Newlands v Nelson City Council
[2019] NZHC 1692
•18 July 2019
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 Newlands’ vehicle. At the beach Baloo was approached by another
3 Newlands v Nelson City Council HC Wellington CRI-2019-442-9, 5 June 2019 (Minute of Simon France J).
4 Under the Dog Control Act 1996, s 33C.
5 Section 33E(1).
dog, a small Papillon named Jasmine. Jasmine barked at Baloo. Baloo then bit Jasmine on her hind leg.
[7] Jasmine’s owners took her to the vet but Jasmine died before arrival. Her owners reported the incident to the Nelson City Council that afternoon. The next day, 18 December 2018, Jasmine’s owners went back to the Nelson City Council offices to make a statement. That morning, Animal Management Officers visited Ms Newlands’ address and spoke with her. Ms Newlands confirmed Baloo had been involved in the incident. Baloo was seized and taken to the pound. An Animal Management Officer returned to Ms Newlands property on 19 December 2018 to take a statement from Ms Newlands.
[8] Under s 57(2) of the Act, a dog owner commits an offence if her dog attacks a domestic animal. Ms Newlands, as Baloo’s owner, has therefore been charged with an offence under s 57(2). The Council does not consider there are any exceptional circumstances and seeks an order for the destruction of Baloo under s 57(3) of the Act.
[9] Section 33C of the Act requires that certain dogs are classified as menacing by breed or type and Baloo was classified as a menacing dog in October 2015, because he is an American Pitbull Terrier. An owner of a dog that is classified as menacing must not allow the dog to be in a public place without a muzzle.6 Ms Newlands has therefore also been charged with an offence under s 33EC(1) of the Act in that, as the owner of a dog classified as menacing, she failed to muzzle the dog whilst in a public place.
Grounds of appeal
[10] Ms Newlands submits that s 24(a) of the New Zealand Bill of Rights Act 1990 (NZBORA) guarantees the right of the defendant to be informed promptly and in detail of the nature and cause of the charge. The District Court’s refusal to rule, pre-trial, as to whether or not there is a mens rea element to the offence places a serious restriction on the right of Ms Newlands to a fair hearing under s 25(a) NZBORA and the right to adequate time and facilities to prepare her defence under s 24(d) NZBORA.
6 Dog Control Act 1996, ss 33E(1) and 33EC(1).
[11] Ms Newlands submits that, although the Court of Appeal in Epiha v Tauranga City Council held that offences under the Act are strict liability,7 this is inconsistent with s 5(1)(g) of the Act, s 25(c) of NZBORA, s 20(1) of the Crimes Act 1961 and Cameron v R.8 Further, strict liability in the absence of express statutory authority conflicts with Civil Aviation Department v MacKenzie,9 R v Hansen,10 and Sweet v Parsley.11 She contends that recklessness or, at the least, absence of fault is required. Ms Newlands submits that, as it stands, if the case goes to trial a conviction is practically guaranteed.
[12] The Council opposes the application for leave to appeal under s 296 of the CPA, contending that the decision is not amenable to appeal.
[13] As this hearing is concerned solely with the application for leave to appeal, I now deal with the procedural questions for determination identified above at [4].
Under what provision of the CPA was the original application for a pre-trial ruling brought?
[14] After being charged with the offences under the Act, Ms Newlands sought a pre-trial determination on whether the relevant offences were ones of strict liability at a case review hearing in the District Court. The District Court declined to make a ruling before the hearing, although there is no record of that decision on file. There is, however, a record of the legal discussion in which Ms Newlands’ counsel advised the Judge that Ms Newlands wished to test the Court of Appeal’s determination in Epiha v Tauranga City Council that offences under the Act were strict liability offences.
[15] The Judge held that such a determination would need to be argued and made in the full hearing, with all the facts and evidence before the Court. The Judge declined to make a pre-trial ruling. Though the case management memorandum estimated that
7 Epiha v Tauranga City Council [2017] NZCA 511 at [6].
8 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161.
9 Civil Aviation Department v MacKenzie [1983] NZLR 78.
10 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
11 Sweet v Parsley [1968] 2 QB 418, [1968] 2 WLR 1360.
half a day’s hearing would be sufficient, the Judge considered that a day should be allocated “because there may be substantial argument involved as well …”.
[16] Ms Newlands submits the application was made by her counsel at the time, on her instructions. Her instructions, she says, were to seek an appealable ruling, pre- trial, on the question of the correct legal test of liability. Ms Newlands stressed in her written submissions and before the Court that her application was for a ruling only. No hearing was applied for, and nor did counsel specify under which section of the CPA the application was made.
[17] Ms Newlands acknowledges that s 78 of the CPA does not apply. She submits there is no requirement for an accused to specify under what legislative provision they are entering a not guilty plea to an offence.
[18] It is clear from a perusal of the original notice of plea of not guilty filed by Ms Newlands’ counsel on 18 March 2019 that Ms Newlands wished to have a preliminary ruling as to whether the offences are strict liability, referring to the Court of Appeal’s decision in Epiha v Tauranga City Council together with the reasons why the ruling was sought. In the case review hearing, it is also clear that Ms Newlands’ counsel discussed with the Judge the possibility of a pre-trial ruling, but accepted the Judge’s indication that a determination on strict liability must wait until all the evidence is heard. There was no formal application or, indeed, a Court order directing “a pre-trial admissibility hearing” under s 78 of the CPA and it is equally evident that there was no formal ruling by the Judge.
[19] In addressing her submissions at the hearing, Ms Newlands submitted that if the CPA provisions do not apply, she relies on ss 14 and 30 of the Criminal Disclosure Act 2008. Section 14 allows the defendant to request further information from the prosecution, and s 30 provides the defendant a right to apply to the court for items or information in the possession of the prosecutor to be disclosed. Section 33 of that Act then provides a right of appeal against a decision of the court under s 30. Ms Newlands submits that she has asked for further disclosure by seeking a ruling about strict liability which, she says, comes within the scope of ss 14 and 30 of the Criminal Disclosure Act 2008.
[20] The provisions of the Criminal Disclosure Act relate only to disclosure of documents and files prior to a trial. I accept the respondent’s submission that disclosure had been completed and Ms Newlands had not raised any issues of concern relating to the disclosure made. The provisions of the Criminal Disclosure Act are distinct from pre-trial rulings and do not apply to applications for pre-trial rulings on matters of law.
Conclusion
[21] The application for a pre-trial ruling from the District Court on the correct legal test of liability under the Dog Control Act was not made under the provisions of the CPA. Section 78 of the CPA does not apply. There is no provision in either the CPA or the Criminal Disclosure Act that permits the original application to be made.
What is the appropriate appeal provision (if any)?
[22] Having found that the application for a pre-trial ruling from the District Court was not brought under the provisions of the CPA or the Criminal Disclosure Act, the next question is whether there is any jurisdiction to entertain an appeal from the District Court’s refusal to make a pre-trial ruling.
[23] Ms Newlands submits that s 296 of the CPA is the appropriate appeal provision. That section provides that where a person has been charged with an offence, either party may, with the leave of the first appeal court, appeal to that court “on a question of law against a ruling by the trial court.”12 The question of law must arise in proceedings that relate to or follow the determination of the charge, or arise in the determination of the charge.13
[24] The critical requirement of s 296 is that the trial court must have made a ruling from which an appeal can be made on a question of law. Ms Newlands submits the ruling by the trial court appealed against may be stated as the ruling that the case will proceed to trial without prior determination of whether the offence is one of strict liability and whether strict liability in respect of the offence under s 57(2) of the Act is
12 Section 296(1) and (2).
13 Section 296(3).
inconsistent with s 25(c) NZBORA. I consider this mischaracterises what has occurred. In this case, the District Court Judge did not make a pre-trial ruling because he considered that the issues of strict liability should be considered in the context of the evidence at the hearing. Thus, there was “no ruling by the trial court” from which to appeal.
[25] Further, Ms Marchbanks for the Council submits that a “trial court” is defined in s 5 of the CPA as meaning “the court before which the defendant … is to be tried”. Section 5 defines a “trial” as a Judge-alone or jury trial. I accept Ms Marchbanks’ submission that a case review hearing is not a trial, and therefore s 296 of the CPA does not apply.
[26] I am reinforced in this conclusion by the Court of Appeal’s statements in Hohipa v R, where the Court held that there is no general right of appeal from interlocutory decisions that are made before trial.14 The Court observed that the CPA provides, like its predecessor, that specified decisions may be appealed by leave of the court to which the appeal is made. Those decisions are listed in s 215 which specifically restricts appeals from pre-trial evidential decisions made in Judge-alone trials.
[27] The rationale for the limited appeal provision is explained in Adams on Criminal Law as reflecting the nature of a Judge-alone trial as favouring convenience and continuation of the trial, with appeals generally dealt with at the conclusion of the trial.15 Essentially, the statutory scheme of the CPA limits the categories of pre-trial appeal.16
Conclusion
[28] Section 296 of the CPA, being a right of appeal for a person charged with an offence to appeal a ruling by a trial court on a question of law, does not apply to this
14 Hohipa v R [2015] NZCA 73 at [7].
15 Bruce Robertson (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Thomson Reuters) at [CPA 215.01].
16 H v R [2018] NZCA 34 at [5].
case because there has been no ruling and a case review hearing is not a “trial” under s 296 of the CPA. No other appeal provision applies to the circumstances of this case.
If s 296 is the appeal provision, what is the question of law?
[29] If my finding that s 296 is not the appropriate appeal provision is wrong, the issue still remains as to the question of law on appeal. The appeal must concern a question of law,17 and the question of law must arise in proceedings that “relate to or follow the determination of the charge”.18
[30]Ms Newlands has refined the question of law in her submissions as follows:
Did the Court’s decision to proceed to trial without first ruling on the question of whether strict liability is the correct test in law infringe on the Defendant’s right under s 24(a) of the New Zealand Bill of Rights Act 1990 to be informed in detail of the nature and cause of the charge, including whether or not the offence contains any element of mens rea?
[31] She submits that it is “self-evident” that this question of law relates to the determination of the charge against her.
[32] For an appellate court to entertain an appeal on a question of law, there must be a significant relationship or connection between the lower court’s decision and the determination or disposition of the charge.19 Determination is a decision that deals with the charge in a way that brings the matter to an end.20 In this instance, the “refusal” decision relates to a matter of timing that is procedural in nature only and is not determinative of the final outcome in relation to the two charges. I accept the Council’s submission that the decision that is before the Court on appeal does not relate to nor follows the determination of the charge.
Conclusion
[33] The question of law, as framed by Ms Newlands, requires determination at a substantive hearing on the facts and the law. I consider the District Court Judge was
17 Criminal Procedure Act 2011, s 296(2).
18 Section 296(3)(a).
19 Anderson v Police [2015] NZHC 923, [2015] NZAR 999 at [17].
20 Criminal Procedure Act 2011, s 296(3)(b).
correct in deferring the determination of the correct test of liability for the offences under the Dog Control Act 1996 until the substantive hearing. There is no jurisdiction for the appeal as proposed by Ms Newlands.
The discretion to grant or refuse leave to appeal
[34] The Court has a wide discretion to grant leave to appeal. For completeness, even if there was jurisdiction for the appeal, I would decline leave to appeal in the circumstances of this case. The Court of Appeal in R v Leonard sets out some of the factors which may be taken into account when deciding whether to grant leave,21 which apply to applications for leave to appeal under the CPA.22 Those favouring leave include:23
(a)the argument is based on a novel point or is of significant for other cases;
(b)there is conflicting authority covering the issue to be determined on the proposed appeal;
(c)the application relates to an identified error of law;
(d)the application involves the admissibility of evidence that is important to one of the parties;
(e)the matter cannot be dealt with adequately in any appeal after the trial or there are only limited post-trial appeal rights; and
(f)the proposed grounds of appeal are arguable.
[35] The Court set out the considerations pointing towards refusing leave, which include:24
(a)the issue will need to be revisited at trial or is best dealt with in the context of the trial;
(b)the application involves the admissibility of evidence that would not make a significant difference to the course of the trial and is unlikely to lead to post-conviction appeal success;
(c)the issue is best dealt with in the context of any post-conviction appeal;
(d)the application challenges a factual finding, especially where the finding rests on an assessment of credibility;
(e)the application challenges the exercise of a discretion;
21 R v Leonard [2007] NZCA 452 at [13]-[14].
22 Hohipa v R, above n 14, at [27].
23 R v Leonard, above n 21, at [13].
24 At [14].
(f)the appeal will cause unnecessary delay, for example, where there is not time to hear the appeal before the trial commences or where it would unduly delay the trial; and
(g)the proposed appeal is without merit.
[36] On my assessment, none of the factors favouring a grant of leave are applicable, save that Ms Newlands is challenging the appellate findings on strict liability in respect of Dog Control Act offences as being wrong in law and inconsistent with s 25(c) NZBORA. I concur with the District Court Judge that this challenge is best dealt with in the context of the trial. The grant of leave to appeal to this Court would not only unduly delay the trial, but the proposed appeal is without merit.
[37] It is well-settled law that the offence under s 57(2) is one of strict liability. The Court of Appeal decision in Epiha v Tauranga City Council recently addressed the issue, and held (footnotes omitted):25
[6] We agree with Woodhouse J that an offence under s 57(2) of the Act is one of strict liability. As he observed, the High Court has consistently followed this approach with respect to the offences in ss 57 and 58 of the Act. Apart from one decision concluding that the offence imposed absolute liability, it seems the strict liability analysis extends back at least as far as 1984 (in the context of the former legislation).
[7] We consider that this long-standing approach is clearly correct. This is a classic public welfare offence directed at protecting the public interest. There is no express mens rea element in the section. Once the prosecution has proved that the defendant is the owner of the dog that has attacked a person, the onus shifts to the defendant to prove total absence of fault on the balance of probabilities.
[38] The finding in Epiha that the offence was one of strict liability was confirmed by the Court of Appeal in Walker v Nelson City Council, where the Court found that the legislative scheme of the Act is one of strict liability for breaches of obligations under the Act.26 For an offence under s 57(2) of the Act, the High Court decision in Walker v Nelson City Council also held that:27
The owner need not intend an attack. Nor need she be reckless or negligent in that regard. But the owner has a defence at common law if she can show total absence of fault.
25 Epiha v Tauranga City Council, above n 7.
26 Walker v Nelson City Council [2017] NZCA 526 at [10].
27 Walker v Nelson City Council [2017] NZHC 750 at [21].
[39] In respect of s 20(1) of the Crimes Act, which upholds common law defences where these are applicable, there is no inconsistency as the common law defence of total absence of fault is available to Ms Newlands to establish at the trial.
[40] Further, the High Court has also addressed the issue of inconsistency of strict liability with s 5 of the Dog Control Act.28 The Court in Tauranga City Council v Julian held that when the Act was viewed as a whole, it was not intended that s 5 would provide a statutory defence to any of the operative provisions of the Act,29 and s 57(2) is therefore not qualified by a requirement to “take all reasonable steps”.
[41] For completeness, I deal finally with Ms Newlands’ claim that she is being denied a fair hearing (s 25(a) NZBORA) and denied adequate time and facilities to prepare her defence (s 24(d) NZBORA). As the District Court Judge discussed at the case review hearing, the legal challenge which Ms Newlands wishes to raise is best considered in the context of the facts and circumstances arising from the charges. There is 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.
[42] The prosecution will be required to prove the elements of the offending beyond a reasonable doubt at the defended hearing. There is 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.
Result
[43]The application for leave to appeal is dismissed.
Solicitors:
Tasman Law, Nelson for Respondent
Cull J
28 Tauranga City Council v Julian [2014] NZHC 2132, [2014] NZAR 1322.
29 At [22].
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