Newlands v Nelson City Council - [2021] NZSC 100

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 50/2021
[2021] NZSC 100

BETWEEN	DONNA MARY NEWLANDS Applicant
AND	NELSON CITY COUNCIL Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	B A Edwards for Applicant G A Rainey and A C Besier for Respondent
Judgment:	12 August 2021

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Offences under the Dog Control Act 1996

The applicant was charged with two offences under the Dog Control Act 1996. The first was a charge under s 33E(1)(a) of the Act, that being the owner of a menacing dog (named Baloo) she allowed the dog to be at large in a public place without a muzzle. The applicant pleaded guilty to this offence. The second was an offence contrary to s 57(2) of the Act, that she was the owner of a dog that attacked an animal (being another dog named Jasmine). The applicant defended this charge but was convicted after a District Court trial.[1]

Destruction order

[1]Nelson City Council v Newlands [2020] NZDC 26674 (Judge Tuohy).

Under s 57(3) of the Act, the court must make an order for the destruction of a dog that has committed an attack in terms of s 57 “unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog”. Judge Tuohy found the circumstances were not exceptional and ordered destruction of Baloo.[2] The Judge also sentenced the applicant to pay $1,000 emotional harm reparation to the owner of Jasmine.[3]

High Court appeal

[2]At [48].

[3]At [54].

The applicant appealed to the High Court against her conviction under s 57 and against sentence. The focus of the latter was on the destruction order.
In the High Court, the applicant argued that there had been no “attack” in terms of s 57, but was unsuccessful in that argument.[4] She next argued that s 57 was not a strict liability offence, but rather one that required proof of negligence. The High Court Judge rejected this, citing the Court of Appeal decision in Epiha v Tauranga City Council.[5] The Judge noted that even if the applicant had established that s 57 required proof of negligence, the applicant would have been convicted in any event because Baloo was required by law to be muzzled and he was not, which would necessarily qualify as an absence of reasonable care.[6]
[4]Newlands v Nelson City Council [2021] NZHC 652 (Ellis J), at [20].
[5]At [22]–[24], citing Epiha v Tauranga City Council [2017] NZCA 511, [2017] NZAR 1664.
[6]At [25].
In relation to the destruction order, the High Court Judge agreed with the District Court Judge that there was no basis for concluding that the destruction of the dog was not necessary to remove the risk of a future attack, and so upheld the destruction order.[7]

Application for leave

[7]At [29]–[30].

The applicant now seeks leave to appeal directly to this…

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] NZSC 100
Decision Date: 12 August 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal from Donna Mary Newlands against the Nelson City Council. Newlands was convicted under the Dog Control Act 1996 of allowing her dog, Baloo, to be at large in a public place without a muzzle, and of being the owner of a dog that attacked another dog, Jasmine. The District Court ordered the destruction of Baloo, and this order was upheld by the High Court. Newlands sought leave to appeal to the Supreme Court against her conviction and sentence, including the destruction order.

The legal issues the court was required to decide were whether section 57(2) of the Dog Control Act 1996 is a strict liability offence and if the destruction order was justified. The court had to consider if Newlands' arguments about the nature of the offence and the exceptional circumstances of the case warranted an appeal to the Supreme Court. The court also needed to determine if there was any risk of a miscarriage of justice in the lower courts' decisions.

The court found that section 57(2) of the Act is a strict liability offence, as confirmed by previous decisions of the Court of Appeal. The court noted that even if the offence were not strict liability, Newlands would still have been convicted due to the failure to muzzle Baloo, which is a breach of reasonable care. The court also upheld the destruction order, finding no exceptional circumstances that would prevent it. The court concluded that there was no proper basis for the grant of leave to appeal and dismissed the application for leave.

The court's final order was to dismiss the application for leave to appeal, meaning Newlands' appeal against her conviction and sentence, including the destruction order, would not proceed to the Supreme Court.

Orders