Turner v South Taranaki District Council
[2013] NZHC 1603
•2 July 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2013-443-015 [2013] NZHC 1603
BETWEEN IAN BASIL TURNER Appellant
ANDSOUTH TARANAKI DISTRICT COUNCIL
Respondent
Hearing: 30 May 2013
Counsel: Appellant in person
J M Marinovich for Respondent
Judgment: 2 July 2013
JUDGMENT OF MILLER J
Introduction
[1] Mr Turner owns a Great Dane, Floyd, which has been classified as menacing. On 1 or 2 January 20131 he permitted his boarder, Ian Schrider, to walk Floyd and another Great Dane. Mr Turner did not normally permit Mr Schrider to walk the dogs. He says that he specifically instructed Mr Schrider on this occasion that they must be muzzled and kept on a short leash, and that people must not be permitted to approach them.
[2] Mr Schrider did not muzzle the dogs, he let them off the leads to exercise in a park, and he had them on long leads on the walk home, when Floyd bit and wounded
a passing pedestrian.
1 The precise date is in dispute, but nothing turns on it; the date is not an essential particular of the charge, and the incident itself is not disputed.
TURNER v SOUTH TARANAKI DISTRICT COUNCIL [2013] NZHC 1603 [2 July 2013]
[3] The Council charged Mr Turner with being the owner of a dog that attacked a person, and with allowing the dog in public unmuzzled. The District Court Judge convicted him and ordered that Floyd be destroyed. He brings this appeal from the latter order. After discussion at the hearing, and for reasons which will become apparent, I have treated it as an appeal against conviction too.
The narrative
[4] Mr Turner acquired Floyd some 5½ years ago as a rescue dog, meaning that the dog had been abused. For this reason, as Mr Turner accepts, Floyd wants skilled handling. The dog has no prior history of attacks, but in November 2010 the Council classified him as menacing for reported threatening behaviour. A menacing dog must be muzzled in public.
[5] The facts of the attack are not in dispute. The victim and his wife were walking on Bridge Street, Eltham, when Mr Schrider rounded a corner with the two dogs. As the victim walked past, Floyd bit him once, on the arm. The resulting laceration required medical attention. Mr Schrider tried to walk on. He reluctantly gave Mr Turner’s details when confronted.
[6] The Council charged Mr Turner with being the owner of a dog that attacked a person, contrary to s 57(2) of the Dog Control Act 1996, and allowing the dog in public without being muzzled, contrary to s 33E(1). He responded that the dogs were not under his direct control and Mr Schrider had failed to comply with his express instructions for walking them. He was convicted at a defended hearing on
26 February, and the Judge ordered that Floyd be destroyed.
[7] Mr Schrider is one of a number of young people who Mr Turner has taken in over the years to help them deal with their personal problems. For reasons I need not go into, Mr Schrider is said to have problems with attention and memory. Mr Turner does not consider him reliable; specifically, Mr Turner would not normally allow him to walk the dogs. He was allowed to do so on this occasion because Mr Turner had just returned from Auckland and needed rest before the two men went to watch stock car races in Palmerston North. Mr Turner insists that he specifically instructed
Mr Schrider to muzzle both dogs and keep them on a short leash at all times, ensuring that no one approached; the latter instruction was given, he told me, because they are large dogs and “people can complain and get me into trouble”. He did not check that Mr Schrider had fitted the muzzles; Mr Schrider was unsure whether he would walk the dogs at all, and eventually did so some time after Mr Turner had retired to bed. Mr Turner gave evidence to this effect at the hearing.
[8] Mr Schrider confirmed in his evidence that he had been told the dogs must be kept on a tight leash and muzzled. Unfortunately for Mr Turner, the Judge found Mr Schrider an unconvincing witness who had tried to synchronise his evidence with that of Mr Turner, only to fail. Mr Schrider conceded that on no prior occasion had he seen the dogs muzzled, including when he accompanied Mr Turner on a walk, and he could not describe the muzzles.
[9] However, the Judge recorded no finding about whether Mr Schrider was told to muzzle the dogs. He held rather that Mr Turner ought to have muzzled them himself or been present when Mr Schrider did so. If the convictions or the destruction order were to rest on Mr Turner’s instructions the only safe course would be to direct a rehearing.
[10] The Judge found nothing in the circumstances of the offence that was in any way exceptional. Dealing first with the attack, he found that Floyd was menacing but not muzzled, and had attacked without provocation. Turning to Mr Turner’s longstanding history as a dog owner, he held that no adverse comment could be made, although Mr Turner’s response to Floyd’s classification had been less than wholehearted, for he was in the habit of letting the dogs run unmuzzled when exercising them in the country. Further, a responsible owner would not have delegated the muzzling to a boarder.
[11] The Judge accordingly fined Mr Turner $750 with court costs, and ordered Floyd’s destruction. On the charge of allowing the dog in public unmuzzled he ordered that Mr Turner pay the impounding and sustenance fee of $630.
The offence of owning a dog that committed an attack
[12] The offence is found in s 57 of the Dog Control Act 1996, which commences in subsection (1) by authorising any person to seize or destroy a dog that the person witnesses attacking any person, stock, poultry, domestic animal, or protected wildlife. This power may be exercised only for the purpose of stopping an attack.
[13] The owner of a dog that makes such attack commits an offence and is liable on summary conviction to a fine not exceeding $3,000, in addition to liability that he or she may incur for damage caused by the attack.2 The only act required of the defendant for such prosecution to succeed is that he or she be the dog’s owner. Liability is strict; to escape conviction an owner must establish total absence of fault on the balance of probabilities.3
[14] An owner who left the dog in the care of another may be able to show total absence of fault by proving that the carer had been told of any antisocial tendencies known to the owner, and that the owner had done everything reasonably possible to ensure the carer was a responsible person with skills and resources fit for the task of controlling the dog.4 King v South Waikato District Council supplies a striking example; in that case the owner had been charged when her dog Jimbo attacked another dog after the Council had impounded Jimbo for mauling a rabbit.
[15] “Owner” receives an extended definition, meaning relevantly every person who owns the dog or has it in his or her possession, whether the dog is at large or in confinement.5 Several points may be made about this definition. First, it includes anyone who owns the dog in law. Such a person enjoys the usual incidents of ownership, which relevantly include rights to possess, manage and dispose, and
correlative obligations to care for the animal and prevent harm to others.6
2 Section 57(2). The Act also provides that the owner is liable in damages for damage done, without necessity for proof that the dog had a propensity for mischief, or that the owner knew of any such propensity, or that the damage was due to the owner’s neglect: s 63. So it excludes any need to prove scienter in civil proceedings, and with it the “one bite” principle, under which an owner might be excused civil liability for a first attack on the assumption that domestic dogs are not naturally dangerous.
3 King v South Waikato District Council [2012] NZHC 2264, [2012] NZAR 837 at [26]-[28].
4 Ibid at [34].
5 Dog Control Act 1996, s 2.
6 Tony Honoré “Ownership” in A G Guest (ed) Oxford Essays on Jurisprudence (Oxford
[16] Second, the definition includes someone who has the dog in his or her possession. I take “possession” to have its normal meaning in criminal law, namely that the defendant knowingly had actual or potential physical control of a thing in circumstances showing that he or she assented to being in control. Under the Act possession does not depend on the dog actually being in confinement or under control at any given time. On the facts, Mr Schrider was an owner as defined, for he had chosen to assume control of the dog in order to exercise it in public.
[17] Third, “owner” includes every person who fits the definition. So Mr Turner and Mr Schrider were both owners when Floyd made the attack. Both men might have been charged. Mr Schrider was not.
[18] Fourth, the Act imposes stringent obligations upon dog owners without distinguishing between those who own dogs in law and those who merely possess them. For example, every owner of a dog must ensure that it is registered, exercised and cared for.7 Every owner must ensure that when the dog is on land or premises occupied by the owner it is either under the direct control of a person or confined to the land or premises.8 Every owner must carry a leash when with the dog in a public place.9 Every owner must ensure that the dog is kept under control at all times, and every owner must take all reasonable steps to ensure that the dog does not injure, endanger, intimidate or otherwise cause distress to any person or stock etc.10
[19] Fifth, although these obligations attach to every owner some apply more readily to an owner in law than to a person in immediate possession, and vice versa. The Act does not preclude a court from recognising that when assessing the circumstances of any given offence.
[20] Returning to s 57, a court in proceedings under subsection (2) must order the
dog’s destruction if “satisfied that the dog has committed an attack described in subsection (1)”, unless:11
University Press, Oxford, 1961).
7 Section 5.
8 Section 52A.
9 Section 55.
10 Section 5.
11 Section 57(3).
the court is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
[21] Several points may be made about s 57(3) destruction orders. First, the District Court “must” make an order, absent exceptional circumstances, once satisfied that the dog committed the attack. “Committed” suggests purposeful action. “Attack” is undefined, but the Act distinguishes among attacks and “rushing at” and worrying, and it insists that dogs that have attacked be muzzled in public,12 suggesting as one would expect that attacks usually involve actual or attempted biting. Physical contact between dog and victim will suffice so long as it results from deliberate aggressive action.13 The legislation thus recognises that dogs are sentient creatures, and that from a dog’s perspective contact need not always signify hostility. There may also be explanations for an attack; the dog may have acted from defensive or protective causes, or bad handling. The owner often pleads, as Mr Turner did, that the dog did not attack in earnest or without cause, or that it was
somehow not at fault. But although s 57(3) requires an attack, it prefers the perspective of the general public to that of the dog or its owner: absent exceptional circumstances the attack must lead to the death of the dog.
[22] Second, a destruction order does not depend on the owner being convicted under s 57(2). It suffices that the dog committed an attack.14 Section 57(3) does speak of “the offence”, but without requiring a conviction as a prerequisite to destruction. It is the circumstances that matter, as I explain below. It is easy to think of circumstances in which a person prosecuted as owner might establish his or her total absence of fault, yet fail to excuse the dog’s attack.
[23] Third, the court must make an order unless satisfied that the circumstances of the “offence” were exceptional. The defendant’s ownership is an element of the offence, so the legislation contemplates, as a matter of construction, that there may be something relevantly exceptional about it. As Heath J explained in the leading
judgment, Halliday v New Plymouth District Council,15 the legislation formerly
12 Section 62.
13 Jack v Manukau City Council HC Ak M 1698/99 14 December 1999, Randerson J.
14 To this extent, I respectfully decline to follow King v Waikato District Council, above n3, at
[32].
15 Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005
spoke of the circumstances of the “attack” and still does in s 58, which creates the graver offence of owning a dog that causes serious injury. The change to “circumstances of the offence” allows a court to take into account circumstances not only of the attack but also of the owner and the dog.16 They may extend to the dog’s history and any features of the offence that affect the likelihood that it will attack again.17 These circumstances must exist at the time, meaning that an owner cannot alter the circumstances of the offence by transferring ownership afterward.18 I would add that relevant circumstances may include those of the owner in law where the defendant merely had the dog in his possession, as would have been the case had
Mr Schrider been charged instead of Mr Turner.
[24] Fourth, “exceptional” sets a high standard. The circumstances must be unique, special or substantially unusual, although not necessarily extreme.19 Heath J held in Halliday that relevant factors indicatively include the nature and severity of the attack, the owner’s and the dog’s respective histories, the precautions that the owner had taken against an attack, and the reasons why those precautions failed.20
[25] Fifth, it is not enough that the circumstances of the offence are exceptional. They must also not warrant destruction of the dog. The dominant consideration here is the risk that the dog will continue to exhibit antisocial behaviour. In the nature of things a dog will not better itself, so a court must examine the risk that it presents and the precautions that the owner has taken to prevent any future attack or any display of other antisocial tendencies. The more antisocial the dog by breed or disposition the less likely it must be that a court will prove willing to rely upon the owner’s skills and security measures. With respect to the latter consideration, the Act provides incomplete guidance in s 26(3), which deals with objections to the disqualification as a dog owner that ordinarily follows conviction under s 57(2). Relevant considerations in that case include the circumstances and nature of the offence, the competency of the person objecting as a responsible dog owner, and any
steps taken by the owner to prevent further offences.
at [12].
16 At [42].
17 At [45].
18 Halliday v New Plymouth, above n14, at [43].
19 Halliday v New Plymouth, above n14, at [40].
20 At [48].
This case
Mr Turner’s conviction
[26] Mr Turner maintains that he was in no way at fault, for he delegated the task of walking the dogs to Mr Schrider and gave him appropriate instructions that would have prevented the attack, had Mr Schrider only followed them. It is for this reason that his appeal was extended to conviction.
[27] As noted above, Mr Turner might establish total absence of fault by proving on the balance of probabilities that he had ensured Mr Schrider was a responsible person who understood Floyd’s antisocial tendencies, knew the dog must be muzzled, and possessed the skills and resources needed to handle the task delegated to him.
[28] I will assume, for the reasons given at [9] above, that Mr Turner told Mr Schrider that Floyd must be muzzled and kept on a short leash. Mr Schrider plainly knew of Floyd’s menacing tendencies. The question is whether Mr Schrider was to Mr Turner’s knowledge an appropriate person to whom to delegate the task of walking not just Floyd but another Great Dane too. The second dog would make the task more onerous were it to distract the handler or affect the first dog’s behaviour.
[29] To answer the question, there is no evidence that Mr Schrider possesses the necessary skills and experience. He did not normally walk the dogs. Mr Turner would not permit it, for he does not consider Mr Schrider reliable. Knowing of Mr Schrider’s attention and memory issues, he went to some pains to give clear instructions, but he failed to ensure that Mr Schrider followed them.
[30] In the circumstances Mr Turner could not show on the balance of probabilities that he was totally without fault. I think the Judge approached the case in essentially the same way. I am not prepared to quash the conviction.
The destruction order
[31] The next question is whether the circumstances of the offence were exceptional. I agree with the Judge that there is nothing at all exceptional about the circumstances of the attack itself; a menacing dog was in public unmuzzled; it bit someone. If there is anything notable about the attack, it is Mr Schrider’s attempt to escape responsibility by walking on.
[32] Turning to the circumstances of the owner, Mr Turner is an experienced dog owner with a good record who keeps his dogs well secured, exercised and cared for. Floyd is registered, neutered and microchipped. I am prepared to assume that Mr Turner normally muzzles the dog when he expects to encounter other people in public. As the Judge noted, however, Mr Turner does not agree with Floyd’s classification and his compliance has been grudging; he plainly resents Council staff, and he conceded in the District Court that he does not use a muzzle when exercising Floyd in the country.
[33] The immediate explanation for the attack is that Mr Schrider failed to follow instructions. That is a relevant circumstance. But I have just held that it does not establish total absence of fault given Mr Schrider’s known unreliability. For the same reason I cannot accept that his failure to follow Mr Turner’s instructions amounts to exceptional circumstances.
[34] Turning to the circumstances of the dog, Floyd has no previous history of attacks and this attack was not persistent or vicious but, Mr Turner’s protests notwithstanding, the dog’s classification evidences an antisocial disposition and the attack confirmed it. The victim did nothing to startle or provoke Floyd. As noted, Mr Turner properly accepts that Floyd needs careful handling. There is no reason to suppose that Floyd would not attack or menace other people or dogs given the opportunity.
[35] It follows that there are no exceptional circumstances of the offence. I agree with the Judge, albeit for slightly different reasons, that Floyd must be destroyed.
The offence of allowing a menacing dog to be without a muzzle in public
[36] The owner of a dog classified as menacing:21
...must not allow the dog to be at large or in any public place or in any private way, except when confined completely in a vehicle or cage, without being muzzled in such a manner as to prevent the dog from biting....
[37] The Judge simply recorded a conviction for this offence without discussing its elements. He may have assumed that it too is an offence of strict liability. There are no cases on the point.
[38] A court ordinarily presumes that mens rea is an element of any criminal offence, but the presumption may be displaced where the offence regulates public welfare.22 In such a case the Court may hold that on proof of the prohibited act the prosecutor has prima facie established the offence, but allow the defendant to escape conviction by proving on the balance of probabilities that he or she took all reasonable care. Liability will be excluded where the defendant reasonably but
mistakenly believed in facts which would establish reasonable care, and also where he or she knew the facts but had done all that a reasonable person would do to prevent the offence.23
[39] The offence in s 33E confronts the owner’s behaviour, unlike that in s 57(2), which confronts the dog’s. The phrase “must not allow” carries the action. Like its synonym ‘permit’, ‘allow’ in its ordinary meaning implies knowing action.24 The cases are divided, however, on whether it imports mens rea at all, and if so what sort of knowledge the prosecution must prove. Most depend very much on the statutory setting.25 I will not survey the cases.26 The proposition I draw from them is that in a regulatory setting such as this one, ‘allow’ normally connotes actual knowledge of
what is being allowed (or wilful blindness), which is tantamount to acquiescence.
21 Section 33E(1)(a).
22 Millar v MOT [1986] 1 NZLR 660; Civil Aviation Department v MacKenzie [1983] NZLR 78, (1983) 1 CRNZ 38 (CA).
23 R v City of Sault Ste Marie (1978) 85 DLR (3d) 161
24 JLJ Edwards Mens Rea in Statutory Offences (MacMillan & Co Ltd, London, 1955) at 156-163.
25 Notably in New Zealand, see McKnight v NZ Biogas Industries Ltd [1994] 2 NZLR 664 (CA).
26 James & Son Ltd v Smee [1954] 3 ALL ER 283; R v Bezzina (1994) Cr App R 356; Vehicle Inspectorate v Nuttall [1999] 3 ALL ER 833 (HL); Kingborough Council v Bester [2003] TASSC 30.
Mere negligence will not do. The prosecution must establish such knowledge if the defendant puts it in issue.27
[40] It follows that the offence in s 33E is one of implied mens rea. I do not think that the statutory object requires a different conclusion. The offence by its nature addresses a specific event rather than a characteristic or a course of conduct, and it should normally be possible to show that someone is criminally responsible for it. To illustrate by reference to this case, Mr Schrider would have no defence if he knew of Floyd’s classification, and if he did not, Mr Turner would have no defence if he allowed Mr Schrider, lacking that knowledge, to walk the dog.
[41] What of this case? Knowledge was the issue. I have assumed in Mr Turner’s favour that he instructed Mr Schrider to muzzle the dogs and keep them on a short leash. That being so, he must be taken to have believed that they would be muzzled. The appeal must succeed.
Decision
[42] The appeal against conviction for owning a dog that made an attack is dismissed. The appeal against conviction for allowing the dog in public unmuzzled is allowed. The destruction order is confirmed.
Miller J
Solicitors:
C&M Legal, New Plymouth for Respondent
27 Police v Starkey [1989] 2 NZLR 373.
13