Kumar v Auckland Council

[2020] NZHC 3023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-404-000326

[2020] NZHC 3023

BETWEEN

ELVISH KUMAR

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:

06 November 2020

Appearances:

Appellant in person

F A Mohammed for the Respondent

Judgment:

16 November 2020

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 16 November 2020 at 4.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

F A Mohammed, Auckland Council Copy to:

Appellant

KUMAR v AUCKLAND COUNCIL [2020] NZHC 3023 [16 November 2020]

Introduction

[1]                 Mr Kumar was charged with being the owner of a dog that attacked a person.1 He pleaded guilty and was convicted in the District Court on 9 June 2020.2 He was sentenced to pay a fine of $400 and Court costs of $130, and the Judge ordered that Mr Kumar’s dog, Oscar, be destroyed.

[2]Mr Kumar appeals both his conviction and the destruction order.

Background facts

[3]                 Mr Kumar pleaded guilty to an agreed summary of facts, which I further summarise here.

[4]Mr Kumar is the owner of Oscar, a male American pit bull terrier cross.

[5]                 On 22 October 2019 the victim, an 11-year old boy, walked past Mr Kumar’s property. Oscar ran out and jumped on the boy, biting his arm (which he raised to cover his face) and his leg.

[6]                 Mr Kumar’s wife, Ms Devi, came out of the property and pulled Oscar away. Oscar got away and bit the victim on the hand. Eventually two adults from neighbouring properties came out and chased Oscar back to Mr Kumar and Ms Devi’s home, at which point Ms Devi secured Oscar on a chain.

[7]                 The victim was taken by ambulance to Middlemore Hospital. He had puncture wounds on his left arm and a gash on his left leg.

[8]                 Oscar had previously attacked another person at the property, on 23 November 2016. At that time Oscar was owned by Mr Kumar’s brother.

[9]                 Mr Kumar says that certain key details were missing from the summary of facts to which he pleaded guilty. He says that Oscar would usually be leashed or chained

1      Dog Control Act 1996, s 57(2).

2      Auckland Council v Kumar [2020] NZDC 15560.

up while outside on the property. He says that Oscar was not chained only because Ms Devi was in the backyard with him and felt he was secured by the fences and locked gate.

[10]              Mr Kumar also says that Oscar had a serious ear infection around the time of the attack, causing haematoma. He says this may have caused Oscar to become irritated by the sound of a new pressure cooker Ms Devi was using immediately before the attack.

[11]              Mr Kumar also says that a neighbour has told him that the victim stood on the property’s driveway and called out to Oscar to play with him prior to the attack. There is no statement or evidence from the neighbour to this effect. Mr Kumar’s account is supported by a written statement from Ms Devi that Mr Kumar provided to the Court, but her statement has not been sworn or signed.

District Court decision

[12]              Mr Kumar pleaded guilty on 9 June 2020. Judge Moses entered a conviction for the offence and sentenced Mr Kumar that day.3

[13]              Judge Moses, after summarising the facts, acknowledged that Mr Kumar had pleaded guilty at an early stage. He also acknowledged that Mr Kumar had met with the victim and his family, and had paid $1,000 towards their medical and other costs. Judge Moses said that the fine would normally be around $750, but because of those factors it was reduced to $400 and Court costs of $130.

[14]              The Judge made an order for destruction of the dog. Mr Kumar, who was represented by a lawyer in the District Court, did not make any argument opposing an order for destruction of the dog.

3      Auckland Council v Kumar [2020] NZDC 15560.

Appeal against conviction

Law

[15]              Mr Kumar was convicted of being the owner of a dog that attacked a person under s 57(2) of the Dog Control Act 1996:

57       Dogs attacking persons or animals

(1)A person may, for the purpose of stopping an attack, seize or destroy a dog if—

(a)the person is attacked by the dog; or

(b)the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.

(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding

$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

(3)If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

[16]              An offence under s 57(2) is one of strict liability.4 That means that, once the prosecution has proved the defendant is the owner of a dog that has attacked a person, the defendant has to prove an absence of fault on their part, on the balance of probabilities.5 In other words, Mr Kumar must show the Court that it is more likely than not that every possible step was taken to stop the attack from happening.

Appeal

[17]              Appeals against conviction are dealt with under s 232 of the Criminal Procedure Act 2011. It is very difficult to successfully appeal a conviction after pleading guilty to the charge. The person bringing the appeal must show that a

4      Epiha v Tauranga City Council [2017] NZCA 511 at [6]; and Auckland Council v Hill [2020] NZCA 52.

5      Epiha v Tauranga City Council [2017] NZCA 511 at [7].

miscarriage of justice will occur if the conviction is not overturned.6 “Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.”7

[18]              People plead guilty for various reasons, and simply regretting pleading guilty will not necessarily be enough to show a miscarriage of justice.8

[19]              The Court of Appeal in R v Le Page described three broad situations where a miscarriage of justice could be found even though the defendant has pleaded guilty:9

[17]      ….The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element. ….

[18]      A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged. ….

[19]      The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law. ….

[20]     Those are not the only situations which can be considered a miscarriage of justice. A miscarriage can also occur if a defendant has pleaded guilty because of incorrect advice telling them a particular defence to a charge was not available when it was.10

Decision

[21]     The main ground of appeal is that Mr Kumar was given inconsistent and incomplete advice when he made the decision to enter a guilty plea in the Manukau District Court.

[22]     Mr Kumar says that he and Ms Devi spoke to a duty lawyer at court on 9 June 2020, who initially advised Ms Devi to plead guilty so that the charge against

6      R v Le Page [2005] 2 NZLR 845 (CA). This approach was not changed by s 232 of the Criminal Procedure Act 2011: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [9].

7      R v Le Page [2005] 2 NZLR 845 (CA) at 849.

8      R v Merrilees [2009] NZCA 59 at [35].

9      R v Le Page [2005] 2 NZLR 845 (CA); citing commentary in Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters); and endorsed in R v Merrilees [2009] NZCA 59.

10     R v Merrilees [2009] NZCA 59 at [34]; Watts v R [2011] NZCA 41.

Mr Kumar would be withdrawn. However, later on, a different duty lawyer advised Ms Devi and Mr Kumar that pleading guilty could cause problems for Ms Devi’s employment with the Department of Corrections. Mr Kumar says they then appeared before the Judge to ask for more time to consider their options, but the Judge would not allow a delay. At this point, the duty lawyer told Mr Kumar to plead guilty to the charge. Mr Kumar says that he did not really understand this would mean Oscar would be destroyed or that it would result in him receiving a criminal conviction. Ms Devi in her unsigned and unsworn statement says Mr Kumar pleaded guilty because of the lawyer’s advice, and the lawyer did not give them advice about a destruction order.

[23]     In some cases a defendant being given incorrect advice about the potential outcome of pleading guilty, including what sentence they are likely to receive, can be enough to show a miscarriage of justice.11 However, this requires showing three things: that the advice contained errors, that the defendant would not have pleaded guilty if they were not given the advice, and that the defendant would have had a genuine prospect of being acquitted if they did not plead guilty and instead defended the charges in a trial.12

[24]     There are two reasons Mr Kumar’s appeal against conviction cannot succeed. The first is that he was given documents that mentioned the risk that Oscar would be destroyed if he was convicted. The charge notice he received mentions that the maximum penalty for a conviction includes “mandatory destruction of dog unless there are exceptional circumstances”. The summary of facts that Mr Kumar pleaded guilty to also mentions a mandatory destruction order – first towards the top of the front page, as part of the maximum penalty, and again towards the bottom of the summary itself. The summary says “the defendant will bear the onus of showing that exceptional circumstances exist which warrant that the dog should not be destroyed”. There were therefore three references across the two documents to Oscar being at risk of destruction if Mr Kumar was convicted. I am not satisfied that Mr Kumar was unaware of the risk his dog would be destroyed if he pleaded guilty.

11     Whichman v R [2018] NZCA 519 at [41]–[42].

12 At [41].

[25]     The second problem for Mr Kumar is that the offence he has been convicted of is a strict liability offence. All that is needed for him to be convicted under s 57(2) is that he owns a dog, and that dog has attacked a person. Mr Kumar does not dispute that he owns Oscar, and that Oscar attacked the victim. While he says there is more to the story, the additional details he gives have no effect on the test for conviction under s 57(2). Nor are they enough to show total absence of fault. For the appeal to succeed Mr Kumar needs a genuine prospect of being acquitted if he defends the charges at trial. It appears that Mr Kumar would have no defence. With no defence there is no genuine prospect of an acquittal.

[26]For these reasons, the appeal against conviction must fail.

Appeal against sentence

[27]     Section 250(2) of the Criminal Procedure Act says that an appeal against sentence must be allowed if for any reason there is an error in the sentence that was imposed on conviction and a different sentence should be imposed.13

[28]     The sentence being challenged in this case is the order that Oscar is to be destroyed.

Dog destruction orders

[29]     The Court of Appeal in Auckland Council v Hill set out a two-step approach for assessing whether the circumstances of a dog attack are exceptional:14

[5]        The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete — that is, after the attack occurs — also are not circumstances of the offence. …

[6]        The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. …

13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35]. The Court will not intervene where the sentence is one that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached. The sentence generally must be shown to be manifestly excessive or wrong in principle.

14 Auckland Council v Hill [2020] NZCA 52.

The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.

[7]        It is not open to the dog’s owner to argue that the dog can be expected to behave differently in similar circumstances in the future — for example, as a result of post-attack training. Rather, the focus is on the risk that the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.

[8]        Nor is it open to the owner to argue that the s 57(3) test is met because the attack was caused or contributed to by a one-off failure by the owner to maintain effective control of the dog. Failures to control a dog are not exceptional circumstances of a kind that indicate that destruction of the dog is not warranted.

[30]     For circumstances to be “exceptional” they must be “an unusual or one-off occurrence that is most unlikely to be repeated”.15 Section 57(3) is based on the idea that where a dog has attacked once, it will attack again in similar circumstances.16 The section is focussed on ensuring that there is no real risk that the dog will attack again.17 If the circumstances of the attack are sufficiently exceptional that there is only a very remote chance the dog will pose a threat to public safety, the appeal will succeed.18 Otherwise, it will fail and the dog must be destroyed.

Decision

[31]     Mr Kumar represented himself on his appeal. He filed written submissions usefully addressing the Hill test in support of the appeal.

Whether the circumstances were exceptional

[32]     Mr Kumar says the relevant circumstances of the attack include Ms Devi testing out a new pressure cooker at the back of the house and Oscar being off his leash because Ms Devi had him in her sight. He says that Oscar started to bark and was clearly bothered by the sound of the cooker, at which point he ran around the side of the house. Ms Devi turned off the pressure cooker before chasing after Oscar. She expected he would be confined to the inside of the property by the fence and locked

15 At [64].

16 At [65].

17 At [66].

18 At [75].

gate. However, he had managed by some means to get to the other side of the gate to the victim.

[33]     Mr Kumar says these circumstances are exceptional because Oscar had been found to have a serious ear infection before the attack, and was hearing the pressure cooker used for the first time. This may have resulted in him being irritated and behaving differently to how he would behave usually, and to how he is likely to behave in the future. Further, Oscar would not normally have been able to escape the fenced area because he would be chained up and secured by the fence and locked gate.     Mr Kumar also says that the victim was standing on the property’s driveway and calling to Oscar to play with him, which may have provoked Oscar.19

[34]     I do not consider any of these circumstances can be considered exceptional as that term is defined in Hill. The fact that Oscar would usually be chained in, but was not, and managed to escape despite the fence, is a one-off failure to maintain effective control, rather than an exceptional circumstance.20 In addition, a child seeking to interact with a dog in a yard cannot be considered exceptional or out of the ordinary.

[35]     Then there is the issue of the ear infection. The attack occurred in October 2019. As I understood Mr Kumar’s submissions, a veterinarian identified the haematoma in Oscar’s ear sometime in the second half of 2020. There is no evidence at all from the veterinarian. There is therefore no evidential basis on which I could accept this part of Mr Kumar’s argument. Even if there had been an evidential basis, there is nothing exceptional about a dog having an undiagnosed ailment.

19 These additional details were not included in the statement of facts to which Mr Kumar pleaded guilty. The neighbour’s statement (on which Mr Kumar bases his argument that the victim was calling to Oscar) is not in evidence. There is also no formal evidence from any veterinarian about Oscar’s condition. I do not consider these issues determine the appeal, as even if the evidence were included there would not be enough for the appeal to succeed.

20 In Risdom v Auckland Council [2020] NZHC 905 a dog forced his way through the gate of the address at which he lived to attack another dog. That dog was blind in one eye, possibly scared by approaches on that side, and affected by the after-effects of anaesthetic after being neutered. It also had earlier attacked another dog after being deliberately released by a neighbour with whom Mr Risdom was in a dispute. Justice Jagose did not consider these amounted to exceptional circumstances – anaesthesia did not usually lead to aggression, and the dog’s partial blindness was a continuing condition. As such, he did not consider the circumstances exceptional such that an order should not be made. I consider Oscar’s ability to get around or over the gate in this case is similar to that one.

[36]     For these reasons, the appeal against the dog destruction order must also fail. I cannot be satisfied that the attack occurred in exceptional circumstances.

Result

[37]The appeal against conviction is dismissed.

[38]The appeal against the order that Oscar be destroyed is dismissed.

Campbell J