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 with her neighbour, Ms Josephine Knight.  She then left with her children to pick up her grandchildren and take all of them swimming.  Ms Knight returned to her home across the road.

[8]      Ms Korewha said that when she left Muppy was tied to a run in the front of her property. The run is a wire running between a tree and the swing seat across the front of Ms Korewha’s property.  Muppy could be connected to the run by a chain attached at one end to her collar and at the other end to the wire with a carabiner. Ms Korewha said that this arrangement enabled Muppy to run up and down within her property, but not to leave the property.  Ms Knight also said that Muppy was on the run.  She said that Ms Korewha had tied Muppy up before she left, and that she could see from her property, across the street, that Muppy was tied up.4

[9]      There is no other evidence of any matter of relevance before T’s evidence of the incident.  T said he was scootering “up and down the street”.  He said he was “going around the corner” when Muppy jumped the fence.  Although there was an issue as to whether Muppy had left the property at all, it was not in issue that Muppy could jump the fence, which is low. T said that he recognised the dog because he knew it as “Tania’s” dog, referring to Ms Korewha. There was then the following exchange in examination-in-chief:5

Q.       … Tania’s dog’s jumped over her fence, then what happened?

A.       I didn’t think much of it and so just kept scootering around and then I

got bitten on my leg.

Q.       Okay.  Do you remember which leg you were bitten on? A. My left.

Q.       And once the dog had bitten you, where did the dog go?

A.       It  jumped  back  over  the  fence  and  was  sitting  underneath  the clothesline barking at me.

Q.       You’ve said the fence, is that the same fence that it jumped over to get towards you?

4      The notes of evidence record (p 61): “She was tied up – Tania had told her before she left.” The word “told” appears clearly to be a typographical error and should be “tied”.

5      Notes of evidence p 3/6-22.

A.        Yes.

Q.        So the dog’s bitten you, what have you then done?

A.        I limped my way home with my scooter in my hand and I went to

Mum which was at home.

Q.        What have you told Mum?

A.        I went to Mum and I was like, “Mum, Muphy bit me.”

[10]     In cross-examination, on the question whether he was certain it was Muppy, he said he was “100% positive” and made clear that he knew Muppy well.

[11]     There was evidence from T and from his mother, Mrs M, about injuries from the bite.  I discuss this evidence below.  Mrs M said she went straight over to Ms Korewha’s house, to talk to Ms Korewha, and walked down her driveway with the intention of asking Ms Korewha to come and have a look at the bite on her son’s leg. Ms Korewha was not home.  Mrs M said that Muppy was on the seat at the front of Ms Korewha’s house, “just sitting there, watching”.  She said that Muppy was not connected to the run.  She then returned home and phoned her husband.

[12]     Mrs M took T to a medical centre.  He was checked by a nurse. The nurse did not give evidence, but by consent a statement she made on 1 November 2016, recorded by an animal management officer, was put in evidence.  The statement is as follows (with some added punctuation):

Called the Paramount Medical Centre.   Spoke to Marianne Clueard.   The complainant’s son did not need to see a doctor.  There were grazes but the nurse Marianne Clueard said it did not look specifically like a dog bite.  No blood. 2 small graze marks close together.

[13]     Ms Korewha said that she got home “just after 5:00”.  She said that Muppy was still on the run.  Soon after that T’s father, Mr M, came over and she went with Mr M back to his home and had a look at T. She said he had two sticking plasters “up behind the instep of his knee”.

[14]     Shortly after a dog control officer arrived with two police officers and Muppy was taken to the pound.

The District Court decision on the charge

[15]     The central issues on the charge, as on the appeal against conviction, were whether T had been bitten and, if so, whether he had been bitten by Muppy.

[16]     The only direct evidence of what happened was from T.  The conclusions of the Judge on this central evidence were as follows:

[51]      [T[was impressive, he is 11 years old and was entitled to be somewhat anxious as a young child about the circumstance.  Nevertheless, he gave his evidence clearly and concisely, he was not shaken. When it was suggested to him that he might be wrong or mistaken, he was forthright in saying that he was not and that Muphy [sic]6, a dog known to him, leapt the fence, bit him and returned to the front yard of the property.

…

[53]      The  account  of  events  includes  a  notion  that  Muphy  was  not

constrained and certainly I accept that the dog jumped the fence, bit [T] as alleged and returned to its front yard.

[17]     There was the evidence of T’s mother as to what she observed immediately afterwards. The Judge summarised this evidence as follows:

[52]      His mother was equally clear that she observed [T[ to return home in tears, complaining that the dog had bitten him and observed marks and puncture wounds that she described on his leg consistent with that.  She took him for medical treatment immediately, subsequently rang dog control who made inquiries with the resulting effect.   I do not consider there is any likelihood that their account of events is fabricated.

[18]     The Judge’s conclusion in relation to Ms Korewha’s evidence that Muppy had been restrained was as follows:

[54]      What Ms Korewha’s evidence raises is the possibility that the dog was secured in such a way that it could not have done that. The evidence does not go to persuade me that that is a possibility, let alone at all likely. I reject it. At best, evidence  suggests that  the  device  used to  contain  Muphy was  not adequate for the job and in some way allowed for him to clear the fence, bite [T] and return.

[55]     It is not necessar[y] in my assessment to determine whether it is a failure of that device or a failure of it to operate properly or simply that he was not secured in order to determine that [T[ was bit in the way described.

6      See n 3 above.

[56]      If I had to make a determination, and it is not required, then I consider it more likely that Muphy was not secured in the way described, but as I say, I do not believe I am required to make that determination in order to accept [T]’s evidence. His evidence turns on the proposition that he was on the street, attacked by the dog, bitten by it, that is the essential ingredient of the offence.

[19]     The other evidence bearing on the question whether or not T had been bitten by a dog was evidence of what was apparent from his injuries.  The Judge weighed this evidence. In addition to the evidence of the nurse, quoted earlier in this judgment, there was evidence from T, his mother, and the animal management officer responsible for dealing with this incident, Ms Waldern.  Mrs M and Ms Waldern said, in essence, that in their opinion the injuries they observed appeared consistent with a dog bite. Ms Korewha’s opinion, offered in her evidence, was that what she saw, when she went next door at Mr M’s request, looked like grazing, possibly from a scooter accident, and not like a dog bite.  Ms Korewha said that she had her own experience of dog bites.

[20]     The Judge weighed this evidence.  He concluded that the record of the nurse’s statement was of limited assistance “in the face of the clear evidence from Ms [M] and [T] about what they observed by way of the injuries”.

[21]      The Judge’s concluding comments were as follows:

[57]      Those matters having been determined, I conclude that the charge is proven beyond reasonable doubt.  I am not left in any doubt by reason of the evidence given by Ms Korewha, nor does the evidence of Mrs Knight change my view, and I reject any suggestion that this is motivated by a desire by the [M]s to see Ms Korewha lose her dog or in some other way punished by reason of some sense of grievance or dispute, so the charge is proven.

[22]     The concluding part of that statement concerned evidence from Ms Korewha to the essential effect that T’s father had shown a dislike for Ms Korewha’s dogs and puppies, and a defence argument from this that there may have been a motive to lie about the cause of the injury to T to get rid of Muppy.  Evidence from Mrs Knight’s son was called to seek to support that defence.  It is appropriate to record at this point that I am satisfied that the Judge was correct to set that part of the defence to one side.

Assessment of the appeal against conviction

[23]     The appeal against conviction, in practical terms, is an appeal against the Judge’s finding that he was satisfied, beyond reasonable doubt, that Muppy had bitten T.

[24]     The appeal can succeed only if I am satisfied that Judge Hunt “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any other reason”.7  A miscarriage of justice is any error, irregularity, or occurrence in or in relation to or affecting the trial that:

(a)       has created a real risk that the outcome of the trial was affected; or

(b)      has resulted in an unfair trial or a trial that was a nullity.8

Sub-paragraph (a) is the relevant provision.  There is no question of an unfair trial or that the trial was a nullity.

[25]     Ms Korewha bears the onus of persuading me that Judge Hunt was wrong.9

The critical conclusions by the Judge were that he accepted T’s evidence that he had been bitten, and that it was Muppy who had bitten him. I am not persuaded that there was any error by the Judge in those critical conclusions.

[26]     The Judge assessed T as a credible witness. On an appeal I am bound to come to my own conclusion. But caution is appropriate in reviewing a finding of credibility because of the benefit a trial Judge has in seeing and assessing the witness, and particularly when the witness is cross-examined, as T was in this case. There is other evidence to be weighed, but in this case I attach substantial weight to the benefit the

Judge had in assessing T as a witness and his finding that T was entirely credible.

7      Criminal Procedure Act 2011, s 232(2).

8      Criminal Procedure Act 2011, s 232(4).

9      Green v Green [2016] NZCA486, [2017] 2 NZLR 321 at [30].

[27]     There are further considerations which add weight to T’s evidence. First, there is nothing in his evidence as to what occurred when he was on the street which could reasonably suggest that he was wrong or mistaken in what he said. Second, there was nothing in his evidence as to what happened on the street, with Muppy, that could reasonably suggest that he was making it up.  Third, it was not put to T in cross- examination that he was making it up.

[28]     I have weighed Ms Korewha’s challenges to the prosecution evidence about the extent of T’s injuries.   Ms Korewha pointed to possible inconsistencies in the evidence, particularly in relation to the nature and extent of T’s injuries.  And Ms Hollings provided a helpful summary of evidence which might be seen as supporting Ms Korewha’s contentions and, at the least, raising doubts about those for the prosecution.

[29]     Perhaps the best evidence for Ms Korewha’s case is the evidence of the nurse, Ms Clueard, and Ms Korewha’s own evidence of the injuries she saw not long after the event.   This evidence is not sufficient to raise a reasonable doubt about T’s evidence that he was bitten.

[30]     The primary issue is whether he was bitten, not the extent or nature of the bite. A minor nip by a dog is still an attack. What the evidence favourable to Ms Korewha’s case establishes, at its best for Ms Korewha, is that what could be seen may not have come from a dog bite. But Ms Clueard’s evidence is not inconsistent with the essential nature of the evidence of T and Mrs M, or indeed of Ms Korewha herself. Even if Mrs M overstated the nature of the injuries, there were two visible but minor cuts or grazes. That does not bear in any material way on the central question whether T’s evidence

– the only direct evidence of what occurred – is wrong.

[31]     What remains, for the purpose of determining whether there is reasonable doubt about T’s evidence, is the evidence from Ms Korewha and Ms Knight that Muppy was tied up when they both left Ms Korewha’s home in the morning, and Ms Korewha’s evidence that he was tied up when she got home.  I earlier recorded the Judge’s summary of his conclusions on the evidence that Muppy was tied up when Ms

Korewha and Ms Knight left some time in the morning. I am not persuaded that there was any error by the Judge in his analysis in those paragraphs.

[32]     There was also evidence from Ms Korewha that Muppy was still on a chain connected to the run when she got home.  This evidence, in my judgment, is also insufficient to raise a reasonable doubt about T’s primary evidence.  In her evidence-

in-chief Ms Korewha was asked whether Muppy was still connected to the run.  Her answer was:

Yep, because when I got home she yelps, you know, ‘Come get me’, you know,

‘Let me off’.

[33]     That, of itself, is not clear evidence that Muppy was in fact connected to the run. An inference favourable to Ms Korewha, and the dog, might be drawn from that evidence seen in isolation.  But it needs to be weighed against the direct evidence of Mrs M that, when she went across to Ms Korewha’s home, immediately after the incident, when she found Ms Korewha was not home, she could see that Muppy was not connected to the run; that is to say, he was not restrained.  This evidence was not challenged.  When Ms Korewha first got home she did not have an opportunity to go up to her dog.  The first thing she did was to tell her children to go inside while she unloaded her car, and at that point T’s father came across.  Ms Korewha then went with Mr M to the M house to have a look at T.  Ms Knight gave evidence that when the dog management officer and police arrived she saw Ms Korewha undo Muppy’s collar and put him in the back of the dog control vehicle. In my judgment none of this evidence raises a reasonable doubt as to the reliability of T’s evidence as to what happened to him earlier that afternoon.

[34]     There is a further consideration which the Judge referred to.  This is that Ms Korewha did not contend at the time that, if T had been bitten, it could not have been Muppy because Muppy was tied up.  Ms Korewha’s immediate response was not a challenge to the Ms’ complaint about Muppy, but an apology to Mrs M and an offer of amends the next day.  In addition, Ms Korewha provided a written statement to Ms Waldern. Ms Korewha did not state that it was her belief that T had not been bitten by a dog, or that he had not been bitten by Muppy. Nor did she say that Muppy had been tied up when she left her home.  When questioned about this in Court, Ms Korewha

explained that she had recorded in her statement that “they were home” meaning that her dogs “weren’t roaming so they were still secure”.  Making appropriate allowance for the pressure I expect Ms Korewha was under, I nevertheless agree with the Judge’s assessment that the absence of any querying of Mr and Mrs M, let alone challenge to them, is at the least indicative of an acceptance by Ms Korewha that Muppy could have been responsible.  That conclusion becomes firmer in relation to the content of the written statement the next day, particularly as Ms Korewha was left to write her own statement.

[35]     For these reasons I am satisfied that the evidence does establish, beyond reasonable doubt, that Muppy bit T.  In consequence, the appeal against conviction must be dismissed.

Appeal against the order for destruction of Muppy

[36]     Under s 57(3) of the Act the Court must make an order for destruction of a dog that has attacked a person unless the Court is satisfied that:

(1)       the circumstances of the offence were exceptional; and

(2)       the circumstances of the offence do not warrant destruction of the dog. Unless both parts of the test are met the Court has no discretion; an order for

destruction is mandatory.

[37]     In this case, in the District Court and on the appeal, the focus was on the first stage – whether the circumstances of the offence were exceptional. As this Court has observed in a number of cases, this is a very difficult test for a dog owner to meet.10

[38]     It is a very difficult test because Parliament used the word “exceptional” to define the circumstances that the owner will have to establish. The word “exceptional”

10     Te Kahu v Police HC Invercargill AP23/99, 1 September 1999 at [4]; Peteru v Manukau City Council HC Auckland A70/00, 6 July 2000 at [6]; Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-011 at [20]; McClintock v Taupo District Council [2017] NZHC 58 at [9].

has been held to mean “unique” or “special” or “substantially unusual”, although not requiring that the circumstances be extreme.11

[39]     The expression “circumstances of the offence”, leaving aside the question whether they are exceptional, can cover a reasonably wide range of circumstances.  It includes circumstances in addition to the circumstances of the attack by the dog. This is made clear by the fact that s 58, directed to dog attacks that cause “serious injury” to any person, or the death of any protected wildlife, must result in an order for destruction unless the Court is satisfied that the circumstances of the attack are exceptional and do not justify destruction.  Under s 57 all the circumstances of the “offence” may be taken into account, not just the circumstances of the “attack” as in s 58.12

[40]     It has been suggested in some cases that circumstances of the offence cannot include events which post-date the offence.13  This is obviously intended to mean that anything occurring after the attack by the dog should not be taken into account. In my judgment, the “circumstances of the offence” should not be limited in that way.  The cases, including those endorsing this limit, extend “circumstances of the offence” to take account of what amount to circumstances of the offender and relevant information relating to the general behaviour of the dog.  There seems no reason why relevant information arising from conduct or behaviour after the attack, both of the offender and of the dog, should not be taken into account.   This is the approach on the application of s 107 of the Sentencing Act 2002, directed to the question whether an offender should be discharged without conviction and requiring the Court to have regard to the “gravity of the offence”.  This may include consideration of relevant purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act, which include events occurring after commission of the offence.   In principle, a similar approach should apply when considering what amounts to sentencing under s 57(3) of

the Act, and there does not appear to be anything in the Act to preclude that approach.

11     Pomana v Police HC Dunedin AP8/97, 8 April 1997 at p 4; Milner v Hastings District Council HC Napier AP5/2004, 1 April 2004 at [9]; Halliday v New Plymouth District Council, above n 10, at [21] and [40]; McClintock v Taupo District Council, above n 10, at [10].

12     See the full discussion in Halliday v New Plymouth District Council, above n 10.

13     Halliday v New Plymouth District Council, above n 10, at [43]; Anand v Auckland Council [2013] NZHC 445, [2013] NZAR 285 at [12]; McClintock v Taupo District Council, above n 10, at [9].

[41]     It has also been suggested in some cases that particular matters arising before or up to the end of the attack should not be considered to be, or at least are unlikely to be, exceptional circumstances. For example, in Jorion v Kapiti Coast District Council, Dobson J was of the opinion that “the absence of any history of attacks by the dog [is not] likely to constitute an exceptional circumstance”.14   And in McClintock v Taupo District Council Katz J said that a “momentary or short dog attack is not exceptional”.15

[42]     In my opinion, there is nothing in s 57(3), construed in the context of the Act as a whole, which means that certain matters should automatically be excluded from consideration to determine whether there are exceptional circumstances.  The weight to be attached to particular circumstances is a different matter, but the weight of particular circumstances is likely to depend on those circumstances considered in the context of all relevant circumstances.  These observations apply, in particular, to the circumstances of the attack.  The fact that there has been an “attack” is the single circumstance which is central to s 57, but the bare fact of an attack, irrespective of its nature, should not be given disproportionate weight in an assessment of all relevant circumstances of the offence. If an attack by a dog can properly be described as minor, and there are other circumstances supporting a conclusion that there should be no order for destruction, all of those circumstances put together might amount to exceptional circumstances.   Or a minor attack together with other circumstances which in themselves are exceptional, may lead to a conclusion that there should be no order for destruction on application of both parts of the test in s 57(3).

[43]     I have applied this broad approach in my assessment of the question whether the appeal against destruction of Muppy should be allowed.  Having done so I have nevertheless concluded that this is not a case in which the circumstances of the offence were exceptional.  My reasons, applying the principles outlined, are as follows.

[44]     It was not argued by Ms Korewha, or by Ms Hollings, that Judge Hunt misdirected himself on the law.   I am satisfied that the Judge did direct himself

14     Jorion v Kapiti Coast District Council HC Palmerston North CRI-2010-454-22, 4 August 2010 at

[14].

15     McClintock v Taupo District Council, above n 10, at [39].

correctly and fully on the law for the application of s 57(3). And, in his consideration of the question whether there were exceptional circumstances, the Judge did consider a reasonably wide range of circumstances, including events after the attack. The Judge also weighed the range of factors he considered both individually and in combination.

[45]     The question, under s 250 of the Criminal Procedure Act 2011, is whether the Judge’s conclusion was wrong having regard to the relevant circumstances.   The circumstances the Judge considered, and his conclusions on each of them, are set out in the following summary, listing first those circumstances which the Judge considered were not exceptional, or of a negative nature.

(a)      Little thought was given by Ms Korewha to how secure Muppy was, or to how Muppy might react or interact with passers-by, given the highly visible nature of Muppy’s positioning on the front lawn of Ms Korewha’s home. The Judge returned to this point, after discussing the other circumstances summarised below, when he said:

[25]     My assessment is that you gave little or inadequate thought to the risk of the dog behaving badly, being excited or distracted by passers-by, which were clearly in view or the risk possibility, and I do not for a moment suggest [T] is responsible for that, but of the dog being teased or in some other way interfered with.

(b)The bite was “not the most serious bite that could have occurred, and it was not a sustained attack causing serious injury, but it was significant”.

(c)      The Judge described the attack as unprovoked – there was nothing done by T to incite or provoke Muppy.

(d)Because Ms Korewha had had Muppy, as her own dog, for only a short period, she had little basis for being completely confident about her behavioural propensity.

(e)      There is “a concern that once a dog has attacked, there is a risk of future attacks, so past behaviour is predictable of the future behaviour”.

(f)      As to future behaviour the Judge took account of a submission for Ms Korewha about Muppy’s “good conduct” over the preceding year (before sentencing) in the dog pound.  Ms Ellis had submitted for Ms Korewha that, because the pound environment includes walking and other exercises, and interactions with humans and other animals, that was a good basis for predicting how Muppy would behave in the future. The Judge concluded that he could not read too much into this because of the different environment at the pound.

(g)In terms of Ms Korewha’s history as a dog owner, there was little to suggest that Ms Korewha is someone who is unsuited to owning dogs, apart from some minor difficulties over registration and a microchip. The Judge noted that there was nothing to suggest that Ms Korewha had a history of owning dogs that had been aggressive or attacked, and the prosecution was not seeking any orders binding on Ms Korewha in relation to dogs she might have in the future.

(h)The Judge noted a submission from Ms Korewha that Muppy acted as a protector in the neighbourhood.  He accepted that nothing untoward had been suggested in that regard, and concluded from that that Muppy’s role as a protective dog was “a largely neutral factor”.  He noted that Muppy had been with Ms Korewha for only two months, but she had known Muppy as a neighbourhood dog before that.

[46]     All of those circumstances are ones arising from the evidence and are relevant. Except in relation to the nature of the attack, I am also in broad agreement with the Judge’s assessment of these circumstances.  In relation to the attack I would describe it as “minor” rather than “significant”.   I note that difference in my assessment because, in light of my earlier discussion of the meaning of “circumstances of the offence”, the minor nature of the attack might have required reconsideration of the order for destruction if there were other circumstances which were exceptional or which, taken together, made the circumstances of the offence as a whole exceptional.

[47]     Taking full account of the careful and comprehensive submissions from Ms Korewha,  and  the further information  contained  in  her affidavit,  as  well  as  the submissions from Ms Hollings, this is not a case giving rise to exceptional circumstances.

[48]     For these reasons Ms Korewha’s appeal against the order for destruction of

Muppy must be dismissed.

[49]     At Ms Korewha’s request I make a further order that Muppy’s remains are to be returned to her and the respondent is to ensure that that occurs.

Woodhouse J