C v Police HC Invercargill CRI 2009-425-35

[2009] NZHC 2488

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2009-425-000035

C

Appellant

v

POLICE

Respondent

Hearing:         21 December 2009

(Heard at Christchurch (via Video Link))

Counsel:         S Williamson for Appellant

M Sinclair for Respondent

Judgment:      21 December 2009

JUDGMENT OF FOGARTY J

[1]      The appellant has pleaded guilty to charges arising from two incidents.   In one, he, as a tenant, punched the wall of a flat causing damage to the wall and he has pleaded guilty to a charge of intentional damage.

[2]      The second incident arose out of an altercation in a park between he and another man, McMurdo.  I am told from the bar there has been bad blood between them in the past.  He pulled out a pocket knife.  McMurdo called the police.  The police arrived and in the presence of the two police officers he threatened to kill McMurdo.    As a result of that incident he is charged with threatening to kill, and,

without reasonable excuse having with him a knife in a public place.

C  V POLICE  HC INV CRI 2009-425-000035  21 December 2009

[3]      Finally he is in breach of a condition of a supervision sentence for a previous conviction of wilful damage and that breach is that he did not attend a course.  He was granted bail.

[4]      On  this  occasion  when  he  came  before  the  District  Court  he  had  been re- arrested by the police on the grounds that he had contravened a condition of bail. That was a condition that he did not associate with Judd Bielawski or Nathan McMurdo.    Bielawski  is  a  friend  of  the  appellant  but  he  called  on  him.    The condition not to associate with Judd Bielawski or Nathan McMurdo was imposed at a time before he had pleaded guilty to these charges as I understand it.  Bielawski was present at one of these incidents and was going to be called as a witness. McMurdo, of course, is the complainant.

[5]      After he had pleaded guilty it would seem that no-one turned their minds to whether or not this condition was sustainable under the Bail Act 2002.  Conditions not to associate are regularly imposed in order to secure protection of the trial by preventing any opportunity of the defendant to interfere with witnesses or evidence, a prime consideration as to whether there is justification for continued detention under s 8(1)(ii) of the Bail Act.   But once a defendant has pleaded guilty it is extremely unlikely there would be any justification for a continuing order of non- association with any person.  The right of association is a basic common law right. It is also protected under the New Zealand Bill of Rights Act 1990 and it can only be imposed under the Bail Act for purposes which secure the goals of the Bail Act.

[6]      On the facts as I apprehend them it seems quite clear that any obligation not to associate with Judd Bielawski is ultra vires.

[7]      It  would  appear,  as  regrettably is  often  the  case,  that  the  District  Court proceeded on the basis of breach of bail condition when examining whether there should be further bail without having regard to the conduct said to be breach of bail condition.  A breach of a bail condition is not an offence.   That is why there is a special power given in s 35 of the Act where a person may be arrested where a defendant has contravened or failed to comply with any condition of bail.  Note the

use of the phrase “contravened or failed to comply”.  It is not described as a breach even though regularly in judgments it is described as a breach.

[8]      The police are given a discretion under s 35 whether or not to arrest such a defendant.   That means that Parliament intends the police to consider on each occasion where a contravention or failure to comply with a condition of bail is brought to their attention, whether or not to arrest.

[9]      Part of the reasoning of the Judge in this case seems to have been influenced by the fact that the Justices of the Peace in Invercargill are finding it tiresome that people are regularly being brought before them for breaching bail. The Judge quotes one Justice of the Peace in this way:

… Justice of the Peace Winter quite rightly pointed out that he, along with other members of the Court, get sick and sore and tired of people breaching bail.

[10]     It may be that part of the problem is that the police are not exercising the discretion that Parliament intends them to exercise when they find someone who has contravened or failed to comply with a condition of bail.  There is reference also in the judgment to final warnings.  As this Court has had occasion to mention before, there is no statutory scheme of final warnings under the Bail Act.   Whenever any person has contravened or failed to comply with any condition of bail the correct procedure is to re-examine the grounds for continuing bail, including re-examining the conduct which amounts to a contravention or failure to comply with a condition of bail, and a re-examination of the importance of that condition.

[11]     Some of these offences, if not all of them, were committed by Mr C   when he was 17 years or age.   He is now 18 years of age.   Section 15 of the Bail Act applies.   Judge Flatley did refer to s 15 of the Bail Act and recognised that by reference within that s 15 to s 142 of the Criminal Justice Act 1985 the Court may in any case direct that a person be detained in prison if in its opinion no other course is desirable having regard to all the circumstances.  It would appear in this case that the reason why the Judge decided this man would not be granted bail again is that the conditions were insufficient and “he will breach his bail again”.

[12]     For the reasons that I have already given, the particular contravention in this case was in respect of a bail condition which was improper and ultra vires.   This reasoning therefore of Judge Flatley falls away.  It is also of considerable concern to this Court that it is quite unlikely that a sentence of imprisonment will be imposed when he comes up for sentence on 29 January.   This appears to have been partly acknowledged by Judge Flatley who after recording Mr Williamson’s submission that a sentence of imprisonment is unlikely given the lower level of seriousness of offending commented:

Whilst that may be true it is not appropriate in my view for defendants to be able to gain the benefit of a delay that might be incurred in this way, or the benefit of their age.  That would mean that there would be very little point in imposing bail conditions in the first instance, or indeed, warnings should bail be breached.   Young defendants would know that there was little that the Court could do and that undermines the entire process in my view.

[13]     That reasoning falls away when again one focuses on the lack of merit of a non-association condition after a plea of guilty.  It is very important that bail not be refused to any persons as some kind of penalty for contravening of failing to comply with any condition of bail, let alone disregarding an informal “final warning”.

[14]     For  all  these  reasons  I  consider  there  are  several  errors  of  law  in  the reasoning  of  the  District  Court  Judge  and  accordingly  the  appeal  is  allowed. Mr C   is to be re-admitted to bail conditions now on two conditions, deleting the second condition of non-association with Judd Bielawski or Nathan McMurdo.

[15]     I have not had occasion to discuss non-association with Nathan McMurdo. He is the victim of the charges.   But the non-association clause is directed to protecting the evidence at the hearing.  Whether or not there is any future altercation between Mr C   and Mr McMurdo will depend on those two individuals and that is a contingent risk which is inevitable before and after the sentencing of Mr C  .  I see no justification, however, for a condition in respect of the victim being imposed in the circumstances of this case.

[16]     To  summarise,  I can  never  see  any justification  for  a  condition  of  non- association with a witness after a plea of guilty.   There might be some situations where a condition not to associate with the victim might be continued after a plea of

guilty.  I do not think it is justified in this case.  I am not deciding whether it could ever be justified.  In my mind it is simply a “maybe”.

[17]     Mr C   is to be re-admitted to bail forthwith on two conditions:

1.        To reside at Flat 1, 185 Crinan Street, Invercargill; and

2.        To report to Probation by a specified date.  The specified date is to be

Tuesday, 22 December, at 1 pm.

Solicitors:

Hewat Galt, Invercargill, for Appellant

Preston Russell Law, Invercargill, for Respondent