Johnston v Auckland Council - [2021] NZHC 3363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000224

[2021] NZHC 3363

IN THE MATTER OF an appeal against conviction and sentence under ss 232 and 244 of the Criminal Procedure Act 2011

BETWEEN

ALEXANDRA JOHNSTON and GRAHAM WESLEY JOHNSTON

Appellants

AND

AUCKLAND COUNCIL

Respondent

Hearing: 6 December 2021

Appearances:

Appellants in person and with R Simpson as a McKenzie friend L V Faletau for Respondent

Judgment:

9 December 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 9 December 2021 at 2.00 pm Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
D J Collins/L V Faletau, Auckland Council

Copy to:
Mr and Mrs Johnston, Appellants

JOHNSTON v AUCKLAND COUNCIL [2021] NZHC 3363 [9 December 2021]

Introduction

[1] On 20 April 2021, following a trial before Judge J F Munro in the District Court at North Shore, the appellants, Alexandra Johnston and Graham Johnston, were found guilty of two offences against s 57(2) of the Dog Control Act 1996 (“the Act”).1 They were fined $750 and ordered to make emotional harm payments of $150 to each of the victims of the offending. The Judge also made an order pursuant to s 57(3) of the Act for the destruction of the dog.

[2] On 10 May 2021, Mr and Mrs Johnston filed an appeal against both conviction and sentence. They filed comprehensive submissions in support of their appeal raising a large number of issues, many of which are beyond the scope of this appeal.

[3]The appeal is opposed by the respondent, Auckland Council (“the Council”).

Background

[4] The charges faced by Mr and Mrs Johnston were in identical terms. It was charged that each of them owned a black and white coloured male Siberian Husky named Aspen. It was alleged that, on 23 May 2020, while Mr Johnston was in control of Aspen at Glamorgan Drive, Torbay, the dog attacked two domestic animals – a chicken and a guinea pig.

[5] On 19 October 2020, both Mr and Mrs Johnston entered not guilty pleas to the charges. Both of them had however been interviewed by an animal management officer from the Council and both had given statements. So had the owners of the chicken, Sandra and Cesara Chwieduk, and the owner of the guinea pig, Belinda Tustin. The key facts were not in dispute. At trial, Mr and Mrs Johnston accepted that the offences had occurred.

[6]The Judge summarised the position as follows:

[1] … The defendants have pleaded not guilty to the charges, although the facts of the case are not in dispute. The defendants accept that their dog did attack a chicken and killed it and also caused the death of the guinea pig. They accept that the dog was not under proper control at the time and that they

1 Auckland Council v Johnston [2021] NZDC 6929.

are liable pursuant to s 57(2). They accept that an offence occurred and that they are liable for a fine and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 3363
Decision Date: 9 December 2021

CaseChat Overview and Summary

Alexandra and Graham Johnston appealed against both conviction and sentence. The appeal was against a conviction under section 57(2) of the Dog Control Act 1996 and the sentence imposed by Judge Munro. The appeal was heard by Justice Wylie on 6 December 2021 and judgment was handed down on 9 December 2021. The primary issue was whether the offending was exceptional so as to warrant the destruction of the dog, Aspen, being set aside. The appeal against conviction was based on the assertion that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice had occurred. The appeal against sentence was based on the assertion that the sentence imposed was in error and that a different sentence should be imposed. The Court found that the Judge did not err in her assessment of the evidence. The Court was bound by the decisions of the Court of Appeal in Epiha and Hill, which held that the offence created by s 57(2) of the Dog Control Act is a strict liability offence. The Court held that the factual disputes raised by Mr and Mrs Johnston were not made out on the evidence that was before the Court. The Court found that there were no exceptional circumstances and the destruction of Aspen was warranted. The appeal against conviction and sentence was dismissed.

Orders