Walker v Nelson City Council - [2017] NZCA 526

IN THE COURT OF APPEAL OF NEW ZEALAND

CA259/2017
[2017] NZCA 526

BETWEEN	JENNY LYN WALKER Applicant
AND	NELSON CITY COUNCIL Respondent

Court:

Kós P, Courtney and Toogood JJ

Counsel:

C G Tuck for Applicant
A C Besier for Respondent

Judgment:

(On the papers)

17 November 2017 at 2.00 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Toogood J)

On 27 March 2017 in the District Court at Nelson, Judge Bruce Davidson found Ms Walker guilty of a charge under s 57(2) of the Dog Control Act 1996 (the Act) that, on or around 12 October 2016 at Nelson, she was the owner of a dog called ZiaZia which attacked a person; her flatmate, Penny Lowish.[1] The Judge convicted Ms Walker, fined her $550 and ordered her to pay emotional harm reparation to Ms Lowish of $500. He made no order as to court or solicitors’ costs but ordered under s 57(3) of the Act that ZiaZia be destroyed.[2]
[1]Nelson City Council v Walker [2017] NZDC 7142.
[2]Nelson City Council v Walker [2017] NZDC 6372.
Ms Walker appealed unsuccessfully to the High Court against her conviction and the destruction order.[3] Ms Walker now seeks the leave of this Court under s 237 of the Criminal Procedure Act 2011 (CPA) to appeal against the High Court’s decision.
[3]Walker v Nelson City Council [2017] NZHC 750.
Section 237(2) of the CPA provides that leave must not be given for a second appeal unless this Court is satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred, or may occur unless the appeal is heard. As this Court in McAllister v R confirmed, the test for a second appeal is high.[4]
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
Ms Walker filed the application for leave to appeal in person. It is a lengthy document setting out many grounds upon which she wished to argue that the judgment of the High Court was wrong and that we should hear a further appeal. Since then, however, Mr Tuck has been instructed. Helpfully, he has confined the application for leave to a single ground, based on what he submits is the proper interpretation of s 57(1) and (2) of the Act.
So far as is relevant, the section reads:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walker v Nelson City Council

Details

AGLC: Walker v Nelson City Council [2017] NZCA 526
Case: [2017] NZCA 526
Decision Date: 17 November 2017 at 2.00 pm

CaseChat Overview and Summary

In the matter of Walker v Nelson City Council, the Court of Appeal considered an application by Jenny Lyn Walker for leave to appeal against a decision of the High Court. Ms Walker was convicted in the District Court for being the owner of a dog that attacked her flatmate, Penny Lowish, and was fined and ordered to pay reparation. The District Court also ordered the destruction of the dog. The High Court upheld the conviction and destruction order, and Ms Walker sought leave to appeal to the Court of Appeal under section 237 of the Criminal Procedure Act 2011. The primary legal issue before the Court of Appeal was whether the appeal involved a matter of general or public importance or if there was a possibility of a miscarriage of justice. The Court of Appeal found that the application did not meet the high threshold for a second appeal as set out in McAllister v R. The Court of Appeal rejected the argument that the statutory scheme of the Dog Control Act 1996 precluded a dog owner from being the person attacked by their own dog, as the statutory definition of "owner" encompasses anyone in possession of the dog, except under limited circumstances. The Court concluded that the application for leave to appeal did not involve a matter of general or public importance and there was no actual or likely miscarriage of justice. Therefore, the application for leave to bring a second appeal was declined.

Orders