Pukepuke v Auckland Council
[2019] NZHC 513
•21 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-414
[2019] NZHC 513
BETWEEN ALLEN PUKEPUKE
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 18 March 2019 Appearances:
R A B Samuel for the Appellant A R Govind for the Respondent
Judgment:
21 March 2019
JUDGMENT OF PALMER J
This judgment is delivered by me on 21 March 2019 at 11.00 am pursuant to r 11.5 of the High Court Rules.
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Registrar / Deputy Registrar
Counsel/Solicitors:
R Samuel, Barrister, Auckland Auckland Council, Auckland
PUKEPUKE v AUCKLAND COUNCIL [2019] NZHC 513 [21 March 2019]
What happened?
[1] Mr Allen Pukepuke owns a brown Shar Pei dog named Biggie. On 2 June 2017, Biggie escaped from Mr Pukepuke’s property when cleaners left the front door of the house and front gate open. Biggie attacked a flock of sheep, seriously injuring two which had to be put down. He had escaped twice before and Mr Pukepuke had three prior infringement notices, two for failing to keep a dog under control and one for failing to register a dog.
[2] Mr Pukepuke apologised and paid reparation. He pleaded guilty to a charge of being the owner of a dog that attacked stock under s 57(2) of the Dog Control Act 1996. He applied for a discharge without conviction. Judge Pidwell declined the application, convicted him, sentenced him to pay a fine of $750 and, following the mandatory requirement in s 57(3), ordered that Biggie be destroyed.1
[3] Mr Pukepuke appealed the destruction order but not the refusal to discharge without conviction. Jagose J declined Mr Pukepuke’s appeal of the destruction order.2 While he accepted Mr Pukepuke acted reasonably and responsibly in attempting to prevent escape, responding to the attack and rehoming Biggie, he considered Judge Pidwell properly weighed the relevant factors and did not err.3
[4] The Court of Appeal declined Mr Pukepuke’s application for leave to appeal, stating “[t]here being no jurisdiction in this Court to hear the appeal on the discharge application directly from the District Court, and there being no prospect of success on a second appeal against the destruction order without the discharge”.4
[5] Now, Mr Pukepuke applies for an extension of time to appeal the discharge and for leave to file additional evidence. If the discharge is granted, he submits the destruction order could be considered afresh. The Council does not oppose the extension of time or the new evidence being admitted. It does oppose the appeal.
1 Auckland Council v Pukepuke [2018] NZDC 6900.
2 Pukepuke v Auckland Council [2018] NZHC 1361.
3 At [26]–[27].
4 Pukepuke v Auckland Council [2018] NZCA 552 at [2].
Given the history of the proceeding, and the lack of opposition, I grant the extension of time and admit the additional evidence in order to deal with the appeal on its merits.
Should there be a discharge without conviction?
Law of discharge without conviction
[6] A discharge without conviction is only possible, under s 107 of the Act, if “the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence” and it exercises its discretion to discharge without conviction under s 106.
[7] Mr Pukepuke appeals the refusal to grant him a discharge without conviction, which is an appeal, by way of rehearing, against conviction and sentence. I must allow the appeal if satisfied a miscarriage of justice has occurred by virtue of a material error in entering the conviction or in applying s 107.5 Otherwise I must dismiss the appeal. A miscarriage of justice is defined to mean “any error, irregularity, or occurrence in or in relation to or affecting the trial” (including a proceeding in which the appellant has pleaded guilty) that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.
Submissions
[8] Mr Samuel, for Mr Pukepuke, submits travel restrictions due to a conviction have the potential to damage Mr Pukepuke’s business as a funeral home director, including through insurance, and that harm to his reputation may have significant indirect consequences for his employees. He submits that, although Mr Pukepuke pleaded guilty, he would have had a total absence of fault defence due to the measures he took to keep Biggie in the property. From the bar, he says the cleaning contractor was aware of the dog but the subcontractor was not.
[9] Mr Govind, for Auckland Council, agrees this was low-level offending. But he submits there is no evidence of any travel restrictions or effects on insurance or
5 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
other adverse effects on his business so there is nothing to suggest the effects of conviction are out of all proportion to the offending.
Should there be a discharge without conviction?
[10] There is no evidence that the consequences of the conviction advanced by Mr Samuel are real and appreciable risks. Mr Pukepuke’s own evidence is that he did travel overseas after a conviction was entered. There is no evidence a conviction under the Dog Control Act would affect his insurance. The evidence about overseas companies competing in the New Zealand funeral home industry does not bear on the consequences of this conviction. I consider there is no evidence that the effects of Mr Pukepuke’s conviction are out of all proportion to the offending. I do not consider Judge Pidwell made a material error or there was a miscarriage of justice. I dismiss the appeal of the refusal to discharge without conviction.
Destruction order
[11] The High Court has already declined an appeal of the destruction order. With the refusal to discharge the conviction confirmed, as Mr Samuel acknowledged, that decision must stand. That was confirmed by the Court of Appeal’s assessment that there is no prospect of success in appealing the destruction order without the discharge.
Palmer J
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