Heke v Auckland Council - [2023] NZHC 590

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…

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.

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Details

Case: [2023] NZHC 590
Decision Date: 22 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Allan Heke versus Auckland Council was heard. Heke, the appellant, was convicted in the District Court of owning a dog that attacked a person, in breach of the Dog Control Act 1996. The conviction resulted in a fine and a mandatory order for the dog's destruction. Heke appealed against his conviction and sentence, seeking to adduce fresh evidence and disputing the prosecutor's decision. The appeal was filed significantly out of time, as it was lodged three years and one month after the sentence was imposed.

The court was required to decide whether Heke's appeal should be heard despite being filed beyond the statutory deadline, and if fresh evidence could be admitted. The key issues were whether the delay in filing the appeal was justified and if the proposed fresh evidence was credible and relevant enough to warrant consideration.

Justice Wylie, in delivering the judgment, noted that the appeal was filed well beyond the 20 working days allowed by the Criminal Procedure Act 2011. The court has the authority to extend this time, but it must balance the interests of justice, including the finality of decisions, the merits of the appeal, and the impact on the administration of justice. Heke provided no explanation for the delay, did not file an application for an extension, and failed to submit relevant submissions. Furthermore, Heke did not disclose details of the proposed fresh evidence, making it difficult to assess its credibility or relevance. The court held that the evidence of the attack was strong and that the proposed fresh evidence was unlikely to establish a miscarriage of justice. Consequently, Heke's application for leave to appeal out of time was declined.

In conclusion, the court found that Heke's appeal was untimely and that the proposed fresh evidence was insufficiently detailed to warrant consideration. The court declined Heke's application for leave to appeal out of time and dismissed the appeal.

Orders