King v South Waikato District Council no.2 [2012] NZHC 3305 (7 December 2012)

Last Updated: 14 December 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-463-73 [2012] NZHC 3305

BETWEEN CAROLYN ROSE KING Appellant

AND SOUTH WAIKATO DISTRICT COUNCIL Respondent

CRI 2012-463-8

AND BETWEEN SOUTH WAIKATO DISTRICT COUNCIL Appellant

AND CAROLYN ROSE KING Respondent

Hearing: (on the papers)

Counsel: S N Ngapo-Lipscombe and A E Ngapo-Lipscombe for Ms King

M J Hammond and S Plant for South Waikato District Council

Judgment: 7 December 2012

_{JUDGMENT (NO. 2) OF HEATH J}

This judgment was delivered by me on 7 December 2012 at 3.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Ngapo-Lipscombe Law, PO Box 518, Tokoroa

_{Tompkins Wake, PO Box 258, Hamilton}

KING V SOUTH WAIKATO DISTRICT COUNCIL HC ROT CRI 2011-463-73 [7 December 2012]

[1] On 4 September 2012, I gave judgment on Ms King’s appeal against conviction on charges brought under s 57(2) of the Dog Control Act 1996 (the Act) and South Waikato District Council’s separate appeal, by way of case stated on a question of law, arising out of the charge alleging that Ms King’s dog, Jimbo, had attacked a rabbit.[1]

[2] I allowed Ms King’s appeal.[2] I set aside the two convictions entered against Ms King and the sentences imposed in consequence, including the order for destruction of Jimbo on the charge involving the alleged attack on another dog, Justice.[3]

[3] I directed a rehearing on the information charging the attack on the rabbit. No rehearing was ordered in respect of the attack alleged on Justice.[4]

[4] Mr Hammond, for the Council, has drawn to my attention that I omitted to make any formal order on the Council’s separate appeal. Having reviewed my judgment I agree with Mr Hammond and apologise for the oversight.

[5] The question of law posed for the Court was whether the District Court Judge ought to have made a decision on whether to order destruction of the dog once he found that the attack on the rabbit had been proved beyond reasonable doubt.[5] That question must be answered “yes”. Section 57(3) of the Act makes it clear that once the Court is satisfied that a dog has committed an attack to which s 57(1) refers the Court must make an order for destruction in the absence of exceptional

_{circumstances.}

[6] On the Council’s separate appeal,[6] I answer the question posed as follows: The District Court Judge was required to determine whether an order for destruction

_{of the dog ought to be made, applying s 57(3) of the Act.}

_{P R Heath J}

_{Delivered at 3.00pm on 7 December 2012}

---

[1] _{King v South Waikato District Council [2012] NZHC 2264.}
[2] _{CRI 2011-463-73.}
[3] _{King v South Waikato District Council [2012] NZHC 2264, at para [35].}
[4] _{Ibid, at paras [36] and [37].}
[5] Ibid, at para [4].

[6] CRI 2012-463-8.