Power v Police - [2014] NZHC 2231

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-351 [2014] NZHC 2231

BETWEEN
ANNA DE LA POER POWER

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: On the papers

Counsel:

DRF Gardiner for the Applicant
E Rutherford for the Respondent

Judgment:

15 September 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Monday 15 September 2014 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
DRF Gardiner, Barrister, Parnell, Auckland
E Rutherford, Meredith Connell, Auckland

POWER v NEW ZEALAND POLICE [2014] NZHC 2231 [15 September 2014]

[1] Mrs Power seeks leave to appeal my decision of 19 July 20111 dismissing her appeal against conviction and sentence on four charges under the Dog Control Act
1996 (the Act) relating to her ownership of two dogs (Shiloh and Bear) and her failure to keep those dogs under control. The District Court had found that the dogs had attacked a jogger as she ran near to Mrs Power’s property.

[2] The proposed ground of appeal is said to be my failure to recognise and give due weight to the deficiencies in the evidence concerning the identification of the dogs Shiloh and Bear.

[3] Notwithstanding the destruction orders made by the District Court and upheld by me, it seems that one of the dogs remains alive, over three years later. Mrs Power seeks a stay of “execution” in that regard.

[4] The application is opposed. The respondent says that Mrs Power has failed to identify any question of law of general and public importance capable of determination by the Court of Appeal.

[5] The relevant chain of events is as follows:

(a) The applicant was charged in April 2008;

(b) On 5 May 2010 following a defended hearing before the late Chief

District Court Judge Mrs Power was convicted on the four charges; (c) On 31 August 2010 Mrs Power was sentenced by Judge Recordon;
(d)On 15 September 2010 she lodged an appeal against her conviction and sentence;

(e) That appeal was determined by me on 19 July 2011, when I made the following orders:

(i) appeal against conviction dismissed;

1 Power v Police HC Auckland CRI-2010-404-351, 19 July 2011.

(ii) order for the destruction of the dogs confirmed; (iii) reparation ordered to victim and fine confirmed;
(iv) reparation ordered to the Rodney District Council quashed.

(f) On 14 December 2011 Mrs Power applied for a rehearing in the

District Court and this was declined by Judge Recordon on 31 January

2012;

(g)Mrs Power’s counsel filed a memorandum addressing matters raised in Judge Recordon’s decision, in light of which the application for rehearing was set down for 25 August 2012;

(h) On 2 July 2014 Judge Johns declined the application for a rehearing.2

The application for leave to appeal is out of time

[6] Since the charges against Mrs Power were laid under the pre CPA regime, this appeal is brought under s 121 of the Summary Proceedings Act 1957 (the SPA).3
Under s…

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 Power v Police

Details

AGLC: Power v Police [2014] NZHC 2231
Case: [2014] NZHC 2231
Decision Date: 15 September 2014

CaseChat Overview and Summary

In Power v Police, Anna de la Poer Power sought leave to appeal the decision of the High Court dismissing her appeal against conviction and sentence on four charges under the Dog Control Act 1996, related to her ownership of two dogs that had attacked a jogger. The District Court had found that Power's dogs had attacked the jogger as she ran near Power's property. The proposed ground of appeal was the High Court's failure to recognise and give due weight to the deficiencies in the evidence concerning the identification of the dogs. Power also sought a stay of "execution" regarding the destruction orders made by the District Court and upheld by the High Court. The respondent opposed the application, arguing that Power had not identified any question of law of general and public importance that could be determined by the Court of Appeal.

The court considered the principles governing leave to appeal to the Court of Appeal and found that the application for leave was out of time by three years. The explanation offered for the delay was the determination of the application for a rehearing, but at the time the application for rehearing was filed, the period for filing an appeal from the High Court decision had already expired. The court concluded that the application for an extension of time should not be granted and that the application for leave should also be declined. The issue of whether there was adequate evidence that the dogs were the attackers was a factual issue that had already been considered by three judges, all of whom had drawn the same conclusion. The court also considered that the application for a stay of execution should be dismissed, as any prospect of a grant of special leave by the Court of Appeal was remote, at best.

All applications were declined accordingly. The final orders were that the application for leave to appeal, the application for an extension of time, and the application for a stay of execution were all dismissed.

Orders