Gardner v Police
[2020] NZHC 1805
•24 July 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000078
[2020] NZHC 1805
BETWEEN STEVEN CAMPBELL GARDNER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 July 2020 Appearances:
Appellant in person
M McClenaghan for the Respondent
Judgment:
24 July 2020
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 24 July 2020 at 9.00 am
Registrar/ Deputy Registrar Date:
Solicitors:
Crown Solicitor, Christchurch
GARDNER v NEW ZEALAND POLICE [2020] NZHC 1805 [24 July 2020]
Introduction
[1] The appellant, Mr Gardner, entered into a bond to keep the peace on 2 June 2020 for a term of six months, with a forfeiture sum of $300.1
[2] The bond was issued under s 367 of the Criminal Procedure Act 2011 (CPA). Mr Gardner appeals against this order on the grounds that he did not understand the effect of the bond, and there was insufficient evidence before the Court to prove the charges.
Background
[3] Mr Gardner was charged with intimidating the complainant by threatening to injure,2 and assaulting the complainant.3 Both offences are alleged to have occurred on 2 September 2019. A summary of facts relating to this offending has not been made available to either the District Court or this Court.
[4] Mr Gardner was also charged with two charges of failing to answer District Court bail on 9 October 2001 and 9 December 2019.
[5] All charges were set down for a defended hearing on 2 June 2020. At the commencement of the hearing, discussions between counsel and the Court resulted in Mr Gardner entering into the bond. There was no formal application pursuant to s 366 of the CPA. All four charges were dismissed.
Principles on appeal
[6] Section 312 of the CPA provides that a person who is ordered to enter into a bond to keep the peace may appeal that decision to the High Court. An appeal proceeds as if it were an appeal against a costs order under subpart 6 of the CPA.4
1 Police v Gardiner [2020] NZDC 11208.
2 Summary Offences Act 1981, s 21(1)(a).
3 Section 9.
4 Criminal Procedure Act 2011, s 312(3). See also s 271.
[7] On appeal, the Court may confirm, vary, or set aside the decision, or make any other order considered appropriate.5
District Court decision
[8]The decision consists of one paragraph and reads:
Mr Gardiner, the four charges against you are now dismissed on the basis that you have signed the bond for keeping the peace under s 367 Criminal Procedure Act 2011, so that is the end of the matter.
[9] The legal discussion before the Judge shows that Sergeant Patton, for the Police, considered the gravity of the offending to be low and based on family ties.6 The Police considered there was no public interest in a judge-alone trial and accordingly sought to have a bond to keep the peace drafted by the registry. Mr Gardner’s counsel indicated that this was an appropriate alternative dispute resolution.
[10] Sergeant Patton is recorded as saying that once the bond is drafted the matter could come before the list court for “the defendant to accept or decline it”.7 He indicated that if Mr Gardner accepted the bond, the police would seek leave to withdraw the charges.
[11] The Judge – having engaged in a discussion with both counsel – “directed” that Mr Gardner enter a bond under s 366 of the CPA. Once Mr Gardner had signed the bond, he was recalled before the Judge who dismissed the charges against him.
Relevant sections of the CPA
[12]Section 366 states:
366 Application for order for bond to keep the peace
Any person may apply to the District Court presided over by a District Court Judge for an order requiring any other person to enter into a bond, either with or without sureties, for keeping the peace, on any of the following grounds:
(i)that the applicant has cause to fear that the defendant will—
5 Section 274.
6 Police v Gardiner DC Christchurch CRI-2019-009-008540, 2 June 2020.
7 At 2.
(i)do bodily harm to the applicant or his or her wife, husband, civil union partner, or de facto partner or his or her child or any member of his or her household; or
…
(ii)that the defendant has, to or in the presence of the applicant for the purpose of annoyance or provocation, or to the common annoyance of members of the public,—
(i)used provoking or insulting language; or
…
(iii) done any offensive act; or
…
(iii)that the defendant has threatened to do, or to procure some other person to do, any act that, if done, would constitute an offence under any of the following provisions of the Crimes Act 1961:
(i)section 188(1) (which relates to wounding with intent to do grievous bodily harm):
(ii)section 189(2) (which relates to injuring with intent to injure):
(iii)section 196 (which relates to common assault):
(iv)section 267 (which relates to arson):
(v)section 269 (which relates to intentional damage):
…
[13]The relevant parts of s 367 state:
367 Making of order for bond
(1)On the hearing of an application under section 366, the court may order the defendant to enter into a bond if it considers that there are good grounds to do so.
…
(4)No order may be made under this section, unless—
(a)in the case of an application under section 366(a), the court is satisfied that the applicant has just cause for his or her fear; or
(b)in the case of an application under section 366(b), the court is of the opinion that the conduct complained of is likely to be repeated and may tend to provoke a breach of the peace; or
(c)in the case of an application under section 366(c), the court is satisfied that there is just cause for fear that the defendant will, if not prevented, carry the threats into execution.
[14] In his initial submissions, Mr McClenaghan for the Police argued that the Judge had before him: a signed formal statement by the complainant which outlined the threat and the assault; and a signed notebook statement of Constable Gillon detailing an admission by Mr Gardner of the threat towards the complainant. Upon further enquiry by this Court, Mr McClenaghan confirmed that the Judge did not have these documents before him.
[15] In making an order for a bond, the Court must be satisfied that the complainant has just cause for their fear that the defendant will do bodily harm to the them,8 or in the case of threatening language that the conduct complained of may tend to be repeated and may tend to provoke a breach of the peace.9
[16] Mr McClenaghan submitted that the District Court Judge had jurisdiction to impose the order on the grounds that the complainant had cause to fear bodily harm by Mr Gardner,10 Mr Gardner used provoking or insulting language in the presence of the complainant,11 or Mr Gardner physically grabbed and/or threatened to assault the complainant.12
[17] The Judge did not have the summary of facts, the complainant’s statement or the attending constable’s notebook entries. On this basis the Judge could not have addressed the underlying facts of the matter. It appears the Judge accepted counsel’s unanimous presentation of the bond as an alternative dispute resolution mechanism, without enquiring as to the actual basis for the bond and whether or not he was satisfied that the complainant had just cause for his fear that the defendant would do bodily harm to him or use threatening language.
[18] The Judge gave no reasons for making the order. Nor did he make any further enquiries as to the basis of the order.
8 Criminal Procedure Act, s 367(4)(a).
9 Section 367(4)(b).
10 Section 366(a)(i).
11 Section 366(b)(i).
12 Section 366(c)(iii).
[19] There is no evidence (including in the court record) to enable me to determine whether the Judge was aware of the existence of evidence which would satisfy the requirements of s 367(4)(a) of the CPA.
[20] The approach taken by the Judge is understandable in the highly transactional, high volume environment of a busy District Court. Particularly where Mr Gardner was represented by counsel, both counsel supported the bond, and Mr Gardner ostensibly consented by signing the bond.
[21] It might be argued signing and therefore entering into the bond was an act in itself which could have satisfied the requirement of s 367(4) of the CPA, but it is simply unknown what factors the judge considered in the exercise of his discretion.
[22] I have every sympathy for the Judge in circumstances where he was attempting to do justice to a case and give effect to the considered and agreed position of both the prosecution and defendant but given the lack of evidence and reasoning, I cannot be satisfied that the provisions of s 367(4) CPA were in fact satisfied.
Result
[23]I allow the appeal and dismiss the bond.
Doogue J
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