Johnston v Auckland Council
| Jurisdiction | New Zealand |
| Judge | Wylie J |
| Judgment Date | 09 December 2021 |
| Neutral Citation | [2021] NZHC 3363 |
| Docket Number | CRI-2021-404-000224 |
| Court | High Court |
IN THE MATTER OF an appeal against conviction and sentence under ss 232 and 244 of the Criminal Procedure Act 2011
[2021] NZHC 3363
CRI-2021-404-000224
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
Animals, Bill of Rights — appeals against conviction for a dog attack and order for the destruction of the dog — the appellants dog was being walked off leash and attacked and killed 2 domestic animals — strict liability offences — defences — mens rea — absence of fault — presumption of innocence — exceptional circumstances to prevent destruction of the dog — Criminal Procedure Act 2011 — Dog Control Act 1996 — New Zealand Bill of Rights Act 1990
Appellants in person and with R Simpson as a McKenzie friend
L V Faletau for Respondent
The appeal was dismissed.
This judgment was delivered by Justice Wylie On 9 December 2021 at 2.00 pm Registrar/Deputy Registrar
Date:
On 20 April 2021, following a trial before Judge J F Munro in the District Court at North Shore, the appellants, Alexandra Johnston and Graham Johnston, were found guilty of two offences against s 57(2) of the Dog Control Act 1996 (“the Act”). 1 They were fined $750 and ordered to make emotional harm payments of $150 to each of the victims of the offending. The Judge also made an order pursuant to s 57(3) of the Act for the destruction of the dog.
On 10 May 2021, Mr and Mrs Johnston filed an appeal against both conviction and sentence. They filed comprehensive submissions in support of their appeal raising a large number of issues, many of which are beyond the scope of this appeal.
The appeal is opposed by the respondent, Auckland Council (“the Council”).
The charges faced by Mr and Mrs Johnston were in identical terms. It was charged that each of them owned a black and white coloured male Siberian Husky named Aspen. It was alleged that, on 23 May 2020, while Mr Johnston was in control of Aspen at Glamorgan Drive, Torbay, the dog attacked two domestic animals — a chicken and a guinea pig.
On 19 October 2020, both Mr and Mrs Johnston entered not guilty pleas to the charges. Both of them had however been interviewed by an animal management officer from the Council and both had given statements. So had the owners of the chicken, Sandra and Cesara Chwieduk, and the owner of the guinea pig, Belinda Tustin. The key facts were not in dispute. At trial, Mr and Mrs Johnston accepted that the offences had occurred.
The Judge summarised the position as follows:
[1] … The defendants have pleaded not guilty to the charges, although the facts of the case are not in dispute. The defendants accept that their dog did attack a chicken and killed it and also caused the death of the guinea pig. They accept that the dog was not under proper control at the time and that they
are liable pursuant to s 57(2). They accept that an offence occurred and that they are liable for a fine and any damages.
A summary of the agreed facts was read in Court. The Judge recorded these as follows:
[3] On 23 May 2020 Mr Johnston took Aspen out for a walk on the beach near their home. He let Aspen off his lead and Aspen ran off. Mr Johnston was unable to call him back and Aspen ran approximately 300 metres to the property at 2 Glamorgan Drive and attacked and killed one chicken. There is some evidence to suggest that there may have been two chickens killed but the charge relates to one only. Mr Johnston pursued Aspen but by the time he reached the property Aspen was coming down the drive with a chicken in his mouth. The chicken was found dead on the driveway of the property shortly after. Aspen then went to the next door property at 4 Glamorgan Drive, entered a guinea pig enclosure and caused the death of one guinea pig. Mr Johnston pursued Aspen onto that property but by the time he reached it the guinea pig was lifeless.
[4] It is accepted that Aspen caused the death of at least one chicken and the guinea pig and that he was not under proper control. Following complaints by the owners of the chicken and the guinea pig the Council Officer visited the properties the following day and as a result Aspen was seized. He was returned to the care of Mr and Mrs Johnston subsequently on conditions of being muzzled and only permitted to be taken out for exercise during certain hours of the day. Because those conditions were not strictly complied with the Council seized Aspen again and he remains in the custody of the Auckland Council.
The respondent, Auckland Council (“the Council”), nevertheless called five witnesses — Mrs Chwieduk, Mr Chwieduk, Ms Tustin, Jaques Joubert (an animal management officer employed by the Council) and Carly Triska (a senior animal management officer employed by the Council). Both Mr and Mrs Johnston gave evidence. They called two witnesses, Elly Waitoa (a team leader in the Council's animal management team) and Cody Taylor (at the relevant time also an animal management officer employed by the Council). All witnesses gave evidence viva voce and each was cross-examined.
As a result of the way matters unfolded at the trial, the primary issue before the Judge became the destruction of Aspen. Mr and Mrs Johnston sought to satisfy the Court that the circumstances of the offence were exceptional and that his destruction was unwarranted.
The essence of Mr and Mrs Johnston's arguments under s 53 of the Act were summarised by the Judge as follows:
[9] Mr and Mrs Johnston were self-represented in this case. They are aware of the relevant law. They understand the legal meaning of “strict liability”. They have also read the Court of Appeal decision of Auckland Council v Hill. They are aware that the burden of proof is on them to prove exceptional circumstances.
[10] The defendants argue that the owner of the chickens failed to comply with the by-law which requires the owner of chickens to keep them confined on to their property. They allege that the chickens are not properly confined and that they are free to roam, not only on the unfenced property of their owners, but also onto the grass berm outside their property. They allege that the chicken coop was not adequate to prevent the chickens from roaming despite the fact that the coop does have a wooden gate. In relation to the guinea pig the defendants also allege that the coop was not adequate to prevent a dog from entering it.
[11] The thrust of the defendants' argument relating to exceptional circumstances is that there is an onus on the owners of these domestic animals to keep them confined to the extent that a dog would not have access to them and that particularly in the case of the chickens the owners were in breach of the by-law, and the failure of the owners of both the chickens and the guinea pig constitutes an exceptional circumstance and satisfies the test under s 57(3).
[12] In relation to the guinea pig, the defendants apportion some blame on the owners of the chickens for preventing Mr Johnston from gaining control over Aspen before he went to the neighbouring property, by engaging him in a heated discussion regarding the event.
[13] There have been previous difficulties between the defendants and Mr and Mrs Chwieduk, the owners of the chickens. There was a similar incident in August 2019 and concerns have been raised by the defendants that the chickens have been allowed to roam off the property regularly. I note that neither of the defendants were on the property nor witnessed the actual attack on the chickens. There is no evidence before the Court that any chickens were outside of their enclosure on the day of the attack, although photographic evidence has been submitted indicating chickens off the property on dates prior to and later than the day of the attack.
[14] Mrs Johnston has taken steps to address the failure of Mr and Mrs Chiedwick to comply with the relevant by-law by raising the issue with the Council to little or no avail.
The Judge considered these arguments and the evidence adduced and concluded that the threshold of exceptional circumstances set out in s 57(3) of the Act had not been met. She held as follows:
[15] The question is whether any perceived failure on the part of the owners of the domestic animals to ensure their containment constitutes a special circumstance, particularly given their obligation to comply with the by-law. I have not been provided with any case law on this point. There does not appear to be any authority to suggest that the onus is on owners of domestic animals to prevent a dog attack. In any event, the evidence before me is that the chickens were in their coop on the day, and the owners witnessed the dog enter the coop and attack the chickens. There were no other witnesses to the attack.
[16] The onus is clearly on the owner of the dog to prevent attacks on domestic animals. That is made clear in s 4(a)(iv) of the Act which provides that one of the objects of the Act is to “make better provision for the care and control of dogs by imposing on owners of dogs obligations designed to ensure that dogs do not injure, endanger, or cause distress to any stock, poultry, domestic animal or protected wildlife”. This is repeated in s 5, confirming the obligations of dog owners to keep the dog under control at all times.
[17] I do not accept the defendants' argument that whether the chickens were confined or not, and whether the guinea pig was adequately confined, could constitute exceptional circumstances of the offending.
The Judge concluded as follows:
[18] In making my decision I am acutely aware of the distress that an order for destruction will have on Mr and Mrs Johnston and their son. Aspen is a much-loved member of their family. I acknowledge that distress, however...
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