Tauranga City Council v Fraser

[2022] NZHC 2884

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2022-463-000110

[2022] NZHC 2884

IN THE MATTER OF

Section 58 of the Dog Control Act 1996

BETWEEN

TAURANGA CITY COUNCIL

Applicant

AND

HELEN TINA FRASER

Respondent

Hearing:	3 November 2022 (Heard at Rotorua)
Appearances:	N A Speir for Applicant Respondent in person
Judgment:	3 November 2022

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:

Rice Speir, Auckland

Copy to:

Ms H T Fraser

TAURANGA CITY COUNCIL v FRASER [2022] NZHC 2884 [3 November 2022]

Introduction

[1]    The applicant, the Tauranga City Council (the Council), seeks the Court’s leave to appeal a reserved judgment given by Judge I D R Cameron in the District Court at Tauranga on 12 July 2022.1

[2]The application for leave is opposed by the respondent, Helen Fraser.

Background

[3]    Ms Fraser is the owner of a Rottweiler dog named Chopper. On 14 October 2021, Chopper attacked Dr Liza Schneider, a veterinarian in Tauranga. Dr Schneider suffered a serious injury as a result of the attack.

[4]    Ms Fraser was charged pursuant to s 58 of the Dog Control Act 1996. It was alleged that she was the owner of a dog that had attacked a person causing serious injury.

[5]    At the time, Ms Fraser was represented by counsel and there was a large measure of agreement between counsel for both parties. Both agreed that the elements of the offence had been made out and that, because the offence was one of strict liability, the sole issue for trial was whether or not Ms Fraser could establish the defence of total absence of fault. Counsel signed a joint memorandum recording this.

[6]    The matter proceeded to trial. Judge Cameron reviewed the evidence presented to him and he canvassed the circumstances in which Ms Fraser had taken Chopper to the veterinary clinic and in which the attack occurred. Relevantly, the Judge stated as follows:

[21]      In cross-examination, Ms Fraser agreed with Mr Speir for the Tauranga City Council that had Chopper remained in the vehicle the risk of an attack would have been lessened. She also agreed that in hindsight she regretted leaving her son Billy with the dog while she went into the clinic to return paperwork and to enquire as to the delay. Despite this, an objective assessment of the situation is required so as to determine who had the effective control of the situation and from what point. I find that the circumstances were that Dr Schneider, a very experienced veterinary surgeon of some

1      Tauranga City Council v Fraser [2022] NZDC 12499.

22 years, was confronted with a situation where a new client had not followed the clinic’s instructions to keep her dog in the car until assessed for safety purposes. Dr Schneider had never met or seen the dog before. Dr Schneider knew at the very least that the dog was unpredictable with other dogs. The very purpose of having the dog in the car was to ascertain whether the dog could be safely let out of the vehicle or would require sedation before so doing. The evidence establishes that knowing that the clinic’s safety plan had not been followed, Dr Schneider chose not to speak to Ms Fraser or her son Billy about returning the dog to the car or alternatively muzzling the dog. Instead, Dr Schneider walked past Ms Fraser and got between her and Billy and the dog, masked and speaking in a loud voice. I agree with Ms Fraser’s opinion that these factors are likely to have spooked the dog. Dr Schneider walked directly to a point some two metres away from Chopper. Chopper then lunged at Dr Schneider twice and fastened his jaws around her forearm, causing serious injuries. Billy held onto the lead but the dog was too strong to be held on a tight lead. At no time while in the carpark prior to the attack had Chopper shown any signs of aggression whatsoever. I accept the evidence of Ms Fraser that Chopper was sitting quietly on a lead being held by her 13 year old son Billy.

[22]      In the result, I consider that Dr Schneider was responsible for determining how the situation should be handled from the moment she walked out of the clinic and saw Chopper out of the car. From that point she was in a position to take appropriate steps to maintain and exercise control. She failed though to take any steps to maintain and exercise control, despite having every opportunity to do so. Had she done so, the incident would have been avoided. I consider that Dr Schneider put herself in a position where she was vulnerable to attack by a dog who had not been assessed for safety purposes.

[23]      Thus the defence of total absence of fault is established, and the charge is dismissed.

(Citations omitted.)

The Council’s application

[7]The Council seeks leave to advance the following question on appeal:

Did the Judge’s finding that the victim was in effective control of the situation at the time of the attack lead the Court into error in its assessment of the total absence of fault defence.

Analysis

[8]    Leave is required pursuant to s 296 of the Criminal Procedure Act 2011. There is a right of appeal against a ruling by a trial Court, but only with leave and only on a question of law. The question of law must arise either in proceedings that relate to or follow the determination of the charge, or in the determination of the charge (including

where there is an acquittal). The question of law must not be one that arises from a jury verdict or arose before the trial and has already been decided.

[9]    It is a prerequisite to an application for leave that a person is charged with an offence. Here, this criterion is met. As noted, Ms Fraser was charged pursuant to s 58 of the Dog Control Act. Further, an application for leave must be in relation to a question of law arising from a ruling by the trial Court. Here, the Judge ruled on the application of the defence of total absence of fault. He found that the defence had been made out and he acquitted Ms Fraser.

[10]   The question that the Council wishes to advance on appeal appears to raise an issue of law – in essence whether, on the factual findings made by the Judge, the defence of total absence of fault was open to Ms Fraser. The Council seeks to argue that the Judge misdirected himself in law as to the availability of the defence, that he took into account irrelevant considerations and failed to take into account relevant considerations. These matters raise issues of law.2

[11]   Having heard today from Mr Spier for the Council and from Ms Fraser in person, in my judgment, it is appropriate to grant the Council leave to appeal. First, the case attracted a significant amount of public interest at the time. There are a number of people in Court today and the hearing is being covered by the media. The public interest in this matter does not seem to have abated. Secondly, the proposed question of law raises an issue of general importance. There have been a number of cases seeking to challenge findings made by the Courts in relation to various of the provisions in the Dog Control Act, in particular, findings made in relation to those provisions in the Act that create offences of strict liability. The only defence to such offences is the total absence of fault defence. There is a public interest in clarifying the nature and availability of this defence.

[12]   Accordingly, I grant leave to the Council to raise the proposed question of law on appeal.

2      Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].

[13]   At my request, Mr Spier and Ms Fraser liaised. I make the following directions by consent:

(a)the appeal is to be heard in the High Court at Tauranga on 2 March 2023 at 10.00 am – estimated time, two hours;

(b)the Council and Ms Fraser are to liaise and agree a common bundle of documents. If there is any dispute, the same is to be referred to the Court by way of telephone conference for direction;

(c)the Council is to file and serve the common bundle of documents and its submissions on or before 3 February 2023;

(d)Ms Fraser is to file and serve her submissions on or before 17 February 2023;

(e)leave is reserved to the parties to seek an amendment to this timetable should the same prove necessary.

[14]   Mr Spier and Ms Fraser should note that the dates given in [13](c) and (d) are slightly different from those given in open Court. Unfortunately, the calendar I used in open Court was a 2022 calendar.

Wylie J