Heke v Auckland Council
[2023] NZHC 590
•22 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-386
[2023] NZHC 590
BETWEEN ALLAN HEKE
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 20 March 2023 Appearances:
Mr Heke in person
J Kang and C Lloyd for Respondent
Judgment:
22 March 2023
JUDGMENT OF WYLIE J
[Application for leave to appeal out of time]
This judgment was delivered by Justice Wylie On 22 March 2023 at 3.00 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Legal Services, Auckland Council, Auckland
Copy to:
Mr A Heke, Appellant
HEKE v AUCKLAND COUNCIL [2023] NZHC 590 [22 March 2023]
Introduction
[1] The appellant, Allan Heke, was found guilty on 8 July 2019 of owning a dog that attacked a person, contrary to s 57(2) of the Dog Control Act 1996 (the Act). The conviction was entered after a formal proof hearing before Judge Tremewan in the District Court at Waitakere.1 Mr Heke was fined $1,500 and a mandatory order was made for the destruction of the dog pursuant to s 57(3) of the Act.
[2] On 7 October 2022, Mr Heke filed an appeal against his conviction and the sentence imposed. He said that he wishes to adduce fresh evidence from an eye witness and that he disputes “the decision carried out by the prosecutor”.
Relevant facts
[3]The Judge found that Mr Heke was the owner of a dog named Boi Boi.
[4] On 9 March 2019, Mr Heke’s 16 year old nephew and his father visited Mr Heke at his home. The nephew was playing outside on the trampoline with his sister. Boi Boi jumped up onto the trampoline and started to attack the nephew. The dog bit the nephew twice in the head area, causing blood to run across the nephew’s head and face. The bites punctured the nephew’s ear and the nephew lost consciousness and passed out. He had to be taken to hospital by ambulance for treatment.
[5] Following the formal proof hearing, the entry of the conviction and the making of the mandatory order, Boi Boi was euthanised by animal management officers from the respondent Council on 6 October 2022. It appears that the delay in executing the destruction order was due to difficulties in seizing the dog and Mr Heke’s behaviour towards animal management officers.
1 Auckland Council v Heke [2019] NZDC 13481.
Delay
[6] Under s 231(2) of the Criminal Procedure Act 2011, Mr Heke was required to file his appeal within 20 working days after the date of sentence. Mr Heke’s appeal was filed some three years and one month out of time.
[7] On 4 November 2022, Gordon J allocated a substantive hearing date of 12 December 2022 and put in place a timetable to bring the matter on for hearing. Amongst other things, Mr Heke was directed to file an application for leave to appeal out of time and an application to admit fresh evidence on appeal. Mr Heke failed and/or refused to file either document. The matter was then called before Downs J by way of telephone conference. Mr Heke failed to appear. The Court adjourned the substantive appeal and placed the matter into the callover list. On 17 February 2023, there was a further callover before Gault J. He made directions for the filing of submissions by both Mr Heke and the Council. The matter was then set down for hearing today.
Leave to appeal out of time
[8] Mr Heke had the right to appeal against his conviction.2 However, as noted, any appeal had to be filed within 20 working days after the sentence for the conviction was imposed. Mr Heke’s appeal was filed 762 working days late. Mr Heke has not filed an application for an extension of time, notwithstanding the directions issued by the Court requiring that he do so. Nor has he filed any submissions relevant to the issue. He has filed a large number of papers, but they related to individual sovereignty issues and not to the issue of whether or not time to appeal should be extended. When I asked Mr Heke why the appeal had been filed some three years out of time, he told me that that did not matter.
[9] The Council submitted that the Court should decline Mr Heke’s (implicit) application for leave to appeal out of time.
2 Criminal Procedure Act 2011, s 229.
[10] This Court has jurisdiction to extend the time allowed for filing a notice of appeal.3
[11] Ordinarily applications for extensions of time reduce to the reasons for the delay and the merits of the proposed appeal. Whether an application for leave for an extension of time should be granted will generally depend on the interests of justice in the particular case.4 The Court of Appeal has stated as follows:5
… that it will only entertain an appeal that is many years out of time, such as this [almost four years], in exceptional circumstances. Applications for leave to appeal out of time involve a balancing test, in which relevant considerations include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedies sought. The extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown are also relevant. A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.
(footnotes omitted)
[12] Here, Mr Heke has failed to explain to the Court why it is in the interests of justice to grant him an extension of time to file his appeal. He has not filed an application for an extension of time; he has provided no reasons for the delay; he has provided no relevant submissions in support of his substantive appeal; he has not filed either an application to admit fresh evidence or even a statement or summary of the further evidence he says he wishes to rely on.
[13] It is unlikely that the Court would allow Mr Heke to file fresh evidence. The principles relating to the admission of such evidence are well established. The overriding test is whether it is in the interests of justice to admit the fresh evidence.6 The evidence must generally be fresh, cogent and credible and in relation to matters likely to be in issue when the appeal is heard.7 The Privy Council explained the test as follows:8
3 Criminal Procedure Act 2011, s 231(3).
4 R v Knight [1998] 1 NZLR 583 (CA) at 587, affirmed in R v Lee [2006] 3 NZLR 42 (CA).
5 Butcher v R [2015] NZCA 102 at [7].
6 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119].
7 Ellis v R [2021] NZSC 77 at [30]; R v Bain [2004] 1 NZLR 638 (CA) at [26], approved in Noble v R [2010] NZSC 85 at [2].
8 Lundy v R, above n 6, at [120].
The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[14] When I asked Mr Heke about his proposed fresh evidence, he declined to tell me who the witness would be or what he or she may say. Rather, he told me that the evidence would be what he would be passing to the Court and that there would be new proof that all statements of the prosecutor were false.
[15] Without submissions or some detail of the proposed fresh evidence, it is difficult to assess whether it is either fresh or credible. It seems unlikely that the evidence could be fresh and, even if the freshness test were to be satisfied and the proposed evidence was credible, it also seems unlikely that the proposed evidence could establish that there was a miscarriage of justice. The evidence of the attack was strong—there was the victim’s statement, the medical evidence and the photographs. The offence created by s 57(2) of the Act is a strict liability offence.9 Unless the proposed witness is able to say that the dog did not attack the victim, any eye witness account can have had no impact on the conviction.
[16] An eye witness account may have had an impact on whether the destruction order should have been made. Section 57(3) requires the court to order the destruction of the dog unless the “circumstances of the offence were exceptional”. Exceptional circumstances are circumstances that are sufficiently exceptional that the risk of the dog attacking again in similar circumstances is remote and does not justify the destruction of the dog.10 If the proposed eyewitness was able to produce evidence of such circumstances, this might have affected the making of the destruction order.
9 Newlands v Nelson City Council [2021] NZSC 100 at [11] and Johnston v Auckland Council [2022] NZSC 40 at [7], approving Epiha v Tauranga City Council [2017] NZCA 511, [2017] NZAR 1664 at [6].
10 Auckland Council v Hill [2020] NZCA 52.
However, if Mr Heke is not prepared to make an application to admit fresh evidence or to disclose even in summary what the proposed witness might say, he cannot expect the Court to place any great weight on this possibility.
[17] For the reasons I have set out, Mr Heke’s (implicit) application for leave to appeal out of time is declined.
Wylie J
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