Kulanthavelu v Auckland Council

[2023] NZHC 2374

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000236

[2023] NZHC 2374

BETWEEN

SIVANESAN KULANTHAVELU

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:

28 August 2023

Appearances:

M W Swan for Appellant

C G Lloydd and J Carter for Respondent

Judgment:

29 August 2023

JUDGMENT OF VENNING J

Appeal against conviction

This judgment was delivered by me on 29 August 2023 at 3.30 pm.

Registrar/Deputy Registrar

Date……………

Solicitors:           Molloy Hucker, Auckland

C Lloydd/J Carter, Auckland Council Legal Services

KULANTHAVELU v AUCKLAND COUNCIL [2023] NZHC 2374 [29 August 2023]

Introduction

[1]    Sivanesan Kulanthavelu faced charges in the District Court at Auckland in relation to his family dog, Max, a German Shepherd. Mr Kulanthavelu ultimately pleaded guilty to a charge under s 57(2) of the Dog Control Act 1996 in that he owned a dog that attacked a person, and to a charge that contrary to ss 35E(1) and 33EC(1) of the Act he owned a menacing dog that was at large without a muzzle.

[2]    In the District Court the appellant was represented by Mr Kashyap. Initially the charges were to be defended but on 19 May 2022, the day of the Judge-alone trial, Mr Kulanthavelu pleaded guilty to both charges. A proposed application for a discharge without conviction was not pursued.

[3]On 23 March 2023 Judge P Winter ordered Mr Kulanthavelu pay the sum of

$1,200.00 by way of emotional harm reparation to the victim and directed that he pay a further sum of $375.00 by way of reparation for the victim’s medical expenses.1 He also made an order for the destruction of Max.

[4]    Mr Kulanthavelu appeals to this Court. Initially the appeal was against both sentence and conviction. Mr Swan confirmed that the appeal against sentence is no longer pursued. The focus is on the appeal against conviction and the consequences of it, namely the destruction order.

Leave to appeal

[5]    The initial appeal was filed out of time on 9 May 2023 with an amended notice of appeal being filed on 23 June 2023. Auckland Council (the Council) does not oppose leave being granted to bring the appeal out of time. The Council accepts that no prejudice has arisen due to the late filing. Time to bring the appeal is extended accordingly.2

1      Auckland Council v Kulanthanvelu [2023] NZDC 8245.

2      Criminal Procedure Act 2011, s 231(3).

Background

[6]The background can be taken from the Judge’s summary of the relevant facts:

[2]        [On] 29 January 2021 at approximately 12.45, the complainant was out delivering newsletters. As the complainant approached the defendant’s letterbox, he saw the defendant’s dog standing uncontrolled and unmuzzled at the far end of the driveway of the defendant’s property. The complainant recognised the dog as being a dog that was always tied up at the defendant’s property, barking at him when he delivered newsletters. The dog growled aggressively at the complainant and ran towards him. The complainant began to walk away along the footpath and then the dog ran after him, reached him and bit him on the right thigh from behind.

[3]        The dog continued to lunge at the complainant and the complainant swung an arm at the dog as it tried to bite him again. The complainant felt a strain in his right shoulder as the attack was happening. After the dog had lunged at the complainant for about four or five times, the dog returned to the defendant’s property. The complainant then assessed his injuries and noticed blood on his thigh.

[4]        The complainant kept delivering his newsletters and when he reached the opposite side of the street to the defendant’s property, observed a man at the defendant’s property. He told the man that the dog had bit him. The man apologised and told the complainant that his kids had not tied the dog up.

[5]        The complainant sustained two puncture wounds to his rear inner thigh and extensive bruising and tissue damage to the muscle. The complainant also sustained a torn rotor cuff injury to his right shoulder and has been receiving physiotherapy following an ultrasound x-ray. The complainant sought medical treatment and a copy of the doctor’s report is attached to the summary of facts but I will not read any further into that. A photo of the wound is also attached to the summary of facts and I have seen that. I have also seen a copy of the ultrasound report.

Appeal

[7]    In his submissions in support of the appeal Mr Swan submitted a miscarriage of justice had occurred. He identified five relevant errors:

(a)Mr Kulanthavelu did not appreciate the jeopardy he faced in deciding to plead guilty because he understood that his remorse would be a relevant factor;

(b)he did not appreciate the consequences of pleading guilty as it was not explained to him by Mr Kashyap the Court must make an order for the

destruction of the dog unless satisfied circumstances of the offence were exceptional;

(c)Mr Kulanthavelu received erroneous advice from Mr Kashyap which meant he made an misinformed decision to plead guilty to the charge on the basis an application for discharge without conviction was successful would result in a court not imposing a destruction order;

(d)Mr Kulanthavelu was not advised by trial counsel about the possibility of diversion or other avenues he might have pursued to avoid the imposition of a destruction order; and

(e)Mr Kulanthavelu was not advised by Mr Kashyap of the possibility of adjourning the sentence to allow evidence to be marshalled in opposition to the destruction order to support the basis of exceptional circumstances.

Miscarriage of justice

[8]    The appellant relies on a miscarriage of justice under s 232 of the Criminal Procedure Act 2011 (CPA). In his oral submissions Mr Swan referred in particular to the failure of Mr Kashyap to advise Mr Kulanthavelu of the possibility of diversion, and the failure of Mr Kashyap to obtain further information to support the exceptional circumstances ground, particularly Mr Kulanthavelu’s wife’s severe arthritis, which he said had prevented her from closing the gate to keep Max on the property, had led to a real risk the trial (the guilty plea) was affected.

Relevant principles

[9]    In R v Le Page the Court of Appeal confirmed that an appeal against conviction following a plea of guilty will only be entertained in exceptional circumstances and where a miscarriage of justice will result if the conviction is not overturned.3 The Court identified three broad circumstances where a miscarriage might occur:

3      R v Le Page [2005] 2 NZLR 845 (CA).

(a)the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;

(b)the appellant could not in law have been convicted of the offence charged; and

(c)the plea was induced by a ruling which embodied a wrong decision on a question of law.

[10]   In R v Merrilees the Court of Appeal considered the possibility of a fourth category, noting that there could be:4

A further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.

Diversion

[11]   Mr Kulanthavelu does not satisfy any of the first three criteria as discussed in Le Page. The appeal relies on the fourth category, that of counsel’s negligence. Mr Swan submitted Mr Kashyap was negligent in failing to advise Mr Kulanthavelu of the availability of diversion as an outcome. In his affidavit sworn for the purposes of the appeal, Mr Kashyap accepted he was not aware of the Council’s diversion policy.

[12]   The fundamental problem for the appellant’s submission about diversion in the present case is that at the time of the entry of the guilty pleas diversion was not available. Mr Kulanthavelu entered the guilty pleas on 19 May 2022 but the Council’s diversion policy was not implemented until 1 December 2022.

[13]   Mr Swan sought to address that practical difficulty by suggesting that, as no convictions were entered on the guilty pleas because an application for a discharge without conviction was to be pursued, when the diversion policy became available (which neither Mr Kulanthavelu nor Mr Kashyap became aware of) an application could have been made to set aside the guilty plea to enable an application for diversion.

4      R v Merrilees [2009] NZCA 59 at [34].

However, with respect, that submission is entirely speculative. It would be an extremely rare situation for a Court in such circumstances to set aside a guilty plea to allow an application for diversion to be pursued.

[14]   Further, and in any event, the prospect of diversion in this case is not supported by the terms of the diversion policy itself. The referral criteria in the Council’s diversion policy document expressly refer to consideration of whether the offender has a history of enforcement action against them, (e.g. an infringement offence relating to a similar breach).

[15]   Mr Kulanthavelu has received five previous infringement notices relating to the dog, Max. The infringements occurred on 30 June 2016, 14 and 15 January 2018 (which led to Max’s classification on 23 January 2018), and then after the classification on 21 January 2019 and 7 February 2020. While Mr Kulanthavelu is himself a first-time offender in terms of relevant criminal history, the relevance of the infringement notices and menacing classification for Max would have been particularly relevant to the consideration of diversion in this case. Further, the victim’s attitude is a relevant consideration. It is apparent from the victim’s impact statement he has been badly affected and he declined to attend a restorative justice meeting. It is extremely unlikely that any diversion referral would have been made.

[16]   Mr Swan suggested it would be wrong for the Court to engage in consideration of whether diversion was likely, as to do so would be to usurp the function of the Council. However, as discussed with Mr Swan, it is not so much a case of usurping the Council’s decision but rather a question of the Court considering whether it would grant an application to set aside a guilty plea on the basis of a speculative reference to diversion, particularly when the diversion policy had only been implemented after the guilty plea had been entered.

The other allegations of negligence

[17]   As noted, in his written submissions Mr Swan raised a number of other criticisms of Mr Kashyap. He suggested Mr Kulanthavelu did not appreciate the jeopardy faced in deciding to plead guilty because he understood from Mr Kashyap that remorse would be a relevant factor. In fact, remorse was a relevant factor and the

Judge took it into account in sentencing. At [11] of the sentencing notes the Judge expressly took into account Mr Kulanthavelu’s remorse.

[18]   Next, Mr Swan submitted Mr Kulanthavelu did not appreciate the consequences of pleading guilty as Mr Kulanthavelu did not explain the Court must make an order for destruction of the dog unless satisfied circumstances of the offence were exceptional. Mr Kulanthavelu supported that submission by his affidavit for the purposes of this appeal. In it he said:

21.I understand Mr Kashyap wrote to the Prosecution on 21 January 2022 and attempted to negotiate a deal where I would plead guilty to the charges in exchange for the Prosecution not seeking a destruction order of Max. Annexed and marked with the letter C is a copy of Mr Kashyap’s email to the prosecution. I have only become aware of these communications after my current counsel received copies of the communications from Mr Kashyap.

22.On 25 January 2022 Mr Kashyap received a response from an Auckland Council Solicitor, Rosie Argyle. Annexed and marked D is a copy of the email. The email explained that it was out of the prosecution’s hands as to whether to make a destruction order, but Auckland Council offered to drop the other charges provided I pleaded guilty to the s 57(2) charge. Again, the first time I have seen these emails was June 2023.

[19]   However, in his affidavit in reply, Mr Kashyap has produced copies of emails sent to Mr Kulanthavelu which answer those allegations. On 19 January 2022 Mr Kashyap set out his advice that the Council was seeking for Max to be euthanised and stated: “So even if you plead guilty that is what the Council will be seeking”. Mr Kashyap then set out the draft letter he proposed to send to the Council. Mr Kulanthavelu replied to that email on 21 January 2002 confirming he approved the draft letter. Mr Kashyap also provided further email correspondence sent to Mr Kulanthavelu on 25 January 2022 showing the Council’s response and seeking further instructions. To the extent there is a conflict between the evidence on this point Mr Kashyap’s evidence is supported by the copies of the contemporaneous documents and I accept and prefer his evidence. The principles of Eng Mee Yong v Letchumanan apply.5

5      Eng Mee Yong v Letchumanan [1980] AC 331 (PC).

[20]   Further, in his earlier advice to Mr Kulanthavelu on 21 September 2021, Mr Kashyap referred to the need to prove “special circumstances to save Max from being put down. The special reasons have to have a direct bearing on the attack”. While Mr Kashyap referred to “special” rather than “exceptional” Mr Kashyap’s advice was in substance correct.

[21]   As to the next point, Mr Kulanthavelu did not pursue the application for discharge without conviction and in the circumstances, given the past history again, it is speculative and indeed unrealistic to suggest the Court would have adopted that approach.

[22]   Finally, Mr Swan advanced the submission that Mr Kashyap failed to obtain sufficient information from Mr Kulanthavelu to advance exceptional circumstances, namely that his wife’s severe arthritic episode that day meant she was not able to close the gate. However, Mr Kashyap says he was never advised about that. As noted, where there is a variance in the evidence, I prefer Mr Kashyap’s evidence. Mr Kashyap’s position in relation to that is also supported by the affidavit Mr Kulanthavelu prepared for the District Court hearing. In that affidavit he made no mention of his wife’s arthritic circumstances and, in particular, said:

16)On the unfortunate day of the incident Max has found a gate door at  the rear of the property left open by one of the children and has [wandered] out into the driveway area.

[23]   Earlier, Mr Kulanthavelu confirmed his children were aged 26, 21 and 18. In a draft brief for the hearing Mr Kulanthavelu’s son accepted he left the back door ajar.

[24]   Further, Mr Kulanthavelu did not personally witness the attack and could not give evidence about what had occurred. Although his son was initially prepared to make a statement saying he had not seen the dog bite the victim, the evidence, including photographic and medical evidence, confirmed the bite. Prior to the entry of the pleas, Mr Kashyap properly obtained written confirmation from Mr Kulanthavelu and his son that they would plead guilty and try and save Max’s life if possible, even though they knew it would be hard. They did so, acknowledging that it was likely as seen on CCTV, that Max may have bitten the complainant.

[25]   As the Court of Appeal confirmed in Auckland Council v Hill,6 a dog owner cannot argue that the exceptional circumstances test is met because the attack was caused or contributed to by a one-off failure by an otherwise responsible owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate the destruction of the dog is not warranted.

[26]   The Judge carefully considered the relevant circumstances of the offence in this case and correctly applied the test prescribed by the Court of Appeal in Hill. This case is not dissimilar to that of Tuakalau v Auckland Council where this Court held that an unexpected visitor to the dog owner’s property does not qualify as an exceptional circumstance warranting the avoidance of destruction.7

[27]   As the Judge noted in his decision Mr Kashyap had advanced everything that could be advanced on behalf of Mr Kulanthavelu and Max’s position. The short point is that Mr Kulanthavelu and Max had no defence to the charge under s 57 of the Dog Control Act.

[28]   In the circumstances, there was no miscarriage of justice with the guilty pleas or in the order for destruction. There was no real risk that the decision to plead guilty was affected or influenced by a miscarriage of justice in accordance with s 232(4) of the CPA.

Result

[29]   The appeal against conviction is dismissed. The order for destruction is confirmed.

Venning J

6      Auckland Council v Hill [2020] 3 NZLR 603.

7      Tuakalau v Auckland Council [2019] NZHC 3252.