Neighbourly spat over dog attack on two Pekin ducks goes all the the way to Appeal Court

The owner of two Pekin ducks attacked by a dog in 2018, resulting in the death of one, has had a costs award tossed out by the Court of Appeal, after his long-running fight for justice. Photo / 123rf

A tale of two domestic ducks named Drakie and Duckie has had neighbours in a small Southland town in a flap that’s gone all the way to the Court of Appeal.

It all began on August 19, 2018, when the two Pekin ducks were “freely and happily wandering together”. The domestic ducks usually enjoyed the pond on owner Eugene Greendrake’s rural property in the Nightcaps, population 1500, just down the road from Tinkertown.

But, on this occasion, they were at the entrance of part of neighbour Wayne McConnochie’s farm.

It was there the ducks were attacked by a dog and suffered significant injuries. Drakie was found dead in the nearby stormwater creek shortly afterwards. Duckie was found the next morning, still alive but very weak.

She recovered after 12 days of veterinary assistance.

Greendrake took a private prosecution against McConnochie under a section of the Dog Control Act and the Animal Welfare Act, arguing he was responsible for the attack on his pets Drakie and Duckie.

A one-day trial followed in September 2021, at which the judge declined an application to dismiss the charges but held that the elements of both charges were not made out and there was significant doubt about whether McConnochie was the owner of the dog in question.

Greendrake applied for leave to appeal on a question of law.

In June 2022, the High Court declined the application, largely because the proposed grounds of appeal “had no merit”.

A costs award of $10,000 against Greendrake followed for the failed prosecution in the District Court.

The judge said he could not go as far as finding a lack of good faith in bringing the proceedings but considered Greendrake “took a somewhat blinkered approach” to the prosecution.

He said because no other agency was prepared to prosecute, that should have indicated the likely prospects of success.

The judge also called into question the presentation, memory, age, infirmity, and health issues of Greendrake’s eyewitness.

“It should have been obvious to Mr Greendrake from the outset that his case would not reach the evidential threshold required.”

He did not consider it necessary to make a deterrent award of costs but considered 40 per cent of actual costs was not unreasonable.

In August this year, Greendrake’s appeal against the District Court’s costs decision was allowed.

The judge agreed that his prosecution failed as a result of “significant inadequacy” in the evidence on the day but held there was no basis for exceeding the maximum scale costs.

The judge said the fact the key eyewitness did not come up to brief was not evidence of a procedural failing.

In April this year, costs of $4500 were awarded against Greendrake for the failed application to the High Court for leave to appeal. That was the focus of a Court of Appeal decision that was released yesterday.

The Court of Appeal has now allowed the appeal and has quashed the High Court’s cost order.

Greendrake told NZME he’s happy with this latest decision, more than with any other decision since the saga started in 2018.

The Court of Appeal ultimately found there was nothing to justify an award of costs on the application for leave to bring the criminal appeal.

“We consider the decision to exercise the discretion to award costs for an application for leave to bring the criminal appeal was wrong,” Justices Simon Moore, Matthew Palmer and Jillian Mallon said in their decision.

“Even if the discretion to award costs had been soundly exercised, there was no basis for exceeding the maximum scale costs, as the High Court found in relation to the District Court’s award of cost.”

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.