Giraldo v Police

[2013] NZHC 3392

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2013-454-30 [2013] NZHC 3392

BETWEEN  NELSON GIRALDO Appellant

ANDNEW ZEALAND POLICE Resondent

Hearing:                   16 December 2013

Appearances:           J G Turnbull for the appellant

B D Vanderkolk for the respondent

Judgment:                16 December 2013

Reasons:                  16 December 2013

REASONS FOR ORAL JUDGMENT OF CLIFFORD J

Introduction

[1]      The   appellant,   Nelson   Giraldo,   was   convicted   of   an   offence   under s 57A(2)(a) of the Dog Control Act 1996, his dog Frost having been found to have rushed at a person or persons causing that person or persons to be endangered. Mr Giraldo was convicted of that offence after a defended hearing in the District Court at Palmerston North on 24 April 2013.

[2]      Subsequently, on 12 August 2013 an order was made in the District Court at

Palmerston North for the destruction of Frost pursuant to s 57A(2)(b) of that Act.

[3]      Mr Giraldo now appeals against that destruction order.

NELSON GIRALDO v NEW ZEALAND POLICE [2013] NZHC 3392 [16 December 2013]

[4]      At this morning’s hearing of the appeal Mr Turnbull, counsel for Mr Giraldo, advanced one argument: that was that, in making the destruction order, the Judge had not specifically referred to s 57A(2)(b) thus, in Mr Turnbull’s submission, calling into question the legality of the destruction order.

[5]      I gave an oral judgment earlier this morning dismissing Mr Giraldo’s appeal

and now record my reasons for doing so.

[6]      It is clear from the notes of the Judge’s sentencing decision that:

(a)      Mr Giraldo  was  originally  charged  under  s 57(1)(a)  of  the  Dog Control Act.   The  Judge  amended  the  Information,  replacing  that charge  with  one  under  s 57A.    Mr Giraldo  was  convicted  under s 57A(2)(a).

(b)Mr Giraldo’s  counsel  at  the  time  had  submitted  that  Mr Giraldo should have a further opportunity to demonstrate he could manage Frost,  rather  than  the  Judge  ordering  destruction  of  Frost  under s 57A(2).  I note that the record of the Judge’s decision refers at this point to s 57(a)(2): that is a manifest error.  There is no such section. Given counsel’s submission, I think it is clear that it is s 57A(2) that has been referred to.

(c)       The Judge subsequently made the destruction order, it being abundantly clear that, in those circumstances, the Judge was acting under s 57A(2), and more particularly s 57A(2)(b).

[7]      In  those  circumstances,  I  did  not  think  any  question  of  illegality  arises because of any omission to refer to s 57A(2)(b) itself, as opposed  to s 57A, or s 57A(2).

[8]      I therefore dismissed Mr Giraldo’s appeal.

“Clifford J”

Solicitors:

J G Turnbull, Barrister, Palmerston North. Crown Solicitor, Palmerston North.