Nelson v Jones

[2012] NZHC 2983

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-69 [2012] NZHC 2983

JOHN RONALD NELSON

Appellant

v

CAMERON JONES

Respondent

Hearing:         9 October 2012

Counsel:         Appellant in Person

T B Blake for Respondent

Judgment:      26 October 2012

JUDGMENT OF SIMON FRANCE J

[1]      This is an appeal by way of case stated against a decision of the District Court to stay a private prosecution.[1]     Mr Nelson is the informant.   He charged Mr Jones with an offence against s 57(2) of the Dog Control Act 1996, alleging that Mr Jones:

was the owner of two dogs ... which at or near ... attacked a domestic cat belonging to ..., as a result of which the said cat suffered fatal injuries.

[1] Nelson v Jones DC Wellington CRI 2012-085-001133, 24 July 2012, Judge Wainwright.

[2]      The incident in question had been the subject of consideration by the relevant section of the Wellington City Council.  It had decided to issue infringement notices

under s 66 of the Dog Control Act 1996 for a failure to keep the dogs under control.

JOHN RONALD NELSON V CAMERON JONES HC WN CRI 2012-485-69 [26 October 2012]

The dogs were thereby also declared dangerous.   Mr Jones paid a $200 fine in relation to each infringement notice.

[3]      The District Court determined that since the same attack incident was the cause of the infringement notices being issued:

(ii)       the legal response to the incident had therefore been exhausted by the actions already initiated and, in fact, concluded by the Wellington City Council exercising its powers under the Dog Control Act 1996, and that to allow the informant now to proceed in a private prosecution would be to take the defendant through the Court system again on  matters which he had already addressed

[4]      A stay  of  proceedings  was  issued  because  the  information  “effectively” amounted to double jeopardy, and was, therefore, an abuse of process.  Mr Nelson appeals.

[5]      The case has proceeded on the basis that the District Court was holding that the first charge made the second charge laid by Mr Nelson legally impermissible. On reflection I am doubtful that is the proposition being advanced.   However, the Court has stated a case, which is the procedure for a question of law, so I will determine the question as posed and then consider disposition.

Decision

[6]      Despite Mr Blake’s careful submissions, I consider Mr Nelson is correct in his submission that the information he laid is not invalid for the reasons apparently given by the Judge.

[7]      The law is settled that the same set of circumstances can give rise to liability for more than one offence.  Here, the elements of the two offences are different.

[8]      The infringement notice cited a failure to keep the dog under control.  This appears to be a reference to s 53(1) of the Act which provides:

Every person commits an offence and is liable on summary conviction to a fine not exceeding $3,000 who, being the owner of a dog, fails to keep that dog under control.

[9]      Although there is no reference here to the attack, the Judge found as a fact that the basis of the charge laid by the Council (via an infringement notice) was the attack incident.

[10]     The offence Mr Nelson has charged Mr Jones with provides:

(2)       The owner of a dog that makes an attack [on any domestic animal] commits an offence and is liable on summary conviction to a fine not exceeding $3,000.

[11]     The offences are different.  The first takes as its focus fault on the part of the owner – he or she must have failed to keep the dog under control.  The second does not involve fault – liability comes from status, namely being the owner of a dog that has done something.  There is in law no impediment to a person being convicted of both offences arising out of the one incident.

[12]     I consider the relevant test remains that set out in R v Moore:[2]

Both of those provisions provided that an offender shall not be punished twice ‘for the same offence’.  The meaning of the words ‘the same offence’ has created difficulty in a number of different jurisdictions where similar provisions are to be found ... Various tests have been developed to determine whether two offences are the same, but none has been found satisfactory. That which seems to have generally found most favour with English Judges is whether the second prosecution is for ‘substantially the same’ or ‘in effect the same’ or ‘practically the same offence’.

[2] R v Moore [1974] 1 NZLR 417 (CA) at 422.

[13]     For the reasons given these are not practically the same offence.  Mr Jones would be liable for different reasons – one, because he failed to do something; and two, because he is the owner of a dog that did something.

Disposition

[14]     Pursuant to s 112 of the Summary Proceedings Act 1957, the task of the Court is first to determine the question of law, which I have done.  Second, it is to make an order.  Normally this will be to remit, with a requirement that the District Court redetermine the matter in light of the Court’s determination on the question of

law.

[15]     It is plain here that strong grounds exist for a stay of proceedings, essentially for  the  reasons  given  by  the  Court  if  not  technically  by  the  same  route. Section 112(d) allows the Court to make any order it sees fit.  It is rarely exercised but I consider this is an appropriate case to make an order confirming the stay of proceedings, notwithstanding the appellant has succeeded on the question of law.

[16]     Crucial to this decision is the District Court’s finding of fact, set out in the case stated that was filed, that the Council issued infringement notices as its assessment of the proper response to the dog’s attack on the cat.   Mr Jones has accepted the infringement notices and paid two fines.

[17]     As my determination shows, the Council could in fact have laid two charges

– the failure to control and the offence of being owner of a dog which attacks.  That would, however, be excessive.   Mr Nelson may well be correct that his was the appropriate charge.  Information about charging patterns provided by Mr Nelson to the Court suggests that the Council could review how it exercises its prosecutorial discretion.  The statistics suggest there could be, and I put it no higher than that, a fairly immutable approach which would generally be thought to be inconsistent with such prosecutorial discretion.  I emphasise, however, that I have not heard argument from the Council, so this is no more than an observation that carries the limitations I have identified.

[18]     The key point is this – a further prosecution in relation to this matter is, in the circumstances, excessive and oppressive.   Mr Nelson submits that the respondent knew he was “getting away with it” when he was only charged as he was, but, even if correct, it is not the point.

[19]     The responsible authorities assessed the matters and took enforcement action. The respondent accepted that, and paid his fines.  Occasionally, the steps taken by the enforcement authority may be so inadequate that further separate enforcement action, such as Mr Nelson’s private prosecution, can be permitted.  But in the present case there is nothing like the necessary level of public interest to justify allowing a second enforcement action, alleging similar fault, based on the same incident and

arising in circumstances where the respondent has already paid the penalty imposed on the first enforcement action.

[20]     In confirming the decision to stay, I consider I am giving effect to the same concerns that motivated the District Court and with which I agree.

Conclusion

[21]     The question for determination is yes.

[22]     The case is not remitted back but pursuant to s 112(d) of the Summary

Proceedings Act 1957, the stay of proceedings of information CRN 12085500412, filed in the District Court at Wellington on 14 March is confirmed.

Simon France J

Solicitors:

J R Nelson, 63 Rakau Road, Hataitai, email:  [email protected]

T B Blake, Barrister & Solicitor, Lower Hutt, email:  [email protected]