KULANTHAVELU v AUCKLAND COUNCIL [2023] NZHC 2374

KULANTHAVELU v AUCKLAND COUNCIL [2023] NZHC 2374 [29 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000236[2023] NZHC 2374BETWEEN SIVANESAN KULANTHAVELUAppellantAND AUCKLAND COUNCILRespondentHearing: 28 August 2023Appearances: M W Swan for AppellantC G Lloydd and J Carter for RespondentJudgment: 29 August 2023JUDGMENT OF VENNING JAppeal against convictionThis judgment was delivered by me on 29 August 2023 at 3.30 pm.Registrar/Deputy RegistrarDateSolicitors: Molloy Hucker, AucklandC Lloydd/J Carter, Auckland Council Legal ServicesIntroduction[1] Sivanesan Kulanthavelu faced charges in the District Court at Auckland inrelation to his family dog, Max, a German Shepherd. Mr Kulanthavelu ultimatelypleaded guilty to a charge under s 57(2) of the Dog Control Act 1996 in that he owneda dog that attacked a person, and to a charge that contrary to ss 35E(1) and 33EC(1)of the Act he owned a menacing dog that was at large without a muzzle.[2] In the District Court the appellant was represented by Mr Kashyap. Initiallythe charges were to be defended but on 19 May 2022, the day of the Judge-alone trial,Mr Kulanthavelu pleaded guilty to both charges. A proposed application for adischarge without conviction was not pursued.[3] On 23 March 2023 Judge P Winter ordered Mr Kulanthavelu pay the sum of$1,200.00 by way of emotional harm reparation to the victim and directed that he paya further sum of $375.00 by way of reparation for the victim's medical expenses.1 Healso made an order for the destruction of Max.[4] Mr Kulanthavelu appeals to this Court. Initially the appeal was against bothsentence and conviction. Mr Swan confirmed that the appeal against sentence is nolonger pursued. The focus is on the appeal against conviction and the consequencesof it, namely the destruction order.Leave to appeal[5] The initial appeal was filed out of time on 9 May 2023 with an amended noticeof appeal being filed on 23 June 2023. Auckland Council (the Council) does notoppose leave being granted to bring the appeal out of time. The Council accepts thatno prejudice has arisen due to the late filing. Time to bring the appeal is extendedaccordingly.21 Auckland Council v Kulanthanvelu [2023] NZDC 8245.2 Criminal Procedure Act 2011, s 231(3).Background[6] The background can be taken from the Judge's summary of the relevant facts:[2] [On] 29 January 2021 at approximately 12.45, the complainant wasout delivering newsletters. As the complainant approached the defendant'sletterbox, he saw the defendant's dog standing uncontrolled and unmuzzled atthe far end of the driveway of the defendant's property. The complainantrecognised the dog as being a dog that was always tied up at the defendant'sproperty, barking at him when he delivered newsletters. The dog growledaggressively at the complainant and ran towards him. The complainant beganto walk away along the footpath and then the dog ran after him, reached himand bit him on the right thigh from behind.[3] The dog continued to lunge at the complainant and the complainantswung an arm at the dog as it tried to bite him again. The complainant felt astrain in his right shoulder as the attack was happening. After the dog hadlunged at the complainant for about four or five times, the dog returned to thedefendant's property. The complainant then assessed his injuries and noticedblood on his thigh.[4] The complainant kept delivering his newsletters and when he reachedthe opposite side of the street to the defendant's property, observed a man atthe defendant's property. He told the man that the dog had bit him. The manapologised and told the complainant that his kids had not tied the dog up.[5] The complainant sustained two puncture wounds to his rear innerthigh and extensive bruising and tissue damage to the muscle. Thecomplainant also sustained a torn rotor cuff injury to his right shoulder andhas been receiving physiotherapy following an ultrasound x-ray. Thecomplainant sought medical treatment and a copy of the doctor's report isattached to the summary of facts but I will not read any further into that. Aphoto of the wound is also attached to the summary of facts and I have seenthat. I have also seen a copy of the ultrasound report.Appeal[7] In his submissions in support of the appeal Mr Swan submitted a miscarriageof justice had occurred. He identified five relevant errors:(a) Mr Kulanthavelu did not appreciate the jeopardy he faced in decidingto plead guilty because he understood that his remorse would be arelevant factor;(b) he did not appreciate the consequences of pleading guilty as it was notexplained to him by Mr Kashyap the Court must make an order for thedestruction of the dog unless satisfied circumstances of the offencewere exceptional;(c) Mr Kulanthavelu received erroneous advice from Mr Kashyap whichmeant he made an misinformed decision to plead guilty to the chargeon the basis an application for discharge without conviction wassuccessful would result in a court not imposing a destruction order;(d) Mr Kulanthavelu was not advised by trial counsel about the possibilityof diversion or other avenues he might have pursued to avoid theimposition of a destruction order; and(e) Mr Kulanthavelu was not advised by Mr Kashyap of the possibility ofadjourning the sentence to allow evidence to be marshalled inopposition to the destruction order to support the basis of exceptionalcircumstances.Miscarriage of justice[8] The appellant relies on a miscarriage of justice under s 232 of the CriminalProcedure Act 2011 (CPA). In his oral submissions Mr Swan referred in particular tothe failure of Mr Kashyap to advise Mr Kulanthavelu of the possibility of diversion,and the failure of Mr Kashyap to obtain further information to support the exceptionalcircumstances ground, particularly Mr Kulanthavelu's wife's severe arthritis, whichhe said had prevented her from closing the gate to keep Max on the property, had ledto a real risk the trial (the guilty plea) was affected.Relevant principles[9] In R v Le Page the Court of Appeal confirmed that an appeal against convictionfollowing a plea of guilty will only be entertained in exceptional circumstances andwhere a miscarriage of justice will result if the conviction is not overturned.3 TheCourt identified three broad circumstances where a miscarriage might occur:3 R v Le Page [2005] 2 NZLR 845 (CA).(a) the appellant did not appreciate the nature of, or did not intend to pleadguilty to, a particular charge;(b) the appellant could not in law have been convicted of the offencecharged; and(c) the plea was induced by a ruling which embodied a wrong decision ona question of law.[10] In R v Merrilees the Court of Appeal considered the possibility of a fourthcategory, noting that there could be:4A further situation where trial counsel errs in his or her advice to an accusedas to the non-availability of certain defences, or outcomes, or if counsel actsso as to wrongly, and perhaps negligently, induce a decision on the part of aclient to plead guilty under the mistaken belief or assumption that no tenabledefence existed or could be advanced.Diversion[11] Mr Kulanthavelu does not satisfy any of the first three criteria as discussed inLe Page. The appeal relies on the fourth category, that of counsel's negligence. MrSwan submitted Mr Kashyap was negligent in failing to advise Mr Kulanthavelu ofthe availability of diversion as an outcome. In his affidavit sworn for the purposes ofthe appeal, Mr Kashyap accepted he was not aware of the Council's diversion policy.[12] The fundamental problem for the appellant's submission about diversion in thepresent case is that at the time of the entry of the guilty pleas diversion was notavailable. Mr Kulanthavelu entered the guilty pleas on 19 May 2022 but the Council'sdiversion policy was not implemented until 1 December 2022.[13] Mr Swan sought to address that practical difficulty by suggesting that, as noconvictions were entered on the guilty pleas because an application for a dischargewithout conviction was to be pursued, when the diversion policy became available(which neither Mr Kulanthavelu nor Mr Kashyap became aware of) an applicationcould have been made to set aside the guilty plea to enable an application for diversion.4 R v Merrilees [2009] NZCA 59 at [34].However, with respect, that submission is entirely speculative. It would be anextremely rare situation for a Court in such circumstances to set aside a guilty plea toallow an application for diversion to be pursued.[14] Further, and in any event, the prospect of diversion in this case is not supportedby the terms of the diversion policy itself. The referral criteria in the Council'sdiversion policy document expressly refer to consideration of whether the offenderhas a history of enforcement action against them, (e.g. an infringement offence relatingto a similar breach).[15] Mr Kulanthavelu has received five previous infringement notices relating tothe dog, Max. The infringements occurred on 30 June 2016, 14 and 15 January 2018(which led to Max's classification on 23 January 2018), and then after theclassification on 21 January 2019 and 7 February 2020. While Mr Kulanthavelu ishimself a first-time offender in terms of relevant criminal history, the relevance of theinfringement notices and menacing classification for Max would have beenparticularly relevant to the consideration of diversion in this case. Further, the victim'sattitude is a relevant consideration. It is apparent from the victim's impact statementhe has been badly affected and he declined to attend a restorative justice meeting. Itis extremely unlikely that any diversion referral would have been made.[16] Mr Swan suggested it would be wrong for the Court to engage in considerationof whether diversion was likely, as to do so would be to usurp the function of theCouncil. However, as discussed with Mr Swan, it is not so much a case of usurpingthe Council's decision but rather a question of the Court considering whether it wouldgrant an application to set aside a guilty plea on the basis of a speculative reference todiversion, particularly when the diversion policy had only been implemented after theguilty plea had been entered.The other allegations of negligence[17] As noted, in his written submissions Mr Swan raised a number of othercriticisms of Mr Kashyap. He suggested Mr Kulanthavelu did not appreciate thejeopardy faced in deciding to plead guilty because he understood from Mr Kashyapthat remorse would be a relevant factor. In fact, remorse was a relevant factor and theJudge took it into account in sentencing. At [11] of the sentencing notes the Judgeexpressly took into account Mr Kulanthavelu's remorse.[18] Next, Mr Swan submitted Mr Kulanthavelu did not appreciate theconsequences of pleading guilty as Mr Kulanthavelu did not explain the Court mustmake an order for destruction of the dog unless satisfied circumstances of the offencewere exceptional. Mr Kulanthavelu supported that submission by his affidavit for thepurposes of this appeal. In it he said:21. I understand Mr Kashyap wrote to the Prosecution on 21 January 2022and attempted to negotiate a deal where I would plead guilty to thecharges in exchange for the Prosecution not seeking a destructionorder of Max. Annexed and marked with the letter C is a copy of MrKashyap's email to the prosecution. I have only become aware ofthese communications after my current counsel received copies of thecommunications from Mr Kashyap.22. On 25 January 2022 Mr Kashyap received a response from anAuckland Council Solicitor, Rosie Argyle. Annexed and marked D isa copy of the email. The email explained that it was out of theprosecution's hands as to whether to make a destruction order, butAuckland Council offered to drop the other charges provided Ipleaded guilty to the s 57(2) charge. Again, the first time I have seenthese emails was June 2023.[19] However, in his affidavit in reply, Mr Kashyap has produced copies of emailssent to Mr Kulanthavelu which answer those allegations. On 19 January 2022 MrKashyap set out his advice that the Council was seeking for Max to be euthanised andstated: "So even if you plead guilty that is what the Council will be seeking". MrKashyap then set out the draft letter he proposed to send to the Council. MrKulanthavelu replied to that email on 21 January 2002 confirming he approved thedraft letter. Mr Kashyap also provided further email correspondence sent to MrKulanthavelu on 25 January 2022 showing the Council's response and seeking furtherinstructions. To the extent there is a conflict between the evidence on this point MrKashyap's evidence is supported by the copies of the contemporaneous documents andI accept and prefer his evidence. The principles of Eng Mee Yong v Letchumananapply.55 Eng Mee Yong v Letchumanan [1980] AC 331 (PC).[20] Further, in his earlier advice to Mr Kulanthavelu on 21 September 2021, MrKashyap referred to the need to prove "special circumstances to save Max from beingput down. The special reasons have to have a direct bearing on the attack". While MrKashyap referred to "special" rather than "exceptional" Mr Kashyap's advice was insubstance correct.[21] As to the next point, Mr Kulanthavelu did not pursue the application fordischarge without conviction and in the circumstances, given the past history again, itis speculative and indeed unrealistic to suggest the Court would have adopted thatapproach.[22] Finally, Mr Swan advanced the submission that Mr Kashyap failed to obtainsufficient information from Mr Kulanthavelu to advance exceptional circumstances,namely that his wife's severe arthritic episode that day meant she was not able to closethe gate. However, Mr Kashyap says he was never advised about that. As noted,where there is a variance in the evidence, I prefer Mr Kashyap's evidence. MrKashyap's position in relation to that is also supported by the affidavit MrKulanthavelu prepared for the District Court hearing. In that affidavit he made nomention of his wife's arthritic circumstances and, in particular, said:16) On the unfortunate day of the incident Max has found a gate door atthe rear of the property left open by one of the children and has[wandered] out into the driveway area.[23] Earlier, Mr Kulanthavelu confirmed his children were aged 26, 21 and 18. Ina draft brief for the hearing Mr Kulanthavelu's son accepted he left the back door ajar.[24] Further, Mr Kulanthavelu did not personally witness the attack and could notgive evidence about what had occurred. Although his son was initially prepared tomake a statement saying he had not seen the dog bite the victim, the evidence,including photographic and medical evidence, confirmed the bite. Prior to the entryof the pleas, Mr Kashyap properly obtained written confirmation from MrKulanthavelu and his son that they would plead guilty and try and save Max's life ifpossible, even though they knew it would be hard. They did so, acknowledging thatit was likely as seen on CCTV, that Max may have bitten the complainant.[25] As the Court of Appeal confirmed in Auckland Council v Hill,6 a dog ownercannot argue that the exceptional circumstances test is met because the attack wascaused or contributed to by a one-off failure by an otherwise responsible owner tomaintain effective control of the dog. Failures to control a dog are not exceptionalcircumstances of a kind that indicate the destruction of the dog is not warranted.[26] The Judge carefully considered the relevant circumstances of the offence inthis case and correctly applied the test prescribed by the Court of Appeal in Hill. Thiscase is not dissimilar to that of Tuakalau v Auckland Council where this Court heldthat an unexpected visitor to the dog owner's property does not qualify as anexceptional circumstance warranting the avoidance of destruction.7[27] As the Judge noted in his decision Mr Kashyap had advanced everything thatcould be advanced on behalf of Mr Kulanthavelu and Max's position. The short pointis that Mr Kulanthavelu and Max had no defence to the charge under s 57 of the DogControl Act.[28] In the circumstances, there was no miscarriage of justice with the guilty pleasor in the order for destruction. There was no real risk that the decision to plead guiltywas affected or influenced by a miscarriage of justice in accordance with s 232(4) ofthe CPA.Result[29] The appeal against conviction is dismissed. The order for destruction isconfirmed.__________________________Venning J6 Auckland Council v Hill [2020] 3 NZLR 603.7 Tuakalau v Auckland Council [2019] NZHC 3252.