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 parked on the property of [REDACTED] Orchard Rise. The dog that was being attacked tried to hide under the Jeep. However, one of the attacking dogs pulled the dog from under the Jeep, grabbed it by its face, hauling it out. The dog was dragged out from under the bonnet and dragged towards the house on [REDACTED] Orchard Rise. [She] said that after the dog was dragged out by its head, the second dog started attacking it on its hindquarters.

[9]    After approximately five to ten minutes, while the witness was trying to contact someone from Dog Control, a man came down from a long driveway next door to the property. He grabbed the two attacking dogs and took them back up the same driveway and through a gate with a large ‘Stop’ sign nailed to the outside of it. The witness observed where the dogs were being taken and identified the driveway which corresponded with Ms Comer’s place of residence, [REDACTED] Orchard Rise.

[10]   A warranted animal control officer working for the Council (Animal Management) was sent to the scene. He spoke to Ms Comer. His evidence was that a long driveway led to Ms Comer’s home and there was a large ‘Stop’ sign on the gate to the property. Ms Comer indicated to the animal control officer that she had not been present at the time of the alleged attack and did not know what had happened.

[11]   Stax and Toffee were seized and impounded. While unhappy that the dogs were seized, to their credit Ms Comer and her mother did not obstruct the officer in any way. I understand that within a short space of time, the dogs were released back to their owners on strict conditions.

4      Auckland Council v Comer and McIvor, above n 1 at [11].

District Court Judge’s decision

[12]   Both Ms Comer and her mother were charged under s 57(2) of the Act. Both were self-represented at trial. Judge Yelavich delivered an oral judgment after hearing evidence from witnesses for the prosecution. Ms Comer and her mother elected not to call evidence.

[13]   The Judge set out the elements of the offence. She noted that the onus of proving each element rests on the prosecution, but if each of the elements are proved beyond reasonable doubt then the onus shifts to each defendant to prove total absence of fault on the balance of probabilities. She also noted that she must decide each charge separately in respect of each defendant and reach a separate decision on each.5

[14]   The Judge referred to the statement made by Ms Comer when interviewed in which Ms Comer stated that Stax is normally on a run inside her property.6 Earlier that morning she had loosened the run chain by about one metre to allow Stax to relax in the sun. She then left the property. Stax was at that time secured on his chain inside the property. When she returned to learn that Stax had been involved in an attack, he was back in his cage on the property.7

[15]   The Judge was satisfied that several strands of evidence established that Stax and Toffee were involved in the attack on Tigga. She concluded:8

[28] In summary,  I am sure that the two dogs involved in the attack on  Tigga were the two dogs that were taken to [REDACTED] Orchard Rise. There were two dogs at that property, Ms McIvor’s dog Toffee and Ms Comer’s dog Stax. I am satisfied beyond reasonable doubt that Stax and Toffee were the two dogs involved in the attack on 14 May. An absence of fault defence has not been pursued in this case and I accordingly find both Ms McIvor and Ms Comer guilty on each of the charges.

5 At [5].

6 At [17].

7      There is no suggestion that the property itself is securely fenced. The judgment records that there was no fencing around the back of the property at number [REDACTED] and no fencing between the driveway for numbers [REDACTED] and the property at [REDACTED]. See Auckland Council v Comer and McIvor, above n 1 at [25].

8      Auckland Council v Comer and McIvor, above n 1.

Preliminary – application to adduce fresh evidence

[16]   As leave was granted to recast this appeal, leave was also sought to adduce an affidavit from Ms Comer as fresh evidence under s 335 of the Criminal Procedure Act 2011 (CPA).9

[17]   The Council did not oppose the introduction of this evidence, nor object that it had not been sworn by the time of the hearing for reasons explained to the Court.

[18]   Accordingly, insofar as leave had not already been granted prior to the hearing, I granted leave to adduce that material.

[19]Ms Comer states:10

(a)She wanted a lawyer but could not afford one and did not think she could get one on legal aid.

(b)She thinks she received a letter to tell her this and took this to mean that she had to represent herself.11

(c)No one ever told her she could get legal aid for this.

(d)There has been no material change in her circumstances, but now has legal aid because of “unrelated matters”.

(e)She did not get any advice from anyone about how to run a trial and “literally had no idea what I was doing”.

(f)The Judge gave her a bit of help, but other than that, she just “fumbled along”.

9      A timetable made by Minute of Gordon J on 28 September 2023 had earlier directed the filing of any fresh evidence.

10     Unsigned affidavit of Niki Comer received at the Auckland High Court on 20 December 2023.

11     No letter was produced to the Court, but the respondent accepted there was such a letter and referred to a letter declining legal aid dated 2 June 2023.

(g)She did not know that she could call witnesses, but had she known she would have asked a person who saw the whole thing to be her witness.

(h)That person’s evidence would have helped her case and she might have been found not guilty.

(i)She has no qualifications, having left school at the age of 16 years.

(j)Sometimes she did not understand what the lawyers were saying because they were using language she did not know.

[20]   Ms Comer did not identify the witness she says saw the whole thing unfold. There is no affidavit from that person, and the nature and relevance of their evidence to any available defence is not known. Nor is there any suggestion that a statement was taken from that person, or that they were identified to the attending animal control officer as being someone who saw the attack. In short, there is no material before this Court to support the argument that Ms Comer’s case would have been materially advanced had a witness been called on her behalf to give evidence.

Legal framework for offences under the Act

[21]   The Act sets out obligations for dog owners. These include keeping dogs under control at all times and taking all reasonable steps to ensure the dog does not injure, endanger, or cause distress to persons, poultry, domestic animals, or protected wildlife.12

[22]Section 57(2) of the Act is a strict liability offence.13 It reads:

57       Dogs attacking persons or animals

…

(2)The owner of a dog that makes an attack described in subsection (1) commits an offence and is liable on conviction to a fine not exceeding

$3,000 in addition to any liability that he or she may incur for any damage caused by the attack.

12     Dog Control Act 1996, s 5.

13     Epiha v Tauranga City Council [2017] NZCA 511 at [6].

[23]   A prosecution under this provision does not require a prosecutor to establish mens rea as an element of the offence. The prosecutor needs only to establish that an accused firstly owned a dog, and secondly, that the same dog attacked a person, domestic animal, stock, poultry, or protected wildlife.

[24]   The common law defence of “total absence of fault” is preserved in s 20 of the Crimes Act 1961. It is applicable to offences of strict liability. A dog owner relying on this defence must establish, on the balance of probabilities, that there was literally no practical step the owner could have taken to avert the attack. This does not mean that the owner must remove any possibility of any kind of attack no matter how remote that possibility might be, before being able to rely on the defence.14

[25]   There is no room for notions of reasonableness. As Brewer J emphasised in King v South Waikato District Council (No 3), total absence of fault is a threshold higher than behaviour which is reasonable in the circumstances.15 The bar is set so high because “strict liability offences are designed to privilege the protection of public welfare over other interests involved”.16

[26]Section 57(3) of the Act provides:

(3)If, in any proceedings under subsection (2), the court is satisfied that the dog has committed an attack described in subsection (1) and that the dog has not been destroyed, the court must make an order for the destruction of the dog unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

[27]   There is a presumptive requirement for destruction in the context of an offence against s 57(2). This was explained by the Court of Appeal in Auckland Council v Hill:17

[65]  The reason for a default rule that the dog should be destroyed is that  the Act proceeds on the basis that where a dog has attacked once, there is a risk that the dog will behave in the same way again in similar circumstances. That risk must be removed by destruction of the dog, unless the risk is immaterial because the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely.

14     Walker v Nelson City Council [2017] NZHC 750 at [25].

15     King v South Waikato District Council (No 3) [2013] NZHC 596, [2013] NZAR 451 at [20].

16     Walker v Nelson City Council, above, n16 at [22].

17     Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.

[28]   The Court in Hill conducted a detailed review of the relevant provisions of the Act and summarised the proper approach to consideration of whether the circumstances of the offence are exceptional and do not warrant destruction of the dog. The Court noted that:

[84] If the circumstances of the attack are exceptional, in the sense that the dog can properly be seen as not intrinsically dangerous – for example where the dog’s owner was under attack, or where the dog was provoked – then a court may be satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog.

Points on appeal

[29]   The appeal is against conviction rather than conviction and sentence. The core of this appeal is encapsulated in Ms Taylor-Cypher’s written submissions as follows:18

Where there has not been an informed waiver or forfeiture of the right to counsel, there will have been a breach of the defendant’s rights contained in s 24 of the Bill of Rights Act, and prima facie an unfair trial and a miscarriage of justice will have resulted from that breach.

[30]   The primary question on appeal then is whether Ms Comer’s rights to legal representation guaranteed in s 24 of the New Zealand Bill of Rights Act 1990 (NZBORA) were breached with the result that the trial was presumptively unfair and a miscarriage of justice occurred. Ms Taylor-Cyphers contends this to be the case as Ms Comer did not waive her right to legal representation; it came about only because legal aid was erroneously denied to her. As a fall-back even if not presumptively unfair, Ms Taylor-Cyphers contends that all the circumstances of the trial, which include the denial of legal aid to Ms Comer, resulted in unfairness and, consequently, a miscarried trial.

[31]   In response, the Council argues that the interests of justice did not require legal aid to be available to Ms Comer; she was able to advance a defence that neither Stax nor Toffee were the attack dogs, and a defence of “total absence of fault” is unsupported. It follows that there was no real risk that the outcome of the trial was affected by the decision to decline criminal legal aid, nor was there a fundamental procedural error rendering the trial a nullity.

18     Submissions on behalf of the appellant dated 20 December 2023.

Approach to appeal

[32]   Section 229 of the CPA provides appellants with a general right of appeal against conviction. Section 232(2) requires the appeal court to allow the appeal if it is satisfied that:

(a)in the case of a Judge-alone trial the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b)in any case, a miscarriage of justice has occurred for any other reason.

[33]   Section 232(4) defines miscarriage of justice as meaning any error, irregularity, or occurrence in or in relation to or affecting the trial that:

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[34]   This appeal is concerned with whether something material has gone wrong with the trial beyond the sufficiency of the evidence. The inquiry involves a two-step process: was there an error, irregularity, or occurrence in or in relation to or affecting the trial and, if so, did either of s 232(4)(a) or (b) arise as a consequence?19

[35]   A broad approach is required to determine whether there is “an error, irregularity, or recurrence … affecting the trial”.20 A “real risk” arises when there is a reasonable possibility that a not guilty or more favourable verdict might have been delivered if nothing had gone wrong. Irregularities which do not either individually or collectively affect the result of the trial are not properly characterised as miscarriages of justice and the appeal court must disregard them.

19     Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].

20     Criminal Procedure Act 2011, s 232(4).

[36]   If a trial is unfair, it is unnecessary to consider whether this affected the outcome of the trial. A conviction from an unfair trial cannot be sustained even if a different outcome was unlikely or a conviction was inevitable.21

[37]   Section 25 of NBORA guarantees as a minimum standard of criminal procedure, a right to a fair and public hearing, and the right to be present at the trial and to present a defence.

[38]   The key legislative provisions are s 24(c) and (f) of NZBORA and s 8 of the Legal Services Act 2011 (LSA). Section 24(c) and (f) of NZBORA provides:

24       Rights of persons charged

Everyone who is charged with an offence—

…

(c)       shall have the right to consult and instruct a lawyer; and…

(f)  shall have the right to receive legal assistance without cost if the  interests of justice so require and the person does not have sufficient means to provide for that assistance; …

[39]   These rights are treated as constituent or subsidiary elements of the right to a fair trial.22

[40]   While the right to a fair trial is an absolute right, there is no absolute right to legal representation even when a defendant faces a serious charge.23 Where, however, a defendant wished to be represented in defending a serious charge but was not, the starting expectation will be that the trial was unfair.24 That would result in the overturn of the conviction unless the Crown was able to satisfy the appellate court that the trial was actually fair in terms of s 25(a) of NZBORA. That is difficult to show in a case where the defendant is facing a serious charge.25

[41]   Where a defendant has made an informed choice to not be represented, the starting point is different. There is no presumption of unfairness. However, there is

21     Wiley v R, above, n 19 at [37].

22     R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [76].

23 At [76].

24 At [79].

25 At [79].

still a requirement for the appellate court to examine the overall fairness of the trial and if the trial was unfair, the conviction will be quashed.26

[42]   I pause to note that a charge likely to result in the destruction of a dog is naturally serious from a dog owner’s perspective. From a legislative perspective, a serious charge is one where the maximum penalty is imprisonment.

[43]   The provisions of the LSA pertaining to criminal matters are the means chosen by Parliament to fulfil the Crown’s obligation under s 24(f) NZBORA. Section 8 of the LSA provides:

8         When legal aid may be granted: criminal matters

(1)The Commissioner may grant legal aid to an applicant in respect of proceedings to which section 6 applies (criminal matters) if—

(a)the applicant is a natural person charged with or convicted of an offence; and

(b)it appears to the Commissioner that the applicant does not have sufficient means to enable him or her to obtain legal assistance; and

(c)either—

(i)the offence to which the application relates is punishable by a maximum term of imprisonment of 6 months or more; or

(ii)it appears to the Commissioner that the interests of justice require that the applicant be granted legal aid.

(2)When considering whether the interests of justice require that the applicant be granted legal aid, the Commissioner—

(a)must have regard to—

(i)whether the applicant has any previous conviction; and

(ii)whether the applicant is charged with or convicted of an offence punishable by imprisonment; and

(iii)whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment; and

(iv)whether the proceedings involve a substantial question of law; and

26 At [80].

(v)whether there are complex factual, legal, or evidential matters that require the determination of a court; and

(vi)whether the applicant is able to understand the proceedings or present his or her own case, whether orally or in writing; and

(vii)in any proceeding to which section 6(c) applies, the consequences for the applicant if legal aid is not granted; and

(viii)in respect of an appeal, the grounds of the appeal; and

(b)may have regard to any other circumstances that, in the opinion of the Commissioner, are relevant.

[44]   The entitlement under s 24(f) is subject to a defendant taking the necessary steps to obtain the services of a lawyer by obtaining legal aid, rather than sitting back.27 This includes seeking a review of the Legal Services Commissioner’s decision not to grant legal aid.28

Analysis

Did the circumstances in which Ms Comer came to be unrepresented at trial lead to a breach of the appellant’s rights guaranteed by s 24(f) of the New Zealand Bill of Rights Act 1990?

[45]   Ms Taylor-Cyphers draws a comparison between situations where the defendant’s decision to self-represent was not an informed one and Ms Comer’s situation, because she wished to be represented but was wrongly advised that she had no entitlement to legal aid. Ms Taylor-Cyphers submits that it follows that the Crown must show that there was no unfairness where the defendant was unrepresented through no fault of her own.

[46]   Ms Comer argues that her application for legal aid was erroneously declined, and she could not afford representation without legal aid. However, her application and indeed any supporting material were not before this Court. The only argument she makes to support the contention that legal aid was erroneously declined is that she now has legal aid even though her situation has not changed. She states:29

27 At [76].

28     Bullock v R [2024] NZCA 3 at [21]–[22].

29     Unsigned affidavit of Niki Comer received at the Auckland High Court on 20 December 2023.

I wanted a lawyer but could not afford one and did not think I could get one on legal aid. I think I received a letter to tell me this. I have asked my lawyer to get all my letters from legal aid to see if there is a copy.

When I got the letter I took this to mean I had to represent myself because there was no way I could afford my own lawyer.

…

No one ever told me I could get legal aid for this.

I have legal aid now. My circumstances have not changed. This came about because of unrelated matters.

(Emphasis added).

[47]   The unrelated matters were not explained. There are no specifics about the asserted change of position on the part of the Legal Aid Commissioner. Overall, there is a dearth of evidential material. I return to this aspect later in this judgment.

[48]   I do not accept that s 24(f) of NZBORA was breached for two reasons. First, I am satisfied that Ms Comer did not do enough to trigger any rights which might subsist under s 24(f). Ms Comer does not say that she sought reconsideration of the legal aid decision or that she was unaware of the right to do so. I can infer that it would be unlikely that she was not made aware since s 17 of the LSA requires that when declining legal aid, the Commissioner must notify an applicant of their right to seek a reconsideration of the decision and a review of any reconsideration. Since the obligation lies with the defendant to take the necessary steps to obtain legal assistance under the LSA to trigger a right under s 24(f) of NZBORA, there is no breach.

[49]   Secondly, there is no basis on which to form the view that legal aid was wrongly declined. The mandatory considerations in s 8(2) of the LSA do not obviously point to a grant of legal aid to defend  a charge under the Act.  The offence which  Ms Comer faced is not punishable by a maximum term of imprisonment of six months or more, thus the Commissioner had a discretion to grant legal aid if it appeared that the interests of justice required such grant.30 It is not clear that the interests of justice did so require.

30     Legal Services Act 2011, s 8(1).

[50]   The Court is left with the bald contention that the decision to decline legal aid decision was an error, based simply on the current grant of legal aid to pursue this appeal. I am not prepared to draw that conclusion on the material before me, given the slim description of how the current legal aid situation came about and how the “unrelated” matters come into play.

[51]   I also doubt that this is an issue appropriately dealt with in this context. It would amount to a ‘review by a side wind’ of a decision of the Legal Services Commission when there is a legislative mechanism for review of such decisions. That cannot have been the intention of Parliament.

[52]   I find therefore that declining legal aid (even if it had been in error) is not a breach of s 24(f) of NZBORA amounting to an error, irregularity or occurrence presumptively affecting the fairness of the trial.

Was the appellant’s right to a fair trial (as guaranteed by s 25(a) of NZBORA) breached?

[53]   While there is no presumptive unfairness where a defendant is rightly refused legal aid, I am still left with an obligation to examine the overall fairness of the trial.31

[54]   I accept that Ms Comer did not willingly acquiesce to self-represent. Whether she had any alternative, other than a grant of legal aid which was not properly explored, is unclear. I proceed on the assumption that she had no alternative but to represent herself.

[55]   Ms Taylor-Cyphers submits that the confluence of self-representation, lack of competence and lack of assistance conspired to make the trial unfair. The focus of this submission is on the appellant’s lack of awareness of a “total absence of fault” defence rather than on the elements of the strict liability offence itself. As to the latter, on which the prosecution carried the burden, Ms Comer’s co-defendant (her mother,  Ms McIvor) presented photographs of alternative suspects for the attack, namely dogs known to roam the area. She put these to the prosecution witnesses who had to be

31     Carter v R [2016] NZCA 629 at [21].

recalled for the purpose of enabling questioning on these exhibits. The Judge permitted this, no doubt recognising the limitations of the two self-represented defendants. The Judge also intervened to recast questions put to prosecution witnesses in a manner helpful to the defence and to clarify the descriptions of locations.32

[56]   The defence case at trial was advanced by Ms Comer and her co-defendant on the following grounds:

(a)The dogs that attacked Tigga could have been other dogs rather than their dogs.

(b)The eyewitness’ ability to witness the incident would have been obstructed by the position of a Jeep in the driveway and the chain on which Tigga had been left was not long enough to allow the dog to move to that position.

(c)The witness could not be sure to which address the attacking dogs were returned after being taken away.

(d)The scratches on Tigga were not fresh and could have resulted from an incident other than that alleged in the charge.

[57]   The right of defendants to conduct their own defence is not premised on the basis that they will do so in a skilful or effective manner.33 I note that Ms Comer says that she left school at an early age.34 I am not persuaded that her comparative lack of education meant that she was not capable of telling her story to a sufficient threshold that the trial became unfair.

[58]   While Ms Comer says that she did not know that she could call witnesses at trial, she provides no information about whether there are any prospective witnesses or what their evidence would be. I draw an analogy with those cases in which the appellant complains that a particular witness was not called at trial leading to

32     See Notes of Evidence.

33     R v Cumming [2006] 2 NZLR 597 (CA) at [43].

34     Unsigned affidavit of Niki Comer received at the Auckland High Court on 20 December 2023.

unfairness. In those cases, appellate courts normally require such an argument to be backed up with an affidavit from the witness who was not called. There is no such material before the Court.

[59]   Further, there is also nothing in the evidence before the Court, including the explanation that Stax was chained before Ms Comer left the property that day to provide a basis for a “total absence of fault” defence. The asserted defence is theoretical rather than actual.

[60]   Ms Comer’s formal written statement dated 16 May 2021 (Exhibit 8 at trial) records that Ms Comer had loosened Stax’s chain by about one metre to allow him to relax in the sun. The Council argues that this is inconsistent with a defence of “total absence of fault” because it increased the opportunity for Stax to attack by reducing the physical control over the dog, presumably enabling it to reach the fence where it slipped its chain.

[61]   Ultimately, despite Ms Taylor-Cypher’s able endeavours to persuade me otherwise, I find the absence of any material on which to advance even an arguable defence of “total absence of fault” compelling.

[62]   In sum, there is nothing before the Court on this appeal that establishes a possibility that the verdict would have been different if Ms Comer had been represented by counsel.

[63]   Accordingly, I dismiss the appeal. The verdict and therefore sentence of the District Court judge stand.

............................................................

Walker J