Cavanagh v Police HC Invercargill CRI 2007-425-000028

[2007] NZHC 2097

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2007-425-000028

KYLE CHARLES CAVANAGH

Appellant

v

POLICE

Respondent

Hearing:         4 September 2007

Appearances: H T Young for Appellant (by video link)

M J Thomas for Respondent (by video link) Judgment:  4 September 2007

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a refusal of bail by the District Court on 20 July

2007.   The appellant is 18 years of age and accordingly is afforded the rights set out in s 15 of the Bail Act 2000.  This section provides that a Court must release the defendant on bail subject to some very confined exceptional circumstances which I have discussed in Manihera-Mako v Police High Court Christchurch CRI 2005-409-

000081 4 May 2005.

CAVANAGH V POLICE  HC INV CRI 2007-425-000028  4 September 2007

[2]      The District Court Judge was quite aware of s 15 although he understated it by saying it created a presumption when the words in the section are:

… must release the defendant on bail …

[3]      The Judge refused bail because of the quite deplorable history of breaches of bail by this young man including getting a final warning by one Judge.  The District Court Judge relied on the decision of the Court of Appeal in R v Ropiha CA325/05

22 September 2005 in these terms:

… The Court of Appeal has made it clear in R v Ropiha   that those who offend against their bail conditions, however minor or trivial, can expect that bail will be refused.  In his case Mr Cavanagh’s ‘transgression’, which I in the case of an adult would have no doubt would disqualify him from being readmitted to bail, bail must be considered in light of his age.

The Judge then went on to say:

In my view, in the context of his considerable number of appearances before the Court, the seriousness of the charges, and what appears to be a limited appreciation by both he and, in my respectful analysis, his family I believe that there is no other desirable course.  Bail is refused. …

[4]      The transgression in this case is that the boy, instead of being at his home, it appears he was at his sister’s home babysitting for her.  The charges the boy faces are very serious.  They are charges of arson, burglary and conspiring to defeat the course of justice.  He has elected trial by jury and there is a real prospect of at least six to eight months in custody before trial.

[5]      The passage in the Court of Appeal that the Judge was referring to is an obiter dictum.   The dictum should not be treated as a ruling binding on inferior Courts.  It is inconsistent with the Court of Appeal decision in R v Keefe And Anor CA162/04 22 July 2004 and s 58 of the Bail Act.  Section 58 requires the Court to consider bail afresh where there has been breach of a condition of bail.  In paragraph [26] of Keefe the Court of Appeal said:

[26] As Mr Keefe was brought before the Court for breach of bail under s58 of the Act the Judge was required to reconsider the question of bail: s58(3) of the Act. Any person arrested under s59 is, after that arrest, “bailable only at the discretion of the Judge”: s59(4). An entirely fresh decision as to bail is made.

[6]      It follows that notwithstanding a pattern of breaches s 15 of the statute still applies and in these circumstances there is an option not taken to date which is to impose a 24 hour curfew as a condition of bail which requires this young man to live with his mother.  That is what Mr Young proposes.  I am satisfied in terms of s 15 that that is an available option which addresses the problems that have occurred in the past, where, for example, provision was made for him to work.

[7]      I would also add that it is still desirable, if possible, that this young man does work.   Were he to obtain employment in circumstances where he had limited opportunities for social contact with undesirable associates and opportunity of committing further crimes, such as a job on a rural property, living alongside the manager or owner of the property and thus under supervision and staying on the property at all times, I think that would be an appropriate circumstance to apply to the Court for a variation of the bail conditions.   In Southland there may well be opportunities of that sort available.

[8]      For these reasons the bail is allowed.   The appellant is granted bail on the following conditions:

1.That he resides with his mother in her house at 122 O’Hara Street, Invercargill.

2.That he is subject to a 24 hour curfew.  If there is a reason for leaving the property such as a medical appointment or a visit to his lawyer, he is to notify first the Invercargill police and obtain from the police a written acknowledgment and approval of the date, time and duration of his trip from the home to the appointment.

3.He can apply for less restrictive conditions in order to take up employment.  That application can be made as a fresh bail application to the District Court under the usual principles.

Solicitors:

Checketts McKay, Alexandra, for Appellant

Preston Russell Law, Invercargill, for Respondent