wish to interact with them. “Control” is a flexible term requiring an assessment of all the circumstances, including the risk or likelihood of sudden aberrant behaviour by the dog.
The necessary control will vary according to the circumstances. So a person walking in a sparsely populated bush area will have the necessary control of their dog even if it is on a relatively long leash, or the owner is looking in a different direction. On the other hand, a person navigating a busy street or walking dog being rushed at by a group of school children, will need a tighter lead and more vigilance until the risks have dissipated. Obviously any known tendencies of the dog can make more vigilance a necessary part of control, and similarly previous uneventful social conduct can mean more leniency is still consistent with control.
Therefore, the same facts that support the lack of fault defence on the attack charge are also relevant to the control charge. A bite alone is not sufficient evidence of lack of control.
[39] The respondent submits that, on the facts of this case, the conclusion that the appellant was not in control of the dog was open to the Judge. The respondent says that the fact of the dog’s apparent calm before and possibly after the attack is not exceptional, citing Hunia v Rotorua District Council.10
[40] In its written submissions the respondent contended:
25It is submitted, that by allowing the dog to go up the bank to the very end of the lead, the appellant would be unable to restrain the dog if he then jumped up. It is further submitted that the fact that the dog was able to jump up, despite being on a lead, confirms that the appellant did not have the dog under control.
26It is submitted that where a dog is able to attack a passerby without warning, regardless of the length of the lead, then for the same reasoning as Judge Zohrab relies on, that dog would not be under control.
27Given this, it is submitted that the appellant did not meet the threshold of the total absence of fault defence and as such Judge Zohrab did not err in his reasoning that the appellant had a “personal degree of fault all be it at the lower end of the scale”.
[41] In essence the respondent says there cannot be a total absence of fault in the circumstances where a dog, through its owner’s actions or inactions, has (a) the
opportunity to attack and (b) is able to attack, and (c) subsequently does attack.
10 Hunia v Rotorua District Council [2014] NZHC 236, [2014] NZAR 527 at [13].
Analysis
[42] Attack and control charges are strict liability offences. Once the elements of the offences have been made out beyond reasonable doubt, criminal responsibility can only be avoided if the appellant can establish, on the balance of probabilities, the defence of a total absence of fault. As Heath J observed in King v South Waikato
District Council:11
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”.
[43] During the course of the appeal hearing, there were various attempts at restating the total absence of fault defence as requiring nothing more than taking all reasonable steps to prevent such an incident, or asking “what more could the appellant have done” to stop the attack.
[44] In my view such re-characterisations are not helpful. What is required to be shown is a total absence of fault. In Dog Control Act cases the defence may be engaged where, for example, the owner is not present (through no fault of his or her own) during the attack or an intervening event out of the control of the owner occurs (such as the cutting of the dog’s lead by a stranger).
[45] In the words of Brewer J:12
Strict liability is not the same thing as negligence. There is a temptation to move towards the negligence level of liability whenever the words “reasonable” is used. It should be remembered that this is not the sense in which it is used in this case. Total absence of fault is a high threshold to cross.
11 King v South Waikato District Council [2012] NZHC 2264 at [30].
12 King v South Waikato District Council [2013] NZHC 5986 at [20].
[46] Why the bar to establishing such a defence is set high was explained by
Heath J in the following way:13
The rationale for requiring the “total absence of fault” defence is that, ordinarily, public welfare regulation is directed primarily to “the protection 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.
[47] To reach a conclusion in this case as to whether the defence is made out, requires a consideration of all of the circumstances. I have reviewed all of the evidence. I have found particularly helpful the photographs of the beach and the walkway (elevated relative to the beach) where the attack occurred, and the descriptions in evidence as to the relative positions of the appellant, her two dogs, Ms Harrison-Pugh and Mr Pugh.
[48] In my view the appellant allowed, whether unwittingly or not, a situation to develop whereby her resources were stretched to the extent that an outcome such as an attack was not avoidable. Her attention was split between her two dogs, one up the bank near Ms Harrison-Pugh, the other on the beach in the direction of the sea. With reference to the second dog her evidence was as follows:
Q. Where was Georgie while all this was going on?
A. Um, I can’t exactly remember if she went up. I think she would have but Ms [Pugh’s] focus was just on Stanley so Georgie was being ignored and she lost interest and she went back down onto the beach. I remember looking at her, wondering if she was okay, because it had been a little while, um, she was a bit restless and she was just standing there staring out to sea. She was pretty bored. She wasn’t being paid any attention, so she wasn’t interested.
[49] The arm with which the appellant was holding Stanley-Boy’s lead was stretched to full extension with the dog standing on the bank above her, at least at shoulder height. There was evidence that the dog’s hind legs were on the grassy bank while his front legs were on the sandy walkway. The appellant gave evidence she thought the discussion had gone on long enough. She said:
I thought the rubbing and the excited talking was all just getting a bit much. I remember thinking she’s a really nice woman but a little bit over the top and it’s time to go.
[50] However before she could move the dog bit Ms Harrison-Pugh. Even at full stretch of her arm the dog was able to jump up and attack Ms Harrison-Pugh causing serious injury. In these circumstances it is my assessment that the defence of total absence of fault has not been made out by the appellant on the balance of probabilities.
[51] I consider Judge Zohrab’s analysis of the situation at [361]14 was sound and justified his conclusion that the defence of total absence of fault was not available in the circumstances of this case.
[52] The appeal against the attack and control convictions is dismissed accordingly.
Discussion – discharge without conviction (obstruction charge)
[53] It is apparent from the excerpts of his Honour’s sentencing notes set out above that the Judge correctly directed himself as to the three stage approach mandated by s 107 and that he carefully followed that approach.
[54] I am unable to discern any error in the Judge’s consideration of the gravity of the offending. While counsel for the appellant urges me to consider as paramount the fact that the obstruction offending is punishable by a fine only, that in my view is overshadowed by the seriousness of the obstruction in this case, aggravated of course by the length of time over which it occurred. Counsel for the respondent contends that the appellant’s obstruction was the worst the Council had experienced and Judge Zohrab’s conclusion as to the gravity of the offending certainly aligns with that submission.
[55] I am also unable to discern any error in the Judge’s consideration of the direct and indirect consequences of the offending on the appellant. Judge Zohrab was alive to the fact the appellant may not be able to secure employment in the UAE and some updating evidence on that issue has been provided on this appeal. In this case it seems the UAE unfortunately does not distinguish between true and quasi-criminal
offences, though I note this evidence has been by way of recruitment emails to the appellant (ie no affidavit evidence has been presented to this Court to support the submission). However, while the appellant’s job prospects in the UAE appear limited, they are by no means finite in New Zealand or in many other overseas countries.
[56] Having reviewed the circumstances and the submissions made, I do not consider that the consequences of the appellant’s convictions are out of all proportion to the gravity of the offending. Indeed I share Judge Zohrab’s view that the gravity of the offending was such that a discharge without conviction was not appropriate.
[57] This aspect of the appeal is dismissed accordingly.
Brown J
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