It took 14 months for Gemma to be returned to Stu and Jenny Main. Photo / Supplied
It took 14 months for Gemma to be returned to Stu and Jenny Main. Photo / Supplied
The woman at the centre of a festering courtroom drama involving a policeman's chihuahua has won a court case to have police pay $6000 of her legal costs.
The emotional dispute revolved around a Lower Hutt couple's "beloved" 15-year-old pooch, Gemma, and has been dragging on for threeyears, with a judge labelling the case as "verging on a corrupt abuse of prosecutorial power".
But the dog's original owners, police officer Stu and wife Jenny Main, say the justice system has been used to quell their testimony.
The defendant, Lorena Brunsell, was living with her then-fiance in Upper Hutt when the couple split in May 2017 and she took the dog, court papers show.
They were on holiday at the time and said their son was pet-sitting for them.
Brunsell was subsequently arrested and charged with theft.
Lorena Brunsell was awarded $6000 toward her legal costs - which totalled $27,000.
In a transcript from a 2018 hearing provided to the Herald by the Hutt Valley District Court, Judge Tim Black made scathing remarks about the case, calling the prosecution "appalling" and "a complete abuse of the court's process and of the court's time".
His comments were in part fuelled by a mistaken belief that Stu Main was serving in the Lower Hutt police. But Judge Black acknowledged in a recent court decision this was incorrect - Main is actually based at another station.
It did not, however, change his view that Main's position as a police officer influenced the police decision to charge Brunsell.
"I am unable to accept the proposition that Mr Stuart Main's position as a serving police officer did not consciously or otherwise influence the police decision to treat this matter, this essentially civil matter, as a criminal matter and I stand by my earlier observation that any ordinary citizen who presented to the police station with a complaint of this nature, would likely have been told to avail themselves of civil remedies," he said in the latest decision.
Main said he laid the complaint as a citizen to get his dog of 15 years back as fast as possible.
A constable eventually went to Brunsell's workplace to speak to her about Gemma, to which Brunsell responded the dog had been given to her and was registered to her.
The court documents note Brunsell only registered Gemma to her after being asked to return her.
Brunsell was arrested when she tried to walk away from the officer.
After 14 months of rescheduled hearings and legal back and forth, Brunsell returned the dog and the charge was withdrawn.
The case was back in court this month with Brunsell seeking for police to pay $20,000 of her $27,000 legal fees.
Stu and Jenny Main with Gemma, their pet dog of 15 years. Photo / Supplied
Under the Costs in Criminal Cases Act 1967, a defendant whose charge was dismissed or withdrawn can seek such costs depending on certain factors. In this case, Brunsell said the police did not act in good faith laying the charge.
Judge Black said the constable could have asked Brunsell to meet with him at the station to discuss the charge, or summoned her to court, instead of arresting her.
"Frankly that approach is unacceptable to me," he said.
"I simply do not and will not condone the actions of police in arresting a person with no previous convictions in these circumstances when there were clearly other options open."
Judge Black did not agree the investigation was done in a reasonable and proper manner, said there was little public interest in the prosecution, and thought the chance of Brunsell being convicted were "relatively low".
He agreed to award Brunsell $6000 in costs.
Through her lawyer, Brunsell told the Herald she felt "somewhat vindicated" about her position, which was that she never should have faced a criminal charge in the first place.
"She now just wants to put it all behind her," her lawyer said.
Jenny Main told the Herald they felt let down by the justice system.
"The initial purpose of the police was not to prosecute but to simply return Gemma to her owners. The thief ... to a large degree dictated her own outcome in that she was arrested. She could have early on at any time returned Gemma and there would have been no prosecution."
She said the matter was never a civil case, and that another judge involved in the process had earlier said there was a criminal case to answer.
"We the complainants had no voice in this setting. We find this disturbing and alarming that a justice system could quell the complainant's testimony.
"It would appear now that all any thief has to do to get the police off their backs is to say 'I was given the alleged stolen property'. Then according to this judgement, the matter would become a civil argument between the complainant and the alleged thief despite there being no substance to the alleged thief's claim of the property being a gift."
