Price v Auckland Council - [2023] NZHC 1733

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-317

[2023] NZHC 1733

UNDER Section 244 of the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against sentence

BETWEEN

DARREN CHRISTOPHER PRICE

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 3 July 2023

Appearances:

M Taylor-Cyphers for Appellant

D Collins and B Magill for Respondent

Judgment:

5 July 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 5 July 2023 at 2:30 pm.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: M J Taylor-Cyphers, Auckland

PRICE v AUCKLAND COUNCIL [2023] NZHC 1733 [5 July 2023]

[1] On 17 June 2021, Darren Christopher Price entered a guilty plea to a charge under s 57(2) of the Dog Control Act 1996 (the Act) for being the owner of a dog, a Labrador Retriever cross named Johnny Cash (Cash), that attacked a domestic animal, a Jack Russell Terrier named Zac.

[2] On 27 July 2022, Judge Fitzgibbon refused an application for a discharge without conviction.1 Mr Price was convicted, fined $750 (50 per cent payable to Council) and ordered to pay $715.50 in veterinary costs together with $500 in emotional harm reparation.2 The Judge also made an order under s 57(3) of the Act for the destruction of Cash.3

[3] On 6 September 2022, Mr Price filed an appeal in the High Court against the order for destruction of Cash. The appeal was called in the High Court on 23 September 2022, 17 February 2023 and 17 March 2023. On 5 May 2023, a substantive hearing was allocated for 3 July 2023.

[4] On 12 June 2023, new counsel for Mr Price advised the Court that Mr Price now wished to file an appeal against the refusal to grant him a discharge without conviction in addition to the appeal against the order for destruction of Cash filed nine months earlier. On 13 June 2023, Downs J directed Mr Price to file an amended notice of appeal and an affidavit explaining the delay in relation to the conviction appeal. Those documents were subsequently filed.

[5]I heard from the parties at a substantive hearing on 3 July 2023.

Leave to file out of time

[6] A notice of appeal against conviction must be filed within 20 working days after the date of sentence for the conviction appealed against,4 although the appeal court may extend the time allowed for filing.5

1      Auckland Council v Price [2022] NZDC 14412.
2      Auckland Council v Price [2022] NZDC 23585 at [33].
3 At [33].
4      Criminal Procedure Act 2011, s 231(2).
5      Section 231(3).

[7] Mr Price asks the Court to extend time because he says he did not receive complete legal advice. Mr Price says that his primary focus was on his dog, and he did not speak to his lawyer at the relevant time about any appeal against conviction.

[8] Mr Price says that he now understands, as he…

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: [2023] NZHC 1733
Decision Date: 5 July 2023

CaseChat Overview and Summary

The case of Price v Auckland Council was heard by Woolford J in the High Court of New Zealand. Darren Christopher Price, the appellant, appealed against the sentence imposed by Judge Fitzgibbon in the District Court. Price was convicted under the Dog Control Act 1996 for being the owner of a dog that attacked another domestic animal. Following the conviction, Price was fined and ordered to pay veterinary costs and emotional harm reparation. Additionally, an order was made for the destruction of the dog, Cash. Price appealed against both the refusal for a discharge without conviction and the order for the destruction of Cash.

The primary legal issues in this case were whether the appellant was entitled to leave to file an out-of-time appeal against his conviction, and whether the order for the destruction of Cash was appropriate. The Court had to consider the statutory time limits for filing an appeal against conviction and whether exceptional circumstances justified an extension of that time. Furthermore, the Court needed to determine if the circumstances of the offence were exceptional enough to warrant not destroying the dog, as per the Dog Control Act.

Woolford J found that the appellant was not entitled to an extension of time to appeal against his conviction. The Court held that the grounds presented by Price, specifically that he now understood his conviction might prevent him from working as a security guard, were not sufficient to warrant an extension. The Court clarified that a conviction under the Dog Control Act does not disqualify someone from being a security guard. Regarding the destruction order, the Court applied the two-step approach outlined in Auckland Council v Hill, confirming that the circumstances of the offence did not meet the threshold of being exceptional. The Court held that the attack was due to a failure in control by the appellant and did not warrant an exception to the usual requirement for the destruction of the dog.

In conclusion, the Court dismissed both appeals. The appeal against the refusal for a discharge without conviction was denied due to the insufficiency of the grounds presented. The appeal against the dog destruction order was also dismissed, as the circumstances of the offence did not meet the statutory criteria for exceptional circumstances.

Orders