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 Court that same day. However, there is no record of Mr Henry communicating this conflict to the Court or the prosecutor in advance of 4 March 2019.

[7]    The conviction brought the Court to the matter of sentencing and s 57(3) of the Act, which requires the Court to order the dog’s destruction in the absence of exceptional circumstances relating to the offence.

[8]    Mr Henry was summonsed to appear for sentence on 29 April 2019. The notes of the Judge are to the effect that sentencing was adjourned so that Mr Henry could make a submission that the prevailing circumstances were exceptional, and to have Mitimiti trained. This request and proposal seems to me to constitute an acknowledgement that Mitimiti was the dog responsible. As it turned out, Mr Henry did not have the dog trained, the cost being prohibitive.

[9]On 28 June 2019, Judge Sharp fined Mr Henry $500 and ordered him to pay

$400 reparation. However, the Judge adjourned the issue of destruction, pending delivery of the Court of Appeal’s reserved decision in Auckland Council v Hill.4 Hill concerns the matters to which the Court might have regard when considering whether “exceptional circumstances” exist.

[10]   Hill was released on 12 March 2020. Mr Henry was summonsed to appear in the District Court on 5 May 2020. He did not appear, thinking that the Courts were or would be closed due to the level four lockdown. Again, however, Mr Henry appears to have made no enquiry of the Court or the prosecution on that point. Judge Sharp ordered Mitimiti’s destruction.

[11]   On 25 May 2020, Mr Henry lodged a notice of general appeal to this Court, identifying that latter decision of 5 May 2020 as the decision appealed against. Thus the appeal was treated as one against sentence.

4      Auckland Council v Hill [2020] NZCA 52.

[12]   The appeal was called three times in the High Court callover, with Mr Henry appearing only once.5

[13]   Moore J  heard  the  appeal  on  12  October  2020.  Mr  Henry  contended  Mr Wright’s injuries were fabricated and that Mitimiti had never attacked Mr Wright.

In his judgment of 19 October 2020, Moore J dismissed Mr Henry’s appeal.6

[14]   Mr Henry then sought to appeal Moore J’s decision to the Court of Appeal. The Court of Appeal advised it did not have jurisdiction to hear the appeal. By this time, Mr Henry was in receipt of legal aid, and Mr Brickell had been assigned. On  18 December 2020 Mr Brickell lodged a notice of appeal, this time against conviction. The current notice of appeal is supported by affidavits from a private investigator, Mr Brent Bills, and Mr Henry sworn on 2 December 2020 and 31 March 2021 respectively.

Criteria

[15]I turn now to the criteria listed in [2] above.

Length of delay

[16]   Taking 5 May 2020 as the day on which time started to run, this appeal is seven months out of time. That length of time is significant but not in itself determinative against the application.

Strength of proposed appeal

[17]   The strength of the appeal rests entirely on the admission of further evidence from Mr Wright. At present, that “evidence” is in the form of what appears to be a signed statement from Mr Wright dated 24 November 2020 exhibited to Mr Bills’ affidavit. Mr Wright himself has refused to swear an affidavit and, on the information before me, is now hostile to all concerned. If that were to remain the position

5      The matter was called on 12 June 2020, 14 July 2020 and 28 August 2020. Mr Henry appeared on 14 July 2020.

6      Henry v Auckland Council [2020] NZHC 2745.

Mr Wright would need to be summonsed. Regardless, evidence from Mr Wright in the same vein as is in his statement would be neither fresh, credible nor cogent.

[18]   In his evidence at trial, Mr Wright was clear that Mitimiti was the dog that attacked him. Mr Wright’s evidence was that the attack took place in a public park in the early evening when he and a friend were walking their own dogs. They encountered Mr Henry and Mitimiti, as they had previously. Mitimiti, categorised as a menacing dog, was not on a lead nor muzzled as required. Moore J appears to have accepted that Mr Henry did not tend to muzzle Mitimiti, despite these requirements and that the park included a playground for children.

[19]    Mr Wright complained to Mr Henry about this — as he had in the past — and the fact that Mr Henry was drinking an RTD at the time. This led to a physical scuffle. Mr Wright’s evidence to the Judge was that “with that [i.e. the scuffle] the dog was on my arm”, “just hanging off my arm”, “for two or three seconds”. Mr Wright’s evidence was that he then said to Mr Henry “your dog has bitten me”, and Mr Henry replied “oh good one” or “Good you old  cunt”,  and  gave Mr Wright  “the fingers as  he [Mr Henry] walked off, laughing”.

[20]   On returning home, Mr Wright went to Waitakere Hospital and then spent four hours or so awaiting stitching of what, on the photographs, appears to be a significant wound. Apparently the surgeon  told  Mr  Wright  that,  but  for  the  heavy  jacket Mr Wright was wearing, there would have been a “big gaping lump [of his arm] gone”.

[21]   This evidence from Mr Wright was consistent with the statement he gave   Mr Murray, the dog control officer, only three days after the attack.

[22]   I should add Mr Henry gave Mr Murray a statement at about the same time, denying any attack.

[23]   The case Mr Henry now seeks to advance on appeal is that Mr Wright’s identification of Mitimiti as the dog who attacked him was unreliable.

[24]   In his statement, Mr Wright says that, having “re-lived” the event — some two and a half years after it — he recalls that there were six other dogs in close proximity to him at the time of the attack; that all of these dogs were running free and snapping at each other; that he had only assumed that it was Mitimiti who bit him but he could not be sure; that he had not been coerced to change his account of what occurred; and that he had no wish to be the cause of Mitimiti’s destruction when he could not positively identify the dog as responsible.

[25]   Mr Wright’s previous accounts of the statement(s) and gesture Mr Henry is said to have made immediately after the attack has been replaced by a statement that Mr Henry appeared “unconcerned” at the suggestion Mitimiti had bitten Mr Wright. I also note that there is no mention, or even a hint, of these six freely roaming, snapping dogs in Mr Wright’s earlier accounts.

[26]   Mr Brickell submitted that, given Mr Henry’s absence at trial, Mr Wright’s identification evidence was never challenged in that the prosecutor did not put questions to test the reliability of the identification. These would have been whether other dogs were in the vicinity, whether it was dark when the attack occurred (about 6 pm on an evening in June), and whether Mr Wright had actually seen the dog at the very time it was biting him.

[27]This is correct but that omission is due solely to Mr Henry’s failure to appear.

[28]   The significant differences between Mr Wright’s prior accounts and what he now says he recalls are sufficient in themselves to establish that the statement is unreliable. But, in any event, the Council has filed an affidavit from Ms Schaaf sworn on 27 January 2021. Ms Schaaf has prosecuted this matter for the Council until recently. Her evidence is that Mr Wright telephoned her on 10 November 2020, so two weeks before the date of his statement. Ms Schaaf’s account is that Mr Henry had obtained Mr Wright’s residential address and Mr Wright wished to know how that could possibly have occurred; that Mr Henry had been approaching Mr Wright’s neighbours, complaining that Mitimiti was to be destroyed as a result of Mr Wright’s actions and telling them that Mr Wright needed to retract his evidence; that the

neighbours had approached Mr Wright to this end; and that he, Mr Wright, had observed Mr Henry “hanging out” on Mr Wright’s street, close to his address.

[29]   Mr Henry acknowledges in a recent affidavit that he did speak to Mr Wright, and to his neighbours.  He says he observed Mr Wright on his driveway when he,  Mr Henry, was passing the address as he often does and they had a very agreeable conversation, shaking hands at the end of it. This evidence cannot be reconciled with the gist of Mr Wright’s earlier evidence to the effect that he considered Mr Henry to be the irresponsible owner of a pit bull terrier.

[30]   Mr Henry has no prospect of success on appeal unless he has leave to adduce fresh evidence from Mr Wright, and there is no prospect of his being given leave as the evidence sought to be adduced is not fresh, cogent or credible.

Other matters

[31]   Even if there was a prospect of further evidence from Mr Wright being allowed, I would have refused the extension.

[32]   First, any hearing of the appeal and any possible re-hearing in the District Court would occur at least three years from the date of the attack. Memories will have faded considerably. That some 12 or so months of the delay might be attributed to the District Court awaiting the Hill decision, and then to Mr Henry encountering difficulties procedurally, is beside the point. It is the consequence of delay that matters in this case, not the reasons for it.

[33]   Secondly, as I have said, Mr Wright is now antagonistic. Affidavit evidence of 2 March 2021 from Mr Cameron Bower, a licensed private investigator engaged by the Council, is that Mr Wright has point blank refused to discuss the matter with him and is hostile to all concerned. This hostility would prejudice the Council.

[34]   Thirdly, and although this is not determinative, this matter has already consumed much resource. There have been numerous appearances before Judges of the District and High Courts. The Council has appeared on every occasion and

Mitimiti has been in the Council’s pound for a considerable period, all of which causes expense to the Council and its ratepayers. It is time that ceased.

Result

[35]   For the reasons given, and notwithstanding the best efforts of Mr Brickell who made every point he could, I decline this application to extend time to appeal.

Peters J