Newlands v Nelson City Council - [2019] NZHC 1692

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2019-442-9

[2019] NZHC 1692

BETWEEN
DONNA MARY NEWLANDS

Appellant

AND

NELSON CITY COUNCIL

Respondent

Hearing: 3 July 2019

Appearances:

Appellant in Person

J J Marchbanks for the Respondent

Judgment:

18 July 2019

JUDGMENT OF CULL J

[1] Ms Newlands wishes to appeal the refusal by the Nelson District Court to give a pre-trial determination on whether an offence under s 57(2) of the Dog Control Act 1996 (the Act) is one of strict liability. She seeks leave to appeal that decision.

[2] Ms Newlands is charged with two offences under ss 57(2) and 33EC of the Act, namely that she is the owner of a dog, Baloo, which attacked a domestic animal, a dog named Jasmine,1 and that Baloo is classified as a menacing dog and was in a public place (Cable Bay Beach) without a muzzle.2

[3] On 15 May 2019 a case review hearing was held in the Nelson District Court at which the District Court Judge declined to give a pre-trial determination as to whether the offence under s 57(2) is one of strict liability. The District Court declined

1 Dog Control Act 1996, s 57(2); maximum penalty $3,000 fine.
2 Sections 33EC and 33E(1); maximum penalty $3,000 fine.

NEWLANDS v NELSON CITY COUNCIL [2019] NZHC 1692 [18 July 2019]

to hear the matter as a preliminary point, considering it best to determine the issue once all the evidence had been heard. This is evident from the legal discussions before the Judge, although there is no record of a decision or ruling.

[4] On 29 May 2019, Ms Newlands applied for leave to appeal the decision under s 296 of the Criminal Procedure Act 2011 (CPA). Following the first case management conference, Ms Newlands’ leave application was set down for a hearing to address the following issues:3

(a)under which provision of the CPA was Ms Newlands’ original application brought (noting that s 78 contemplates pre-trial hearings for admissibility issues);

(b)if such an application can be brought, what is the appropriate appeal provision (if any); and

(c)if s 296 is the appeal provision, what is the question of law that arises from a decision not to hold a preliminary hearing (that being the only decision of the District Court to which s 296(1) could attach)?

Background

[5] Ms Newlands is the registered owner of a three-year old male American Pitbull/Cross called Baloo. Baloo was previously registered in Auckland and was classified as a menacing dog breed on 5 October 2015.4 The classification of Baloo as a menacing dog requires him to be muzzled when he is in a public place.5

[6] On 17 December 2018, Ms Newlands took Baloo to Cable Bay Beach. She parked her vehicle in the carpark a short distance from the beach and let Baloo out of the vehicle to swim and play at the beach. The muzzle and shock collar for Baloo were left in Ms…

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: [2019] NZHC 1692
Decision Date: 18 July 2019

CaseChat Overview and Summary

Donna Mary Newlands has appealed against the Nelson District Court's refusal to give a pre-trial determination on whether an offence under s 57(2) of the Dog Control Act 1996 is one of strict liability. The Nelson City Council has opposed the appeal. The appeal concerns the refusal by the Nelson District Court to determine the strict liability issue prior to the substantive hearing. The Court was asked to consider the appeal under s 296 of the Criminal Procedure Act 2011 (CPA), or alternatively under the Criminal Disclosure Act 2008. The appeal court found that neither applied. The appeal court held that s 296 of the CPA does not apply to a case review hearing and that the Criminal Disclosure Act does not apply to applications for pre-trial rulings on matters of law. The court found that there was no jurisdiction for the appeal as proposed by Ms Newlands. The court considered that none of the factors favouring a grant of leave were applicable and concluded that the proposed appeal was without merit. The court dismissed the application for leave to appeal.

The appeal court held that the offence under s 57(2) of the Act is one of strict liability, in accordance with the Court of Appeal decision in Epiha v Tauranga City Council. The court confirmed that Ms Newlands' rights under the New Zealand Bill of Rights Act 1990 would be protected at the substantive hearing. The court held that there was no impediment to Ms Newlands preparing her challenge on the facts and the law, with an opportunity to present them at the hearing of the charges. The court held that there was no breach of Ms Newlands' rights to be presumed innocent until proven guilty, to a fair hearing, or to adequate time and facilities to prepare her defence. The court dismissed the application for leave to appeal.

Orders