Israel v Hauraki District Council HC Rotorua CRI 2007-463-7

[2007] NZHC 1886

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007-463-7

BETWEEN  GORDON ISRAEL Appellant

ANDHAURAKI DISTRICT COUNCIL Respondent

Hearing:         7 June 2007

Counsel:         Appellant in person

SJ Corlett for Respondent

Judgment:      21 June 2007 at 4.30 p.m.

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 21 June 2007 at 4.30 pm, pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Brookfields, P O Box 240, Auckland

Copy to:            Mr Gordon Israel, General Post Office, Waihi

ISRAEL V HAURAKI DISTRICT COUNCIL HC ROT CRI 2007-463-7  21 June 2007

Introduction

[1]      On 27 October 2006 Mr Israel was convicted by Judge EOK Blaikie in the Waihi District Court of two charges under s 42 of the Dog Control Act 1996 (the Act) of owning an unregistered dog and one charge under s 19(2) of the Act of failing to provide a dog control officer with his date of birth.  On each charge he was fined $250 and ordered to pay court costs of $130 and, on what the Judge called the initial charge of keeping an unregistered dog, he was ordered to pay solicitor’s costs of $250 and witnesses’ expenses of $130.

[2]      Mr Israel appeals out of time against sentence.

Background

[3]      Judge Blaikie heard evidence from a dog control officer with the Hauraki District Council who carried out dog registration checks in the Waihi area where Mr Israel’s lives.  In November 2005 he located a female border collie named Sally at the appellant’s home of which the Council had no record of registration.

[4]      Mr Israel was advised of the requirement for registration and an invoice was issued to him but Sally remained unregistered.   Subsequent visits in February and August 2006 confirmed that Sally was not wearing a registration tag.

[5]      In the course of the February visit the dog control officer requested Mr Israel to advise him of his date of birth, a request he is entitled to make under s 19(1) of the Act of any person appearing to be in charge of a dog or the occupier of any land on which a dog is being kept. Mr Israel told him he did not have a date of birth.

[6]      The  dog  control  officer  was  cross-examined  by the  Mr  Israel,  who  also represented himself at the hearing in the District Court.  There was no challenge to the essential factual elements of the officer’s evidence.    Mr Israel did not give or call evidence.

Judge’s decision

[7]      The Judge said that he accepted without question that Mr Israel had Sally in his possession, that the dog had not been registered and that Mr Israel had failed to provide particulars as requested by the dog control officer.

Submissions

[8]      In his admirably succinct and restrained submissions in support of the appeal, Mr Israel put forward four principal arguments.  The first is that Sally is not a dog for the purpose of the Act.  Assisted by biblical references, he submitted that a dog for the purpose of the Act is a homosexual prostitute or a male fox or male wolf. Alternatively, he submitted that what are commonly described as dogs can only be subject to the Act by the voluntary submission of their owners.

[9]      Secondly, Mr Israel submitted, he is not an owner.  He contended that the Act is in the nature of a trust which applies only to beneficiaries.  He said the Judge was wrong to disallow questioning on this issue and to find that he was the owner of Sally.

[10]     Mr Israel’s next submission was that he was wrongly convicted of the charge of failing to provide his date of birth.  He said that, as he does not use the name on his birth certificate, he does not have a date of birth.

[11]     Finally, Mr Israel submitted that a conviction should not have been entered in relation to the second charge of failing to register Sally as the infringement notice referred to him keeping a dog and not to being the owner of a dog as required by an amendment to the Act which took effect on 28 June 2006.

Discussion

[12]     The word “dog” is not defined in the Act.   However, it is clear from the objects of the Act, including references to the care and control of dogs and the

obligations of owners of dogs, that the word does not have the restricted meanings contended by Mr Israel.  Section 4 of the Act provides:

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 menacing 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.

[13]     There  is  no  sensible  way  in  which  these  objects  could  apply  to  male homosexual  prostitutes  or  male  foxes  and  wolves.    I  am  satisfied  that,  for  the purpose of the Act, dogs have the meaning commonly ascribed to them of mammals of the genus  canis who are kept as pets or for work or sport – see The Dictionary of New Zealand English (1997).  On this issue I agree with Heath J who was required to consider the same issue in the context of an application brought by Mr Israel to secure the release of Sally from detention by the Council in Gordon: of the House of Israel v Sexton & Ors HC HAM CIV 2006-419-1765 15 December 2006.

[14]     It is also clear that the Act binds owners of dogs whether or not they willingly submit to its provisions.   Section 42 gives effect to the object of making better provision  for  the  care  and  control  of  dogs  by  requiring  their  registration. Subsection (1) provides:

Every person commits an offence and is liable on summary conviction to a fine not exceeding $3,000 who is the owner of a dog of a greater age than 3 months unless the dog is registered under this Act for the current registration year.

I can find nothing  in the Act to support Mr Israel’s argument that the Act is in the nature of a trust that applies only to beneficiaries.

[15]     I reject Mr Israel’s submission that because he does not use the name on his birth certificate, he does not have a date of birth.  Birth is a function of biology not bureaucracy.  Mr Israel was rightly convicted of refusing to inform the dog control officer of his date of birth..

[16]     The notice of which Mr Israel complains was a reminder notice in respect of an infringement offence issued pursuant to ss 21(2) and (3C)(b) Summary Proceedings Act 1957.  The notice alleged that Mr Israel committed an offence on

31 August 2006 in that he:

Kept a dog of a greater age than 3 months while the dog was not registered under the provisions of this Act for the current year – namely a Female Collie, Rough Pure 1 year 4 months dog called Sally.

[17]     The notice failed to reflect an amendment to s 42(1) of the Act (quoted in [14] above) on 28 June 2006 which substituted the words “is the owner of a dog” for the words “who keeps any dog”.  The notice should have alleged that Mr Israel was the owner of a dog, not that he kept a dog.

[18]     I am satisfied this error did not invalidate the process.   Section 204 of the

Summary Proceedings Act applies.  It provides:

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.

[19]     The error in the notice has not led to any miscarriage.   The notice fairly informed Mr Israel of the substance of the offence.  The evidence establishes that he was the owner of the dog at the relevant time.  It was no part of his case that he did now own or keep the dog.  The defect in the information did not in any way impede his defence of the charge.

Result

[20]     Leave to appeal is granted but the appeal is dismissed.

[21]     The Council seeks costs.   If the parties are unable to agree, I will consider memoranda filed:

a)        By the Council on or before 5 July 2007; and b)         By Mr Israel in response by 19 July 2007.