Alefaio v District Court at Waitakere

[2020] NZHC 3118

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-664

[2020] NZHC 3118

UNDER

the Judicature Amendment Act 1972

BETWEEN

ALANI ALEFAIO

Applicant

AND

DISTRICT COURT AT WAITAKERE

First respondent

NEW ZEALAND POLICE

Second respondent

Hearing:

10 November 2020

Appearances:

G E Minchin for the applicant

Appearance excused for the first respondent M J Hodge for the second respondent

Judgment:

24 November 2020

JUDGMENT OF PALMER J

This judgment was delivered by me on Tuesday 24 November 2020 at 4.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

G E Minchin, Barrister, Auckland Meredith Connell, Auckland Thomas & Co, Auckland

ALEFAIO v DISTRICT COURT AT WAITAKERE [2020] NZHC 3118 [24 November 2020]

What happened?

[1]    On 31 January 2020, Mr Alani Alefaio was charged with assault with intent to injure for allegedly punching the complainant in the face and upper chest three to five times while grabbing her hair, then dragging her to the ground and kicking her two to three times. He was granted bail with a condition not to associate with the complainant, not to go to her address, not to use violence and with a curfew.   On   15 February 2020, he breached a curfew condition by not presenting at the door when the Police called. On 25 February 2020, Police alleged he breached the curfew, went to the complainant’s house and began to argue with her. Mr Alefaio has an extensive criminal history from 2002 to 2015 including family violence offences and around 25 breaches of sentences, release conditions and failures to appear at Court.

[2]    On 26 February 2020, he appeared before Community Magistrate L Langridge at the Waitākere District Court for breaching his conditions of bail, represented by a duty solicitor. He admitted associating with the complainant, going to her house and breaching the curfew but denied offering violence. The Police did not oppose further bail. But the Community Magistrate stated:1

He’s now been brought back the second time since the 1st of February, so he’s now had five breaches of his bail. I think his bail needs to be reconsidered.

[3]    The Police immediately indicated they would oppose bail and the Magistrate adjourned the hearing for around one hour. At that hearing, Mr Alefaio’s counsel attempted to argue the bail “was not initially opposed by the police and it was now opposed because you directed police either to oppose or treated it as an opposed bail”.2 The Community Magistrate refused to hear further argument on that point. In her decision, she stated:3

I think you’re well aware the reason why your bail is now being opposed is because when you first appeared in front of me this morning I indicated that quite frankly I was appalled that your bail wasn’t being opposed, which despite any submissions your counsel might like to make is certainly within my ambit of authority because at the end of the day I make the decision.

1      Police v Alefaio Transcript CRI-2020-090-534, 26 February 2020 [Transcript] at 2.

2      Transcript at 5.

3      Police v Alefaio DC Waitākere CRI-2020-090-534, 26 February 2020 at [1].

[4]    She declined to re-admit Mr Alefaio to bail because of his history of very low compliance with Court orders and what he had done on bail. She indicated he appeared likely to be suitable for electronically monitored (EM) bail.

[5]    Mr Alefaio appealed against the decision and also applied for EM bail.  On 19 March 2020, Judge A C Roberts indicated he agreed with the refusal of bail but granted EM bail.4 Mr Alefaio sought to appeal but, after inquiry by Jagose J about jurisdiction, agreed that should be treated as abandoned under ss 41 – 43 of the Bail Act 2000.5 Mr Alefaio now applies for judicial review of the Community Magistrate’s decision.

Submissions

[6]Mr Minchin, for Mr Alefaio, submits:

(a)The Community Magistrate directed the Police to oppose bail without hearing from counsel and refused bail without allowing him to make submissions on the propriety of that. The evidence it was a direction lies in the Police response. If the Police did not oppose bail then, outside of exceptional circumstances, the Community Magistrate had to grant bail. There were no exceptional circumstances here. But the Community Magistrate opposed bail. As a result Mr Alefaio was incarcerated for two more weeks.

(b)The decision was contrary to the doctrine of the separation of powers because the Community Magistrate ceased to act as a member of the judiciary and acted as part of the executive branch of government in deciding whether bail should be opposed or unopposed. The bail decision was therefore pre-determined (which is not the same as bias) and that was not cured by the subsequent hearing because the Community Magistrate declined to hear submissions on that point. Justice was not seen to be done.

4      New Zealand Police v Alefaio [2020] NZDC 14641 at [3].

5      Minute of Jagose J, 16 April 2020.

(c)Both decisions breached Mr Alefaio’s right to be heard.

[7]    Mr Hodge, for the Police, submits there was no pre-determination in the Community Magistrate’s decision and she did not breach the separation of powers nor take on the role of prosecutor. Rather, she properly exercised her discretion to adjourn the matter to be heard. He submits the Community Magistrate was seized of making a decision under s 7 of the Bail Act 2000 and had a responsibility to assess and satisfy herself whether there was just cause for continued detention. He submits the Community Magistrate was responsible for reaching her own decision and is not just a rubber stamp for the views of the parties. He submits the Community Magistrate considered Mr Alefaio’s bail, which had previously been granted, should be “reconsidered”. She had some concerns and wanted to hear more and test the arguments. That does not constitute pre-determination. In any case, he submits there is no live issue between the parties, because EM bail was subsequently granted, and the application for judicial review is moot.

Did the Magistrate breach the separation of powers?

[8]    It is heartening when counsel make arguments based on constitutional doctrine. The separation of powers is an important constitutional doctrine, fundamental to the rule of law in New Zealand. It includes the need for the public prosecution of offences to be undertaken by or on behalf of the executive branch of government and judicial decisions about those prosecutions to be made by the judicial branch of government. The prosecutor is not also the judge and vice versa. That extends to decisions of Community Magistrates, who are judicial officers, on applications for bail.

[9]    However, Community Magistrate Langridge did not breach the separation of powers here. The decision about whether to grant an application for bail is a judicial decision. Under s 7(5), “a defendant who is charged with an offence and is not bailable as of right must be released by a court on reasonable terms and conditions unless the court is satisfied that there is just cause for continued detention”. Even if both an applicant defendant and a respondent prosecutor agree that bail is or is not warranted, the court is still required to decide whether the statutory pre-condition in s 7(5) is met: whether the court is satisfied there is just cause for continued detention.

[10]   Here, the Community Magistrate stated that Mr Alefaio’s bail needed to be reconsidered. This indicated she was not simply going to accede to the applicant’s and respondent’s agreed position. She was within her right to do that. In fact, if she had substituted their agreed position for her own decision, she would have been acting unlawfully because she would not have decided whether or not she was satisfied there was just cause for detention. The Police were then able to change their position.

[11]   Once the Community Magistrate decided she would not simply accept the applicant’s and respondent’s agreed position, she needed to hear from their counsel. Given that Mr Alefaio’s counsel was not present, she adjourned the hearing until he was present. This was consistent with observing both parties’ right to natural justice to be heard and with the absence of pre-determination. The evidence does not show the decision was pre-determined. A fair-minded lay observer would not conclude that by calling for bail to be “reconsidered” and ordering a hearing, the Community Magistrate had closed her mind to granting bail. And the Community Magistrate did not need to hear arguments that she had breached the separation of powers, because she had not.

[12]   I deal with the application on its merits rather than because it is moot. Applications for judicial review seeking the vindication of constitutional rights are not necessarily moot just because a subsequent decision goes in favour of the applicant. But, on the merits, I dismiss the application for judicial review.

Palmer J