S v S
[2017] NZHC 1584
•10 July 2017
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2017-443-2 [2017] NZHC 1584
BETWEEN IAN BASIN TURNER
Appellant
AND
SOUTH TARANAKI DISTRICT COUNCIL
Respondent
Hearing: 2 May 2017 Counsel:
Appellant in Person
J M Marinovich for RespondentJudgment:
10 July 2017
JUDGMENT OF ELLIS J
[1] This is an application for leave to a appeal on a question of law by Mr Turner, who was unsuccessful in his prosecution of the South Taranaki District Council under the Animal Welfare Act 1999 (the AWA) in the District Court.1
[2] Mr Turner adopts rescue dogs – dogs that have been abused – and cares for and trains them. One of these dogs was a Great Dane named Floyd. Floyd required skilled handling, but Mr Turner knew what he was doing. Although Floyd had no history of attacks, the Council classified him as menacing in November 2010, for reported threatening behaviour. A menacing dog must be muzzled in public.
[3] Mr Turner also rescues people. And so it was that he came to take in a
boarder, Mr Ian Schrider. It seems that Mr Schrider had a few “issues” and was not
wholly reliable or responsible.
1 Turner v South Taranaki District Council [2017] NZDC 495.
TURNER v SOUTH TARANAKI DISTRICT COUNCIL [2017] NZHC 1584 [10 July 2017]
[4] In early January 2013 Mr Schrider took Floyd and another Great Dane out for a walk. He used a long, rather than a short leash, giving him less control over the dogs. Floyd was not wearing his muzzle even though Mr Turner said he had told Mr Schrider that it was required.
[5] While walking home, Floyd bit a passerby on the arm. Floyd was impounded. Mr Turner was later convicted of being the owner of a dog that attacked a person, and with allowing Floyd to go unmuzzled in public. And because Floyd committed an “attack”, the Dog Control Act 1996 required him to be destroyed, in the absence of exceptional circumstances.
[6] Mr Turner’s appeals against his conviction for owning a dog that made an attack and against the destruction order failed.2 On 3 July 2013, the day after Miller J’s decision in the appeal, Mr Turner accepted that Floyd would have to be destroyed.
[7] By the time of Floyd’s death he had been living for six months at the South Taranaki District Council Dog Pound. The conditions there were far from ideal for a dog like Floyd, especially on a long term basis. It seems likely that being in a bare cage caused him to become aggressive; he routinely tore up his bedding. Those who worked at the Pound were unable to handle him and he could not be exercised. It was thought he could not safely socialise with other dogs. He lost weight and condition, even when his food intake was increased. He was fed nutritional high energy biscuits instead of the meat he was used to. Come winter, his cage was cold and poorly protected from the elements. Mr Turner was, understandably, very distressed. He tried, but largely failed, to get the Council to take steps to ameliorate the situation, although vets were called.
[8] Mr Turner then brought a private prosecution against the South Taranaki
District Council for failing Floyd under s 12 of the Animal Welfare Act 1999 (the
AWA).
2 Turner v South Taranaki District Council [2013] NZHC 1603, [2013] NZAR 1046. The appeal against conviction for allowing Floyd to go unmuzzled in public was allowed, on mens rea grounds.
[9] On 9 January 2017, Judge Lynne Harrison found that the prosecution was not made out because the Council had taken all reasonable steps to comply with its s 10 obligations and thus had a defence under s 13 of the AWA.
[10] Mr Turner now seeks to appeal that decision.
The statutory provisions
[11] Section 12 of the AWA relevantly provides that:
A person commits an offence who, being the owner of, or a person in charge of, an animal,—
(a) Fails to comply, in relation to the animal, with section 10[.]
[12] And s 10 states:
The owner of an animal, and every person in charge of an animal, must ensure that the physical, health, and behavioural needs of the animal are met in a manner that is in accordance with both—
(a) good practice; and
(b) scientific knowledge.
[13] The term “physical, health, and behavioural needs”, in relation to an animal,
is defined in s 4 of the AWA to include—
(a) proper and sufficient food: (ab) proper and sufficient water: (b) adequate shelter:
(c) opportunity to display normal patterns of behaviour:
(d) physical handling in a manner which minimises the likelihood of unreasonable or unnecessary pain or distress:
(e) protection from, and rapid diagnosis of, any significant injury or disease,—
being a need which, in each case, is appropriate to the species, environment, and circumstances of the animal.
[14] Matters of defence are dealt with in s 13, which provides that:
(a) in a prosecution for an offence against section 12, it is not necessary for the prosecution to prove that the defendant intended to commit an offence; but
(b)it is a defence in any prosecution for an offence against section 12 if the defendant proves that it took all reasonable steps to comply with section 10, provided that the defendant has delivered to the prosecutor a written notice stating that the defendant intends to rely on the defence and specifying the reasonable steps that the defendant will claim to have taken.
District Court hearing and Judge Harrison’s decision
[15] At the trial Mr Turner summoned three witnesses:
(a) Dr Dixon, one of the three vets who were consulted by the Council about Floyd;
(b) Mr Phillips, an animal control officer who worked at the pound; and
(c) Mr McKenzie, Group Manager of Environmental Services at the
Council.
[16] He also gave his own evidence in the form of an affidavit and orally. [17] The Council did not call any witnesses.
[18] The Judge made the following key findings:
(a) Floyd’s condition was regularly monitored by pound staff and vets; (b) expert vet opinion was provided;
(c) although Floyd’s condition deteriorated during his stay at the pound at
one point it also improved;
(d)Mr Turner’s vet did not express any specific concerns nor make any particular recommendations to improve the situation; and she confirmed that his condition was no worse in May 2013 than it had been four months earlier;
(e) staff sought the assistance of a vet when they noticed Floyd’s
deterioration;
(f) Floyd was provided with proper and sufficient food and water;
(g)he was given adequate shelter until June 2013, when it became inadequate because it was winter and he had lost condition;
(h)he was not able to display normal patterns of behaviour, and was unable to be safely physically handled except when he was sedated;
(i)his temperament was a critical limiting factor to what was available in terms of housing, bedding, his ability to be handled, exercised and socialised; and
(j)Mr Turner’s unwillingness to accept Floyd’s predicament resulted in him staying much longer at the pound that would otherwise have been the case.
[19] Accordingly, the Judge found that the charge of animal cruelty was not made out. The Judge was satisfied on the basis of the evidence that the council attended properly to Floyd’s welfare and it took all reasonable steps in the circumstances to meet his physical, health and behavioural needs, in light of the circumstances and environment.
The requirement for leave and the appeal
[20] Because Mr Turner was the prosecutor, and the council was acquitted, he has no general right of appeal. The only way in which he can bring an appeal is by obtaining the leave of this Court to appeal on a question of law under s 296 of the Criminal Procedure Act 2011. Section 298 requires a notice of application for leave to appeal to be made within 20 working days of the relevant decision. The notice must state the relevant question of law.
[21] Mr Turner did not file such a notice. Rather, he filed a notice of general appeal. That notice was filed within 20 days of Judge Harrison’s decision. The stated grounds of appeal are:
The Judgment and Decision were reached without proper regard to all the evidence presented[. For] example Environment (v) and (vi) following that the pictorial evidence I used and my questions re diet are not considered nor are a number of other issues.
[22] The mention here of (v) and (vi) appears to be a reference to paragraph [15](v) and (vi) of Judge Harrison’s judgment in which she summarised part of Mr Turner’s argument thus:
(v) That Floyd was fed an inadequate diet of Tux dog biscuits. Floyd had been used to a diet of meat, milk, water and dog biscuits. It was put to Dr Dixon under cross-examination by Mr Turner whether a change of diet was ever suggested by adding meat to the biscuits. Dr Dixon replied:
I personally would not have recommended that. Meat is not a complete diet. We recommended a high energy food for Floyd. Furthermore we would not recommend meat. It is a completely unbalanced part of the diet. In the wild dogs are carnivores. They have a balanced diet from eating guts, bones, and skin.
(vi) Nor was Dr Dixon able to recommend Floyd’s diet contained bones.
He would not recommend bones because of the serious health issues that could arise such as constipation particularly in a dog who was
cage confined and not able to be taken out and exercised.
[23] Prior to the hearing, Mr Turner also filed a more detailed statement in which he identified further specific paragraphs in the Judge’s decision with which he took issue. All of the points made were factual in nature. In terms of the Council’s “best endeavours” defence Mr Turner’s principal point was that the Council could have
done more to care for Floyd by improving the conditions under which he was kept and arranging visits from either Mr Turner himself or an animal expert “to socialise and exercise” Floyd.
[24] The law is clear that “questions of law” for the purposes of s 296 must raise
one or more of the following errors:3
(a) a misdirection of law apparent in a decision (or a “conventional legal question on unchallenged facts”);
(b) oversight of a relevant matter, or consideration of an irrelevant matter;
and
(c) a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[25] The first option is clearly not on the table here. All the matters raised by Mr Turner are factual in nature. And while the second and third type of legal error do admit limited challenges on the facts, I was unable to identify any which might qualify here. The fundamental point is that Mr Turner simply disagrees with either aspects of the evidence given by his own witnesses (for example Mr Dixon’s views about appropriate diet) or with the Judge’s evaluation of the evidence that was before her. So notwithstanding the vehemence with which Mr Turner’s own views on those matters are held, he was unable to persuade me that there was any clear-cut error in her approach or in her conclusions. The fact that there is room for differences of opinion cannot amount to legal error. Even on the most generous approach I do not consider the threshold for leave was met here.
[26] Even if I am wrong in that, however, the unfortunate reality is that a Council-run pound, which is not designed to house dogs in the medium to long term, is not equipped to give dogs the level of care that loving and expert dog-owners such
as Mr Turner can in their own homes. Nor is it realistic to expect the Council to
3 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
accede to an impounded dog owner’s request that he (or some outside expert) be permitted to come into the pound to care for his dog over some considerable period of time.
[27] I acknowledge that a dog owner whose dog has been made the subject of a destruction order will often be put in the unpalatable position of having to leave their dog impounded while they pursue their appeal rights. Mr Turner’s position was particularly difficult because of the particular challenges that Floyd’s care and management presented. But the wider policy considerations underlying the way in which the Act deals with dangerous dogs are obvious. So while I accept entirely that Floyd’s care was less than optimal and sympathise with Mr Turner’s distress I would be unable to accept Mr Turner’s submission that there were other things that the Council should reasonably have done to better meet its s 10 obligations in the present case.
Conclusion
[28] In formal terms, although I am prepared to treat Mr Turner’s notice of general appeal as an application for leave to appeal, the leave threshold is not met and the application is declined accordingly. But as I hope is clear from my discussion above I would not have been able to find in favour of Mr Turner even had leave been
granted.
Rebecca Ellis J
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