A v Police HC Auckland CRI 2008-404-374

[2008] NZHC 2002

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-374

CRI 2008-404-375

NEW ZEALAND POLICE

Appellant

v

A 

Respondent

Hearing:         12 December 2008

Appearances: Ms Hogan for appellant

Mr Tait (on instructions from Mrs Tuilotolava) Judgment:     12 December 2008

JUDGMENT OF WINKELMANN J

Crown Solicitor, Auckland

M Tuilotolava, Barrister, Manukau

S Tait, Barrister, Manukau

POLICE V A   HC AK CRI 2008-404-374  12 December 2008

[1]      The police appeal against the grant of bail in two decisions of District Court Judge Harvey given in the District Court, Manukau on 17 & 18 November 2008. Mr A   is charged in Operation Leo with supplying methamphetamine and possession of methamphetamine for supply.  He appeared on those charges on 7 May

2008 and was granted bail at the Manukau District Court on conditions including a

24 hour curfew.   He was able to be granted bail by the District Court on that occasion because in terms of s 16 of the Bail Act 2000 he had no previous conviction for a drug dealing offence.   On that occasion he was released on bail to 6 Pesaro Place.

[2]      Mr  A    has  since  appeared  at  pre-depositions  hearings  and  was remanded to a depositions hearing on 23 March 2009.  On 14 October 2008 he came to the attention of the police when his fingerprints were located in a stolen vehicle. He  was  apprehended  in  another  stolen  vehicle  on  15  November  2008  and  was charged with one charge of unlawfully getting into a motor vehicle and one charge of unlawfully taking a motor vehicle.   He appeared on those charges before Judge Harvey on  17  November  2008.    It  seems  from  the  record  of  that  hearing  that Mr A   was represented by Mrs Tuilotolava.  Mrs Tuilotolava also represented Mr A   in relation to his earlier appearances on the drug related charge.  The Judge did not have before him Mr A  ’s Operation Leo file, or information that he was already on bail in relation to the charges arising out of Operation Leo.  The police prosecutor did not bring this to the Judge’s attention.  He was also apparently unaware of the information because of a failure by the police to enter it on to the police  database.     Mrs  Tuilotolava,  who  it  seems  must  have  known  of  the information, also did not tell the Judge.

[3]      Judge Harvey granted Mr A   bail in respect of the vehicle charges on the condition that he reside at 23B Kerrs Road, Manurewa and abide by a night time curfew.

[4]      Later on the date of 17 November 2008 the police made the connection between Mr A   and Operation Leo.   They realised that Mr A  ’s bail

conditions had not been entered into the police system and that his compliance with those conditions was unmonitored.  He was therefore alleged to have offended while on bail, and the circumstances in which he had been detained on the vehicle related charges also made it clear that he was in breach of his Operation Leo 24 hour curfew.

[5]      Later the same day, 17 November 2008 the police visited the address at 23B Kerrs Road, Manurewa and spoke to Mr A  .  He told them that he had been residing at 23B Kerrs Road for approximately four weeks.  This was a breach of his Operation Leo residential condition.  He was not at the address he was bailed to on the drugs charge.  Further, he was now living at the same address as a co-defendant in Operation Leo, Mr Uerata.  Mr A   was also found to be in possession of a cellphone SIM card from which the police say, it can be inferred that he was breaching another Operation Leo condition, that he not use, own or possess a cellphone.

[6]      Further inquiries by the police established that he was not welcome at the Kerr Road address, and that he had never resided at 6 Pesaro Place.  He was in fact unknown to the occupants of that address.  He had however resided at 8 Pesaro Place until February 2008, but was not residing there in May 2008 when he was granted bail to reside at that address.  Again he was not welcome to reside at 8 Pesaro Place.

[7]      The police arrested Mr A   and on 18 November 2008 and he was brought before Judge Harvey for breaching his Operation Leo bail conditions.   At that  time  counsel  for  the  police  appeared  and  Mrs  Tuilotolava  appeared  for Mr A  .  The following exchange occurred:

MR CARRUTHERS:   May it please Your Honour, Carruthers appearing for the Crown.  You may remember this defendant from yesterday.  He was picked up on a charge of unlawfully taking a motor vehicle, something to that effect, and he was bailed.  It’s also part of Operation Leo Your Honour.

THE CROWN:   I bailed this gentleman yesterday.   Do you say he has breached his bail?

MR CARRUTHERS:  Not from yesterday.  He was breaching – he is part of Operation Leo Your Honour.

THE CROWN: Yes.  I understand that.

MR CARRUTHERS:  In May he was bailed.  When he was picked up it came to the Police’s attention that he was in breach of his bail issue that was he granted in May, in a number of respects.

THE COURT: Mr Carruthers, I granted him bail yesterday –

MS TUILOTOLAVA:  Yes, on two charges.

THE COURT:  I granted him bail yesterday and now what has happened is that he has been picked up again.

MS TUILOTOLAVA:  Is there a breach of bail charge in front of you Sir?

THE COURT:  I have no idea Mrs Tuilotolava and quite frankly if I were you and I don’t have to be, because I am outraged already at this, this seems to me to relate to a breach of bail that occurred before I dealt with him yesterday.

MS TUILOTOLAVA: That’s right, it should have been laid yesterday.

THE COURT:  Oh, for Heaven’s sake.

MS TUILOTOLAVA:  But it hasn’t been laid.

THE COURT:  It hasn’t  been laid.

MS TUILOTOLAVA:  No it hasn’t.

THE COURT:  He has been arrested for some reason or another and the matter will be remedied in this way Mr Carruthers.   I think that this is an overuse of police power, with the greatest of respect.  He will be remanded, bail to continue, on the Operation Leo matters to 23 March 2009.   He is bailed on the other matters to 1 December.

MS TUILOTOLAVA:  I can give you a plea on those ones.

THE COURT:  If there had been a problem it should have been raised with me yesterday and it wasn’t.

MS TUILOTOLAVA:  As Your Honour pleases, thank you Sir.

MR CARRUTHERS:  As Your Honour pleases.

[8]      The effect of this was that Mr A   was released with bail to continue on the Operation Leo matters to 23 March 2009, and on the other matters to 1 December

2008.   On the vehicle charges Mr A   was released on bail to reside at 23B Kerrs Road with a night time curfew and in respect of the Operation Leo charges he was released on bail to reside at 6 Pesaro Place with a 24 hour curfew and non- association with the co-defendants.

[9]      The appeal is brought on the basis that in the 17 November 2008 decision the Judge failed to take into account the fact that Mr A   was already on bail and was in breach of the conditions attaching to that bail.  It is also argued that the Judge failed to take into account that the nominated bail address for the motor vehicle offending was inappropriate as it was an address where Mr A  ’s Operation Leo co-defendant resided.  Although the police acknowledge that the police did not bring the breach of bail to the Judge’s attention on that day, they say that the Manukau District Court was seized of the Operation Leo charges and the Court should have ensured that the bail information was available to the Judge.

[10]     The police also appeal against the Judge’s 18 November 2008 bail decision in relation the Operation Leo charges.  The police say that the Judge failed to take into account the following relevant considerations when Mr A   was brought before him on breach of bail:

(a)The information that Mr A   had been breaching existing bail conditions imposed in relation to the Operation Leo charges.

(b)That the bail address was inappropriate.  6 Pesaro Place was not an appropriate address as he was not known to the residents at that address.  He was not welcome at the other Pesaro Place address.

(c)      He was releasing Mr A   subject to two inconsistent sets of bail conditions.

(d)The   District   Court   Judge   had   no   jurisdiction   to   consider Mr A  ’s bail subsequent to his release for breach of conditions imposed in respect of the Operation Leo charges.  It is the police case that pursuant to s 59 of the Bail Act 2000, having breached his bail on drug dealing charges, Mr A   could only be released on bail by a High Court Judge.

[11]     Ms Hogan has placed before me information that Mr A   has now absconded from the 23B Kerrs Road address.   A police incident car visited that

address on 21 November 2008 and reported that the house was vacant.   It was checked again on 24 November 2008 and it was confirmed that it remained vacant. The police were told by the landlord that the tenants were evicted on 20 November

2008, and the locks changed on 21 November 2008.  The police have been unable to locate Mr A  .  The co-defendant who was living at that address Mr Uerata, was  located  on  8  December  2008  and  brought  before  the  court  in  respect  of breaching his bail condition on 9 December 2008.  He was remanded in custody.

[12]     There is a compelling case for the grant of this appeal and for the revocation of all orders in relation to Mr A  ’s bail.  When the matter was brought before the District Court Judge on 17 November 2008 he was not made aware of matters that  were  critical  to  the  exercise  of  his  discretion  in  relation  to  the  release  of Mr A   on bail.  I do not criticise the Judge at all for that.  In a perfect world the Court would have marshalled the information for him.  But that did not happen. I  consider  it  to  be  far  more  significant  that  Mrs  Tuilotolava  failed  to  bring Mr A  ’s bail status to the Judge’s attention and I will return to that point later.

[13]     When the issue of bail was again brought before the Judge on 18 November

2008, he had a chance to reassess the situation in light of the new information. Counsel for the police was not proactive as he should have been in drawing the Judge’s attention to the salient information.  The Judge was entitled to expect more assistance from him.   However a contributing factor to counsel’s failure to more fully explain the circumstances may well have been the Judge’s very evident impatience with Mr A   being brought before him twice in two days.  In any case there was sufficient information so that the Judge was aware that Mr A   was already on bail when he had come before him on 17 November, and that there were issues of breach of bail.  The Judge should have satisfied himself as to all the relevant circumstances.

[14]     There can be little doubt that the Judge erred in releasing Mr A   on bail on the conditions that he did, or indeed in releasing him at all given the information that was available as to Mr A  ’s bail addresses.  He also clearly erred in releasing him on two sets of inconsistent bail conditions.   But more fundamentally I accept the argument advanced for the police today that the Judge

had no jurisdiction to grant Mr A   bail.             Section 59 of the Bail Act 2000 provides:

If a defendant has been released on bail under section 16, any member of the police may arrest the defendant without warrant if -

(a)the member of the police believes on reasonable grounds that the defendant has absconded or is about to abscond for the purpose of evading justice; or

(b)the police have been notified in writing by any surety for the defendant that the surety believes that the defendant has absconded or is about to abscond for the purpose of evading justice, and the member of the police is satisfied that there are reasonable grounds for that belief; or

(c)the member of the police believes, on reasonable grounds, that the defendant has broken, is breaking, or is about to break, any condition of bail (whether imposed under section

31, or otherwise); or

(d)the police have been notified in writing by any surety for the defendant that the surety believes that the defendant has broken, is breaking, or is about to break, any such condition of bail, and the member of the police is satisfied that there are reasonable grounds for that belief.

(2)       A defendant who has been arrested under subsection (1) must be brought before a High Court Judge as soon as possible, and in any event not later than [72] hours after the arrest.

(3)       If a defendant is brought before a High Court Judge under subsection (2), the Judge must,  if satisfied  on the  balance  of probabilities that  the defendant has absconded or was about to abscond, remand the defendant in custody.

(4)       If a defendant is brought before a High Court Judge under subsection

(2), the Judge may, -

(a)if satisfied on the balance of probabilities that the defendant has  broken,  was  breaking,  or  was  about  to  break  any condition of bail, remand the defendant in custody; or

(b)      release the defendant.

(5)       If a defendant is released under subsection (4)(b), the defendant's bail bond continues in force in all respects as if the defendant had not been arrested under subsection (1).

(6)       Despite subsections (4)(b) and (5), if a defendant was arrested under subsection (1)(d), the Judge may release the defendant under subsection (4)(b) only if -

(a)      the surety consents in writing to the release; or

(b)      a fresh bail bond is issued.

(7)      Nothing in this section prevents a member of the police from seeking a warrant to arrest a defendant under section 60.

[15]     As is plain from s 59(2) it is a mandatory requirement that the defendant who has been bailed under s 16 and then arrested for breach of bail conditions, must be brought before a High Court Judge.  The effect of this section when read as a whole is that following such a breach of bail, issues of bail are to be dealt with by the High Court.  This is consistent with the particular bail regime which is set up by s 16 of the Bail Act 2000 in relation to drug dealing offending.  The District Court has only limited powers to grant bail to people charged with drug dealing type offending, and the statutory scheme is that once such a person is arrested under s 59(1) the issue of remand in custody or the release on bail falls to be decided by the High Court.

[16]     I allow the appeal.  Since Mr A   has absconded, I have no doubt that all grants of bail should be revoked.  He has shown himself to be a person who has no regard for court orders.   There is a real concern that Mr A   will fail to comply with any conditions of bail imposed upon him and that he will fail to appear if released on bail.  That of course leaves the police with the perhaps difficult task of locating him at this point in time.

[17]     One final matter that arises in relation to events as they occurred in the District Court is the failure of counsel for Mr A   to bring to the Judge’s attention the information in relation to the Operation Leo charge and also the conditions attaching to bail for Mr A   in relation to those charges.   On the information  I have it  seems  that  Mrs  Tuilotolava  must  have  been  aware  of  all relevant matters, yet she failed to bring them to the District Court Judge’s attention. She had a duty to do so.  I am also aware in making these remarks that I have not heard from Mrs Tuilotolava in relation to the issue.  Ms Hogan was not counsel on either day before the District Court so cannot give me an accurate recount of what has occurred.   Mr Tait who appears for Mrs Tuilotolava today similarly has no instructions as to what exactly did occur when Mr A   was called before the Judge  on  the  two  occasions  in  November  2008.     I  therefore  request  that Mrs Tuilotolava file a memorandum or a letter explaining events and giving some explanation as to her conduct in relation to what occurred on 17 November 2008, in

particular her failure to bring the fact that Mr A   was already on bail.   I require that she does so by 5.00 pm, Wednesday 17 December 2008.   It is to be brought to my attention when she does so.

Winkelmann J