Epiha v Tauranga City Council

[2016] NZHC 2606

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2016-470-20 [2016] NZHC 2606

BETWEEN

NICHOLAS EPIHA

Appellant

AND

TAURANGA CITY COUNCIL Respondent

Hearing:	1 November 2016
Counsel:	N Epiha, in person, Appellant J W Howell for Respondent
Judgment:	1 November 2016

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Cooney Lees Morgan, Tauranga
Copy to:

N Epiha, Appellant

EPIHA v TAURANGA CITY COUNCIL [2016] NZHC 2606 [1 November 2016]

[1]      Mr Epiha applies for leave to bring a second appeal against his conviction for an offence against s 57(2) of the Dog Control Act 1996 and a consequential order for the destruction of the dog who allegedly attacked a person.1     The application, in respect of the conviction, is brought under s 237 of the Criminal Procedure Act 2011, while the application in respect of the destruction order relies on s 244 of that Act.

[2]      I received helpful written submissions in support of and in opposition to the application.  Following a discussion, primarily with Mr Howell for the Tauranga City Council (the council), this morning, I indicated that I proposed to grant leave on a jurisdictional question.2     I now make various orders.   I will give my reasons in writing for them later:

(a)      I make an order extending the time to bring the application for leave to make a second appeal.

(b)      I decline leave to the prosecutor to adduce further evidence on appeal.

(c)      I grant leave to appeal on the jurisdictional point only.  This issue is whether a Community Magistrate has power to hear and determine a prosecution under s 57(2) of the Dog Control Act 1996, and to make an order for the destruction of a dog under s 57(3).

(d)I allow the appeal on the jurisdictional point.  I direct that a new trial be held before a District Court Judge.   The conviction and dog destruction order are each quashed.

[3]      Mr Howell indicates that, following an inquiry yesterday with the Registrar of the District Court, a hearing date may be available on 24 January 2017.  That date would be suitable for the parties, if still available.  As the dog will be detained in the

pound in the meantime, a prompt hearing date is desirable.

1      Tauranga  District  Council  v  Epiha  DC  Tauranga  CRI  2015-470-4109,  28  January  2016 (Community Magistrate L Jensen), Tauranga District Council v Epiha DC Tauranga CRI 2015-

470-4109, 28 January 2016 (Community Magistrate L Jensen) (sentencing notes), Tauranga District Council v Epiha DC Tauranga CRI 2015-470-4109, 19 February 2016 (Community Magistrate L Jensen) at para [15].   Appeals from these decisions were dismissed by Judge Mabey QC: Tauranga City Council v Epiha [2016] NZDC 10137, at para [6] and [20].

2      This point was not raised on the first appeal to the District Court.

[4]      Before the Community Magistrate, Mr Epiha’s sister was found not guilty on a s 57(2) charge.   The Council does not intend to take any steps to resurrect that prosecution. As Ms Epiha is not a party to this appeal, the order I make in respect of

Mr Epiha does not affect the acquittal entered in respect of his sister.

P R Heath J