W v Police HC Dunedin CRI 2008 412 3

[2008] NZHC 486

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2008 412 3

W

Appellant

v

POLICE

Respondent

Hearing:         10 April 2008

Appearances: Appellant in Person

J E St John for Respondent

Judgment:      10 April 2008

ORAL JUDGMENT OF CHISHOLM J

[1] Following a defended hearing in the District Court the appellant was convicted on two charges. The first was that he was the owner of a dog that attacked a person, that charge having been laid under s57(2) of the Dog Control Act 1976. The other charge was that he had allowed the dog to be in a public place unmuzzled contrary to s64(2) of the Act. On each charge the Judge imposed a fine of $500, ordered payment of Court costs and also ordered Mr W to pay $200 by way of solicitor’s fee.

[2]      Although  the  notice  of  appeal  indicated  that  this  was  an  appeal  against sentence and, of course, Ms St John for the respondent has approached the matter on

W V POLICE HC DUN CRI 2008 412 3  10 April 2008

that basis, it became apparent from Mr W  ’s submissions that it is effectively an appeal against conviction, as well as an appeal against sentence.   Obviously Mr W   feels keenly about this matter and also about his earlier appearance which also resulted in an appeal to this Court.  His belief is that the evidence against him has been fabricated and that for the second time the District Court has rejected his evidence in favour of the evidence for the prosecution.

[3] It is important for me to explain my role in relation to an appeal against conviction. This role, of course, is the same whether it is an appeal against a conviction for an offence under the Dog Control Act or under any other Act. The Judge in the District Court had the opportunity to see and hear the witnesses. On the strength of the evidence presented to him the Judge had to determine whether the prosecution had proved the allegations beyond reasonable doubt.

[4]      Unlike the Judge in the District Court, a Judge sitting on appeal does not have the benefit of seeing or hearing the witnesses.  Under those circumstances Judges on appeal are not entitled to interfere with the outcome in the District Court unless the outcome is plainly wrong or the Judge has applied wrong legal principles.

[5]      So when it comes to factual findings in the District Court, it is highly unusual for this Court to interfere.  Mr W  ’s appeal against conviction comes down to factual  matters.     The  Judge  had  before  him  competing  evidence  from  the complainant on the one hand and Mr W   on the other.  There was also evidence from the dog control officer, as well as a letter from a veterinary surgeon.  The Judge had  to  decide  which  evidence  he  accepted.    In  the  end  result  he  accepted  the evidence of the complainant and rejected the appellant’s evidence.  Obviously he did not feel that the letter from the veterinary surgeon, which was equivocal to the extent that the veterinary surgeon could not say from the photos whether or not the bruising had been caused by a dog bite, was sufficient to tip the scales in favour of Mr W  .   While I know that it is difficult for Mr W   to accept this, my responsibilities preclude me from overturning the findings in the District Court.  So, to the extent that I am interpreting this as an appeal against conviction, I am afraid Mr W  ’s appeal fails.

[6]      Now I turn to the appeal against sentence.  Again, an appellate Judge has a very limited role.  It is only if the penalty imposed in the District Court is manifestly excessive or inappropriate that an appellate Judge is entitled to intervene.  Given that the maximum penalty in the case was $3,000 and that there had been previous convictions, I am afraid that it could not possibly be said that the penalty of $500 in relation to each charge was manifestly excessive or inappropriate.  As far as the costs and solicitors’ fee are concerned, they are standard and are imposed on a day in and day out basis.  So I am afraid, Mr W  , that the appeal against sentence cannot succeed either.

[7]      Ms St John asked for the right to be heard in relation to costs.   I am not prepared to entertain such an application.  It is part of the Council’s responsibilities to enforce this legislation which will involve appeals from time to time.   In the ordinary course of events costs are not awarded against unsuccessful appellants on criminal appeals and I am not prepared to award costs against the appellant on this occasion.

Solicitors:         Anderson Lloyd, Dunedin

Copy to:           The Appellant