Mitchell v The Queen
[2015] NZHC 460
•16 March 2015
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI 2014-425-50 [2015] NZHC 460
BETWEEN TERESA BRONWYN MITCHELL
Appellant
AND
THE CROWN Respondent
Hearing: 3 March 2015 Counsel:
S Claver for Appellant
S N McKenzie for RespondentJudgment:
16 March 2015
JUDGMENT OF BROWN J
[1] Sprocket, a blue bull mastiff dog (owned by the appellant), is classified under s 33A of the Dog Control Act 1996 (the DCA) as a “menacing dog”. On
29 March 2013 the six year old complainant was playing in the appellant’s property with her three children which was a regular occurrence. Sprocket came into contact with the complainant, apparently at the back door to the appellant’s house, and bit her leaving five puncture wounds on her chest, around her breast and armpit.
[2] The appellant was charged with an offence against s 33EC and s 33E(1)(a) of the DCA that:1
The defendant Teresa Bronwyn Mitchell the owner of Sprocket a blue male neopolitan mastiff classified as a menacing dog pursuant to section 33 by the Invercargill City Council on 30 January 2013 did not have Sprocket muzzled in a private way.
1 Another charge under s 58 was dismissed for the reason that the complainant had not suffered a serious injury.
[3] The appellant appeals against her conviction on the grounds that:
[T]he Honourable District court judge has misdirected himself as to the meaning of “Private way” resulting in His Honour mistakenly finding the dog was unmuzzled in a “private way” when in fact it was unmuzzled while confined to an enclosed area as required by the Dog Control Act 1996.
[4] Section 33E(1)(a) provides:
33E Effect of classification as menacing dog
(1) If a dog is classified as a menacing dog under section 33A or section 33C, the owner of the dog—
(a) must not allow the dog to be at large or in any public place or in any private way, except when confined completely within a vehicle or cage, without being muzzled in such a manner as to prevent the dog from biting but to allow it to breathe and drink without obstruction; …
[5] The appeal raises two issues:
(a) What is the meaning of “private way” in s 33E(1)(a)?
(b) Was Sprocket in a private way when he bit the complainant?
The judgment under appeal
[6] The part of the judgment addressing s 33E first notes that “private way” in the DCA has the meaning given to it by s 315(1) of the Local Government Act 1974 (LGA) which states:
Private way means any way or passage whatsoever over private land within a district, the right to use which is confined or intended to be confined to certain persons or classes of persons, and which is not thrown open or intended to be open to the use of the public generally; and includes any such way or passage as aforesaid which at the commencement of this Part of this Act exists within any district:
[7] The Judge then noted the different requirements in the legislation relating to dogs classified as dangerous, drawing attention to the Select Committee Report on the Local Government Reform Bill (No 2) which introduced the category of menacing dogs.
[8] After reference to a number of authorities including Hamilton City Council v Fairweather, King v South Waikato District Council and Tauranga City Council v Julian, the Judge outlined the circumstances of the incident in this way:2
[58] In this case, the property is secured by a 1.8 metre fence and the gates were closed. It is a reasonable inference that the complainant must have climbed the 1.8 metre fence. While there was evidence that the children had earlier been asked not to climb over the fence, I accept from the evidence of the complainant’s mother that any such caution had lapsed and that the children were frequently on the defendant’s property and the defendant’s children on hers. It is significant that the complainant and her sister were friends of the defendant’s children. While the complainant may not have been expected at the property at that very time, there was nothing to suggest that she was prohibited from visiting the property. Indeed, the child was in no different a position to a regular visitor, delivery or courier driver going to the front door.
…
[60] In this case, the attack occurred inside or at the entrance to the defendant’s home, when Sprocket was off his lead and his muzzle had been removed. The inferences that the defendant had left the front door open and someone had let [the complainant] in or she left [sic] herself in. Control could have been achieved by having a fenced off portion of the yard within which Sprocket was kept and by keeping Sprocket muzzled if he was not in that fenced off portion.
[9] The Judge concluded:
[61] The context in which the Dog Control Amendment Act 2003 was passed indicates that “all reasonable steps” are less onerous with respect to a menacing dog than they are with a dangerous dog, especially when it comes to keeping a dog in a fenced-off portion of the yard. However, this case bears some analogy with the cases referenced above, particularly Dwyer, Halliday and MacKenzie, where high fencing was simply insufficient to constitute taking all reasonable steps to ensure that the dog was under control. Muzzling while in the house may well be one of the reasonable steps that needed to be taken with respect to Sprocket.
[62] I have commented already on the frequency of [the complainant’s] visits to the house. She was not unexpected. In the context of this case I find that the defendant did not take reasonable steps and should have and did not have Sprocket muzzled in a private way and I find this charge proven to the standard of beyond a reasonable doubt.
2 Hamilton City Council v Fairweather [2002] NZAR 477 (HC); King v South Waikato District
Council [2012] NZHC 2264; Tauranga City Council v Julian [2014] NZHC 2132.
Counsel’s submissions
Appellant’s case
[10] It was Mr Claver’s submission that it was patently obvious that a private way as envisaged by Parliament is a legal passage way providing access across common or private land from point A to point B. As with all agreements relating to land, it was said that there must be some form of written document for the right to be enforceable. Noting that the evidence showed that the incident took place inside the appellant’s house at or around the back door area, it was further submitted that Parliament could never have intended that a private way should extend to the inside of a private dwelling.
Respondent’s case
[11] The respondent supported the reasoning of the Judge, contending that he had taken a purposive approach to interpreting the legislation and had considered the obligations of owners of menacing dogs in general. Ms McKenzie submitted that a backyard used by the children must fall within the definition in s 315(1) of the LGA. Recognising that the attack occurred either inside or at the entrance to the house, the respondent argued that on a purposive approach where a child is permitted to come to a property, it must follow that the protective function of the DCA requires such an extension of the term “private way” to include the property.
[12] In assessing these competing contentions I first briefly review the legislative history of s 33E(1) before proceeding to consider the proper interpretation to be placed on “private way” in the DCA.
Legislative history
[13] Since at least 1880 there has been a prohibition on dangerous dogs being permitted to go at large without being muzzled. Section 15 of the Dog Registration Act 1880 stated:
15 Any person who shall permit any dog which shall be known to be dangerous, or have bitten or injured any person or any cattle or other property, to go at large, whether with a registered collar affixed to it or not, without being muzzled, in such a manner as will admit of the animal breathing and drinking without obstruction, shall for every such offence be liable to a penalty not exceeding forty shillings; and any such dog so at large may be forthwith seized and killed by any constable.
[14] That section was re-enacted as s 23 of the Dog Registration Act 1908. It was replaced by an essentially similar provision in s 23 of the Dog Registration Act 1955.
[15] The formula was expanded in s 57 of the Dog Control and Hydatids Act 1982 by adding a reference to “in any public place” and by providing for the exception of confinement within a vehicle or cage:
57 Allowing dangerous dogs to be at large unmuzzled–
(1) Every person commits an offence and is liable on summary conviction to a fine not exceeding $500 who permits any dog owned by him and known by him to be dangerous, or to have attacked any person or any stock or poultry or property of any kind, to be at large or in any public place 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.
Dog Control Act 1996
[16] The requirement for a dangerous dog to be muzzled in a private way was introduced in the DCA both in s 62 (the successor to s 57 of the 1982 Act) and in a new regime providing for the classification of dogs as dangerous. The consequence of such a classification was stated in s 32 which materially provided:
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, from a date not later than one month after the receipt of notice of classification under section 31(2) or section 31(5) of this Act, 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; …
[17] The concept of a private way was also included in a provision imposing obligations on all dog owners. Section 52 relevantly stated:
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…
The 2003 Amendment
[18] The Dog Control Amendment Act 2003 introduced a new classification in respect of menacing dogs which included s 33E(1)(a).3 Section 32(1)(b) was amended by the addition of a further requirement, namely that a dangerous dog must be controlled on a leash except when in a dog exercise area specified in a bylaw made under s 20(1)(d). An equivalent addition was made to s 62.
[19] Section 52 was amended by adding the word “generally” to the heading “Control of dogs”. A specific provision relating to the control of a dog on an owner’s property was added in the form of s 52A:
52A. Control of dog on owner’s property –
(1) This section applies when a dog is on land or premises occupied by its owner.
(2) The owner of a dog must, at all times, ensure that either–
(a) the dog is under the direct control of a person; or
(b) the dog is confined within the land or premises in such a manner that it cannot freely leave the land or premises.
The meaning of “private way”
[20] As noted above “private way” is defined to have the meaning given to it by s 315(1) of the LGA.4 The definition of “private way” in s 315(1) is for the purposes of Part 21 which relates to roads (other than regional roads), service lanes and access ways. Section 315 also contains definitions of “access way”, “private road”, “road”, and “service lane”.
[21] A “private road” is defined in s 315(1) as:
… any roadway, place, or arcade laid out or formed within a district on private land, whether before or after the commencement of this Part, by the owner thereof, but intended for the use of the public generally.
Both private roads and private ways cross private land: the difference between them relates to the rights of access by the public.
[22] A small group of sections in that Act relate to “private roads and private ways”, including:
Section 348: Powers of council with respect to private roads and private ways.
Section 350: Penalty fees laying out private road or private way in contravention of this Act.
Section 351: Illegal private road or private way not to be registered.
[23] Section 348(1) prohibits the laying out or formation of a private way or granting or reserving a right of way over any private way without the prior permission of the Council in the district. In granting such permission the Council may under s 348(2) impose conditions:
… as to widths, levels, entrances, courses, formation, cost of formation, maximum number of buildings to be erected fronting any such private road or private way, minimum distances between any 2 buildings, position of building line, and otherwise in all respects whatsoever as the council thinks fit; …
[24] The role of a private way as an access way to buildings is reflected in s 348(5):
(5) Subsection (4) of this section shall apply to every private way which for the time being serves as an approach to 2 or more allotments that are separately owned or separately occupied or to any allotment on which there are 2 or more buildings that are separately occupied.
[25] The definition of “private way” in the Resource Management Act 1991 (RMA) also adopts the definition in s 315. In the RMA private ways are addressed in the context of survey plans of land.
[26] The treatment of private ways in both the LGA and the RMA points to a formal process of either permission or approval for the establishment of a private way similar in several respects to the treatment of private roads. What is envisaged is a recognised thoroughfare over private land which is intended for the use of identified classes of persons.
[27] The concept as used in both the LGA and the RMA does not envisage that entire properties would be considered to be private ways simply by dint of being private land. Indeed a fully fenced property, by virtue of its enclosed state, would defeat the object of a private way, namely to provide a thoroughfare. The definition in s 315(1) means any “way or passage whatsoever over private land”.
[28] Given the incorporation of the s 315 LGA definition in the DCA, I consider that the same interpretation of private way should apply in the case of the DCA, absent some clear indication in the legislation or the legislative history of a different meaning being intended to apply.
[29] There was no provision for “private way” in the original Local Government Law Reform Bill which on its introduction on 6 December 1994 was referred to the Internal Affairs and Local Government Committee. However when the Committee divided parts of that Bill to form the Dog Control Bill, that Bill as reported back included the definition of and the several references to “private way”.
[30] Despite a thorough review of the submissions and briefing papers that can still be located, with one exception there is no indication in the legislative materials as to the catalyst for the introduction of provision for “private way” in the DCA.
[31] The single exception is the following observation of the member for Titirangi in the Second Reading debate:
One other most important matter, which is particularly relevant to Auckland
– and I make no apologies for being parochial about that – relates to the situation where a lot of properties have a common driveway. At the end of
those driveways, or off them, are houses or units etc. The problem is that if
a dog is on such a driveway it can be outside the law. We have dealt with that. Although it is a small matter, it is certainly very important that dog
control can be covered on what could be called a common type of driveway.
[32] Although it does not refer expressly to the phrase “private way”, that observation is consistent with the concept of private way in the LGA. Indeed it is describing the scenario which is recognised in s 348(5).5
Conclusion
[33] In the case of dangerous dogs there is a requirement that they be kept in a securely fenced portion of the owner’s property: s 32(1)(a). There is no equivalent provision for other dogs, including menacing dogs. Such dogs are required to be confined within the land or premises of their owners in such a manner that they cannot freely leave the land or premises: s 52A(2)(b). Sprocket was so confined at
the time of the incident.
5 At [24] above.
[34] In my view the references to “at large or in any public place or in any private way” are to areas to which the public or certain agreed persons may have access and which are distinct from private land over which no agreed right of passage has been defined and granted.
[35] Consequently the backyard in which the incident concerning the complainant and Sprocket took place was not in my view a private way within the meaning of that term in s 315(1) of the LGA. Hence there was no obligation on the appellant to have Sprocket muzzled in that place.
[36] Accordingly the appeal is allowed and the conviction is quashed. As requested by Mr Claver, leave is reserved to file a memorandum on costs.
Brown J
Solicitors:
Preston Russell Law, Invercargill
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