van Delden v Waitaki District Council
[2021] NZHC 2264
•31 August 2021
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2021-476-3
[2021] NZHC 2264
BETWEEN RINAE VAN DELDEN
Appellant
AND
WAITAKI DISTRICT COUNCIL
Respondent
Hearing: 29 July 2021 Appearances:
K M Henry for Appellant
B K Coleman and E L Middlemass for Respondent
Judgment:
31 August 2021
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 31 August 2021 at 4.00 pm
Registrar/Deputy Registrar Date:
VAN DELDEN v WAITAKI DISTRICT COUNCIL [2021] NZHC 2264 [31 August 2021]
Introduction
[1] Rinae van Delden was charged under s 57(1) and 57(2) Dog Control Act 1996 (the Act) with being the owner of a dog that attacked a domestic animal.1 The charge was dismissed under s 147 Criminal Procedure Act 2011 (CPA) because the Judge considered there was no evidence that Ms van Delden was the “owner”2 of the dog (Section 147 Judgment).3 Subsequently, an order for destruction of the dog was made under s 57(3) of the Act by Judge Large (Destruction order judgment).4
[2] Ms van Delden appeals against that order on the basis that the Judge did not have jurisdiction to reopen the proceeding following the dismissal of the charge or to make an order when the elements of the offence under s 57(2) of the Act had not been established. Alternatively, if the Court does not uphold these jurisdictional arguments, it is submitted there are exceptional circumstances that mean an order for destruction was not warranted.
Destruction orders under the Dog Control Act
[3] Section 57(1)–(3) of the Act provides for the prosecution of owners of dogs which attack people or animals and for orders for the destruction of such dogs:
57 Dogs attacking persons or animals
(1)A person may, for the purpose of stopping an attack, seize or destroy a dog if—
(a)the person is attacked by the dog; or
(b)the person witnesses the dog attacking any other person, or any stock, poultry, domestic animal, or protected wildlife.
(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding
$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.
1 Dog Control Act 1996, s 57(1) and s 57(2). Maximum penalty of a fine not exceeding $3,000 in addition to any liability that they may incur for any damage caused by the attack.
2 Defined by Dog Control Act, s 2.
3 Waitaki District Council v van Delden [2021] NZDC 4886 [Section 147 judgment].
4 Waitaki District Council v van Delden [2021] NZDC 10019 [Destruction order judgment]. See also ruling that the Council’s application could proceed: Waitaki District Council v van Delden [2021] NZDC 9998 [Jurisdiction ruling].
(3)If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.
Factual background
The prosecution
[4] On 23 October 2019 a dog, Jock, attacked a smaller dog (Prince). The smaller dog died later that day. Both parties accept this attack took place.
[5] By a charging document, the Waitaki District Council (the Council) charged Ms van Delden with an offence under s 57(1)–(2) of the Act. Ms van Delden pleaded not guilty.
[6] At the hearing, the Council led evidence relating to the circumstances and details of the attack, as well as the ownership of Jock. Judge Large recorded in the Section 147 judgment:5
[3]There is no dispute that there was an attack on a small dog, Prince, by a larger dog, Jock. That was clear from all the evidence and the attack by Jock was clearly a vicious one with fatal consequences for Prince.
[7] It appears that the background to the attack is that Jock was outside the property he had been living at. There is some suggestion this was because of a broken fence, but this was not determined at any hearing. Ultimately, Jock entered a neighbouring property. As he was running out of the property Prince allegedly followed him. Jock then allegedly contacted Prince in a manner that sent the smaller dog flying. Jock is then said to have picked Prince up in his mouth for a manner of minutes and may have shaken his head from side to side. Judge Large formed the impression from the evidence that Jock had “rag-dolled” Prince.6
5 Section 147 judgment, above n 3.
6 Destruction order judgment, above n 4, at [5].
[8] At the conclusion of the prosecution case, the Judge dismissed the charge.7 The Judge found the Council had not proved that Ms van Delden was the “owner” of Jock, as required by s 57(2) of the Act.8 “Owner” is defined in s 2 of the Act, with an extended definition including by reference to possession.
[9] Judge Large rejected the Council’s argument that Ms van Delden was at least one of Jock’s owners, having regard to the fact she went to the scene of the attack to retrieve Jock.9 The Judge found as a fact that Jock was in the possession of Ms van Delden’s husband.10
[10] In the further hearing which occurred to consider the Council’s application for a destruction order, Mr van Delden was called as a witness by Ms Henry (counsel for Ms van Delden) and gave evidence as to being Jock’s owner. The Judge accepted that evidence.11
Application for Jock’s destruction
[11] After the hearing had concluded with the dismissal of the charge, the prosecutor requested to see the Judge in court for chambers. The Judge saw the prosecutor and Ms Henry, although Ms van Delden herself had left court.
[12] In the course of the directions then issued, Judge Large suggested to the prosecutor that the Court may have no jurisdiction to consider a destruction order, being functus officio. He observed that “the proceedings had been determined, dismissed and hearing concluded”.12 Judge Large ruled that he would not be prepared to make an order for destruction that day both because the hearing had concluded and, having regard to the matters for consideration under s 57(3) of the Act, natural justice required the provision of an opportunity for the defendant to engage with s 57(3).13 The Judge made timetable directions for an application for a destruction order, with
7 Section 147 judgment, above n 3, at [18].
8 At [13]–[17].
9 At [16]–[17].
10 At [16].
11 Destruction order judgment, above n 4, at [14]–[15].
12 Waitaki District Council v van Delden DC Oamaru CRI-2020-045-000027, 12 March 2021 at [11].
13 At [15].
any argument as to the Court’s jurisdiction to be heard prior to the determination of that order.
[13] On 21 May 2021, Judge Large heard argument as to whether the District Court retained jurisdiction to consider an application for Jock’s destruction, notwithstanding the dismissal of the charge against Ms van Delden.
[14] In the Judge’s jurisdiction ruling that day, his Honour summarised the arguments and the outcome:14
[7] The issue is whether or not I can, in Ms Henry’s words, reopen the proceeding. Mr Coleman would say that this issue can be readdressed in terms of r 1.6 by applying the errors and omissions rule. Ms Henry says that is not appropriate in the circumstances because that is more about clerical errors and the like.
[8] The reality is, as I said at the time, had the application been made prior to my formal dismissal pursuant to s 147, I would have made the order, because Jock clearly killed Prince, and that is a real concern.
[9] Mr Coleman is correct in that there does not have to be a conviction as a precondition; he relies on the authority of Ingle v Auckland Council. Section 57(3) provides that if there has been an attack (and in this case, there was) and the dog has not already been destroyed (and in this case, it has not), then an order must be made in the course of enforcement proceedings under s 57(2) unless the circumstances of the offence or attack are exceptional.
[10] In my view, the order for destruction was a live issue and should have been considered, and I do not see that Ms Van Delden will be prejudiced in any way by my allowing the application by the Council to proceed.
[11] Ms Henry is in a position to call evidence as to whether or not there are exceptional circumstances, and there would be the opportunity today at
2.15 pm for that to occur.
[15] Accordingly, the substance of the Council’s destruction application was to be heard.
14 Jurisdiction ruling, above n 4 (footnotes omitted).
Substantive hearing of the destruction application
[16] Judge Large summarised the additional evidence in the Destruction order judgment:15
[3] Ms Henry called evidence, that was of Mr van Delden, who gave evidence that the dog was his, he having inherited it from his mother. He said in his evidence that when he left for work in the morning the dog was inside at home and the property had been secured by a six foot high fence surrounding the 1700 square metre section and there had been a 2.4 metre dog run and he used the word, relating to the property, that the house had a “fortress front”.
[4] Unfortunately the dog did get out and was involved in an incident with a smaller dog next door, that dog being Prince.
[5]When I heard the case on 12 March I made the following comments:
At the time Mrs van Delden arrived on the scene of the dogs’ involvement with each other clearly the attack had started and was causing injury, damage and distress, but not necessarily all of those to the deceased dog, Prince.
[6] I do not doubt that there was a great deal of distress to Prince’s owner, who gave evidence before me that on that day.
[7] I recall, although I did not note it at the time, that there was independent evidence from a neighbour down the street who had seen Jock with the smaller dog, Prince, in his mouth and was shaking his head from side to side. I do not recall whether the witness specifically used the word “rag- dolled” but that was the impression I got from her description of Prince being in Jock’s mouth.
[8] There is no doubt that Prince’s death was caused by Jock. The issue raised by Mr van Delden was that, firstly, the property was secure, Jock was secure, and he invites me to draw the inference that Prince had attacked Jock, hence there were the small bite marks shown on Jock’s nose in photograph 5 in the bundle produced at the hearing.
[9] It appears to me when I look at photograph 5 that there are certainly some small red marks but there do not appear from my observation to be the number referred to by Mr van Delden because two of those marks appear to be black freckles or the like.
[10] Be that as it may, there is clearly some injury, albeit slight, to Jock, which Mr van Delden says was not apparent when he left for work that morning.
[17] Judge Large then summarised the submissions of the prosecutor and of Ms Henry.
15 Destruction order judgment, above n 4.
[18] The focus of the submissions was upon s 57(1)–(3) of the Act which I have set out at [3] above.
[19] Ms Henry argued in the District Court that, for a destruction order to be made under s 57(3) of the Act, there must first have been a conviction of an offence. Given the dismissal of the charge, there was accordingly no offence established, with the consequence that there could not be a destruction order.
[20] The prosecutor rejected the proposition that, absent a conviction for an offence under s 57(2) of the Act, a destruction order under s 57(3) may not be made. He drew attention to the distinction under s 57 between the physical actions involved in an “attack” made by a dog and the “offence” which the owner of an (attacking) dog commits.
[21] Judge Large preferred the prosecutor’s argument, finding that a conviction of an offence is not a prerequisite to a destruction order.16 The Judge went on to find that there had effectively been an offence committed because of Mr van Delden’s evidence that he was Jock’s owner.17
[22] The Judge also found that the circumstances outlined by Mr van Delden were not “exceptional”.18
[23] Judge Large accordingly made an order for Jock’s destruction but stayed the order to enable an appeal to be pursued.19
Law
Section 57 Dog Control Act
[24]I have set out above at [3] the relevant provisions of s 57 of the Act.
16 At [14].
17 At [14].
18 At [15].
19 At [16]–[19].
Rule 1.6 Criminal Procedure Rules: the slip-rule
[25] As counsel in their submissions have referred to the provisions of r 1.6 Criminal Procedure Rules 2012 (CPR) (which allows for correction of accidental slips or omissions) I set this out below:
1.6 Correction of accidental slip or omission
(1)This rule applies if—
(a)any judgment or order, or the reasons for any judgment or order, contain a clerical mistake or an error arising from any accidental slip or omission (whether the mistake, error, slip, or omission was made by an officer of the court or not); or
(b)any judgment or order is so drawn up as not to express what was actually decided and intended.
(2)The court or a Registrar may correct the judgment or order, or the reasons for the judgment or order,—
(a)on the court’s or Registrar’s own initiative; or
(b)on an application made for that purpose.
(3)A Registrar may correct the judgment or order, or the reasons for the judgment or order, in accordance with subclause (2) only if the judgment or order in question was made by the Registrar.
Section 180 Criminal Procedure Act 2011: Correction of an erroneous sentence
[26] Counsel in their submissions did not refer to s 180 CPA. Section 180 CPA applies (among other situations) when a court does not impose a sentence (defined to include an order) that is required by law to be imposed. The section provides (emphasis added in relation to the present issue):
180 Court may correct erroneous sentence
(1)If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—
(a)on the application of either of the parties or, as provided in section 181, the chief executive of the Department of Corrections; or
(b)on its own motion.
(2)The decision of the court may be made,—
(a)if sentence was imposed in the High Court, by the High Court Judge who imposed the sentence or, if that Judge is not available, by any High Court Judge; or
(b)if sentence was imposed in the District Court,—
(i)by the District Court Judge who imposed the sentence; or
(ii)by any District Court Judge if the Judge who imposed the sentence is not available or the sentence was imposed by 1 or more Community Magistrates or Justices.
(3)The court may, by order, remove the matter into the first appeal court described in section 297, and that court may deal with it as if it were an appeal on a question of law under section 296.
(4)In this section, the term sentence includes—
(a)an order, and references to the imposition of a sentence include references to the making of an order:
(b)a record of first warning (within the meaning of section 86A of the Sentencing Act 2002) and a record of final warning (within the meaning of that section), and references to the imposition of a sentence include references to the giving and recording of a warning of either kind.
[27] The Court of Appeal in Joe v R considered the application of both the slip rule (in that case the equivalent slip rule in r 45B Court of Appeal (Criminal) Rules 2001) and s 180 CPA.20 The Court of Appeal found the slip rule to permit it to correct an error, arising from an accidental slip or omission, when transposing a jury’s verdicts on the Crown charge list.21 The Court of Appeal found, however, that a second error
— imposing sentences in excess of a statutory maximum — was a matter which would alter the substance of the decision and fell to be corrected under s 180 CPA by the sentencing court.22
Principles on appeal
[28] The notice of appeal invoked provisions of the CPA that relate to appeals against conviction or sentence. Ms van Delden has not been convicted of an offence
20 Joe v R [2020] NZCA 154.
21 At [20].
22 At [21].
under s 57(2) Dog Control Act so this cannot proceed as an appeal against sentence or conviction.23
[29] The appropriate appeal route is therefore the general right of appeal conferred by s 124 District Court Act 2016.24 On such an appeal, Ms van Delden is entitled to judgment in accordance with the opinion of this Court.25
Grounds of appeal
[30]Ms Henry succinctly identified the grounds of appeal in the notice of appeal:
(a)there was no jurisdiction to re-open the proceeding following the dismissal under s 147 CPA;
(b)there was no jurisdiction to make an order for destruction as no “offence” had been committed under s 57(2) of the Act; and
(c)if there were jurisdiction to reopen the matter and make such an order (in the absence of an offence), in this case the circumstances of the offence were exceptional and did not warrant destruction of the dog under s 57(3), and the order for destruction was accordingly made in error.
Issue 1: the “re-opening” of the proceeding
Submissions
[31] Ms Henry noted that the proceeding had been (finally) disposed of when Judge Large dismissed the charge — the dismissal under s 147(6) CPA meant that Ms van Delden was deemed acquitted on the charge.
23 Criminal Procedure Act 2011, ss 229 and 244.
24 Auckland Council v Hill [2018] NZHC 3315.
25 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
[32] Ms Henry submitted that Judge Large was therefore correct in his initial view (during the 12 March 2021 chambers discussion) that the Court was functus officio (or, alternatively stated, the principle of finality in litigation applied).26
[33] Ms Henry noted that, when the Judge subsequently considered the issue of jurisdiction on 21 May 2021, his Honour said the order for destruction should have been raised and that Ms van Delden would not be prejudiced by allowing the application to proceed.27
[34] Ms Henry submitted the fact that an order for destruction should have been considered did not empower the District Court to revisit a matter which had been disposed of. She submitted that the hearing of further evidence and submissions, and the subsequent making of an order for destruction, went beyond the limits of the slip rule contained in r 1.6 CPR (as set out above at [25]).
[35] Ms Henry submitted that, as the District Court was without jurisdiction to make the destruction order following the s 147 discharge, the only avenue open to the prosecutor at that point was to appeal.
[36] Mr Coleman, for the respondent, rejected the proposition that the proceeding was “reopened”. In his submission, r 1.6 CPR allows any judgment or order containing an error arising from an omission to be corrected. Mr Coleman observed that here the Judge simply omitted to make an order for destruction under s 57(3) of the Act, as the court is required to do when a qualifying attack is proved (s 57(3) imposing on the court a directive to make an order for destruction unless exceptional circumstances exist). Mr Coleman submitted that r 1.6 CPR exists specifically for situations like this so the court can amend and correct its decision, whether in response to an application to do so or on its own initiative. He said there is an analogy in the District Court, when a judge mistakenly omits to make an order as to not holding or obtaining a drivers licence following a defendant’s conviction for excess breath alcohol. He said (anecdotally) that this is often corrected under r 1.6.28
26 Citing Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].
27 Jurisdiction ruling, above n 4, at [10].
28 See Land Transport Act 1998, s 56(3)(b).
Discussion
[37] Ms Henry was correct in her submission that CPR 1.6 does not provide a court with jurisdiction to correct a slip or omission that would alter the substance of a decision. The Court of Appeal’s decision in Joe v R is authority on that point.29
[38] On the other hand, the statutory jurisdiction provided under s 180 CPA to correct an erroneous sentence would clearly apply in this case if a destruction order was not made under s 57(3) Dog Control Act when it was required by law. (Whether such a requirement existed is discussed at [51]–[69]).
[39] The purpose of s 180 CPA is self-evident — if the legislature has by statute made mandatory the imposition of a particular sentence or order in given circumstances, but the sentencing court has not imposed that sentence or order, a party to the proceeding may bring the matter back before the Court for the “new sentence” to be imposed. The procedure is available whether or not the sentencing court would otherwise have been treated as functus officio.
Issue 2: is an “offence” a prerequisite to a destruction order?
Submissions
[40] Ms Henry identified two sub-issues arising out of the reference to “offence” in s 57(2)–(3) of the Act. She identified those issues in this way:
Whether an order for destruction can properly be made under s 57(3) if:
(1)the defendant has not been convicted of an offence under s 57(2); and/or
(2)the elements of an offence under s 57(2) were not established.
[41] After recognising there are opposing lines of authority in relation to the first sub-issue, Ms Henry first focused on whether there was an offence under s 57(2).
29 Joe v R, above n 20.
[42] Ms Henry noted that the Council had failed to establish one of the two essential elements of the offence, namely that the defendant was the “owner” of the dog.30 Ms Henry observed that under s 19 of the Act the Council had the power to obtain information as to ownership, a power evidently not pursued in this case.
[43] Ms Henry observed that, in all previous cases in which there was no conviction but still an order for a destruction, the defendant had either pleaded guilty but not been convicted under s 106 Sentencing Act 2002 or gone to trial with the elements made out but the strict liability defence of total absence of fault established by the dog’s owner, resulting in no conviction.
[44] Turning to the fact the defendant was not convicted of an offence, Ms Henry conducted a balanced review of the various High Court decisions on this matter and the judgment of the Court of Appeal in Auckland Council v Hill (Hill)31 being a case relied on by the Council. Ms Henry identified King v South Waikato District Council and Walker v Nelson City Council (obiter) as decisions in which the High Court viewed a conviction as a prerequisite to a destruction order.32 On the other hand she recognised that in Turner v South Taranaki District Council, Miller J (obiter) considered that a conviction is not a prerequisite to destruction.33 But, in Ms Henry’s submission, Turner is distinguishable because the essential elements of the strict liability offence under s 57(2) were each made out. There was therefore an “offence” in terms of s 57(2) of the Act, albeit not a “conviction”.
[45] Ms Henry submitted also that the issue of whether a conviction (or offence) is a prerequisite to destruction did not arise at all in the Court of Appeal’s decision in Hill — the discussion in that case around the meaning of “offence” was focused on the different issue of what matters could properly be considered in relation to the exception under s 57(3) of the Act. The need for a conviction did not arise in Hill because the defendant had been convicted.
30 See the section 147 judgment, above n 3.
31 Auckland Council v Hill [2020] NZCA 52 [2020] 3 NZLR 603 [Hill].
32 King v South Waikato District Council [2012] NZHC 2264, [2012] NZAR 837; and Walker v Nelson City Council [2017] NZHC 750.
33 Turner v South Taranaki District Council [2013] NZHC 1603 at [22].
[46] Ms Henry noted the analogy drawn by the Court of Appeal in Hill from s 33ED Dog Control Act 1996, the Court stating:
33EDTerritorial authority to classify certain dogs as dangerous or menacing
(1)A territorial authority must classify a dog as a dangerous dog under section 31 or a menacing dog under section 33A if—
(a)the owner of the dog has been convicted of an offence against section 57(2) or 57A(2)(a); and
(b)no destruction order for the dog has been made by the court concerned.
(2)Subsection (1) applies unless the territorial authority is satisfied that the circumstances of the attack, rush, or startle by the dog (being the circumstances relating to the offence for which the owner was convicted)—
(a)were exceptional; and
(b)do not, in the territorial authority’s opinion, justify classifying the dog as dangerous or menacing.
(emphasis added)
[47] Ms Henry submitted that both the regime of the statutory provisions and the overall analysis within the case law supports the view that s 57(3) of the Act is properly construed so as to make conviction for an offence a prerequisite to an order for the destruction of the dog.
[48] In relation to this issue, Ms Henry submitted that natural justice considerations are also in favour of the Court finding that an order for destruction cannot be made unless each of the elements of an offence under s 57(2) had been established. Where the prosecution against a defendant fails in relation to the issue of ownership, and particularly when (as here) the Court is satisfied that another person, Mr van Delden, was the “owner”,34 the owner is precluded from effectively taking part in the proceeding.
[49] Ms Henry noted that, in her opening at the trial, she had indicated the issue in dispute was ownership but that she would also be seeking to adduce evidence
34 Destruction order judgment, above n 4, at [14].
regarding exceptional circumstances. She stated that she was told by the Court that she could not have it “both ways” and subsequent attempts to ask questions on the latter issue were overruled by the Judge as being irrelevant. Accordingly, the evidence led at the hearing, regarding the s 57(3) exception, was very limited, a matter for which the owner was not responsible.
[50] Mr Coleman submitted that the making of a destruction order under s 57(3) does not depend upon a conviction — the establishment of an offence is sufficient under s 57(3) of the Act as the attack is the key element of the offence. In doing so he referred to the same case law as Ms Henry and the broader public policy principle of avoiding the risk that a dog will attack again.
Discussion
[51] The Interpretation Act 1999, s 5(1) of the Act requires that the meaning of an enactment must be ascertained from its text and in the light of its purpose. Under s 5(2) the Court, in ascertaining the meaning, may also consider indications provided in the statute.
[52] On a straightforward reading of the text of s 57 (set out at [3] above) of the Act, it involves three steps which may be taken in relation to an attacking dog:
(a)under subs (1) — the seizure or destruction of the dog for the purpose of stopping an attack which is taking place;
(b)under subs (2) — the prosecution of the owner of a dog that makes a subs (1) attack; and
(c)under subs (3) a destruction order where the Court is satisfied that a subs (1) attack was committed.
[53] The single ambiguity which arises from the wording of s 57 is whether the reference to “the offence” in subs 3 means that not only must there have been a subs (1) attack committed but the prosecution must also have established the commission of an offence under subs (2).
[54] As counsel both recognised in their submissions, there has been a conflict in the authorities, including the High Court decisions, as to whether the prosecution must establish an offence under s 57(2) of the Act before a destruction order may be made.
[55] I respectfully adopt the analysis and conclusions of Gordon J in Ingle v Auckland Council.35 Her Honour’s review of the authorities in Ingle is comprehensive, analysing both decisions in which the courts have held that, before a destruction order may be made, an offence must be established and conviction entered and those in which the Court had concluded, to the contrary, that a conviction is not a prerequisite to the making of a destruction order. The careful review of authority led Gordon J to conclude:36
[60] I therefore adopt Miller J’s approach in Turner. A conviction is not a precondition to the jurisdiction to order destruction of a dog under s 57(3). If there is an attack, and the dog has not already been destroyed, then an order must be made in the course of enforcement proceedings under s 57(2) unless the circumstances of the offence (or attack) are exceptional. I respectfully decline to follow Fountain. The express requirement for a conviction was removed from s 57(3) in the 2003 amendment and I do not consider it consistent with the public safety purpose of the provision to imply one. I agree with Miller J that there will be circumstances where the owner can establish a total absence of fault (and therefore will not have committed an offence) but the dog still presents a risk to public safety which requires it be destroyed.
[56] I follow the decision in Ingle on the basis of the entirety of the reasoning in the judgment. That said, I note particularly the following considerations as grounding the judgment:
(a)The clear purpose of s 57(3) is to protect public safety by ensuring that the dog does not commit future attacks, the Act proceeding on the basis that where a dog has attacked once there is a risk that it will behave in the same way again in similar circumstances.37
35 Ingle v Auckland Council [2020] NZHC 1164.
36 At [60], citing Turner v South Taranaki District Council, above n 33; and Fountain v Auckland Council [2018] NZHC 591, [2018] 3 NZLR 216. Gordon J recorded that she had previously followed Fountain in Pehi v Auckland Council [2018] NZHC 2154 which was, however, an oral decision following a hearing in which she had not the benefit of competing submissions on the issue. Fountain also preceded the Court of Appeal’s decision in Hill, above n 31.
37 Hill, above n 31, at [65]; and Ingle v Auckland Council, above n 35, at [55].
(b)It is significant that s 57(3) of the Act does not contain an express requirement that the owner of the dog has been convicted of the offence
— to be contrasted with the requirement under the former s 57(5) and the current s 58 and s 33ED.38
(c)The focus of the destruction order enquiry is accordingly, not upon the circumstances of the offence but rather, upon the circumstances of the attack, being answered at the first step of the enquiry by the question “What happened?” (Step two being the question as to whether what happened was exceptional).39
[57] For these propositions, I adopt particularly the reasoning of Gordon J in Ingle,40 but also (as referred to in Ingle) the conclusions of the Court of Appeal in Hill.41 Consequently, I respectfully decline to follow, to the extent that their findings differ from those in Ingle, the earlier decisions in King v South Waikato District Council.42
[58] In applying my above conclusions to the facts of this case, the starting point is that Judge Large was clearly satisfied the dog, Jock, had committed an attack of the kind identified in s 57(1) of the Act.
[59] For Ms van Delden, Ms Henry submits (above at [42]–[43]) that a destruction order could not be made in the District Court proceeding because the prosecution had failed to establish one of the two essential elements of the offence, namely Ms van Delden’s ownership of Jock.
[60] Such a submission again ignores the focus of s 57 upon the “attack” (described in s 57(1)), which is made the trigger (subject to exceptional circumstances) for a destruction order under s 57(3). Once it is recognised that the “circumstances of the attack” and the “circumstances of the offence” are equivalent in s 57(3) of the Act, and it is borne in mind that the purpose of the provision is to protect public safety by
38 Hill, above n 31, at [70]; and Ingle v Auckland Council, above n 35, at [30]–[33].
39 Hill, above n 31, at [64]; and Ingle v Auckland Council, above n 35, at [53].
40 Ingle, above n 35.
41 Hill, above n 31, and Miller J in Turner v South Taranaki District Council, above n 33.
42 King v South Waikato District Council, above n 32; and Fountain v Auckland Council, above n 36.
ensuring that the dog does not commit future attacks, the fact that the prosecution failed to establish that the charged defendant was the owner of the attacking dog cannot oust the jurisdiction of the Court to make a destruction order under s 57(3) of the Act. For the purposes of s 57(3) of the Act, it matters not that Mr van Delden rather than Ms van Delden was Jock’s owner. Any relevant considerations arising from this situation could be taken into account in the Court’s assessment of the circumstances.
[61] That said, the issues raised by Ms Henry as to Mr van Delden’s ownership of Jock are relevant when it comes to considerations of natural justice, which I will now discuss.
Natural justice considerations
[62] Ms Henry submitted (above at [48]) that natural justice considerations favour the Court’s finding that an order for destruction may not be made unless each of the elements of an offence under s 57(2) of the Act is established. For the reasons stated above, I have found that it was open to the District Court to make a destruction order once satisfied that Jock had attacked another dog in terms of s 57(1) of the Act. Ms Henry submitted, however, that through the (unsuccessful) prosecution in this case having been against Ms van Delden, Mr van Delden as the owner was precluded from effectively taking part in the proceeding. In other words, when it came to the consideration of exceptional circumstances, Mr van Delden was denied a hearing.
[63] I recognise the legislation is silent as to how this particular situation — where the defendant is not proved to be the owner but another person is — should be dealt with for the purposes of the s 57(3) determination. In a case where it transpired that a person who was a stranger to the defendant was in fact the owner of a dog which had committed an attack in terms of s 57 of the Act, the provision of a suitable hearing in relation to the s 57(3) enquiry might give rise to complex procedural requirements. But that is not the situation here.
[64] The hearing on 21 May 2021 was allocated for, first, jurisdictional arguments and then (if jurisdiction were established) for the s 57(3) hearing.
[65] At the hearing, in the afternoon, Ms Henry called Mr van Delden to give evidence for the purposes of the s 57(3) determination.43 Ms Henry then made her submissions. Ms Henry was free to call such witnesses as she wished, whether voluntarily or by summons.
[66] In these circumstances, it cannot be asserted that there was any breach of natural justice principles. The hearing provided Mr van Delden the opportunity to provide evidence in relation to the s 57(3) issue and, through Ms Henry, to make submissions against the imposition of a destruction order.
[67] For completeness, I note that Ms Henry in her submissions observed that Judge Large had, during the District Court hearing, on 12 March 2021, overruled any questioning by Ms Henry in relation to matters going to whether there were “exceptional circumstances” under s 57(3) of the Act. She submitted that as a result of that, the extent of evidence regarding s 57(3) was very limited.
[68] This submission is linked to her overall submission regarding a breach of the principles of natural justice.
[69] I do not find the way in which the District Court Judge approached evidence in relation to “exceptional circumstances” to have breached those principles. The hearing on whether or not “exceptional circumstances” arose took place on a stand- alone basis on 21 May 2021, with Mr van Delden, through counsel, then given the opportunity to lead such evidence as he chose.
Conclusion
[70] The authorities which I recognise establish that a conviction of an offence under s 57(2) of the Act is not a prerequisite to the making of a destruction order under s 57(3). Here, the prosecution established that Jock had attacked another dog. The fact that the attacking dog was owned by someone other than the defendant does not cut across the Court’s jurisdiction to make a destruction order under s 57(3), provided principles of natural justice are met when determining whether “exceptional
43 Destruction order judgment, above n 4, at [3].
circumstances” existed. In this case, those principles were met through the hearing on 21 March 2021.
Issue 3: “Exceptional circumstances?”
[71] Ms Henry submitted that, if the jurisdictional issues are not determined in favour of the appellant, the circumstances of the offence were exceptional and do not warrant the destruction of the dog. To support this she highlights evidence suggesting that Jock escaped because part of the fence was broken on the day of the incident, that Jock was retreating back to his own space after being yelled at by a person, and that Prince had chased Jock and bitten him on the nose.
[72] Ms Henry, in relation to the state of the fence, referred to Mr van Delden’s evidence that his fencing had been secure when he left Jock some hours before the incident. Ms Henry submitted that in the evidence earlier given by Tania Goldingham (the owner of Prince) the witness had acknowledged that additional fencing materials had been added to the boundary fence.
[73] In relation to the injuries to Jock, Mr van Delden gave evidence that Jock had visible bite marks on his nose that appeared to be the upper and lower jaw teeth marks of a small animal about the size of the attacked dog. Judge Large referred to “the small bite marks shown on Jock’s nose in photograph 5 in the bundle produced at the hearing”.44 The Judge concluded there was “clearly some injury, albeit slight, to Jock”.45
[74] Mr Coleman submitted that the very high threshold of “exceptional circumstances” was not met in this case. He submitted that the existence of a gap in the fence, however caused, is not such an unusual event as to qualify as “exceptional”. He further submitted there was no evidence that Jock was provoked by the victim dog. He referred to Judge Large’s discussion of these aspects of the evidence in the destruction order judgment (quoted above at [16]).
44 Destruction order judgment, above n 4, at [6].
45 At [7].
Discussion
[75] The test to be applied to the enquiry under s 57(3) is that enunciated by Goddard J, delivering the judgment of the Court of Appeal, in Hill:46
[74] The court must then go on to consider whether the circumstances of the offence/attack were exceptional and do not warrant destruction of the dog. As this Court observed in Easthope v Auckland Council, the requirements imposed by this test are cumulative.47 But they are linked, and should be applied together. The second requirement informs the first — the circumstances must be exceptional in a way that means that destruction of the dog is not warranted.
[75] This test requires the court to focus on the circumstances of the offence/attack, and the risk that similar circumstances will occur in the future. It does not require the Court to undertake the difficult, if not impossible, task of inquiring into the psychology of the dog and making predictions about how the dog is likely to behave in the future. The inquiry contemplated by the Act is in our view much simpler. Section 57(3) proceeds on the basis that the previous attack establishes that there is a risk of the dog attacking again in similar circumstances. So the focus is on whether those circumstances were sufficiently exceptional that that risk is remote and does not justify destruction of the dog in the interests of public safety.
[76] Here, the two matters relied upon by Mr van Delden as giving rise to “exceptional circumstances” were that Jock’s escape from the property was through a new gap in his secure fence (secure at the time he left the property) and the evidence that Jock had been bitten on the nose.
[77] The Judge was entitled to conclude that the fact Jock had escaped through such a gap did not constitute an exceptional circumstance relating to the attack. In other words, such an occurrence will not be an uncommon background to such attacks.
[78] Secondly, the Judge was entitled on the evidence to find, as he did, that what happened between Jock and Prince was something which no one could really (reliably) explain. Ms Goldingham’s evidence was of first seeing Jock and her other dog, Kaia, fighting on her driveway. Ms Goldingham’s further evidence was that as Jock was starting to go down her driveway to exit the property, her dog, Prince, had run out after Jock as he was exiting. If in the period of Jock’s presence on the property, in the
46 Hill, above n 31.
47 Easthope v Auckland Council [2018] NZCA 234 at [13].
company of the two dogs which live there, he was bitten on the nose by one dog or the other, the Judge was again entitled to treat that circumstance as not “exceptional”.
[79] In terms of the Court of Appeal’s formulation in Hill, nothing in the circumstances relating to Jock’s escape from his property or his being bitten by one of the other dogs is exceptional in a way that means the destruction of Jock is not warranted. The risk is that similar circumstances will occur in the future. The risk is not remote. Judge Large was entitled on the evidence to find that exceptional circumstances had not been established.
Outcome — the appeal
[80] The appeal will be dismissed, with the consequence that the destruction order made in the District Court stands.
Cross-appeal?
[81] The Council did not file a cross-appeal. I note that, in particular, the Council did not appeal against the s 147 judgment.
[82] In Mr Coleman’s written submissions, however, Mr Coleman invited the Court to overturn the District Court’s s 147 CPA decision and to instead convict Ms van Delden of the offence with which she was charged.
[83] Mr Coleman invoked the provisions of s 128 District Court Act 2016. In particular, s 128(1)(a) District Court Act empowers the High Court, on hearing an appeal, to make any decision it thinks should have been made.
[84] As I have stated, such an argument was not the subject of a cross-appeal. The respondent was never put on notice that she would have to meet such an argument until her solicitor received the Council’s written submissions before the hearing.
[85] As the issue was not properly before the Court on this appeal I did not hear further submissions on it.
Order
[86]I order:
(a)the appeal is dismissed; and
(b)costs are reserved — in the event there is not resolution of costs and disbursements, counsel for the respondent is to file a memorandum (three page limit) within ten working days and the respondent is to file a memorandum (three page limit) within five working days thereafter, with costs and disbursements to then be determined on the papers.
Osborne J
Solicitors:
K M Henry, Barrister, Oamaru
Dean & Coleman Law Group, Oamaru
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