Risdom v Auckland Council
[2020] NZHC 905
•5 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-34
[2020] NZHC 905
BETWEEN DARRYL WAYNE RISDOM
Appellant
AND
AUCKLAND COUNCIL
Respondent
Virtual hearing: 5 May 2020 Appearances:
A M Gold for the appellant
F Mohammed for the respondent
Date of judgment:
5 May 2020
REASONS FOR JUDGMENT OF JAGOSE J
This judgment was delivered by me on 5 May 2020 at 12.30pm.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
Gold Legal Limited, Waiuku, Auckland Auckland Council, Auckland
RISDOM v AUCKLAND COUNCIL [2020] NZHC 905 [5 May 2020]
[1] Darryl Wayne Risdom seeks leave to appeal out of time Judge S Moala’s 27 November 2019 order in the District Court at Pukekohe for destruction of his dog, Jock, in wake of Mr Risdom’s conviction for owning a dog that attacked a domestic animal.1 The Judge fined him $750, and ordered reparation payments of some $332 in veterinary expenses and for emotional harm.2 Judge Moala’s decision was made in Mr Risdom’s absence, he earlier having failed to appear on summons and subsequently having been remanded at large to appear at the hearing.3
[2] At the virtual hearing of this appeal today, counsel for Auckland Council, Farah Mohammed, could not be seen on the court’s monitor (although she could see me and counsel for Mr Risdom, Asta Gold) and the quality of her audio connection was so poor I could not understand what she was saying. I invited her either to seek an adjournment or to invite me to rely on her written submissions. She chose the latter.
[3] Particularly given those circumstances – as alternative to my oral decision, while acknowledging media attendance also at the hearing – I invited counsel to advise if they preferred I gave my decision with reasons to follow in writing. They were content with the latter course. I dismissed the appeal with reasons to follow. These are those reasons.
Background
[4] On 26 April 2019, the complainant was walking her two dogs, Vinnie and Teddie. As they passed Mr Risdom’s address, she noticed Jock behaving aggressively behind its fence. Jock forced his way through the gate and fence and ran across the road to attack the three-legged Vinnie, initially biting him sufficiently to puncture his chest as Vinnie rose up on his back legs in defence. Jock sought to re-engage three times before another occupant at the address intervened to restrain him. Vinnie required veterinary treatment.
1 Dog Control Act 1996, s 57(2): maximum penalty $3,000 fine, a category 1 offence.
2 Auckland Council v Risdom [2019] NZDC 26442 (results judgment); [2020] NZDC 2897 (reasons judgment).
3 Criminal Procedure Act 2011, ss 6(1), 118 and 119.
[5] Mrs Gold seeks to admit evidence from Mr Risdom in support of his contention on appeal the trial was affected by miscarriages of justice such as rendered the destruction order unsafe. The key issue for appeal is if “the circumstances of the offence were exceptional and do not warrant destruction of the dog”.4 Otherwise the destruction order is mandatory on the Judge’s satisfaction Jock ‘committed’ a qualifying attack.
Extension of time to appeal
[6] Mr Risdom’s appeal was filed on 30 January 2020, some two weeks out of time and two days after Mr Risdom sought legal advice on the Judge’s two-paragraph results judgment of 27 November 2019, indicating reasons would be given if Mr Risdom sought them. Her Honour’s reasons judgment was given on 24 February 2020.
[7] Mrs Gold advises she is instructed Mr Risdom was unaware of the appeal’s deadline. Counsel for Auckland Council, Farah Mohammed, indicates Mr Risdom’s proposed evidence includes a claim to medical grounds for the delay, the inter- relationship of which she doubts. That is not pressed by Mrs Gold, and I disregard it. Ms Mohammed also disputes Mr Risdom’s contended lack of knowledge justifies disregard of legislative timetables made in the public interest for litigation’s due dispatch. But she acknowledges the delay is short and points to no prejudice.
[8] On balance, taking into account the merits of the proposed appeal as bearing on the life of a sentient being, the reason for the delay by a then-unrepresented defendant, the short delay’s lack of impact on third parties (including in administration of justice), and the absence of any prejudice claimed by the Council, extending time is in the interests of justice.5 I therefore extend the time allowed for filing the appeal to 30 January 2020.
4 Dog Control Act 1996, s 57(3).
5 Criminal Procedure Act 2011, s 231(3); R v Lee [2006] 3 NZLR 42 at [99] and [106] (CA).
Approach on appeal
[9] Mr Risdom has a first appeal right against his conviction to this Court.6 Given the destruction order follows on the Judge’s satisfaction the offence is made out, and is not to punish Mr Risdom or Jock,7 I must allow the appeal if a “miscarriage of justice” has occurred. By ‘miscarriage of justice’ I mean something has occurred in relation to the trial to create a real risk against a more favourable outcome for Mr Risdom, or has resulted in an unfair trial or a nullity.8 Otherwise the appeal is to be dismissed.
Discussion
[10] It is common ground determination of the appeal is to be made with reference to the Court of Appeal’s recent decision in Auckland Council v Hill.9 While essaying an extensive consideration of s 57(3)’s place in the legislation, it predominantly is significant for its confinement of ‘exceptionality’ to the “circumstances of the offence”, such being equivalent to “circumstances of the attack”.10 The judgment settled a divergence apparent in competing decisions of this Court.11 The Court of Appeal articulated a two-step test: what are the relevant circumstances; and are they exceptional, such that they do not warrant the dog’s destruction?12
[11] Mrs Gold raises as miscarriages of justice, first, by analogy with ss 125 and 126 of the Criminal Procedure Act 2011, the “procedural unfairness” the destruction order is not susceptible to retrial or rehearing. Rather, she argues by analogy with s 119, “sentencing” should have been adjourned, to give Mr Risdom opportunity to be heard on the destruction order.
[12] But that is to misapprehend the nature of the order. As I have said,13 it is not to punish Mr Risdom or Jock. Rather, it is to provide for public safety, by ensuring Jock
6 Sections 229(1) and 230(b).
7 Auckland Council v Hill [2020] NZCA 52 at [66]; see also Pukepuke v Auckland Council [2018] NZHC 1361 at n 22.
8 Criminal Procedure Act 2011, ss Section 232(4) and (5).
9 Auckland Council v Hill, above n 7.
10 At [5], [23], [33] and [67]–[73].
11 At [54]–[60].
12 At [5]–[6] and [62]–[84].
13 At [9] above.
does not ‘commit’ further attacks. It is only where that risk is immaterial, “because the circumstances of the attack were exceptional and a repeat of those circumstances is most unlikely”,14 the destruction order may not be made. Thus this is an appeal against conviction (although no defence is claimed), on which destruction otherwise is mandatory, and not an appeal against sentence or order imposed on Mr Risdom, in which his reasonable excuse for non-attendance at the hearing may warrant its rehearing if in the interests of justice.15
[13] Second, Mrs Gold argues the Judge’s lack of awareness of Mr Risdom’s medical issues – said to be cognitive impairment such that “he has difficulty remembering Court dates and a reduced ability to be able to adequately represent himself at Court”, aggravated by a then-recent car accident – also resulted in procedural unfairness as the Judge would likely have adjourned for his participation. If my decision turns on that, she would seek adjournment to be able to obtain better evidence than has been possible in present circumstances of COVID-19 ‘lockdown’.
[14] Such only qualifies as a miscarriage of justice if offering the prospect of a more favourable outcome for Mr Risdom, or making trial unfair or a nullity.16 That depends on what explanation his participation may have afforded. The substance of this appeal, to which I now turn, will provide the answer.
[15] Mrs Gold says the circumstances of the offence are exceptional. She seeks to rely on Mr Risdom’s affidavit evidence Jock is blind in one eye and possibly scared by approaches on that side, was affected by the after-effects of anaesthetic on being neutered earlier that day at Auckland Council’s recommendation after an earlier allegation he had bitten another dog, and thought deliberately let out of his fenced and gated address by Mr Risdom’s neighbour with whom he is in on-going dispute. She argues such combination was unusual, and therefore meets the second part of the Court of Appeal’s test.
14 Auckland Council v Hill, above n 7, at [65].
15 Criminal Procedure Act 2011, ss 125 and 126.
16 At [9] above.
[16] Certainly the coincidence of Jock’s surgery under anaesthetic on the day of the attack qualifies as unusual. But it is only to the extent its after-effects’ contribution to the attack is “exceptional in a way that means the destruction of the dog is not warranted” that it justifies being taken into account.17 I require to be convinced how Jock reportedly being “out of sorts from the anaesthetic” is a contributing factor to the attack. Experience suggests recovering animals are drowsy and reticent, rather than actively aggressive. But no further explanation is forthcoming. Mrs Gold conceded she could have adduced such expert evidence, notwithstanding the ‘lockdown’.
[17] Neither can Jock’s partial blindness, if contributing to his aggression, be considered exceptional in the circumstances of the attack. Instead, it would be his pre- existing and continuing condition, maintaining past risk of future attack. I also doubt its contribution here: the Judge described the complainant and her dogs being “across the road”, which suggests Jock is unlikely to have been “scared” by their distanced passage, if by ‘scared’ Mr Risdom is to be taken to mean ‘startled’ or ‘surprised’.
[18] And, last, the neighbour’s alleged intercession in the course of an “on-going dispute” is precisely rendered not exceptional in the circumstances of the attack by that also pre-existing and continuing state of affairs. Mr Risdom’s subsequent steps better to secure his property against Jock’s escape illustrates such could have occurred earlier. That especially is the case if, as Mr Risdom’s affidavit implies, Jock’s earlier alleged incident also involved the neighbour.
[19] The combination of those circumstances does not advance matters. The latter precisely are the sort of continuing factors as “… tends to suggest that there was nothing exceptional about the circumstances in which the attack took place, and that an attack is a real risk in ordinary circumstances …”.18
[20] There is no risk of any more favourable outcome for Mr Risdom (or Jock) if the Judge had been aware of either Mr Risdom’s medical issues or the explanations he would have sought to proffer. The trial was not unfair or a nullity. I therefore cannot identify any miscarriage of justice.
17 Auckland Council v Hill, above n 7, at [74].
18 At [81].
Evidence on appeal
[21] Although it is not strictly necessary for me therefore to decide it, I turn to Mr Risdom’s application to adduce his affidavit on this appeal. I generally may receive such evidence, if I think it “necessary or expedient in the interests of justice”.19 That lies to be determined “by the application of a sequential series of tests”.20 These are if the proposed evidence is credible, fresh, and cogent.21
[22] I have no difficulty concluding Mr Risdom’s proposed evidence is credible. He seeks to speak of his and Jock’s circumstances, including those of the offence. As Mrs Gold notes, the evidence would amplify, rather than contradict, the summary of facts.
[23] But the proposed is not ‘fresh’, in the required sense it could not, with reasonable diligence, have been obtained for the trial. Mr Risdom relies on his pre- existing head injury, said to affect his cognitive function to the extent he is unable to work and is on an invalid’s benefit, and his 6 November 2019 car accident as reasons for his failure to appear on 27 November 2019.
[24] I accept Mr Risdom may have burdens beyond those of the ordinary unrepresented litigant in remembering to attend and participating at trial. But he previously had failed to appear when summoned for 7 August 2019, appeared on 5 September 2019 to plead not guilty and was remanded at large for a hearing on 20 November 2019, failed to appear at that hearing, and expressly was warned his continued failure to appear on 27 November 2019 “may result in the matter being dealt with in his absence or a warrant for his arrest may be issued”.22 There is enough in that to require greater diligence to attend trial than mere reliance on his self-reported cognitive deficit.
[25] Mr Risdom’s hospital discharge papers in the wake of the car accident, recording his self-discharge contrary to repeated medical advice, also record the
19 Criminal Procedure Act 2011, s 335(2); Lundy v R [2013] UKPC 28 at [119].
20 Lundy v R, above n 19, at [120].
21 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34], endorsing R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22] and [26].
22 Auckland Council v Risdom (reasons judgment), above n 2, at [4]–[6].
doctors’ explained satisfaction of Mr Risdom’s determined competence to act in his own interests. That suggests Mr Risdom was not so affected by his head injury or the car accident as not to be able to take such steps as were necessary to ensure his attendance at trial, if he considered that sufficiently important in his own interests.
[26] Most critically, Mr Risdom’s proposed evidence is not cogent. For the reasons I have explained,23 it does not offer any prospect a miscarriage of justice may be established.
[27]The application to adduce Mr Risdom’s affidavit is declined.
Result
[28]The appeal was dismissed.
—Jagose J
23 At [13]–[17] above.
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