Pukepuke v Auckland Council - [2019] NZHC 513

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.

.....................................................
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…

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.

Continue reading Pukepuke v Auckland Council

Details

AGLC: Pukepuke v Auckland Council [2019] NZHC 513
Case: [2019] NZHC 513
Decision Date: 21 March 2019

CaseChat Overview and Summary

Allen Pukepuke, the owner of a dog named Biggie, appealed against a decision of the District Court to refuse him a discharge without conviction, and he applied for leave to file additional evidence. Pukepuke had previously been convicted for being the owner of a dog that attacked stock under the Dog Control Act 1996. He was fined and his dog was ordered to be destroyed. Pukepuke argued that the consequences of the conviction would be out of all proportion to the gravity of the offence, justifying a discharge without conviction. The Auckland Council opposed the appeal but did not object to the extension of time or the admission of new evidence.

The primary legal issue was whether there was a miscarriage of justice in the refusal to grant Pukepuke a discharge without conviction. A discharge without conviction is possible under s 107 of the Act if the court is satisfied that the consequences of a conviction are out of all proportion to the gravity of the offence and it exercises its discretion to discharge without conviction under s 106. Pukepuke argued that travel restrictions due to the conviction would damage his business as a funeral home director and harm his reputation. The Council submitted that there was no evidence of any travel restrictions or adverse effects on his business or reputation.

The court found that there was no evidence that the consequences of the conviction advanced by Pukepuke were real and appreciable risks. Pukepuke had testified that he had travelled overseas after the conviction was entered, and there was no evidence a conviction under the Dog Control Act would affect his insurance. The court did not consider there was a material error or a miscarriage of justice. The court dismissed the appeal of the refusal to discharge without conviction. The court noted that the High Court had already declined an appeal of the destruction order, and with the refusal to discharge the conviction confirmed, that decision must stand. The Court of Appeal had also assessed that there is no prospect of success in appealing the destruction order without the discharge.

The court granted the extension of time and admitted the additional evidence in order to deal with the appeal on its merits. However, the court dismissed the appeal of the refusal to discharge without conviction.

Orders