A Hastings man whose dog bit a stranger has avoided jail but says the case has "ruined" his family and cost him his business.
In Hastings District Court yesterday a judge refused to enter a conviction against Des Hughes, 41, despite finding him guilty after his dog bit a stranger who touched its nose under his closed front gate in May last year. Judge Geoff Rea discharged Mr Hughes without conviction because he said the consequences of a conviction would outweigh the seriousness of the crime.
"There is a strong indication this case is based on an erroneous basis," the judge said.
The prosecution, brought by Hastings District Council, has so far cost ratepayers $9400.
Mr Hughes said the year-long ordeal had taken a "massive toll" on his family.
"This has crushed our family. We're in financial ruin because of this. The threat of jail was always hanging over my head."
He agreed last year to euthanise the dog as it was "going mad" in the pound. "We've lost our dog and we're facing legal fees of around $6000."
Yet avoiding a conviction "is a type of victory", he said. "I consider that we've been proven innocent."
Earlier this month, Judge Rea found the charge of owning a dog that attacked proven after a two-part defended hearing.
Prosecutor Mark Von Dadelszen said yesterday that the council still considered the prosecution "justified".
This despite a late affidavit from an eye-witness to the incident, who reportedly claimed the 51-year-old victim, who had the tip of his left thumb bitten off, had aggravated the dog.
Yesterday the court was told the council had since apologised after it was discovered a dog control officer had spoken to the eye-witness, yet had failed to pass this on to senior staff.
Mr Von Dadelszen said the council questioned whether the new witness had simply seen another member of the public harassing the dog.
"So this dog got really unlucky and had two people hassling it on the same day?" Judge Rea asked. "There's a certain unpleasant single-mindedness cropping up here Mr Von Dadelszen."
"Council does not accept that," Mr Von Dadelszen said.
Mr Hughes' lawyer, Karl Sandbrook, said he was "staggered" at the council's position. The absence of earlier evidence had robbed Mr Hughes of a partial if not full defence, he said.
Judge Rea while the witness alleged the dog had come under attack, "not the other way round", it was "pure speculation" whether the new witness would have altered the guilty verdict.
He said despite who at the council was to blame for not handing on the witness' statement, prosecution had acted "in defiance" of the Criminal Disclosure Act. Judge Rea granted defence's application and said the consequences of a conviction would outweigh the seriousness of the crime.
Mr Sandbrook told Hawke's Bay Today the council had demonstrated "righteous indignation" in bringing the prosecution. "This was a clear case where discretion could have been better used," Mr Sandbrook said.
"Given everything Des and his family have been through, there's nothing tangible that's come from this prosecution."
He confirmed defence would seek compensation from council.
The council's planning and regulatory services group manager John O'Shaugnessy said he was "comfortable" with the judge's decision.
"In 2009 council implemented a firm stance on the control of dogs in the Hastings district and requires its dog control officers to take strong action in the event of a dog attack on a person."
The council refused to comment on the issue of compensation, or whether the dog control officer had faced any disciplinary action.