Auckland Council v Kyle - [2020] NZHC 2837

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-404-000280

[2020] NZHC 2837

BETWEEN
AUCKLAND COUNCIL

Appellant

AND

KYLE KYLE

Respondent

Hearing: 06 October 2020

Appearances:

D J Collins & L V Faletau for the Appellant G A Anderson for the Respondent

Judgment:

29 October 2020

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 29 October 2020 at 4.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel: Auckland Council, Auckland
G A Anderson, Barrister, Auckland

AUCKLAND COUNCIL v KYLE [2020] NZHC 2837 [29 October 2020]

Introduction

[1] Auckland Council charged Mr Kyle under s 57(2) of the Dog Control Act 1996 with being an owner of a dog that attacked another domestic animal. Under s 57(3), if the Court is satisfied that a dog committed such an attack, the Court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional.

[2] At a sentence indication hearing in the North Shore District Court on 10 June 2020 Judge Wallwork said that she believed there “may well have been” exceptional circumstances.1 On that basis the Judge indicated that she would not order destruction of Mr Kyle’s dog, but that she would fine Mr Kyle. Mr Kyle pleaded guilty at that hearing. Judge Wallwork then sentenced Mr Kyle to a fine of $1,000 and ordered reparation of $300. Her Honour did not order destruction of the dog.

[3] Auckland Council appeals against the sentence.2 The Council says the Judge failed to apply the correct legal test as to exceptional circumstances under s 57(3), and therefore erred in not ordering destruction of the dog. The Council asks that on this appeal I order destruction of the dog. The Council does not challenge the fine or reparation.

[4] Mr Kyle does not seriously dispute that the Judge erred in applying the exceptional circumstances test. But he says that in deciding to plead guilty he relied on the Judge’s sentence indication. He says, therefore, that if I am of the view that the Judge erred in her application of the exceptional circumstances test, I should remit the matter back to the District Court to allow him to withdraw his guilty plea.

[5] For the reasons set out below, in my view the Judge did err in applying the exceptional circumstances test. The key issue on the appeal, therefore, is whether I should allow Mr Kyle to withdraw his guilty plea.

1 Auckland Council v Kyle DC North Shore CRI-2019-044-003137, 10 June 2020 (sentencing indication) at [15].
2 The appeal was brought with the consent of the Solicitor-General, as required by s 246(2) of the Criminal Procedure Act 2011.

The facts

[6] A summary of facts was agreed for the purpose of the sentence indication. In brief, Mr Kyle’s dog, Simba, was with Mr Kyle at Rothesay Bay beach. The complainant and her partner were walking their dog Chiko along the same beach. They walked up…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Auckland Council v Kyle

Details

AGLC: Auckland Council v Kyle [2020] NZHC 2837
Case: [2020] NZHC 2837
Decision Date: 29 October 2020

CaseChat Overview and Summary

In Auckland Council v Kyle, the High Court was asked to review a decision made by the North Shore District Court regarding the sentencing of Mr Kyle, who had pleaded guilty to charges under the Dog Control Act 1996. The key legal issue was whether the District Court had erred in not ordering the destruction of Mr Kyle’s dog, Simba, after finding that there may have been exceptional circumstances justifying a departure from the usual mandatory destruction order. The Court of Appeal's recent decision in Auckland Council v Hill provided guidance on the application of the "exceptional circumstances" test under s 57(3) of the Act. The High Court found that the District Court had indeed erred in its application of this test, as it had not been sufficiently satisfied that the circumstances were exceptional. However, the Court also considered whether Mr Kyle should be allowed to withdraw his guilty plea, given that he had relied on the District Court's sentence indication. After reviewing the background and intention behind the relevant provisions of the Criminal Procedure Act 2011, the Court concluded that it was in the interests of justice to grant Mr Kyle leave to withdraw his plea, primarily due to the significant disparity between the sentence indicated and the sentence that the High Court intended to impose.

In light of the above, the High Court allowed the appeal against the sentence and ordered the destruction of Simba. However, the Court also granted Mr Kyle leave to withdraw his guilty plea under s 252 of the Criminal Procedure Act 2011 and remitted the matter to the District Court for Mr Kyle to re-plead to the charge. This decision ensures that Mr Kyle can reconsider his position in light of the Court's findings and provides a fair outcome for all parties involved.

Orders