The owner of a rottweiler that bit a Tauranga vet has been convicted on appeal, meaning the dog, Chopper, could be put down.
Tauranga City Council successfully overturned a decision to dismiss the charge against Helen Fraser of owning a dog that caused injury.
The charge carries a maximum sentence of three years imprisonment or a $20,000 fine and the court must order the destruction of the dog unless exceptional circumstances could be proven.
Chopper bit veterinarian Dr Liza Schneider during an appointment to discuss the dog’s de-sexing in October 2021.
The attack left Schneider, the owner of Holistic Vets, with a broken arm, , four puncture wounds and nerve and muscle damage. She required surgery.
The council initially failed in its prosecution of Fraser when Judge David Cameron dismissed the charge in July 2022 after a judge-alone trial the previous month.
His decision found a “total absence of fault on the part of Fraser” and that Dr Schneider “was responsible for determining how the situation should be handled”.
”I consider that Dr Schneider put herself in a position where she was vulnerable to attack by a dog who had not been assessed for safety purposes,” his decision said.
The council appealed the decision, arguing the judge had made an “error of law” by focusing on the conduct of the victim, rather than Fraser’s legal responsibility to control her dog at all times.
The appeal hearing was held at Tauranga High Court yesterday and Justice Timothy Brewer released his decision today.
Justice Brewer upheld the council’s appeal and convicted Fraser of the charge.
He said he agreed with the council that “Judge Cameron erred in his consideration of the test [for total absence of fault]”.
”The onus was on Ms Fraser to prove that she was totally without fault. In other words, that there were literally no practical steps she could have taken to avert the attack,” said Justice Brewer’s written decision.
”Ms Fraser could have taken two simple steps. She could have kept Chopper in the car.
”Or, and this might not have been enough, she could have kept physical control of Chopper herself rather than leaving the dog with her 13-year-old son.
”It was irrelevant whether Dr Schneider could have acted differently, thus making the attack on her less likely. It was irrelevant whether Dr Schneider put herself in a position where she was vulnerable to attack by a dog who had not been assessed for safety purposes,” Justice Brewer’s decision said.
During the trial, evidence was given that for Chopper’s appointment it was agreed they would meet the vet in the carpark because Fraser said the dog was anxious around people he didn’t know.
Fraser said they waited around 30 minutes to be seen, so she got Chopper out of the car and had her son hold him while she went into the clinic to find out the cause of the delay.
