Korewha v Whangarei District Council - [2017] NZHC 3178

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF CHILD COMPLAINANT/WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-47 [2017] NZHC 3178

BETWEEN
TANIA JOSEPHINE MICHELLE

KOREWHA Appellant

AND

WHANGAREI DISTRICT COUNCIL Respondent

Hearing: 11 December 2017

Appearances:

Appellant in person
A Harvey for the Respondent
C Hollings as amicus curiae

Judgment:

18 December 2017

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 18 December 2017 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Parties / Solicitors / Counsel: Ms TJM Korewha
Mr A Harvey, Thomson Wilson Law, Solicitors, Whangarei
Ms C Hollings, Barrister, Auckland

KOREWHA v WHANGAREI DISTRICT COUNCIL [2017] NZHC 3178 [18 December 2017]

[1] The appellant, Ms Korewha, appeals against her conviction for being the owner of a dog that attacked an 11 year old boy, T. Ms Korewha also appeals against an order that the dog be destroyed.

[2] Following a defended hearing, Judge M J Hunt found Ms Korewha guilty on one charge under ss 57(1)(a) and (2) of the Dog Control Act 1996 (the Act).1 On sentencing, as well as the order for destruction, Ms Korewha was fined $200 and ordered to pay court costs of $130.2

[3] Ms Korewha represented herself at the defended hearing, but the Court had appointed Ms Kelly Ellis as amicus to assist the Court. Ms Ellis took an active role in cross-examining prosecution witnesses, in leading defence evidence from Ms Korewha and two other defence witnesses, and in making submissions for Ms Korewha on liability and on sentence.

[4] On this appeal the Court appointed Ms Caitlin Hollings as counsel to assist the Court. I have been materially assisted by comprehensive written and oral submissions from Ms Hollings, as well as the written and oral submissions from Ms Korewha and from Mr Harvey, for the respondent.

The evidence in outline

[5] T, his parents and siblings, are neighbours of Ms Korewha in a residential suburb of Whangarei. The incident occurred on Thursday, 27 October 2016, in the afternoon, when T was riding his scooter on the footpath after school. T’s evidence is the pivotal evidence for the prosecution, but it will be convenient to outline the evidence in a chronological sequence.

[6] Ms Korewha’s dog is named Muppy.3 At the time of the incident she was approximately two years old. Ms Korewha had known Muppy for some time, as a dog
in the neighbourhood, but she had been with Ms Korewha for only two months.

1      Whangarei District Council v Korewha [2017] NZDC 21872 (the trial decision).
2      Whangarei District Council v Korewha [2017] NZDC 24530 (sentencing notes).
3      The dog’s name is recorded in the judgment and sentencing notes as “Muphy”. Its registered name is “Muppy”.

[7] Ms Korewha said that on the morning of 27 October she had a cup of coffee…

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.

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Details

Case: [2017] NZHC 3178
Decision Date: 18 December 2017

CaseChat Overview and Summary

In this case, Tania Josephine Michelle Korewha appealed against her conviction for being the owner of a dog that attacked an 11-year-old boy, T, as well as an order that the dog be destroyed. The District Court found Korewha guilty of the charge under the Dog Control Act 1996, and on sentencing, in addition to the order for destruction, she was fined $200 and ordered to pay court costs of $130. Korewha represented herself at the hearing, but the Court had appointed Ms Kelly Ellis as amicus to assist. The pivotal evidence for the prosecution was T's account of the incident. The appeal against conviction was essentially an appeal against the Judge's finding that T had been bitten by the dog. The Court concluded that there was no error in the Judge's critical conclusions and that the appeal against conviction must be dismissed. Regarding the appeal against the order for destruction of the dog, the Court found that the circumstances of the offence were not exceptional, and the appeal against the order for destruction must also be dismissed. The Court made a further order that the dog's remains are to be returned to Korewha, and the respondent is to ensure that that occurs.

Orders