Phelps v South Wairarapa District Council
[2014] NZHC 2630
•24 October 2014
IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY
CRI-2014-435-9 [2014] NZHC 2630
BETWEEN JOHN EDWARD PHELPS
Appellant
AND
SOUTH WAIRARAPA DISTRICT COUNCIL
Respondent
Hearing: 21 October 2014 Counsel:
J K W Blathwayt for Appellant
C Stanley and K J Paterson for RespondentJudgment:
24 October 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 24 October 2014 at 1.30 pm, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
WCM Legal, Carterton for Appellant
Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent
PHELPS v SOUTH WAIRARAPA DISTRICT COUNCIL [2014] NZHC 2630 [24 October 2014]
Introduction
[1] Mr Phelps was convicted in the District Court on 10 counts of failing to implant a microchip transponder in each of 10 dogs owned by him. He now appeals against conviction and sentence.1
Facts
[2] Mr Phelps lives on a 121 acre holding near Greytown. He is the owner of 23 dogs, 10 of which are the subject of these proceedings. Of the ten, nine are Pekingese and one is a Jack Russell terrier. Under s 36A(2) of the Dog Control Act
1996 (the Act), dogs that were registered for the first time on or after 1 July 2006 must be implanted with a microchip transponder. The owner is required to make the dog available for verification that it has been implanted with a microchip transponder. Alternatively, the owner can provide a certificate from a veterinarian certifying either that the dog has been implanted with a microchip transponder or that the dog is not in a fit condition to be so implanted. Registered working dogs are exempt from this requirement, and instead wear an identifying collar, label or disc. Under s 2 of the Act, the definition of a “working dog” includes a dog kept solely or principally for the purposes of herding or driving stock.
[3] In the District Court, Mr Blathwayt, on behalf of Mr Phelps, argued that each of the subject dogs were working dogs and therefore did not need to be microchipped. Mr Phelps, in his evidence, outlined how the dogs assist him from time to time with the movement of sheep on his property and in the shearing shed. He produced a series of photographs, in which he is riding on a quad bike in paddocks, on a driveway, or adjacent to the house. Some of the photographs show sheep nearby or being moved into another paddock. The quad bike is equipped with a small dog cage on the front platform, in which two Pekingese are contained, and the Jack Russell and a cat are riding on the back of the bike. The evidence variously given by Mr Phelps during the defended District Court hearing about the nature of
the work that the Pekingese carry out was as follows:
1 South Wairarapa District Council v Phelps DC CRI-2013-035-0851, 2 April 2014.
JOHN EDWARD PHELPS – EVIDENCE IN CHIEF
A. [Referring to photographs] This shows us here mustering sheep. They are on a four-wheeler bike.
Q. And how do they take part in the mustering? A. Well, by barking.
…
A. … And they’re also used in the woolshed as backing dogs to bring the sheep up for the shearing.
…
A. … we don’t use them for cattle.
…
A. To assist in the movement of the stock.
A. … they’re – they are bringing – herding sheep up into the corner to take them to a gate there, and that’s just carrying them on the bike itself.
…
CROSS-EXAMINATION
Q. … how many sheep do you have on your property?
A. … At the moment there’s probably 50 or 60.
…
Q. You said … that the dogs assist you in herding sheep by barking, was
that correct?
A. That’s correct. The same as a truck driver has a dog, as I was saying,
to load a stock truck.
Q. And what training have these dogs received in the art of sheep herding?
A. Well, they’ve been trained by me. How do you mean training? Do you mean sent away to a school or something?
Q. My understanding is that sheepdogs on farms are often trained –
…
Q. - to be able to muster sheep?
…
Q. … we could see your cat in one of the photographs?
A. … that volunteered.
Q. … the cat sometimes assist in herding the sheep as well? A. …
Q. Now, when you say these dogs are assisting you with the sheep herding, are they always on the four wheel quad bike with you?
A. No, not always. Sometimes, as I say, I have them at the rear of the woolshed when we’re shearing or crutching sheep, and they – we have them at the back of the shed to assist in bringing the sheep up towards the shearing – where they are shorn.
…
A. No, a lot of the time they’re in the cage. In the cage, barking from the cage. The same as when they’re in the woolshed. They’re up on a shelf, a clip-on cage that goes at the back of the shed, to bring them forward.
Q. … are any of those used as breeding stock?
A. Um, possibly.
[4] Judge Tomkins rejected this evidence as capable of supporting the reasonable possibility that the 10 dogs in question were kept “solely or principally” for the purposes of herding or driving stock. In this regard, the Judge found that:2
… Pekingese dogs are not, and – throughout their 2000-or-so-year history – have not been regarded as working dogs in the sense that that phrase is used in New Zealand and as defined in section 2 of the Dog Control Act. … the physical constraints of the breed, their diminutive size, their lack of specific stock handling training … their long hair, and their relative inability to move at a speed equated to that of energetic sheep over long distances, all combine to point out the sheer ridiculousness of asserting that Pekingese dogs are kept by the defendant solely or principally for the purpose of herding or driving sheep.
[5] The Judge also relied to some extent on the hesitant concession by Mr Phelps that at least some of the subject dogs were kept for breeding purposes.
2 At [10].
Appeal against conviction
[6] Mr Phelps’ appeal is against the Judge’s finding that he was guilty of the
10 infringement offences. For the purposes of an appeal, such an appeal is treated as if it were an appeal against conviction. Pursuant to s 232 of the Criminal Procedure Act 2011 an appeal against conviction will be allowed if the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has resulted, or if for any reason, a miscarriage of justice has occurred. Miscarriage of justice is defined in s 232 as any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity
[7] The appeal was advanced on three grounds. First, that there was no evidence before the Court upon which the Judge’s comments in relation to the history and physical constraints of the Pekingese breed could be based. Second, that the Judge had failed to give proper weight to the acknowledgment by the dog control officer that he was unable to say the dogs were not used as working dogs. Third, that the Judge failed to give proper weight to the evidence of the appellant as to the use of the dogs as working dogs.
[8] In his helpful written and oral submissions, Mr Blathwayt amplified these grounds of appeal, emphasising that the Judge did not have before him evidence that established the dogs were not working dogs. Mr Blathwayt submitted that the Judge had not expressly rejected Mr Phelps’ evidence or given any reasons as to why he was not accepting of Mr Phelps’ evidence. In support, Mr Blathwayt pointed to the following passage from paragraph [10] of the judgment, in which the Judge said:
Indeed, while recognising that the defendant does not carry the burden of proof, I have concluded in this case that the assertion by the defendant that his Pekingese are working dogs in the context of the Dog Control Act is nonsensical and entirely artificial.
[9] Mr Blathwayt referred also to aspects of the evidence which he contended precluded the Judge from finding the respondent had discharged its onus of proof to establish that the dogs were not in fact used by Mr Phelps for the purposes of mustering and handling sheep on his smallholding. He referred to the photographs,
showing two of the dogs being used for mustering sheep, their role being to bark from their cage on the front of the quad bike as part of the process of mustering. He referred to the assistance also provided by the dogs, while in their cage, in shearing, crutching or any other function being undertaken in the shearing shed. He said there was no evidence to suggest that if a farm working dog is used for breeding purposes, it ceases to be a farm working dog for that reason. The evidence that the dogs were used in a particular way which made their physical limitations irrelevant, was the real question the Judge did not address when finding the Council had discharged the burden of proof.
[10] Mr Blathwayt referred also to the absence of expert evidence as to the capabilities of Pekingese dogs or of Jack Russell Terriers. The evidence from the dog control officer was that, given the Pekingese breed is not a working dog breed, the Council had the right to ask for proof and evidence that these particular dogs were being used as working dogs, because of the question mark over the breed’s ability to perform working dog duties. Mr Phelps had not provided such evidence when requested and the dog control officer was unable to simply enter Mr Phelps’ property without invitation, having been served with a trespass notice prohibiting him from entering property owned by Mr Phelps. Thus the Council had encountered difficulties in obtaining proof and evidence that Mr Phelps’ dogs were principally used as working dogs.
[11] In his evidence, the dog control officer had explained why the Council felt it necessary to ask Mr Phelps for proof that the dogs for which he was claiming an exemption were working dogs:
A. – the Council feels that the defendant’s dogs are lap dogs, toy dog type
dog, toy dog breeds, and aren’t suited to – to work – being a working
– doing working dog duties.
Q. And so was Council’s decision based solely on the breed information
that you were given, or something else as well?
A. And also the amount of dogs that were trying – that were being registered as working dogs for the size of the property. For a 100 acre block of land, 23 working dogs seemed excessive.
Discussion
[12] While there was no ‘expert’ evidence as to the capabilities and history of the Pekingese breed, the history of the breed and its original purpose is well-documented and well-understood. The physical constraints of the breed are obvious, not only from the photographic evidence before the Court, but also from the restricted manner in which Mr Phelps necessarily has to deploy them. The photographic evidence supports the evidence of the dog control officer, that the Council’s view of Pekingese dogs as lap dogs or toy dogs that are ill-suited to performing the duties of a working dog is well-founded. The dogs, contained as they are within the cage on top of the quad bike, are not performing the role of a working dog in herding or moving stock, as envisaged under the Act.
[13] Nor, given the size of Mr Phelps’ acreage and the size of the flock, can it be seriously contended that this could be the sole or principal purpose for which these
10 dogs are kept. The further fact that only two of the subject nine Pekingese can be accommodated in the cage at any one time to assist in moving stock, further reduces the likelihood that herding or driving stock is the principal purpose for which the 10 dogs are kept. The photographs are telling evidence and, in conjunction with the evidence of the dog control officer, give rise to open inferences that satisfy the burden of proof.
[14] The criticism that Judge Tompkins did not provide reasons for his findings finds no traction when regard is had to the findings in paragraph [10], which in the preceding two paragraphs I have observed to be well-founded.
[15] It follows that I am satisfied none of the grounds of appeal are made out, despite the arguments so ably presented by Mr Blathwayt.
Appeal against sentence
[16] Mr Blathwayt submitted that the fines imposed by the Judge were contrary to the totality principle and did not take into account that the offending was not intentional. Mr Blathwayt further contended that the underlying purpose of
microchipping, to enable dogs to be identified, had not been frustrated by the
offending because the dogs have never left Mr Phelps’ property.
[17] For the Council, Ms Stanley submitted there were no mitigating factors. Mr Phelps had been given the opportunity by Judge Tompkins, via a lengthy remand prior to sentence, to have the dogs microchipped. He had not done so. She said that, had he done so, that would have counted as a substantial mitigating factor. To the contrary, prior to sentencing, Mr Phelps had attempted to again register the dogs for the current financial year as working dogs, despite Judge Tompkins’ determination on that issue. This was treated as an aggravating factor by Judge Tomkins in sentencing.
[18] However, Mr Phelps had the right to appeal against the determinations of the District Court, which he has done, and this could be regarded as having a staying effect, as opposed to Mr Phelps simply ignoring the effect of the Court’s determination. He is not to be penalised for exercising his right of appeal. That having been said, there is evidence of a degree of obstructiveness on the part of Mr Phelps toward the Council and the dog control officer during the history of this matter. For instance, Mr Blathwayt accepted in oral submissions that Mr Phelps had been informed by the Council in 2011 that the Council did not consider the dogs to be working dogs.
[19] Judge Tompkins imposed the maximum fine available in respect of each charge, being $300. In addition, he imposed costs in the sum of $226 per infringement for each of the infringements relating to the 10 dogs. A direction was made pursuant to s 77 of the Dog Control Act that half of the fine should go to the informant.
[20] While there has been a degree of obstruction and persistence on the part of Mr Phelps, these infringements are essentially first offences. Should he persist in the future, that situation may alter.
[21] In the circumstances I have come to the view that the total fine is manifestly excessive and ought to be reduced. Accordingly, I quash the fines of $300 imposed
on each of the 10 infringements and in lieu impose fines of $100 on each of the infringements. The costs orders imposed remain, as does the direction made by Judge Tompkins pursuant to s 77 of the Dog Control Act.
Conclusion
[22] The appeal against conviction is dismissed. The appeal against sentence is allowed. The fines imposed are quashed and in lieu fines of $100 on each of the infringements is imposed. The costs imposed remain, as does the direction made by Judge Tompkins pursuant to s 77 of the Dog Control Act.
Goddard J
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