SUBMISSIONS OF COUNSEL IN SHEEP WORRYING CLAIM

Gisborne Herald, Volume LXXVII, Issue 23196, 7 March 1950, Page 4

SUBMISSIONS OF COUNSEL IN SHEEP WORRYING CLAIM

DECISION RESERVED

'J'HE hearing of an appeal against a judgment of the Magistrate’s Court in a sheepworrying claim was concluded in the Gisborne Supreme Court last night before Mr. Justice Hay. After the hearing of evidence from the parties and the submissions of counsel, His Honour reserved his decision.

The appellant was Charles Albert Kerse, company manager, Gisborne, for whom Mr. L. T. Burnard appeared, and the respondent was Robert Henry Biggar, sheepfarmer, Taruheru, who was represented by Mr. J. S. Wauchop. The remaining witnesses heard on behalf of the respondent were:—John. Campbell Thomson, auctioneer and stock agent, Gisborne Philip Joseph Andrew, farmer, Taruheru, Peter James Andrews, shepherd, Taruheru.

Witnesses called on behalf of the appellant were:—Graham Whitehead, horse trainer, Gisborne, John Dunlop, retired fellmonger, Gisborne, Alexander Livingston Campbell, departmental manager. Gisborne, Henry Cunningham, upholsterer. Gisborne. Harry Seal, carpenter. Gisborne, Kenneth Cameron, farmer, Bushmere, Walter Clifton Whitley, farmer, Gisborne, the appellant, James Dalrymple, freezing works employee and farmer, Gisborne, John de la Rue, storeman, Hexton, Ivor Thomas Edwards. driver, Gisborne, Henry George Warren, driver, Gisborne, Richard Halsey Beattie, driver, Gisborne, Bruce Jenkins, driver, Gisborne, Iso* bella May Kerse, wife of the appellant.

Addresses by Counsel Mr. Burnard addressed His Honour on two points of the claim which, he said, had pot been established. The first was a question of identity, in which case, he said, the onus of proof rested on the plaintiff. “The plaintiff claims that a black Labrador dog was seen on his property, but the statements on the point of identification seem to need to go further than what they have,” Mr. Burnard continued. “Evidence has been given to the effect that a young black Labrador dog was seen on an earlier occasion and that this was similar. From the nature of the case and apart from the evidence Labradors are all black and glossy and are all bred to a certain conformation. All are not similar in their movements, and all that has been established is that this animal belonged to a young black Labrador group.” “Identity is often discussed with the indentity of people, and while this offer? more characteristics, nevertheless, there has not been proved a sufficient number of characteristics to make it reasonably positive. If they cannot name the eharacterists I submit that the evidence should not be accepted.” Mr. Burnard continued that no doubt an expert in the handling of canines could identify a dog of such a breed on close observation, but nothing like that had been suggested 'in this case. • The plaintiff, said Mr. Burnard, in previous evidence had said that the dog shot and a fox terrier had had hold of a ram hogget. . , , “I submit that the evidence is clearly consistent with a series of visits by different dogs as some of the bodies of the sheep were cold, some warm and some just warm, which would permit over different periods of worrying,’ Mr. Burnard said. “Dogs often are attracted by other dogs, and it may have well been that the appellant’s dog arrived just in time to seize a hogget. I consider that po reasonable inference can be drawn other than by an actual eyewitness. “One of the witnesses for the respondent said that the dog was chasing ewes, but in the Magistrate’s Court he said that the dog was running through some ewes and it appears that is a much more probable and reasonable view. The respondent stated that the sheep were scattered when the dog went through them. No inference .can be drawn as to when the dog which was shot came on the scene, and the only evidence is that the dog was seen in the very late stages. ,„ T t_ “On the occasion of August 2 I submit that the damage was attributable to the firing of the gun, while in connection with the damage on the other occasions nothing has been shown to connect the damage claimed and the actual damage. There is always a certain loss and I would think that four out of 80 ewes would be a normal loss.

Labrador Dogs Mr. Wauchop said that on the question as to whether the occasion had been a joint affair this could be tested by the observations of the Labrador dogs which had been inspected. They were bigger and more powerful than a tox terrier, and the description of the damage “went, a long way to show that the appellant’s dog was the first and last on the scene and that it had been there all the time.” ~, , „ “It is not for us to draw that the dog and 1 two fox terriers were taking part in a joint affair,” he continued /From the strength of a judgment by Mr. Justice Blair it is not for us to distinguish. It is in the province of the defendant. If he wishes to do so he can deny it, but there has been nothing to show it. “Tire damages,” said Mr. Wauchop, “have been assessed on a mathematical basis in conformity with the evidence.” His Honour: It seems that the matter is quite independent and I am not influenced in any way by the decision. It seems that this is not a re-hearmg, but a new hearing altogether. Continuing, Mr. Wauchop said that the most serious that a dog owner could do was to allow a dog to roam without a collar. In regard to the identification point, counsel submitted that the evidence was entirely satisfactory. “I wish to call attention to the force of evidence given in an. attempt to break down the evidence in regard to the claim,” Mr. Wauchop submitted. “In most cases it has strengthened it. It would be a blind nan who could not distinguish the four dogs which we have seen one from the other. One of them had a broader chest, a deeper chest, a different head, a different tail and different way in which it was carried. His Honour commented that the appeal was based entirely on fact. There was a large volume of evidence and he would announce his decision later.