Tuakalau v Auckland Council

[2019] NZHC 3252

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-122

[2019] NZHC 3252

BETWEEN

JULIET TUAKALAU

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing:	10 December 2019
Appearances:	T M Cooper and ILM Archibald for the Appellant D J Collins and F A Mohammed for the Respondent
Judgment:	10 December 2019

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:

Ms T M Cooper and Ms ILM Archibald, Barristers, Auckland

Mr D J Collins and Ms F A Mohammed, Auckland Council, Auckland

TUAKALAU v AUCKLAND COUNCIL [2019] NZHC 3252 [10 December 2019]

[1]                 Mrs Tuakalau pleaded guilty to two charges of owning a dog that attacked a person causing serious injury.1 On 19 March 2019 Judge L Tremewan ordered the destruction of both dogs, and that Mrs Tuakalau pay $750 in reparation.2

[2]                 Mrs Tuakalau appealed. Her concern is the destruction of the dogs. At a hearing in September it became evident that the argument went beyond a sentence appeal. The appeal raised issues regarding the circumstances of the offending that were not in the summary of facts. Mrs Tuakalau claims that not all relevant facts were before Judge Tremewan in the summary of facts, and that this has resulted in a miscarriage of justice. The respondent did not oppose an adjournment so that the appellant could replead and the appeal could be argued as one against conviction and sentence.

Summary of facts

[3]                 Mrs Tuakalau owns two dogs: Bella, a Rhodesian Ridgeback, and Kupa, a Huntaway Cross.

[4]                 On 24 January 2018 at around 2:00 pm the victim and a work colleague visited Mrs Tuakalau’s daughter at Mrs Tuakalau’s address. While her work colleague remained in the car, the victim entered the property to approach the front door. As she entered the property, Bella came towards her, began barking aggressively and started circling her. The victim screamed for help. Kupa came out of the house. The victim turned towards the gate and tried to run. Kupa bit the victim on her left leg, causing her to fall to the ground with Kupa still attached to her leg. Bella then attempted to attack the victim’s face. Both dogs were latched onto the victim at the same time as she screamed for help. Mrs Tuakalau appeared and grabbed Kupa, but at some point Kupa managed to bite the victim on the right hand side by her ribs.

[5]                 The victim managed to leave the property and as her work colleague shut the gate behind her she saw Kupa lunging at the gate barking. Mrs Tuakalau offered

1      Dog Control Act 1996, s 58. Maximum penalty of three years’ imprisonment and/or $20,000 fine; mandatory destruction of dog unless the circumstances of the attack are exceptional.

2      Auckland Council v Tuakalau [2019] NZDC 4961.

assistance to the victim, wrapping her leg and arm in material. The victim was taken to Waitakere Hospital, but was transferred to North Shore Hospital for surgery.

[6]                 The victim sustained four puncture wounds to her right arm (one was a 2 cm laceration), and four wounds to her left calf (one was a 3.5 to 4 cm laceration). There was also bruising to her right abdomen. She remained in hospital for four nights. The victim has permanent scars from the attack and experienced a long-lasting adverse effect on both her physical and mental health. Victim impact statements indicate that the victim has been suffering from intrusive memories, nightmares, and flashbacks. She has found herself socially withdrawn since the attack. She has needed regular counselling and has gone from seeing herself as a dog lover to being very afraid of dogs. She has been diagnosed with PTSD and has panic attacks. She considers the incident has significantly changed her life including, at times, her ability to work.

[7]The dogs were seized and impounded.

The Judge’s sentencing decision

[8]                 The Judge found that there were no exceptional circumstances that made the destruction of the dogs  unwarranted.  Although  the  property  was  fenced,  and  Mrs Tuakalau had left her employment to stay at home and ensure the dogs remained behind the fence, Mrs Tuakalau had not taken sufficient steps to prevent against the attack. A sign warning visitors of the dogs was not clearly visible; the dogs were not in Mrs Tuakalau’s line of sight; the dogs were not tied up or restrained in any way; and there was no lock on the fence preventing surprise visitors from entering the property.

Approach on appeal

[9]                 A conviction appeal must be allowed if a miscarriage of justice has occurred for any reason.3 A miscarriage of justice means any error, irregularity, or occurrence in, or in relation to, or affecting the trial 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.4

3      Criminal Procedure Act 2011, s 232(2)(c).

4      Section 232(4).

A guilty plea is included within the meaning of ‘trial’ for this purpose. But it is only in exceptional circumstances that an appeal against conviction will be entertained following the entry of a guilty plea.

[10]              A “real risk” that the outcome of the trial was affected will arise if there was a reasonable possibility that a not guilty, or more favourable, verdict might have been delivered if nothing had gone wrong. Irregularities that “plainly could not, either singularly or collectively, have affected the result of the trial” are not miscarriages of justice and the appellate court must disregard them.5 However, a finding that there has been an unfair trial means that it is unnecessary to consider whether this may have affected the outcome of the trial because if an accused person has not received a fair trial then any resulting conviction must be set aside.6

Summary of appellant’s submissions

[11]              The central issue raised by Ms Cooper, for the appellant, is that the summary of facts before the Judge did not contain information that is important to the circumstances of the attack. As a result, there was a miscarriage of justice because:

(a)the Judge was missing information about the victim’s previous visit to the property, and the fact she had effectively been trespassed from the property;

(b)Mrs Tuakalau was not informed by her lawyer of either the importance of the summary of facts, nor the fact that the summary could be altered;

(c)Mrs Tuakalau was not afforded the chance to ask the Court to indicate the weight that the victim’s previous visit would have had on the end sentence and “exceptional circumstances” threshold; and

(d)had the Court had this information, the outcome in terms of “exceptional circumstances” may have been different.

5      Wiley v R [2016] NZCA 28 at [12].

6      Criminal Procedure Act 2011, s 232(4)(b).

Was there a miscarriage of justice?

[12]              Mrs Tuakalau claims that the summary of facts on which she was sentenced was missing important contextual details. She explained these details in her statement:

I was so angry at what happened as the lady that was bitten was here in November looking for my daughter. I told them that day to be careful as I have dogs and there is a sign on the front gate not to enter. I told them they cannot enter my property. I did not think they would come back here again as I told them my daughter does not live here anymore. They apologised that they had entered the property.

[13]              Mrs Tuakalau relies on two key missing details. First, that the victim had visited the property before, and had both known and been warned about the dogs on a previous occasion. Secondly, that the victim had been effectively trespassed from the property.

[14]              The main basis for this challenge is that Mrs Tuakalau’s lawyer at the time, Mr Corby, failed to include all relevant information in the summary of facts, and failed to advise Mrs Tuakalau that the summary could contain additional information. He admitted this in an affidavit of 8 October 2019:

3.As is clear, there was nothing in the Summary detailing that the victim had been told not to enter the property a second time following her earlier visit in November 2017.

4.I acknowledge that I did not advise Mrs Tuakalau that the Summary could contain other information or that, indeed, there could be another hearing, if a dispute arose as to just what should be in that summary.

[15]              Conduct of trial counsel is one possible basis for miscarriage of justice.7 However, the lawyer’s error or irregularity needs to have materially affected the outcome in such a way that a miscarriage of justice has arisen. It is not enough to show that counsel made an error that in retrospect may have possibly affected the outcome. As the Supreme Court said in Sungsuwan v R:8

Where the conduct was reasonable in the circumstances the client will generally not succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment made by trial counsel

7      R v Merilees [2009] NZCA 59 at [34]; Langlands v New Zealand Police [2019] NZHC 214 at [20].

8      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [66].

which could well be made by another competent counsel in the course of a new trial.

[16]              In respect of the first piece of ‘missing information’, although the fact that the victim had visited the property before and knew about the dogs was not contained in the summary of facts, it was placed squarely in front of Judge Tremewan in Mr Corby’s submissions. Judge Tremewan considered it in her judgment:

[20] It is accepted that Kupa initiated the actual attack; there was a warning sign attached to the gate, the victim knew of the dogs from a previous visit, yet, had arrived unannounced on this occasion…

[25] … The report states, expressing Mrs Tuakalau’s views, that on the previous occasion when the victim visited the property, Mrs Tuakalau had stressed the risk they had taken entering the property due to the presence of her dogs.

[17]              Given the Judge considered and accepted that there was a warning sign attached to the gate and the victim knew of the dogs from a previous visit, it cannot be said that the fact this evidence was missing from the summary of facts was an error that resulted in a miscarriage of justice. While in retrospect it might have been prudent to include this in the summary of facts to avoid the risk the Judge did not accept it, this made no difference to the outcome of the proceeding.

[18]              The second piece of evidence, namely the fact Mrs Tuakalau believes she had effectively trespassed the victim on an earlier occasion, however, was neither in the summary of facts, included in Mr Corby’s submissions, nor in Judge Tremewan’s reasoning. But I do not consider it is established that Mr Corby was in error in omitting this from the summary of facts. It is not established whether Mr Corby was ever told by Mrs Tuakalau about the ‘effective trespass’ notice at the time.

[19]              It might be said that counsel’s lack of advice to Mrs Tuakalau that the summary of facts could be changed coupled with possibly not enquiring sufficiently as to the circumstances before Mrs Tuakalau reviewed and signed the summary of facts amounted to an error in not identifying and raising the trespass claim. If so, I need to consider whether it materially affected the outcome of the proceeding.9

9      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [65].

[20]              Ms Cooper accepted that should the Court reach the conclusion that the facts do not reach the threshold of exceptional, then a successful appeal against conviction would not alter the end result. That was appropriate because, upon conviction, the Court must make an order for the destruction of the dogs unless the Court is satisfied that the circumstances of the attack were exceptional and do not justify destruction. The onus is on the defendant. Relevant factors in determining whether the circumstances of the offence are exceptional include:10

(a)the nature of the attack, including the fact that injury resulted;

(b)the defendant’s history as a dog owner;

(c)whether the dog had behaved that way in the past;

(d)steps taken by the defendant to prevent such an attack occurring; and

(e)the reasons why the steps taken did not prevent the attack in question.

[21]              The second issue as to whether the circumstances do not justify destruction involves a predictive assessment. An underlying principle of s 58 is that the past behaviour of a dog is the best indicator of its future behaviour, that is, once a dog has attacked it is presumed that it will attack again unless compelling reasons exist to justify an alternative view.11

[22]              The Judge correctly referred to the test and the factors relevant to whether the circumstances were exceptional. Central to Judge Tremewan’s decision was the fact that Mrs Tuakalau had taken insufficient steps to prevent the attack – despite the fact the victim had been warned on a previous occasion that the dogs posed a risk to visitors. The Judge emphasised that “unexpected visitors are a relatively common occurrence”, and it is “unrealistic for visitors (especially if not familiar with the

10     Halliday v New Plymouth District Council HC New Plymouth CRI-2005-443-11, 14 July 2005 at [48].

11 At [44].

property) to always call beforehand and it is impossible to predict when people will enter the property”.12

[23]              Even if Judge Tremewan had evidence before her that the victim had been ‘effectively trespassed’, I do not consider there is a real risk this would have affected the analysis about the general risk that the dogs posed to any visitor at Mrs Tuakalau’s property. Without going so far as to say that previously trespassing a person could never be relevant, here further steps needed to have been taken to ensure that unwanted visitors did not enter the property without Mrs Tuakalau’s knowledge, and to ensure that the dogs were unable to harm visitors to the property. Whether the victim had in fact previously been trespassed was ultimately immaterial to whether the circumstances of the attack were exceptional. As Katz J said in Anand, prior warnings about dangerous dogs can never eliminate the possibility of unexpected visitors.13 Assuming Mrs Tuakalau had warned the victim about the dogs and told the victim not to come back to the property makes no difference to the outcome.

[24]              I note for completeness that the appellant relies on Orr-Walker v Auckland Council, where a decision ordering the destruction of dogs was remitted back to the District Court on the basis there were disputed facts that could not be agreed.14 Orr-Walker can, however, be distinguished. First, it was an application for recall. The legal test applied was therefore different. The question here is whether the omission of the facts now relied on created a real risk that the outcome of the proceeding was affected. Secondly, in Orr-Walker it appeared the Judge had proceeded as if the prosecution’s summary of facts was agreed (despite it being unsigned) and had not accepted mitigating facts, whereas here Mrs Tuakalau signed the summary of facts and, at least insofar as disputed facts were raised at the sentencing in Mr Corby’s written and oral submissions, the summary was accepted.

[25]              I accept that Mrs Tuakalau has significant personal health issues, that the dogs provide her emotional support, and that she has subsequently relocated to a property with better fencing, more signage, a padlock and higher gate. But these circumstances

12     Auckland Council v Tuakalau [2019] NZDC 4961 at [37]-[38].

13     Anand v Auckland Council [2013] NZHC 445 at [17] and [20].

14     Orr-Walker v Auckland Council [2013] NZHC 1541.

do not suggest the Judge was wrong in relation to exceptional circumstances or circumstances not justifying destruction. The Judge was right that she had to order destruction of the dogs.

[26]              I conclude there has been no miscarriage of justice as a result of the omission of the two pieces of additional information claimed by the appellant. Even if there was an error in relation to the trespass claim, I consider it did not make the circumstances of the attack exceptional and so did not affect the outcome.

[27]              Mrs Tuakalau’s final ground of appeal is that she was not afforded the opportunity for the Court to indicate to her the weight that it would likely attach to the disputed facts, if they were found to exist, and their significance to the sentence, under s 24(2)(a) of the Sentencing Act 2002. This does not give rise to a separate ground from the failure to raise the trespass ground, which I have already addressed. At the time, there was no fact in dispute to trigger s 24. It was not incumbent on Mr Corby to inform Mrs Tuakalau that she could challenge agreed facts and have a disputed facts hearing. If the trespass point had been raised, and been disputed by the prosecutor, the position may be different. But that is not the case.

[28]              I conclude there was no miscarriage of justice and the appeal against conviction cannot succeed.

[29]The appeal against sentence was not pursued on other grounds.

Result

[30]The appeal against conviction and sentence is dismissed.

Gault J