King v South Waikato District Council no.2

[2012] NZHC 3305

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-463-73 [2012] NZHC 3305

BETWEEN  CAROLYN ROSE KING Appellant

ANDSOUTH WAIKATO DISTRICT COUNCIL Respondent

CRI 2012-463-8

AND BETWEEN            SOUTH WAIKATO DISTRICT COUNCIL Appellant

ANDCAROLYN ROSE KING Respondent

Hearing:         (on the papers)

Counsel:         S N Ngapo-Lipscombe and A E Ngapo-Lipscombe for Ms King

M J Hammond and S Plant for South Waikato District Council

Judgment:      7 December 2012

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 7 December 2012 at 3.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Ngapo-Lipscombe Law, PO Box 518, Tokoroa

Tompkins Wake, PO Box 258, Hamilton

KING V SOUTH WAIKATO DISTRICT COUNCIL HC ROT CRI 2011-463-73 [7 December 2012]

[1]      On  4  September  2012,  I  gave  judgment  on  Ms  King’s  appeal  against conviction on charges brought under s 57(2) of the Dog Control Act 1996 (the Act) and South Waikato District Council’s separate appeal, by way of case stated on a question of law, arising out of the charge alleging that Ms King’s dog, Jimbo, had attacked a rabbit.[1]

[1] King v South Waikato District Council [2012] NZHC 2264.

[2]      I allowed Ms King’s appeal.[2]   I set aside the two convictions entered against Ms King and the sentences imposed in consequence, including the order for destruction of Jimbo on the charge involving the alleged attack on another dog, Justice.[3]

[2] CRI 2011-463-73.

[3] King v South Waikato District Council [2012] NZHC 2264, at para [35].

[3]      I directed a rehearing on the information charging the attack on the rabbit. No rehearing was ordered in respect of the attack alleged on Justice.[4]

[4] Ibid, at paras [36] and [37].

[4]      Mr Hammond, for the Council, has drawn to my attention that I omitted to make any formal order on the Council’s separate appeal.   Having reviewed my judgment I agree with Mr Hammond and apologise for the oversight.

[5]      The question of law posed for the Court was whether the District Court Judge ought to have made a decision on whether to order destruction of the dog once he found that the attack on the rabbit had been proved beyond reasonable doubt.[5]   That question must be answered “yes”.  Section 57(3) of the Act makes it clear that once the Court is satisfied that a dog has committed an attack to which s 57(1) refers the Court   must   make   an   order   for   destruction   in   the   absence   of   exceptional

circumstances.

[5] Ibid, at para [4].

[6]      On the Council’s separate appeal,[6]  I answer the question posed as follows: The District Court Judge was required to determine whether an order for destruction

[6] CRI 2012-463-8.

of the dog ought to be made, applying s 57(3) of the Act.

P R Heath J

Delivered at 3.00pm on 7 December 2012