Risdom v Auckland Council - [2020] NZHC 905

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…

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: [2020] NZHC 905
Decision Date: 5 May 2020

CaseChat Overview and Summary

Darryl Wayne Risdom appeals against the order of the District Court for the destruction of his dog, Jock, and the imposition of a fine and reparation payments. The appeal was filed out of time, and the court considered whether to extend the time for filing the appeal. The court found that extending the time was in the interests of justice and therefore allowed the appeal to proceed. The main issue was whether the circumstances of the offence were exceptional and did not warrant the destruction of the dog. The court found that the circumstances of the offence were not exceptional and therefore dismissed the appeal.

The court considered the arguments of the appellant's counsel, Asta Gold, that the destruction order was not susceptible to retrial or rehearing, and that the Judge's lack of awareness of the appellant's medical issues resulted in procedural unfairness. The court found that the destruction order was not analogous to a sentence and that the appellant's medical issues did not create a real risk of a more favourable outcome or make the trial unfair or a nullity. The court also considered the appellant's application to adduce his affidavit on the appeal but found that the evidence was not cogent and did not offer any prospect of establishing a miscarriage of justice. The court declined the application to adduce the affidavit. The appeal was dismissed.

Orders