Turner v South Taranaki District Council
[2015] NZHC 1869
•7 August 2015
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2015-443-19 [2015] NZHC 1869
BETWEEN IAN TURNER
Appellant
AND
SOUTH TARANAKI DISTRICT COUNCIL
Respondent
Hearing: 3 June 2015 Appearances:
Mr Turner appearing in person
J Marinovich for the RespondentJudgment:
7 August 2015
JUDGMENT OF MALLON J
Introduction
[1] Mr Turner brought a charge against the South Taranaki District Council (the Council) arising out of its care of his dog, Floyd.1 Floyd was in the Council’s care following charges against Mr Turner arising from an incident in which Floyd bit a person on the arm.2 The charge brought by Mr Turner was dismissed in the District Court for want of prosecution following Mr Turner’s non-appearance on the date
scheduled for hearing the charge.3 Mr Turner appeals from that decision.
1 The charges were brought under ss 10 and 12 of the Animal Welfare Act 1999 (maximum penalty of 12 months imprisonment or a fine not exceeding $50,000 or both), and s 72(1) of the dog Control Act 1996 (maximum penalty of a fine not exceeding $3,000). Pursuant to ss 14 and
15 of the Criminal Procedure Act 2011, any person may commence a criminal proceeding by filing a charging document in the District Court.
2 Dog Control Act 1996, ss 33EC(1) and (2) (maximum penalty of a fine not exceeding $3,000 and removal of the dog) and 57(2) (maximum penalty of a fine not exceeding $3,000 plus any liability for damage caused).
3 Turner v South Taranaki District Council DC Hawera CRI-2014-021-636, 11 February 2015.
TURNER v SOUTH TARANAKI DISTRICT COUNCIL [2015] NZHC 1869 [7 August 2015]
Background
[2] Floyd was a Great Dane. He was rescued from abuse and since then Mr Turner had looked after him for some five and a half years. Floyd was required to be muzzled when in public. The incident that gave rise to the charges occurred on 1 or
2 January 2013 when Floyd was being walked without a muzzle by a person who was boarding with Mr Turner. Mr Turner was convicted in the District Court on charges of owning a dog that attacked a person and not complying with appropriate restrictions (the requirement to be muzzled when in public). An order for Floyd’s destruction was also made. Mr Turner’s appeal was dismissed in the High Court on
2 July 2013.4
[3] As a result of these events, Floyd was in the Council’s care from 1 or 2
January 2013 until he was euthanized sometime after 2 July 2013, when Mr Turner decided not to pursue any further appeals out of concern for his dog’s well-being. By this stage Mr Turner was informed by Dr Dixon, a veterinarian, that:
… Over the last three weeks, Floyd’s body condition has deteriorated significantly … Floyd’s current environment is not conducive to his well being as it is neither warm nor dry. Floyd is a very aggressive dog in this environment and cannot be handled safely by those responsible for his care. There is no opportunity to house him in a better situation while he is impounded.
… in my professional opinion if Floyd continues to lose weight I will be advising euthanasia on welfare grounds. … Floyd’s welfare is my only concern and I have a legal obligation to ensure he does not continue to suffer because of circumstances he has no way of changing.
[4] From the outset Mr Turner was concerned at the conditions in which Floyd was being kept. By letter dated 13 January 2013 he sought the return of Floyd, stating that he considered that Floyd was not receiving the level of care he required and that Floyd was not a threat to the public while in Mr Turner’s care. This request was declined on the grounds of safety to the public and other animals. Mr Turner visited Floyd on 17 January 2013 and what he saw concerned him.
[5] Floyd was assessed a number of times by veterinarians over the next few
months. This included an assessment from a veterinarian of Mr Turner’s choice. In
4 Turner v South Taranaki District Council [2013] NZHC 1603, [2013] NZAR 1046.
each of these assessments Floyd’s body condition was graded as “light”. He was expending energy pacing and barking in his cage. Because of his aggression he was not being exercised outside of his cage. During this period Mr Turner’s requests to visit Floyd were declined on the grounds that the Animal Pound was a hazardous workplace and that members of the public could not be admitted to the Pound as a result.
[6] Mr Turner lodged the charging document against the Council in about September 2014.5 The offence was for breach of ss 10 and 12 of the Animal Welfare Act 1999 and s 71(2) of the Dog Control Act 1996. The offence was described as follows:
Persons in charge of an animal failing to ensure the physical health and behavioural needs of the animal that is in accordance with good practice and scientific knowledge.
[7] Following service of the document on the Council, a not guilty plea was entered on 7 October 2014. A case review hearing was scheduled for 19 November
2014. In anticipation of that hearing, the Council filed a memorandum contending that there was no case to answer. Mr Turner said he had not been served with that document. The matter was adjourned for argument on 16 December 2014.
[8] On 25 November 2014 Mr Turner wrote a letter to the Ministry of Justice requesting that Judge Roberts be recused from the case, which was to be heard on 16
December 2014. The letter set out the grounds on which Mr Turner considered that the Judge was biased against him and had predetermined the matter.
The no case to answer application
[9] The Council’s application to dismiss the charge came before Judge Ellis on
16 December 2014.6 The Judge commented that Mr Turner did not appear to have taken advice as to how relevant information was to be put before the Court in an
admissible form. He noted that the relevant veterinarians had not been subpoenaed
5 The date is not recorded. However I infer that it was on or shortly before 9 September 2014 because that was the first appearance date noted on the document. At that time Mr Turner was directed to re-serve the document, because there was no affidavit of service before the Court.
6 Turner v South Taranaki District Council DC Hawera CRI-2014-021-636, 16 December 2014.
or summonsed and Mr Turner’s case therefore depended on his knowledge of his dog and photographic evidence, and that he had not been allowed access to the pound to give his dog company and to convey to those responsible for Floyd’s care his knowledge of how the dog could be better handled, exercised, socialised and fed. There was no proposed evidence from an independent professional as to good practice and scientific knowledge concerning the dog’s physical health and behavioural needs.
[10] The Judge then said:
[11] Having heard Mr Turner in response to the submission of Mr Marinovich, I have to say and do so in open Court, that I am not prepared to find that there is no case to answer. It is not yet entirely clear to me what is the full extent of the case Mr Turner may be able to present to the Court, particularly once he has taken appropriate advice as to the means by which scientific information or information from any of the vets in question might be presented to and made admissible evidence in this proceeding.
[12] If he were to do that properly, then there is a possibility that there might be a case to answer and in those circumstances, I am not prepared peremptorily to dismiss the charge at this stage. That means it will need to proceed to a fixture date. The possibility that the charge might still be dismissed for want of a case to answer will of course remain alive until Mr Turner has in fact presented his case and a Judge has then considered whether he has made it out, but that will have to wait until a fixture date.
[11] The Judge therefore declined to grant the application of no case to answer and adjourned the matter for a hearing of the charge to 11 February 2015. This decision was given in open court in Mr Turner’s presence.
The application to dismiss for want of dismissal
[12] The hearing of the charge came before Judge Roberts on 11 February 2015. Mr Turner was not present. The Judge gave an oral ruling, setting out some of the procedural background, before stating:7
… Mr Turner had not been present all morning. The matters that I had involving counsel I gave priority. This matter was called at 12.25 pm and Mr Turner did not present. I have thus on the application of Mr Marinovich dismissed the charge for want of prosecution. It was ill-considered, without any relationship to the realities of admissible and permissible evidence and I am of the view, given the history as between Mr Turner and the council,
7 Turner v South Taranaki District Council, above n 3, at [6].
created largely by Mr Turner’s unwillingness to comply, that it is fringing on
vexatious.
[13] He also ordered costs of $1,500 in the Council’s favour.8 He did so because in his view the evidence Mr Turner relied on was “woefully inadequate”, Mr Turner was not someone who took proper steps to investigate matters suggesting the Council might not be guilty9 and was “unlikely to recognise that fact even if it punched him in the nose”, the investigation was generally not conducted in a reasonable and proper manner,10 and the prosecution was approaching demonstrable bad faith.11
The appeal grounds
[14] Mr Turner says that the Judge was wrong to dismiss the charge when he failed to appear. He says that the Judge should not have been hearing the charge given the recusal application that had been made. He says that he was not present in Court due to a mistake. He says that the case involves important issues and that he was in the process of submitting extra evidence.
[15] The Council submits that the Judge’s application of the relevant test was correct, that his reasoning was proper, there was no error or miscarriage of justice, and the judge had the statutory power to dismiss the charge.
Statutory power to dismiss
[16] The power to dismiss a charge where a defendant appears but the prosecutor does not is set out in s 131 of the Criminal Procedure Act 2011. That section provides:
131 Powers of court when prosecutor does not appear
(1) This section applies to any hearing if the defendant appears but the prosecutor does not.
(2) If the defendant is in custody or has been released on bail and the prosecutor has not had adequate notice of the hearing, the court must
8 Costs in Criminal Cases Act 1967, s 5(2)(b).
9 Section 5(2)(c).
10 Section 5(2)(d).
11 Section 5(2)(a).
adjourn the hearing to the time and place, and on the conditions, that it thinks fit to enable the prosecutor to appear.
(3) In any other case, the court may—
(a) dismiss the charge under section 147; or
(b) adjourn the hearing to a time and place, and on any conditions, that the court thinks fit.
[17] This was a situation to which s 131(3), rather than s 131(2), applied. Therefore the Judge had a discretion to dismiss the charge under s 147, or to adjourn the hearing. The Judge decided upon the former, which meant that s 147 applied. That section provides:
147 Dismissal of charge
(1) The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
(2) The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.
(3) A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.
(4) Without limiting subsection (1), the court may dismiss a charge if—
(a) the prosecutor has not offered evidence at trial; or
(b) in relation to a charge for which the trial procedure is the Judge-alone procedure, the court is satisfied that there is no case to answer; or
(c) in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.
(5) A decision to dismiss a charge must be given in open court.
(6) If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.
(7) Nothing in this section affects the power of the court to convict and discharge any person.
[18] In this case the Judge said he was dismissing the charge for “want of prosecution”. It might be argued that this was within s 147(4)(a), although in this
case Mr Turner wished to adduce evidence but failed to attend Court to do so. In any event, the grounds in s 147(4) are not exclusive. A dismissal for want of prosecution is within the Court’s discretion under s 147(2). Under s 147(6), the dismissal gives rise to a deemed acquittal.12
[19] A trial court’s decision to dismiss a charge under s 147 may be appealed on a question of law with leave of this Court.13
Assessment of appeal
[20] Although a dismissal under s 147 is discretionary, it can be challenged where (amongst other things) relevant considerations were not taken into account or irrelevant considerations were taken into account.14 Here the Judge dismissed the charge because Mr Turner had failed to appear, Mr Turner had not considered what relevant evidence he could adduce, and Mr Turner’s conduct towards the Council was verging on vexatious.
[21] As a dismissal for want of prosecution now gives rise to a deemed acquittal, an application should not be granted too readily if delay is the only concern. Relevant considerations include the extent of the delay, the reasons for it and the merits, so far as they can be gauged, of the prosecution.
[22] As the background above shows, the history from filing the charge to the hearing was not prolonged. Mr Turner’s failure to appear at the hearing was the first time he had failed to appear in relation to this proceeding. It does not appear that any attempt was made by the registry to contact Mr Turner by telephone or email to see if there was a reason for his non-attendance as sometimes happens when a failure to appear is unexpected. The Judge does not appear to have taken into account these
matters.
12 This differs from a dismissal of an information in the previous summary jurisdiction. Under that jurisdiction a dismissal did not act as a bar to future proceedings unless the dismissal was on the merits. See Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Westlaw NZ) at [CPA 147.03].
13 Criminal Procedure Act 2011, s 296.
14 See Adams on Criminal Law, above n 12, at [CPA296.07(1)]; R v Lutomski CA212/02, 28
August 2002 at [14]; Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51]; and E v Home Secretary [2004] EWCA Civ 49 at [42].
[23] The Judge did not take into account whether Mr Turner may have had an explanation for not attending that was worth considering. There was nothing to suggest that Mr Turner had lost interest in prosecuting the matter. A genuine mistake on Mr Turner’s part or some emergency was the likely reason for his non-attendance absent any other information. Mr Turner has since explained to this Court that he did not appear by mistake. He had expected to receive a formal notice of the hearing date. He was also anticipating a response to his recusal application.
[24] The Judge purported to take into account the merits of the prosecution. In doing so he noted that he had earlier indicated to Mr Turner that his case had difficulties and that he could not tender hearsay evidence to the Court but that “[n]eedless to say, that went above Mr Turner’s head.” He commented that Judge Ellis “indulged” Mr Turner, giving him the opportunity until the allocated hearing date to get his evidence in order “but even then I gather the Judge was of the view the charge was likely to flounder”. As set out above, he described the charge as ill- considered, lacking in reality as to the evidence that could be admitted and as verging on vexatious.
[25] I am not sure why Judge Roberts thought that Judge Ellis considered the charge was likely to flounder if the evidence was put in order. Judge Ellis did not say so in his decision. Judge Ellis was concerned that Mr Turner did not know how to put admissible evidence before the Court, but was not prepared to dismiss the charge having heard from Mr Turner.
[26] When Judge Roberts dismissed the application he appears to have assumed, without hearing from Mr Turner, that he was no further advanced in the evidence he intended to adduce. Mr Turner was, albeit mistakenly, under the impression that he would receive a response to his recusal application and formal notification of the hearing date. He says he was still working on his evidence when Judge Roberts dismissed the charge in his absence.
[27] In my view it was an error to assume that Mr Turner was not able to present admissible evidence. His own knowledge supported by his photographs and his efforts to gain access to the pound to assist in the care of his dog was relevant
evidence. The reports from the veterinarians were potentially admissible with the Council’s consent in an agreed bundle, or witness summons/subpoenas could be issued.
[28] The Judge considered that the charge was ill-considered and bordering on vexatious. However Mr Turner’s concerns about the care his dog received appear to be genuine. The correspondence supports this. The responsibilities of the Council when a dog is in its custody and care raise not unimportant issues. A charge brought against the Council may not be the best forum to consider these matters, but Mr Turner’s conduct in prosecuting the charge does not seem to have caused any real difficulties for the Court or the Council, beyond that which is ordinarily experienced when a person does not have legal representation. At the moment, therefore, I am unable to see the basis for the Judge’s comments.
[29] For these reasons I consider that the Judge failed to take into account relevant considerations and took into account irrelevant considerations in dismissing the charge. This was an error of law in exercising his discretion. I therefore quash that decision.
[30] Turning to Mr Turner’s recusal application, it is apparent that the Judge was aware of this and that he considered there to be no merit in it. I say this because the Judge noted that comments he had made were viewed by Mr Turner as “yet a further indication of my bias toward him” and the Judge also made mention of “the independent Judge that he so earnestly sought” when discussing whether to order costs in the Council’s favour.
[31] I am not able to form a view on whether earlier interactions between Mr Turner and the Judge provided sufficient grounds for recusal. I do not have details of the earlier interactions which had led to the application. Certainly it is the case that rulings made against a litigant in the past do not provide sufficient grounds in and of themselves. Similarly, heated exchanges between the bench and counsel or litigants ordinarily do not provide sufficient grounds in and of themselves. A Judge is able to bring an impartial mind to the matter before him or her, notwithstanding that there may be some such prior court dealings with a person who is again before
the Judge. That said, there are one or two comments in the Judge’s ruling that indicate a particular view of Mr Turner, that might trouble a fair minded lay observer informed of the facts if the Judge were to hear this particular matter, even though the Judge is able in fact to be impartial. In the circumstances it may be appropriate for another Judge to hear the matter. I leave that with the Judge to consider further.
Result
[32] Leave to appeal on a question of law is granted. The order dismissing the charge is quashed. As a consequence the award of costs of $1,500 is also quashed. The charge is referred back to the District Court for hearing.
Mallon J
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