Lagocki v Auckland Council - [2017] NZHC 2129

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-276 [2017] NZHC 2129

BETWEEN
IRENE LAGOCKI

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 1 September 2017

Appearances:

Appellant in person
V Tamatea for Respondent

Judgment:

1 September 2017

Reasons:

4 September 2017

REASONS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 4 September 2017 at 3.00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Lagocki v Auckland Council[2017] NZHC 2129 [4 September 2017]

[1] On 6 June 2017, after a defended hearing, Irene Lagocki was found guilty by Judge A-S Singh in the District Court at Auckland of a charge under s 239(1) of the Local Government Act 2002 that she breached Part 2, clause 6(1)(c) of the Property Maintenance and Nuisance Bylaw 2015, by allowing wild pigeons to be fed on her property in a manner that caused a nuisance.1 Against a maximum available fine of
$20,000 but having regard to Ms Lagocki’s means, the Judge convicted Ms Lagocki

and ordered her to pay reparation of $350 to each victim, to be paid off at a total rate of $50 per fortnight.

[2] Ms Lagocki wants to appeal her conviction and the matter came before me in the criminal appeals callover list. I reminded Ms Lagocki that her notice of appeal is dated 11 August 2017 and is well out of time for appealing a decision dated
6 June 2017.2 I explained that she requires the leave of the Court to pursue the

appeal.3

[3] Ms Lagocki says she did not know about the time limit for appealing and that she did not receive a copy of the District Court’s decision until 4 August 2017 when she went to see counsel who had represented her, Mr Meyrick, to discuss an appeal.

[4] Counsel error in not filing an appeal in time may sometimes result in leave being granted,4 but in this case Ms Lagocki has not relied on any confirmation from Mr Meyrick of facts that might lead the Court to conclude that he had erred in that respect. More importantly, I am required to take into account the merits of the intended appeal in determining where the interests of justice lie.5

[5] After exploring Ms Lagoki’s grounds of appeal with her, I was wholly satisfied that it was not in the interests of justice to grant leave to appeal. I concluded not only that the decision of the District Court Judge that the case against Ms Lagocki had been proved beyond reasonable doubt was open to him on
the available evidence, but also that it was right. Judge Singh identified the elements

1      Auckland City Council v Lagocki [2017] NZDC 12019.
2      Criminal Procedure Act 2011, s 231(2).
3      Criminal Procedure Act, s 231(3).
4      W v X [2017] NZCA 244 at [5].
5      R v Knight [1998] 1 NZLR 583 (CA); R v Lee [2006] 3 NZLR 42 (CA) at [95]–[107]; R v
Dolman [2009] NZCA 302 at [8].

of the offence correctly;…

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: [2017] NZHC 2129
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the case of Lagocki v Auckland Council, the appellant, Irene Lagocki, sought to appeal a conviction by the District Court for a breach of the Property Maintenance and Nuisance Bylaw 2015. The District Court had found Ms Lagocki guilty of allowing wild pigeons to be fed on her property, which caused a nuisance to her neighbours. The court ordered her to pay reparation to the affected parties. Ms Lagocki’s appeal hinged on the timeliness of her notice of appeal and the merits of her case. The primary legal issue before the High Court was whether Ms Lagocki's late notice of appeal could be excused due to her alleged unawareness of the time limit or if the court should consider the merits of her appeal to determine whether it was in the interests of justice to grant leave.

The High Court assessed the grounds of Ms Lagocki's appeal, focusing on whether the District Court's decision was correct and if an appeal on the merits would inevitably fail. The court noted that Ms Lagocki had not provided any evidence to suggest that her legal representative had erred in not filing an appeal in time. Furthermore, the High Court emphasised that the merits of the intended appeal had to be considered in determining whether it was in the interests of justice to grant leave. After exploring the grounds of appeal with Ms Lagocki, the court concluded that not only was the District Court’s decision supported by the available evidence, but also that it was correct. The High Court found that the District Court Judge had correctly identified the elements of the offence, made appropriate findings of fact, and justified his findings about the credibility and reliability of the witnesses. Consequently, the High Court ruled that an appeal on the merits would inevitably fail and, therefore, refused leave to appeal.

Orders