Leatinutu v Auckland Council - [2013] NZHC 3489

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000224 [2013] NZHC 3489

BETWEEN SINA LEATINU'U Appellant

ANDAUCKLAND COUNCIL Respondent

Hearing: 17 December 2013

Appearances: V Letele for Appellant
V J Tamatea for Respondent

Judgment: 19 December 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 19 December 2013 at 3.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

LEATINU'U v AUCKLAND COUNCIL [2013] NZHC 3489 [19 December 2013]

Introduction

[1] Following a trial before Judge Andree Wiltens in the District Court at

Manukau, Sina Leatinu’u was convicted of owning a dog that attacked a person.1

The charge arose from an incident in which a dog that Mrs Leatinu’u’s husband had taken in as a stray a few months before bit a12 year old boy. The offence carries a maximum sentence of a fine not exceeding $3,000. The Judge determined that convicting Mrs Leatinu’u was a sufficient sentence, and she was discharged without further penalty.2

[2] Mrs Leatinu’u appeals against her conviction. In her notice of appeal, Mrs Leatinu’u asserted that the Judge made the following errors:

(a) Refused her an adjournment on the day of the trial following the withdrawal of her counsel;

(b) Finding that she was an “owner” for the purposes of the Act; and

(c) Not considering a discharge without conviction under s 106

Sentencing Act 2002 (“Sentencing Act”).

[3] At the appeal Ms Letele, for Mrs Leatinu’u limited her grounds to the Judge’s failure to consider a s 106 discharge. That ground overlaps with the Judge’s refusal to grant an adjournment. The Crown does not oppose the appeal brought on this ground.

[4] Ms Letele sought leave to adduce further evidence. She did not have an affidavit but did seek to produce a signed statement by Ms Leatinu’u and an email from the Manukau Institute of Technology. There was no opposition to the evidence being tendered in that form and, having considered Mrs Leatinu’u’s circumstances explained by Ms Letele, I accepted the evidence in that form.

[5] On an appeal against conviction in a Judge-alone trial, this Court is required to consider whether the trial Judge erred in his or her assessment of the evidence to
such an extent that a miscarriage of justice has occurred.3 An appeal against

1      Sections 57(1)(a) and 57(2) Dog Control Act 1996.
2      Auckland City Council v Leatinu’u DC Manukau CRI-2012-092-013378, 5 August 2013.
3      Criminal Procedure Act 2011, s 232(2)(b) and (4).

conviction is a general appeal. The appellate Court is to make its own assessment of and form its own opinion on the facts.4 In coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for factual findings carefully.5

What happened in the District Court

[6] Mrs Leatinu’u had been expecting a lawyer from Otara Community Law Centre…

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: [2013] NZHC 3489
Decision Date: 19 December 2013

CaseChat Overview and Summary

In the case of Leatinutu v Auckland Council, the High Court of New Zealand heard an appeal against a conviction for owning a dog that had attacked a person. The appellant, Sina Leatinutu, had been convicted in the District Court of Manukau following an incident where a dog, which her husband had taken in as a stray, bit a twelve-year-old boy. The primary legal issue before the court was whether the trial judge erred in not considering a discharge without conviction under section 106 of the Sentencing Act 2002, particularly in light of the appellant's lack of legal representation during the trial. The appellant argued that the judge's refusal to grant an adjournment to seek representation and the failure to consider a discharge without conviction constituted errors that led to a miscarriage of justice.

The High Court found that the trial judge's decision to proceed with the trial without allowing the appellant to obtain replacement counsel was indeed an error. The court held that in circumstances where counsel withdraws at a late stage, the right to a fair trial generally requires the judge to allow an adjournment to seek further advice. The court concluded that a discharge without conviction would properly have been granted in this case, as the gravity of the offence was low to moderate, and the consequences of conviction, particularly in terms of the appellant's employment and education prospects, were out of proportion to the seriousness of the offence.

The appeal was allowed, and the conviction was quashed. The court ordered that Mrs Leatinutu be discharged without conviction under section 106 of the Sentencing Act 2002.

Orders