Comer v Auckland Council - [2024] NZHC 866

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000387

[2024] NZHC 866

NIKI COMER

v

AUCKLAND COUNCIL

Hearing: 5 February 2024

Appearances:

M Taylor-Cyphers for the Appellant S Boon for the Respondent

Judgment:

19 April 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 19 April 2024 at 11 am Registrar/Deputy Registrar

Counsel:

M Taylor-Cyphers, Barrister, Auckland
S Boon, Auckland Council Legal Services, Auckland

COMER v AUCKLAND COUNCIL [2024] NZHC 866 [19 April 2024]

[1] The appellant, Ms Comer, is the owner of a male American Pitbull Terrier cross named Stax. On 14 May 2021, Stax and another dog, owned by Ms Comer’s mother (Ms McIvor), attacked a dog named Tigga. Tigga was chained on the neighbouring property at the time of the attack.

[2] On 5 April 2023, following a Judge-alone trial in the District Court, Judge Y Yelavich convicted Ms Comer of an offence under s 57(2) of the Dog Control Act 1996 (the Act).1 Pursuant to s 57(3) of the Act, the Judge was required on conviction to impose a dog destruction order “unless satisfied that the circumstances of the offence were exceptional and [did] not warrant destruction of the dog”. The Judge made an order for Stax’s destruction.2

[3] Ms Comer appeals the conviction. She seeks a re-trial. Her notice of appeal dated 25 July 2023 challenged the Judge’s finding that it was Stax who attacked Tigga. Subsequently, Ms Comer was granted leave to re-cast her appeal.3 The position she now advances is that the trial was unfair because she could not adequately put her defence without the assistance of counsel and legal representation had been wrongly denied to her by the refusal of a grant of legal aid. Ms Comer says that these matters amount to a miscarriage of justice.

[4] The respondent, Auckland Council (the Council), opposes the appeal. It argues that there was no miscarriage of justice and no real risk that the outcome of the trial was affected by the lack of legal aid.

Background

[5] Tigga was attacked by two dogs on the property of [REDACTED] Orchard Rise, Papakura.

[6] The trial issue was whether Stax and the second dog, Toffee, perpetrated the attack.

1      Auckland Council v Comer and McIvor [2023] NZDC 6883.
2      Order for Destruction of Dog date 30 June 2023.
3      Minute of Andrew J dated 7 November 2023.

[7] The attack was seen by an independent witness who was parked opposite the driveway of [REDACTED] Orchard Rise at the relevant time. Her view of the attack was unobstructed when she got out of her car, crossed the road, and stood by the letterbox at the end of the driveway.

[8] The witness gave evidence that the two attacking dogs were medium sized and of solid build: one tan and one brownish. She thought they were possibly of Staffordshire or Pitbull breeding. The judgment records the witnesses’ evidence as follows:4
…there was a Jeep…

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 Comer v Auckland Council

Details

AGLC: Comer v Auckland Council [2024] NZHC 866
Case: [2024] NZHC 866
Decision Date: 19 April 2024

CaseChat Overview and Summary

The case of Comer v Auckland Council involves an appeal by Ms. Comer against her conviction under the Dog Control Act 1996, following an attack by her dog, Stax, on another dog named Tigga. Ms. Comer contests the conviction, arguing that she was denied legal representation unfairly, which prejudiced her trial and led to a miscarriage of justice. The Auckland Council opposes the appeal, asserting that the trial was fair and that there was no miscarriage of justice.

The legal issues in this case revolve around whether Ms. Comer's rights to legal representation and a fair trial, as guaranteed by the New Zealand Bill of Rights Act 1990, were breached. The primary question is whether the denial of legal aid, which led to Ms. Comer representing herself, constituted a breach of her rights, resulting in an unfair trial and miscarriage of justice.

The court's reasoning and outcome focus on whether the denial of legal aid and the self-representation of Ms. Comer amounted to a breach of her rights under the New Zealand Bill of Rights Act 1990. The court held that Ms. Comer did not sufficiently demonstrate that she was entitled to legal aid, as she did not take the necessary steps to obtain legal assistance, including seeking a reconsideration of the legal aid decision. Furthermore, the court found that the denial of legal aid, even if erroneous, was not a breach of Ms. Comer's rights amounting to an error or irregularity affecting the fairness of the trial. The court also concluded that the overall fairness of the trial was not compromised, as the Judge took steps to assist the self-represented defendants and there was no evidence that the outcome would have been different if Ms. Comer had been represented by counsel.

The final orders of the court dismissed the appeal, affirming the conviction and sentence of the District Court judge.

Orders