Russell v Auckland Council

[2015] NZHC 564

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000401 [2015] NZHC 564

BETWEEN

VALERIE RUSSELL

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing:	25 March 2015
Counsel:	H Kim for Appellant V Tamatea for Respondent
Judgment:	25 March 2015

ORAL JUDGMENT OF FOGARTY J

Solicitors:           Auckland Council, Auckland

VALERIE RUSSELL v AUCKLAND COUNCIL [2015] NZHC 564 [25 March 2015]

[1]      The appellant appeals conviction, sentence and an order for the destruction of her dog, Monkey, following a formal proof hearing for a charge under s 57(2) of the Dog Control Act 1996.  The appellant did not appear at the hearing.  She was served with documentation to warn her that the destruction of the dog was likely.  She failed to attend.

[2]      In all the circumstances, the Auckland Council has taken the responsible position that it does not oppose this Court on appeal quashing the appellant’s conviction and granting a discharge without conviction.  However, in respect of the order for destruction of the dog, the Council considers that it is not appropriate for them to waive that order.

[3]      It  is  not  necessary  for  me  to  go  through  the  detailed  argument  that Mr Tamatea has usefully set out in his submissions.  I agree, in the circumstances, to two matters.  Firstly, that there is an argument in favour of the appellant, as owner of the  dog,  that  the  particular  circumstances  of  the  case  do  not  merit  destruction. Equally, there is an argument, based on previous infringement notices, in favour of destruction.

[4]      I am not in a position to have a fair hearing on that today, partly because the context of this case is that Monkey had a fight with a dog called Diesel, injuring that dog and it is appropriate that the owner of Diesel be present at the hearing in the District Court.  Accordingly, in my view, the just resolution of this case, particularly relying on the confusion which led to the appellant not attending the District Court to quash the appellant’s conviction and grant the discharge without conviction, all with the consent of the Auckland Council.   And, secondly, to set aside the order for destruction of Monkey but leave intact the Auckland Council’s application for an order  for  destruction  and  referring  that  issue  back  to  the  District  Court  for  a rehearing, hopefully this time in the presence of the appellant and, if the neighbour chooses to attend, in her presence as well.  In an abundance of caution, I direct that notice of that hearing be given to the complainant who I understand to be the owner of Diesel.

[5]      In the circumstances, there is no order for costs.