Williams v Ashburton District Council HC Timaru CRI 2010-476-4
[2010] NZHC 1137
•30 June 2010
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CRI-2010-476-000004
STEVEN DAVID WILLIAMS
Appellant
v
ASHBURTON DISTRICT COUNCIL
Respondent
Hearing: 30 June 2010
(Heard at Christchurch via video link)
Appearances: T W Fournier for Appellant
C A O'Connor for Respondent
Judgment: 30 June 2010
ORAL JUDGMENT OF HON. JUSTICE FRENCH
Introduction
[1] The appellant, Mr Williams, has been charged with wilfully obstructing a dog control officer, under s 18 of the Dog Control Act 1996.
[2] Following a defended hearing, two Justices of the Peace found the charge proven. Mr Williams was fined $750 and ordered to pay witnesses’ expenses and Court costs.
[3] On appeal, he now seek to overturn the Justices’ findings.
WILLIAMS V ASHBURTON DISTRICT COUNCIL HC TIM CRI-2010-476-000004 30 June 2010
The hearing before the Justices
[4] At the hearing the informant, the Ashburton District Council, called three witnesses – two dog control officers who attended the incident, and a senior council employee.
[5] The first dog control officer to give evidence was a Mr Chettleburgh. He testified that on the day in question the Council had instructed him and another officer, Ms Foley, to look for unregistered dogs on two specified streets in Methven. This followed complaints to the council of wandering dogs in Methven. One of the two specified streets was Spraxton Street.
[6] Mr Chettleburgh said that they had done part of Spraxton Street when they moved up and parked their council vehicle outside number 59 Spraxton Street. The vehicle was marked ‘Animal Control’, and Mr Chettleburgh was wearing his uniform.
[7] Mr Chettleburgh testified that they pulled up outside this property at the same time as another person, who turned out to be Mr Williams. The three of them exchanged pleasantries.
[8] As they all entered the property at number 59, Mr Chettleburgh said he noticed a dog in the window of the property. He said he then knocked on the door, which was answered by a male who he later found out was Mr Williams’ son. The son’s girlfriend, Ms McAlpine, also came to the door.
[9] According to his testimony, Mr Chettleburgh explained who he was and asked if the dog was registered, because it was not on their list of registered dogs. There is a conflict in the evidence as to the detail of what was actually said in response to this question, but it was common ground that Mr Williams’ son admitted the dog was not registered. At that point Mr Chettleburgh picked up the dog, which had come outside in the meantime. Mr Chettleburgh said he held onto the dog and explained to the two Messrs Williams and Ms McAlpine that he would be seizing it. At some stage in the exchange, Mr Williams asked to see Mr Chettleburgh’s warrant.
Mr Chettleburgh testified that he showed Mr Williams his warrant and that Mr
Williams accepted it.
[10] In evidence, Mr Chettleburgh stated that Mr Williams initially tried to “sweet-talk” him into giving the dog back, but when Mr Chettleburgh refused, Mr Williams became abusive and refused to allow him to leave the property unless he returned the dog. Mr Williams junior and senior then blocked Mr Chettleburgh’s exit so that he was efficiently prevented from leaving the property.
[11] There were then attempts to obtain police assistance. These proved unsuccessful, and Mr Williams asked to speak to Mr Chettleburgh’s supervisor. A phone conversation duly took place between Mr Williams and a Ms Copland, from the Council. According to Mr Chettleburgh’s evidence, at the conclusion of the phone call with Ms Copland, Mr Williams and his son abruptly left the property, leaving Ms McAlpine on her own. She was very upset and in view of her distress, Mr Chettleburgh had a change of heart and returned the dog to her, telling her to come to the council offices and register it.
[12] In cross-examination, it was put to Mr Chettleburgh that his instructions were to go to properties, knock on doors and see if he could find unregistered dogs. Mr Chettleburgh replied:
No. My brief was to go to Methven and visit houses in the area that I suspected there were dogs on the property, and I did visit houses that did have dogs, and checking up to see if they were still there and alive, and I went on to properties where I suspected there were dogs during my time in Methven.
... I went on to the properties where I suspected that there were dogs or where we had had evidence, or complaints that dogs were around.
(Notes of evidence, page 7)
[13] Counsel also questioned Mr Chettleburgh as to whether his instructions were to seize all unregistered dogs regardless, or whether he had any discretion to leave a dog behind and ask the owner to attend to registration. The thrust of Mr Chettleburgh’s answer was that he had been instructed to seize all unregistered dogs and take them away because the council’s experience had been that if the dogs were
allowed to remain on the property, owners tended not to bother to register them, or the dogs simply disappeared. He did, however, testify that before leaving an unregistered dog with an owner, he would first contact the relevant officer at the council’s offices to discuss the decision that should be made.
[14] Much of Mr Chettleburgh’s evidence was corroborated by the other dog control officer, Ms Foley, although some of the details differed. She, for example, said it was Mr Williams who knocked on the door. She confirmed the dog was not wearing a registration tag.
[15] In cross-examination it was put to her:
Q.And you went on to the property because the records that you had were that there wasn’t a dog registered there, so you were going on to the property on the off-chance that you would find one, is that correct?
A. Yeah.
(Notes of evidence, page 28)
[16] As I have mentioned, the third witness called to give evidence was a senior council employee, the Systems Officer for Animal Control, Ms Copland. She confirmed that the council had received a lot of complaints about wandering dogs in Methven, and that 96 per cent of the problem dogs are unregistered ones. She also confirmed that Spraxton Street was one of the streets causing problems. She testified that she had spoken on the telephone to Mr Williams and that he had become aggressive and abusive towards her.
[17] In cross-examination she was asked about Council policy regarding the seizure of unregistered dogs:
Q.Mr Chettleburgh suggested that he gets directions from you and Mr Humphries. That he’s to seize dogs at all costs and not to be exercising his discretion about whether to do that. Do you agree with that?
A. In general, yes, because like I explained a lot of dogs disappear.
Q.So, the council policy is that it won't exercise discretion or allow the actual Dog Control Officer at the properties to exercise discretion, you as a policy overrides –
A.No. that was the procedure he was told. Yeah. that’s what happened.
Q.You accept that the powers that a Dog Control Officer has under the warrant granted from the council, which of course, comes from the Dog Control Act is discretionary. Doesn’t say “he shall seize unregistered dogs”, it’s that “he may”?
A.It’s our – that was our procedure. Yeah. So, I mean, it’s not for him to – that was his instructions, was to seize unregistered dogs, okay.
(Notes of evidence, page 40)
[18] Mr Williams and Ms McAlpine also gave evidence.
[19] Mr Williams had a very different version of events to that given by the dog control officers. He testified that after they had informed Mr Chettleburgh the dog was indeed unregistered, both Mr Chettleburgh and Ms McAlpine made a grab for the dog, and that they made contact. This had been adamantly denied by Mr Chettleburgh. Mr Williams further stated that when he asked to see Mr Chettleburgh’s warrant, he was not shown a warrant card. Rather, he was shown a card that resembled a security card. He said that when shown a card which he knew was not a warrant card, he replied it was not good enough and that he wanted the police called. According to his testimony, he asked Mr Chettleburgh to not leave until the police arrived. Mr Williams also testified that it was while he was still on the phone to Ms Copland that Mr Chettleburgh had the change of heart and suddenly handed back the dog.
[20] In her evidence, Ms McAlpine confirmed that any contact between her and Mr Chettleburgh when they both went to grab the dog was not intentional. As regards the card that was produced, she said it looked just like a licence, but could not remember exactly what it said. She confirmed, however, that when Mr Williams looked at the card he said he did not think it was sufficient and wanted the police called, and that Mr Williams said “we’re not letting you off the property till the police come to sort it out, because we don’t know who you are”.
[21] In closing submissions, counsel for Mr Williams, Mr Fournier, submitted that
Mr Williams could not be guilty of the offence on the grounds that:
a) At the time, Mr Chettleburgh was not acting in the exercise of his powers because:
(i) he had no right to be on the property, having no good cause to suspect;
(ii) he was not exercising his discretion properly.
b)Mr Williams did not know Mr Chettleburgh was carrying out his powers, and mens rea was an ingredient of the offence.
[22] The Justices did not appear to accept those arguments.
[1] We have considered the evidence presented in this Court today and find as follows.
[2] Firstly, under Section 18 of the Dog Control Act 1996, it is an offence to wilfully obstruct or hinder the Dog Control Officer in the exercise of his, or her powers.
[3] We have heard evidence that the defendant did obstruct and hinder the Dog Control Officer from leaving the premises in question. We heard evidence that this obstruction was both verbal and physical, and this was admitted in some of the defence evidence.
[4] We are satisfied that it was wilful, and pertinent to that the defendant himself, admitted to being angry.
[5] The question of whether the Dog Control Officer was acting within his power, appears to be covered by Section 14 of the Act. This requires that there be good cause to suspect an offence against the Act. The evidence that we have heard suggests that the Council and the Dog Control Officers had had complaints regarding the specific area of Methven. There is no evidence that it was a blanket door-knocking, as has been claimed by counsel of the defence.
[6] We have heard evidence from the prosecution that the dog in question was seen in the window and there is evidence that no dog was registered to that address.
[7] Section 13 of the Act requires that on request, the Dog Control Officer will show a warrant of appointment. We accept the Dog Control Officer’s evidence that he showed a card and that it was the correct card, being a warrant of appointment.
[8] Counsel for the defence has pointed to three pieces of case history.
R v Thomas 1991, Tirikatene v New Zealand Police 1989 case and Burton v
Power, and older 1940 case. All of these appear to relate to alleged obstruction by the Police in the execution of their duties.
[9] The Court is of the view that there is no precedent in those cases which precludes a finding that the Dog Control Officer, in the present case, was acting within the valid authority under Section 18 of the Dog Control Act.
[10] Therefore we find that the charge of wilful obstruction is proven and we order the fine of $750 to be paid and there will be Court costs of $130.
…
Grounds of appeal
[23] Mr Fournier advanced the following grounds of appeal:
i)Mr Chettleburgh’s entry onto the property was not in the exercise of his powers. His evidence was that he was not entering to inspect a dog, he was there searching for a dog and therefore he did not have the power of entry conferred on him under s 14 of the Dog Control Act.
ii)The offence created by s 18 is an offence which requires proof of mens rea beyond reasonable doubt. In particular, the prosecution was required to prove that Mr Williams knew Mr Chettleburgh was a dog control officer and knew that he was exercising his powers.
iii)The Justices’ reasoning processes were flawed in that they failed to properly analyse the evidence, failed to address the onus and standard of proof and failed to give reasons for their findings of credibility.
iv)The manner in which Mr Chettleburgh exercised his powers was unreasonable. In particular, he failed to produce his warrant, held the dog improperly, came into bodily contact with Ms McAlpine in seizing the dog, and when advised by the police comms operator, refused to release it and leave.
[24] I turn now to consider each of these in turn.
The power of entry under s 14
[25] Section 14 states:
14 Power of entry
(1)Where any dog control officer has good cause to suspect that an offence against this Act or against any bylaw made under this Act is being committed on any land or premises, the dog control officer, and all persons he or she calls to his or her assistance, may enter at any reasonable time onto the land or premises—
(a)To inspect any dog for the time being appearing to be kept on that land or premises or to inspect the conditions in which any such dog is kept; and
(b)If authorised under any other provision of this Act, to seize or take custody of any dog on the land or premises.
(2)Where any dog control officer has good cause to suspect that an offence against this Act or against any bylaw made under this Act has, at any time in the preceding 6 months, been committed in respect of any dog for the time being appearing to be kept on any land or premises, the dog control officer, and all persons he or she calls to his or her assistance, may enter at any reasonable time onto the land or premises—
(a) To inspect any dog on the land or premises; and
(b)If authorised under any other provision of this Act, to seize or take custody of any dog on the land or premises.
(3) Nothing in this section shall authorise any dog control officer to enter any dwellinghouse unless—
(a) the entry is authorised by a warrant given by a District Court
Judge on written application on oath; and
(b) He or she is accompanied by a constable.
(4) This section is subject to any express provision to the contrary in this
Act.
[26] The section requires a dog control officer to have good cause to suspect, and Mr Fournier submits that on the evidence at the time Mr Chettleburgh entered the property, he did not have good cause to suspect. Rather, he was on a fishing
expedition. Mr Fournier highlighted the conflict in the evidence between Mr
Chettleburgh and that of Ms Foley on this issue.
[27] My assessment is that it is not actually necessary for me to determine whether or not Mr Chettleburgh did have good cause to suspect at the time he entered the property. That is because I am satisfied he and Ms Foley had an implied licence to enter, as does any person entering the property. It is clear from decisions relating to equivalent provision regarding police that the common law implied licence is not ousted by specific provisions such as s 14: see Quintal v Police [1992] 3 NZLR 499. The evidence is clear that Mr Chettleburgh went by the most direct route to the front door. His implied licence was never revoked, and in particular, had not been revoked before he had seen the dog and ascertained from the occupier that the dog was unregistered. At that point, even on Mr Williams’ own version of events, Mr Chettleburgh did have good cause to suspect. Therefore, in my view, the argument based on s 14 is untenable.
Mens rea
[28] Unfortunately it appears there is no authority which has considered whether an offence under s 18 requires proof of the defendant’s knowledge as to the identity of the complainant as a dog control officer, and knowledge that he was acting in execution of his powers vested under the Act.
[29] I accept Mr Fournier’s submission that by analogy the reasoning of such decisions as R v Thomas [1991] 3 NZLR 141 (CA) and Waaka v Police [1987] 1
NZLR 754 must apply and that proof of knowledge is therefore required. I am reinforced in that conclusion by the presence of the word ‘wilfully’ that appears in s18, and also by the existence of s 13 which requires the dog control officer to produce his warrant on request.
[30] I disagree with Mr O’Connor’s submission that the police cases can be distinguished on the grounds they were decided in the context of police attempting to exercise powers of arrest. A dog control officer may not have that power, but he does have the power to seize property.
[31] I am therefore satisfied that mens rea does apply to the various ingredients of the offence.
[32] That then leads to the issue of Mr Williams’ knowledge.
[33] A crucial item of evidence bearing on the issue of his knowledge was whether or not the card that was shown to him was a warrant or whether it was some other card.
[34] In their decision, the Justices baldly state they accept Mr Chettleburgh’s evidence that he did produce a warrant. However, they give no reason as to why they disbelieve Mr Williams’ evidence.
[35] The case law about the obligation of Justices to give reasons is to the effect that there is no absolute obligation. It all depends on the facts of the case and the nature of the issue: see R v Awatere [1982] 1 NZLR 644; R v Jeffries [1999] 3 NZLR
211.
[36] In my view, in the circumstances of this case it was incumbent on the Justices to give at least a brief statement of the reasons why they did not believe Mr Williams, or why they did not consider his evidence gave rise to a reasonable doubt.
[37] This was an important if not pivotal issue. The evidence established that Mr Williams, who is a vet, was familiar with the obligations under the Dog Control Act. In particular, he was very familiar with warrant cards and their contents. He stated in evidence that he had looked long and hard at the card.
[38] In my view, if there is a reasonable possibility that Mr Williams was not shown a warrant card and then prevented Mr Chettleburgh leaving the property until the police arrived and/or until he was satisfied as to Mr Chettleburgh’s identity and authority, then that would mean the charge was not proven.
[39] I am left in considerable difficulty. Mr Chettleburgh did have in his possession a card of the type Mr Williams claims to have been shown and Mr Chettleburgh was not wearing his spectacles. There are also some troubling aspects
of the evidence given by Mr Chettleburgh and Ms Foley which could bear on credibility. In particular I refer to Mr Chettleburgh’s assertion that he put the dog in the van when it was clear he did not. It was an assertion he was very quick to make when being questioned about where he had parked his vehicle. There was also evidence that Ms Foley, in an earlier email, appeared to have acknowledged that both Mr Chettleburgh and Ms McAlpine had reached for the dog at the same time, yet her evidence at the hearing was different.
[40] Mr Williams’ evidence was supported by Ms McAlpine who, from a reading of the transcript, comes across as an honest witness. She, for example, did not attempt to embellish the making of the contact between her and Mr Chettleburgh, accepting it was not intentional.
[41] In circumstances such as this where the Justices have not given reasons when they should have done, an appellate Court can either send the matter back to the Justices for a rehearing or undertake its own analysis of the evidence. The offence, although no doubt important to Mr Williams, is not in my view such as to warrant a rehearing. It is clear that an appellate Court is entitled to conduct its own review.
[42] I have undertaken that task very carefully, having read the full transcript. For the reasons I have already identified, I am left with a sense of unease about the finding the charge was proven. I think the evidence does leave one with a reasonable doubt regarding Mr Williams’ knowledge as to the identity of Mr Chettleburgh as a dog control officer and his knowledge about whether Mr Chettleburgh was acting in the execution of his powers.
[43] It follows that I am going to allow this appeal. I would, however, like to add that I do not consider the council or Mr Chettleburgh was acting unreasonably in their adoption of a policy that required generally that all unregistered dogs should be seized. Dog control is an important social issue and it is only right that the authorities take a strict view, such as the Ashburton District Council has taken. I would also like to add that the evidence does not reflect particularly well on Mr Williams. I suspect that in hindsight he no doubt regrets some aspects of his behaviour which do not, in my view, reflect well on him.
[44] However, that said, as I have stated I cannot be satisfied beyond reasonable doubt that the necessary mens rea has been proved. In those circumstances, the appeal is allowed and the decision of the Justices is set aside.
Solicitors:
T W Fournier, Christchurch
Crown Solicitor’s Office, Timaru
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