High Court: No miscarriage of justice in dog bite case

The High Court, upholding an order for destruction in a dog bite case, found no miscarriage of justice with the guilty pleas or the order for the destruction of the dog.

In Kulanthavelu v Auckland Council [2023] NZHC 2374, Sivanesan Kulanthavelu faced charges related to his German Shepherd dog, Max. Kulanthavelu ultimately pleaded guilty to owning a dog that attacked a person and owning a menacing dog that was at large without a muzzle. The charges stemmed from an incident where Max bit a person delivering newsletters.

The complainant was delivering newsletters on 29 January 2021 when he saw the dog standing uncontrolled and unmuzzled at the far end of the driveway of Kulanthavelu's property. The complainant recognised the dog as the one was always tied up at the defendant's property and barking at him when he delivered newsletters. The dog growled aggressively at the complainant and ran towards him. The complainant began to walk away along the footpath. The dog ran after him, reached him, and bit him on the right thigh from behind.

As a result, the complainant sustained two puncture wounds at his rear inner thigh and extensive bruising and tissue damage to the muscle. He also suffered an injury to his right shoulder, which led to him receiving physiotherapy.

Kulanthavelu appealed from the judgment of conviction to the High Court. He argued that there had been a miscarriage of justice, that he did not appreciate the consequences of pleading guilty, and that his counsel had been negligent. He claimed that his counsel failed to advise him on the possibility of diversion or other avenues he might have pursued to avoid the imposition of a destruction order.

The High Court rejected Kulanthavelu's appeal. It held that it would only entertain a miscarriage of justice following a guilty plea in exceptional circumstances. The court identified four broad categories of miscarriages of justice – where the appellant did not appreciate the nature of the charge, where the appellant could not in law have been convicted of the offence, where a wrong decision on a question of law induced the plea, and where counsel negligently caused the plea.

The court also found that the fundamental problem for Kulanthavelu's claim for diversion was that, at the time of the entry of the guilty plea, diversion was not available. The court said it would be extremely rare for a court to set aside a guilty plea to allow the pursuit of an application for diversion.

The court also rejected Kulanthavelu's other allegations of negligence, including claims that he did not understand the jeopardy he faced and that counsel failed to obtain sufficient information to support exceptional circumstances.

The court noted that, on the day of the incident, Max found a gate door at the rear of the property left open by one of Kulanthavelu's children and wandered out into the driveway area. The court cited case law stating that a dog owner could not allege exceptional circumstances on the basis that a one-off failure by an otherwise responsible owner to maintain effective control of the dog caused or contributed to the attack. The court said that failures to control a dog were not exceptional circumstances that indicated the dog's destruction was unwarranted.

Ultimately, the High Court ruled that there was no miscarriage of justice with the guilty pleas or the order for the destruction of the dog. There was no real risk that a miscarriage of justice affected or influenced the decision to plead guilty. The court dismissed the appeal against conviction and confirmed the order for destruction.