Orr-Walker v Auckland District Council
[2013] NZHC 1541
•25 June 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2013-404-47 [2013] NZHC 1541
BETWEEN TAMSIN ORR-WALKER Appellant
ANDAUCKLAND COUNCIL Respondent
Hearing: 14 June 2013 (by telephone) Counsel: P L Borich for Appellant
V Tamatea for Respondent
Judgment: 25 June 2013
JUDGMENT (NO. 2) OF HEATH J
This judgment was delivered by me on 25 June 2013 at 2.00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
ORR-WALKER v AUCKLAND COUNCIL [2013] NZHC 1541 [25 June 2013]
Introduction
[1] On 5 December 2012, Ms Orr-Walker pleaded guilty, in the District Court at
Waitakere, to being the owner of a dog (Wolfe) that attacked a four year old boy.1
Judge Callander, after hearing submissions, exercised his discretion to discharge Ms
Orr-Walker without conviction.2
[2] Ms Orr-Walker’s plea of guilty was sufficient to satisfy the District Court that the dog had attacked a person. That being so, the Court was required to “make an order for the destruction of the dog unless it [was] satisfied that the circumstances of the offence were exceptional and [did] not warrant destruction of the dog”.3
[3] Following receipt of submissions in writing on that issue, in a reserved judgment delivered on 13 February 2013, Judge Callander made an order that the dog be destroyed.4 Ms Orr-Walker appealed against the destruction order. I dismissed the appeal, for reasons given in a judgment delivered on 17 April 2013.5
The recall application
[4] Following delivery of that judgment, Ms Orr-Walker applied for “recall or correction”. She complained about the summary of the facts on which I based my judgment; in particular, observations that the “dog was on a short leash”;6 the victim was “about two metres away”;7 the dog “abruptly and aggressively snarled”;8 and the
dog “suddenly lunged” at the boy.9
[5] In an affidavit sworn in support of her application, Ms Orr-Walker explained the reasons for her complaint:
1 Dog Control Act 1996, s 57(2).
2 Sentencing Act 2002, s 106. See also Auckland Council v Orr-Walker DC Waitakere CRI-2012-
090-8245, 5 December 2012 at para [1].
3 Dog Control Act 1996, s 57(3).
4 Auckland Council v Orr-Walker DC Waitakere CRI-2012-090-637, 13 February 2013 at para
[22].
5 Orr-Walker v Auckland Council [2013] NZHC 784.
6 Ibid, at para [5].
7 Ibid, at para [7].
8 Ibid, at para [8].
9 Ibid.
3. WITH respect to the Judge:
(a) The statement in paragraph 2(a) above that my dog was on a “short leash” could not take into account that, because another of our dogs had gnawed it, the leash by which my dog Wolfe was secured was effectively only 45cm long as I was holding it between the gnawed portion and Wolfe, and he never strained at it.
(b) The statement in paragraph 2(b) above must have been taken from a draft Summary of Facts which was on the file. That draft Summary was incorrect. The corresponding portion of the agreed Summary of Facts said that the child was “beside his mother”.
(c) The statements in paragraphs 2(c) and (d) above were agreed to be no more than the Complainant’s view of what happened. Had the matter gone to trial (or a Disputed Facts Hearing):
(i) The assertion that the attack was preceded by Wolfe snarling – and the forewarning of attack implicit by that statement – would have been strongly denied by me, my partner and two independent witnesses who were seated nearby when the incident occurred.
(ii) The assertion that Wolfe “lunged” at the boy would have been explained in evidence: the seated Wolfe only rocked forward on his haunches, bit the boy and resumed his former position. This version of events would also have been covered in the evidence mentioned in paragraph 3(b)(i) and, I understand, would not have been strongly contested by the Prosecution.
[6] In giving judgment, I intended to recite the summary of facts on the basis of which Ms Orr-Walker pleaded guilty to the charge. I took my summary from one (unsigned by Ms Orr-Walker) on the file transmitted from the District Court and Judge Callander’s judgment on the destruction issue.10
[7] To focus attention on the differences between my judgment and the position put by Ms Orr-Walker, I set out what I said:
[5] On 23 July 2011, Ms Orr-Walker was at the Hardware Café on Titirangi Road. She was in the outside seating area, with Wolfe. The dog was on a short leash.
10 Reliance on the summary of facts is expressly stated in Orr-Walker v Auckland Council [2013] NZHC 784, at para [4].
[6] The complainant was walking past the cafe with her husband. He was pushing a pram with their baby in it. They were accompanied by their four year old son. The mother noticed a “very large dog at the outside table, sitting” with Ms Orr-Walker.
[7] The mother stopped and spoke to Ms Orr-Walker. She asked about the dog’s breed. At this stage, she was next to the dog and her son was about two metres away. The mother made no attempt to touch the dog and her son remained where he was, “looking at the dog”.
[8] Ms Orr-Walker was about to answer the mother’s question about the dog’s breed, when Wolfe “abruptly and aggressively snarled and appeared to be looking directly” at the child. The dog “then suddenly lunged at [the boy], biting him on and in the face area”.
[9] The mother screamed for her husband, yelling that their child had been bitten. Someone called an ambulance. Attempts were made inside the cafe to stem the bleeding on the young boy’s face. He was taken to hospital by ambulance and stayed overnight.
[10] As a result of the attack, the child suffered injuries on the left side of his face. There was a 1.5cm through and through laceration on his upper lip; a 1cm through and through laceration on his lower lip; a puncture wound under his chin and a 1cm laceration on his left cheek area.
[11] An animal control officer spoke to Ms Orr-Walker, after she had taken Wolfe back to her home. She advised that Wolfe had been secured and was being kept at her home. She was genuinely upset about what had happened. The officer advised Ms Orr-Walker of possible prosecution action.
[12] Initially, Wolfe was impounded while the incident was investigated. On 27 July 2011, Ms Orr-Walker wrote to the Council requesting that the dog be released back to her, pending completion of the investigation and any prosecution. An officer responded to advise that Wolfe could return to her home subject to confinement at that property in a securely fenced portion of it that allowed safe access to one door of the dwelling. If Wolfe required veterinary care, he was to be muzzled at all times when removed from the property.
[8] In memoranda filed in support of the recall application, and in oral submissions made at a telephone conference on 14 June 2013, Mr Borich, for Ms Orr-Walker, drew to my attention that there had been an amendment to the summary of facts before Ms Orr-Walker entered her plea. Mr Tamatea, for the Council, has accepted that the summary contained in my earlier decision is at odds with one aspect of the amended version.
[9] The difference relates to the proximity of the boy to the dog at the time of the attack. In my earlier judgment, I recorded the factual position as being that the
complainant “was next to the dog and her son was about two metres away”.11 In fact, the plea was entered on the basis that the complainant “was next to the dog, and [the boy] was beside his mother”. I acknowledge that error. This judgment can be regarded as correcting it.
[10] If that were the only issue, I would not consider the change sufficiently material to justify reconsideration of my earlier decision. But, other disputes were raised by Mr Borich, with the District Court Judge during the course of submissions made on the s 106 discharge point. They reflected the points made in Ms Orr- Walker’s affidavit on the recall application.12
[11] A transcript of what was said during the s 106 hearing records:
MR BORICH:
But my learned friend’s position in respect of the 106 is neutral and really the issue is what’s to happen to the dog and the Council position in respect of that is that they seek a destruction order and obviously Ms Orr-Walker is anxious to resist that. The brief facts, and they’re not in dispute, are that Ms Orr-Walker’s with her dog in a cafe in Titirangi. The complainant and her mother, or her mother brings, sorry his mother brings the complainant, who’s a very small child, up to the dog, engages with the mother and it’s not entirely clear but the dog is sitting about a metre away or slightly less than a metre away from the dog with the child, essentially staring at this rather large dog.
The dog has taken one snap bite, just lunging forward, rocking forward if you like and then sitting back and that’s it in a nutshell. And the two areas of dispute, with regards to the defended hearing, was the suggestion that there was some pre-warning, some growling or snarling and secondly, the distance. And I think my learned friend’s position today is that the Council are prepared to accept that it was less than a metre and that there was no snarling or growling or anything of that sort. And those were really the only two factual matters that were in dispute. Ms Orr-Walker is anxious not to put the complainant’s mother through the process of giving evidence and really – ...
....
(emphasis added)
[12] In written submissions on the destruction issue, filed after the plea had been entered, Mr Borich said:
11 Orr-Walker v Auckland Council [2013] NZHC 784, at para [7].
12 See para [5] above.
6.It is submitted whilst the injury was not significant, the circumstances of the incident put it at the lower end of what constitutes an “attack”:
(a) Wolfe and the owner had been seated at the crowded cafe for some 40 minutes prior to arrival of the victim and his mother.
(b) The victim’s mother bought the victim child up to Wolfe (within 1 metre of it and at eye level directly looking at the dog) whilst the mother engaged the Defendant in conversation concerning Wolfe.
(c) Wolfe was being actively restrained on a short leash held by the Defendant at the time.
(d) The victim appeared to have been scared of dogs and may have been staring at Wolfe.
(e) This staring may have been misinterpreted by Wolfe as aggressive behaviour (see the report by Mark Vette – Animals On).
(f) The “attack” involved a rocking forward from the seated position (whilst being restrained on a short leash) and a single snap to the face of the victim (with no ripping, further biting or tearing etc as such).
(g) Given the size of Wolfe (then compared to the victim) it is difficult to see this as anything other than a “warning” snap for the victim to respect the space of the dog rather than the sort of more serious attacks involving multiple biting, ripping, growling that, unfortunately, the Court sees from time to time.
Analysis
[13] The first question involves jurisdiction. Is this a case in which this Court can recall its earlier judgment? The applicable principles were discussed by Wild CJ, in Horowhenua County v Nash (No 2).13 The Chief Justice identified three circumstances in which the jurisdiction to recall an unperfected judgment might be exercised. For present purposes, the third is relevant: “where for some ... very special reason justice requires that the judgment be recalled”.
[14] Wild CJ’s approach has been confirmed as appropriate by both the Court of
Appeal and the Supreme Court. The latter considered the point on an application
13 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
made to it to recall a judgment previously given by it, on appeal.14 The Supreme Court considered that a “very special reason” to recall its earlier judgment existed because, had new circumstances been disclosed before its earlier decision, the Court would have been led to a different conclusion on an apparent bias issue.15
[15] There is nothing in the authorities dealing with recall to suggest that the jurisdiction is limited to civil cases. In my view, if Ms Orr-Walker can demonstrate that she ought to have been given the opportunity to adduce evidence supporting her view of the facts before the Judge decided the destruction issue, there would be a “very special reason” for recalling my earlier judgment.
[16] The Judge decided the destruction question on the basis of the summary of facts. It is clear from his judgment on that issue that he did not rely on the “facts” advanced by Mr Borich in those oral and written submissions. I hesitate to say that the Judge did not “accept” the position put forward by Ms Orr-Walker. My sense is that he is more likely to have acted on the premise that the summary of facts on which the plea was entered represented an agreed position, notwithstanding the points raised by Mr Borich.
[17] There is nothing to suggest that, at any time during the sentence phase, Judge Callander indicated to the parties “the weight that [he] would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case”.16 Without such an indication, Ms Orr-Walker did not have the opportunity to request a disputed fact hearing at which her version may or may not have been accepted.
[18] While Mr Tamatea submits that any error in the Judge’s statement of the facts could not be sufficiently material to justify reconsideration of the destruction issue, I am loath to speculate on the weight that a sentencing Judge might give to a particular view of the facts, once there had been an opportunity for that version to be tested in
cross-examination. In reality, a disputed fact hearing might have revealed a state of
14 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2010] 1 NZLR 76 (SC) at para
[2].
15 Ibid, at para [19].
16 Sentencing Act 2002, s 24(2)(a).
affairs consistent with the amended summary of facts, one that accorded completely with the view expressed by Ms Orr-Walker or, importantly, some other factual position that the Judge might find to exist. Only in the clearest case would it be appropriate to deny a defendant the opportunity to have the disputed question determined. In this case, the issue is whether, accepting the version of events put forward by Ms Orr-Walker, there would be a legal basis on which a District Court could decline to make a destruction order.
[19] At the appeal hearing, Mr Borich contended that my earlier statement of legal principles, set out in Halliday v New Plymouth District Council17 was wrong. Having reviewed Halliday in light of subsequent decisions of this Court18 I ruled against Mr Borich on that point. Relevantly, I said:19
[20] Mr Borich’s argument is that, irrespective of the Court’s conclusion on whether the circumstances of the offence were exceptional, there remains an ability for the Court to decline to order destruction, if the circumstances “do not warrant” that course. With respect, that argument is untenable. Parliament has decreed that the Court must make a destruction order unless satisfied both that the circumstances of the offence were exceptional and destruction is not warranted by them. If it had intended to provide a general discretion to decline to order destruction, it could have said so in much more simple language. It did not. The purpose of the sub-section is, as Dobson J observed more lucidly than I, to require the Court to order destruction unless the circumstances of the offence are exceptional and destruction is unwarranted. Section 57(3) does not allow the Court to refuse to make a destruction order in the absence of exceptional circumstances relating to the offence.
[21] The next question is whether s 57(3) allows a Judge to take into account factors arising from post-offence considerations. In this case, Mr Borich submits that I should have regard to the fact that Wolfe is now older and has not misbehaved in any relevant sense since held in a form of restricted detention, under s 71 of the Act. He also points to the “menacing dog” provisions of the Act, which he submits may be taken into account in determining whether the circumstances were exceptional, as these are a means of controlling the dog’s behaviour in the future.
[22] In Halliday, I took the view that events which post-date the offence ought not to be taken into account. I see no basis on which I should revisit that opinion. The factors to which Mr Borich refers may well be relevant to whether, exceptional circumstances of the offence having been established, destruction of the dog is, nevertheless, unwarranted. Means by which the
17 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005 at paras [40]–[48].
18 In particular, Jorion v Kapiti Coast District Council HC Palmerston North CRI-2010-454-22, 4
August 2010 (Dobson J) at paras [8] and [12].
19 Orr-Walker v Auckland Council [2013] NZHC 784, at paras [20]–[22].
dog may be controlled in the future would be relevant to that consideration. However, they are far removed from what happened at the time of the attack and cannot be considered in the context of whether the circumstances of the offence were exceptional.
[20] Based on that approach, the question is whether there is anything in the circumstances of the attack as advanced by Ms Orr-Walker that could lead a District Court Judge to reach a different decision than Judge Callander on the destruction point.
[21] In Halliday I drew attention to the differences between the Court’s power to order destruction of a dog, depending upon whether a conviction against the owner was entered under s 57 or s 57A of the Dog Control Act 1992. The presumptive position, when s 57(3) applies (as it does in this case) is that a destruction order will be made unless the Court “is satisfied that the circumstances of the offence were
exceptional and do not warrant destruction of the dog”.20 The lesser offence under
s 57A arises if a dog rushes or startles a person or an animal. In that situation, the
Court has a general discretion whether to order destruction.21 In Halliday, I said:22
[36] Section 57 of the Act is directed towards an attack by a dog on a person or on specified animals. Again the nature of the attack encompasses a wide variety of circumstances. Injury to a person or animal is not an element of the offence, though clearly it would be an aggravating factor. An attack on a person or specified animal is clearly seen by Parliament as being more serious than rushing or startling a person or animal. For that reason, destruction of the dog is mandatory on conviction of an offence under s57, unless the District Court is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
[22] Having made those observations, I also considered the factors that might be relevant in determining whether there were exceptional circumstances, for the purposes of s 57(3). I said:23
[48] In the context of this particular case factors that might be relevant in determining whether there were exceptional circumstances that do not require a destruction order to be made would include:
a) the nature of the attack (including the fact that injury resulted);
20 Dog Control Act 1992, s 57(3).
21 Ibid, s 57A(2)(b).
22 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011, 14 July 2005 at para [36].
23 Ibid, at para [48].
b) Mr Halliday’s history as an owner of the dog;
c) whether the dog had behaved this way in the past;
d) the steps that had been taken by Mr Halliday to prevent such an attack occurring, and
e) the reason why the steps taken by Mr Halliday did not prevent an attack on the occasion in question.
Those factors are intended to be indicative rather than exhaustive.
[23] Although in my earlier judgment on Ms Orr-Walker’s appeal, I held that post- offence considerations could not be taken into account in determining whether destruction was appropriate under s 57(3) of the Act, I endorsed the approach I took in Halliday,24 which involves the use of contemporary (ie at the time of the attack) and historical information.
[24] I return to the summaries put by Mr Borich to Judge Callander in oral and written submissions.25 If Ms Orr-Walker’s version of the facts were accepted by a Judge it might be open to say that the bite resulted from circumstances that justified exercise of the discretion not to order destruction. Sevi v Police26 is an illustration, in not altogether dissimilar circumstances, of a case in which a destruction order was not made.
[25] I am faced with a situation in which the Judge sentenced on the basis of facts he believed had been agreed but were the subject of dispute, without advising counsel for Ms Orr-Walker of the weight he might attach to disputed facts.27 It is easy to understand why the Judge proceeded as he did and I do not criticise him for the way in which he approached the destruction issue. However, in the absence of evidence about the disputed facts, it was not appropriate for the Judge to determine
outcome on the basis of the summary.
[26] On balance, I consider that I should recall my decision and make orders that will allow the destruction issue to be determined in the District Court, following a
disputed fact hearing.
24 See para [22] above.
25 See paras [10] and [12] above.
26 Sevi v Police HC Auckland CRI-2008-404-166, 11 August 2008 (Priestley J).
27 See para [17] above.
Result
[27] I recall my judgment of 17 April 2013. My dismissal of the appeal is set aside. In substitution, I allow the appeal and remit the question whether an order for destruction of the dog should be made under s 57(3) of the Act for reconsideration by a District Court, after a disputed fact hearing.
[28] There was no appeal by the Council against the order discharging Ms Orr- Walker without conviction. That order is not affected by my decision.
P R Heath J
Delivered at 2.00pm on 25 June 2013.
Solicitors:
Rice Craig, Papakura
Auckland Council, Auckland
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