TAURANGA CITY COUNCIL v FRASER [2022] NZHC 2884

TAURANGA CITY COUNCIL v FRASER [2022] NZHC 2884 [3 November 2022]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-000110[2022] NZHC 2884IN THE MATTER OF Section 58 of the Dog Control Act 1996BETWEEN TAURANGA CITY COUNCILApplicantAND HELEN TINA FRASERRespondentHearing: 3 November 2022(Heard at Rotorua)Appearances: N A Speir for ApplicantRespondent in personJudgment: 3 November 2022ORAL JUDGMENT OF WYLIE JSolicitors/counsel:Rice Speir, AucklandCopy to:Ms H T FraserIntroduction[1] The applicant, the Tauranga City Council (the Council), seeks the Court'sleave to appeal a reserved judgment given by Judge I D R Cameron in the DistrictCourt at Tauranga on 12 July 2022.1[2] The application for leave is opposed by the respondent, Helen Fraser.Background[3] Ms Fraser is the owner of a Rottweiler dog named Chopper. On 14 October2021, Chopper attacked Dr Liza Schneider, a veterinarian in Tauranga. Dr Schneidersuffered a serious injury as a result of the attack.[4] Ms Fraser was charged pursuant to s 58 of the Dog Control Act 1996. It wasalleged that she was the owner of a dog that had attacked a person causing seriousinjury.[5] At the time, Ms Fraser was represented by counsel and there was a largemeasure of agreement between counsel for both parties. Both agreed that the elementsof the offence had been made out and that, because the offence was one of strictliability, the sole issue for trial was whether or not Ms Fraser could establish thedefence of total absence of fault. Counsel signed a joint memorandum recording this.[6] The matter proceeded to trial. Judge Cameron reviewed the evidence presentedto him and he canvassed the circumstances in which Ms Fraser had taken Chopper tothe veterinary clinic and in which the attack occurred. Relevantly, the Judge stated asfollows:[21] In cross-examination, Ms Fraser agreed with Mr Speir for theTauranga City Council that had Chopper remained in the vehicle the risk of anattack would have been lessened. She also agreed that in hindsight sheregretted leaving her son Billy with the dog while she went into the clinic toreturn paperwork and to enquire as to the delay. Despite this, an objectiveassessment of the situation is required so as to determine who had the effectivecontrol of the situation and from what point. I find that the circumstanceswere that Dr Schneider, a very experienced veterinary surgeon of some1 Tauranga City Council v Fraser [2022] NZDC 12499.22 years, was confronted with a situation where a new client had not followedthe clinic's instructions to keep her dog in the car until assessed for safetypurposes. Dr Schneider had never met or seen the dog before. Dr Schneiderknew at the very least that the dog was unpredictable with other dogs. Thevery purpose of having the dog in the car was to ascertain whether the dogcould be safely let out of the vehicle or would require sedation before so doing.The evidence establishes that knowing that the clinic's safety plan had notbeen followed, Dr Schneider chose not to speak to Ms Fraser or her son Billyabout returning the dog to the car or alternatively muzzling the dog. Instead,Dr Schneider walked past Ms Fraser and got between her and Billy and thedog, masked and speaking in a loud voice. I agree with Ms Fraser's opinionthat these factors are likely to have spooked the dog. Dr Schneider walkeddirectly to a point some two metres away from Chopper. Chopper then lungedat Dr Schneider twice and fastened his jaws around her forearm, causingserious injuries. Billy held onto the lead but the dog was too strong to be heldon a tight lead. At no time while in the carpark prior to the attack had Choppershown any signs of aggression whatsoever. I accept the evidence of Ms Fraserthat Chopper was sitting quietly on a lead being held by her 13 year old sonBilly.[22] In the result, I consider that Dr Schneider was responsible fordetermining how the situation should be handled from the moment she walkedout of the clinic and saw Chopper out of the car. From that point she was in aposition to take appropriate steps to maintain and exercise control. She failedthough to take any steps to maintain and exercise control, despite having everyopportunity to do so. Had she done so, the incident would have been avoided.I consider that Dr Schneider put herself in a position where she was vulnerableto attack by a dog who had not been assessed for safety purposes.[23] Thus the defence of total absence of fault is established, and the chargeis dismissed.(Citations omitted.)The Council's application[7] The Council seeks leave to advance the following question on appeal:Did the Judge's finding that the victim was in effective control of the situationat the time of the attack lead the Court into error in its assessment of the totalabsence of fault defence.Analysis[8] Leave is required pursuant to s 296 of the Criminal Procedure Act 2011. Thereis a right of appeal against a ruling by a trial Court, but only with leave and only on aquestion of law. The question of law must arise either in proceedings that relate to orfollow the determination of the charge, or in the determination of the charge (includingwhere there is an acquittal). The question of law must not be one that arises from ajury verdict or arose before the trial and has already been decided.[9] It is a prerequisite to an application for leave that a person is charged with anoffence. Here, this criterion is met. As noted, Ms Fraser was charged pursuant to s 58of the Dog Control Act. Further, an application for leave must be in relation to aquestion of law arising from a ruling by the trial Court. Here, the Judge ruled on theapplication of the defence of total absence of fault. He found that the defence hadbeen made out and he acquitted Ms Fraser.[10] The question that the Council wishes to advance on appeal appears to raise anissue of law – in essence whether, on the factual findings made by the Judge, thedefence of total absence of fault was open to Ms Fraser. The Council seeks to arguethat the Judge misdirected himself in law as to the availability of the defence, that hetook into account irrelevant considerations and failed to take into account relevantconsiderations. These matters raise issues of law.2[11] Having heard today from Mr Spier for the Council and from Ms Fraser inperson, in my judgment, it is appropriate to grant the Council leave to appeal. First,the case attracted a significant amount of public interest at the time. There are anumber of people in Court today and the hearing is being covered by the media. Thepublic interest in this matter does not seem to have abated. Secondly, the proposedquestion of law raises an issue of general importance. There have been a number ofcases seeking to challenge findings made by the Courts in relation to various of theprovisions in the Dog Control Act, in particular, findings made in relation to thoseprovisions in the Act that create offences of strict liability. The only defence to suchoffences is the total absence of fault defence. There is a public interest in clarifyingthe nature and availability of this defence.[12] Accordingly, I grant leave to the Council to raise the proposed question of lawon appeal.2 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].[13] At my request, Mr Spier and Ms Fraser liaised. I make the following directionsby consent:(a) the appeal is to be heard in the High Court at Tauranga on 2 March2023 at 10.00 am – estimated time, two hours;(b) the Council and Ms Fraser are to liaise and agree a common bundle ofdocuments. If there is any dispute, the same is to be referred to theCourt by way of telephone conference for direction;(c) the Council is to file and serve the common bundle of documents andits submissions on or before 3 February 2023;(d) Ms Fraser is to file and serve her submissions on or before 17 February2023;(e) leave is reserved to the parties to seek an amendment to this timetableshould the same prove necessary.[14] Mr Spier and Ms Fraser should note that the dates given in [13](c) and (d) areslightly different from those given in open Court. Unfortunately, the calendar I usedin open Court was a 2022 calendar._________________________Wylie J