Griffin v Gisborne District Council HC Gisborne CIV 2006-416-21

[2007] NZHC 1632

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2006-416-000021

BETWEEN  CAROLYN MARY GRIFFIN Appellant

ANDGISBORNE DISTRICT COUNCIL Respondent

Hearing:         16 February 2007

Appearances: N Wright for Plaintiff

G R Webb for Defendant

Judgment:      16 February 2007

(ORAL) JUDGMENT OF ANDREWS J

Solicitors:

Rishworth Wall & Mathieson, Gisborne Fax [phone]

Nolans, Gisborne Fax [phone]

GRIFFIN V GISBORNE DISTRICT COUNCIL HC GIS CIV 2006-416-000021  16 February 2007

Introduction

[1]      Ms Griffin appeals against her conviction on 2 November 2006 on a charge of being the owner of a dog that attacked a domestic animal.  The notice of appeal set out the following grounds of appeal.

a)       First, that the Justices of the Peace who heard the prosecution had no jurisdiction to do so.

b)Second,  the Justices  of  the  Peace  failed  to  give  reasons  for  their decision  and  in  particular  failed  to  make  credibility  findings  in relation to witnesses called for the prosecution and defence.

c)       Third, at the conclusion of the prosecution case Ms Wright  (who appeared for Ms Griffin at that hearing as well as today) made a submission  of  no  case  to  answer.     At  the  conclusion  of  that submission the Justices convicted Ms Griffin without inviting her to elect whether to call evidence.

Background

[2]      Ms Griffin owns a German Shepherd dog ‘Sultan’.   The complainant Mrs

Hulme-Moir owns a curly-coated retriever ‘Maggie’.

[3]      The prosecution case was that on 6 June 2006, Sultan attacked Maggie.   It appears from the transcript of evidence heard before the Justices that Maggie, with her owner, was on the road outside the fence surrounding Ms Griffin’s property. Sultan apparently saw Maggie and started chasing her.  Sultan and Maggie were at this point on either side of the fence.  Maggie was snapping at Sultan.  Sultan then left Ms Griffin’s property and there was a confrontation between the two dogs in which Sultan bit Maggie.  Maggie required veterinary attention for her injuries.

[4]      The information served on Ms Griffin referred to two offences, one under s 57 of the Dog Control Act 1996 (in effect, of being the owner of a dog that attacked a domestic animal) and one under s 32 of the same Act of being an owner

who allowed a dog to be at large except when muzzled in such a way as to prevent it biting.   The information was defective in referring to two offences.

[5]      At  the  hearing  counsel  for  the  informant  Gisborne  District  Council  (Mr Webb, who also appeared today) was given leave to amend the information so that it alleged that Ms Griffin committed an offence “in that her German Shepherd Sultan

… attacked a domestic animal, namely another dog, at Hills Road, Ormond” (that is an offence under s 57).

[6]      At the conclusion of the prosecution case Ms Wright made a submission of no case to answer.  Mr Webb responded.  The Justices then retired.  On their return they convicted Ms Griffin.  They did not expressly rule on the no case submission.

[7]      Ms Wright immediately advised the Justices that if they were ruling against her on a no case submission, she intended to call evidence for Ms Griffin.     Ms Wright then called evidence from Ms Griffin and her young son Kieran.     The essence  of  that  evidence  was  that  Maggie  had  “started”  the  confrontation  by snapping at and trying to bite Sultan and that what occurred was not an attack by Sultan, but rather a fight between the two dogs in the course of which Maggie suffered injury.

[8]      At the conclusion of the defence evidence the Justices heard submissions. Following an adjournment, the length of which is not apparent from the Court file, the Justices convicted Ms Griffin.  They made no findings as to the credibility of the witnesses and gave no reasons for their decision.

Issues on appeal

[9]      This appeal raises two substantive issues.  The first is to do with jurisdiction. It was accepted by Mr Webb that the Justices did not have jurisdiction to hear the charge under s 57.  The Dog Control Act did not give the Justices any power to do so and no other enactment appears to have done so.  The issue is as to the effect of that lack of jurisdiction.

[10]     The second issue is as to the Justices’ failure to make credibility findings and to give reasons for their decision.

Jurisdiction

[11]     Mr  Webb  submitted  that  notwithstanding  the  absence  of  jurisdiction  the Justices’ decision and the conviction of Ms Griffin still remained in effect until challenged.   Ms Griffin had not issued judicial review proceedings alleging jurisdictional error.   She had chosen to file a general appeal which is by way of rehearing.   In the circumstances, Mr Webb submitted, this Court can rehear the matter on the basis of the transcript of evidence.  Further, he submitted that it would only be if there were seen to be a miscarriage of justice in the course of the hearing that this Court should decline to deal with the matter by way of rehearing rather than remit it back to the District Court for re-hearing.

[12]     I do not accept Mr Webb’s submission.  I appreciate that Ms Griffin has filed a general appeal, not proceedings for judicial review.  However, as I indicated during the course of the hearing, I was concerned as to this Court’s jurisdiction to “rehear” a prosecution that had not been “heard” (that is, with jurisdiction to do so) in the first place.

[13]     I have now had the opportunity to give further consideration to this issue.  I

note s 204 of the Summary Proceedings Act 1957.  This provides:

204    Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any [District Court] or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

[14]     Commenting on that section,  Cooke  J,  as  he  then  was,  said  in  Police  v

Thomas1:

If a notice considered as a whole is defective, s 204 will apply unless there has been a miscarriage of justice.  No doubt s 204 is unavailable if a defect is

so serious as to result in what should be stigmatised as a nullity.  But nullity or  otherwise  is  apt  to  be  a  question  of  degree:    compare  Broome  v Chenoweth (1946) 73 CLR 583, 601, per Dixon J; New Zealand Institute of Agricultural Science Inc v Ellesmere County [1976] 1 NZLR 630, 636, and the authorities there cited. In practice the questions of miscarriage of justice and nullity will often tend to merge.

[15]     In that case s 204 was applied to defects in a notice of prosecution.  However, I note that s 204 is unavailable if the defect is so serious as to be stigmatised as a nullity.

[16]     As to that question the Court of Appeal held in R v O (No 2)2 that the absence of jurisdiction to hear a prosecution was a fundamental defect.      The Court of Appeal was there considering s 385 of the Crimes Act 1961 in particular the proviso to s 385(1):

385     Determination of appeals in ordinary cases

[(1AA)    This subsection applies to—

(a)        an appeal to the Supreme Court or the Court of Appeal against conviction:

(b)      an appeal to the Supreme Court against a decision of the Court of

Appeal on appeal under section 383 against conviction.]

(1)       On any appeal [to which subsection (1AA) applies, the Court of

Appeal or the Supreme Court must] allow the appeal if it is of opinion—

(a)     That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b)        That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c)    That on any ground there was a miscarriage of justice; or

(d)    That the trial was a nullity—

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal [or the Supreme Court] may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[17]     The terms of the proviso are, in my view, to substantially the same effect as s 204 of the Summary Proceedings Act and accordingly the comments of the Court of Appeal in R v O are of assistance to me.

[18]     I further note that the Court of Appeal cited, from its earlier decision in

R v Blows3 at p7 as follows:

… The present case in our view illustrates so fundamental a deficiency in the proceedings as to make it inappropriate to apply the proviso to s 385, even recognising the breadth of the discretion vested in this Court.   To do so would  be  to  effectively  confer  jurisdiction  on  a  tribunal  which  in  the particular circumstances could not have determined the case.  No case has been cited to us in which the proviso has been applied to give a court jurisdiction to try a charge which it could not lawfully hear and determine.

[19]     Finally,  I note the decision of Allan J  in Simpson  v  Whakatane  District Court4.  His Honour was hearing an application for judicial review in respect of a conviction under s 57 of the Dog Control Act 1996, the very section with which we are concerned today.  The conviction had been entered by a Community Magistrate. I record at this point that the Magistrate’s decision had been the subject of  an unsuccessful appeal both to the District Court and to the High Court.   Mr Simpson

then applied for judicial review on the basis of absence of jurisdiction.     Having considered the matter of jurisdiction Allan J concluded at paras [15] and [16] as follows:

[15]      Accordingly, the Community Magistrates had no jurisdiction to hear the charges against Mr Simpson and his convictions are a nullity.

[16]      I therefore  declare that  the three  convictions entered  against  Mr Simpson by the Community Magistrates on 7 August 2001 in respect of charges under the Act were invalid, and the convictions are hereby quashed as are any penalties imposed at the time, namely the fine and orders for witness expenses.  It also follows that the order for destruction of the dog is discharged.

[20]     On the basis of the above authorities I am satisfied that the Justices of the Peace had no jurisdiction to hear the prosecution under s 57, the hearing was a nullity and the conviction is a nullity.

3 R v Blows CA103/95, 31 August 1995

4 Simpson v Whakatane District Court [2005] NZAR 537

[21]     Accordingly, the proper course is for the conviction to be quashed, as is the fine and costs order imposed on Ms Griffin.

[22]     In light of the finding I have just made it is not necessary for me to consider the second substantive issue on appeal.  Accordingly, the conviction of Ms Griffin is quashed and the fine and costs order is also quashed.

Costs

[23]     Ms Wright seeks costs on appeal on the basis that the respondent Gisborne District Council should have consented to the appeal.  I do not consider this as an appropriate case for an award of costs.   I accept that the particular nature of Ms Griffin’s appeal did not become apparent until submissions were made.   In fact, I note that none of the statutory provisions or authorities to which I have referred in this decision were referred to me by counsel.   Accordingly, no order is made as to

costs.

Andrews  J