Henry v Auckland Council - [2021] NZHC 859

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-0055

[2021] NZHC 859

BETWEEN
BRETT HENRY

Applicant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 19 April 2021

Appearances:

S Brickell for Applicant

E J Smith and O R Thomson for Respondent

Judgment:

22 April 2021

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 22 April 2021 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: S Brickell, Auckland

HENRY v AUCKLAND COUNCIL [2021] NZHC 859 [22 April 2021]

[1] The applicant, Mr Henry, seeks an extension of time in which to appeal against his conviction for being the owner of a dog that attacked a person, an offence pursuant to s 57(2) Dog Control Act 1996 (“Act”).1 Mr Henry was convicted of this offence in the Auckland District Court on 4 March 2019 and was sentenced, at least in part, at the end of June 2019. An order for destruction of the dog, a pit bull terrier named Mitimiti, was made on 5 May 2020. This Court has described such an order as a component of sentencing.2

[2] Mr Henry must satisfy the Court that it is in the interests of justice to grant an extension of time. In deciding whether to do so, the Court must undertake a balancing exercise, with relevant considerations including the length of and reason for the delay; the strength of the proposed appeal; whether or not the appeal involves a matter of general or public importance and whether a miscarriage of justice has occurred, or may occur, if the appeal is not heard; any prejudice to the prosecutor; and the effect, if any, on others who may be affected and on the administration of justice.3

Background

[3] The attack in question, on a Mr Wright, occurred on 18 June 2018. Mr Henry was charged with the offence on 30 August 2018.

[4] The case was first called in the District Court on 18 September 2018. Mr Henry did not appear. The Court set the matter down for a formal proof hearing on 16 October 2018. Mr Henry did appear on that date and entered a plea of not guilty. The Court set the matter down for trial on 4 March 2019.

[5] Mr Henry did not appear on 4 March 2019. The prosecution proceeded with its case. After hearing evidence from Mr Wright and two Auckland Council dog control officers, Mr Murray and Ms Chodor, Judge Mill found the charge proved, and convicted Mr Henry. It is this conviction which Mr Henry now seeks to appeal.

1      Criminal Procedure Act 2011, s 231(3).
2      Slater v Police [2015] NZHC 707 at [11].
3      R v Lee [2006] 3 NZLR 42 (CA) at [95]-[99].

[6] Mr Henry’s evidence is that he did not attend on 4 March 2019 as he was appearing on an unrelated matter in the Waitakere District…

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.

Keep reading for free

Create a free CaseChat account to read Henry v Auckland Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 859
Decision Date: 22 April 2021

CaseChat Overview and Summary

Brett Henry applied for an extension of time to appeal against his conviction for being the owner of a dog that attacked a person, an offence under the Dog Control Act 1996. Mr Henry was convicted in the Auckland District Court on 4 March 2019 and sentenced at the end of June 2020. An order for the destruction of the dog, a pit bull terrier named Mitimiti, was made on 5 May 2020. The applicant must satisfy the Court that it is in the interests of justice to grant an extension of time. The Court must undertake a balancing exercise, with relevant considerations including the length of and reason for the delay; the strength of the proposed appeal; whether or not the appeal involves a matter of general or public importance and whether a miscarriage of justice has occurred, or may occur, if the appeal is not heard; any prejudice to the prosecutor; and the effect, if any, on others who may be affected and on the administration of justice. The appeal was seven months out of time, which was significant but not in itself determinative against the application. The strength of the appeal rested entirely on the admission of further evidence from Mr Wright, who had previously identified Mitimiti as the attacking dog. However, Mr Wright had since become hostile to all concerned and refused to swear an affidavit or provide fresh evidence. The Court found that there was no prospect of success on appeal unless Mr Henry had leave to adduce fresh evidence from Mr Wright, and there was no prospect of his being given leave as the evidence sought to be adduced was not fresh, cogent or credible. The Court also considered the delay and prejudice to the Council, and the fact that this matter had already consumed much resource. For these reasons, the Court declined the application to extend time to appeal.

The Court declined the application to extend time to appeal.

Orders