Tuporo v Auckland Council
[2025] NZHC 3179
•23 October 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2025-404-353
[2025] NZHC 3179
BETWEEN LAYLA TUPORO
Appellant
AND
AUCKLAND COUNCIL
Respondent
Hearing: 20 October 2025 Appearances:
A Kala for the Appellant
B Magill for the Respondent
Judgment:
23 October 2025
JUDGMENT OF ANDREW J
This judgment was delivered by me on 23 October 2025 at 3 pm
Registrar/Deputy Registrar Date:
TUPORO v AUCKLAND COUNCIL [2025] NZHC 3179 [23 October 2025]
Introduction
[1] Ms Tuporo was convicted and sentenced in the Auckland District Court on one charge of owning a dog that attacked a person.1 She did not appear in court and the matter proceeded by way of formal proof.2
[2] She was sentenced to a $650 fine; reparation for medical costs; emotional harm to the victim of $500; and Court costs of $226. The Court also ordered destruction of Ms Tuporo’s dog pursuant to s 57(3) of the Dog Control Act 1996.
[3] Ms Tuporo appeals against the destruction order. She also seeks leave to appeal against the conviction (filed 14 days out of time) and leave to adduce fresh evidence in the form of an affidavit. She says she attended twice at the Auckland District Court but was advised on both occasions that her matter had not been scheduled for hearing that day. She also says that she has a total absence of fault defence available to her but, because of administrative error, she was denied the opportunity to put this before the District Court.
The offending
[4] Ms Tuporo is the registered owner of a male, tan and white Pitbull cross, named “Tupe”.
[5] At 9.40 am on 22 October 2024, Constable Asomua-Goodman arrived at a residential apartment building in Auckland Central to arrest Mr Vaka, the appellant’s former partner, who had an outstanding warrant.
[6] On arriving at the apartment, Constable Asomua-Goodman advised Mr Vaka he was under arrest. Mr Vaka became frustrated and non-cooperative, causing the Constable to pull Mr Vaka out into the hallway and against the wall to handcuff him.
1 Dog Control Act 1996, s 57. Maximum penalty: $3,000 fine and destruction of the dog.
2 Auckland Council v Tuporo [2025] NZDC 15140.
[7] At this point, the dog ran out of the apartment and jumped up and bit Constable Asomua-Goodman’s left wrist, before quickly letting go and running back into the apartment.
[8] The Constable executed the arrest, before presenting to Auckland City Hospital for medical treatment. He had puncture wounds on his wrist and was required to take three days off work.
Decision under appeal
[9] The Judge outlined the offending before finding the Council was entitled to proceed by way of formal proof. He noted that Ms Tuporo had failed to answer two summonses served upon her (March and April 2025).3
[10] The Judge found the circumstances of the attack were proven by the formal statement of Constable Asomua-Goodman, and that Ms Tuporo’s dog ownership and registration were proven by the formal statement of Animal Management Officer Manu.4 As the offence is strict liability, and Ms Tuporo neither appeared nor tendered any evidence in support of a total absence of fault defence, the Judge found the charge proved.5
[11] With respect to the destruction order, the aspect of the sentence under appeal, the Judge found that no exceptional circumstances arise relating to the offence on the evidence filed by Auckland Council, and no other evidence had been tendered.6 On this basis, the Judge made an order under s 57(3) for destruction of the dog.7
Procedural history
[12] On 7 July 2025, Ms Tuporo filed an appeal against sentence, namely the destruction order. At this time, she was self-represented.
3 At [3].
4 At [4].
5 At [5].
6 At [10].
7 At [10].
[13] On 17 July 2025, Ms Tuporo was granted legal aid. Counsel for the appellant contend that Ms Tuporo was only informed of her grounds in respect of appeal against conviction at this time.
[14] On 29 July 2025, Ms Tuporo filed a new notice of appeal against conviction and sentence. The appeal against conviction was filed 14 days out of time.
[15] On 15 September 2025, Ms Tuporo sought an extension to file an affidavit addressing leave to appeal against conviction out of time. The Court granted the extension, and the appellant was required to file an affidavit no later than 22 September 2025.
[16] On 6 October 2025, the appellant filed written submissions, together with an unsworn affidavit. The appellant seeks leave to adduce information contained in the affidavit (now sworn) as fresh evidence. The appellant submits that details of the affidavit were not before the District Court due to the appellant’s non-appearances at the District Court hearings.
Issues for determination
[17]The following issues require determination by the Court:
(a)Should leave be granted to bring the appeal against the conviction out of time?
(b)Should the affidavit of the appellant be admitted as fresh evidence?
(c)Has a miscarriage of justice occurred, or will it occur, if the appeal against conviction is not allowed?
(i)If yes, the matter should be remitted back to the District Court for a Judge-alone trial.
(ii)If no, the Court will be required to consider (d).
(d)Has the District Court erred in finding the circumstances of the offence were not exceptional and ordering for destruction of the dog?
Approach on appeal
Appeal against conviction
[18] Section 232 of the Criminal Procedure Act 2011 (CPA) provides that the Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.8
[19] The appeal proceeds by way of rehearing and this Court is required to form its own view of the facts.9 If this Court reaches a different view on the evidence, it follows the trial Judge necessarily will have erred and the appeal must be allowed.10 However, the onus is on the appellant to show that an error occurred.
[20] In assessing whether an error has occurred, the appeal Court must take into account any advantage a trial Judge may have had in being able to assess the evidence as it emerged during the trial, as opposed to an appeal Court assessing the evidence based on the written record and counsel’s submissions.11
Appeal against sentence
[21] Section 250 of the CPA sets out how a court is to determine a sentence appeal. An appeal must be allowed if the Court is satisfied that there is an error in the sentence imposed, for any reason, and that a different sentence should be imposed.12
8 Criminal Procedure Act 2011, s 232(4).
9 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].
10 At [38].
11 At [38]–[40].
12 Criminal Procedure Act, s 250(2).
[22] The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:13
… the standard of appellate review in sentence appeals … requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only that the sentencer enjoys an appropriate margin of appreciation.
[23] In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.14 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.15 A judge on appeal should not intervene where the sentence imposed was within the range that could be properly justified by accepted sentencing principles.16
Leave to appeal conviction out of time
[24] The appeal against conviction was filed 14 days out of time, following Ms Tuporo’s grant of legal aid.
[25] Counsel for Auckland Council acknowledges that the Court retains a wide discretion to extend the time allowed for filing a notice of appeal, pursuant to s 231(3) of the CPA. The Court’s overriding consideration in determining whether to grant an extension of time is whether the interests of justice support the extension. In these circumstances, the respondent does not oppose the appellant’s application for leave to appeal against conviction out of time.
[26] It is in the interests of justice to grant the application for leave to appeal out of time. Leave is accordingly granted.
13 Palmer v R [2016] NZCA 541 at [17] (footnotes omitted).
14 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [35].
15 At [36].
16 At [36], citing Tutakangahau v R, above n 14, at [10].
Leave to adduce fresh evidence
[27] Ms Tuporo seeks to adduce fresh evidence, namely her sworn affidavit of October 2025. The affidavit contains information regarding the delays in filing her affidavit and the appeal against conviction, hearings in the Auckland District Court, and the incident giving rise to the offence on 22 October 2024.
[28] The Court may receive further evidence on appeal if “the interests of justice require it”.17 The evidence is required to be fresh, in the sense that it could not, with reasonable diligence, have been obtained at the time of the original hearing.18 The evidence must also be sufficiently credible and cogent in the sense that, had it been available earlier, it may potentially have reasonably led to a different finding by the Court from which the appeal lies.19
[29] The respondent opposes the application to adduce fresh evidence. In particular, it opposes admission of the evidence regarding the District Court hearings, and the incident giving rise to the offence on 22 October 2024.20
District Court hearings
[30] In the affidavit, Ms Tuporo explains that she attended the Auckland District Court on both 15 April 2025 and 9 June 2025. She says that on both occasions the Registry staff at the Criminal Counter told her that there was no hearing listed in the system for that day that required her appearance, so she went home. She had gone to the Criminal Counter on both occasions when she could not find her name on the Court list in the foyer of the Court.
[31] The respondent has filed and served an affidavit, by process server Mr Geoffrey Dolan, affirmed on 18 September 2025. Mr Dolan states he served a copy of the summons on the appellant for both hearings. In addition, he provided a
17 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]–[120], cited with approval in Ellis v R
[2021] NZSC 77 at [29]–[30].
18 At [125], cited with approval in G v R [2024] NZCA 571 at [22].
19 At [120]; Ellis v R, above n 17, at [29]–[30]; and R v Bain [2004] 1 NZLR 638 (CA) at [18]–[19].
20 I note that the Auckland Council accepts that the evidence regarding the delay in filing of the affidavit and the delay in filing the appeal against conviction satisfies the cumulative criteria for admission of fresh evidence. However, that is of no real relevance given I have granted leave to appeal the conviction out of time.
letter and verbally explained what would happen if she failed to appear, following her non-appearance on 15 April 2025. That included the potential of the imposition of a fine, conviction and destruction for her dog.
[32] I find that the fresh evidence relating to the appellant’s non-attendance on 15 April 2025 and 9 June 2025 (including the alleged engagement with the staff at the Criminal Counter) should not be admitted on appeal. I find that it is not sufficiently credible or cogent in the sense that it could properly support a finding that there was a miscarriage of justice because, through no fault of her own, the appellant did not attend at the hearing and was denied the opportunity to present her case.
[33] In my view, it is implausible that on two occasions the appellant came to court and on both occasions was told that her case had not been scheduled for hearing so that she could return home supposedly without consequence. Both she and the Auckland Council had received written notice from the Court on both occasions that a hearing had been scheduled. According to the appellant’s own evidence, she phoned the 0800 COURTS number in both April and June 2025 and the responses she received on both occasions indicated that her proceedings were clearly recorded in the court system. In the April phone call, she was advised of the 9 June 2025 hearing and in the June 2025 phone call she was told of the formal proof outcome. I also note that having been put on notice that the Auckland Council required her for cross-examination at the hearing before me, the appellant did not appear. She advised counsel that she had childcare responsibilities and might be available on a subsequent date.
[34] In my view, there is a disturbing pattern of non-attendance by the appellant at court. I find that it is not in the interests of justice to receive the further evidence from her as to why she did not attend at the Auckland District Court.
Incident on 22 October 2024
[35] In her October 2025 affidavit, Ms Tuporo deposes that, on 22 October 2024, she was asleep and the dog was on the bed with her. She awoke to screaming and she and the dog ran towards the noise. She says five Police officers were dragging Mr Vaka out of the apartment and, when she saw the dog was outside, she called him back and he immediately retreated into the house. She says she then asked the Police
where they were taking Mr Vaka. She deposes that she did not see the dog attack the Police officer, but was later told that he had.
[36] I find that this remaining portion of the affidavit should likewise not be admitted as fresh evidence on appeal. I find that the information it contains is not fresh; the information provided was included in Ms Tuporo’s formal written statement given to Animal Management Officer Manu. Furthermore, the evidence given in that formal written statement is consistent with Constable Asomua-Goodman’s statement, whereas the summary of events in the affidavit is not. There are thus significant issues as to the credibility and cogency of the proposed new evidence.
[37] In conclusion, I find it is not in the interests of justice for any material part of Ms Tuporo’s affidavit to be admitted as fresh evidence on appeal. There are real issues regarding its credibility and cogency. In my view, it is not likely that, had the information been made available earlier, it would have led to a different finding by the Court from which the appeal lies.
Appeal against conviction
[38] The appellant appeals her conviction on the basis that a miscarriage of justice has occurred arising from her non-attendance at the District Court hearings. This meant Ms Tuporo was unable to advance a total absence of fault defence. She says that her non-attendance was excusable and caused by administrative error.
[39] If successful, the appellant seeks that her conviction be quashed and the proceedings remitted to the District Court for a retrial and the opportunity for her to advance her defence of a total absence of fault.
[40] Ms Tuporo says such a defence is available because the dog was secure in the apartment, the attack was momentary and could not be predicted due to the lack of any previous incidents. There was nothing in the dog’s behavioural history to suggest any additional controls or safeguards were required — and the door being left open was not in Ms Tuporo’s control.
[41] Having found that there was probative evidence to conclude that Ms Tuporo had no legitimate excuse for non-attendance at the formal proof hearing in the District Court, there is no basis to conclude that there was a miscarriage of justice.
[42] There was no error in the approach of the District Court Judge. He was entitled to conclude that the appellant had proper and formal notice of the hearing and, in her absence, he was entitled to determine the matter by way of formal proof. There was no evidence before him to reach a finding that there was a total absence of fault. For the reasons given by the Judge, he properly found the charge proved.
[43] Sections 119 and 124 of the CPA prescribe the powers of a court when a defendant does not appear and has been charged with a category 1 offence (i.e. the charge here). The court may proceed with a hearing in the absence of a defendant where the offence charged is a category 1 offence, the defendant is required to be present at the hearing, and the prosecutor attends the hearing but the defendant does not. If the court proceeds with a trial in the absence of the defendant, it must proceed as if the defendant has entered a plea of not guilty.
[44] Furthermore, s 124(d)(i) of the CPA allows for a sentencing of a category 1 offence to occur in the absence of the defendant, provided the sentence imposed is not a community-based sentence.
[45] The approach and decision of the District Court Judge are consistent with these statutory provisions. He correctly concluded that it is for a defendant to make out on the balance of probabilities the total absence of fault defence.21 There was simply no evidence before him to conclude that there were literally no practical steps the appellant could have taken to avert the attack.22
[46]The appeal against conviction is dismissed.
21 See Solicitor-General’s reference from CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401, [2024] 3 NZLR 656 at [7], citing King v South Waikato District Council [2012] NZHC 2264 at [28]; and Simpson v Kawerau District Council [2005] NZAR 529 (HC) at [28].
22 Walker v Nelson City Council [2017] NZHC 750 at [23].
Appeal against sentence
[47] If the appeal against conviction is unsuccessful, Ms Tuporo appeals against that aspect of the sentence ordering destruction of the dog. It is contended the District Court Judge erred in finding that the circumstances of the offence were not exceptional. Ms Tuporo submits that there were unique circumstances which led to the attack. That means that the dog is not a risk to public safety and nor is he likely to behave in a similar way in the future.
[48] In Auckland Council v Hill,23 the Court of Appeal held that the focus of s 57(3) of the Dog Control Act (Order for Destruction) is to prioritise public safety and to prevent dog attacks on the public.
[49] The Court clarified the matters that can (and cannot) be considered by a sentencing Judge when assessing exceptional circumstances. There is a two-step approach:
[5] The first step in applying s 57(3) is to identify the relevant circumstances of the offence. What happened? This inquiry should focus on the immediate circumstances of the attack itself. The dog’s history does not form part of the circumstances of the offence. Events that occur after the offence is complete — that is, after the attack occurs — also are not circumstances of the offence. The phrases “circumstances of the offence” and “circumstances of the attack” are equivalent in this context.
[6] The second step is for the court to ask whether the circumstances of the offence were exceptional and do not warrant destruction of the dog. Section 57(3) proceeds on the basis that the attack of itself establishes that there is a risk of the dog attacking again in similar circumstances. The focus is on whether those circumstances were sufficiently exceptional that that risk is remote, and does not justify destruction of the dog in the interests of public safety.
[50] I find that there was no error in the decision of the District Court Judge to order destruction of the dog. He properly concluded that no exceptional circumstances arose on the evidence here. The immediate circumstances of the attack itself were that Constable Asomua-Goodman was lawfully executing a warrant for arrest and was required to take some action (i.e. pulling Mr Vaka out into the hallway) to complete that process. There is no suggestion that the Constable was acting unlawfully in any
23 Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
way or that the force he used was excessive. The dog, because of the appellant’s failure to maintain effective control, can be said to have hindered the Constable in the execution of his duties. Furthermore, the injuries sustained were more than minor; the Constable was required to take three days off work. This all took place in a residential apartment building at 9.40 am. The threshold of “exceptional” is not made out.
[51] As the Court of Appeal held in Auckland Council v Hill,24 s 57(3) proceeds on the basis that the attack of itself establishes that there was a risk of a dog attacking again in similar circumstances. The Court also held that it is not open a dog’s owner to argue that the dog can be expected to behave differently in similar circumstances in the future; for example, as a result of post-attack training. Rather, as the Court of Appeal held, the focus is on the risk the dog poses to people and animals assuming it can be expected to behave in the same way in similar circumstances.25
[52] The Court of Appeal further held that it is not open to the owner to argue that the s 57(3) test is met because the attack was caused or contributed to by a one-off failure by the owner to maintain effective control of the dog. Failure to control a dog is not an exceptional circumstance of a kind that indicates the destruction of the dog is not warranted.26
[53] The approach of the District Court Judge is entirely consistent with this jurisprudence. There is no basis for this Court to disturb his sentencing decision.
[54]The appeal against sentence is also dismissed.
Result
[55]The application for leave to appeal out of time is granted.
[56]The application to adduce further evidence on appeal is declined.
[57]The appeal against conviction is dismissed.
24 Auckland Council v Hill, above n 21, at [6].
25 At [7].
26 At [8].
[58]The appeal against sentence is dismissed.
Andrew J
0
7
0