Tito v The Waikato District Council HC Hamilton CRI-2008-419-62

[2008] NZHC 2645

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2008-419-62

JAINE TITO

Appellant

v

THE WAIKATO DISTRICT COUNCIL

Respondent

Hearing:         24 October 2008

Appearances: Ms S Green for Appellant

Mr S Corlett for Respondent

Judgment:      24 October 2008

(ORAL) JUDGMENT OF LANG J

[on appeals against conviction and sentence]

Solicitors:

Brookfields, Auckland

Counsel:

S K Green, Hamilton

TITO  V THE WAIKATO DISTRICT COUNCIL HC HAM CRI-2008-419-62 24 October 2008

[1]      Jaine Tito is the owner of a tan coloured American Pitbull Terrier, named

Junior Toto.

[2]      Ms Tito’s dog was classified as “dangerous” by the Waikato District Council under s 31(1) of the Dog Control Act 1996 (“the Act”) on 28 May 2007.    As a result, Ms Tito was not thereafter permitted to allow the dog to roam at large in an unmuzzled state.

[3]      The Waikato District Council contends that Ms Tito breached her obligations under the Act on two separate occasions in December 2007.

[4]      First, it contends that Ms Tito’s dog was responsible for attacking a cat at about 7.30 am on Saturday 15 December 2007.   On that occasion one of Ms Tito’s neighbours, Ms Lockey, was in her bedroom when she was alerted to something going on outside her house by the reaction of some of her pets that were within her house.    She looked out of her bedroom window and saw that her Persian cat had been  pinned to  the  ground  by a  tan  coloured  Pitbull  dog.      She  says  that  she recognised that dog as being from Ms Tito's property.    She says that she had seen the dog on a number of earlier occasions.   Ms Lockey then ran out of her house and chased the dog away.    She says that she saw the dog go into Ms Tito’s property across the road.   As a result of the attack, Ms Lockey’s cat required treatment by a veterinary surgeon including suturing under anaesthesia.

[5]      Ms Lockey reported the attack to the Waikato District Council on the same day.   At about 10.15 am that day an Animal Control Officer, Mr Bowler, visited Ms Lockey and took a statement from her.   He then visited Ms Tito.   She told him at that time that her dog was secured in an enclosure at the rear of her property, and she denied that it could have been involved in the attack on the cat at Ms Lockey’s property.

[6]      Three days later, on Tuesday 18 December 2007, another Animal Control Officer was in Smith Street, Huntly.    There he observed a large Pitbull dog in an unmuzzled and uncontrolled state.   He uplifted the dog and took it to the Pound in Ngaruawahia.   There the dog was scanned for a microchip, and was found to be Ms

Tito’s dog.   At that point the Council issued a notice of seizure and removal of the dog under the provisions of the Act.

[7]      Council officers interviewed Ms Tito on 20 December 2007 regarding these incidents.     She maintained, however, that her dog had not been involved in the attack on Ms Lockey’s cat.

[8]      As a result of the series of events that I have described the Council lodged three informations against Ms Tito alleging offences under the Act.   These included the offence of being the owner of a dog that had attacked a domestic animal.   It laid that charge under s 57(2) of the Act.   Conviction on a charge under s 57(2) requires the Court to order the dog in question to be destroyed unless exceptional circumstances  exist  in  relation  to  the  offence  that  warrant  the  dog  not  being destroyed: s 57(3).

[9]      The Council also laid a charge under s 33EC of the Act alleging that Ms Tito, as the owner of the dog, had allowed it to be at large on 15 December 2007 without being muzzled as required by s 33(E)(1)(a) of the Act.

[10]     Finally, the Council laid a further charge under s 33ECof the Act in relation to the incident on 18 December 2007 when the dog was found wandering at large in an unmuzzled state in Smith Street.

[11]     The charges were called for the first time before the Community Magistrate in the District Court at Huntly on 15 April 2008.   Ms Tito appeared on that date and all three charges were adjourned without plea until 13 May 2008.    On 13 May Ms Tito failed to appear, and the charges were adjourned for resolution by way of formal proof evidence on 2 July 2008.    On that date His Honour Judge Connell received affidavit evidence from Mr Bowler, Ms Lockey and Mr Murdoch.   These persuaded the Judge that all three charges had been proved beyond reasonable doubt.     He therefore entered convictions on each charge and also imposed monetary penalties on Ms Tito.   In addition, he made an order that the dog be destroyed.   He made that order as a consequence of the conviction on the charge laid under s 57(2) of the Act.

[12]     Ms Tito now appeals to this Court against both conviction and sentence.   She says that she was unable to attend the hearing on 13 May 2008 by virtue of the fact that she was on electronic bail on other charges and had been refused permission by the Electronic Bail Monitoring officer to attend Court on that date.    She says that she  has  therefore  not  had  an  opportunity  to  defend  the  charges,  and  that  a miscarriage of justice would occur if her dog was to be destroyed without her first having had that opportunity.

[13]     I am therefore required to determine whether or not Ms Tito’s claim that she was denied the ability to attend the hearing on 13 May 2008 can be sustained.    In order to resolve this issue I heard evidence both from Ms Tito and also from the electronic bail monitoring officer, Ms Limond.    I am satisfied, after hearing that evidence, that Ms Limond never denied Ms Tito permission to attend the Court hearing on 13 May 2008.   I reach that conclusion for several reasons.

[14]     First, I fail to see how any responsible person in Ms Limond’s position would ever deny a person who is subject to electronic bail the opportunity to appear at Court.    Secondly, Ms Limond confirmed that any such request by Ms Tito would readily have been granted.    Thirdly, it is apparent from the informations that, on

15 April 2008 at least, Ms Limond granted Ms Tito permission to attend the hearing of the first call of these charges in the Huntly District Court.

[15]     It seems to me that Ms Tito may well have lost interest in defending the present charges after they were called on 15 April 2008.   By that stage the Council had made it clear that it was seeking an order for destruction of the dog.     The possibility that Ms Tito may have decided not to take matters further is indicated by the fact that on 15 April 2008 Ms Tito telephoned Ms Limond after the Court hearing.   She asked permission from Ms Limond to be released from electronic bail in order to visit her dog for the last time at the pound.   She told Ms Limond that it was likely that the dog would be put down.   Details of that telephone conversation are recorded in a notebook entry that Ms Limond made on 15 April.   This suggests, as I have said, that Ms Tito may well have decided at that stage that she would not take matters further.

[16]     For these reasons I am satisfied that Ms Tito was not refused permission by

Ms Limond to attend the hearing on 13 May 2008.

[17]     The real issue that I need to determine, however, is whether a miscarriage of justice may have occurred in the present case.

[18]     I accept that Ms Tito may well have treated her obligations to the Court in a relatively cavalier manner.    In this context Mr Corlett referred me to a decision of McKenzie  J  in  Harris  v  Police  HC  Masterton  Registry  CRI  2004-435-14  21

September 2004.    In that case the appellant had pleaded not guilty to charges of behaving in a disorderly manner and addressing another person in a public place with words intended to offend.   The appellant in that case had failed to appear in the District Court when the charges were heard and then had failed to properly prosecute an application for a re-hearing.

[19]     In those circumstances McKenzie J took the view that the appellant had not accorded adequate importance to the proceedings, and he declined to interfere with the convictions that were entered against the appellant as a consequence.

[20]     I view the present case, however, as being in a somewhat different category. The ultimate result here, if the convictions are upheld, is that the dog will be destroyed.   That would, in my view, amount to a miscarriage of justice if Ms Tito’s dog was not in fact the dog that attacked Ms Lockey’s cat.    The issue is therefore whether there is a reasonable prospect that Ms Tito may be able to defend the charge laid under s 57(2) of the Act.

[21]     At first blush in any event, the prosecution case appears to be relatively strong.   Ms Lockey lives just across the road from Ms Tito.  She said in her affidavit that she recognises the dog as belonging to Ms Tito and she saw the dog go back to the front of Ms Tito’s address.

[22]     There are, however, other matters that suggest that a defence might be open to Ms Tito.   First, issues of identification always require caution.   Any judge who decides to base a case on the basis of eye-witness identification is required to pay

heed to the principle that an honest witness can be a mistaken witness, and that a mistaken witness can be a convincing witness.

[23]     Secondly, there is the fact that from the outset Ms Tito has maintained that her dog was not involved in the attack.

[24]     Thirdly,  Mr  Bowler  appears  to  have  accepted  that  proposition  when  he visited Ms Tito on 15 December 2007.    Faced with Ms Tito’s denial he did not at that time seek to seize the dog or to take it into custody using the powers that were undoubtedly available to him.   It is not clear, in fact, on the evidence whether or not he even asked to see Ms Tito’s dog which was allegedly secured at the rear of her premises.

[25]     Fourthly, there is the fact that Ms Tito’s property is apparently reasonably securely fenced with a corrugated iron fence.   There is also a gate that is said to be of a height that would prevent a dog from escaping.   For these reasons Ms Tito will argue that her dog was secure at all times and could not have escaped from the back yard.

[26]     Finally, Ms Tito points to the fact that there are approximately 30 dogs in her street.   There therefore exists the possibility that Ms Lockey is mistaken when she says that Ms Tito’s dog was the dog that attacked her cat.

[27]     All of these matters persuade me that the justice of the case requires the issue of the identification of the dog to be determined in the usual way, with evidence given both for and against the prosecution.    I am therefore satisfied that I should allow the appeal so far as it relates to the charges in respect of the events that allegedly occurred on 15 December 2007.   The convictions and penalties imposed in respect of those charges are quashed, and those informations are remitted to the District Court at Huntly for re-hearing.

[28]     The position is, however, different in relation to the incident that occurred on

18 December 2007.   There really can be no defence to the fact that the Dog Control

Officer found the dog wandering the streets of Huntly on that date.    No realistic explanation has been put forward by Ms Tito as to how that could have occurred.

[29]     For those reasons I am satisfied that the appeal must be dismissed so far as it relates to that information.   I make orders accordingly.

Lang J