Jock Anderson

Gordon, of the House of Israel, has lost his fight to have Sally, a female Border Collie, legally recognized as not a dog.

Mr Israel does not accept that Sally is a dog, claiming before Justice Paul Heath in Hamilton High Court that she “is a living being who is loved and cared for as part of the Israel household.”

After Mr Israel failed to pay Sally’s registration fee officers of the Hauraki District Council impounded the bitch.

At a defended hearing in Waihi district court in October he was duly convicted for not paying Sally’s registration fee. Sally remained impounded.

Taking the only course he felt was open to him Mr Israel appealed his conviction, fine and court costs.

Fearful that Sally may be destroyed by the men from the council, Mr Israel sought from Justice Heath an order for habeas corpus, releasing Sally from detention by the council; an Anton Piller order to search the council pound and to remove Sally into his care and an interim injunction to restrain the council from destroying Sally and requiring it to deliver her into his care.

Representing himself against Auckland legal heavyweights hired by the Hauraki council Mr Israel implored Justice Heath to accept that Sally is not a dog.

A “dog,” he argued, has a number of meanings that are “pejorative in nature.”

Mr Israel says a “dog” is something he regards as “undesirable and therefore suitable for or requiring regulation.

On the other hand, he tried to convince the judge he sees a “canine” such as Sally, who is inoffensive and a well loved member of his household as something that ought not to be the subject of regulation.

In support of his argument Mr Israel produced a document issued by Nga Uri o Tupoto (Inc), which purported to be a “Record of Canine Whanau.”

That document “certified” that Sally was a canine member of the Israel whanau/family and was recognized as a beneficiary of Nga Uri o Tupoto Maori (Inc) with appropriate rights.

The document expressly “prohibited” any unnecessary costs such as involuntary commercial registration or micro-chipping.

This was an issue of sovereignty Justice Heath found was “not arguable.”

In a nutshell His Honour was clear that Mr Israel was not entitled “to put himself outside the law of New Zealand.”

Justice Heath made short work of Mr Israel habeas corpus plea.

As the judge said, habeas corpus is designed to protect the liberty of the subject. “It ensures that human beings who are alleged to be unlawfully detained may be brought before the Court to inquire into the reasons for the detention,” the judge said.

The Habeas Corpus Act 2001 is restricted to human beings.

And the judge had the support of history, saying that since at least 1682, and referring to the well-known English case of Putt v Roster, the common law has regarded a domestic animal as a chattel.

“On that legal classification, an animal (whether a ‘dog/canine’ or cat or hamster) cannot be regarded as a ‘person’ for the purposes of the Habeas Corpus Act,” Justice Heath ruled.

He also swept away the Anton Piller bid saying it was misconceived, not designed to release a dog from impounding and could not succeed.

The interim injunction bid also failed, despite the novelty of the argument, and Justice Heath had no hesitation in concluding that Mr Israel’s arguments had no prospect of success and that the interests of justice required the law to take its course.

The judge said there was no warrant for interpreting the term “dog” as anything different from “canine.”

Calling on the Oxford English Dictionary for back-up, the judge said the term ‘canine’ was defined as ‘belonging to, or characteristic of, a dog; having the nature and qualities of a dog.’  He said the term ‘dog’ was defined by the same dictionary as ‘a quadruped of the genus Canis’.

“It is unsurprising that the term ‘dog’ is not defined by the Dog Control Act.”

“Parliament must be taken to have assumed that the citizens of this country were perfectly capable of identifying a dog when they saw one. Sally is described as a ‘female, black border collie’ who, when seen by a Dog Control Officer [on Mr Israel’s property,] was with a litter of pups.”

“That,” determined His Honour, “is ample evidence to demonstrate that Sally is a ‘dog’ for the purposes of the Dog Control Act.”

“There is no basis on which interim relief could be granted.”

Having disposed of Mr Israel’s arguments Justice Heath ordered him to pay costs and reasonable disbursements.

The fate of Sally is in Mr Israel’s hands. He may spring Sally by paying $202.50 in dog registration and associated expenses, including a micro-chipping charge.

“If, out of some misguided sense of principle, Mr Israel is not prepared to pay those costs, he must bear the responsibility for any consequences Sally may suffer,” said Justice Heath – with, CaseLoad suspects – some sympathy for man and beast.

He urged the Hauraki council to take no action until Wednesday December 20 to give Mr Israel time to reconsider his position.

Feedback on this story to jockanderson@xtra.co.nz