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; made appropriate findings of fact; and justified his findings about the credibility and reliability of witnesses.  I concluded that an appeal on the merits would inevitably fail.

[6]      For that reason, I refused leave to appeal for reasons I said I would explain in writing in due course. Those reasons follow.

[7]      The informant called three witnesses in the District Court:   a senior bylaw inspector, Mr Heinrich, and two neighbours residing in the properties on either side of  Ms Lagocki’s  property.    The  witnesses  produced  relevant  photographs.    The neighbours complained that, over a period of some four years, Ms Lagocki fed birds on her property, including large numbers of pigeons, which caused a substantial volume of pigeon droppings to settle on the complainants’ dwellings.  One neighbour said that she was required to have her property commercially cleaned with chemicals once a year to remove the excrement and that the volume of bird droppings in the guttering was so great as to encourage plant growth, which caused blockages.  She said that the volume of pigeon droppings on her property was such that she was unable to allow her toddler child to go into her garden to play.  The neighbours also complained about the noise made by the pigeons.

[8]      Both neighbours said they were extremely frustrated by the nuisance caused by  the  pigeons  and  by  Ms Lagocki  refusing  to  take  any  steps  to  eradicate  the problem   by   ceasing   the   feeding.      Mr Heinrich   estimated   that   there   were approximately 50 to 60 pigeons on the neighbours’ properties at the time he visited in November 2015.

[9]      Ms Lagocki  gave  evidence,  saying  that  the  pigeons  did  not  cause  her  a nuisance and that it was no problem for her to clean up by sweeping the yard or hosing it if it was wet.  She said that her intention was to feed sparrows and that, incidentally, the pigeons  came and fed on the seeds.   Ms Lagocki said that the neighbours lied when they said they had made attempts to discuss matters with her, and that the noise from the birds did not inconvenience her.

[10]     Judge Singh did not find Ms Lagocki’s evidence credible or reliable.   He accepted that the neighbours had endeavoured to resolve matters with her and that her actions in feeding the birds caused a nuisance to the two complainants.   The Judge  found  that,  although  Ms Lagocki  might  have  initially  intended  to  feed sparrows only, she had known all along that the pigeons would come and feed on the seeds.  The Judge accepted the evidence of Mr Heinrich as to the extent of pigeon excrement over the properties which the Judge said was in such volume that it was causing a nuisance.  The Judge also accepted that the noise from the pigeons added to the nuisance caused.

[11]     Mr Meyrick had argued for Ms Lagocki that:

(a)       pigeons were not covered by the description “wild or feral animal” in

the bylaw; and

(b)that the complainants were particularly sensitive and that no nuisance was created by the pigeons.

[12]     The Judge rejected those submissions, relying on the definition in the bylaw of  “animal”  as  including  any  member  of  the  animal  kingdom  including  “any mammal, bird etcetera.”   He found that the pigeons were wild, non-domesticated birds and he relied on High Court authority in satisfying himself that a nuisance had been created.6  The Judge found the charge proved beyond reasonable doubt.

[13]     As I have said, he was right to do so.  There being no merit in the intended appeal, I refused leave to bring it out of time.

........................................

Toogood J

6      Adams v Napier City Council AP55/86, 29 September 1987 (HC); Murray v Laus [1960] NZLR

126 (SC).