Hamilton City Council v Fairweather HC Hamilton AP 61/01

[2001] NZHC 1196

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY AP 61/01

BETWEEN HAMILTON CITY COUNCIL
Appellant

AND ALISTAIR ANDREW FAIRWEATHER
Respondent

Hearing 30 November 2001

Counsel K G Smith for the appellant
M Talbot for the respondent

Judgment 5 December 2001

JUDGMENT OF BARAGWANATH J

Solicitors

Swarbrick Dixon, PO Box 19-010, Hamilton for the appellant
McCaw Lewis Chapman, PO Box 19-221, Hamilton for the respondent

Introduction and result

[1] On the second reading of the Bill that became the Dog Control Act 1996 (the Act) a speaker estimated that there were about half a million dogs in New Zealand (Hansard 27 March 1996 page 11781 the Hon Graham Lee). Balancing the danger presented by what Parliament has identified as “dangerous dogs” against the affection of owners for their “companion dog”, of the need of the deaf for their “hearing ear dog”, of the blind for their “guide dog” and for the last two groups and the Police, Customs farmers and others of “working does” has presented continuing challenges for legislatures and courts in New Zealand and elsewhere. Since the Dogs Registration Act 1880 New Zealand statutes have imposed criminal liability on the owner of a dog that attacks a human or certain classes of animal. This test case concerns the interpretation of the current provision, s 57(5) of the Act.

[2] Dr Fairweather was charged and acquitted on a charge brought in the Hamilton District Court by the Hamilton City Council that

“he did on 22 June 2000 at Rotokauri Road, Hamilton, commit an offence against Section 57 of the Dog Control Act in that he did own a dog described as a three-year old male German Wirehaired Pointer coloured liver named Ullr which did attack an 18-week old kitten named Toby injur[ing] the kittn in such a manner that the kitten had to be euthanased,”

[3] In challenging the acquittal on appeal the Council’s main submission is

• that s 57(5) creates a status offence, so that an attack by a dog entails automatic criminal liability on its owner.

[4] If that argument fails the Council submits in the alternative

• that there is automatic liability for a dog attack if the dog is not under control.

But on this alternative argument, if the dog attacks while it is under control, the Council concedes that no offence is committed.

[5] As respondent Dr Fairweather agrees that there is automatic liability if the attacking dog is not under control. Paradoxically, he argues for a higher obligation upon the owner of a dog that attacks while under control than is proposed by the Council’s alternative argument. He submits that there is liability for such attack, except that proved absence of fault provides a defence.

[6] For the reasons that follow I reject the Council’s first argument but accept the second. I hold that an owner is automatically liable for a dog attack if the dog is not under control. But if the dog attacks while it is under control, no offence is committed. Since the Council has conceded that the dog was at all times under control Dr Fairweather committed no offence and the Council’s appeal against his acquittal must be dismissed.

The proceedings before the Community Magistrates and the District Court

[7] The facts found by the Community Magistrates were:

“1. That the defendant was the owner of a dog described as a three-year old male German Wirehaired Pointer coloured liver named Ullr (“the defendants dog”).

2. That on 22 June 2000 at 55 Rotokauri Road, Hamilton, the defendant’s dog did attack an 18-week kitten named Toby injuring the kitten in such a manner that the kitten had to be euthanased.

3. That the kitten is a domestic animal.

4. That the defendant rented a property at 55 Rotokauri Road, Hamilton because it had a 1.8 metre high wooden fence surrounding the property, which prevented the two dogs, owned by him and his wife from wandering off the property.

5. That the defendant was granted a rebate on his dog registration fees by the Informant for adequate fencing.

6. That the kitten ran onto the property of the defendant’s dog and was attacked.”

[8] The Community Magistrates determined:

“1. The defendant’s dog attacked the kitten.

2. The kitten had been on the defendant’s property when the defendant’s dog attacked it.

3. We were referred by counsel for the defendant to the High Court decision of Campbell v Police (High Court, Christchurch, Matter No.414/84, 5 September 1984, Holland J) and were asked to treat this as a case where a defence of absence of fault is available.

4. We found that the defence of absence of fault was available to the defendant in relation to this charge.

5. We found that the defendant’s property was fenced in a manner that contained the dog, that the kitten went onto the dog’s property and that the defendant was a responsible owner and had done all that was reasonable of an owner to prevent its animal from attacking any other animal.

6. We found that there was some doubt as to whether s 57(5) was meant to apply to dogs who attacked animals on that dog’s own property.

7. We found that a feature of this case was that the incident occurred on the defendant’s property and that, therefore the case was unique.

8. Accordingly we dismissed the charge against the defendant.”

[9] On appeal to the District Court at Hamilton Judge A N McLean recorded as common ground that

“. . . in the particular circumstances of this attack (by the respondent’s German wirehaired pointer dog on a kitten which strayed onto the respondent’s property) . . . the respondent generally was a most conscientious dog owner who, amongst other things, had

• Brought the dog in question along with others from overseas to New Zealand

• Taken special precautions when purchasing his property to ensure that it had a particularly high (1.8 metre) wooden fence to prevent the dogs from wandering and in respect of which a rebate was granted by the Council

• Gone to the extent of getting a copy of the relevant Hamilton City Council bylaws relating to dogs to acquaint himself fully with the law.”

[10] The Judge was satisfied that the Community Magistrates’ approach was right and dismissed the appeal. Dr Fairweather having declined to advance a possible procedural objection to the appeal, the Council with leave of the District Court now appeals to this Court. It accepts that if the appeal succeeds there are such circumstances as to engage the exception of s 57(5) and not to require destruction of the dog.

Section 57

[11] Section 57 provides

“Dogs attacking persons or animals. . .

(1) Any person who sees a dog attacking any person, stock, poultry, domestic animal, or protected wildlife or who is attacked by any such dog, may forthwith either seize or destroy the dog.

. . .

(5) The owner of any dog that makes any such attack commits an offence and is liable on summary conviction to a fine not exceeding $1,500 in addition to any liability the owner may incur for any damage caused by the attack; and, where the dog has not been destroyed, the Court shall, on convicting the owner, make an order for the destruction of the dog unless satisfied that the circumstances of the attack were exceptional and do not justify the destruction of the dog.”

(italics added here and subsequently)

Other material provisions

[7] The title of the Act - the Dog Control Act 1996 - is of relevance.

[8] So too are the long title

(a) To make better provision for the control of dogs; and

(b) To make better provision in relation to damage caused by dogs; . . .  .

and section 4

“4. Objects -

The objects of this Act are-

a To make better provision for the care and control of dogs-

(i) By requiring the registration of dogs; and

(ii) By making special provision in relation to dangerous dogs; and

(iii) By imposing on the owners of dogs, obligations designed to ensure that dogs do not cause a nuisance to any person and do not injure, endanger, or cause distress to any person; and

(iv) By imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife; and

(b) To make provision in relation to damage caused by dogs.”

[12] The obligations of dog owners are stated in s 5

“5. The obligations of dog owners -

(1) The obligations imposed on dog owners by this Act require every owner of a dog-

(a) To ensure that the dog is registered in accordance with this Act, and that all relevant territorial authorities are promptly notified of any change of address or ownership of the dog:

(b) To ensure that the dog is kept under control at all times:

(c) To ensure that the dog receives proper care and attention and is supplied with proper and sufficient food, water and shelter:

(d) To ensure that the dog receives adequate exercise:

(e) To take all reasonable steps to ensure that the dog does not cause a nuisance to any other person, whether by persistent and loud barking or howling or by any other means:

(f) To take all reasonable steps to ensure that the dog does not injure, endanger, intimidate, or otherwise cause distress to any person:

(g) To take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife:

(h) To take all reasonable steps to ensure that the dog does not damage or endanger any property belonging to any other person:

(i) To comply with the requirements of this Act and of all regulations and bylaws made under this Act.

(2) Nothing in this Act limits the obligations of any owner of a dog to comply with the requirements of any other Act or of any regulations or bylaws regulating the control, keeping, and treatment of dogs.”

[10] The control obligation is elaborated in s 52 which provides in part

“52. Control of dogs

1) The owner of any dog shall keep that dog under control at all times.

(2) Without limiting the generality of subsection (1) of this section, a dog shall, for the purposes of this Act, be deemed to be not under control-

(a) If it is found at large on any land or premises other than a public place or a private way without the consent (express or implied) of the occupier or person in charge of that land or those premises; or

(b) If it is found at large in any public place or in any private way in contravention of any regulation or bylaw.

(3) Where a dog is not under control in terms of subsection (2) of this section, the dog control officer or dog ranger may seize the dog, and cause it to be returned to its owner or impounded.”

[13] Subs (4) permits seizure of a dog by the occupier of land or other persons. But it is limited by the following subsection

“(5) Nothing in subsection (4) of this section authorises any person to seize any dog that is under the direct control of any other person.”

[14] S 52 is preceded by a heading Obligations of Owner (to which since s 5(2) of the Interpretation Act 1999 reference may now be made) that embraces a complex of some 15 sections. They deal as well with penalty for failure to keep the dog under control (s 53), obligations to give a dog proper care and attention, supply it with proper and sufficient food, water and shelter, ensure it receives adequate exercise (s 54), barking dogs (s 55-6), dogs attacking persons or animals or rushing at vehicles (the crucial s 57), dogs causing serious injury (s 58), dogs at large in vicinity of protected wildlife (s 59) or among stock of poultry (s 60) or worrying stock (s 61), permitting dangerous dogs to be at large unmuzzled, civil liability for damage done by a dog (s 63) and procedure for destruction of a dog (s 64).

[15] Also relevant are provisions appearing under the heading “Dangerous Dogs”

“31. Territorial authority to classify dangerous dogs

(1) The territorial authority shall classify as a dangerous dog-

(a) Any dog in respect of which the owner has been convicted of an offence under section 57(6) of this Act; and

(b) Any dog which the territorial authority has, on the basis of sworn evidence attesting to aggressive behaviour by the dog on one or more occasions, reasonable grounds to believe constitutes a threat to the safety of any person, stock, poultry, domestic animal, or protected wildlife; and

(c) Any dog that the owner admits in writing constitutes a threat to the safety of any person, stock, poultry, domestic animal, or protected wildlife.

. . .

32. Effect of classification as dangerous dog

(1) Where a dog is classified as a dangerous dog, the owner of that dog-

(a) Shall ensure that, . . .the dog is kept within a securely fenced portion of the owner’s property which it is not necessary to enter to obtain access to at least one door of any dwelling on the property; and

(b) Shall not allow the dog to be at large or in any public place or in any private way other than when confined completely within a vehicle or cage without being muzzled in such a manner as to prevent the dog from biting but allow it to breathe and drink without obstruction;

. . .”

The authorities

[16] In Campbell v Police M 414/84 (Christchurch Registry) 5 September 1984 Holland J considered the equivalent provisions of the Dog Control and Hydatids Act 1984 which, apart from a lower maximum fine and a discretion whether to order destruction were in the same terms as the present s 57(1) and (5). Holland J directed himself that the case was to be treated as a “public welfare regulatory offence” within the classification by the Court of Appeal in Civil Aviation Department v MacKenzie [1983] NZLR 78, 85

“in the case of public welfare regulatory offences . . .a defence of total absence of fault is available unless clearly excluded in terms of the legislation; and . . .the onus of proving such a defence to the balance of probabilities standard rests on the defendant. First, it is artificial to speak in terms of mens rea. Liability under legislation of this kind rarely turns on the presence or absence of any particular state of mind. But in social policy terms compliance with an objective standard of conduct is highly relevant. Courts must be able to accord sufficient weight to the promotion of public health and safety without at the same time snaring the diligent and socially responsible. The principle of English criminal law that the burden of proof of a requisite mental state rests on the prosecution is not whittled down where in matters of public welfare regulation in an increasingly complex society the defence of due diligence is allowed because it is recognised that the price of absolute liability is too high. Second,. . . the defendant will ordinarily know far better than the prosecution how the breach occurred and what he had done to avoid it. In so far as the emphasis in public welfare regulations is on the protection of the interests of society as a whole, it is not unreasonable to require a defendant to bear the burden of proving that the breach occurred without fault on his part . . . . [A] high standard of care is properly expected of a defendant in such a case and he must prove that he did what a reasonable man would have done. It would not in our view be appropriate to have a variable standard of negligence depending on subjective considerations affecting the individual concerned, as was suggested in argument at one point.

Nothing we have said is to be taken as derogating in any way from the fundamental principle of our criminal law that the burden of proof of guilt rests on the prosecution. The distinction we draw is between truly criminal charges and public welfare regulatory offences. And the public policy considerations which in the case of public welfare offences justify requiring the defendant to bear the burden of proof where a defence of absence of fault is available do not apply where the mental state of the defendant is the issue. The prosecution bears the burden of proving the mental element in the offence: a no-fault defence allows the defendant the opportunity of exonerating himself by proving that he exercised all reasonable care. Where. . . the presumption of mens rea operates the defendant is only required to point to some evidence which raises the issue and the ultimate burden of proof then rests on the prosecution. It should also perhaps be emphasised that where negligence is an express ingredient of an offence the onus of proof will rest on the prosecution in the ordinary way as it does in respect of other elements in the offence, unless the statute itself provides otherwise. What we have been discussing is the availability of a no-fault defence ameliorating the harshness of an offence provision which on its face imposes absolute liability. In practice, the recognition of such a defence, with the onus of establishing it on the defendant, may well diminish the number of statutory offences which the Courts feel compelled to hold to be absolute.”

[17] In Campbell there was fault on the part of the defendant and the conviction appeal failed. The judgment concluded

“It will remain for another Court on another occasion to decide whether the owner of a dog which attacks another person is the alter ego of his or her dog and absolutely liable or whether some defence is still available to such person.”

[18] In Jones v Hamilton City Council A 152/98 (Hamilton Registry) 26 February 1999 Smellie J declined to follow a decision of Hansen J in Timaru District Council v Orr AP 17/97 (Timaru Registry) 30 June 1997. There the District Court Judge had not ordered destruction because he took the view that the dog owner was a responsible citizen and had fenced off an area at the back of his property to hold the dog. Hansen J considered that this was the real issue in the case on the penultimate page of his judgment he said:

“The real question in this appeal is whether or not the fact that Mr Orr was responsible and fenced off an area at the back of his property amounts to exceptional circumstances of the attack.”

And in concluding his judgment he said:

“The matter in this case is finely balanced. The Judge accepted that Mr Orr was a responsible dog owner; that he had taken steps to fence off the run, and that he was unaware the animals could escape. In those circumstances, I am persuaded, may I make it plain to the lower Court that I am only just persuaded, that the fact that Mr Orr was unaware his animals could escape, make out the exceptional element required to decline to make a destruction order.”

Smellie J considered that precautions taken by a dog owner to keep it under control could not become exceptional circumstances of the subsequent attack.

[19] In White v Wellington City Council AP 192/00 (Wellington Registry) 4 December 2000 Ellis J referred to a number of previous decisions on the topic of “exceptional circumstances” He cited the decision of Paterson J in Rotorua District Council v O’Connell (unreported, Rotorua Registry, AP 27/98, 18 June 1998) in which Paterson J considered the provision and said at page 7:

“However, it should be noted that the word is “exceptional” and not “extraordinary”. “Exceptional” has a dictionary meaning of “forming an exception; unusual; not typical”. Other statutory provisions use the word “extraordinary”. “Exceptional” is one of the meanings given for the word “extraordinary” in many dictionaries but I do not accept that the words are synonymous. In Longstaff v Boyle, [1990] NZFLR 473, it was held that an “exceptional circumstance” is one which is not out of the way so as to be “extraordinary”.”

Ellis J continued

“I think the term “exceptional circumstances must be interpreted and applied in the context of the Act’s purpose. That is keeping a dog under control at all times. If the facts show that the dog was under control by being contained to its own territory (with the occupier’s agreement) then if a cat trespassed or strayed onto it thereby provoking the dog and stimulating its natural instincts to attack the cat then that may very well be the basis for finding that exceptional circumstances existed which did not justify the destruction of the dog. This does not flow from a comparison between “exceptional” and “ordinary” but rather from the assessment whether in terms of the Act’s purpose an exception should be made because of the circumstances of the attack. Simply put, if the dog is under proper and reasonable control yet attacks then the circumstances may be exceptional. This also highlights the contrast between “extraordinary” and “ordinary” which in my view is not the correct way of deciding what is “exceptional” in terms of s 57(5).

In all cases of this type Courts resist trying to define what is exceptional, special, or even extraordinary as the facts of cases can vary enormously.

In the present case Toot was on Mr Skipsey’s property without his consent. He was in Suzy’s territory not his own. As a matter of fact he was not under control. Further he is deemed not to have been by s 52. The purpose of the act is to prevent such intrusions and attacks. It is easy to formulate very harsh, even ridiculous, cases or situations where the Act would call for the death of a dog. It is also easy to formulate situations where a cat could attack and kill a domestic pet of great value and comfort to the owner, without attracting the death penalty. It serves no useful purpose in discussing these in this judgment. This case is not unusual and as I have said the dog was not under control, it intruded on someone else’s property, and the cat’s territory. There is no evidence that the dog was provoked by the cat.”

He concluded that no exceptional circumstances existed.

The arguments

For the Council

[20] Mr Taylor advised that the dog control presents such problems for Councils and for Community Magistrates, the Council had selected the present facts, where Dr Fairweather could not have acted more meticulously, as a test case.

[21] His first submission, that absolute liability is created by s 57(5), is supported by the language of s 57(5), which is appropriate for the creation of a status offence: being the owner of a dog that makes an attack. That language, he submitted, conforms with the distinction drawn within s 5(1) between an absolute obligation to keep a dog; under control and a duty to act reasonably in other cases

“5. Obligations of Dog Owners

(1) The obligations imposed on dog owners by this Act require every owner of a dog-

. . .

(b) To ensure that the dog is kept under control at all times:

. . .

(e) To take all reasonable steps to ensure that the dog does not cause a nuisance to any other person, whether by persistent and loud barking or howling or by any other means:

(f) To take all reasonable steps to ensure that the dog does not injure, endanger, intimidate, or otherwise cause distress to any person:

(g) To take all reasonable steps to ensure that the dog does not injure, endanger, or cause distress to any stock, poultry, domestic animal, or protected wildlife:

(h) To take all reasonable steps to ensure that the dog does not damage or endanger any property belonging to any other person.

. . .”

[22] It is further supported by the distinction among four classes of case, in ascending order of gravity

(1) that of a dog that is simply out of control, where the penalty on the owner is a fine not exceeding $500 and there is no provision for destruction (ss 52-3)

(2) that of a dog that rushes at or startles any person or animal in such manner that the person is killed, injured or endangered, or any property is damaged or endangered; or rushes at a vehicle in such manner as to cause or to be likely to cause an accident (s 57(6). There the penalty is a fine not exceeding $1500 in addition to any liability for the damage; and the Court may, o convicting the owner, make an order for the destruction of the dog. Further, a dog in respect of which the owner has been convicted of such offence is to be classified by the territorial authority as a “dangerous dog” (s 31), with the consequences stated (in s 32) that, inter alia

• the owner must keep the dog within a securely fenced area of the owner’s property

• the owner shall not allow the dog to be at large unless confined completely within a vehicle or cage or muzzled so as to prevent the dog from biting.

(3) what is said to be the present case (s 57(5), of a dog that attacks a person, stock, poultry, domestic animal or protected wildlife (s 57(1). The monetary penalty is the same as under s 57(6). But the former discretion whether to order destruction (s 56(4) Dog Control and Hydatids Act 1982) has been abolished. There is no power to withhold an order for destruction unless the Court is satisfied that the circumstances of the attack were exceptional and do not justify destruction of the dog

(4) the most serious offence, carrying a penalty of 3 months imprisonment or a fine not exceeding $5000 or both, of being the owner of a dog that attacks any person or any protected wildlife and causes serious injury to any person or such injury to any protected wildlife that it becomes necessary to destroy the animal to terminate its suffering s 58. The formula of s 57(5), of mandatory destruction in the absence of exceptional circumstances, is repeated.

[23] A simple and potent argument (put shortly in the lawyers’ phrase expressio unius est exclusio alterius) is relied on, in two respects. Parliament’s stipulation for a reasonableness standard in s 5(1)(e)-(h) and omitting that qualifier in the other subparagraphs, including s 5(1)(b), provides powerful support to the Council’s argument for a Parliamentary intention to impose absolute liability in the latter case: otherwise the “reasonableness” formula would have been employed. The provision for a discretion not to order destruction in cases under ss 52-3 and 57(6), but making it a rule mandatory in cases under ss 57(5) as well as 58, demonstrates a plain intent to deal sternly with attacking dogs.

[24] The concept of absolute liability to which no amount of care affords a defence, is well known to the law. In Fraser v Beckett & Sterling Ltd [1963] NZLR 481 a majority of the Court of Appeal held that an offence of absolute liability was created by s 46 of the Customs Act 1913 providing

“. . .It shall not be lawful to import into New Zealand any of the goods specified in the First Schedule hereto.”

A book received by the respondent, included in a parcel sent to New Zealand from the USA, was found to be an indecent document and thus within a category to which s 46 applied. There was held to be no defence by reason of the respondent’s admitted good faith and taking of reasonable steps to avoid infringing the law.

[25] The powerful arguments each way, expressed by Turner J at first instance and Gresson P dissenting on appeal, and by North and McCarthy JJ who formed the majority, show the difficulty of applying the principle -

“. . .that where the statute imposes what is apparently an absolute prohibition an absence of guilty knowledge [here, the exercise of reasonable care] may or may not be a defence. It must in every case depend on the wording and purpose of the particular statute.”

Gresson P at 485 lines 1-4

[26] An offence of absolute liability is sometimes called a “status offence”: for example (under s 216 of the Customs Act 1913) being the master of a ship found in New Zealand territorial waters having any secret or disguised place adapted for the purpose of concealing goods: Helleman v Collector of Customs [1966] NZLR 705.

[27] Mr Taylor submits that the language of s 57(5) and the antithesis expressed in s 5 provide the wording required to establish a status offence: being the owner of a dog that attacks. He relies on the principle stated by Devlin J in Reynoldsv G H Austin and Co Ltd [1951] 2 KB 135, 149

“It may seem, on the face of it, hard that a man should be fined, and, indeed, made subject to imprisonment, for an offence which he did not know that he was committing. But there is no doubt that the legislature has for certain purposes found that hard measure to be necessary in the public interest. The moral justification behind such laws is admirably expressed in a sentence by Dean Roscoe Pound in his book “The Spirit of the Common Law”, at p.52: see The Law Quarterly Review, vol.64, p.176. “Such statutes”, he says, “are not meant to punish the vicious will but to put pressure upon the thoughtless and inefficient to do their whole duty in the interest of public health or safety or morals.” Thus a man may be made responsible for the acts of his servants, or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organisations up to the mark. Although, in one sense, the citizen is being punished for the sins of others, it can be said that, if he had been more alert to see that the law was observed, the sin might not have been committed”

[28] He submits that protection of the public and certain animals against dog attacks is to be seen as of such moment as to warrant imposition of absolute liability.

[29] In response to a question, Mr Taylor advanced an alternative argument: that if s 57(5) does not impose absolute liability in relation to a dog attack, then such offence if but only if one’s dog is out of control. It is plain from the short and long titles of the Act, the objects section and sections 52-3, 57(5) and (6), 31-2 and 58 that dog control is the very purpose of the measure. It would follow that an attack such as the present, by a dog that was under control, would not infringe s 57(5) (or for that matter s 58).

For Dr Fairweather

[30] Mr Talbot placed at the forefront of his argument the principles of the common law applied by Judge McLean. They were discussed by the Court of Appeal in Civil Aviation Department v MacKenzie [1983] NZLR 78 and Millar v Ministry of Transport [1986] 1 NZLR 660, and provide that

• if a penal provision is reasonably capable of two interpretations, that interpretations, that interpretation most favourable to the accused must be adopted

• a criminal offence will be presumed to involve an element of guilty mind (mens rea) unless the Court is able to infer an intention to the contrary

(see MacKenzie at 81)

• in the latter case careful consideration will be given to whether a construction of what has been called “strict” rather than absolute liability will meet the legislative purpose, so that a defendant who can affirmatively demonstrate the exercise of due care will escape conviction in accordance with the principle stated by Dickson J in R v City of Sault Ste Marie (1978) 85 DLR (3d) 161, 181 and cited in MacKenzie at 84

• only if the last, quite narrow, escape route will not satisfy the legislative purpose may the absolute liability of a status offence be imposed.

(see Millar at 668 lines 31-37 and 669 lines 42-56)

[31] In his written submissions he argued that s 57(5) should be classified as a “public welfare offence” which the Court of Appeal has said is to be presumed to fall within Dickson J’s no fault affirmative defence (MacKenzie at 84).

[32] In his oral argument Mr Talbot accepted that breach of the obligation to keep a dog under control (s 5(1)(b) and s 52) entails absolute liability. Where a dog under control performs an attack there is strict liability under s 57(5) of which a defendant may relieve himself by proof that all reasonable care has been taken.

Discussion

The problem

[33] Classified as chattels at common law (Laws of New Zealand Animals para 8), as is now recognised by Parliament dogs may yet be highly valued as companions, even as essential partners in working, hearing and seeing. An essay by a French legal scholar What is a dog? (Gyslain Di Caro Le Monde 26 April 2001 page 15) has identified the tension between the human materialism of the civil law’s treatment of a dog as if it were a piece of furniture, and the perception of society, which in Egyptian times deified the dog, now in some cases virtually personifying it as a living being, that like the human both suffers and fears suffering, and is too close to mankind to be ignored. The essay concludes with the notion that the dog is neither a thing nor a person but something of both, which should receive juridical recognition.

[34] The need for protection of humans and certain animals against dog attacks has been a theme of our statute law since The Injuries By Dogs Act 1865. That statute altered the common law of tortious liability for injury caused by a dog attack that had required proof of mischievous propensity before liability could be established. Criminal liability for a dog attack was introduced by the precursor of s 57(5) and (1) - ss 16 and 17 of the Dog Registration Act 1880 which provided

“16. If any dog shall, on the highway or any unenclosed place, rush at, attack, or startle any person or any horse, cattle, or other animal, whereby the life or limbs of any person shall be endangered, or any property be injured or endangered, such dog shall be liable to be immediately killed; and the owner or keeper of every such dog shall, on conviction, forfeit and pay a penalty or sum of not more than five pounds for every such offence, over and above the amount of any damage which such dog may have occasioned.

17. Any person who shall see a dog, being at large, biting or attacking any person, or any horse, sheep, or cattle, or who shall himself be bitten or attacked by such dog, may destroy the same, without being answerable for damage occasioned thereby.”

[35] The effect of s 16 was retained in its successor provisions: s 24 Dogs Registration Act 1908, s 24 Dogs Registration Act 1955, s 56(4) Dog Control and Hydatids Act 1982, and now s 57(5).

The Court’s role in interpretation

[36] The common law and statutory canons of construction require the Judiciary when construing legislation to give effect to important societal values, so far as is consistent with Parliament’s language in the measure under consideration, in the Interpretation Act and in the Bill of Rights. Any other approach will cause unnecessary distress, be seen as an affront to common sense, and tend to bring the law into disrepute.

[37] In the present context there are four such values, which can and do conflict. One is the protection of people and certain kinds of animals from attack by dogs. The Hansard debate records the terror of those subjected to dog attack. It also acknowledges other important values, of which the next is the recognition that dogs are living creatures of greater significance than mere chattels. The third is the presumption against penalisation of one who has taken every precaution to act responsibly. It was carefully analysed and applied by Judge MacLean. Each overlaps with the presumption against unreasonable operation of law.

[36] While ss 57(1) and (5) have their genesis in similar provisions in the 1880 Act it is apparent from the Hansard debates and the changes even from its 1982 predecessor that the Act is to be construed as a modern measure, carefully drafted to take account of the competing public interests with which it deals. It is desirable to step back and consider s 57(5) within its statutory context and according to the settled principles of construction.

[37] Of these the foremost is s 5(1) of the Interpretation Act 1999

“The meaning of an enactment must be ascertained from its text and in the light of its purpose.”

[38] The simple and, on a literal reading, absolute language of the statute is necessarily the starting point for the Courts’ task of construing it. It is their duty to give effect to the will of Parliament as expressed in legislation. But experience has proved that the task of interpreting any statute so as to give effect to the expressed will of Parliament may often be performed in more than one way. Parliament and its highly skilled experts in the office of Parliamentary Counsel do not expect the Judiciary to read their product with no more assistance than a dictionary. They expect the Judges to apply the well settled canons of construction that allow legislation to be drafted concisely, without explicit reference to over 1000 pages of Bennion’s Statutory Interpretation (2nd ed) and its supplement, Professor Burrows’ admirable text Statute Law in New Zealand (2nd ed) or the numerous volumes of law reports that illustrate how statutes are to be interpreted.

[39] It is now trite that both Parliament and the Judiciary create law: Parliament by enhancing our statutes, necessarily in language of some generality; the Courts not only by developing the common law but by construing statutes - making decisions as to detail by filling in the areas that Parliament has inevitably left blank.

[40] In doing so the Courts apply certain well-settled presumptions. As observed in an essay The Dynamics of the Common Law (1987) 6 Otago Law Review 355, 366-7

“The courts have long exercised the function of resisting infringement of accepted decencies not only by the executive but by Parliament . . .The process is like that of a spring: [against] attempts to depress the court’s powers of constitutional balance the courts’ resistance increases progressively. . .”

[41] So in R v Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539, 584, 588 Lord Steyn cited first Professor Sir Neil MacCormick

“There is often a need in hard cases to dig down to the level of constitutional theory in order to solve questions about private rights and public powers”

and then Professor Sir Rupert Cross

“Statutes often go into considerable detail, but even so allowance must be made for the fact that they are not enacted in a vacuum. A great deal inevitably remains unsaid. Legislators and drafters assume that the courts will continue to act in accordance with well-recognised rules . . . Long-standing principles of constitutional and administrative law are likewise taken for granted, or assumed by the courts to have been taken for granted, by Parliament . . .One function of the word “presumption” in the context of statutory interpretation is to state the result of this legislative reliance (real or assumed) on firmly established legal principles. There is a “presumption” that mens rea is required in the case of statutory crimes, and a “presumption” that statutory powers must be exercised reasonably. These presumptions apply although there is no question of linguistic ambiguity in the statutory wording under construction, and they may be described as “presumptions of general application:. . . these presumptions of general application not only supplement the text, they also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts. They operate here as constitutional principles which are not easily displayed by a statutory text.”

[42] Likewise in R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115, 131 Lord Hoffmann stated

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. . . The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

[43] Those were great constitutional cases about prisoners’ rights. But the principles are of general application and extend to this case before Community Magistrates about a dog and a cat.

This case

[44] In selecting which approach to take in this case the Court has a range of options.

• It might adopt the approach of imposing absolute liability, as Mr Taylor first contends.

• It might prefer that of strict liability contended for by Mr Talbot: Dr Fairweather should not be convicted if he can show he acted reasonably.

• It might require the prosecution to prove beyond reasonable doubt that Dr Fairweather failed to exercise due care.

[45] Each of these options is potentially available for selection. Each has its own advantages and disadvantages.

[46] I prefer however the Council’s alternative approach. To construe the Act so as to exclude from liability altogether a dog owner who keeps the dog under control but impose absolute liability on one who loses it gives effect to Parliament’s intent as deduced from the language it has selected, accords with the major principles of the constitutional cases, and is sensible.

[47] Each of the various pointers, of language, principles and presumptions of statutory interpretation, and of accepted societal values tends towards such conclusion which in my view accommodates satisfactorily the various policy considerations.

[48] A constant focus must be Parliament’s language. The dominant message is that expressed in the short title - of Dog Control. The mischief addressed in Hansard makes plain that was the major purpose of the reform. It is a pervasive theme spelt out in the Long Title, in s 4 and in s 5, where the strict nature of the obligation to ensure the dog is kept under control at all times is to be contrasted with other obligations to that only reasonable steps. It is recurs in the language of s 52. Statutory expressions of what constitutes control appear in s 32(1)(a) and (b). The purpose of s 57(5) itself is in my opinion to give effect to it.

[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.

[50] What would by contrast be unreasonable is the result contended for by the Council in its first submission - the owner of another animal fails to keep it under control, the animal ventures into the controlled area and is there attacked by the dog, and the dog owner is held liable. . Such case is the opposite of that considered by Ellis J where liability was properly imposed.

[51] To relieve the owner of liability for injury caused to another entering the control zone, but holding the dog owner absolutely liable for any escape of the animal from control, in my opinion achieves a sensible result.

[52] In argument there was used the analogy of a zoo. It is reasonable for the keeper of a dangerous beast, which might be a wild dog, to be required to keep the animal controlled. It would be unreasonable to impose liability - especially criminal liability - for injury to another animal that had climbed or flown into the cage of pit.

[53] An attempt was made to visualise the hard cases. If a child elected to climb over a wall into the properly designed cage of a wild dog it would be wholly appropriate for the animal to be destroyed, as s 57(1) contemplates. But if the animal is properly controlled, there is in my view no advantage in adding injustice to the zoo keeper to the anguish to the child’s family by imposing criminal liability under subs (5).

[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 passer-by is not “controlled”. Nor is a dog inside a house that can escape when the door is opened to a visitor (see the more elaborate precautions required by s 32(1)(a)) or one in a car once the window is opened (see s 32(1)(b)).

[55] In sum, I am of opinion that Parliament and Parliamentary counsel have tailor-made the provisions of the Act with such care and skill as to achieve a sound result that does not infringe any principle of the common law, so it is unnecessary to read in any further protection. The Act works well without it.

[56] And while I incline to the view that not only s 25(c) of the Bill of Rights - the presumption of innocence until proved guilty (see R v Rangi [1992] 1 NZLR 385, 389) - but also s 27(l) - the right to observance of the principles of natural justice point against absolute liability on the part of one who is without fault, I have concluded that there is here no need to import such considerations or to apply what Bennion calls a “strained construction” to relieve a defendant from liability that would otherwise exist. Rather they may be used as pointers to the conclusion that the animal owner who controls the animal is not exposed to liability at all. It is therefore unnecessary for me to comment on the application in New Zealand of the conflicting views of the Canadian Supreme Court in R v Wholesale Travel Group Inc (1991) 84 DLR (4th) 161 as to how, if at all, the Bill of Rights affects the common law principles as to strict and absolute liability.

[57] I do not attempt to deal with extraordinary cases, such as destruction of a lock by a bolt of lightening or by a locksmith capable of breaking security which would defeat a burglar. In such cases there would be residual room for the application of the principle in R v City of Sault Ste Marie or, more directly, s 27(1) of the Bill of Rights, a course to be preferred to criminalising innocent conduct and then falling back on s 19 of the Criminal Justice Act 1985 (empowering discharge “without conviction where an offence has been proved) and the “extraordinary circumstances” provisions of s 57(5).

[58] But for the ordinary run of cases there is no need to gloss the statute, which should be construed as stated in the passage appearing in bold print in para. 6.

[59] I am told that no question of costs arises.