Smith v Whanganui District Council
[2017] NZHC 1560
•7 July 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI-2016-483-17 [2017] NZHC 1560
BETWEEN GRAHAM DAVID SMITH
Appellant
AND
WHANGANUI DISTRICT COUNCIL Respondent
Hearing: 19 July 2016, 3 April 2017 Counsel:
Appellant in Person
P Drake for RespondentJudgment:
7 July 2017
JUDGMENT OF ELLIS J
[1] Mr Smith sought to appeal against his conviction and sentence for three charges under ss 53 and 57(3) of the Dog Control Act 1996 (the DCA).1 The matter was first called before me for directions some considerable time ago.
[2] Most of the judgment which follows repeats the contents of a minute sent out to the parties on 3 April 2017. In it, I expressed the hope that, in light of its contents, Mr Smith might accept that his proposed appeal was futile and could be abandoned.
But he felt unable to see his way to that course and so a judgment is required.
1 The appeal was filed out of time.
SMITH v WHANGANUI DISTRICT COUNCIL [2017] NZHC 1560 [7 July 2017]
Background
[3] The charges giving rise to Mr Smith’s conviction related to an incident in December 2015 where his two dogs (Jedi and Cocoa) were involved in a fatal attack on a cat, Sparkles. Jedi and Cocoa had been in trouble before, having been impounded in October 2015, again for attacking a cat.2
[4] As a result of the December attack, Jedi and Cocoa were again impounded. A notice of retention under s 71 of the DCA was issued. Mr Smith sought to have the dogs released, as s 71(4) entitled him to.
[5] The Council has delegated the hearing and determination of DCA matters to a committee known as the Statutory Management Committee (the SMC). It was the SMC that dealt with the application for release and the other DCA matters which I refer to later. My perception is that difficulties can arise because of the parallel Council and Court processes. That difficulty here appears to have been exacerbated by the fact that Mr Smith was represented by different lawyers in relation to each of the processes.
[6] In any event, on 18 February 2016 the SMC met. Mr Smith and his lawyer, Mr Parker, were in attendance. The SMC declined Mr Smith’s release application.
[7] On the same day Mr Smith was served with the charging document. [8] In March 2016, Mr Smith was trespassed from the pound.
[9] Mr Smith was represented by Mr Jamie Waugh in relation to the criminal charges. Although Mr Smith was adamant that the dogs had been chained up and that someone must have set them loose on the day Sparkles was killed, Mr Waugh’s advice was that this would not constitute a tenable defence. That advice appears to
me to have been quite correct.
2 Both were classified as menacing by breed by virtue of s 33C of the DCA. There has been previous litigation between Mr Smith and the Whanganui District Council about the consequences of dangerous dog ownership: Smith v Wanganui District Council HC Wanganui CRI-2008-483-000031, 1 April 2009.
[10] It is logical to suppose that Mr Waugh’s advice would have been taken into account by Mr Smith when pleading guilty. But I accept that his principal motivation for doing so was an agreement that had been reached between Mr Waugh and the Council that only one of the dogs, Jedi (considered by Mr Smith to be the prime offender), would be destroyed.
[11] It is not disputed that such an agreement was reached and it was reflected in Mr Smith’s sentencing on 19 April 2016; Judge Cameron ordered the destruction of Jedi only. Cocoa would therefore remain in the pound until Mr Smith could uplift her. But this could not occur until he paid the outstanding pound fees which amounted to a little over $1,000.
[12] What, it seems, was not known to Mr Smith at the time he entered his pleas was that the Whanganui Council would immediately exercise its powers under the DCA to:
(a) declare Cocoa a dangerous dog under s 33ED of the DCA; and
(b) ban Mr Smith from owning a dog for five years under s 25 of the
DCA.
[13] It seems that those decisions were made on 20 April 2016. Their effect was that, in order to uplift Cocoa, Mr Smith would have to find another owner for him who was capable of complying with the conditions of dangerous dog ownership. Unless he could do that (and pay the pound fees) Cocoa’s life was also in jeopardy.
[14] On 27 April Mr Smith filed an objection to the s 25 disqualification decision. In early June he was later advised that his objection would be heard by the SMC on
16 June.
[15] Jedi was euthanized on 26 May 2016.
[16] On 13 June 2016 Mr Smith also filed an appeal against his conviction and sentence. It is apparent from the notice that Mr Smith believed at that time that Jedi
was still alive.3 The grounds of appeal were essentially that he was misled into pleading guilty and that, in making the further decisions at [11] above the Council had (effectively) failed to comply with the Judge’s sentence.
[17] The SMC hearing on 16 June was adjourned as there was no appearance on behalf of Mr Smith. On the same day the Council wrote to Mr Smith advising him of the current pound fees owing and that he had the option of finding a new home for Cocoa, provided all the conditions relating to her dangerous dog status were met. The letter did not tell Mr Smith how long he had to make those arrangements or to pay the pound fees.4 A further trespass notice was also sent to Mr Smith on that day.
[18] The notice of appeal was provided to the Council on about 17 June. The appeal was acknowledged by Mr Smith as being out of time. He advised in the notice that he was unable to get legal representation and his former lawyer was not returning his calls. On the same day Mr Waugh advised the Council that he had no instructions from Mr Smith.
[19] On 20 June Mr Smith was advised that the SMC hearing would reconvene on
7 July at 8.45 am.
[20] On 28 June Cocoa was put down, pursuant to s 69(2) of the DCA, which provides:
As soon as practicable after any dog has been impounded, the territorial authority shall, in the case of a dog wearing a current registration label or disc or where the owner of the dog is known through some other means, give written notice to the owner that the dog has been impounded and that unless the dog is claimed and any fee paid within 7 days of the receipt of that notice, it may be sold, destroyed, or otherwise disposed of in such manner as the territorial authority thinks fit; and after the expiry of that period the territorial authority may so dispose of the dog.
3 That is consistent with the chronology provided by the Council, which indicates he was not
advised of Jedi’s destruction until 20 June.
4 The letter did not advise Mr Smith of a date by which the fees were required to be paid (it simply stated that “Once all impounding and sustenance fees have been paid he can be released from the pound”). I do not know, but accept as possible, that the accompanying impounding notice (which listed the outstanding fees) advised Mr Smith that he had seven days to pay, in accordance with s 69(2) of the DCA (set out at [20] below).
[21] On 5 July Mr Smith had a lengthy telephone call with Mr Waugh in which he blamed Mr Waugh for what had transpired. Mr Waugh denied responsibility and maintained that Mr Smith had only instructed him in relation to the criminal charges, not his wider dealings with the Council. Mr Waugh also understandably expressed his dismay at the criticisms made of him in Mr Smith’s notice of appeal (which Mr Waugh had seen).
[22] When the SMC reconvened on 7 July, Mr Smith did not appear at the appointed time.5 The Committee determined to uphold the disqualification notice in his absence. The Council says that Mr Smith arrived after that decision had been made and the meeting had ended (nearly an hour late).
The call before me on 19 July
[23] Mr Smith was self-represented at the call on 19 July. He had been advised by the Registry that the purpose of the call was to ascertain what it was he wanted to achieve by his intended appeal. It was only through discussion with him and with Mr Drake that the narrative I have set out above began to emerge. In large part, however, that narrative is based on material filed by Mr Smith and the Council after the hearing.
My minute of 3 April
[24] I said in my April minute that, in all the circumstances as I now understood them to be, there seemed to be no point in permitting Mr Smith’s appeal to continue or to grant him leave to bring it out of time. I expressed the hope that he might be able to derive some small satisfaction from having the above series of unfortunate events formally recorded in some detail. I said that unless he advised the Registry within five working days that he wished to pursue the matter further (noting that I could not see how that was possible) the appeal will be formally dismissed without
the need for further call.
5 Mr Smith says that the meeting actually took place on 4 July.
Mr Smith’s response
[25] Mr Smith complied with my minute by way of emailed letter to the Registry. In it, he continued to express his dismay about what had happened. That is understandable. He did not, however, address the critical questions, which is what this Court could now do to help him or why his appeal should be permitted to be brought.
Comment and conclusion
[26] I record at the outset that I have no doubt that, although Mr Smith is clearly an animal lover, he can be a difficult man to deal with.
[27] I also record that, because leave to appeal has not yet been granted Mr Waugh has not been given any opportunity to be heard in relation to the matters concerning him that are sought to be raised by Mr Smith. There are formal procedures that Mr Smith would need to follow in the event that he wishes, and was permitted, to pursue an appeal on counsel competence grounds. But on the basis of the quite full material that has now been made available to me I feel able to accept and expressly record in this judgment that Mr Waugh’s advice to Mr Smith about the criminal charges was appropriate. I also record my clear view that Mr Waugh had no instructions in relation to Mr Smith’s other dealings with the Council. There is nothing in the material provided to indicate that he knew or should have known of the further steps that the Council took the day after Mr Smith’s conviction and sentence.
[28] So the real difficulty for Mr Smith is that the principal purpose of his intended appeal has been defeated by events. What he sought to achieve by it (keeping his dog alive) is not now possible. That difficulty is compounded by the fact that the merits of the appeal do not, in any event, favour him. As I have said, I do not consider that Mr Smith has advanced any basis upon which blame could conceivably be laid at the feet of Mr Waugh. And even on Mr Smith’s own account, he had no defence to the charges. Had it not been for the “deal” cut with the Council
the sentencing Court would almost certainly have ordered Cocoa to be destroyed in any event.6
[29] That said, however, the timeline I have set out above is not a happy one, especially as it relates to Cocoa.
[30] First, I am inclined to accept that Mr Smith would not have pleaded guilty had he known what the Council would do the following day. Although I am unable to conclude that the Council had an obligation to advise Mr Smith about that, it is also not difficult to understand his sense of grievance.
[31] Secondly, the destruction of Cocoa before the hearing of Mr Smith’s objection (which plainly affected his ability to secure Cocoa’s release) or his appeal does not strike me as best practice, however slim his chances of success (on either front) were perceived to be.
[32] That being said, however, neither of those matters is able to be addressed in any formal way in the context of Mr Smith’s proposed against conviction and sentence. So nothing that Mr Smith has raised persuades me that there would be any point or merit in granting him leave to appeal out of time. Leave is denied
accordingly.
Rebecca Ellis J
6 On conviction of an offence under s 57(2) (being the owner of a dog that attacks a domestic animal), s 57(3) of the DCA requires the Court to order the destruction of the dog “unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog”.
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