Judge rules on age-old question: who owns a cat?

Averil Gardiner's argument her family of felines did not belong to her and were actually wild was shot down in court yesterday when a judge offered to have them taken off her hands.

The Invercargill woman's lawyer, Simon Claver, said his client's view was the 27 ''wild'' cats at her Invercargill property belonged ultimately to the Crown.

''If they belong to the Crown, why not hand them over?'' Judge Michael Turner said, calling a five-minute adjournment so Mr Claver and Sarah McKenzie, appearing for the Crown, could discuss that.

When court resumed, Ms McKenzie said the Crown was happy to take the cats, but Mr Claver said Gardiner was not prepared to hand them over.

''Should she be charged with theft if she has cats which don't belong to her?'' Judge Turner asked.

Further, he said, neither the Health Act nor the relevant bylaw made any distinction between wild and domesticated animals.

''Whether an animal is wild or not is irrelevant. If Ms Gardiner was keeping a hippopotamus in her backyard and it was causing a nuisance she could be charged under the Health Act.''

The charges Gardiner faced related to having 27 cats and not complying with an order to reduce the number to three, he said.

''What is her defence to that?''

At that, Mr Claver requested Judge Turner remove himself from the case because his client believed ''his attitude today shows he is biased against cats and her''.

Judge Turner said he was not prepared to do that and in a brisk, 45-minute hearing, dismissed Gardiner's application to have the charges thrown out.

Gardiner has pleaded not guilty to a charge under the Local Government Act that she breached an Invercargill City Council bylaw by keeping more than three cats on her North Invercargill property and failed to comply with a council notice to reduce the number to three.

She has also denied a charge under the Health Act, 1956, of creating a nuisance by allowing cats to remain on her property in a manner that was ''offensive or likely to be injurious to health''.

Judge Turner said ownership was not mentioned in either Act. Both talked about keeping animals, and Gardiner had already told the court she had 27 cats on her property.

Mr Claver said ownership might be the wrong word, and his client was saying she did not control the cats.

But Judge Turner rejected that too, saying Gardiner had, by her own admission, tended to the animals.In a letter to the council in 2012, Gardiner wrote about ''my family of cats'', ''calling our cats home'', ''confining them in the house to keep them safe until such time as media interest abates'', and ''feeding them a superior diet inside'', he said.

''Isn't that exercising some control over them?'' he asked.

''I can't argue against that,'' Mr Claver replied.

Mr Claver said if funding permitted - Gardiner is receiving legal aid - he planned to test the validity of the bylaw by seeking a judicial review in the High Court.

Judge Turner said Mr Claver was entitled to do that, but he had to deal with the case as it stood now and dismissed the application to withdraw the charges.

A date for Gardiner's trial has yet to be set.

 

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