Greendrake v McConnochie - [2023] NZHC 2166

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-8

[2023] NZHC 2166

BETWEEN
EUGENE GREENDRAKE

Appellant

AND

WAYNE ALEXANDER McCONNOCHIE

Respondent

Hearing: 24 July 2023

Appearances:

N M Pender for Appellant

No appearance for Respondent

Judgment:

14 August 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 14 August 2023 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

GREENDRAKE v McCONNOCHIE [2023] NZHC 2166 [14 August 2023]

Introduction

[1] Eugene Greendrake brought a private prosecution against Mr McConnochie following an attack, by a dog, on two of his ducks. Charges were laid under the Dog Control Act 1996 and the Animal Welfare Act 1999.

[2] Judge Walker dismissed the charges at the conclusion of the trial in the District Court on the basis the evidence was insufficient to prove the charges.1 Mr Greendrake unsuccessfully sought leave to appeal that decision from Osborne J in this Court.2

[3]Judge Walker then awarded costs in favour of Mr McConnochie in the sum of

$10,000.3

[4]Mr Greendrake appeals this decision on the basis it:

(a)relied on mistaken assumptions;

(b)overlooked relevant considerations;

(c)took into account irrelevant considerations, namely the SPCA’s decision not to prosecute;

(d)was irrational and inconsistent with previous findings; and

(e)raises an issue of public policy insofar as it could have a chilling effect on the rights of lay litigants to bring private prosecutions.

Facts

[5] The facts of this matter have been fully covered in previous judgments, including the verdict judgment and the leave to appeal judgment of Osborne J.

1      Greendrake v McConnochie [2021] NZDC 19459.
2      Greendrake v McConnochie [2022] NZHC 1369.
3      McConnochie v Greendrake [2022] NZDC 25061.

[6] For the purpose of this judgment, it is sufficient to say that on 19 August 2018, two of Mr Greendrake’s Pekin ducks were attacked by a dog. One duck was killed and the other severely wounded. Mr Greendrake believed the attack was carried out by the defendant’s dog as a neighbour heard a noise then saw the defendant putting his dog in his vehicle, and shortly afterwards found the dead and injured ducks. When the SPCA declined to pursue the matter, Mr Greendrake resolved to prosecute the matter himself. He then obtained evidence from a neighbour who was an eyewitness to the attack.

[7] There was a dispute over whether the charges had been accepted for filing in the District Court, but that was resolved in an application for review heard by me.4 Mr McConnochie was served with, but did not participate in those proceedings.

[8] In due course, the prosecution proceeded in the District Court. However, in his decision on the charges, the Judge found there were significant shortcomings in Mr Greendrake’s efforts to prove the charge. The eyewitness, an elderly lady, was not able to identify matters with great specificity, was inconsistent in relation to important facts like the type of dog she saw, was unable to identify…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Greendrake v McConnochie

Details

AGLC: Greendrake v McConnochie [2023] NZHC 2166
Case: [2023] NZHC 2166
Decision Date: 14 August 2023

CaseChat Overview and Summary

Eugene Greendrake brought a private prosecution against Wayne Alexander McConnochie following an attack by a dog on two of his ducks. The charges were laid under the Dog Control Act 1996 and the Animal Welfare Act 1999. Judge Walker dismissed the charges in the District Court, finding insufficient evidence to prove the charges. Mr Greendrake sought leave to appeal this decision, which was refused by Osborne J. The Judge then awarded costs in favour of Mr McConnochie in the sum of $10,000. Mr Greendrake appeals this decision, arguing that it relied on mistaken assumptions, overlooked relevant considerations, took into account irrelevant considerations, was irrational, and raises an issue of public policy concerning the rights of lay litigants to bring private prosecutions.

The legal issues the Court was required to decide included whether the costs order was justified under the Costs in Criminal Cases Act 1967 and the Criminal Procedure Act 2011, whether the Judge erred in considering certain factors such as the SPCA's decision not to prosecute and Mr Greendrake's personal involvement in the matter, and whether the costs order could have a chilling effect on the rights of lay litigants to bring private prosecutions.

The Court found that while the Judge had the advantage of hearing how Mr Greendrake pursued the proceedings, it was difficult to see that this translated to circumstances which warranted an award of increased costs in a criminal case. The Court acknowledged that Mr Greendrake "took a somewhat blinkered approach" to this prosecution, which could be a circumstance warranting an award of costs under the Costs in Criminal Cases Act. However, the Court found that there was no basis for departing from the scale of costs as imposed by the regulations, as the case did not involve special difficulty or complexity, nor did the Judge identify that it did. The Court also found that there was no basis to suggest an award of costs could have been available under the Criminal Procedure Act for procedural failings.

Accordingly, the appeal was allowed in part. The costs order against Mr Greendrake was quashed, and in its place, an order was made to pay costs totalling $452.00.

Orders