Turner v South Taranaki Dstrict Council
[2016] NZHC 3023
•13 December 2016
IN THE HIGH COURT OF NEW ZEALAND
NEW PLYMOUTH REGISTRY
CRI-2016-443-32
[2016] NZHC 3023
BETWEEN IAN BASIL TURNER
Appellant
AND
SOUTH TARANAKI DISTRICT COUNCIL
Respondent
Hearing: 12 December 2016 Appearances:
Appellant in Person
J E Bourke for Respondent
Judgment:
13 December 2016
JUDGMENT OF CLARK J
[1]Mr Turner was convicted and sentenced on charges relating to his dog,
Jumma.1
[2] Mr Turner faced charges of failing to register a dog,2 keeping a dog with an incorrect registration tag,3 and failing to dispose of a dog.4 Following conviction he was sentenced to pay fines totalling $1,350 and court costs of $390.5
[1]Mr Turner appeals his conviction.
1 South Taranaki District Council v Turner [2016] NZDC 19055.
2 Dog Control Act 1996, s 42(1) (maximum penalty: a fine not exceeding $3,000).
3 Dog Control Act 1996, s 51(1)(c) (maximum penalty: a fine not exceeding $3,000).
4 Dog Control Act 1996, ss 24(1) and (5)(a) (maximum penalty: a fine not exceeding $3,000).
5 South Taranaki District Council v Turner [2016] NZDC 19051.
TURNER v SOUTH TARANAKI DISTRICT COUNCIL [2016] NZHC 3023 [13 December 2016]
The facts
[2] Jumma, a dog, required a home and was taken in by Mr Turner between around December 2013 and May 2014. Jumma provided companionship to another dog belonging to Mr Turner, Jemma. Jemma died from natural causes on 1 May 2014. On 22 May 2014 the South Taranaki District Council took Jumma away and laid charges against Mr Turner.
[3] Jumma had not been registered. Mr Turner was a probationary owner and was accordingly not permitted to own dogs other than those already registered to him. And Jumma was found wearing the registration tag of Jemma, as though Jumma were properly registered.
District Court decision
[4] In a full and detailed judgment Judge Harrison dealt with each charge separately.
[5] In respect of the charge of failure to dispose of Jumma the evidence which established the elements of the offence was undisputed. Mr Turner was a probationary owner. He was served with the necessary notice and he failed to dispose of the dog. The offence being strict liability Mr Turner could avoid conviction only by establishing an absence of fault.
[6] The Judge did not accept Mr Turner’s explanation established an absence of fault. Mr Turner asserted that a “gentlemen’s agreement” had been reached between himself, the mayor, and the Chief Executive Officer of the Council on 11 April 2014 permitting him to keep the dog as a companion for Jemma. The Judge rejected this evidence on the basis that it was hearsay, the agreement was undocumented and Mr Turner’s account was implausible, unconvincing and uncorroborated.6
[7] On the charge of failing to register a dog, again, the evidence establishing the elements of the offence was uncontested. Mr Turner accepted that he was the owner and that Jumma was probably not registered when she came into Mr Turner’s
6 At [20].
possession. Mr Turner advanced the justification that a probationary owner is not allowed to register a dog. But there was a period in which he was entitled to register Jumma and did not. Accordingly the Judge found the charge proved.7
[8] In respect of the remaining charge of keeping a dog with an incorrect registration, the Judge noted that the charge required proof of an intention to deceive. Accordingly the issue was whether, when he placed Jemma’s registration on Jumma,
Mr Turner intended to deceive.8
[9] It was not disputed that the dog tag with the number 5695 corresponded with Jemma, Mr Turner’s ailing Great Dane, but that the tag had been placed on Jumma.
[10] Mr Turner’s explanation was that he attached Jemma’s collar to Jumma so that there would be an address for her in the event she went missing. This account was rejected on the basis that it was a roundabout way to ensure the prompt return of a dog to its owner. A disc with a name and contact details seemed to the Judge a more logical approach to meet the concern of the dog’s return. The Judge considered Mr Turner’s explanation to be unconvincing and lacking credibility. The Judge found Mr Turner when challenged to be defensive and vague and evasive in his answers.9 The Judge found the charge proved.
The appeal
[11] The notice of appeal specifies three grounds of appeal. Essentially Mr Turner challenges the Judge’s assessment of the evidence.
[12] At the hearing Mr Turner submitted that his appeal mainly turned on the gentlemen’s agreement which he relies on but which the Judge did not accept.
[13] Mr Turner took me to the decision of Judge Atkins QC which determined Mr Turner’s appeal against his disqualification in 2013 from being a dog owner.10
7 At [28].
8 At [31].
9 At [38].
10 Turner v South Taranaki District Council DC New Plymouth CIV-2013-021-189, 10 February 2014.
Judge Atkins allowed Mr Turner’s appeal and classified Mr Turner as a probationary owner under s 21 of the Dog Control Act 1996.
[14] Judge Atkins had been critical of some aspects of the process including the minutes of the Environment and Hearings Committee and the report placed before the Committee which did not include an option for the Committee’s consideration when the option was available from the Act itself.11
[15] Other aspects of the report gave rise to a concern about its accuracy in some respects.
[16] Mr Turner’s point was that these criticisms showed the Council’s record keeping is less than satisfactory. That is why Mr Turner was unable to prove the agreement to permit him to keep Jumma for longer than the statutory period of 14 days.
[17] Mr Turner invited me to consider also the timeline. The letter of 17 February 2014 allowed him 30 days to re-home his dogs. The fact that the dog was not seized until 22 May 2014 was attributable, Mr Turner submitted, to the agreement that he could keep Jumma until Jemma died.
Principles governing appeals against conviction
[18] This being an appeal under s 232 of the Criminal Procedure Act 2011 I must allow the appeal if satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason. A miscarriage of justice will have occurred if the alleged irregularities and errors created a real risk that the outcome of the trial was affected or resulted in an unfair trial or a trial that was a nullity. I must dismiss the appeal in any other case.
11 At [17].
[19] A “real risk” that the outcome of a trial was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.12
[20] Where the Judge below has had the opportunity to assess the credibility of witnesses, and that assessment is important, the appeal court will hesitate to conclude that findings of fact or fact and degree are wrong.13
Analysis
[21] To the extent that Mr Turner challenges his conviction on the basis that the Judge erred in finding the Council witness more credible than Mr Turner, this ground of appeal is misconceived.
[22] At no point was Mr Turner’s credibility in contest with that of the Council witness in relation to any element of the offences on which he was convicted. The evidence from the Council witness that the Judge relied upon was Mr Smith’s account of seeing Jemma’s tag on Jumma. Mr Turner accepts that he had attached the tag to Jumma. His defence at trial was that he did not intend to deceive, not that the Council witness lacked credibility.
[23] In submissions, Mr Turner took issue with the Judge’s assessment that he lacked credibility. In relation to the alleged agreement, evidence of which the Judge rejected as among other things hearsay, Mr Turner submits that he did not call the other parties to the alleged agreement as witnesses because of the lapse of time and because he expected they would not support his account of events. The merits of those reasons aside, the fact remains that the Judge had only Mr Turner’s account of the agreement and rejected that on the basis of a negative assessment of his credibility on the point.
[24] An appeal court will be hesitant to displace a trial judge’s assessment of witness credibility. The Judge set out reasons for finding that Mr Turner lacked
12 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] adopted more recently in the context of the Criminal Procedure Act 2011 by the Court of Appeal in Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [29].
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
credibility, including his demeanour and the plausibility of the explanations he advanced in his defence. I am not satisfied that Mr Turner has established that the Judge erred in the assessment of witnesses such that a miscarriage of justice has occurred.
[25] Mr Turner’s second ground of appeal, that the Judge did not take into account three letters, was not developed in his written submissions. The letters are attached to the notice of appeal. I do not regard the letters as bearing on the appeal.
[26] Mr Turner submitted, in relation to the charge of failing to register a dog, that he believed he was unable to register a dog in his name at the time. This charge was proved on the basis that prior to 10 February 2014 Mr Turner was not a probationary owner and was at that time entitled to register the dog and did not. His possession of Jumma at that time was not in dispute. In any case, being unable to register a dog by reason of being a probationary owner cannot establish an absence of fault in failing to register the dog. Having regard to the provisions, the point of the probationary owner classification is to prevent probationary owners from owning dogs.
[27] Finally, Mr Turner asserts that where the Judge was disconcerted by the similarity of the dogs’ names, the similarity is a coincidence. I understand the submission to be that the Judge erred in his comment. This is not a proper appeal point (as distinct from a grievance) and requires no further analysis therefore.
Result
[28] The appellant has not established error on the part of the District Court Judge. The appeal is dismissed.
Karen Clark J
Solicitors:
C&M Legal, New Plymouth for Respondent
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