Tauranga City Council v Fraser

[2023] NZHC 1091

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2022-463-000110

[2023] NZHC 1091

IN THE MATTER

of s 58 of the Dog Control Act 1996

BETWEEN

TAURANGA CITY COUNCIL

Appellant

AND

HELEN TINA FRASER

Respondent

Judgment

(On the papers):

9 May 2023

JUDGMENT OF BREWER J

[Application to recall judgment]

This judgment was delivered by me on 9 May 2023 at 2 pm

Registrar/Deputy Registrar

Solicitors:

Rice Speir (Auckland) for Appellant

Gold Legal Ltd (Pukekohe) for Respondent

TAURANGA CITY COUNCIL v FRASER [2023] NZHC 1091 [9 May 2023]

[1]                 In my judgment of 4 April 2023,1 determining the appeal brought by the Tauranga City Council against the dismissal of a charge against Ms Fraser brought under s 58 of the Dog Control Act 1996, I held:

[20]The appeal is allowed.

[21]The Judge’s dismissal of the charge is quashed.

[22]I enter a conviction against Ms Fraser.

[23]I remit the case back to the District Court for sentencing.

[2]                 Ms Fraser now applies for me to vacate her conviction. That is because, at sentencing in the District Court, she wishes to argue that she should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

[3]                 Ms Fraser was not represented by counsel at the appeal and, I am told, did not realise that she would have a right to argue for a discharge without conviction if the appeal was allowed.

[4]                 I do not want my judgment to trammel the sentencing options of the District Court.

[5]                 I recall my judgment. I reissue it with [22] deleted but otherwise in identical terms.

Brewer J

1      Tauranga City Council v Fraser [2023] NZHC 723.