Shepherd v Auckland Council - [2018] NZSC 25

IN THE SUPREME COURT OF NEW ZEALAND

SC 6/2018
[2018] NZSC 25

BETWEEN	ORLANDO SHEPHERD Applicant
AND	AUCKLAND COUNCIL Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	Applicant in person R J A Marchant for Respondent
Judgment:	27 March 2018

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is allowed.

B The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Shepherd was charged, under s 58 of the Dog Control Act 1996, with owning a dog that attacked his young son causing serious injury. He pleaded guilty but, prior to sentencing, sought to withdraw that plea. That application was dismissed.[1] He was later sentenced to 300 hours’ community work and 12 months’ supervision.[2]
[1]Auckland Council v Shepherd [2016] NZDC 22570 (Judge Eivers).
[2]Auckland Council v Shepherd [2017] NZDC 4354 at [21] per Judge Eivers.
Mr Shepherd’s appeal against conviction was dismissed by the High Court.[3] Mr Shepherd seeks leave to appeal directly to this Court against the High Court decision. This is on the basis that his guilty plea was entered on, what he submits was, a mistaken assumption that the offence was a strict liability offence. Mr Shepherd seeks to argue that there is a mens rea element for the offence, requiring knowledge of the dog’s propensity to attack. Mr Shepherd’s application for leave to appeal is out of time.
[3]Shepherd v Auckland Council [2017] NZHC 1660 (Downs J).
The Council opposes Mr Shepherd’s application for an extension of time to appeal. It also submits that the proposed appeal does not give rise to an issue of general or public importance and that there is no risk of a miscarriage of justice because:
(a)the law is settled that s 58 is a strict liability offence; and
(b)in any event, Mr Shepherd would be guilty even if there was a mens rea element because he had recognised that there was a real possibility that his dog could attack someone. He had previously posted on Facebook about the dog’s aggressiveness and had been warned by the previous owner not to leave the dog alone with children.
Mr Shepherd had, within time, filed an application for leave to appeal to the Court of Appeal. He says that he abandoned that application and immediately filed the application for leave to appeal to this Court because the Court of Appeal had recently determined that s 58 is a strict liability offence.[4] The Court would therefore have declined leave and there would then have been no further right of appeal to this Court.

Our assessment

[4]Referring to Walker v Nelson City Council [2017] NZCA 526; and Epiha v Tauranga City Council [2017] NZCA 511, [2017] NZAR 1664.

As pointed out by the Council, the decisions of the Court of Appeal referred to by Mr Shepherd relate to s 57 and not s 58 of the Dog Control Act.[5] This means that it was not inevitable that the Court of…

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: [2018] NZSC 25
Decision Date: 27 March 2018

CaseChat Overview and Summary

In the case of Shepherd v Auckland Council, the applicant, Mr Orlando Shepherd, sought an extension of time and leave to appeal against his conviction and sentence for owning a dog that attacked his young son, causing serious injury. The case was heard in the Supreme Court of New Zealand by Justices William Young, Glazebrook, and Ellen France. Mr Shepherd pleaded guilty to the charge under s 58 of the Dog Control Act 1996 but later sought to withdraw his plea, which was dismissed. He was subsequently sentenced to 300 hours of community work and 12 months' supervision. Mr Shepherd's appeal against conviction was dismissed by the High Court, and he now seeks leave to appeal directly to the Supreme Court. He argues that his guilty plea was based on a mistaken assumption that the offence was a strict liability offence, whereas he now believes there is a mens rea element requiring knowledge of the dog's propensity to attack.

The legal issues before the court were whether Mr Shepherd's application for an extension of time to appeal was justified and whether the proposed appeal raised an issue of general or public importance that warranted leave to appeal. The Auckland Council opposed Mr Shepherd's application, arguing that the law was settled that s 58 is a strict liability offence and that Mr Shepherd would still be guilty even if there was a mens rea element, given his prior knowledge of the dog's aggressive tendencies. The court had to consider whether Mr Shepherd's decision to withdraw his application to the Court of Appeal, following recent Court of Appeal decisions on s 57, provided a valid reason for the out-of-time application to the Supreme Court. The court also had to assess whether there was a risk of a miscarriage of justice.

The court found that, although the recent Court of Appeal decisions related to s 57 and not s 58, Mr Shepherd's decision to withdraw his application to the Court of Appeal in light of those decisions did provide a valid reason for the out-of-time application to the Supreme Court. However, the court also considered that Mr Shepherd had chosen to plead guilty after receiving legal advice and that, based on the agreed facts, he would have been convicted even if there was a mens rea element in s 58. Therefore, there was no risk of a miscarriage of justice. The court concluded that the application for an extension of time to appeal was granted, but the application for leave to appeal was dismissed. The court made no comment on whether there was a mens rea element in s 58 but noted that the High Court had consistently held it to be a strict liability offence, and its purpose of public protection suggested it should be so.

Orders